Bledsoe v. Jefferson County, KansasBledsoe v. Jefferson County, Kansas
Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
FLOYD S. BLEDSOE,
Plaintiff,
v.
Case No. 16-2296-DDC-JPO BOARD OF COUNTY COMMISSIONERS
OF THE COUNTY OF
JEFFERSON, KANSAS,
RANDY CARRENO,
TROY FROST,
ROBERT POPPA,
JIM VANDERBILT,
GEORGE JOHNSON,
JIM WOODS,
TERRY MORGAN,
MICHAEL HAYES,
JEFFREY HERRIG in his individual
and official capacity , and
UNKNOWN OFFICERS OF THE
JEFFERSON COUNTY SHERIFF’S
DEPARTMENT and KANSAS
BUREAU OF INVESTIGATION,
Defendants.
_______________________________________
MEMORANDUM AND ORDER
This matter comes before the court on defendants Board of County Commissioners of the County of Jefferson, Kansas (“Jefferson County”); Jeffrey Herrig, in his individual and official capacity; Randy Carreno; Troy Frost; and Robert Poppa’s (collectively, the “Jefferson County defendants”) Motion to Dismiss Second Amended Complaint (Doc. 144). Plaintiff Floyd S. Bledsoe has filed a Response (Doc. 151) and the Jefferson County defendants have replied (Doc. 152). For reasons explained below, the court grants in part and denies in part the Jefferson County defendants’ Motion to Dismiss.
I. Factual Background
The following facts are taken from plaintiff’s Second Amended Complaint (Doc. 141).
Because defendants’ Motion to Dismiss relies on Fed. R. Civ. P. 12(b)(6), the court must accept
the well-pleaded facts as true and view them in the light most favorable to plaintiff.
See Ramirez
v. Dep’t of Corr.
,
A. Camille’s Murder
In November 1999, plaintiff was 23 years old and married to his wife, Heidi. The couple had two young sons, and plaintiff worked as a farmhand at a dairy farm in McLouth, Kansas. The couple invited Heidi’s younger sister, Camille, to live with them in hopes of improving her school attendance. Plaintiff’s older brother, Tom, then 25 years old, lived nearby with his parents. Tom had little social life, and he suffered from some intellectual limitations and partial deafness. Tom had a history of abnormal sexual behavior that included pursuit of young girls, though he was an active member of a Sunday school group for children at the Countryside Baptist Church.
On November 5, 1999, Camille took the bus home from school. She arrived at plaintiff’s home around 4:20 p.m. Her friend Robin Meyer stopped by to visit at 5:00 p.m., but Camille was not there. Plaintiff and Heidi reported Camille’s disappearance to the Jefferson County Sheriff’s Department and they spent the next 48 hours trying to find Camille. They stopped the search on November 7, 1999, after Tom confessed that he had murdered Camille.
Tom’s parents arranged for defense attorney defendant Michael Hayes [1] to represent Tom. Later that evening, Tom and Mr. Hayes met with personnel at the Jefferson County Sheriff’s Department (“Sheriff’s Department”). Roy Dunnaway, [2] then the Sheriff of Jefferson County, defendant Robert Poppa [3] (who worked as a law enforcement officer in the Sheriff’s Department), and Jim Woods [4] (who worked as a law enforcement officer for the Kansas Bureau of Investigation (“KBI”)) attended this meeting, as did other unknown defendants. Through Mr. Hayes, Tom informed these defendants that he had murdered Camille and that he knew where to find her body. Tom or Mr. Hayes also revealed other details about Camille’s murder, including that Tom had shot her in the head and moved her body to bury it in a trash dump. Tom and Mr. Hayes took these defendants to his parents’ property where Tom had been living. They found Camille’s body underneath a foot of dirt, plywood, and garbage that included an X-rated movie and t-shirt that read: Countryside Baptist Church. The wounds on Camille’s body matched Tom’s description of her murder. Defendants found three of four missing bullet casings at Camille’s burial site.
The coroner recovered semen from inside Camille’s vagina, but he was unable to determine whether Camille had been sexually abused. Mr. Hayes surrendered the murder weapon—Tom’s newly purchased Jennings 9mm firearm—to the police officers. Tom was charged with Camille’s murder and taken to the Jefferson County Jail. Despite the evidence against Tom, defendants planned to frame plaintiff for Camille’s murder.
B. The plan to frame plaintiff
Several days after Tom’s arrest, Mr. Hayes, along with Jefferson County prosecutor defendant Jim Vanderbilt [5] and other unknown defendants, met to devise a plan to fabricate Tom’s testimony. The lead detective on Camille’s murder case, defendant Randy Carreno from the Sheriff’s Department, [6] had focused his investigation on plaintiff even after Tom had surrendered. Mr. Hayes, Mr. Carreno, and other defendants conspired to secure false statements from Tom which would pin Camille’s murder on plaintiff. Allegedly, Mr. Hayes previously had helped Mr. Vanderbilt avoid exposure for misappropriating county funds. So, Mr. Vanderbilt was indebted to Mr. Hayes and became a willing ally in the plan to frame plaintiff.
The plan went like this: Tom would recant his confession and claim that he had run into plaintiff on Saturday, November 6, 1999, at a roadside intersection. Tom would say that plaintiff had confessed to Camille’s murder and had given him extensive details about the crime. Then, Tom would say that plaintiff persuaded him to take the blame for the murder by threatening to expose his deviant sexual history—including viewing X-rated movies and attempting to have sex with a dog. Mr. Hayes, Mr. Vanderbilt, and other defendants planned and coached Tom about recanting his confession. Tom was manipulated easily. Shortly before Tom recanted his confession, Mr. Hayes told plaintiff something about how he planned to take Tom off the “hot seat” and replace him with plaintiff.
Defendant George Johnson, [7] who worked as a law enforcement officer for the KBI, administered polygraph examinations to both Tom and plaintiff on November 12, 1999. At some point during his examination, Tom recanted his confession and replaced it with the story that Mr. Hayes and others had coached him to give. During his polygraph examination, Tom failed this question: “Did you shoot Zetta ARFMANN, between 5 and 8 Nov. ‘99?” [8] Doc. 141 at ¶ 58.
Overcome with guilt following the examination, Tom confessed again to Sheriff Dunnaway, Mr. Johnson, Mr. Vanderbilt, and other defendants, admitting that he had murdered Camille. Mr. Johnson instructed Tom to continue lying to implicate plaintiff, and Tom acquiesced. Then, plaintiff took the polygraph examination and truthfully denied any involvement in Camille’s murder.
That evening, Mr. Vanderbilt released Tom from jail and dropped the charges against him. Plaintiff alleges an agreement was reached for Tom’s release, and this agreement was never disclosed to plaintiff. Sheriff Dunnaway and other defendants then arrested plaintiff, and they continued to use Tom’s fabricated statements to frame plaintiff. Specifically, Mr. Carreno and other defendant officers knowingly and purposefully falsified Tom’s statements about meeting plaintiff at the roadside intersection so that they fit the timeline for the period when they believed plaintiff lacked an alibi. Plaintiff alleges Mr. Carreno was with plaintiff during much of the day on Saturday, November 6 because they were searching for Camille together. And, these defendants knew the roadside meeting never had happened.
Additionally, defendants, including Mr. Carreno, coached Tom to provide false explanations about how he had known so many details about Camille’s death. Tom’s false account became the centerpiece of the prosecution’s evidence against plaintiff.
Overall, various law enforcement officers were involved in investigating Camille’s death, and plaintiff’s subsequent prosecution and conviction. Defendants Randy Carreno, Troy Frost, Robert Poppa, and Jeffrey Herrig worked as law enforcement officers in the Sheriff’s Department, along with two individuals no longer named as defendants—Sheriff Dunnaway and law enforcement officer Orin Turner—and other unknown defendant officers. The Second Amended Complaint refers to Mr. Herrig, Mr. Carreno, Mr. Frost, Mr. Poppa, and the unknown law enforcement officers from the Sheriff’s Department named as defendants in this case as the “Jefferson County Defendant Officers.” Doc. 141 at ¶ 17. Mr. Herrig was the Undersheriff at the time of the events. He reported to Sheriff Dunnaway, but Mr. Herrig oversaw the day to day operations at the Sheriff’s Department (including supervising Mr. Carreno, Mr. Frost, Mr. Poppa, and other unknown officers). Sheriff Dunnaway supervised Mr. Herrig and also supervised Mr. Carreno, Mr. Frost, Mr. Poppa, Mr. Turner, and other unknown officers. Now, Mr. Herrig serves as the Sheriff of Jefferson County, Kansas. He oversees the Sheriff’s Department and is responsible for its policies and practices. He is sued in both his individual capacity and in his official capacity as the Jefferson County Sheriff.
Defendants Terry Morgan, Jim Woods, and George Johnson worked as law enforcement officers for the KBI. [9] Mr. Morgan, Mr. Woods, and Mr. Johnson along with other unknown KBI officers involved in Camille’s case (collectively, the “KBI Defendant Officers”) were integral and active participants in investigating Camille’s death. The KBI Defendant Officers gathered physical evidence, executed search warrants, photographed the crime scene and victim, conducted and reviewed polygraph examinations and interviews, completed police reports, and directed Mr. Carreno to interview certain witnesses. at ¶ 18.
The Second Amended Complaint refers to the Jefferson County Defendant Officers (named to include Mr. Carreno, Mr. Frost, Mr. Poppa, and Mr. Herrig, among others) and the KBI Defendant Officers (named to include Mr. Morgan, Mr. Woods, and Mr. Johnson, among others) as the “Defendant Officers.” at ¶ 19. The court similarly refers to this group collectively as the “defendant officers.”
C. Plaintiff’s prosecution and conviction
The defendant officers withheld evidence of Tom’s guilt from plaintiff’s defense to ensure plaintiff would be prosecuted and convicted. For example, Mr. Woods and other defendant officers withheld Tom’s detailed description about how he had tried to have sex with Camille in his truck and shot her when she laughed at him. The defendant officers including Mr. Poppa and Mr. Woods, along with Sheriff Dunnaway, withheld Tom’s statements to them the night he turned himself in, where he described Camille’s wounds and her body’s location. And the defendant officers, including Mr. Frost, withheld evidence that Tom had a history of pursuing young girls of similar age to Camille and that Tom had made sexual advances toward Camille a few weeks before her disappearance. The defendant officers, including Mr. Carreno, withheld information about Tom’s activities between November 8 and November 12, 1999. And, Mr. Johnson and other unknown defendants, along with Sheriff Dunnaway, purposefully withheld documents showing Tom’s inculpatory statements during the polygraph examination.
Additionally, the defendant officers suppressed physical evidence of Tom’s guilt. Plaintiff alleges Mr. Frost, Mr. Herrig, Mr. Poppa, and Mr. Woods, along with Sheriff Dunnaway and other defendant officers, thoroughly searched plaintiff’s home and vehicle. Mr. Carreno also properly collected clothing of another suspect for forensic examination. But, in furtherance of the conspiracy to frame plaintiff for Tom’s crime, the defendant officers, specifically including Mr. Morgan, Mr. Woods, Mr. Herrig, Mr. Frost, and Mr. Poppa, along with Sheriff Dunnaway, purposefully did not subject Tom’s home, clothing, or vehicle to any similarly rigorous forensic examination. These defendants intentionally refrained from collecting any physical evidence from Tom’s truck—where Tom confessed he had shot Camille—or the shovel Tom identified as the one he had used to bury Camille. And, they recovered Tom’s weapons and ammunition after allowing Tom’s father to handle them and turn them over, thus contaminating this evidence.
The defendant officers also generated false evidence against plaintiff. Mr. Johnson reported to Mr. Vanderbilt that plaintiff had exhibited deception during his polygraph examination, and that Tom had exhibited truthfulness. But Mr. Johnson knew this characterization was false. Mr. Frost and Mr. Turner falsely claimed that plaintiff had confessed to visiting his home around the time Camille disappeared, and Mr. Frost signed an affidavit containing this false information to support a request for a search warrant. Plaintiff never made any statement to Mr. Frost or Mr. Turner that he had been to his house around the time of Camille’s disappearance. But, Mr. Frost and Mr. Turner manufactured this evidence to frame plaintiff. And, the prosecution used the manufactured evidence about plaintiff’s confession to bring charges against plaintiff and, ultimately, secure plaintiff’s conviction.
Mr. Vanderbilt offered plaintiff a plea deal: plaintiff would serve five years in exchange for pleading guilty. Plaintiff rejected the deal and, in April 2000, a jury convicted him for murder, aggravated kidnapping, and taking indecent liberties with a child. The trial judge sentenced plaintiff to life in prison plus 16 years.
D. Post-Conviction Relief
In June 2008, a federal district court granted plaintiff habeas relief and he was released on bond. The Tenth Circuit Court of Appeals reversed the ruling in July 2009, and plaintiff was forced to return to prison. Then, in October 2015, plaintiff secured additional forensic testing for some of the physical evidence officers had collected from the crime scene. New DNA test results indicated Tom was the likely source of the semen found on Camille’s vaginal swab. The test also excluded plaintiff as the source of the semen. Tom committed suicide shortly after this new DNA testing. He left a note that read:
I sent an innocent man to prison. The Jefferson County police and county attorney Jim Vanderbelt made me do it. I was told by Vanderbelt to keep my mouth shut. Now I am going to set thing[s] right.
I killed Camille Arfmann on November 5, 1999. I had sex with her and killed her.
. . . I drove up to the ditch where the family dump trash and tried to convince her not to tell. . . . I went to my truck and got my 9mm gun that was behind my seat and pushed her to the ground to try to scare her, but it failed [and] the gun went off behind her head. . . . I as well might go ahead and say it I raped and murdered a 14 year girl.
I tried telling the truth but no one would listen. I was told to keep my mouth shut. It tore me up doing it. I would ask for forgiveness, but I know none will come. Not even from God.
Floyd S Bledsoe is an innocent man.
Tom E Bledsoe is the guilty one.
Doc. 141 at ¶ 101.
Tom also drew a diagram depicting where he shot Camille before moving her body to the trash dump. Using Tom’s diagram, the police found the fourth missing bullet casing. The Jefferson County court vacated plaintiff’s conviction on December 8, 2015, and the Jefferson County Attorney dismissed the charges against him. Plaintiff left prison, but returned home from prison having missed his sons’ childhood and many years with loved ones. Plaintiff continues to suffer physiological pain and suffering, humiliation, constant fear, anxiety, deep depression, despair, rage, and other physical and physiological effects.
E. Plaintiff’s Claims
Plaintiff brings eight claims against the Jefferson County defendants. Plaintiff brings the following claims under 42 U.S.C. § 1983 against all defendants: (Count I) due process violation for fabricating Tom’s testimonial evidence; and (Count II) conspiracy to deprive plaintiff’s constitutional rights by fabricating Tom’s testimonial evidence.
Plaintiff brings the following § 1983 claims against the defendant officers: (Count III) Brady v. Maryland [10] violation for withholding exculpatory evidence and fabricating evidence; and (Count VI) failure to intervene.
Plaintiff brings the following claims under § 1983 against the defendant officers and Mr. Hayes: (Count IV) malicious prosecution and unlawful pretrial detention; and (Count V) conspiracy to deprive constitutional rights.
Finally, plaintiff brings a claim for municipal liability (Count VII) against Jefferson County and Sheriff Herrig in his official capacity, and a state law claim for indemnification (Count VIII).
II. Legal Standards
The Jefferson County defendants ask the court to dismiss all the claims against them under Fed. R. Civ. P. 12(b)(6) for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). [11]
Under Rule 12(b)(6), a defendant may move to dismiss for failing to state a claim upon
which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering a motion to dismiss
under Fed. R. Civ. P. 12(b)(6), the court must assume that the factual allegations in the complaint
are true.
Ashcroft v. Iqbal
,
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal
,
Some of the Jefferson County defendants’ dismissal arguments don’t rely on plaintiff’s
Second Amended Complaint but on the 686-page transcript of plaintiff’s criminal jury trial, the
entirety of which they attach to their Motion to Dismiss.
See
Doc. 145-1. They also rely on
orders from plaintiff’s state court case and appellate and habeas proceedings. They contend the
court may consider the transcript from plaintiff’s state court trial, without converting their
motion to dismiss to a motion for summary judgment. Doc. 145 at 6 n.1 (arguing plaintiff’s
criminal trial and its transcript are “part and parcel of his claims” so the court should consider the
transcript and citing “
Cf. Smith v. United States
,
That said, plaintiff never objects to the transcripts’ authenticity or defendants’ citations to
it. And, the court may consider “facts subject to judicial notice,” which may include “pleadings,
court orders, motions and certified transcripts of hearings from the state court case.”
Cont’l
Coal, Inc. v. Cunningham
,
The court thus may consider the transcript only for its contents. But, exercising its
discretion, the court does so only where defendants have referred with particularity to specific
portions of the transcript. For example, at times, defendants refer generally to “Ex. 1” or “the
transcript.”
See
Doc. 145 at 35–36, 41 n.21, 42. This kind of sweeping, indiscriminate reference
isn’t a proper technique. “Judges are not like pigs, hunting for truffles buried in briefs.”
Gross
v. Burggraf Constr. Co.
,
III. Analysis
The Jefferson County defendants assert a barrage of arguments for dismissal. First , defendants assert the Second Amended Complaint does not allege the individual Jefferson County defendants personally participated in depriving any of plaintiff’s rights, so plaintiff has failed to state plausible claims. Defendants also assert plaintiff’s conspiracy and failure to intervene claims (Counts II, V, and VI) do not invoke a constitutional right and are not independently actionable. Second , they contend plaintiff’s Fourteenth Amendment due process claims fail as a matter of law. Third , they contend plaintiff’s Fourth Amendment malicious prosecution claim fails as a matter of law. Fourth , they contend the individual Jefferson County defendant officers are entitled to qualified immunity. Fifth , they argue the Second Amended Complaint does not assert plausible Monell claims against Jefferson County or Sheriff Herrig in his official capacity. And, defendants argue plaintiff’s Count VIII—which asserts an indemnification claim—does not invoke a constitutional right and thus is not independently actionable. Many of the Jefferson County defendants’ arguments share a common, underlying theme: they contend the Second Amended Complaint just asserts conclusions and lacks the requisite factual allegations needed to support the claims. The court addresses each argument, in turn, below.
A. Pleading Personal Participation, Conspiracy, and Failure to Intervene Because the allegations against each individual Jefferson County defendant play into certain of the Jefferson County defendants’ other arguments for dismissal in the sections that follow, the court first addresses the individual Jefferson County defendants’ arguments that plaintiff hasn’t pleaded their personal participation adequately to state claims here. Plaintiff asserts Mr. Herrig, Mr. Frost, Mr. Carreno, and Mr. Poppa each are liable for depriving plaintiff of his constitutional right to a fair trial under Fourteenth Amendment due process by (1) fabricating Tom’s testimonial evidence that inculpated plaintiff in the murder (Count I); and (2) withholding or suppressing exculpatory evidence and fabricating additional evidence to implicate plaintiff (Count III). Plaintiff asserts these defendants are liable based on their individual actions or based on their actions in furtherance of a conspiracy to commit the constitutional violations (Count II).
Specifically, Count I alleges defendants “deprived [p]laintiff of his constitutional right to a fair trial by fabricating Tom’s testimonial inculpation of [plaintiff].” Doc. 141 at ¶ 115. Defendants “fabricated and solicited false testimony from Tom implicating [p]laintiff in the crime that they knew was false; obtained [p]laintiff’s conviction using that false evidence; and failed to correct fabricated evidence that they knew to be false when it was used against [p]laintiff at his criminal trial,” which denied plaintiff “his constitutional right to a fair trial guaranteed by the Fourteenth Amendment.” at ¶¶ 116, 118. Count II alleges a conspiracy among defendants to frame plaintiff by using the fabricated testimony by Tom, thus depriving plaintiff “of his constitutional right to due process.” Id. at ¶ 123. Count III alleges the defendant officers “deprived [p]laintiff of his constitutional right to a fair trial,” which is “guaranteed by the Fourteenth Amendment” by “withholding and suppressing exculpatory evidence and fabricating additional evidence against [p]laintiff besides Tom’s false testimony.” at ¶¶ 129, 134.
And, plaintiff asserts a claim against the individual Jefferson County defendants for causing plaintiff’s malicious prosecution and unlawful pretrial detention (Count IV), or based on their participation in a conspiracy to maliciously prosecute him (Count V). Plaintiff also contends the individual Jefferson County defendants are liable based on their failure to intervene to prevent the constitutional deprivations (Count VI).
Specifically, Count IV alleges the defendant officers and Mr. Hayes “accused [p]laintiff of criminal activity and exerted influence to initiate, continue, and perpetuate judicial proceedings against [p]laintiff without any probable cause for doing so, in violation of his rights secured by the Fourth Amendment and the procedural and substantive due process components of the Fourteenth Amendment.” Id. at ¶ 140. The defendant officers are alleged to have “caused [p]laintiff to be unreasonably seized and improperly subjected to judicial proceedings” when no probable cause existed. Id. at ¶ 141. And, plaintiff alleges, the defendant officers “subjected [p]laintiff to unauthorized and arbitrary governmental action that shocks the conscience” because they “deliberately and intentionally” framed plaintiff for a crime they knew he didn’t commit by fabricating, suppressing, and withholding evidence. at ¶ 142. Count V alleges a conspiracy among the defendant officers and Mr. Hayes to frame plaintiff and deprive plaintiff of his constitutional rights “by maliciously causing [p]laintiff’s prosecution, by fabricating evidence[,] . . . and by withholding exculpatory information from [p]laintiff’s defense and the prosecution[.]” Id. at ¶ 148. And, Count VI alleges that the defendant officers failed to intervene “to prevent the violation of [p]laintiff’s constitutional rights, even though they had the opportunity to do so.” at ¶ 154.
The court delves into the elements of the § 1983 claims in Counts I, III, and IV in more detail to address defendants’ specific arguments for dismissal in Parts III.B. and III.C. In this section, the court addresses defendants’ general argument that plaintiff hasn’t alleged personal participation, conspiracy, or failure to intervene, which is how the parties set up these dismissal arguments. See Doc. 145 at 36–38, 39–43; Doc. 151 at 14–17, 34–36; Doc. 152 at 4–10, 15–16.
First, in Part III.A.1. the court considers the Jefferson County defendants’ argument that the court should dismiss the conspiracy counts (Counts II and V) and failure to intervene count (Count VI) as not independently actionable. Next, the court turns to the Jefferson County defendants’ argument that plaintiff’s use of “defendants” or “defendant officers” for certain factual allegations in his Second Amended Complaint means plaintiff hasn’t alleged adequately Mr. Herrig, Mr. Frost, Mr. Carreno, and Mr. Poppa’s personal participation in any alleged constitutional deprivations or conspiracy to commit those deprivations. Doc. 145 at 37–43. They argue that the court must disregard plaintiff’s allegations as conclusory, or inadequate to show agreement and concerted action or to put defendants on notice of the accusations against them. at 37–39. For conspiracy liability, defendants argue plaintiff relies on vague, conclusory allegations that a collective group of defendants acted in concert to frame plaintiff by fabricating inculpatory evidence and withholding exculpatory evidence, but never provides details supporting an unlawful agreement that includes these Jefferson County defendants. at 37.
