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Virgil v. City of Newport

United States District Court, E.D. Kentucky, Northern Division, Covington

January 9, 2018

WILLIAM VIRGIL PLAINTIFF
v.
CITY OF NEWPORT, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          David L. Bunning United States District Judge.

         In September 1988, a jury convicted Plaintiff William Virgil of raping and murdering Retha Welch. He was sentenced to seventy years in prison. Twenty-eight years later, Virgil was exonerated by DNA evidence. Pursuant to 42 U.S.C. § 1983, Virgil filed the instant action seeking recompense for violations of his constitutional rights, as well as various state-law torts, against three municipal governments-the City of Newport, the City of Cincinnati, and the City of Norwood-and thirteen individual officers-Steve Daniels from the Norwood Police Department; Mike Slayback, Robert Cardone, and Mike Phillips from the Cincinnati Police Department; and Marc Brandt, Norm Wagner, Pat Moore, Howard Neimeier, Sarah Desentz, Robert Bradford, Ken Page, Rick Sears, and Tom Fromme from the Newport Police Department (collectively, the “Individual Newport Defendants”). (Doc. # 1). The Court has federal-question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On April 13, 1987, Retha Welch's body was found at the Yacht and Tennis Club in Newport, Kentucky.[1] (Doc. # 52 at ¶ 22). The Newport Police Department commenced an investigation, and ten days later, on April 23, 1987, Plaintiff William Virgil was arrested for the rape and murder of Ms. Welch. Id. at ¶¶ 24, 29.

         During the course of the investigation and after his arrest, Virgil alleges that officers with the Newport Police Department failed to conduct a proper investigation and failed to disclose material exculpatory evidence regarding alternative suspects to the prosecutor. Id. at ¶¶ 54-73. Virgil also alleges that Newport police officers “conducted a joint investigation into the murder of Ms. Welch and other similar unsolved homicide[s] in the area” with police officers from Cincinnati and Norwood. Id. at ¶ 74. Although the joint investigation “develop[ed] theories of the murders and identif[ied] alternate suspects, ” including a potential serial killer, “[n]one of this information, including information related to and derived from the joint investigation for all three unsolved murders, was shared with” the prosecutor, Virgil, or his counsel. Id. at ¶¶ 76-77.

         In addition to the investigative failings and the withholding of exculpatory evidence, Virgil claims that the police-officer defendants conspired to frame him and manufactured inculpatory evidence against him. Specifically, Virgil alleges that on September 28, 1987, Newport Detective Norm Wagner coerced Joe Womack, an inmate incarcerated with Virgil at the Lebanon Correctional Institution, to become a “jailhouse snitch” and to provide a false statement that Virgil had confessed to the rape and murder of Ms. Welch. Id. at ¶¶ 31-35. In addition to threatening to charge Womack with Ms. Welch's murder, Detective Wagner allegedly promised Womack release from prison. Id. at ¶¶ 33-35. After this encounter at the Lebanon Correctional Institution, Womack was transferred to a jail in Newport, Kentucky. Id. at ¶ 37. During his incarceration in Newport, police officers from the Newport Police Department allegedly provided him with money, rehearsed his false testimony, and provided Womack with a “cheat sheet” of the murder's details to prepare for his testimony before the grand jury. Id. at ¶¶ 38-42. Womack was transported from the jail to the courthouse by Newport police officers, where he testified before the grand jury, and later, at trial. Id. at ¶¶ 43-44.

         In September 1988, a jury convicted Virgil of the rape and murder of Ms. Welch. Id. at ¶ 82. He was sentenced to seventy years in prison. Id. On December 18, 2015- approximately twenty-eight years and eight months later-after DNA testing suggested Virgil's innocence, he was released from custody and granted a new trial. Id. at ¶ 84. In 2016, the case against Virgil unraveled further-Joe Womack “revealed in a sworn declaration that his statement, testimony in front of the grand jury, and testimony at trial was false” and a “product of fabrication and coercion on the part of” Newport police officers. Id. at ¶ 46. On January 5, 2017, when the case against Virgil was re-presented to the grand jury, a no true bill of indictment was returned, and Virgil was exonerated. Id. at ¶ 85.

