United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. Bunning United States District Judge.
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.
FACTUAL AND PROCEDURAL BACKGROUND
April 13, 1987, Retha Welch's body was found at the Yacht
and Tennis Club in Newport, Kentucky. (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.
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.
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.
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
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
Standard of Review
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)).
“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
Federal § 1983 Claims
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).
§ 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)).
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. 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.
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.
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. (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
additional claim in Count Three, which alleges that
Defendants fabricated evidence against Virgil in violation of
his Fourth Amendment rights,  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
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.
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.
Count One: Due Process
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)).
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
City of Norwood and Officer Steve Daniels
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.
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).
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)).
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.
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
Individual Newport Defendants
Individual Newport Defendants seek dismissal of Count One on
the basis of qualified immunity. “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.”
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.
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.” 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.
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).
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).
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.
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,
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)).
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. ...