The court already has rejected similar arguments when asserted by various other defendants. See Doc. 114. Likewise now, as discussed in Part III.A.2., plaintiff’s use of collective defined terms in certain allegations within the Second Amended Complaint doesn’t doom plaintiff’s claims because, as discussed in Part III.A.3., plaintiff has alleged specific facts against each individual defendant from which the court can infer they agreed to join the alleged conspiracy. Because plaintiff adequately pleads a conspiracy and each defendant’s personal participation in it, his failure to intervene theory also is plausible, as the court explains in Part III.A.4. In short, plaintiff has alleged specific acts by each defendant to put them on notice of the claims against them and which could support a reasonable inference that they joined the alleged conspiracy and are liable for the deprivations either directly or under conspiracy and failing to intervene liability theories. Thus, the allegations against Mr. Herrig, Mr. Carreno, Mr. Frost, and Mr. Poppa sufficiently allege their personal participation to survive the Rule 12(b)(6) motion.
1. Conspiracy and Failure to Intervene as Independent Counts The Jefferson County defendants contend Counts II, V, and VI aren’t independently actionable claims but are, instead, different methods of imposing liability for underlying violations asserted in other counts. Doc. 145 at 36. Thus, they argue, the court should dismiss these claims “as separate ‘counts’ because they are not independent deprivations.” Id . Plaintiff’s Response doesn’t appear to refute the premise that his conspiracy and failure to intervene claims are inextricably linked to his allegations that the Jefferson County defendants are liable for the constitutional deprivations specified in Counts I, III, and IV, though the conspiracy and failure to intervene claims are styled as separate counts. See Doc. 151 at 34–36.
Indeed, § 1983 claims provide a remedy only where a plaintiff has been deprived of a
right secured by the Constitution or federal law.
See Gonzaga Univ. v. Doe
,
Defendants are correct that no separate constitutional right against conspiracies exists.
See
Doc. 145 at 36. They also are correct that the Constitution doesn’t sponsor a duty requiring
intervention.
See id.
Plaintiff, in turn, never contends Counts II, V, and VI are based on any
such separate constitutional right. Still, the court doesn’t find it necessary to dismiss the
conspiracy and failure to intervene counts. The parties are represented by sophisticated counsel
here and can understand the intent of the conspiracy and failure to intervene claims and how
those counts tie to the counts that specify the underlying § 1983 constitutional deprivations.
See
Doc. 152 at 15–16 (Reply recognizing the conspiracy and failure to intervene liability theories
“become[] relevant” if the court finds plaintiff adequately has pleaded violations of his
constitutional rights). In short, the Second Amended Complaint’s Counts II, V, and VI, when
coupled with Counts I, III, and IV, are plaintiff’s way of meeting his requirement to plead both
the constitutional deprivation and a conspiracy or failure to intervene—
i.e.
, the conspiracy and
failure to intervene claims are a means to impose liability on a defendant for actions that other
defendants performed in the course of the conspiracy or for which he should have intervened to
prevent.
See Dixon
,
Thus, the court focuses the analysis on whether the alleged actions of the individual Jefferson County defendants suffice to state claims against them for the alleged constitutional deprivations either directly or under any of the alternative methods for imputing liability alleged in the Second Amended Complaint. As explained below, the court concludes plaintiff has pleaded each individual Jefferson County defendant’s personal participation sufficient for plaintiff’s constitutional deprivation claims to survive the Jefferson County defendants’ Motion to Dismiss.
2. Collective Allegations and Alleging a Conspiracy
As explained in Part II, under Rule 12(b)(6), a plaintiff may not rely on “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.”
Iqbal
,
So, § 1983 allegations must ‘“make clear exactly
who
is alleged to have done
what
to
whom
, . . . as distinguished from collective allegations.”’
Pahls
,
But, as this court already has explained, the Tenth Circuit never has adopted a
blanket prohibition against collective allegations.
See
Doc. 114 at 28. The Tenth Circuit permits
a complaint to refer to defendants collectively so long as “there is no confusion as to whom the
allegation is asserted against.”
See Briggs v. Johnson
,
A sufficient
conspiracy
claim under § 1983 requires plaintiff to “allege specific facts
showing an agreement and concerted action amongst the defendants.”
Tonkovich v. Kan. Bd. of
Regents
,
Collectively, plaintiff asserts defendants all participated in the scheme to fabricate evidence and orchestrate Tom’s false recantation implicating plaintiff. Doc. 141 at ¶ 4. And, the defendant officers “deliberately concealed and suppressed the evidence that would have proven [plaintiff’s] innocence.” Id. at ¶ 5. The defendant officers “withheld all of the details of Tom’s numerous confessions, including his explanation for where and why he had killed Camille and facts he could have known only by committing the murder himself.” Id. And, the defendant officers “suppressed physical evidence from Tom’s truck, Tom’s home, and the crime scene, as well as other evidence of Tom’s guilt—all while fabricating additional evidence against [plaintiff] . . . .” Id.
Plaintiff alleges “[d]efendants conspired to frame [plaintiff] for Tom’s crime,” even though the defendant officers didn’t secure inculpatory information against him from interrogating plaintiff, searching his home, car, and clothing, and using bloodhounds to search for evidence. Id. at ¶¶ 43, 46–47. He asserts that Mr. Hayes, Mr. Vanderbilt, and “other unknown Defendants” held a meeting several days after Tom was arrested to figure out a scheme to fabricate Tom’s testimony and frame plaintiff. Id. at ¶ 48. The allegations that follow indicate Mr. Carreno participated in this meeting, or separately agreed to the plan. at ¶¶ 51–53, 65. And, plaintiff asserts other defendant officers also helped plan the recantation, construct the false narrative, and coach Tom to follow the plan. Id. at ¶¶ 53–54. Tom provided the false recantation defendants had coached him to provide. Id. at ¶ ¶ 57, 65. And the defendant officers worked to align the fabricated roadside meeting during a timeframe when they believed plaintiff lacked an alibi. at ¶ 64. Knowing they had a weak case against plaintiff, the defendant officers “withheld evidence of Tom’s guilt,” “generated additional false evidence against” plaintiff, and concealed Tom’s inculpatory statements. at ¶¶ 68–72, 74–76. The defendant officers also “actively suppressed physical evidence that would have proven Tom’s guilt.” at ¶¶ 77–78, 81–83.
While these allegations refer to the investigating officers as a collective group and, alone,
don’t provide the requisite notice of each individual defendant’s alleged conduct, plaintiff alleges
all the defendant officers participated in the conspiracy to frame him for a crime he didn’t
commit. As noted, the Tenth Circuit has recognized that “[d]irect evidence of an agreement to
join a [ ] conspiracy is rare,” so the court properly can infer an agreement based on a defendant’s
actions “furthering the conspiracy’s purpose.”
Edmonson
,
As the court describes in this section (Part III.A.2), the factual background section (Part
I) , and the section below (Part III.A.3), this is not a case where plaintiff only includes generic
collective allegations, and “provide[s] no explanation of how this alleged conspiracy . . .
operated, or even a plausible purpose for the conspiracy.”
Cruz v. City of Merriam
, 21 F. Supp.
3d 1177, 1183 (D. Kan. 2014). Instead, while plaintiff sometimes refers to the collective group
of defendant officers, he also: (a) makes allegations about specific acts each officer took in
furtherance of the conspiracy; (b) explains when the alleged conspiracy began; and (c) specifies
how it was executed through both fabricating evidence and withholding exculpatory evidence.
See id.
at 1186 (concluding plaintiff’s complaint though “not a model of specificity” was “far
from the completely generic complaint in
Robbins
” and specifically alleged which defendants
withheld information from the prosecutor);
see also Fisher v. Shamburg
,
Indeed, it’s reasonable to infer that the officers working on the investigation shared
information throughout its course, and, ultimately, worked together to accomplish the alleged
constitutional deprivations—
i.e.
, it makes sense that plaintiff groups some of his allegations
against the group of people who investigated him, because, he contends, they all were in on it.
Defendants argue plaintiff’s conspiracy allegations are implausible and there’s no reason to
believe they planned to frame plaintiff, but instead it’s more reasonable to conclude they
genuinely believed plaintiff committed the crimes. But, plaintiff’s allegations, accepted as true,
suffice to allege plausibly a conspiracy, and—as explained in more detail in Parts III.B. and
III.C.—deprivations of plaintiff’s constitutional rights against the Jefferson County defendant
officers.
See Robbins
,
3. Personal Participation As explained individual-by-individual below, plaintiff specifically identifies certain acts by Mr. Carreno, Mr. Frost, Mr. Herrig, and Mr. Poppa which support reasonable inferences that each one participated in the conspiracy to fabricate evidence, withhold evidence, and maliciously prosecute plaintiff, or that suffice to allege they themselves directly violated plaintiff’s constitutional rights. Some of the allegations are thin, and some—standing alone—do not support direct liability for fabricating inculpatory evidence. But, at the motion to dismiss stage, the allegations are accepted as true and viewed in the light most favorable to plaintiff. And, because the allegations show acts in furtherance of the alleged conspiracy, they support a reasonable inference of an agreement among defendants to conspire to violate plaintiff’s constitutional rights by fabricating inculpatory evidence, withholding exculpatory evidence, and maliciously prosecuting him. See Part III.A.2. Thus, they suffice to survive the motion to dismiss.
a. Mr. Carreno Mr. Carreno was the lead detective on the investigation into Camille’s disappearance. Doc. 141 at ¶ 49. He focused his investigation on plaintiff as the suspect, even after Tom confessed and turned himself into the police. Id. And, he conspired with Mr. Hayes and Mr. Vanderbilt to pin the murder on plaintiff and fabricate false statements from Tom to support prosecuting plaintiff instead. Id. at ¶¶ 50–51. These defendants met and contrived the plan where Tom would recant his confession and claim he ran into plaintiff on Saturday, November 6, when, Tom falsely would assert, plaintiff confessed to the murder, confided details of the crime, and persuaded Tom to take the blame. Id. at ¶ 52. [13] Mr. Carreno was “physically with [p]laintiff during much of Saturday, November 6th, as they searched for Camille together.” Id. at ¶ 45. And he “purposefully falsified Tom’s statements” to create the fictitious roadside meeting at a time when he thought plaintiff was lacking an alibi that day. Id. at ¶ 64. Mr. Carreno also coached Tom how to explain how he knew so many details of the crimes. at ¶ 65. And, Mr. Carreno withheld documents of Tom’s activities between the time he confessed and the time he recanted that confession. at ¶ 72.
These allegations suffice to put Mr. Carreno on notice of the acts he is alleged to have committed to violate plaintiff’s constitutional rights against fabricated inculpatory evidence, withheld exculpatory evidence, and malicious prosecution. Defendants argue these allegations aren’t enough because plaintiff is required to allege exactly which of Tom’s statements Mr. Carreno altered, “in what way the statements were changed, how the statements were documented, [and] to whom the statements were made.” Doc. 145 at 17. They also contend plaintiff must allege Mr. Carreno’s motivation to falsify Tom’s statements, and specify— exactly—when he had an opportunity to coach Tom and with whom Mr. Carreno shared his plans. Id. ; Doc. 152 at 7. They also assert plaintiff was obligated to allege the specific documentation of Tom’s activities and which of Tom’s statements Mr. Carreno had in his possession but failed to turn over to plaintiff’s defense. Doc. 145 at 17. Finally, defendants contend, plaintiff’s allegations of a conspiracy with Mr. Hayes, Mr. Vanderbilt, and Mr. Carreno were purely conclusory, and he needed to identify specific meetings, more factual support for the conspiracy, and defendants’ motivations for the conspiracy. at 17–18.
These arguments misapprehend the standard. Fed. R. Civ. P. 8(a)(1) requires only “a
short and plain statement of the claim showing that the pleader is entitled to relief.” It “does not
require ‘detailed factual allegations.’”’
Iqbal
,
b. Mr. Frost Mr. Frost also worked on the investigation. Doc. 141 at ¶ 79. He withheld evidence, plaintiff alleges, of Tom’s history pursuing young girls and the fact that Tom had made sexual advances on Camille a few weeks before her disappearance. Id. at ¶ 74. Also, he thoroughly searched plaintiff’s home and car, but purposefully failed to use proper evidence techniques when searching Tom’s home and clothing and allowed Tom’s father to handle the murder weapon. Id. at ¶¶ 79, 81. Mr. Frost intentionally didn’t collect evidence from Tom’s truck, where Tom had confessed to shooting Camille, or the shovel that was used to bury the body. Id. at ¶ 82. [14] And, plaintiff alleges Mr. Frost took these actions as part of the scheme to frame plaintiff, and proper evidence recovery would have shown Tom as the perpetrator. Id. at ¶¶ 83– 84. Also, Mr. Frost falsely claimed that plaintiff had confessed to him that plaintiff went to his house around the time Camille disappeared, and then he used this false confession to secure a search warrant. at ¶ 89. He is alleged to have manufactured this statement as part of the scheme to frame plaintiff. at ¶ 92.
For plaintiff’s allegation that Mr. Frost fabricated plaintiff’s confession about having
gone home around the time of Camille’s disappearance, defendants argue this can’t be material
because Mr. Frost testified at trial that he may have misheard plaintiff because plaintiff later
denied going home. Doc. 152 at 7. This argument is not convincing. Regardless whether Mr.
Frost admitted that he may have misheard plaintiff, plaintiff alleges here that Mr. Frost made up
plaintiff’s confession to returning home. In part, the Kansas Supreme Court relied on this
assertion that plaintiff went home to find the evidence as sufficient to convict plaintiff.
State v.
Bledsoe
,
For the allegations about Mr. Frost withholding information about Tom’s advances
toward Camille, defendants argue plaintiff also needed to allege that he “lacked independent
knowledge of his brother’s social history” and explain how “his defense was hindered by these
alleged suppressions.” Doc. 145 at 18. They cite the trial transcript and argue that plaintiff’s
criminal defense counsel “extensively” discussed these items at his trial, thus showing that he
had independent knowledge or that this material actually was disclosed. at 18 n.6. The cited
testimony discusses certain of Tom’s behaviors—like watching X-rated movies or magazines—
but it never discusses Tom making sexual advances toward the victim shortly before the crimes
were committed. Doc. 145-1 at 68–69 (Tr. 70:25–71:18).
Brady
plainly provided plaintiff,
accused of committing sexually-laced crimes, a right to know this information. And, defendants’
arguments misapprehend the standard. Fed. R. Civ. P. 8(a)(1) requires only “a short and plain
statement of the claim showing that the pleader is entitled to relief.” It “does not require
‘detailed factual allegations.”’
Iqbal
,
Defendants also minimize plaintiff’s allegations about proper evidence collection
techniques for Tom’s gun and truck. They contend, because the gun was presented at plaintiff’s
trial as the murder weapon, that plaintiff’s allegations here about any failure to handle that
evidence properly isn’t material. Doc. 145 at 16. But, a reasonable inference from plaintiff’s
allegation is that while it may have been clear at his trial what weapon was used to commit the
murder, the improper evidence collection techniques precluded plaintiff from proving he wasn’t
the person who pulled the trigger. Defendants also contend Sheriff Dunnaway searched Tom’s
truck.
Id.
But, again, plaintiff’s allegations could support a reasonable inference that defendants
here purposefully didn’t collect evidence against Tom that could have proven Tom’s guilt and
established plaintiff’s innocence. Finally, defendants contend the court should view any alleged
improper evidence collection techniques as mere negligence. Doc. 145 at 42. They contend Mr.
Frost and others didn’t need to do a better job collecting evidence against Tom because he had
confessed. But the allegations—accepted as true and viewed in the light most favorable to
plaintiff as the court must at this stage—also support an inference that defendants acted
intentionally, and not merely negligently.
See Wilson v. Lawrence Cnty.
,
Again, these allegations suffice. Plaintiff has provided sufficient factual allegations showing Mr. Frost both withheld (or purposefully didn’t collect) exculpatory evidence and also fabricated exculpatory evidence as a means to prosecute plaintiff for a crime he didn’t commit.
c. Mr. Herrig The allegations against Mr. Herrig are sparser. During the pertinent criminal investigation, he was Undersheriff of Jefferson County, responsible for supervising Mr. Carreno, Mr. Frost, Mr. Poppa, and others. Doc. 141 at ¶ 15. He, like Mr. Frost, thoroughly searched plaintiff’s home and car, but purposefully failed to use proper evidence techniques when searching Tom’s home and clothing and allowed Tom’s father to handle the murder weapon. Id. at ¶¶ 79, 81. Mr. Herrig also intentionally didn’t collect evidence from Tom’s truck, where Tom had confessed to shooting Camille, or the shovel that was used to bury the body. at ¶ 82. [15] And, plaintiff alleges Mr. Herrig took these actions as part of the scheme to frame plaintiff, but proper evidence recovery would have shown Tom as the perpetrator. at ¶¶ 83–84.
None of these allegations assert Mr. Herrig fabricated evidence against plaintiff. But, they do suffice to support plaintiff’s claim that he withheld (or purposefully didn’t collect) exculpatory evidence—a theory Count III advances—and maliciously prosecuted plaintiff— Count IV. And, these actions support an inference that Mr. Herrig joined the conspiracy to frame plaintiff, allowing imputed liability for Count I at the motion to dismiss stage.
d. Mr. Poppa
Mr. Poppa, like Mr. Herrig and Mr. Frost, thoroughly searched plaintiff’s home and car, but purposefully failed to use proper evidence techniques when searching Tom’s home and clothing and allowed Tom’s father to handle the murder weapon. Id. at ¶¶ 79, 81. Also, Mr. Poppa intentionally didn’t collect evidence from Tom’s truck, where Tom had confessed to shooting Camille, or the shovel that was used to bury the body. Id. at ¶ 82. [16] And, plaintiff alleges Mr. Poppa took these actions as part of the scheme to frame plaintiff, but proper evidence recovery would have shown Tom as the perpetrator. Id. at ¶¶ 83–84. Mr. Poppa was present for Tom’s confession, where he disclosed an insider’s details about the murder. Id. at ¶¶ 36–39. And, he is alleged to have withheld documentation of Tom’s inculpatory statements on the night he turned himself in. Id. at ¶ 71.
Defendants argue the allegation that Mr. Poppa withheld information about Tom’s
confession doesn’t suffice to allege plausibly Mr. Poppa’s liability because, they contend,
plaintiff never alleges he lacked independent knowledge of Tom’s confessions and doesn’t allege
how this alleged suppression harmed his defense. Doc. 145 at 18. They argue “Tom’s
inculpatory statements were thoroughly discussed at trial.” at 19 n.7. And thus, they
contend, this alleged withholding wasn’t material. at 42. But, the citation to the trial
testimony defendants provide doesn’t show disclosure to plaintiff of the detailed confession.
Perhaps defendants intended to cite a different portion of the testimony.
See, e.g.
, Doc. 145 at
13; Doc. 145-1 at 68 (Tr. 70:13–24) (discussing how Tom had confessed to his father, his
Sunday school teacher, and Mr. Johnson). But, even if plaintiff knew of these confessions at his
trial, this doesn’t establish that plaintiff was made aware of the insider details that Tom provided
to law enforcement.
[17]
And again, defendants’ arguments misapprehend the standard. Fed. R.
Civ. P. 8(a)(1) requires only “a short and plain statement of the claim showing that the pleader is
entitled to relief.” It “does not require ‘detailed factual allegations.”’
Iqbal
,
Once more, these allegations suffice to support Counts III and IV against Mr. Poppa. Like Mr. Herrig, plaintiff never alleges that Mr. Poppa personally fabricated any evidence against plaintiff. But, plaintiff has provided sufficient factual allegations showing Mr. Poppa both withheld (or purposefully didn’t collect) exculpatory evidence and maliciously prosecuted plaintiff. And, these actions support an inference that Mr. Poppa joined the conspiracy to frame plaintiff, allowing imputed liability for Count I at the motion to dismiss stage.
4. Failure to Intervene
“It is widely recognized that all law enforcement officials have an affirmative duty to
intervene to protect the constitutional rights of citizens from infringement by other law
enforcement officers in their presence.”
Anderson v. Branen
,
Plaintiff’s allegations, if proven true, could support a finding that Mr. Carreno, Mr. Frost, Mr. Herrig, and Mr. Poppa failed to intervene to prevent officials from infringing on plaintiff’s constitutional rights. Defendants contend plaintiff had to allege—specifically—when each defendant became aware of a constitutional violation, what steps they could have taken and failed to take to protect plaintiff, and when they had a realistic opportunity to prevent the harm. Doc. 145 at 38. Plaintiff responds contending his allegations suffice because he has alleged a conspiracy among defendants who all contributed to and allowed fabrication of inculpatory evidence and suppression of exculpatory evidence to continue, leading to his wrongful conviction. Doc. 151 at 35. He contends any defendant could have ended the wrongful prosecution and other constitutional violations by coming forward and telling the truth during the “months-long process” that led to “a full criminal” or during his various appellate and habeas proceedings. at 36. In short, he contends the Jefferson County defendants, who are alleged to have participated in the conspiracy, had ample opportunity to intervene. The court, finding plaintiff’s conspiracy allegations plausible, agrees.
5. Conclusion In sum, the court doesn’t dismiss the claims against the individual Jefferson County defendants based on defendants’ argument that the Second Amended Complaint fails to allege personal participation. Nor does the court dismiss the conspiracy and failure to intervene counts. Despite defendants’ arguments to the contrary, the Second Amended Complaint contains sufficient allegations about each individual defendant’s personal participation in conduct in furtherance of the alleged conspiracy sufficient to state plausible claims against them. Defendants argue the Jefferson County defendants aren’t alleged to have known about the initial meeting between Mr. Hayes and Mr. Vanderbilt and thus couldn’t have joined the conspiracy. Doc. 145 at 42. But, Mr. Carreno is alleged to have conspired with Mr. Hayes to contrive the plan. Mr. Frost is alleged to have fabricated evidence to support it. Mr. Poppa was present for Tom’s detailed confession but didn’t disclose Tom’s detailed knowledge to plaintiff. Mr. Poppa, Mr. Frost, and Mr. Herrig all purposefully failed to collect evidence that could have exculpated plaintiff as the suspect. A reasonable factfinder could infer that this team investigating the crimes actively participated in effecting the shift from Tom’s detailed confession to his subsequent recantation and the plan to place the blame on plaintiff.
Defendants are correct that the Second Amended Complaint, at times, utilizes collective
allegations to address conduct by the defendant officers who all participated in plaintiff’s
investigation and subsequent prosecution. But, those collective allegations don’t doom
plaintiff’s claims because plaintiff has alleged specific facts against each individual defendant
from which the court plausibly can infer they agreed to join the alleged conspiracy, which
suffices to provide them notice of the allegations against them.
See Kan. Penn Gaming, LLC
,
B. Fourteenth Amendment Due Process Claims The Jefferson County defendants direct their second argument for dismissal at plaintiff’s claims in Count I (due process violation for fabricating Tom’s testimonial evidence) and Count III ( Brady v. Maryland due process violation for withholding exculpatory evidence and fabricating additional evidence). They contend the Second Amended Complaint does not allege plausible claims for depriving due process rights under the Fourteenth Amendment. Doc. 145 at 21–28. This is so, they argue, because: (1) plaintiff has adequate state law remedies available, (2) plaintiff has not alleged defendants acted with intent or malice, (3) the evidence allegedly fabricated or withheld was not material to plaintiff’s trial, and (4) plaintiff had a meaningful opportunity to be heard by a jury. They also direct a similar adequate state law remedy argument at plaintiff’s Count IV—the § 1983 claim for malicious prosecution and unlawful pretrial detention asserted against the defendant officers and Mr. Hayes—to the extent it relies on violations of the Due Process Clause of the Fourteenth Amendment.