         On December 16, 2016, Virgil filed the instant action alleging multiple constitutional violations, as well as state-law tort claims against the Defendants. (Doc. # 1). This matter is before the Court upon three motions seeking dismissal of Virgil's Second Amended Complaint. (Docs. # 67, 70, and 75). The motions are fully briefed (Docs. # 83, 85, 86, and 88), and ripe for review. For the reasons stated herein, the City of Norwood and Officer Steve Daniels's Motion to Dismiss (Doc. # 67) is hereby granted in part and denied in part, the City of Newport's Motion to Dismiss (Doc. # 70) is hereby granted in part and denied in part, and the Individual Newport Defendants' Motion to Dismiss (Doc. # 75) is hereby granted in part and denied in part.

         II. ANALYSIS

         A. Standard of Review

         To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Put another way, “the plaintiff must allege facts that state a claim to relief that is plausible on its face and that, if accepted as true, are sufficient to raise a right to relief above the speculative level.” Wesley v. Campbell, 779 F.3d 421, 427 (6th Cir. 2015) (quoting Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 538 (6th Cir. 2012); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         Although “plaintiffs need not meet a ‘probability requirement' … they must show ‘more than a sheer possibility that a defendant has acted unlawfully.'” Wesley, 779 F.3d at 427-28 (quoting Rondigo, LLC v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir. 2011)). “In ruling on the issue, a district court must ‘construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.'” Id. at 428 (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). After all, the “defendant has the burden of showing that the plaintiff has failed to state a claim for relief.” Id.

         B. Federal § 1983 Claims

         “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged violation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); Miller v. Sanilac Cty., 606 F.3d 240, 247 (6th Cir. 2010). “If a plaintiff fails to make a showing on any essential element of a § 1983 claim, it must fail.” Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001).

         Because § 1983 “is not itself a source of any substantive rights, but instead provides the means by which rights conferred elsewhere may be enforced, ” the Court's “first task … is to identify the specific constitutional or statutory rights allegedly infringed.” Meals v. City of Memphis, 493 F.3d 720, 727-28 (6th Cir. 2007) (internal citations omitted). “That [a plaintiff] asserts claims under various constitutional provisions does not control [the Court's] inquiry.” Moldowan v. City of Warren, 578 F.3d 351, 376 (6th Cir. 2009). “Rather, the critical question is whether the ‘legal norms' underlying those claims implicate clearly established constitutional rights.” Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)).

         Virgil's Second Amended Complaint alleges that the Defendants violated his constitutional rights under the Fourth and Fourteenth Amendments when they conducted a reckless investigation, deliberately withheld exculpatory evidence, and fabricated evidence and testimony. (Doc. # 52 at ¶¶ 107-130). Specifically, Plaintiff's Second Amended Complaint asserts eight causes of action based on those alleged constitutional violations.[2] Count One alleges a violation of Virgil's constitutional right to a fair trial under the Fourteenth Amendment, based on Defendants' deliberate withholding of exculpatory evidence. Id. at ¶¶ 107-115. Count Two alleges a violation of Virgil's constitutional right to be free from unlawful prosecution and continued detention without probable cause under the Fourth Amendment, premised on Defendants' reckless investigation and deliberate withholding of exculpatory evidence. Id. at ¶¶ 116-125. And Count Three alleges a violation of Virgil's constitutional rights under the Fourth and Fourteenth Amendments, based on Defendants' fabrication of evidence. Id. at ¶¶ 126-130. Counts Four, Five, Six, Seven, and Eight seek to impose supervisor liability, indirect liability, conspiracy liability, and municipal liability for the aforementioned constitutional violations. Id. at ¶¶ 131-159.

         In their Motion to Dismiss, the Individual Newport Defendants argue that Virgil cannot pursue Counts One, Two, and Three simultaneously because they are based on the same alleged conduct and are “redundant.” (Doc. # 75 at 5). Thus, as a threshold matter, the Court must determine whether Virgil can simultaneously pursue a Fourteenth Amendment due-process claim, a Fourth Amendment malicious-prosecution claim, and a Fourth Amendment fabrication-of-evidence claim.

         In the simplest of terms, the answer is yes. In support of Counts One, Two, and Three, the Second Amended Complaint alleges that Defendants deliberately withheld exculpatory evidence and fabricated inculpatory evidence.[3] (Doc. # 52 at ¶¶ 107-130). Although those three counts allege violations of only two constitutional amendments- the Fourth and the Fourteenth-Virgil is not confined to asserting only two causes of action in his Complaint. The factual allegations based on Defendants' alleged withholding of exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), can support a Fourteenth Amendment due-process claim, as well as a Fourth Amendment malicious-prosecution claim. The Sixth Circuit has held so explicitly:

Plaintiff's Brady and continued detention claims against [the Defendant] share a factual premise. This Court disagrees with the district court, however, that this similarity restricts Plaintiff to one theory of recovery over the other. The legal constructs of Plaintiff's continued detention claim, which allege a Fourth Amendment violation, are distinct from a [Fourteenth Amendment] Brady claim, which alleges a due process violation. Plaintiff alleges both that his detention was unlawfully continued due to [the Defendant's] failure to disclose exculpatory evidence (what Plaintiff and the district court term his ‘malicious prosecution' claim) and that his right to a fair trial was abridged. The situs of the injury is distinct and therefore Plaintiff should be able to pursue both legal theories.

Gregory v. City of Louisville, 444 F.3d 725, 750 (6th Cir. 2006). The same is also true in this case. Virgil claims that by deliberately withholding exculpatory evidence, the Defendants violated his rights under both the Fourteenth Amendment (Count One) and the Fourth Amendment (Count Two). Because the situs of the alleged injuries are distinct, Virgil can pursue both legal theories presented in Counts One and Two.

         The additional claim in Count Three, which alleges that Defendants fabricated evidence against Virgil in violation of his Fourth Amendment rights, [4] does not alter the analysis. Although Counts Two and Three both allege violations of the Fourth Amendment, the alleged conduct-withholding exculpatory evidence and fabricating inculpatory evidence-supports different claims. Accordingly, the Sixth Circuit routinely discusses and analyzes those claims separately. See, e.g., Gregory, 444 F.3d at 744- 45; Caminata v. Cty. of Wexford, 664 F. App'x 496, 500 (6th Cir. 2016); Cleary v. Cty. of Macomb, 409 F. App'x 890, 898 (6th Cir. 2011). In fact, the Sixth Circuit recently held that a district court's combining of a fabrication-of-evidence claim and a withholding-evidence claim was “error.” Mills v. Barnard, 869 F.3d 473, 485 (6th Cir. 2017) (“The district court combined the fabrication claim and the withholding claim into one, but this was in error. In Gregory, this court analyzed separately claims that a forensic expert withheld evidence and that the expert had fabricated evidence. This result is sensible, as the claims have different elements, most notably, that one involves the suppression of favorable evidence and the other the manufacture of damaging evidence.”)

         Accordingly, Virgil can simultaneously pursue Counts One, Two, and Three, which allege a Fourteenth Amendment due-process claim, a Fourth Amendment malicious-prosecution claim, and a Fourth Amendment fabrication-of-evidence claim, respectively. As the Sixth Circuit has instructed, “[i]t is not the role of this Court to restrict Plaintiff's choice of viable legal theories.” Gregory, 444 F.3d at 750.

         Having identified the specific constitutional rights allegedly infringed and determined that Virgil can simultaneously pursue each of the counts in his Complaint, the Court now turns to the merits of Virgil's claims. In this case, there is no dispute that Defendants were acting under color of state law. Therefore, the only remaining question is whether Virgil was “deprived of a right secured by the Constitution or the laws of the United States.” Redding, 241 F.3d at 532. The Court will address each of Virgil's claims and the Motions to Dismiss in turn, on a party-by-party basis, construing the Complaint in the light most favorable to Virgil and accepting its allegations as true.

         1. Count One: Due Process

         “Under Brady v. Maryland, the government has a constitutional obligation to furnish a criminal defendant with any exculpatory evidence related to the defendant's guilt or possible punishment.” Robinson v. Mills, 592 F.3d 730, 735 (6th Cir. 2010) (citing Brady, 373 U.S. at 87). “[S]uppression by the prosecution of evidence favorable to an accused … violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. “A successful Brady claim requires a three-part showing: (1) that the evidence in question be favorable; (2) that the state suppressed the relevant evidence, either purposefully or inadvertently; and (3) and that the state's actions resulted in prejudice.” Robinson, 592 F.3d at 736 (citing Bell v. Bell, 512 F.3d 223, 231 (6th Cir. 2008)).