As explained below in Part III.B.1., Counts I, III, and IV are not viable to the extent they assert Fourteenth Amendment procedural due process violations because Kansas law provides an adequate post-deprivation remedy. But, the court does not dismiss Count I and Count III to the extent they rely on substantive due process violations. And, Parts III.B.2.–4. explain defendants’ other arguments against Count I and Count III do not merit dismissal either. Finally, as explained in Part III.B.1. and Part III.C.1., the court also doesn’t dismiss Count IV to the extent it relies on a Fourth Amendment violation or a substantive due process violation that falls outside the Fourth Amendment’s pretrial protections.
1. State Law Remedy
First
, the Jefferson County defendants contend plaintiff cannot bring his § 1983 claims
alleging Fourteenth Amendment due process violations (Counts I, III, and IV) because Kansas
tort law recognizes a claim for malicious prosecution and its availability bars any such § 1983
claim under the doctrine in
Parratt v. Taylor
,
a. The
Parratt
Doctrine
In
Parratt v. Taylor
, prison officials negligently lost an inmate’s mail containing less than
$25 worth of hobby materials.
But, the Supreme Court concluded his § 1983 claim must fail. The Court explained that Nebraska law recognized a tort claim that provided a remedy “to persons who suffered tortious losses at the hands of the State,” and the inmate had alleged “facts that are commonly thought to state a claim for common-law tort normally dealt with by state courts.” Id. at 530, 533. Instead of brining a state tort claim, the inmate had couched his claim as one seeking relief under § 1983 for a deprived constitutional right. Id. at 533. While plaintiff had alleged a deprivation of property by persons acting under color of state law, the Supreme Court held the final requirement of a Fourteenth Amendment violation had not been satisfied—deprivation without due process of law . at 537–44. This was so because Nebraska tort law provided a remedy that satisfied the requirements of procedural due process. Id.
The Court explained that procedural due process sometimes requires a predeprivation hearing; for example, where deprivations of property are “authorized by an established state procedure and due process . . . require[s] predeprivation notice and hearing . . . to serve as a check on the possibility that a wrongful deprivation would occur.” Id. at 538. But sometimes, postdeprivation remedies made available by the state can satisfy due process. at 538–39. For example, when the value of protecting the public interest outweighs the harm of an immediate deprivation without a prior hearing or when it is impractical to provide any meaningful predeprivation process, the state can satisfy due process by providing a “meaningful means by which to assess the propriety of the State’s action at some time after the initial taking.” Id. at 539. “The fundamental requirement of due process is the opportunity to be heard and it is an opportunity which must be granted at a meaningful time and in a meaningful manner.” Id. at 540 (internal citation and quotation marks omitted). This due process requirement does not always require a predeprivation hearing. Id.
Under Parratt ’s facts, the loss of the hobby materials was “not a result of some established state procedure and the State [couldn’t] predict precisely when the loss [would] occur” because the property’s loss “result[ed] [from] a random and unauthorized act by a state employee.” Id. at 541; see also id. at 543 (noting “the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure,” and “[t]here [was] no contention that the procedures themselves are inadequate” or “that it was practicable for the State to provide a predeprivation hearing”). And, because Nebraska tort law offered an adequate state tort claim procedure to remedy the deprivation, the Court held the state’s taking of the property was not without due process and thus did not amount to a Fourteenth Amendment violation. Id. at 543–44.
The Court determined the availability of the state tort claim sufficed to supply due process even though the state law claim only allowed an action against the state and not its employees, did not permit punitive damages, and did not include a right to trial by jury. Id. It explained:
Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process. The remedies provided could have fully compensated the respondent for the property loss he suffered, and we hold that they are sufficient to satisfy the requirements of due process. at 544.
Since
Parratt
, the Supreme Court has extended its holding to apply to unauthorized,
intentional deprivations of property, as well as to liberty deprivations.
Zinermon v. Burch
, 494
U.S. 113, 131–32 (1990) (expanding
Parratt
to liberty deprivations);
Hudson v. Palmer
, 468
U.S. 517, 520, 530–36 (1984) (expanding
Parratt
’s holding that negligent deprivations do not
violate the Due Process Clause to include intentional deprivations,
[18]
provided that “adequate
state post-deprivation remedies are available,” where corrections officer intentionally destroyed
inmate’s personal property but the inmate had an adequate state law remedy—a conversion
claim—to redress his deprivation of property after the fact and thus the deprivation did not
constitute “a violation of the procedural requirements of the Due Process Clause of the
Fourteenth Amendment”). In his concurring and dissenting opinion in
Hudson
, Justice Stevens,
joined by Justices Brennan, Marshall, and Blackmun, agreed the inmate had not alleged “a
violation of his constitutional right to
procedural
due process.”
Hudson
,
The Hudson majority had held that “the Fourth Amendment proscription against unreasonable searches and seizures does not apply” to searches of a prison cell. Id. at 526. But Justice Stevens dissented, contending the inmate had a possessory interest in his non-contraband property inside his cell that deserves Fourth Amendment protections from unreasonable seizures , even assuming the inmate did not have an expectation of privacy from searches while imprisoned. at 543–58. He explained: “The Fourth Amendment . . . represents a value judgment that unjustified search and seizure so greatly threatens individual liberty that it must be forever condemned as a matter of constitutional principle.” Id. at 556. And, Justice Stevens noted, “[t]he existence of state remedies for this seizure . . . is . . . irrelevant to the Fourth Amendment question, since 42 U.S.C. § 1983 provides a remedy for Fourth Amendment violations supplemental to any state remedy that may exist.” at 545 n.9. In short, Justice Stevens opined that the Fourth Amendment provides such an inmate a substantive right, and Parratt does not proscribe the inmate’s ability to bring a claim under § 1983 for violating this substantive right to be free from unreasonable searches and seizures.
In Zinermon , the Supreme Court summarized Parratt and Hudson ’s holdings this way: “[A] deprivation of a constitutionally protected . . . interest caused by a state employee’s random, unauthorized conduct does not give rise to a § 1983 procedural due process claim, unless the State fails to provide an adequate postdeprivation remedy” because, “where the State cannot predict and guard in advance against a deprivation, a postdeprivation tort remedy is all the process the State can be expected to provide, and is constitutionally sufficient.” Zinermon , 494 U.S. at 115 (emphasis added).
As explained more fully below, plaintiff frames the right at issue in Counts I and III as
the right to a fair trial. And, plaintiff frames the rights at issue in Count IV as: the right to be
free from unreasonable seizures (unlawful pretrial detention); the right not to be prosecuted
without probable cause; and the right not to be deliberately and intentionally framed for a crime
by fabricated, suppressed, and withheld evidence. In this court’s view, like the Fourth
Amendment substantive right against unreasonable seizures, violating the right to a fair trial “so
greatly threatens individual liberty that it must be forever condemned as a matter of
constitutional principle”—
i.e.
, it constitutes a substantive due process right.
Hudson
, 468 U.S. at
556 (Stevens, J., dissenting). As the Supreme Court, Tenth Circuit, and other case law analyzed
below shows, the right to a fair trial is a fundamental right. So, as Justice Stevens concluded in
his
Hudson
dissent, the court concludes that the existence of a post-deprivation state law
malicious prosecution tort claim doesn’t bar Counts I and III’s § 1983 claims alleging plaintiff
was denied his right to a fair trial because these are
substantive
rights and § 1983 provides a
supplemental remedy to any state remedy that may exist.
See id.
at 545 n.9. Count IV’s reliance
on the right not to be prosecuted without probable cause aligns more nearly with a typical claim
for procedural due process that would fall within
Parratt
’s holding. But, because plaintiff ties
that claim to a Fourth Amendment unreasonable seizure and Fourteenth Amendment substantive
due process right (conscience-shocking conduct in deliberately framing plaintiff causing his
incarceration), Count IV’s § 1983 claim for malicious prosecution also plausibly alleges
deprivations commonly thought of as constitutional deprivations—not ones normally addressed
by state law tort claims.
See Parratt
,
b. The Parties’ Arguments The Jefferson County defendants argue the § 1983 due process claims in Count I and Count III are unavailable under Parratt because plaintiff has “adequate post-deprivation remedies under state law.” Doc. 145 at 22. They contend the claims in Counts I and III assert violations of plaintiff’s “ procedural due process right” to a fair trial. Doc. 145 at 21 (emphasis added); see also Doc. 152 at 10. And, in a footnote, defendants also make this same argument against plaintiff’s Count IV to the extent plaintiff “seeks to rely on the Fourteenth Amendment’s procedural aspects” to support his § 1983 malicious prosecution claim. Doc. 145 at 28 n.11. In short, defendants contend the Supreme Court’s Parratt doctrine (addressed above) and subsequent Tenth Circuit cases (addressed below) bar plaintiff’s § 1983 claims based on Fourteenth Amendment procedural due process violations. And, defendants argue that Parratt also bars substantive due process claims, though they contend plaintiff hasn’t asserted any substantive due process claims. Doc. 152 at 13–14.
Plaintiff responds that Parratt doesn’t apply to his § 1983 claims alleging Fourteenth Amendment due process violations. [19] Doc. 151 at 25–27. Though not explicitly stated and contrary to defendants’ arguments, plaintiff argues he asserts substantive —not procedural —due process claims. He argues that “ Parratt dealt with procedural due process claims—where the deprivation by state action of a constitutionally protected interest was not in itself unconstitutional—and the only constitutional dimension to the issue was whether the state- provided process was constitutional.” Doc. 151 at 25. “Where such deprivations are unpredictable, random[,] and unauthorized” and it is impossible “for the state to provide a pre- deprivation remedy,” plaintiff recognizes that the court must decide whether an adequate post- deprivation state law remedy exists. Id. (citation and internal quotation marks omitted). And, plaintiff agrees, availability of “a post-deprivation state law tort claim” in those circumstances means “a constitutional violation of procedural due process has not occurred.” Id. But, plaintiff argues, “[t]he Parratt doctrine does not apply to due process claims, like the fabrication or withholding of evidence, that relate the fundamental fairness of a criminal trial.” Id .
In short, plaintiff alleges his constitutional right to a fair trial was violated in a way that is prohibited “regardless of the procedures used” because “[t]he right to a fair trial has always been protected by the fundamental protections of the due process clause.” Id. at 26. That is, plaintiff intends to assert substantive due process violations—which, he contends, are “not circumscribed by the Parratt doctrine”—and not procedural due process violations. He asserts neither Parratt nor the Tenth Circuit cases cited by defendants bar his claims that deal with how plaintiff “endured an unfair trial, with pervasive lies and withheld exculpatory evidence, a wrongful conviction, and years of wrongful incarceration.” Id. He notes that all the cases defendants cite considered plaintiffs who were prosecuted but never stood trial. Id.
Despite plaintiff’s Response, defendants, in their Reply, continue to frame plaintiff’s claims as procedural due process claims. Doc. 152 at 10–15. They argue because the alleged deprivation of plaintiff’s right to a fair trial stems from alleged random and unauthorized failures to follow state procedures and Kansas law provides a means to remedy those failures, plaintiff’s claims fail as a matter of law. Id. at 11–12. Defendants assert that no deprivation of liberty without due process occurred unless and until the state has refused to provide an adequate post- deprivation remedy— i.e. , they argue that no due process violation exists under plaintiff’s alleged facts because a post-deprivation remedy is available. They frame the alleged conspiracy conduct as “random and unauthorized” deprivations to which Parratt applies to bar the § 1983 claims because a Kansas malicious prosecution tort provides post-deprivation process to remedy deprivation of plaintiff’s right to a fair trial. Id.
In short, defendants don’t dispute that fabricating and withholding evidence may qualify as impermissible conduct. Id. at 13. But, they contend, the state has not completed the deprivation of plaintiff’s life, liberty, or property without due process because the state has provided him with a post-deprivation process to remedy the alleged violation through a malicious prosecution tort, thus precluding a § 1983 claim. Id. at 11–13. As the court understands defendants’ position, it asserts that plaintiff wasn’t deprived of his liberty without due process when he endured an unfair trial and then spent 15 years in prison because, now, he can bring a state law malicious prosecution claim. And this claim’s availability, defendants argue, means his Fourteenth Amendment due process rights never were violated. Defendants argue the Supreme Court and Tenth Circuit cases discussing Parratt don’t distinguish between plaintiffs who were detained pretrial and those actually convicted, and that Parratt applies either way— i.e. , the deprivation of liberty without due process isn’t complete where a post-deprivation remedy exists. [20] Id. at 13.
Finally, defendants contend plaintiff hasn’t asserted any substantive Fourteenth Amendment due process claims. But, they assert, if he “later attempts to advance such a claim,” Parratt still should apply. They concede that the Tenth Circuit hasn’t conclusively determined whether Parratt should apply to substantive due process claims, in addition to procedural due process ones. Id. However, they rely on Tenth Circuit dicta and concurring opinions to argue Parratt should bar those claims as well. Id. at 13–14. It appears to the court that plaintiff’s Response already had clarified that he indeed intends to assert substantive due process claims, not procedural ones.
Below, the court considers the Second Amended Complaint’s claims and the various cases the parties cite to determine whether plaintiff’s Fourteenth Amendment due process claims—whether procedural or substantive—survive defendants’ Motion to Dismiss.
c. Second Amended Complaint’s Due Process Claims Count I alleges that defendants “deprived [p]laintiff o f his constitutional right to a fair trial by fabricating Tom’s testimonial inculpation of [plaintiff].” Doc. 141 at ¶ 115 (emphasis added). They “fabricated and solicited false testimony from Tom implicating [p]laintiff in the crime that they knew was false; obtained [p]laintiff’s conviction using that false evidence; and failed to correct fabricated evidence that they knew to be false when it was used against [p]laintiff at his criminal trial,” all of which denied plaintiff “ his constitutional right to a fair trial guaranteed by the Fourteenth Amendment .” at ¶¶ 116, 118 (emphasis added).
Count III alleges the defendant officers “deprived [p]laintiff of his constitutional right to a fair trial ,” which is “ guaranteed by the Fourteenth Amendment ” by “withholding and suppressing exculpatory evidence and fabricating additional evidence against [p]laintiff besides Tom’s false testimony.” at ¶¶ 129, 134 (emphasis added). These fabrications and suppressions caused plaintiff’s conviction. Id. at ¶ 134.
Count IV alleges the defendant officers “accused [p]laintiff of criminal activity and exerted influence to initiate, continue, and perpetuate judicial proceedings against [p]laintiff without any probable cause for doing so, in violation of his rights secured by the Fourth Amendment and the procedural and substantive due process components of the Fourteenth Amendment .” at ¶ 140 (emphasis added). The defendant officers are alleged to have “caused [p]laintiff to be unreasonably seized and improperly subjected to judicial proceedings ” when no probable cause existed. Id. at ¶ 141 (emphasis added). And, plaintiff alleges, the defendant officers “subjected [p]laintiff to unauthorized and arbitrary governmental action that shocks the conscience ” because they “deliberately and intentionally” framed plaintiff for a crime they knew he didn’t commit by fabricating, suppressing, and withholding evidence. at ¶ 142 (emphasis added).
In sum, plaintiff explicitly frames the right at issue in Counts I and III as the right to a fair trial. He specifies the Fourteenth Amendment as the basis for these claims, but the Second Amended Complaint doesn’t specify whether he relies on procedural or substantive aspects of the Due Process Clause. And, plaintiff frames the rights at issue in Count IV as the right to be free from unreasonable seizures (unlawful pretrial detention), the right not to be prosecuted without probable cause, and the right not to be deliberately and intentionally framed for a crime by fabricating, suppressing, and withholding evidence. He specifies his Fourth Amendment and Fourteenth Amendment rights (both procedural and substantive) as the basis for this claim.
d. Supreme Court, Tenth Circuit, and Other Relevant Cases Below, the court analyzes the cases cited by the parties to determine if the Parratt doctrine and the availability of a malicious prosecution tort claim under Kansas law bars plaintiff’s Fourteenth Amendment claims in Counts I, III, and IV as a matter of law. The court concludes plaintiff’s claims—to the extent they rely on substantive due process or Fourth Amendment violations—aren’t barred by the Parratt doctrine here. The Jefferson County defendants rely on cases that did not invoke the right to a fair trial or the substantive Fourth and Fourteenth Amendment rights that plaintiff asserts are at issue here. So, defendants have not established plaintiff’s claims fail as a matter of law to the extent they rely on substantive due process or Fourth Amendment violations. But, to the extent plaintiff relies on procedural due process violations, the Parratt doctrine does bar those claims.
i.
Brady
,
Pyle
,
Albright
, and
Manuel
Plaintiff’s Count I and Count III claims stem from two well-known criminal cases:
Pyle
v. Kansas
,
In
Brady
, petitioner admitted at his state law trial that he had participated in the charged
murder but, seeking to avoid the death penalty, had argued his companion had been the one who
actually killed the victim.
Pyle and Brady thus hold that a criminal defendant’s due process rights are violated if he is convicted and imprisoned following a proceeding where false evidence knowingly was presented or material favorable evidence was suppressed. Pyle and Brady did not arise in the § 1983 context. But, defendants’ arguments that no due process violations exist in Count I and Count III because a state malicious prosecution tort claim is available after the fact aren’t persuasive based on their holdings. These Supreme Court precedents hold that fabricating evidence or withholding material exculpatory evidence to secure a conviction violates due process. They don’t suggest state actors can subject a criminal defendant to an unfair trial, but then escape a civil claim for a constitutional violation by relying on the existence of a post- deprivation state tort remedy to establish that no constitutional due process violation occurred. But, that is what the Jefferson County defendants argue here. They contend a § 1983 claim based on fabricating or withholding evidence depriving plaintiff of a fair trial is not available after Parratt because Kansas law recognizes a malicious prosecution tort that can remedy the alleged deprivation and thus, they contend, no liberty deprivation without due process ever occurred.
For their
Parratt
arguments the parties each rely on
Albright v. Oliver
,
In Albright , plaintiff surrendered to defendant, a policeman, after Illinois authorities issued an arrest warrant charging plaintiff with “sale of a substance which looked like an illegal drug.” Id. at 268. Defendant testified at a pretrial hearing that he saw plaintiff sell the look-alike substance, and “the court found probable cause to bind [plaintiff] over for trial.” Id. at 269. But, during a later hearing, the criminal case against plaintiff was dismissed because “the charge did not state an offense under Illinois law.” Plaintiff then sued defendant, asserting a § 1983 claim for violating his “substantive right under the Due Process Clause of the Fourteenth Amendment to be free from criminal prosecution except upon probable cause.” at 268. The Supreme Court held that plaintiff had failed to state a viable § 1983 substantive due process claim because “it is the Fourth Amendment, and not substantive due process, under which [plaintiff’s] claim must be judged.” Id. at 271.
The Court noted that the first step in any § 1983 action “is to identify the specific constitutional right allegedly infringed”—in Albright , a “substantive due process right to be free of prosecution without probable cause.” Id. Plaintiff did not allege a procedural due process violation or a Fourth Amendment violation. Id. The Court explained that, generally, it is “reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Id. at 271–72. (citation and internal quotation marks omitted). The Court acknowledged that it has extended substantive due process protections “to matters relating to marriage, family, procreation, and the right to bodily integrity.” Id. at 272. But, plaintiff’s claim was “markedly different” from those cases. Id.
The Court recognized that the Due Process Clause of the Fourteenth Amendment “confers both substantive and procedural rights.” Id. Still, over time, the Court has “substituted . . . the specific guarantees of the various provisions of the Bill of Rights . . . for the more generalized language contained in the earlier cases construing the Fourteenth Amendment”— i.e. , when a particular Amendment in the Bill of Rights explicitly provides constitutional protection, the Court relies on the more specific Amendment, rather than a general substantive due process right. Id. at 273. And, in Albright , the plurality determined that the Fourth Amendment already provides protections for pretrial deprivations of liberty. Id. at 274. So, the Court held, “substantive due process . . . can afford him no relief.” at 275. But, because plaintiff did not allege a Fourth Amendment violation, the court “express[ed] no view as to whether [his] claim would succeed under the Fourth Amendment . . . .” [21]
In Albright ’s underlying appeal, the Seventh Circuit had held that “prosecution without probable cause is a constitutional tort under § 1983 only if accompanied by incarceration or loss of employment or some other palpable consequenc[e].” Id. at 269–70 (citations and internal quotation marks omitted). So, the Circuit had affirmed the district court’s dismissal of plaintiff’s § 1983 claim because, where plaintiff wasn’t incarcerated, state tort remedies should suffice without needing to rely on a constitutional violation. Id. As summarized above, the Supreme Court affirmed the judgment, but on different grounds: It concluded plaintiff could not base his claim on a substantive due process right because a more specific Amendment—the Fourth Amendment—provided adequate protection. Id. at 270–71, 275.
But, in a footnote following this summary of the Seventh Circuit’s decision, the Supreme Court described a split among the lower courts whether to recognize a § 1983 malicious prosecution claim, i.e. , when may a malicious prosecution claim rise to the level of a constitutional violation. Id. at 270 n.4. Some circuits recognized a § 1983 malicious prosecution claim based on similar elements to the common law tort. Id. In contrast, other circuits—like the Seventh Circuit—required something more rising to an “injury or deprivation of a constitutional magnitude” before allowing a § 1983 malicious prosecution claim. And, without deciding the requirements for any such constitutional claim, the Court noted that its plurality opinion in Albright makes it “evident that substantive due process may not furnish the constitutional peg on which to hang a [malicious prosecution tort].”
Defendants, citing this footnote in
Albright
, argue the court must dismiss plaintiff’s
Count IV malicious prosecution claim to the extent he relies on a
substantive
due process right
against prosecution without probable cause. Doc. 145 at 28 n.11. They note that the Tenth
Circuit has stated “the unavoidable construction of
Albright
is that no § 1983 claim will arise
from filing criminal charges without probable cause under the
substantive
due process
protections of the Fourteenth Amendment.”
Becker
,
Defendants are correct that, after
Albright
, a § 1983 malicious prosecution claim alleging
unlawful pretrial detention and prosecution without probable cause must invoke the Fourth
Amendment as the basis for such a § 1983 malicious prosecution claim relying on
pretrial
constitutional violations.
Manuel v. City of Joliet, Ill.
,
But the portions of Albright and Becker cited by defendants addressed only pretrial deprivations of liberty—infringements where the Fourth Amendment provided adequate protection of any violations of the right not to be unreasonably seized or prosecuted without probable cause. The Supreme Court and Tenth Circuit didn’t address what kind, if any, of constitutional violations might arise from a malicious prosecution that continues through a trial and conviction. Nor did they specify a constitutional basis for any such claim. As discussed more fully below, plaintiff also bases his Count IV claim on the right to be free from conscience- shocking governmental action deliberately and intentionally framing plaintiff for a crime by fabricating, suppressing, and withholding evidence. Though the Tenth Circuit’s reading of Albright , as cited by defendants, establishes that plaintiff can’t rely on a substantive due process right not to be prosecuted without probable cause to assert a § 1983 claim for pretrial deprivations—because the Fourth Amendment provides adequate protection—it does not foreclose, at least not as a matter of law, a § 1983 malicious prosecution claim under Fourteenth Amendment substantive due process when the malicious prosecution continues through a trial and conviction, subjecting plaintiff to deprivations of a constitutional magnitude beyond the pretrial period.