         “Although Brady imposes an absolute duty of disclosure only on prosecutors, ” the Sixth Circuit has held that “‘the due process guarantees recognized in Brady also impose an analogous or derivative obligation on the police' to disclose evidence whose ‘exculpatory value' is ‘apparent' to officers.” Army v. Collins, 488 F. App'x 957, 961-62 (6th Cir. 2012) (quoting Moldowan, 578 F.3d at 381, 388). “That duty is discharged once an officer delivers such evidence to the prosecutor's office.” Id.

         i. City of Norwood and Officer Steve Daniels

         The City of Norwood and Officer Steve Daniels seek dismissal of Count One, arguing that the Second Amended Complaint does not contain a sufficient factual basis to state a due-process claim against either Officer Daniels or the City of Norwood. (Doc. # 67 at 11-12). Specifically, the City of Norwood and Officer Daniels claim that the alleged meetings between officers from Norwood, Cincinnati, and Newport, and the subsequent withholding of exculpatory information by Officer Daniels “cannot violate an out-of-state criminal defendant's rights to due process.” Id. at 12. Thus, the City of Norwood and Officer Daniels argue that Officer Daniels “had no reason to believe Newport had not provided [the] required information to the prosecutor, and no obligation to monitor the discovery responses in a Kentucky trial.” Id.

         By contrast, Virgil claims that the factual allegations establish that “the Norwood Defendants developed suspects in the Welch homicide investigation” and then “withheld [that] material exculpatory evidence ... implicating an alternate suspect or suspects, ” which is sufficient to survive dismissal under Rule 12(b)(6). (Doc. # 83 at 8-11).

         The obligations imposed by Brady are not limitless. The Sixth Circuit has joined other circuits in “confin[ing] prosecutors' sleuthing duties to material information possessed by members of the prosecution team.” Sutton v. Carpenter, 617 F. App'x 434, 441 (6th Cir. 2015) (citing Avila v. Quarterman, 560 F.3d 299, 307-08 (5th Cir. 2009) (concluding that pathologist's exculpatory opinion could not be imputed to prosecution team because he did not play an active role in either the investigation or prosecution); Moon v. Head, 285 F.3d 1301, 1310 (11th Cir. 2002) (declining to presume Georgia prosecutor's knowledge of TBI investigation, in the absence of evidence that TBI worked with the Georgia prosecution team during the relevant investigation); United States v. Morris, 80 F.3d 1151, 1169-70 (7th Cir. 1996) (concluding that the prosecution had no obligation to inquire into exculpatory information possessed by other federal agencies when those agencies played no part in the relevant investigation or prosecution); United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (imputing only knowledge of information gathered in connection with specific office's investigation of the case); United States v. Quinn, 445 F.2d 940, 943-44 (2d Cir. 1971) (refusing to impute knowledge of any government agent to the prosecutor). Accordingly, the Sixth Circuit has “rejected Brady claims premised on evidence possessed by uninvolved government agencies.” Id. (citing Goff v. Bagley, 601 F.3d 445, 476 (6th Cir. 2010)).

         So limited, the Brady “duty extends [only] to information in the possession of the law enforcement agency investigating the offense.” Jamison v. Collins, 291 F.3d 380, 385 (6th Cir. 2002). Thus, a prosecutor has a “duty to discover ‘favorable evidence known to … others acting on the government's behalf in the case.'” Sutton, 617 F. App'x at 442 (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)). It stands to reason that police officers' Brady obligations share the same limits-that is, police officers have a duty to disclose exculpatory evidence only if they are involved in the investigation or the prosecution at issue.[5]

         Virgil alleges just that-that Officer Daniels was involved in the investigation. Specifically, the Second Amended Complaint alleges that the “Newport Defendant Officers were in frequent contact with members of the Norwood Police Department … relating to the investigation into the murder of Ms. Welch” and “conducted a joint investigation into the murder of Ms. Welch and other similar unsolved homicide[s] in the area.” (Doc. # 52 at ¶ 74). “As part of this joint investigation, ” the Complaint alleges that Officer Daniels “met [with Newport and Cincinnati officers] on a number of occasions with the purpose of developing theories of the murders and identifying alternate suspects, including their suspicion that a serial killer may have been responsible for all three murders.” Id. at ¶ 76. The Complaint further alleges that “[n]one of the information, including information related to and derived from the joint investigation for all three unsolved murders, was shared with Mr. Virgil, his counsel, or the prosecutors on his case prior to his trial.” Id. at ¶ 77. Therefore, the factual allegations contained in the Second Amended Complaint are sufficient to state a Fourteenth Amendment due-process claim against Officer Daniels and the City of Norwood.

         ii. Individual Newport Defendants[6]

         The Individual Newport Defendants seek dismissal of Count One on the basis of qualified immunity.[7] “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, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id.