In short, the court agrees with the Jefferson County defendants that Count IV can’t rely
on procedural or substantive due process to support a malicious prosecution claim for plaintiff’s
pretrial
prosecution and detention. The court considers defendants’ other arguments against
Count IV
infra
Part III.C.1. But for now, the court rejects defendants’ arguments that it must
dismiss Count IV because that claim also relies on the Fourth Amendment. And
Albright
and
Becker
don’t establish that plaintiff, as a matter of law, can’t rely on the Fourth Amendment for
his pretrial conduct malicious prosecution claim. Nor do these cases foreclose as a matter of law
plaintiff from using the Fourteenth Amendment to support his claim that his malicious
prosecution continued into and beyond his criminal trial once the Fourth Amendment has
“drop[ped] out.”
See Manuel
,
The next batch of Parratt arguments directed at the due process violations asserted in Counts I, III, and IV, relies on Justice Kennedy’s concurring opinion in Albright . Justice Stevens’s dissent is instructive as well.
Justice Kennedy agreed with the plurality that “an allegation of arrest without probable
cause must be analyzed under the Fourth Amendment without reference to more general
considerations of due process.”
Albright
,
Plaintiff relies on Justice Kennedy’s words here to argue the court should recognize his § 1983 due process claims based on fabricating and withholding evidence denying his right to a fair trial because defendants’ actions offended a fundamental right to “fairness in the determination of guilt at trial” and thus violated due process. Id. The court agrees. Plaintiff’s Count I and Count III claims invoke a due process right that Parratt does not preclude. Justice Kennedy treated the right to be free from malicious prosecution separately from due process rights that ensure fundamental fairness at trial (ones which already are recognized by the Court as due process violations). See id. at 283. And, he proceeded only to consider whether Fourteenth Amendment due process would recognize the right to be free from malicious prosecution—plaintiff’s Count IV here. at 283–84. And, if so, Justice Kennedy also considered Parratt ’s effect on such a right.
Justice Kennedy assumed a Fourteenth Amendment due process right could support a
malicious prosecution claim.
Id.
But, he took the position that one could not avoid the
Parratt
rule by “attaching a substantive rather than procedural label” to the claim, or “treating claims
based on the Due Process Clause as claims based on some other constitutional provision.”
Id.
at
285. Instead, he described the
Parratt
rule—in this context—to mean: “In the ordinary case
where an injury has been caused not by a state law, policy or procedure, but by a random and
unauthorized act that can be remedied by state law, there is no basis for intervention under
§ 1983, at least in a suit based on ‘the Due Process Clause of the Fourteenth Amendment
simpliciter
.”’ (quoting
Parratt
,
Applying Justice Kennedy’s rationale here would mean that Parratt bars plaintiff’s Count IV malicious prosecution claim to the extent plaintiff bases his claim on Fourteenth Amendment due process (procedural or substantive). Justice Kennedy agreed that Fourteenth Amendment due process protection could protect a person’s interest in freedom from malicious prosecution. But it can do so only where no state tort law provides an adequate remedy for violating that interest. Justice Kennedy also separately recognized constitutional due process violations tied to the fundamental fairness of a trial. And, he never asserted that Parratt would bar a § 1983 claim to vindicate violation of those fundamental rights. He only considered whether Parratt would apply to a § 1983 malicious prosecution claim that asserted an interest typically granted protection by the common law of torts.
Justice Stevens, on the other hand, opined that Fourteenth Amendment due process requires a state to ensure that probable cause exists to support the criminal proceedings. Id. at 291–92 (Stevens, J., dissenting). His dissent explained it was clear that defendant “either knew or should have known that he did not have probable cause to initiate criminal proceedings” against Albright ’s plaintiff. Id. at 292.
First, Justice Stevens considered whether “commencement of formal criminal proceedings deprive[s] the accused person of ‘liberty’ as that term is used in the Fourteenth Amendment.” Id. at 294. He commented, “Had [plaintiff’s] prosecution resulted in his conviction and incarceration, then there is no question [ ] that the Due Process Clause would have been implicated” because the purpose of the Fourteenth Amendment is “to deny States the power to impose this sort of deprivation of liberty until after completion of a fair trial .” Id. (emphasis added). He explained that the Due Process Clause protects an individual’s interest in “freedom from an improper criminal conviction.” And, Justice Stevens concluded, the Due Process Clause also protects other interests—and the Albright plaintiff had alleged a constitutional deprivation of liberty because “the formal commencement of a criminal proceeding” interferes with a person’s liberty to a “sufficient magnitude” that it “qualif[ies] as a deprivation of liberty meriting constitutional protection.” Id. at 294–96.
Next, Justice Stevens considered “what measure of ‘due process’ must be provided an accused in connection with this deprivation of liberty.” Id. at 296. He concluded that Fourteenth Amendment due process requires a “responsible decision that there is probable cause to prosecute.” at 297. In Albright , plaintiff didn’t challenge the adequacy of Illinois’s procedures to determine probable cause. Id. at 298. But, he did claim the probable cause determination was substantively invalid because the evidence was unreliable and defendant had disregarded or suppressed facts about an informant’s reliability. Id. Justice Stevens agreed that a substantive defect in an otherwise facially valid determination of probable cause “does not comport with the requirements of the Due Process Clause.” Id. at 300. He explained that Supreme Court cases establish that a criminal defendant has been denied due process even though he received a facially valid procedure—such as a trial—when the process was substantively defective because the prosecutor had used perjured testimony and suppressed evidence that would have impeached that perjured testimony. Id. at 298. While such a criminal defendant has received the required procedure—a trial—he still is deprived of due process because the trial didn’t comport with “fundamental conceptions of justice.” Id. (citation and internal quotation marks omitted). “Our cases make clear that procedural regularity notwithstanding, the Due Process Clause is violated by the knowing use of perjured testimony or the deliberate suppression of evidence favorable to the accused.” Id. at 299. Likewise, Justice Stevens dissented, a prosecution following a facially valid probable cause determination based on substantively defective evidence violates due process. Id. at 300.
In Justice Stevens’s view, the plurality placed too much emphasis on plaintiff’s reliance on substantive due process. at 300–01. Instead, Justice Stevens asserted, substantive and procedural due process concepts “are not mutually exclusive, and their protections often overlap.” Id. at 301. Whether the probable cause standard should be “characterized as substantive or procedural,” Justice Stevens concluded, the “Due Process Clause operates to protect the individual against the abuse of governmental power, by guaranteeing that no criminal prosecution shall be initiated except on a finding of probable cause.” Id. at 301–02. He explained that the Court time and again has recognized Fourteenth Amendment due process rights that are not explicitly addressed in the Bill of Rights—like the prohibition against “use of perjured testimony and the suppression of evidence favorable to the accused.” at 303–04. And, he would not “foreclose[] a general due process claim when a more specific source of protection is absent or, [like the Fourth Amendment in Albright ], open to question.” Id. at 305– 06. Justice Stevens described “the constitutional protection against unfounded accusations” as “distinct from, and somewhat broader than, the protection against unreasonable seizures.” Id. at 309. So, he concluded the “the scope of the Fourth Amendment protection does not fully encompass the liberty interest at stake.” Id. at 310.
Justice Stevens then explicitly rejected Justice Kennedy’s reliance on Parratt and his conclusion that an alternate state remedy precludes a § 1983 malicious prosecution claim. Id. at 313. Justice Stevens explained:
The rationale [of Parratt ] is inapplicable to this case whether one views the claim at issue as substantive or procedural. If one views the [plaintiff’s] claim as one of substantive due process, Parratt is categorically inapplicable. Conversely, if one views his claim as one of procedural due process, Parratt is also inapplicable, because its rationale does not apply to officially authorized deprivations of liberty or property. (citations omitted). Because plaintiff “was subjected to criminal charges by an affirmative,
deliberate act of a state official” Justice Stevens asserted that the “filing of criminal charges [was] effectuated through established state procedures under which government agents, such as [defendant were] authorized to act.” Id. at 314. And defendant, “the State’s authorized agent” knows precisely when the deprivation of the liberty interest to be free from criminal prosecution will occur—the moment when the charges are filed.” Id. So, “the State is capable of providing a reasoned predeprivation determination . . . prior to the commencement of criminal proceedings[,]” and its “[f]ailure to do so, or to do so in a meaningful way . . . is constitutionally unacceptable.” Id.
Justice Stevens concluded that “notwithstanding the possible availability of a state tort action for malicious prosecution, § 1983 provides a federal remedy for the constitutional violation . . . .” He explained:
The Parratt doctrine is reconcilable with § 1983 only when its application is limited to situations in which no constitutional violation occurs . In the context of certain deprivations of property, due process is afforded—and therefore the Constitution is not violated—if an adequate postdeprivation state remedy is available in practice to provide either the property’s prompt return or an equivalent compensation. In other contexts, however, including criminal cases and most cases involving a deprivation of liberty, the deprivation is complete, and the Due Process Clause has been violated when the loss of liberty occurs. In those contexts, any postdeprivation state procedure is merely a remedy; because it does not provide the predeprivation process that is “due,” it does not avoid the constitutional violation. In such cases, like this one, § 1983 provides a federal remedy regardless of the adequacy of the state remedy. at 315–16 (citations omitted and emphasis added).
If applied here, Justice Stevens’s view of Parratt would not bar plaintiff’s Counts I, III, or IV under the Fourteenth Amendment because plaintiff’s due process rights were violated when the liberty deprivations occurred. Like Justice Kennedy, Justice Stevens recognized a due process right against liberty deprivations until after a fair trial as separate from a due process right not to have criminal proceedings initiated without probable cause. And, because due process already was violated, Justice Stevens would allow a § 1983 claim to provide a federal remedy—such as Count IV’s malicious prosecution claim—regardless whether state law provides a remedy. In Justice Stevens’s view, this isn’t a situation where a state law tort claim affords due process after the deprivation has occurred. In other words, the state law remedy doesn’t mean that a constitutional violation never occurred.
The court next turns to the two Tenth Circuit cases that, in defendants’ view, support dismissing plaintiff’s Fourteenth Amendment claims under Parratt . Their view aligns with Justice Kennedy’s treatment of the Albright malicious prosecution claim—providing no § 1983 due process claim where state law provides an adequate remedy to protect a person’s interest in freedom from malicious prosecution . But, after reviewing Albright carefully, the court concludes that neither Justice Kennedy’s concurrence nor Justice Stevens’s dissent demonstrate that Parratt bars plaintiff’s claims in Count I or Count III based on violations of his right to a fair trial. Instead, both Justices merely discussed how they would apply Parratt to a § 1983 malicious prosecution claim—plaintiff’s Count IV. Thus, Albright doesn’t support dismissing the claims in Count I or Count III. And, neither do the Tenth Circuit cases or others discussed below.
ii. Tenth Circuit–
Myers
and
Becker
In
Myers v. Koopman
,
Plaintiff asserted § 1983 claims alleging violations of his Fourth and Fourteenth Amendment rights. Id. at 1193. For the Fourteenth Amendment claim, plaintiff alleged that the defendant officer had fabricated facts to contrive probable cause to support the arrest warrant and subsequent prosecution. Id. The district court dismissed the § 1983 Fourteenth Amendment malicious prosecution claim, concluding that Colorado law provided an adequate remedy. Id. The Tenth Circuit affirmed, reasoning that “[i]f a state actor’s harmful conduct is unauthorized and thus could not be anticipated pre-deprivation, then an adequate post-deprivation remedy— such as a state tort claim—will satisfy due process requirements.” Id. The Circuit explained that “[s]uch lawlessness could not have been anticipated or prevented pre-deprivation, but a post- deprivation malicious-prosecution claim serves as an effective antidote.” Id. Colorado law recognized a state law malicious prosecution claim. Id. And so, “[t]he existence of the state remedy flattens the Fourteenth Amendment peg on which [plaintiff] now tries to hang his § 1983 malicious-prosecution claim.” In short, the Tenth Circuit held a postdeprivation state tort remedy for malicious prosecution satisfied plaintiff’s due process right because no predeprivation process was possible since defendant’s fabrication couldn’t have been anticipated or prevented predeprivation. Id.
Applying the
Myers
holding to the facts alleged here, plaintiff’s Count IV can’t rely on
Fourteenth Amendment
procedural
due process because Kansas law provides a malicious
prosecution tort claim that satisfies procedural due process requirements.
See Lindenman v.
Umscheid
,
But,
Myers
also reversed the district court’s dismissal of the Fourth Amendment
malicious prosecution claim.
Applying this portion of Myers to plaintiff’s Count IV here, the court concludes our Circuit would recognize plaintiff’s § 1983 malicious prosecution claim in Count IV to the extent he bases it on a Fourth Amendment violation of his right not to be unlawfully detained. And, this claim didn’t accrue until the proceedings had terminated in plaintiff’s favor. Thus, as a matter of law Myers doesn’t preclude plaintiff’s Count IV malicious prosecution claim to the extent he bases it on the Fourth Amendment.
Myers
merely involved pretrial deprivations and the allegedly malicious prosecution
ended long before trial. This differs substantially from plaintiff’s claims here.
Myers
doesn’t
address a deprivation of the right to a fair trial. So, that case doesn’t provide authority
precluding plaintiff’s Count I and Count III claims as a matter of law. And, the Circuit never
considered explicitly whether a
substantive
due process violation could support a § 1983
malicious prosecution claim. But, it did reject plaintiff’s argument that an underlying Fourth
Amendment violation could save the Fourteenth Amendment claim.
Myers
,
In sum, Myers establishes that the Tenth Circuit doesn’t recognize a § 1983 malicious prosecution claim for Fourteenth Amendment procedural due process violations based on fabricating evidence to create false probable cause for an arrest and prosecution leading to an unreasonable seizure as long as an adequate state law remedy exists. But, plaintiff’s Fourth Amendment malicious prosecution claim here is not barred by Parratt because such a claim is based on a specific constitutional right. And, Myers doesn’t preclude plaintiff’s Count I or Count III claims either, because those claims assert separate violations of plaintiff’s right to a fair trial—and not malicious prosecution.
In
Becker v. Kroll
, the Tenth Circuit considered two § 1983 claims: (1) a claim for
malicious prosecution under the Fourth and Fourteenth Amendments, and (2) a claim for
outrageous conduct violating plaintiff’s substantive due process rights under the Fourteenth
Amendment.
The district court granted summary judgment against all claims, including claims for denial of due process, malicious prosecution, conspiracy, and substantive due process, among others. Id. at 912. On appeal, plaintiff categorized her constitutional violation claims in three groups: “(1) malicious prosecution under the Fourth and Fourteenth Amendment; (2) outrageous conduct under the Fourteenth Amendment’s substantive due process component; and (3) retaliation under the First Amendment.” Id. at 913. And, the Circuit proceeded to consider “the murky waters of § 1983-based malicious prosecution claims.” Id.
The Circuit explained, “[w]e have repeatedly recognized in this circuit that, at least prior to trial, the relevant constitutional underpinning for a claim of malicious prosecution under § 1983 must be the Fourth Amendment’s right to be free from unreasonable seizures.” at 914 (citation and internal quotation marks omitted). The Circuit agreed “with the district court that a seizure is necessary to support a § 1983 malicious prosecution claim based on the initiation of criminal proceedings that are dismissed before trial .” (emphasis added). But, it also separately considered whether defendants had deprived plaintiff of “liberty or property interests without due process of law” violating the Fourteenth Amendment. Id. Ultimately, the Circuit concluded she had not alleged a constitutional violation under either the Fourth or Fourteenth Amendment, so it affirmed summary judgment for defendants. Id.
On appeal, plaintiff argued her Fourth Amendment claim relied on the investigation into her billing practices. Id. This conduct, she asserted, amounted to a seizure because she was required to travel and attend meetings, incur financial burdens, and was charged criminally. Id. But, the Tenth Circuit held these burdens did not amount to a seizure under the Fourth Amendment. Id. at 914–916. First, Tenth Circuit precedent “analyzing malicious prosecution under § 1983 . . . always [has] proceeded based on a seizure by the state—arrest or imprisonment[,]” and plaintiff was not arrested or imprisoned. Id. at 914–15. The Tenth Circuit declined to adopt a broader definition of a seizure, explaining “[a] groundless charging decision may abuse the criminal process, but it does not, in and of itself, violate the Fourth Amendment absent a significant restriction on liberty”— i.e., the Fourth Amendment protects traditional seizures (arrests and incarcerations) pretrial but not other pretrial restrictions on a person’s liberty. Id. at 915. So, it held, plaintiff “has not successfully alleged a violation of the Fourth Amendment, [and] she cannot proceed in a claim for malicious prosecution based on an unreasonable seizure.” at 917.
Unlike the Becker plaintiff, plaintiff here was seized pretrial. So, “at least prior to trial,” Count IV’s malicious prosecution claim must be based on “the Fourth Amendment’s right to be free from unreasonable seizures.” at 914 (citation and internal quotation marks omitted). As noted, plaintiff asserts a Fourth Amendment violation for his Count IV malicious prosecution claim. And, like Myers , Becker doesn’t preclude plaintiff’s Count IV malicious prosecution claim as a matter of law to the extent it relies on the Fourth Amendment.
On the Fourteenth Amendment claim, the Becker plaintiff argued defendants’ investigation of her had deprived her of liberty without due process and thus violated “both the procedural and substantive components of due process.” Id. at 917–18. Analyzing these arguments required the Tenth Circuit to review Albright closely. It noted “that a natural reading of Supreme Court precedent in Albright v. Oliver seems to foreclose [plaintiff’s] argument that [defendants] violated her due process rights by initiating criminal proceedings against her without probable cause.” [22] Id. at 918. But, because some of the alleged injuries were “outside the scope of the Fourth Amendment’s substantive and procedural protections[,]” the Circuit considered whether “[t]hese injuries might be cognizable as due process violations through a gap in constitutional protection created by Albright ’s limitation of § 1983 malicious prosecution claims to those based on the Fourth Amendment.” Id.
The Tenth Circuit first summarized Albright and its effect on malicious prosecution claims:
In Albright , the [Supreme] Court specifically rejected the plaintiff’s claim that his groundless arrest violated substantive due process rights by depriving him of a “‘liberty interest’ to be free from criminal prosecution except upon probable cause.” Instead, the Court concluded that the Fourth Amendment—not substantive due process—governed the plaintiff’s claims. The plurality opinion reasoned, “Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment . . . must be the guide for analyzing these claims.’” The plurality concluded, “it is evident that substantive due process may not furnish the constitutional peg on which to hang” a claim of malicious prosecution[.]
We think the unavoidable construction of Albright is that no § 1983 claim will arise from filing criminal charges without probable cause under the substantive due process protections of the Fourteenth Amendment . And although the plaintiff in Albright did not raise a procedural due process claim, we find Albright’s reasoning regarding substantive due process equally persuasive with regard to the Fourteenth Amendment’s procedural component . In the initial stages of a criminal proceeding, the Fourth Amendment protects a person’s liberty interests under the Constitution by ensuring that any arrest or physical incarceration attendant to a criminal prosecution is reasonable. The more general due process considerations of the Fourteenth Amendment are not a fallback to protect interests more specifically addressed by the Fourth Amendment in this context .
Id. at 918–19 (citations omitted) (emphasis added).
In short, the Tenth Circuit interpreted Albright to establish that the Fourth Amendment, not substantive or procedural due process, governs pretrial deprivations of liberty. See id. And, because the criminal charges against Becker ’s plaintiff were dismissed before trial, the Tenth Circuit concluded she “must allege a violation of the Fourth Amendment in order to proceed on a theory of § 1983 malicious prosecution.” Id. at 919. Applying that holding to this case, plaintiff can’t rely on substantive or procedural due process for Count IV’s § 1983 claim asserting defendants violated his pretrial liberty interest not to be prosecuted and seized without probable cause. After Albright , Fourteenth Amendment substantive due process doesn’t support a standalone right to be free from prosecution without probable cause where the Fourth Amendment affords protection. at 915, 918–19.
Still, Becker recognizes that the Supreme Court “has yet to clarify the scope of the plurality holding in Albright, ” and “several lines of cases suggest an alternative theory of liability under the Fourteenth Amendment.” at 919. So, the Circuit proceeded to determine whether plaintiff had asserted a procedural or substantive due process constitutional claim that didn’t fall within the Fourth Amendment’s protection against unreasonable seizures.
Plaintiff argued the investigators had violated her procedural due process rights because she had a “liberty interest in being free from unwarranted investigation and prosecution without probable cause.” Id. The Circuit recognized that its earlier decision in Pierce v. Gilchrist , 359 F.3d 1279, 1285–86 (10th Cir. 2004), and other cases suggested that “at some point in the prosecutorial process, due process concerns can be sufficient to support a claim under § 1983”— i.e. , at some point between arrest and trial the constitutional basis for a § 1983 malicious prosecution claim shifts from the Fourth Amendment to the Due Process Clause. Id. at 920. But, Pierce didn’t require the Circuit to decide when the shift to due process begins because plaintiff had raised claims under both Amendments and he was detained. [23] Id. In Becker , however, plaintiff never was incarcerated and, without a Fourth Amendment violation, she only could rely on Fourteenth Amendment due process. Id.
To decide plaintiff’s appeal, the Circuit merely “assume[d] a procedural due process analysis applie[d]” and held that “she has not established a due process violation.” Id. The Circuit held that her “procedural due process interests under these facts were adequately protected by the Fourth Amendment [and] state tort law,” so “she has not established a due process violation.” Id. at 919–20. It explained that under Albright the Fourth Amendment adequately protected her pretrial liberty interests, so she “has no procedural due process claim based on [pretrial] deprivations of physical liberty.” Id. at 920. And, the Circuit was unaware of any other circuit extending “Fourteenth Amendment procedural due process guarantees to [pretrial] deprivations of liberty.” Id. Still, recognizing the Fourteenth Amendment may protect “harms to liberty outside the scope of the Fourth Amendment’s concern with freedom from restraint, such as harm to reputation resulting in some tangible injury,” the Circuit explained that “even if [plaintiff] did suffer such injuries . . . procedural due process only protects against them by providing an adequate post-deprivation hearing in which the injured party may vindicate these interests.” Id. at 920–21. But, plaintiff already had a state tort remedy available—malicious prosecution or abuse of process—that would meet the requirements of procedural due process. Id. at 921.
The Circuit cited
Parratt
, where the Supreme Court “held that where pre-deprivation
remedies cannot anticipate and prevent a state actor’s wrongful act, post-deprivation state tort
remedies are adequate to satisfy due process requirements.”
Id.
(citing
Parratt
,
Applying the Tenth Circuit’s rationale from Becker to this case, plaintiff cannot assert his Count IV § 1983 malicious prosecution claim based on a Fourteenth Amendment procedural due process violation because defendants’ malicious prosecution couldn’t have been anticipated, predeprivation, and Kansas provides a malicious prosecution tort remedy. This means that plaintiff’s procedural due process right not to be prosecuted without probable cause wasn’t violated, because the postdeprivation process is all that the state can be expected to provide— i.e. , no due process violation exists because the postdeprivation tort claim satisfies due process. But, because plaintiff here alleges he was unlawfully seized pretrial, Becker establishes that he may assert Count IV’s malicious prosecution claim based on a Fourth Amendment violation, which the court considers further in Part III.C.1., below.
Becker next separately analyzed plaintiff’s substantive due process arguments. The Circuit explained that “Justice Souter’s concurrence in Albright suggested the possibility that initiating an unwarranted prosecution that is dismissed before trial may in some unusual circumstances result in substantive due process violations separate from a Fourth Amendment seizure.” Id. at 922. The Circuit recognized that Albright did not foreclose entirely claims based on Fourteenth Amendment substantive due process violations where the Fourth Amendment does not cover the claim but a substantial deprivation of liberty occurs. Id. And, plaintiff argued her substantive due process rights were violated because (1) the investigation was groundless and designed to collect civil penalties and (2) defendants withheld material exculpatory evidence from her. Id. But, the Circuit concluded the facts of this case did not “reveal[] a substantial deprivation sufficient to rise to the level of a substantive due process violation.” Id.
First, the Circuit reviewed the groundless investigation conduct.
Id.
at 923. The Tenth
Circuit and the Supreme Court have set a “high hurdle for substantive due process claims.”
Id.
The alleged conduct must constitute more than a government actor intentionally or recklessly
causing plaintiff’s injuries by abusing or misusing government power. ‘“[It] must
demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly
conscience shocking.”’ (quoting
Livsey v. Salt Lake Cnty.
,
Unlike
Becker
’s plaintiff, Count IV’s § 1983 malicious prosecution claim here rises to the
level of a substantive due process violation. The court concludes that plaintiff—based on his
allegations about conduct during his criminal trial—may assert a Fourteenth Amendment
substantive due process violation in Count IV for the period after the Fourth Amendment’s
pretrial protection against unreasonable seizures dissipated.
See Manuel
,
Finally, the Circuit in
Becker
considered plaintiff’s arguments about defendants
withholding exculpatory evidence from her.
Becker
,
The Circuit also noted that the Fourth, Fifth, and Seventh Circuits had allowed § 1983 claims of “constitutional weight” to proceed under the Fourteenth Amendment despite Albright where the claims are based on a violation of the “due process right to a fair trial,” and not a right not to be prosecuted without probable cause. at 924 (citations omitted). But, the Tenth Circuit ultimately did not decide whether it would allow a § 1983 claim based on fabricated inculpatory evidence or withholding exculpatory evidence under Fourteenth Amendment substantive due process or otherwise. Instead, it explained that a Brady violation for withholding exculpatory evidence—a due process claim of “constitutional weight”—only can exist when the case goes to trial. Id. at 924. And the Becker plaintiff never went to trial, so she could not “rest her § 1983 claims on a Brady violation” and “ha[d] not established a claim for a violation of substantive due process under the Fourteenth Amendment.” Id. (explaining a Brady violation requires proof that “(1) the prosecution suppressed evidence; (2) the evidence was favorable to the accused; and (3) the evidence was material to the defense” (citation and internal quotation marks omitted)). The Tenth Circuit concluded that “even if Albright [did] not foreclose” plaintiff’s substantive due process claim with its holding that substantive due process does not provide protection for malicious prosecution claims because the Fourth Amendment governs such claims, “she has not presented a substantive due process violation” because she “never proceeded to trial.” at 918 & n.9, 924.
So, while Becker didn’t consider § 1983 claims like those plaintiff asserts in Count I and Count III, Becker recognizes such claims may present viable § 1983 claims. Though the criminal case against Becker ’s plaintiff never reached trial, the Circuit recognized the potential for § 1983 substantive due process claims where a plaintiff—as is the case for plaintiff here— went to trial and suffered a due process violation based on fabricated or suppressed evidence that materially affected the trial— i.e. , where the fabricated evidence or suppressed evidence undermined confidence in the trial’s outcome. So, Becker didn’t foreclose plaintiff’s Count I and Count III claims here, contrary to defendants’ dismissal argument.
In sum, Becker holds plaintiff must rely on the Fourth Amendment’s protections for his pretrial seizure and prosecution without probable cause. And, Becker holds plaintiff’s Count IV malicious prosecution claim cannot rely on a procedural due process violation because Kansas provides a malicious prosecution tort, which is all the procedural due process the state is required to provide for random and unauthorized deprivations of plaintiff’s rights against unlawful pretrial detention and malicious prosecution lacking probable cause. But, Becker doesn’t foreclose plaintiff’s ability to rely on a Fourteenth Amendment substantive due process violation for his Count IV malicious prosecution claim to the extent the Fourth Amendment has left a “gap in constitutional protection” and a substantial liberty deprivation exists. at 918, 923. Nor does it foreclose his Count I and Count III claims based on his right to a fair trial. So, the court declines to dismiss Counts I, III, or IV based on violations of substantive due process or the Fourth Amendment.
In contrast, the court concludes that Myers and Becker preclude plaintiff’s Fourteenth Amendment procedural due process claims in Counts I, III, and IV. These binding precedent hold a § 1983 malicious prosecution claim based on a Fourteenth Amendment procedural due process violation is not viable where an adequate state law remedy exists. Kansas allows a malicious prosecution tort and the Circuit has held such a recognition is an adequate remedy for purposes of this analysis. Though Myers and Becker only considered claims in the pretrial context, the court finds the Tenth Circuit’s Parratt rationale for § 1983 malicious prosecution procedural due process claims also would apply to plaintiff’s Count I and Count III’s claims to the extent they rely on procedural due process rights, not substantive rights. Like malicious prosecution during the pretrial stage, the state couldn’t have anticipated the random and unauthorized conduct at plaintiff’s trial, so Parratt— together with the availability of a Kansas tort claim—bars any procedural due process component of those claims.
But, Myers and Becker do not preclude as a matter of law plaintiff’s Count I and Count III claims, which rely on a substantive due process right to a fair trial—and not on the right not to be prosecuted without probable cause. Nor do they foreclose Count IV’s claim to the extent it asserts a Fourth Amendment violation or a substantive due process violation where a gap in the Fourth Amendment’s protection exists.
iii. Additional Tenth Circuit Law and Persuasive Authority from other Circuits
The court’s conclusion that Counts I and III survive defendants’ Motion to Dismiss to the extent they rely on the substantive due process right to a fair trial is reinforced by other Tenth Circuit and persuasive authority.
In a post-
Albright
and post-
Parratt
case, the Tenth Circuit, as in
Becker
, recognized the
potential for a § 1983 claim based on a
Brady
violation and plaintiff’s
substantive
due process
right to a fair trial. In
Morgan v. Gertz
, plaintiff alleged a violation of his “Fourteenth
Amendment
substantive
due process rights” because defendants had destroyed exculpatory
evidence.
Morgan v. Gertz
,
Morgan then filed a § 1983 action in federal court arguing that the intentional destruction
of exculpatory evidence violated his Fourteenth Amendment
substantive
due process rights.
Morgan
,
But, the Circuit concluded plaintiff hadn’t alleged a constitutional violation. Id. The Circuit explained that cases alleging violations of constitutional rights because of a failure to comply with disclosure and preservation duties fall into two categories. Id. Where criminal charges are dismissed before trial , “the right to a fair trial is not implicated and, therefore, no cause of action exists under § 1983.” But, where convictions are returned and affirmed on direct appeal, but later are overturned by way of collateral proceedings, “courts have permitted the exonerated defendant to pursue § 1983 claims based on the denial of a fair trial.” Id. Because Morgan’s case fell within the first category of violations, the Circuit affirmed the district court’s summary judgment for defendants. Id.
The Circuit explained that the trial court never had entered a judgment of conviction—it
acquitted Morgan after the jury found him guilty, but before entering a judgment. So,
“[r]egardless of any misconduct by government agents before or during trial, a defendant who is
acquitted cannot be said to have been deprived of the right to a fair trial.” ;
see also Bailey v.
Twomey
,
In short, the Tenth Circuit has recognized the potential for Fourteenth Amendment
substantive claims based on the right to a fair trial, separate from a § 1983 malicious prosecution
claim.
See Tiscareno v. Frasier
,
These cases convince the court that the Tenth Circuit likely would recognize § 1983 claims based on fabricated evidence or withheld exculpatory evidence where a plaintiff has been deprived of a fair trial, in addition to § 1983 malicious prosecution claims based on substantive rights under the Fourth or Fourteenth Amendments. Here, plaintiff alleges defendants violated his constitutional right to a fair trial. And he asserts these claims after he was convicted and spent 15 years in prison. Thus, the claims in Count I and Count III fall into the second category recognized by the Circuit in Morgan —a category permitting a plaintiff to pursue § 1983 claims based on the denial of a fair trial.
Other Circuits, despite
Parratt
, also have considered § 1983 claims like those asserted in
Count I and Count III.
See, e.g.
,
Castellano v. Fragozo
,
The court finds a Seventh Circuit case with some strikingly similar facts to those alleged
here particularly instructive. In it, a plaintiff alleged the prosecutor and lab technicians
“deprived him of his liberty without due process of law by destroying exculpatory evidence to
frame him for [ ] murder.”
Armstrong v. Daily
,
The Armstrong plaintiff’s § 1983 suit alleged the prosecutor focused on plaintiff as the murderer and did whatever was necessary to build a case against him. This included destroying potentially exculpatory evidence from the crime scene (drug paraphernalia that could have implicated the real killer was mishandled and lost or destroyed), concealing a confession from the actual killer, and directing lab technicians to perform an inconclusive DNA test that consumed the last sample of evidence that could have proven plaintiff’s innocence, among other indiscretions. Id. at 532. Plaintiff believed his brother was the murderer, and his brother even had confessed to an acquaintance who then informed the prosecutor. Id. Plaintiff alleged the prosecutor never disclosed this call advising that plaintiff’s brother had confessed. Id. at 536. And, the inconclusive DNA test—ordered by the prosecutor without notice to the court or defense—was unable to distinguish between family members and—had they used a different test—the results could have exonerated plaintiff. Id. at 532.
The Seventh Circuit held that Parratt did not bar the Armstrong plaintiff’s federal due process claims based on the destruction or loss of exculpatory evidence, despite the availability of state tort remedies for the same wrongs. Id. It concluded the Parratt doctrine “does not apply to the actions of law enforcement officers that undermine the fairness of a criminal trial.” And, it concluded the bad-faith destruction or loss of exculpatory evidence was clearly established as a violation of a suspect’s due process rights under Brady , so the police and prosecutor were not entitled to qualified immunity. Id. (explaining Brady established in 1963 that prosecutors can’t suppress exculpatory evidence, so no reasonable police officer or prosecutor would have concluded it was acceptable to destroy such evidence). The Seventh Circuit found defendants’ argument that a state tort would provide “a remedy sufficient to satisfy federal due process requirements” to be “profoundly mistaken.” at 539. The Circuit held Parratt did not bar plaintiff’s claims for three reasons.
First,
Armstrong
concluded that “[n]o court has suggested” that
Parratt
applies to bar
claims based on “wrongful conduct” that “corrupted fair fact-finding in the criminal justice
system.”
Armstrong
,
Second, Armstrong found Parratt is limited to cases where plaintiff claims he was denied a meaningful predeprivation hearing, but the circumstances would make such a hearing impractical and where the deprivation wasn’t accomplished through state procedures. Id. at 541– 43. The Seventh Circuit declined to read Parratt and Hudson broadly in a way that would “bar virtually all § 1983 due process claims so long as state law offers some post-deprivation remedy.” at 542. A post-deprivation remedy, the Seventh Circuit explained, can’t cure certain failures to provide a fair pre-deprivation hearing because such a reading of Parratt would conflict with “decades of precedent establishing that violations of due process . . . are actionable under § 1983.” Otherwise, if a post-deprivation tort remedy could “cure any due process problem,” long-standing requirements of due process—like a tenured employee’s right not to be fired without prior notice and a hearing—would disappear. Id. Instead, the Seventh Circuit explained that a plaintiff can bring a supplementary § 1983 claim for substantive due process constitutional violations even if state law remedies also are available because a state official’s conduct violated state law in addition to the Constitution. Id. at 542–43. Again, the Seventh Circuit’s reasoning is persuasive. A post-deprivation malicious prosecution tort can’t cure what long-standing precedent has recognized as a due process violation—depriving a defendant’s right in a criminal trial to a fair trial. And, though a state tort remedy also may exist, the § 1983 constitutional claim is viable as supplementary to that remedy.
Finally, the Seventh Circuit’s opinion in Armstrong explained that Parratt doesn’t apply to facts like those presented Armstrong . Id. at 545–546. Not only did the Seventh Circuit conclude defendants’ conduct wasn’t random and unauthorized, but the Circuit also explained that “this is not a case where a pre-deprivation hearing would have been impractical” because plaintiff wasn’t “deprived of his liberty until after he had gone through the most elaborate pre- deprivation procedural protections known to American law: a criminal trial.” Id. at 545. And, plaintiff’s claim was “that the procedure he was due . . . was rendered unfair by [defendants’] wrongdoing.” Id. The Seventh Circuit reasoned Parratt doesn’t apply because “the state tort of malicious prosecution simply does not provide an adequate remedy for the deprivations . . . alleged.” Id. at 545–46. This is so, Armstrong explained, because plaintiff’s “federal constitutional guarantee of due process” clearly was violated—he lost “his liberty upon conviction at trial”—and only years later could he pursue remedy.” at 546. The postdeprivation state law remedy doesn’t make it so that no constitutional due process violation has occurred. It’s simply another means to recover money damages, which is “all the civil legal system can offer.” Id. But, it’s not “an adequate or meaningful remedy for years of wrongful imprisonment such that one can say there was no constitutional violation in the first place.” Thus, the Seventh Circuit held that Parratt didn’t bar the Armstrong plaintiff’s claims.
The Seventh Circuit’s reasoning fits the current case well. That Kansas provides a malicious prosecution tort remedy does not mean plaintiff’s constitutional due process guarantee wasn’t violated when he was denied a fair trial simply because he has a postdeprivation claim available to him. While a state law or federal § 1983 claim are all that the legal system can offer, his allegations rise to the level of a constitutional due process violation and Parratt does not bar him from proceeding on his § 1983 claims.
The Jefferson County defendants assert one final argument. They contend the court should apply Parratt to substantive procedural due process claims as well. Doc. 152 at 13–14. To support this argument, they rely on dicta from a 2015 Tenth Circuit opinion and two concurring opinions from then Judge Gorsuch, written while a member of our Circuit. Specifically, in 2015, the Tenth Circuit considered whether a plaintiff can assert a Fourteenth Amendment substantive due process claim under § 1983 in Browder v. City of Albuquerque . 787 F.3d 1076, 1078 (10th Cir. 2015).
In Browder , a police officer finished his shift, took a police cruiser, turned on its emergency lights, and drove well over the speed limit on city streets while not performing any police business. Id. at 1077. He ignored a red light and hit another car, killing one person and severely injuring another, the deceased’s sister. Id. The survivor and her family sued the officer under § 1983 alleging a Fourteenth Amendment substantive due process violation. Id. at 1077– 78. The defendant argued qualified immunity barred the claim. Id. at 1077. The Tenth Circuit disagreed—the officer was not entitled to qualified immunity for his actions.
The Circuit explained that “[t]he Supreme Court has interpreted [the Fourteenth
Amendment’s due process] language as guaranteeing not only certain procedures when a
deprivation of an enumerated right takes place (procedural due process), but also as guaranteeing
certain deprivations won’t take place without a sufficient justification (substantive due process).”
Id.
at 1078. But, the substantive due process doctrine “should be applied and expanded
sparingly.”
Id.
A court’s first task is to carefully describe the “allegedly violated right” and
determine if it counts as a “‘fundamental right,”’
i.e.
, a right “‘objectively, deeply rooted in this
Nation’s history and tradition.”’
Id.
(citations omitted). Then, the court must determine whether
the “government’s alleged infringement of the right in question was direct and substantial.”
Id.
(citations, alterations, and internal quotation marks omitted). Finally, “[i]f the plaintiff’s injury
meets these tests [the court] then assess[es] whether the government can muster sufficient
justification for its actions.”
Id.
“If the infringement is the result of executive action, the
Supreme Court has instructed [the courts] to ask whether that action bears ‘a reasonable
justification in the service of a legitimate governmental objective’ or if instead it might be
‘characterized as arbitrary or conscience shocking.’” at 1078–79 (quoting
Cnty. of
Sacramento v. Lewis
,
The Circuit and district court agreed with plaintiffs. Defendant’s actions had crossed the line and qualified as arbitrary or conscience shocking. Id. at 1079. Defendant’s alleged actions amounted to reckless or deliberate indifference to the fundamental right to life of others, so the Circuit upheld the district court’s decision denying defendant’s motion to dismiss. Id. at 1079– 83.
But the Circuit’s opinion in
Browder
declined to decide the “open question” “whether
Parratt
requires the plaintiff to show that state law supplies no adequate remedial course before
proceeding in federal court” because defendant had forfeited any
Parratt
argument.
Id.
at 1081.
In dicta, the Circuit noted that “[e]ven if the plaintiff can satisfy these [substantive due process]
standards, when a state tort suit can provide the same relief as a § 1983 claim and there’s no
reason to suppose a state court won’t fairly hear the claim it is an open question whether federal
courts—though empowered to hear the suit—should abstain in favor of the state remedial
processes.” at 1079 (first citing
Parratt
,
In their Reply, defendants rely on this passage from
Browder
and argue—if plaintiff here
tries to assert substantive due process claims (the court concludes he has)—
Parratt
also should
preclude his substantive due process claims. Doc. 152 at 13. They also rely on two concurring
opinions by Judge Gorsuch, where he opined that he would apply
Parratt
to substantive due
process claims.
See Cordova v. City of Albuquerque
,
For
Browder
specifically, Judge Gorsuch explained that state courts often provide relief
following traffic accidents via state law tort suits.
Browder
,
[I]t’s hard to identify a principled justification for extending Parratt piecemeal to procedural due process claims rather than wholesale to all due process claims. Zinermon observed that a substantive due process violation is complete upon a deprivation while a procedural due process violation requires us to wait and see what process the state provides. But it’s unclear why that distinction makes a difference when Parratt ’s logic cuts across both kinds of cases, asking in all events whether there's a need for federal intervention or whether state remedial processes might do just as well.
Id. at 1085.
Here, the court declines to apply Judge Gorsuch’s view because, as defendants recognize, the Tenth Circuit hasn’t decided conclusively that Parratt applies to substantive due process claims as well as procedural ones. Doc. 52 at 13–14. Browder shows the Tenth Circuit hasn’t foreclosed substantive due process claims under Parratt yet. And, neither the dicta in Browder nor Judge Gorsuch’s concurring opinions bind this court. The court declines to apply Parratt to plaintiff’s substantive due process claims and thus concludes those claims aren’t precluded as a matter of law.
e. Conclusion In sum, defendants have not established that Parratt bars plaintiff’s § 1983 claims in Counts I, III, and IV in their entirety as a matter of law. The court agrees plaintiff’s § 1983 claims, to the extent they allege procedural due process violations, are barred because Kansas provides a malicious prosecution tort. Under Myers and Becker , the Tenth Circuit found similar malicious prosecution conduct to be random and unauthorized and applied Parratt to bar § 1983 malicious prosecution procedural due process claims. But, plaintiff’s claims also allege substantive Fourteenth Amendment violations, and Becker and Browder demonstrate that the Tenth Circuit hasn’t foreclosed substantive due process claims under Parratt— at least not yet. So, the court doesn’t dismiss plaintiff’s § 1983 substantive due process claims based on his right to a fair trial (Count I and Count III), or his § 1983 malicious prosecution claim based on an unreasonable seizure violating the Fourth Amendment or based on a substantive due process right against conscience shocking conduct that results in a substantial liberty deprivation not covered by Fourth Amendment’s protections (Count IV).
The Jefferson County defendants’ first argument for dismissing the § 1983 claims alleging Fourteenth Amendment violations—an adequate state law remedy—doesn’t foreclose plaintiff’s claims in Counts I, III, and IV in their entirety. The court considers defendants’ separate arguments against Count IV’s § 1983 malicious prosecution claim infra Part III.C. The court now turns to defendants’ arguments that plaintiff hasn’t alleged adequately facts to satisfy the elements essential to his claims in Count I and Count III: that defendants acted with the requisite culpable state of mind to support a § 1983 claim, that the fabricated or suppressed evidence was material to his trial, and that plaintiff lacked a meaningful opportunity to be heard by a jury.
2. Intent or Malice Next, defendants argue plaintiff hasn’t alleged that the individual Jefferson County defendants acted with “a sufficiently culpable mental state.” Doc. 145 at 23. Defendants contend plaintiff’s allegations show mere negligence and not conduct egregious enough to support a constitutional deprivation of due process, as claimed in for Count I and Count III. Id. at 23–24. Specifically, they argue plaintiff’s allegations that Mr. Herrig, Mr. Frost, and Mr. Poppa intentionally avoided examining Tom’s house, truck, and belongings “with sufficient rigor” don’t explain how a different evidence collection method would have exculpated him. Id. at 23. And, they contend plaintiff’s allegations about their states of mind are bare and conclusory, and thus he “fails to allege the requisite bad faith.” Id.
It’s true that “the Due Process Clause is simply not implicated by a
negligent
act of an
official causing unintended loss of or injury to life, liberty, or property.”
Daniels v. Williams
,
Plaintiff’s allegations here—accepted as true at the motion to dismiss stage—suffice to support an inference that each defendant held the requisite culpable mental state for the fabricating evidence and Brady claims. Plaintiff alleges that the defendant officers “deliberately concealed and suppressed the evidence that would have proven [plaintiff’s] innocence” because they “withheld all of the details of Tom’s numerous confessions, including his explanation for where and why he had killed Camille and facts he could have known only by committing the murder himself.” Doc. 141 at ¶ 5. He also alleges they fabricated Tom’s recanted confession that implicated plaintiff, continually silenced Tom, and worked to create facts to pin guilt on plaintiff. at ¶ 4. He asserts defendants conspired to frame plaintiff for Tom’s crime. Id. at ¶¶ 43, 47.
And, as discussed in more detail supra Part III.A., the various allegations against defendants in the Second Amended Complaint collectively are supported with specific allegations about each individual Jefferson County defendant permitting a reasonable inference that they joined the conspiracy. Plaintiff alleges Mr. Carreno helped come up with the fabricated roadside meeting where plaintiff provided Tom details of the murder and then coached Tom to provide this false explanation about how he knew details of the murder. at ¶¶ 52–53, 65. Plaintiff alleges Mr. Frost fabricated a confession by plaintiff placing plaintiff at his house around the time Camille disappeared. Id. at ¶¶ 89–92. Mr. Poppa withheld documentation of Tom’s inculpatory statements when he turned himself in that “revealed an insider’s knowledge of the murder.” Id. at ¶ 71. Mr. Carreno withheld documentation about Tom’s activities and statements after the murder. Id. at ¶ 72. Mr. Frost “withheld evidence that Tom had a history of pursuing young girls roughly Camille’s age and had made sexual advances toward Camille just a few weeks before her disappearance.” Id. at ¶ 74. And, plaintiff alleges the defendant officers purposefully didn’t use proper search and evidence collection techniques. Id. at ¶ 78. Specifically, Mr. Herrig, Mr. Frost, and Mr. Poppa rigorously searched plaintiff’s home and car, but didn’t do the same searches of Tom’s house and car. Id. at ¶¶ 79, 81–82. They let Tom’s father handle the murder weapon. at ¶ 81. They also “intentionally declined to collect any physical evidence” from Tom’s truck, where he confessed he had shot Camille, and from the shovel Tom confessed he had used to bury Camille. Id. at ¶ 82. Finally, plaintiff makes allegations about the contents of Tom’s suicide note, i.e. , Tom’s note recites that the Jefferson County police made him lie. at ¶¶ 7, 66, 101.