         “Qualified immunity ‘gives ample room for mistaken judgments' by protecting ‘all but the plainly incompetent or those who knowingly violated the law.'” Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam)). And “[t]he 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, 555 U.S. at 231.

         There is a “two-tiered inquiry” for resolving claims of qualified immunity. Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013) (citing Austin v. Redford Twp. Police Dep't, 690 F.3d 490, 496 (6th Cir. 2012)). First, the Court must determine whether “the facts alleged make out a violation of a constitutional right.”[8] Id. If the plaintiff has shown a violation of a constitutional right, then the Court must proceed to the second step and “ask if the right at issue was ‘clearly established' when the event occurred such that a reasonable officer would have known that his conduct violated” the right. Id.

         To survive a motion to dismiss on qualified-immunity grounds, both inquiries must be resolved in the Plaintiff's favor. See Wesley, 779 F.3d at 489. The Plaintiff bears “the burden of showing that” the Defendants are “not entitled to qualified immunity.” Johnson, 790 F.3d at 653; see also Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). “At the pleading stage, this burden is carried by alleging facts plausibly making out a claim that the defendant's conduct violated a constitutional right that was clearly established law at the time, such that a reasonable officer would have known that his conduct violated that right.” Id. (citing Wesley, 779 F.3d at 428).

         “Because qualified immunity is ‘an immunity from suit rather than a mere defense to liability … it is effectively lost if a case is erroneously permitted to go to trial.'” Pearson, 555 U.S. at 231 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Accordingly, the Supreme Court has repeatedly “stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Id. at 232 (citing Hunter, 502 U.S. at 227). The Sixth Circuit, however, has clarified that only truly “insubstantial claims against government officials should be resolved … prior to broad discovery, ” Johnson, 790 F.3d at 653, and has cautioned that “it is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity.” Wesley, 779 F.3d at 433. Thus, “[a]lthough an officer's entitlement to qualified immunity is a threshold question to be resolved at the earliest possible point, that point is usually summary judgment and not dismissal under Rule 12.” Id. at 433-34 (internal citations and quotation marks omitted).

         With respect to the first prong of the qualified-immunity analysis, the Individual Newport Defendants have not argued that the facts alleged fail to make out a constitutional violation, nor could they. The Sixth Circuit has “determined that the due process guarantees recognized in Brady also impose an analogous or derivative obligation on the police” to “turn over potentially exculpatory evidence to the prosecutor's office.” Moldowan, 578 F.3d at 381. The second prong of the qualified-immunity analysis-whether the Brady obligation for police officers to disclose exculpatory evidence was “clearly established” by September 1988, the time of Virgil's trial, such that a reasonable officer would have known that his conduct violated” Virgil's Fourteenth Amendment due-process rights-poses a more difficult question.

         A constitutional right is clearly established if the “contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “‘[B]inding precedent from the Supreme Court, the Sixth Circuit, or the district court itself' can provide such clarity; persuasive authority from ‘other circuits that is directly on point' may also demonstrate that a law is clearly established.” Occupy Nashville v. Haslam, 769 F.3d 434, 443 (6th Cir. 2014) (quoting Holzemer v. City of Memphis, 621 F.3d 512, 527 (6th Cir. 2010)). “This is not to say that an official['s] action is protected by qualified immunity unless the very action in question has previously been held unlawful.” Anderson, 483 U.S. at 640. Nor must there be “a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

         Put simply, the “salient question” is “whether the state of the law” in September 1988-the time of Virgil's trial-gave Defendants “fair warning” that their alleged withholding of exculpatory evidence was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002). The Plaintiff bears "the burden of showing that a right is clearly established.” Toms v. Taft, 338 F.3d 519, 525 (6th Cir. 2003) (citing Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995)).

         In Moldowan, the Sixth Circuit held that by at least August 1990, it was clearly established that police officers had a duty to disclose exculpatory evidence. Moldowan, 578 F.3d at 382. The alleged withholding of evidence in this case occurred in September 1988, approximately two years before the constitutional violations in Moldowan. Because of that time lapse, the Individual Newport Defendants claim that a police officer's duty to disclose exculpatory evidence was not clearly established as of September 1988. ...


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