These allegations support plaintiff’s claim that the defendant officers conspired to
prosecute and convict plaintiff for a murder they knew he didn’t commit by fabricating
inculpatory evidence and suppressing exculpatory evidence. Their alleged actions could support
a reasonable inference that they possessed the requisite state of culpability and weren’t merely
negligent. The Tenth Circuit has recognized that the district court properly can infer malice so
long as the allegations, if proven, would support a finding that defendant acted with malice.
See Pierce
,
3. Materiality Defendants also claim the Fourteenth Amendment due process claims fail as a matter of law because plaintiff hasn’t identified “a material fabrication or suppression in which any of the Jefferson County Defendants personally participated.” Doc. 145 at 24. The court first considers whether plaintiff has alleged the Jefferson County defendants fabricated material evidence. Then, the court considers whether plaintiff has alleged the Jefferson County defendants withheld material evidence.
a. Fabricating Inculpatory Evidence
Where a plaintiff alleges state authorities knowingly used perjured testimony or false
evidence to secure a conviction, he has alleged deprivation of his constitutional right to due
process.
Pyle v. Kansas
,
Defendants argue the Second Amended Complaint’s allegations describing how the defendant officers fabricated Tom’s retracted confession, made up a roadside meeting where plaintiff confessed to the crime, and falsely claimed plaintiff went home around the time Camille disappeared don’t amount to a constitutional due process violation because these allegations wouldn’t have affected the outcome of plaintiff’s criminal case. Doc. 145 at 25–26. They contend materiality and causation are lacking, so plaintiff hasn’t alleged a constitutional violation. at 26. The Jefferson County defendants contend the allegation about Mr. Frost fabricating that plaintiff went home the evening Camille disappeared isn’t material because no inculpatory evidence was found at plaintiff’s house. Id. They assert that investigators secured a search warrant based on that alleged fabricated confession, but when they searched plaintiff’s home no inculpatory evidence was found. Id. And, defendants argue, plaintiff’s other allegations about fabricated evidence don’t satisfy plaintiff’s pleading obligations either because they are conclusory and, at times, refer to defendants as a collective group. Id. at 27. Finally, defendants again ask the court to rely on the public records from plaintiff’s criminal case and various appellate and habeas proceedings which, they assert, show that other evidence besides the allegedly fabricated evidence supported plaintiff’s conviction. Defendants thus argue that plaintiff’s allegations of false evidence—even if true—wouldn’t have affected the verdict in his criminal case.
The court rejects defendants’ argument. Defendants try to argue that Mr. Frost’s
testimony—that plaintiff confessed to going home around the time of Camille’s disappearance—
was immaterial because no inculpatory evidence was found at plaintiff’s house when searched.
But, as already discussed, the Tenth Circuit recognized that Mr. Frost’s testimony that plaintiff
had visited his home on the afternoon Camille disappeared was an “important” fact because it
gave plaintiff the opportunity to commit the crimes.
Bledsoe v. Bruce
,
Defendants also contend the Kansas Supreme Court found the evidence sufficient to
convict plaintiff, despite plaintiff’s argument to that court that his roadside confession to Tom
was “highly suspect” and “uncorroborated by any evidence.”
State v. Bledsoe
,
Finally, as discussed above, the court rejects defendants’ arguments that plaintiff’s fabrication allegations are conclusory and don’t satisfy his pleading obligations. See supra Part III.A. Plaintiff alleges individual conduct and other facts to support the conspiracy’s existence and his fabrication allegations. For example, Tom left a note when he committed suicide in which he asserted the Jefferson County police made him lie and prevented him from telling the truth. Doc. 141 at ¶ 101. Defendants’ attack on the materiality of the allegedly fabricated evidence is not persuasive.
b. Suppressing Exculpatory Evidence
A
Brady
violation requires proof that “(1) the prosecution suppressed evidence; (2) the
evidence was favorable to the accused; and (3) the evidence was material to the defense.”
Becker v. Kroll
,
As discussed briefly above, a
Brady
constitutional deprivation doesn’t occur unless the
evidence withheld was material to guilt or punishment.
See Brady
,
To determine whether evidence is material, the court must consider it “in the context of
the evidence presented at trial,” and should “weigh” the influence of the “undisclosed evidence
. . . in light of the whole record.”
United States v. Robinson
,
The Jefferson County defendants argue plaintiff’s allegations about the officers withholding Tom’s confessions, details of his activities, and history of inappropriate advances are not material under Brady . Doc. 145 at 24–25. They assert Tom’s confessions and social history were discussed at his criminal trial. Id. at 25. They contend the transcript from plaintiff’s trial shows either plaintiff had independent knowledge of the evidence or that it was disclosed as Brady required. Id. And, because Tom’s confessions and history were discussed at the trial, defendants argue any failure to disclose those items couldn’t have affected the outcome. Id. Also, they assert, plaintiff never alleges evidence of Tom’s activities would have favored him. Id. Finally, defendants argue plaintiff hasn’t explained how the officers’ alleged failures to collect evidence responsibly could have produced favorable or material evidence. Id.
In response, plaintiff argues his Second Amended Complaint “easily alleges . . . Brady violations by the Jefferson County Defendants.” Doc. 151 at 17. He asserts “[e]vidence of an alternative suspect is classic Brady material.” at 20. And he specifies the various evidence withheld from him, asserting defendants had a duty to disclose the evidence they fabricated as those fabrications constitute suppressed evidence as well. at 20–22. Plaintiff doesn’t deny that certain evidence of Tom’s confessions and social history were discussed at his criminal trial. at 21. But, he contends, defendants withheld more evidence that would have allowed plaintiff to make a stronger case for his innocence. Id . at 22.
Accepting plaintiff’s allegations as true, the court agrees with plaintiff. He plausibly has alleged the suppressed evidence was material because, without its suppression, the jury may have returned a different verdict. Indeed, during one of plaintiff’s appeals, the Kansas Supreme Court noted that the criminal case “was a difficult case” where “[t]wo brothers accused each other of vile crimes” and “ample evidence” existed to support each accusation. Bledsoe v. State , 150 P.3d 868, 887 (Kan. 2007). Plaintiff alleges the Jefferson County defendants participated in a conspiracy that involved withholding evidence that would have exculpated plaintiff and inculpated Tom. See supra Part III.A. If defendants had provided this evidence to plaintiff, he could have presented it at his trial to support his position that Tom was the true culprit. And, as discussed, the fact that some evidence of Tom’s confessions or sexual history was presented at the criminal trial doesn’t negate the conclusion that the additional withheld details could have influenced which story the jury chose to believe.
In sum, plaintiff’s allegations are sufficient for plaintiff’s claims to survive the Jefferson County defendants’ motion to dismiss. Plaintiff provides sufficient allegations to support his claim that the Jefferson County defendant officers conspired to prosecute and convict plaintiff for a murder they knew he didn’t commit by suppressing material exculpatory evidence and fabricating material inculpatory evidence. It’s plausible that these actions affected the outcome of plaintiff’s criminal trial. The court thus denies defendants’ third due process argument—that the Second Amended Complaint fails to identify any material evidence that the Jefferson County defendant officers fabricated or suppressed. This argument doesn’t foreclose plaintiff’s Fourteenth Amendment Due Process claims as a matter of law.
4. Opportunity to be Heard Finally, the Jefferson County defendants argue the court must dismiss Count I and Count III’s § 1983 Fourteenth Amendment due process claims because the right to due process requires notice and an opportunity to be heard. Defendants argue that plaintiff already has received both notice and the chance to be heard in his criminal trial and various appellate and habeas proceedings. Doc. 145 at 27. They also contend plaintiff has alleged no facts capable of showing each of the Jefferson County defendants “took actions that materially influenced the outcome of his trial” and thus he hasn’t “state[d] a colorable Fourteenth Amendment claim, and the Jefferson County [d]efendants are entitled to judgment on Counts I and III.” at 28. In support, defendants cite Morgan , where the Tenth Circuit explained that “withholding or destruction of evidence violates a criminal defendant’s constitutional rights only if, as a result of the withholding or destruction of evidence, the criminal defendant is denied a fair trial.” 166 F.3d at 1310.
Plaintiff responds that he never has had an opportunity to challenge the fabricated or withheld evidence. Doc. 151 at 27. Indeed, plaintiff alleges fabricated inculpatory evidence was used to secure his conviction, and exculpatory evidence that could have helped prove his innocence in his criminal trial was withheld from him. See Part I & Part III.A. So, he claims, Count I and Count III sufficiently assert that he was denied his constitutional right to a fair trial.
Plaintiff has pleaded plausibly that he was denied a fair trial. As explained above,
Morgan
held that § 1983 actions alleging Fourteenth Amendment constitutional violations for
fabricating or withholding evidence aren’t viable when the charges are dismissed before trial
because “the right to a fair trial is not implicated.”
5. Conclusion To summarize, the court declines to dismiss plaintiff’s Counts I, III, and IV claims based on Fourteenth Amendment substantive due process violations. To the extent plaintiff bases Counts I, III, and IV’s claims on procedural due process violations, the court agrees with defendants, i.e. , such claims are barred by Parratt and the availably of a malicious prosecution tort under Kansas law. But, Counts I and III also invoke a substantive due process right to a fair trial, and Parratt does not proscribe these claims. And the court doesn’t dismiss Count IV’s malicious prosecution claim either to the extent it relies on a Fourth Amendment violation or a substantive due process violation under the Fourteenth Amendment (conscience shocking conduct that results in a substantial liberty deprivation that is not covered by the Fourth Amendment’s protections).
And, finally plaintiff has alleged adequately that the Jefferson County defendants acted with the requisite culpable mental state to support § 1983 liability. He also has alleged the evidence fabricated or withheld was material to his trial and that he was deprived of a meaningful opportunity to be heard by a jury. Thus, in Counts I and III the Second Amended Complaint plausibly asserts claims for Fourteenth Amendment due process violations.
C. Malicious Prosecution Claim Third , the Jefferson County defendants argue Count IV—claims malicious prosecution and unlawful pretrial detention—fails as a matter of law. Defendants assert the court must dismiss Count IV because: (1) the Fourth Amendment can’t support a malicious prosecution claim after a plaintiff has gone to trial and the Fourteenth Amendment can’t support a malicious prosecution claim either because Parratt bars such a claim; and (2) plaintiff hasn’t alleged facts to support each element of a § 1983 malicious prosecution claim. The next two subsections take up these arguments separately.
1. Viability of Fourth Amendment or Fourteenth Amendment Malicious Prosecution Claim
The court addressed the Jefferson County defendants’ arguments against using the
Fourteenth Amendment to support Count IV’s § 1983 claim above in Part III.B.1. As discussed,
plaintiff cannot rely on Fourteenth Amendment procedural due process to support Count IV’s
§ 1983 malicious prosecution claim because Kansas law provides a malicious prosecution tort.
See Becker
,
But,
Myers
and
Becker
recognize the viability of a § 1983 malicious prosecution claim
based on a Fourth Amendment violation where a plaintiff is seized pretrial.
Myers
, 738 F.3d at
1194–95;
Becker
,
Now, the Jefferson County defendants argue plaintiff can’t assert his § 1983 claim for
unlawful pretrial detention under the Fourth Amendment because he received a trial. To support
their argument that a § 1983 malicious prosecution claim based on a Fourth Amendment
violation isn’t available after a conviction, defendants rely on a footnote in
Manuel
. In
Manuel
’s
footnote the Supreme Court explained that the Fourth Amendment should be used as the basis to
challenge a pretrial detention without probable cause, but that “once a trial has occurred, the
Fourth Amendment drops out” and “[a] person challenging the sufficiency of the evidence to
support both a conviction and any ensuing incarceration does so under the Due Process Clause of
the Fourteenth Amendment.”
Addressing the Fourth Amendment claim at issue in Manuel , the Court explained that the “[l]egal process] did not expunge” the claim because “the process he received failed to establish what that Amendment makes essential for pretrial detention—probable cause to believe he committed a crime.” at 919–20. Likewise here, on the facts alleged, neither the legal process plaintiff received pretrial nor his criminal trial provided him the constitutional process he was due—he alleges probable cause was lacking from the start. The footnote in Manuel shows Fourth Amendment protections apply during the pretrial period, so a plaintiff must assert a § 1983 claim for unlawful pretrial detention under the Fourth Amendment. But, the Court’s language about the Fourth Amendment “drop[ping] out” merely indicates a plaintiff must challenge his post-conviction incarceration or other constitutional violations under the Fourteenth Amendment, and not the Fourth Amendment. Id. at 920 n.8. Which, of course, is precisely what plaintiff has done here. He asserts his pretrial constitutional violation claim under the Fourth Amendment (Count IV) and his trial and post-trial constitutional violations under the Fourteenth Amendment (Counts I, III, and IV).
Defendants never direct the court to any binding authority that bars a § 1983 claim for unlawful pretrial detention simply because a plaintiff was tried and convicted. Indeed, Justice Alito’s dissent in Manuel explained that “an individual may seek damages for pretrial Fourth Amendment violations even after a valid conviction .” at 923–26 (Alito, J., dissenting) (providing examples and opining that he would require a malicious prosecution claim to be based on the Fourteenth Amendment, not the Fourth Amendment, and that the Fourth Amendment claim in Manuel more nearly resembled a false arrest or false imprisonment claim, not malicious prosecution).
Here, plaintiff’s Fourth Amendment malicious prosecution claim didn’t accrue until his
criminal proceedings terminated in his favor.
Myers
,
In sum, while the Fourth Amendment’s protections end by the time of a conviction at trial and a plaintiff thereafter must rely on Fourteenth Amendment due process for constitutional violations, defendants haven’t shown a post-trial claim to redress pretrial Fourth Amendment deprivation is precluded as a matter of law. So, the court next turns to the Jefferson County defendants’ arguments that plaintiff hasn’t alleged facts to support each required element of his § 1983 malicious prosecution claim.
2. Elements of § 1983 Malicious Prosecution Claims
“[A] § 1983 malicious prosecution claim includes the following [five] elements: (1) the
defendant caused the plaintiff’s continued confinement or prosecution; (2) the original action
and [the] due process analysis begins” to decide the appeal from denial of the motion to dismiss. at
1286. Later in
Manuel
, the Supreme Court clarified that Fourth Amendment protections extend through
the entire pretrial detention period.
Manuel
,
terminated in favor of the plaintiff; (3) no probable cause supported the original arrest, continued
confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained
damages.”
Carbajal v. McCann
,
a. Causation The Jefferson County defendants argue that plaintiff hasn’t alleged plausibly the first element of his § 1983 malicious prosecution claim—that defendants caused his continued confinement or prosecution. Doc. 145 at 32–34. They contend two acts “broke any causal chain.” at 32. First, they rely on the prosecutor’s decision to prosecute. Second, they invoke the trial judge’s decision to allow the prosecution to proceed and the jury’s subsequent conviction. Plaintiff responds that these acts did not break the chain of causation because the prosecutor, judge, and jury all relied on the fabricated evidence and lacked access to the exculpatory evidence that defendants withheld. Doc. 151 at 29–31. As explained below, plaintiff has alleged plausibly facts that, if proved, would nullify any event breaking the causal chain.
The Tenth Circuit has explained a court’s decision that the evidence was sufficient to
establish probable cause and bind a criminal defendant over for trial can, sometimes, break the
causal chain between a sheriff’s investigation and the decision to prosecute.
Taylor v. Meacham
,
The Tenth Circuit also has explained that the defendant doesn’t have to be the person
who actually filed the charges against plaintiff to satisfy the causation element of a malicious
prosecution claim.
Pierce
,
Here, plaintiff has alleged plausibly that the Jefferson County defendants conspired to fabricate Tom’s recanted confession and other evidence implicating plaintiff, as well as to withhold exculpatory evidence that could have proven Tom’s guilt and plaintiff’s innocence. See supra Part III.A. Their actions are alleged to have tainted the entirety of plaintiff’s proceedings—from the prosecutor’s decision to prosecute, the judicial probable cause determinations, the jury’s conviction, and plaintiff’s subsequent appeals and habeas proceedings. As explained infra Part III.C.2.c., plaintiff plausibly has alleged that probable cause—setting aside the fabricated evidence and taking into account the withheld exculpatory evidence—didn’t exist. So, plaintiff plausibly has alleged that the causal chain between the actions of the Jefferson County defendants’ and plaintiff’s continued prosecution was not broken because defendants distorted evidence as part of an effort to convince prosecuting authorities to press and pursue charges. Plaintiff has pleaded the first element of his malicious prosecution claim satisfactorily.
b. Termination in Plaintiff’s Favor The Jefferson County defendants next argue plaintiff’s criminal proceedings weren’t terminated in his favor. Doc. 145 at 30. The court already has rejected this argument when other defendants made it. See Doc. 114 at 19, 33, 36. And, the Jefferson County defendants’ arguments renewing it are no more convincing.
A favorable termination means the original criminal proceeding must have terminated “in
a manner
indicative
of [plaintiff’s] innocence.”
Margheim v. Buljko
,
So, dismissal of criminal charges alone doesn’t indicate innocence.
Margheim
, 855 F.3d
at 1086. Instead, the court must examine the reasons for the dismissal and the circumstances
surrounding it to see if it was indicative of innocence.
Id.
For instance, a dismissal after
evidence is suppressed on technical grounds—where the evidence’s trustworthiness isn’t
questioned—may not indicate innocence. But, if “a court vacate[s] the conviction because
the plaintiff was factually innocent” that would suffice.
Montoya v. Vigil
,
The Jefferson County defendants contend plaintiff’s sentence was vacated with the opportunity for retrial, so they ask the court to dismiss the malicious prosecution claim. They argue, as a matter of law, that this conclusion in the underlying criminal trial means plaintiff cannot satisfy the favorable termination element. Doc. 145 at 30–31. They rely on plaintiff’s appellate and habeas proceedings following his conviction, where various courts concluded the evidence supported his conviction, and on the fact that the charges against him were dismissed without prejudice. Id. And, they argue that while the DNA evidence “may establish [plaintiff] did not have unprotected sex with [Camille] leading up to her murder,” that fact and Tom’s suicide note don’t establish that plaintiff “is actually and wholly innocent in her death.” at 30.
Defendants overstate the standard. The governing law doesn’t require plaintiff to prove
his innocence beyond a reasonable doubt to bring a § 1983 malicious prosecution claim. He only
must allege that the criminal proceedings terminated in a manner that was “indicative of [his]
innocence,” rather than on technical grounds.
Margheim
,
c. Probable Cause
The probable cause element of a malicious prosecution claim requires plaintiff to show
that “falsification of inculpatory evidence or suppression of exculpatory evidence was necessary
to the finding of probable cause: that without the falsified inculpatory evidence, or with the
withheld exculpatory evidence, there would have been no probable cause for his continued
confinement or prosecution.”
Pierce
,
The Jefferson County defendants argue plaintiff fails to allege adequately that they lacked probable cause to initiate and continue plaintiff’s prosecution. Doc. 145 at 31–32. They contend plaintiff hasn’t alleged any facts to establish probable cause was lacking, and merely asserts conclusory allegations that they lacked probable cause. And, these defendants argue, the Jefferson County defendants had arguable probable cause, i.e. , from an objective standpoint a reasonable officer could have believed probable cause existed for plaintiff’s prosecution. at 31. They rely on the trial court’s decision to bind plaintiff over for trial, the jury’s verdict, and plaintiff’s various appellate and habeas proceedings to argue probable cause existed. Id. at 31– 32. They note that evidence other than Tom’s testimony supported the charges against plaintiff which, they contend, suffices to establish probable cause. Doc. 145 at 32 n.16, 33–34.
Plaintiff argues he has pleaded adequately that no probable cause existed sufficient to
survive defendants’ Motion to Dismiss. The court agrees with him. Plaintiff has alleged that
these defendants joined a conspiracy to fabricate evidence against plaintiff, withhold evidence
that could have exculpated him, and executed a plan to frame plaintiff.
See
Part III.A. By itself,
without Tom’s recanted confession or the roadside meetup with plaintiff—the fabricated
evidence Mr. Carreno helped to contrive—plaintiff has alleged plausibly that probable cause was
lacking. It’s unlikely a reasonable officer would have found probable cause to prosecute plaintiff
for the crimes had Tom never recanted his confession and implicated plaintiff. But there’s more.
Plaintiff also has alleged Mr. Frost fabricated evidence that plaintiff returned to his house the
evening Camille disappeared. The Kansas Supreme Court and the Tenth Circuit considered this
fact in plaintiff’s appellate and habeas proceedings.
State v. Bledsoe
,
In short, setting aside the evidence plaintiff alleges was fabricated and taking into account
the exculpatory evidence plaintiff alleges defendants withheld from him, plaintiff has alleged
plausibly that that the Jefferson County defendants lacked probable cause. As in
Pierce
,
accepting plaintiff’s allegations as true, the information fabricated or withheld from him was
“significant enough to prejudice [his] constitutional rights.”
Pierce
,
d. Malice
Finally, the Jefferson County defendants contend plaintiff hasn’t alleged adequately that
Mr. Carreno, Mr. Frost, Mr. Herrig, and Mr. Poppa each acted with malice. at 34–36. For
the same reasons discussed above,
supra
Part III.B.2., plaintiff has pleaded adequately this fourth
element of his malicious prosecution claim. From each defendant’s acts in furtherance of the
conspiracy, the court reasonably can infer they possessed the requisite mental state at the motion
to dismiss stage. Indeed, “[m]alice may be inferred if a defendant causes the prosecution without
arguable probable cause.”
Stonecipher v. Valles
,
3. Conclusion In sum, defendants haven’t convinced the court that it must dismiss as a matter of law plaintiff’s Count IV claim based on pretrial constitutional violations under the Fourth Amendment merely because he received a trial. And, plaintiff has alleged enough plausible facts to support each element of his Count IV malicious prosecution claim against Mr. Carreno, Mr. Frost, Mr. Herrig, and Mr. Poppa.
D. Qualified Immunity Mr. Herrig, Mr. Carreno, Mr. Frost, and Mr. Poppa—four of the Jefferson County defendant officers—assert qualified immunity as a defense to plaintiff’s claims. They ask the court to dismiss the claims against them based on this defense.
“The doctrine of qualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’”
Pearson v. Callahan
,
The Supreme Court has “mandated a two-step [inquiry] for resolving government
officials’ qualified immunity claims.”
Id
. at 232 (citing
Saucier v. Katz
,
Once a qualified immunity defense is raised, “plaintiff bears the burden of meeting these
two prongs.”
Hinkle v. Beckham Cnty. Bd. of Cnty. Comm’rs
,
1. Violation The court already has conducted the analysis mandated by prong one. The court has decided that plaintiff has pleaded adequate facts to support a finding that Mr. Carreno, Mr. Frost, Mr. Herrig, and Mr. Poppa violated his constitutional rights. See supra Parts III.A., III.B., and III.C.
2. Clearly Established
For prong two—determining whether the individual Jefferson County defendants’ actions
are protected by qualified immunity—the court must decide whether the rights at issue were
“clearly established” at the time of their alleged conduct.
Pearson
,
“The protection of qualified immunity applies regardless of whether the government
official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of
law and fact.’”
Pearson
,
The court previously has determined the constitutional rights at issue in this case were
clearly established and not protected by qualified immunity on the facts alleged and accepted as
true here.
See
Doc. 114 at 16–18, 25, 31–32, 36, 38. In
Pierce v. Gilchrist
, the Tenth Circuit
decided this very issue.
After determining that plaintiff properly had alleged violations of his constitutional rights, the Tenth Circuit held that the “prohibition on falsification or omission of evidence, knowingly or with reckless disregard for the truth, was firmly established as of 1986” when defendant had acted. Id. at 1298. The Circuit concluded such conduct amounts to a clearly established violation of both plaintiff’s Fourth and Fourteenth Amendment rights because defendant had “‘fair warning’ that the deliberate or reckless falsification or omission of evidence was a constitutional violation.” at 1298–99. It didn’t find a significant constitutional difference between providing false evidence to support an arrest and providing false evidence to support continued confinement and prosecution. Id. at 1299. The Circuit explained: “Even if there were no case directly on point imposing liability on officials whose falsification of evidence occurred at the post-arrest stage, an official in [defendant’s] position could not have labored under any misapprehension that the knowing or reckless falsification and omission of evidence was objectively reasonable.” Id.
Pierce ’s holding applies with equal force here. Mr. Carreno, Mr. Frost, Mr. Herrig, and Mr. Poppa are not entitled to qualified immunity on the facts alleged and accepted as true at this motion to dismiss stage. Still, defendants persist asserting four arguments for qualified immunity.
First
, defendants contend their conduct here was objectively reasonable and qualified
immunity excuses any reasonable mistake of fact. Doc. 145 at 45. They contend their actions in
investigating, gathering evidence, and not providing certain evidence to plaintiff amounted to
mere negligence or reasonable mistakes, which are protected by qualified immunity. at 45–
46. And, they argue it was reasonable for them to believe that Tom was a credible witness and
plaintiff was guilty, even if these judgments were mistaken. at 46. On a motion to dismiss,
the facts pleaded and all reasonably drawn inferences from those allegations are viewed in the
light most favorable to plaintiff.
See Generation Res. Holding Co., LLC
,
Second
, defendants argue they deserve qualified immunity for a reasonable mistake of
law because it wasn’t clear in 1999 or 2000 that police had a duty to disclose exculpatory
evidence, as opposed to the prosecutor. Doc. 145 at 46. This argument lacks merit. It was clear
that
Brady
’s disclosure obligations extended to law enforcement officers.
See Smith v. Sec’y of
N.M. Dep’t of Corr.
,
Third , defendants argue that “application of the then-prevailing law to the available facts confirms the individuals cannot be described as acting in knowing violation of the law or in a plainly incompetent manner.” Doc. 145 at 47. Essentially, defendants argue that if they made a mistake whether probable cause existed to prosecute plaintiff or made mistakes about whether certain evidence was exculpatory, these mistakes are entitled to qualified immunity. They ask the court to grant them qualified immunity because “their efforts to investigate, their contemporary understanding of the facts and of each witness’s credibility, and their deference to the prosecutor’s probable cause assessment” all amount to reasonable mistakes based on mixed questions of law and fact. Id . Again, defendants approach qualified immunity from a position that asks the court to disregard the standard it must apply to a motion to dismiss. As explained throughout this Order, viewing the facts alleged and drawing reasonable inferences from them in plaintiff’s favor, defendants don’t qualify for qualified immunity because plaintiff has alleged plausibly that their conduct knowingly violated his constitutional rights.
Finally,
defendants argue they are entitled to qualified immunity on the malicious
prosecution claim (Count IV) because it wasn’t clearly established in 1999 or 2000 that “the
Fourth Amendment even supported a malicious prosecution claim.” Doc. 145 at 28 n.12. In
support they cite
Sanchez v. Hartley
, where the Tenth Circuit found it was clearly established in
2009 that using a false confession would violate the Fourth Amendment because a 2004 Tenth
Circuit decision (
Pierce
) recognized such a claim, even though a later Tenth Circuit decision in
dicta had questioned whether the Fourth Amendment, as opposed to the Fourteenth Amendment,
could support such a claim.
Neither argument is convincing because it was clearly established in the Tenth Circuit
before 1999 or 2000 that the Tenth Circuit recognized a Fourth Amendment malicious
prosecution claim. In 1996—before the conduct at issue here—the Tenth Circuit explained
“[f]ollowing
Albright
, in the § 1983 malicious prosecution context, that constitutional right is the
Fourth Amendment’s right to be free from unreasonable seizures.”
Taylor v. Meacham
, 82 F.3d
1556, 1558, 1560–61 (10th Cir. 1996) (where plaintiff was arrested, bound over for trial, and
jailed for seven weeks);
see also Becker
,
And, as plaintiff aptly notes, the qualified immunity analysis focuses on defendants’
conduct—asking whether that conduct violated clearly established law—and not where plaintiff
may seek a remedy. Doc. 151 at 39;
see Armstrong v. Daily
,
As already explained, plaintiff has alleged facts from which the court can draw a reasonable inference that these defendants joined an agreement and acted on a concerted basis to falsify and withhold evidence, and maliciously prosecute plaintiff for murder. Even if uncertainty existed in the Tenth Circuit in 1999 or 2000 whether a malicious prosecution claim following commencement of wrongful legal process alleged conduct violating the Fourth Amendment or the Fourteenth Amendment, an officer would have understood he was violating plaintiff’s constitutional rights by fabricating inculpatory evidence, withholding exculpatory evidence, and maliciously prosecuting plaintiff for a crime he knew plaintiff didn’t commit. Thus, the individual Jefferson County defendants are not entitled to qualified immunity.
E. Claims against Jefferson County and Sheriff Herrig in his Official Capacity Finally, the Jefferson County defendants argue the court must dismiss plaintiff’s claims against Jefferson County and Sheriff Herrig in his official capacity. Plaintiff has asserted a claim for municipal liability (Count VII) and a state law claim for indemnification (Count VIII). The court addresses the municipal liability claim in Part 1, below. Part 2 considers the indemnification claim.
1. Count VII—Municipal Liability Count VII alleges Jefferson County [27] and Sheriff Herrig, acting in his official capacity, “are themselves liable for the violation of [p]laintiff’s constitutional rights” because “[p]laintiff’s injuries were caused by the polices, practices, and customs of the Jefferson County Sheriff’s Department . . . .” Doc. 141 at ¶¶ 159–160. Plaintiff alleges that employees of the Sheriff’s Department “regularly failed to disclose exculpatory evidence to criminal defendants, fabricated false evidence implicating criminal defendants in criminal conduct, pursued wrongful convictions through profoundly flawed investigations, and otherwise violated due process in a similar manner to that alleged herein.” Id. at ¶ 160. He contends these practices were so widespread that they amount to a policy of the Sheriff’s Department, that they “were allowed to exist because municipal policy makers with authority over the same exhibited deliberate indifference to the problem, thereby effectively ratifying it,” and that the practices “were allowed to flourish” because of insufficient training and oversight. at ¶ 161. Also, plaintiff alleges the constitutional violations amount to a municipality policy or practice because they “were committed with the knowledge or approval of persons with final policymaking authority . . . or were actually committed by persons with such final policymaking authority”— i.e. , Sheriff Dunnaway and Mr. Herrig “ratified and authorized the fabrication of evidence against [plaintiff] and the withholding of exculpatory information from” him. at ¶¶ 162–64.
The Jefferson County defendants assert three arguments for dismissal.
First
, they argue
plaintiff has not alleged a constitutional violation.
Second
, they contend neither Sheriff Herrig
nor Jefferson County are amenable to suit.
Third
, they argue plaintiff has failed to satisfy the
municipal liability standard set forth in
Monell v. Department of Social Services of City of New
York
,
a. Constitutional Violation
First
, the Jefferson County defendants argue plaintiff’s claims asserting liability against
Jefferson County or Sheriff Herrig in his official capacity must fail because plaintiff has not
pleaded adequately any constitutional violation by the individual Jefferson County defendant
officers and, without an underlying violation by an officer, no municipality liability can exist.
Doc. 145 at 47; Doc. 152 at 16. A municipality “may not be held liable where there was no
underlying constitutional violation by any of its officers.”
Donahue v. Wihongi
,
b. Capacity to be Sued Second , the Jefferson County defendants argue plaintiff cannot sue Jefferson County for the acts and omissions of law enforcement officers or policies of the Sheriff’s Department because Jefferson County does not have the authority to set policy for, or direct the operations of, the Sheriff’s Department. Doc. 145 at 48. Instead, under Kansas law, Sheriff Herrig has sole responsibility for such matters. Id. So, they contend, Sheriff Herrig’s actions cannot constitute the “municipality’s own policy” and thus cannot state a claim against Jefferson County. Id. And, they contend, neither can any claims lie against Sheriff Herrig in his official capacity because he is a state actor entitled to Eleventh Amendment immunity. at 48–49.
It is true that “under Kansas law, the sheriff is an elected official tasked with the hiring,
firing, and supervision of sheriff deputies,” and our court thus has concluded, “a board of county
commissioners lacks the authority to supervise or train sheriff deputies, and the conduct of the
sheriff and his subordinates cannot be attributed to the county commissioners.”
Humes v.
Cummings
, No. 18-2123-DDC-GEB,
In Couser , the Circuit considered whether a Kansas sheriff, when performing law enforcement functions, is a state official entitled to Eleventh Amendment immunity or a county official to whom Eleventh Amendment immunity does not apply when sued for damages in his official capacity under § 1983. Id. at 1021. In this case, plaintiff sued the sheriffs of two Kansas counties in their official capacities, seeking to impose municipal liability based on their policies and practices of failing adequately to train and supervise their officers. Id. Plaintiff also named the sheriffs’ offices and the county entities as defendants, along with the individual officers involved in the traffic chase that ended in a shooting and lead to the § 1983 suit. Id. The district court concluded the sheriffs were not entitled to Eleventh Amendment immunity because they act as arms of the county and not as arms of the state when performing local law enforcement activities. Id. at 1022. But, the district court still granted one sheriff’s motion to dismiss because plaintiff had not stated a failure-to-train or supervise claim against him. Id. The remaining sheriff appealed the district court’s denial of Eleventh Amendment immunity. Id.
The Tenth Circuit agreed the Kansas sheriffs were not entitled to Eleventh Amendment
immunity.
Couser
,
1023. And so, if an official capacity claim against a sheriff is a suit against a county officer, the sheriff doesn’t qualify for Eleventh Amendment immunity. Id. The Circuit reviewed the framework established by Supreme Court and Tenth Circuit precedent to help determine whether a “sheriff sued in his official capacity was a state or county official for purposes of a § 1983 claim.” Id. at 1023–25. Applying that framework, the Circuit held that a Kansas sheriff “acting in his law enforcement capacity, is a county actor under Kansas law and thus not entitled to Eleventh Amendment immunity.” Id. at 1026.
First, the Circuit explained, Kansas law treats sheriffs as county officers. Couser , 959 F.3d at 1026–27. They are listed as county officers in Kansas statutes. Id. And, under the Kansas Tort Claims Act, “Kansas courts find the county liable for a sheriff’s tortious acts” under a respondeat superior liability theory. Id. at 1027. Second, Kansas sheriffs have autonomy from state oversight when they act in their law enforcement capacity. at 1028–29. For example, they operate independently from direction by the governor or attorney general and are not treated as state court employees. Id. Third, “the county funds and the board of county commissioners approves the sheriff’s budget.” Id. at 1029. It also sets and pays the sheriff’s salary and may audit a sheriff’s finances. Id. Finally, Kansas sheriffs are primarily concerned with local affairs. at 1030. They are elected at the county level and their law enforcement responsibilities generally are limited to their county. Id. In sum, all relevant factors supported a finding that Kansas sheriffs are county actors and thus not entitled to Eleventh Amendment immunity. Id. at 1030–32.
The Circuit also rejected the sheriff’s argument that he was a state actor because Kansas
statutes delegated law enforcement duties to the sheriff.
Couser
,
With the Tenth Circuit’s decision in Couser , the Jefferson County defendants’ arguments that Sheriff Herrig is entitled to Eleventh Amendment immunity for the official capacity claims against him—all briefed before Couser was decided—can no longer deliver a punch. See Doc. 145 at 48–49 (citing cases decided before and rejected by Couser ); Doc. 152 at 17–19 (same). He is a county official for the § 1983 claims asserted against him in his official capacity.
But, this conclusion just begs the next question: Who must plaintiff sue to bring his
municipal liability claim against the county based on the policies and practices of the sheriff and
his department? Sheriff Herrig in his official capacity? The Board of County Commissioners of
the County of Jefferson, Kansas? Both?
Compare Kelley v. Wright
, No. 2:19-CV-02278-JAR-
JPO,
The Jefferson County defendants argue such a claim cannot be asserted against Jefferson County (the Board of County Commissioners) because Jefferson County has no control over the Sheriff’s Department. Doc. 145 at 48–49; Doc. 152 at 16–17. This argument that plaintiff cannot sue Jefferson County to hold the county liable for the sheriff’s policies is tied implicitly to their argument that a sheriff acts on behalf of the state, which the court now has rejected. Plaintiff, on the other hand, argues his claims are against the county and he must name Jefferson County as a matter of Kansas statutory law. Doc. 151 at 39–40; see also id. at 41 (noting the suit against Sheriff Herrig “in his official capacity is the same as a suit against the Jefferson County Sheriff’s Department (with the Board of County Commissioner[s] as the named defendant . . . .)”). The parties’ briefs don’t address whether—in the event a sheriff is considered a county actor as the court has concluded here—a plaintiff should name both the sheriff in his official capacity and the board of county commissioners in a suit seeking to hold the county liable for the sheriff’s policies.
As explained below, the court agrees with plaintiff that he must name Jefferson County for his suit against the county. So, the court denies defendants’ motion to dismiss the claim against Jefferson County based on this second argument. And, because the court has rejected defendants’ Eleventh Amendment immunity argument for the official capacity claims against Sheriff Herrig and defendants did not present any other arguments about his capacity to be sued as a representative of the county, the court also rejects defendants’ second argument on the official capacity claims against Sheriff Herrig.
As noted above, official capacity claims are deemed to be claims against the entity the
official represents.
See Couser
,
This Kansas statute also permits county officers
to sue
“in their name of office for the
benefit of the county.” Kan. Stat. Ann. § 19-105. But, this provision is silent whether a county
officer—like a sheriff—may
be sued
in his name of office as a representative of the county.
See
id.
This silence is a little puzzling because Kansas law explicitly provides the sheriff is an
independently elected official “responsible . . . for the default or misconduct of the undersheriff
and deputies.” Kan. Stat. Ann. §§ 19-801a; 19-805(a);
see also Wilson
,
Consider
Lee v. Wyandotte County, Kansas
,
In short, the direction given by the Kansas statute, i.e. , sue the board of county commissioners in all proceedings against the county, indicates a suit against the county must name the board of county commissioners. But, Kansas law also provides a sheriff has independent authority over his department and is not subject to oversight from the board of county commissioners. So, a suit against a sheriff in his official capacity as a county officer arguably is another way to assert a claim against the county. [30] For example, the claims in Couser were directed at the sheriff in his official capacity, and the Circuit affirmed the claims against him should not be dismissed, at least not based on Eleventh Amendment immunity. The Circuit never considered the question about how properly to sue a Kansas county where the sheriff’s department’s policies are challenged, but the board of county commissioners doesn’t control the sheriff’s department.
While the
Couser
case was pending before the district court, before the appeal, the
Couser
defendants had moved to dismiss all claims against McPherson County, Harvey County,
and the Sheriff’s Offices of each county, arguing these entities could not be sued under Kansas
law.
Estate of Holmes v. Somers
,
Here, because the Jefferson County defendants move the court to dismiss the claims against Sheriff Herrig in his official capacity based solely on Eleventh Amendment immunity, the court denies defendants’ motion on this ground. And, the court denies the motion to dismiss the claims against Jefferson County because Kan. Stat. Ann. § 19-105 directs a plaintiff to sue the Board of County Commissioners of the county, “[i]n all suits or proceedings by or against a county.” Kan. Stat. Ann. § 19-105 (emphasis added). The court does not have the benefit of hearing the parties’ arguments on the question who should be named for a suit against the municipality where a sheriff is a county officer with authority independent from the board. The court thus declines, for now, to decide whether, after Couser , a plaintiff should name a single defendant for the municipal liability claim, instead of both Jefferson County and Sheriff Herrig in his official capacity. The court does not dismiss the municipal liability claim based on defendants’ arguments about who possesses the capacity to be sued on this claim.
c. Municipal Liability under Monell Finally, the Jefferson County defendants argue plaintiff has not alleged sufficient facts to support a municipal liability claim under § 1983. Count VII alleges Jefferson County and Sheriff Herrig in his official capacity “are themselves liable for the violation of [p]laintiff’s constitutional rights” because “[p]laintiff’s injuries were caused by the polices, practices, and customs of the Jefferson County Sheriff’s Department . . . .” Doc. 141 at ¶¶ 159–160.
In
Monell v. Department of Social Services of City of New York
,
To state a municipal liability claim, plaintiff must allege: “(1) the existence of a
municipal policy or custom by which the plaintiff was denied a constitutional right and (2) the
policy or custom was the moving force behind the constitutional deprivation.”
Crittenden v. City
of Tahlequah
,
The Tenth Circuit has recognized five ways that an action can qualify as a policy or custom:
A municipal policy or custom may take the form of (1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that . . . is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions—and the basis for them— of subordinates to whom authority was delegated subject to these policymakers’ review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.
Crittenden
,
i. Formal Policy Statement
For the first form, the Jefferson County defendants contend plaintiff has not alleged an express municipal policy that could have caused a deprivation. Plaintiff agrees he did not allege an express policy violating his rights. Doc. 151 at 47. So, plaintiff has not pleaded municipal liability through the first form of policy identified above.
ii. Widespread Practice Amounting to Custom For the second form, plaintiff argues he has pleaded adequately a widespread practice rising to the level of a municipal policy or custom. Id. at 39–40. The Second Amended Complaint alleges that employees of the Sheriff’s Department “regularly failed to disclose exculpatory evidence to criminal defendants, fabricated false evidence implicating criminal defendants in criminal conduct, pursued wrongful convictions through profoundly flawed investigations, and otherwise violated due process in a similar manner to that alleged [in the Second Amended Complaint].” Doc. 141 at ¶ 160. Plaintiff alleges these practices were so widespread that they amounted to a policy of the Sheriff’s Department and that they “were allowed to exist because municipal policymakers with authority over the same exhibited deliberate indifference to the problem, thereby effectively ratifying it.” at ¶ 161. He also alleges the Sheriff’s Department didn’t implement sufficient training and oversight of officers who withheld evidence, fabricated evidence, and pursued wrongful convictions, so the widespread practices “were allowed to flourish.”
Defendants contend plaintiff’s allegations that the Sheriff’s Department regularly failed to disclose exculpatory evidence and fabricated false evidence to pursue wrongful convictions is conclusory and lacks any facts to support it, so the Second Amended Complaint does not allege sufficiently any widespread practices amounting to a custom or de facto policy. Doc. 145 at 50. Indeed, plaintiff provides no specific allegations of such conduct in other criminal investigations and prosecutions. His allegations describe only officers’ conduct in plaintiff’s own criminal case. Then, he provides a single assertion that the Sheriff’s Department employees “regularly” engaged in such conduct for other criminal defendants too. Doc. 141 at ¶ 160.
Plaintiff responds that he need not provide examples of other instances when the
Jefferson County defendant officers fabricated and withheld evidence to plead a widespread
practice or custom. Doc. 151 at 47. He argues that at the pleading stage he must describe only
the policy and how it caused the constitutional violations.
Id.
In support, plaintiff cites
Martinez
v. Winner
,
In Martinez , plaintiff alleged law enforcement and others conspired against him because he was a minority and was using his legal skills to promote the rights of oppressed minorities. Id. at 433. He alleged law enforcement wanted to harass him and stop his political and social activism. Id. For his municipal liability claim, he alleged that the Denver Police Department “had an official policy and plan to . . . deny rights to . . . ‘oppressed’ national minorities,” and, under that plan, the Department had issued a policy and instructions to “get” plaintiff. Id. at 443–44. Specifically, plaintiff alleged the Department kept a dossier on him and his views and associations, and that it started a “campaign to charge plaintiff and harass him and others advocating unpopular causes with unfounded prosecutions and to discourage him and others from asserting their rights.” at 444. Because of this “racial hatred” plaintiff alleged he was falsely arrested. The Circuit concluded these allegations were “clearly sufficient, as a matter of pleading, to satisfy the ‘policy’ or ‘custom’ requirement of Monell . . . .” Id.
Plaintiff argues because the Martinez plaintiff “did not name other instances where the [Department’s] racial discrimination policy was applied to other racial minorities” but only “provided details about how the plan or custom was applied to him,” plaintiff’s allegations here that the Sheriff’s Department had a custom of withholding exculpatory evidence and fabricating evidence to pursue wrongful convictions, coupled with his allegations of how they applied this policy to him, suffice to plead a municipal liability claim. Doc. 151 at 48. Defendants do not reply to plaintiff’s argument. They instead rely on plaintiff’s admission that Jefferson County does not control the Sheriff’s Department, believing this “conclusively answers the question of whether [plaintiff] has any claims against the county.” See Doc. 152 at 16–17. Apparently, defendants did not consider what would happen if the court decided the sheriff was a county official, not a state actor. The Reply merely asserts, generally, that even if Sheriff Herrig is not immune, plaintiff “has not identified what actual policies (express or de facto) or final decisions existed and caused his conviction.” Id. at 19.
Nonetheless, the court concludes that the defendants have the better end of this argument.
Martinez
was decided before the pleading standards established by
Twombly
and
Iqbal
. And,
though the court accepts the well-plead allegations in the Second Amended Complaint as true at
this stage, plaintiff’s allegation that the Sheriff’s Department had a widespread practice of
fabricating evidence and withholding exculpatory evidence is nothing but a conclusion. That’s
not enough. As the controlling case make clear, counsel’s ability to use the required words is not
substitute for pleading facts.
See Iqbal
,
In sum, plaintiff’s assertion that a widespread practice existed, while providing only
factual allegations about his own criminal prosecution does not provide enough facts to allege a
plausible “informal custom amounting to a widespread practice” of fabricating inculpatory
evidence or withholding exculpatory evidence.
Crittenden
,
The Tenth Circuit has rejected analogous conclusory allegations where a plaintiff did not
provide any facts to support an inference of a municipal policy or custom.
See Carbajal
, 808 F.
App’x at 638;
Bauer v. City & Cnty. of Denver
,
iii. Decision of or Ratification by Final Policymaker On the third and fourth options of formulating a municipal policy, defendants contend plaintiff has not alleged that a person with final policymaking authority affirmatively decided or ratified a subordinate decision and the basis for it, so plaintiff hasn’t alleged any county policy. Doc. 145 at 50–51.
The Second Amended Complaint alleges there was a municipal policy of withholding exculpatory evidence and fabricating evidence to pursue wrongful convictions through flawed investigations because “municipal policymakers with authority over” the criminal investigations allowed such practices to take place and “exhibited deliberate indifference to the problem, thereby effectively ratifying it.” Doc. 141 at ¶ 161. Also, plaintiff alleges the constitutional violations were caused by a municipal policy because they “were committed with the knowledge or approval of persons with final policy making authority . . . or were actually committed by persons with such final policymaking authority” for the county— i.e. , Sheriff Dunnaway and Undersheriff Herrig “ratified and authorized the fabrication of evidence against [plaintiff] and the withholding of exculpatory information from” him. at ¶¶ 162–64. He alleges that the Sheriff and Undersheriff’s “ratification and authorization of this misconduct . . . constituted the official policy” of the county and that they were “deliberately indifferent to the risks that these polices, practices, and customs would lead” to constitutional violations. at ¶ 165.
Defendants contend plaintiff has not alleged the third form of municipal policy at all, arguing he “does not seem to allege any particular affirmative decision by a policymaker.” Doc. 145 at 50. Defendants recognize plaintiff attempts to allege then-Sheriff Dunnaway and then- Undersheriff Herrig were final policymakers who ratified decisions. But, they contend, Mr. Herrig was not a final policymaker because the sheriff is responsible for his undersheriffs. And, they argue, plaintiff has not pleaded ratification properly because he has not alleged a particular decision by any subordinate with delegated authority or that the final policymaker ratified that decision and its basis. Defendants assert plaintiff’s general allegations that policymakers exhibited deliberate indifference or ratified the fabrication and withholding of evidence are too vague to plead a basis for municipal liability. at 51. They contend plaintiff must make more specific allegations about who did what; i.e. plaintiff must specify what authority was delegated to what subordinate, what decision the subordinate made, and how a final policymaker ratified the decision and the basis for it. Id.
Plaintiff’s Response briefly addresses defendants’ arguments, contending he has alleged a final policymaker ratified the misconduct. Doc. 151 at 47–48. He argues that he has alleged adequately “the decisions to fabricate and withhold evidence were made with the knowledge and approval of the final policymakers, Sheriff Dunnaway and/or Defendant Herrig[,]” which suffices to put Jefferson County on notice of the municipal liability claim. Id. at 48.
Who is a Final Policymaker? The court first considers who may qualify as a final policymaker. Defendants do not argue that a sheriff isn’t a final policymaker. But, they contend, an undersheriff—like Mr. Herrig was at the time of the alleged conduct—is not a final policymaker. Plaintiff never address this argument in his Response. The court agrees with defendants—here, only the sheriff is a “final policymaker” for purposes of establishing municipal liability.
“[W]hether a government employee is a [final] policy-making official is a question of
state law.”
Brammer-Hoelter v. Twin Peaks Charter Acad.
,
Kansas statutory law grants authority to the sheriff over law enforcement duties.
See
generally
Kan. Stat. Ann. §§ 19-801a–19-828. It also provides that a sheriff is an elected official
for the county and is “responsible . . . for the default or misconduct of the undersheriff and
deputies” he appoints to “carry out the duties of the office.”
See
Kan. Stat. Ann. §§ 19-801a; 19-
803; 19-805(a). The sheriff can require the undersheriff and deputies “to attend any meeting or
seminars which the sheriff determines will be beneficial to the operation of the sheriff’s office.”
at § 19-805(b). And, though the sheriff must submit a budget for approval by the board of
county commissioners and follow certain personnel policies and procedures established by the
board for county employees, a county board otherwise does not otherwise have authority over
the law enforcement policies and procedures of a sheriff’s office.
See id.
§ 19-805(c)-(d);
Humes
,
Thus, a Kansas sheriff is a final policymaker for the county on law enforcement matters.
See Seifert v. Unified Gov’t of Wyandotte Cnty./Kan. City
,
An undersheriff in Kansas, on the other hand, is appointed by the sheriff and is not
provided similar final policymaking authority by Kansas law.
Meyer
,
“Liability will be imposed on a government entity for the actions of an official who is
subject to review by other policymakers or who is limited by the policy and decisions of others
only if the final policymaker ratifies the decision of the subordinate.”
Meyer
, 518 F. Supp. 2d at
1287. “The final policymaker must not only approve the decision, but also adopt the basis for
the decision, and the ratification must be the moving force, or cause, of the alleged constitutional
violation.” ;
see also Bryson
,
Decision by a Final Policymaker
Focusing on Sheriff Dunnaway’s conduct alone, plaintiff’s allegations assert that “Sheriff
Dunnaway . . . personally knew about, participated in, facilitated, approved, and/or condoned this
pattern and practice of misconduct, or at least recklessly caused the alleged deprivations by [his]
actions or by [his] deliberately indifferent failure to act.” Doc. 141 at ¶ 16. While this allegation
alone is conclusory and, as discussed above, plaintiff has not alleged adequately a widespread
practice, plaintiff alleges other facts that can support a plausible inference that Sheriff Dunnaway
joined the conspiracy making the decisions to fabricate evidence, withhold evidence, and
maliciously prosecute plaintiff ones by a final policymaker. Thus, at the motion to dismiss stage,
plaintiff has alleged a requisite municipal policy sufficient for his claim to survive the motion to
dismiss.
See Brown
,
Specifically, plaintiff alleges Sheriff Dunnaway was present when Tom first confessed to the murder to the police and divulged details about the killing. Doc. 141 at ¶¶ 36–37. And, plaintiff asserts, Tom confessed again to Sheriff Dunnaway, Mr. Johnson, Mr. Vanderbilt, and possibly others, after the polygraph examination where Tom was coached to lie. at ¶ 59. But, as part of the conspiracy to frame plaintiff, Mr. Johnson “immediately instructed Tom to continue lying” and Tom acquiesced. Id. And, “Sheriff Dunnaway and certain [] Defendants then arrested [plaintiff], even though they knew [he] was innocent.” at ¶ 62. Plaintiff also specifically alleges that “Sheriff Dunnaway and Defendant Officers including Defendants Poppa and Woods purposefully withheld their documentation of inculpatory statements made by Tom and Defendant Hayes on the night Tom turned himself in . . . that revealed an insider’s knowledge of the murder . . . .” Id. at ¶ 71. And, Sheriff Dunnaway “purposefully withheld . . . documentation of Tom’s inculpatory statements during the November 12th polygraph examination and interview.” Id. at ¶ 73.
A reasonable inference from these allegations—and plaintiff’s allegations that all
defendants conspired to frame him—is that Sheriff Dunaway joined the conspiracy and helped
execute it. This makes plaintiff’s allegation that the decisions to fabricate and withhold evidence
constituted municipal policy plausible because Sheriff Dunnaway was the county official with
final policymaking authority over law enforcement matters.
See Brown
,
Ratification Plaintiff’s ratification argument presents a much closer call. But, at this stage, from allegations in the Second Amended Complaint, plaintiff also has alleged facts that support a plausible inference that Sheriff Dunnaway ratified the decisions of his subordinates and the basis for them.
“[A] municipality will not be found liable under a ratification theory unless a final
decisionmaker ratifies an employee’s specific unconstitutional actions, as well as the basis for
these actions.”
Bryson
,
Here, defendants contend plaintiff has not sufficiently alleged what authority was
delegated to whom, what decisions were made, or how Sheriff Dunnaway ratified the decisions.
But, plaintiff alleges various Jefferson County defendant officers participated in the plan to
frame him by fabricating inculpatory evidence and withholding exculpatory evidence. These
officers were subordinates of Sheriff Dunnaway whom he had appointed to help him “carry out
the duties of the office” and “for whose official acts” he was responsible. Kan. Stat. Ann. § 19-
805. This is not to say every decision his subordinates made was made with delegated authority
and ratified by the final policymaker simply by virtue of Sheriff Dunnaway being their
supervisor.
Cf. Brown
,
In
Brammer-Hoelter
, the Tenth Circuit determined a school administrator was not a final
policymaker, so the school
[31]
could be held liable for her actions only if the school board—the
final policymaker—had “delegated authority to [the administrator] to make decisions on these
matters, subject to the Board’s final review and approval, and the Board ratified her decisions
and the basis for them.”
Here, at the motion to dismiss phase, plaintiff has alleged that Sheriff Dunnaway was
responsible for supervising the Jefferson County defendant officers and that he himself
participated in the plan to frame plaintiff, resulting in a violation of plaintiff’s federal rights.
Sheriff Dunnaway, plaintiff alleges, knew plaintiff was innocent. A reasonable inference from
the fact plaintiff’s investigation and prosecution continued, despite the final policymaker’s
knowledge he was innocent, is that Sheriff Dunnaway ratified his subordinates’ decisions to
fabricate inculpatory evidence and withhold exculpatory evidence and the basis for these
decisions—
i.e.
, to frame plaintiff.
See Moss v. Kopp
,
Whether plaintiff can adduce evidence proving his allegation that Sheriff Dunnaway
delegated authority to other officers to make these decisions when conducting plaintiff’s criminal
investigation, then ratified his subordinates’ decisions to fabricate and withhold evidence to
frame plaintiff causing his alleged constitutional injuries is a question for summary judgment or
trial.
See Arnold
,
In sum, accepting the allegations in the Second Amended Complaint as true and drawing reasonable inferences from them, plaintiff plausibly has alleged a municipal policy formed either by a final policymaker’s decisions or a final policymaker’s ratification of subordinates’ decisions and the basis for them.
iv. Failure to Train or Supervise
Defendants did not summarize the law or address separately the fifth way to allege a
municipal policy or custom—“a failure to adequately train or supervise employees” that “results
from ‘deliberate indifference’ to the injuries that may be caused.”
See Brammer-Hoelter
, 602
F.3d at 1189 (quoting
City of Canton v. Harris
,
v. Conclusion
In conclusion, plaintiff has failed to allege municipal liability based on an express policy statement adequately. Plaintiff didn’t allege sufficiently “widespread practice” or “de facto policy” of fabricating evidence and withholding exculpatory evidence to pursue wrongful convictions, because he has alleged no facts that plausibly support such a claim. But, he has alleged sufficiently decisions made or ratified by a final policymaker. So, the court denies defendants’ request to dismiss Count VII—the municipal liability claim.
2. Count VIII—Indemnification Count VIII alleges that Kansas law requires Jefferson County (either via the Sheriff’s Department or the Board of County Commissioners) to pay any tort judgment for which its employees, acting within the scope of their employment, are found liable. Doc. 141 at ¶ 168. So, plaintiff alleges Jefferson County must pay any judgment he achieves against the Jefferson County defendant officers. at ¶¶ 169–171.
The Jefferson County defendants argue the court should dismiss this claim for two reasons. First, indemnification is a right the Jefferson County employees may invoke, it is not a right that plaintiff enjoys. Doc. 145 at 39. Second , to the extent plaintiff seeks indemnification against Sheriff Herrig in his official capacity, the Sheriff’s Department is entitled to Eleventh Amendment immunity, and thus cannot be held liable for money damages. Id. Thus, they argue, Count VIII doesn’t assert a recognizable independent cause of action and the court should dismiss it. For reasons explained above, supra Part III.E.1.b., Sheriff Herrig is not entitled to Eleventh Amendment immunity for the official capacity claims against him. So, defendants’ second dismissal argument against the indemnification claim is unpersuasive.
For defendant’s first argument, they cite an unpublished Tenth Circuit case analyzing an
Oklahoma statute.
See
Doc. 145 at 39 (citing
Lampkin v. Little
,
Defendants cite Lampkin but never address whether Kansas’s indemnification statute contains similar language or if Kansas law supports similar reasons to deny a prevailing plaintiff participation in an indemnification claim against a municipality. The court declines to dismiss plaintiff’s indemnification claim where defendants have presented no law or analysis to support a similar holding for plaintiff’s indemnification claim under Kansas law. Indeed, the Tenth Circuit has noted that Lampkin ’s holding “rested . . . primarily on specific language” in the Oklahoma statute prohibiting recovery under the right of subrogation. Jones v. Courtney , 466 F. App’x 696, 697–98 & 698 n.2 (10th Cir. 2012) (denying prevailing plaintiff’s attempt to hold the Kansas Department of Corrections liable for a judgment based on Eleventh Amendment immunity, rather than adopting the magistrate judge’s reason for dismissal which relied on Lampkin and concluded a prevailing plaintiff could not use the Kansas Tort Claims Act to recover a judgment from a non-party state entity). At this juncture, the court thus is unpersuaded by defendants’ final dismissal argument. And so, it denies defendants’ motion to dismiss the indemnification claim. [33]
IV. Conclusion
For the reasons explained above, the court grants in part and denies in part the Jefferson County defendants’ Motion to Dismiss (Doc. 144). Specifically:
The court doesn’t dismiss the § 1983 claims in Count I (due process violation for fabricating Tom’s testimonial evidence), Count III ( Brady v. Maryland due process violation for withholding exculpatory evidence and fabricating additional evidence), or Count IV (malicious prosecution) based on the Jefferson County defendants’ argument that the Second Amended Complaint fails to allege personal participation by the individual Jefferson County defendants. Nor does the court dismiss the conspiracy counts (Counts II and V) or failure to intervene count (Count VI).
The court grants defendants’ Motion to Dismiss the § 1983 claims in Counts I, III, and IV to the extent they assert claims for Fourteenth Amendment procedural due process violations because the Parratt doctrine bars those claims. Kansas law provides an adequate post- deprivation remedy—a malicious prosecution state law tort claim.
The court doesn’t dismiss the § 1983 claims in Counts I and III to the extent they assert claims for Fourteenth Amendment substantive due process violations based on the right to a fair trial. And, the court concludes plaintiff has alleged adequately facts to satisfy the elements essential to these claims.
The court doesn’t dismiss the § 1983 claims in Count IV to the extent they assert claims for a Fourth Amendment violation based on unlawful pretrial detention or a Fourteenth Amendment substantive due process violation based on a right against conscience shocking conduct that results in a substantial liberty deprivation not covered by Fourth Amendment’s protections. And, the court concludes plaintiff has alleged adequately facts to satisfy the elements essential to these claims.
The court concludes the individual Jefferson County defendants are not entitled to qualified immunity for the § 1983 claims against them at the motion to dismiss stage.
The court doesn’t dismiss the municipal liability claim (Count VII). Defendants haven’t established as a matter of law that Jefferson County and Sherriff Herrig, in his official capacity, aren’t amendable to suit. In contrast, the court is persuaded by defendants’ arguments that plaintiff has not alleged adequately municipal liability based on an express policy statement or a “widespread practice” or “de facto policy” of fabricating evidence and withholding exculpatory evidence to pursue wrongful convictions. But, plaintiff has alleged decisions made or ratified by a final policymaker that suffice to allege a municipal policy to survive defendants’ Motion to Dismiss.
The court doesn’t dismiss the indemnification claim (Count VIII). IT IS THEREFORE ORDERED BY THE COURT THAT defendants Board of County Commissioners of the County of Jefferson, Kansas; Jeffrey Herrig, in his individual and official capacity; Randy Carreno; Troy Frost; and Robert Poppa’s Motion to Dismiss Second Amended Complaint (Doc. 144) is granted in part and denied in part.
IT IS SO ORDERED.
Dated this 18th day of November, 2020, at Kansas City, Kansas.
s/ Daniel D. Crabtree______ Daniel D. Crabtree United States District Judge
Notes
[1] The court previously denied defendant Hayes’s Motion to Dismiss plaintiff’s First Amended Complaint under Fed. R. Civ. P. 12(b)(6). Doc. 114.
[2] Roy Dunnaway was named as a defendant in plaintiff’s First Amended Complaint but passed away on February 24, 2017. Plaintiff thus has removed him as a defendant in his Second Amended Complaint as instructed by the court. See Doc. 140 at n.1.
[3] Defendant Poppa is one of the Jefferson County defendants who now move to dismiss.
[4] The court previously denied defendant Woods’ Motion to Dismiss plaintiff’s First Amended Complaint under Fed. R. Civ. P. 12(b)(6). Doc. 114.
[5] The court previously denied defendant Vanderbilt’s Motion to Dismiss plaintiff’s First Amended Complaint under Fed. R. Civ. P. 12(b)(6). Doc. 114. The Tenth Circuit affirmed the court’s decision that defendant Vanderbilt “does not enjoy absolute immunity from suit for allegedly fabricating evidence against [p]laintiff during the preliminary investigation of [Camille’s] murder.” Doc. 139 at 21. The Circuit declined to consider defendant Vanderbilt’s arguments that plaintiff had failed to allege “sufficient facts to demonstrate the existence of a conspiracy” because it lacked appellate jurisdiction.
[6] Defendant Carreno is one of the Jefferson County defendants who now move to dismiss.
[7] The court previously denied defendant Johnson’s Motion to Dismiss plaintiff’s First Amended Complaint under Fed. R. Civ. P. 12(b)(6). Doc. 114.
[8] Other than this quoted provision, the Second Amended Complaint refers to the victim as Camille. Zetta appears to be another name the victim went by. See Doc. 141 ¶ 58; Doc. 145 at 12 & n.2.
[9] As explained supra , notes 4 and 7, the court previously denied defendant Woods’ and defendant Johnson’s Motions to Dismiss. The court also previously denied defendant Morgan’s Motion to Dismiss plaintiff’s First Amended Complaint under Fed. R. Civ. P. 12(b)(6). Doc. 114.
[10]
[11] On the claims against Sheriff Herrig in his official capacity, the Jefferson County defendants also
assert an Eleventh Amendment immunity argument. “The defense of sovereign immunity is jurisdictional
in nature, depriving courts of subject-matter jurisdiction where applicable.”
Normandy Apartments, Ltd.
v. U.S. Dep’t of Hous. & Urban Dev.
,
[12] The Second Amended Complaint includes unknown law enforcement officers employed by the Sheriff’s Department and the KBI as part of the defined “Defendant Officers.” Doc. 141 at ¶¶ 17–19. But, for purposes of stating claims against the named officers included within the collective defined term, these defendants received sufficient notice of the allegations against them through use of the defined term. It’s reasonable to infer that plaintiff intends to include any officers from these law enforcement agencies that participated in the alleged conspiracy to frame him for Tom’s crime, but plaintiff does not yet have the benefit of discovery to determine if he should name any other officers in his lawsuit.
[13] The Second Amended Complaint doesn’t specifically list Mr. Carreno as participating in the meeting with Mr. Hayes and Mr. Vanderbilt, but the surrounding allegations support an inference that he was there or participated in a different meeting with Mr. Hayes around the same time frame. See Doc. 141 at ¶¶ 48–53.
[14] The court recognizes that this allegation refers to “[t]hese defendants” but, in context, it sufficiently is clear which defendants plaintiff is referring to as they are listed in the allegations above as the officers who were conducting this search portion of the investigation. See Doc. 141 at ¶¶ 81–82.
[15] While that this allegation refers to “[t]hese defendants,” in context it sufficiently is clear which defendants plaintiff is referring to as they are listed in the allegations above as the officers who were conducting this search portion of the investigation. See Doc. 141 at ¶¶ 81–82.
[16] This allegation refers to “[t]hese defendants” but, in context, it sufficiently is clear which defendants plaintiff is referring to as they are listed in the allegations above as the officers who were conducting this search portion of the investigation. See Doc. 141 at ¶¶ 81–82.
[17] Defendants contend plaintiff knew about the “insider information.” Doc. 145 at 42. They haven’t established that here, however, or, as discussed more in Part III.B. below, convinced the court that the information withheld from plaintiff as part of the alleged conspiracy could not have been material such that the court must dismiss the Brady claim at this stage of the case.
[18] Later, in
Daniels v. Williams
,
[19] Plaintiff focuses his arguments on Count IV specifically, and does not reference Count I or Count III directly in his Response on this point. See Doc. 151 at 25 & n.2 (mentioning only Count IV in the main text, but then referring in a footnote to defendants’ incorporation of “this same argument” for Count IV’s malicious prosecution claim and its “Fourteenth Amendment procedural due process or substantive due process” elements). The court presumes plaintiff meant to direct his response at Count I, Count III, and Count IV as those are the counts defendants mentioned in their brief. Overall, plaintiff argues generally that “[t]he Parratt doctrine does not apply to [his] due process claims,” id. at 25, and the court thus addresses the Parratt doctrine argument against all three claims cited by the parties that may invoke plaintiff’s Fourteenth Amendment due process rights—Count I, Count III, and Count IV.
[20] As will become evident below, these cases may not distinguish between a malicious prosecution at the pretrial stage and those involving convictions. But, it’s because the facts presented in the cases only arose in the pretrial context—where the Fourth Amendment provides protection for unreasonable seizures—and they never considered what constitutional rights may exist when a plaintiff is convicted by a malicious prosecution.
[21] The Supreme Court since has recognized explicitly a § 1983 malicious prosecution claim under
the Fourth Amendment for pretrial detentions without probable cause.
See Manuel v. City of Joliet, Ill.
,
[22] The Tenth Circuit described the Supreme Court’s decision in Albright as concluding “that the Fourteenth Amendment does not provide a substantive due process right to be free from prosecution without probable cause,” but leaving open “the possibility that a plaintiff could bring such a claim under the Fourth Amendment.” at 915.
[23] Here, as in Pierce , plaintiff relies on both the Fourth and Fourteenth Amendments to support his malicious prosecution claim.
[24] The Circuit noted that
Brady
“focuses on the duty to
disclose
exculpatory evidence,” and the state
had disclosed details of the first interview to Morgan. at 1309. So, Morgan’s argument was
controlled not by
Brady
but, instead, by
Arizona v. Youngblood
,
[25] In Pierce , the Circuit explained that the Fourth Amendment governs initial seizures, but “at some point after arrest, and certainly by the time of trial, [the] constitutional analysis shifts to the Due Process Clause.” Id. at 1285–86. But, because plaintiff’s Complaint raised claims under both Amendments, the Circuit determined it was “not necessary . . . to determine where [the] Fourth Amendment analysis ends
[26] Plaintiff also has obtained a Certificate of Innocence from the State of Kansas, which are granted only when a person convicted and imprisoned for a crime shows by a preponderance of evidence that he “did not commit” the crime. Kan. Stat. Ann. § 60-5004; Doc. 151-1.
[27] As a reminder, the court uses “Jefferson County” as shorthand for defendant Board of County Commissioners of the County of Jefferson, Kansas.
[28]
Compare Arnold v. City of Olathe, Kan.
,
[29] In
Couser
, the Circuit considered the Kansas Supreme Court’s language from
Nielander
to the
effect that the board of county commissioners can’t usurp the sheriff’s hiring and firing powers.
Couser
,
[30] On the other hand, one could argue the language in Kan. Stat. Ann. § 19-105 permitting county officers to sue “in their name of office for the benefit of the county,” without addressing whether a county officer may be sued in his name of office as a representative of the county, implies only the board of county commissioners should be named for a municipal liability claim.
[31] Municipal liability principles applied to the action against Twin Peaks Charter Academy because
it was a public charter school.
Brammer-Hoelter
,
[32] The Second Amended Complaint alleges the Sheriff’s Department didn’t implement sufficient
training and oversight of officers who withheld evidence, fabricated evidence, and pursued wrongful
convictions, so the widespread practices “were allowed to flourish.” Doc. 141 at ¶ 161. Plaintiff alleges
Sheriff Dunaway “personally knew about, participated in, facilitated, approved, and/or condoned this
pattern and practice of misconduct, or at least recklessly caused the alleged deprivation by [his] actions or
by [his] deliberately indifferent failure to act.”
Id.
at ¶ 16. And, plaintiff alleges, the Sheriff’s
Department didn’t have “any legitimate mechanism for oversight or punishment” of officers who engaged
in such conduct. at ¶ 161.
To establish municipal liability on this basis, plaintiff must demonstrate the sheriff, in his official
capacity, “failed to adequately train or supervise” its employees “with deliberate indifference to the harms
this failure might cause.”
Brammer-Hoelter
,
[33] Plaintiff concedes that his indemnification claim “may be premature, as there is not yet an extant judgment for Jefferson County to indemnify.” Doc. 151 at 39 n.3. Plaintiff states that he “pleads this count . . . to preserve the claim and . . . to place Jefferson County on notice of his intention to seek indemnification of any judgment he obtains in this case.” Id. But, defendants do not move for dismissal on the grounds plaintiff’s claim is premature.