Opinion
Civil Action No. 3:01CV-535
March 29, 2004
MEMORANDUM OPINION
This matter is before the court on Motions for Summary Judgment by the Plaintiff and Defendants. First, Defendant Dawn Katz filed a Motion for Summary Judgment (Dkt. # 67), Plaintiff William Thomas Gregory filed a Response (Dkt. # 77), and Defendant Katz filed a Reply (Dkt. # 87). Then, Defendants City of Louisville, Louisville Division of Police, Joe Carroll, Steve Clark, John Tarter, Hope Greer, Darrell Amon, Wayne Kessinger, Jay Pierce, and Eugene Sherrard filed a Motion for Summary Judgment (Dkt. # 70), Plaintiff filed a Response (Dkt. # 96), and Defendants City of Louisville, Louisville Division of Police, Joe Carroll, Steve Clark, John Tarter, Hope Greer, Darrell Amon, Wayne Kessinger, Jay Pierce, and Eugene Sherrard filed a Reply (Dkt. # 99). Next, Defendants Luanne Thomas, Captain John Vance, Major L.E. Burgin, Lt. Col. Roy Sturgill and Billy G. Wellman filed a Motion for Summary Judgment (Dkt. # 71), Plaintiff filed a Response opposing Luanne Thomas's Motion for Summary Judgment (Dkt. # 78), and Defendant Thomas filed a Reply (Dkt. # 88). Finally, Plaintiff filed a Motion for Summary Judgment against Defendant Katz (Dkt. # 74), Defendant Katz filed her Response (Dkt. # 79), and Plaintiff filed a Reply (Dkt. # 86). For the reasons that follow, these motions are GRANTED in part and DENIED in part.
BACKGROUND
In August 1993, Plaintiff William Thomas Gregory was convicted of Rape in the First Degree, Criminal Attempt Rape in the First Degree, and two counts of Burglary in the First Degree. After Plaintiff used DNA evidence to establish his innocence in state court, his conviction was vacated on July 6, 2000 and all charges against him were dismissed on August 25, 2000. Mr. Gregory filed suit on August 24, 2001, alleging claims under 42 U.S.C. § 1983 and state law for intentional, reckless, and negligent infliction of emotional distress, outrage, false arrest, malicious prosecution, wrongful conviction, and illegal confinement. Named as defendants in this suit are the City of Louisville, Kentucky, the Louisville Division of Police, police officers Joe Carroll, Steve Clark, Hope Greer, and John Tartar, and forensic serologist Dawn Ross Katz, as well as several unknown defendants with the Louisville police department and the Kentucky State Police laboratory.According to Mr. Gregory's Complaint, his conviction stemmed from two sexual assaults that occurred in his apartment complex during the summer of 1992. The first of these assaults happened on June 1, 1992, when Ms. V., a white woman, was awakened by an unknown, nude black male intruder standing over her bed. This intruder, who wore a pair of the victim's panty hose as a mask, struggled with the victim, choked her, fondled her breasts, and attempted to rape her. Ms. V. fought off this attacker, and pulled off his pantyhose mask and scratched his face before he ran outside. Ms. V. described her assailant as a black male, 30-40 years old, 5 feet 6 inches tall, with a stocky build and long, straight oily or greasy hair. The assailant stole a television and a compact disc player from the apartment (Dkt. # 66).
Neighbors of Ms. V. saw her immediately after the attack. When the neighbors and the victim's mother, all white, were told the description of the attacker, the residents and the mother informed police that they thought this description matched that of complex resident William Gregory.
Later in the day on June 1, 1992, Ms. V. saw Mr. Gregory in the apartment complex and the police were again called to the scene. Several police officers went to Mr. Gregory's apartment, and, telling him that they were investigating an incident unrelated to Ms. V.'s assault, were allowed to search the apartment. This search revealed no evidence linking Mr. Gregory to V.'s attack, and the officers observed no marks or injuries on Mr. Gregory's face, arms or torso.
Two days later, Defendants Carroll and Clark showed a "photopack" that included Mr. Gregory's picture to Ms. V. She initially made no identification and protested that she needed to see the man who attacked her in person. When asked by the officers to pick out the person who was similar to her attacker, Ms. V. chose someone other than Mr. Gregory's. Ms. V.'s mother also looked through the photos as well, and she identified Mr. Gregory as the person who lived in the apartment complex.
Hours later, Ms. V.'s mother contacted police and told them that her daughter had seen Mr. Gregory in person and that she was now sure he was the assailant. With the assistance of Defendants Carroll and Clark, Ms. V. swore out a criminal complaint that resulted in Mr. Gregory's arrest at his place of work.
According to testimony of Defendants Carroll and Clark at Mr. Gregory's trial, following his arrest, Mr. Gregory called a friend and told her what items were stolen from Ms. V's apartment. However, Defendants denied telling Mr. Gregory about the items (Dkt. # 67). Mr. Gregory claims that Defendants Clark and Carroll told him what was stolen from the apartment.
On or about July 13, 1992, Defendant Katz, as Kentucky State Police Crime Laboratory Examiner, conducted hair comparison examinations of samples from Mr. Gregory and hair fragments found in pantyhose at the scene of the crime. Defendant Katz concluded that "Mr. Gregory's head hair standard was similar in color and microscopic characteristics with the Negroid hairs recovered from the pantyhose." (Dkt. # 67). Katz noted 5 head hairs were similar to Mr. Gregory's head hair (Id.). However, two additional head hairs were found in the mask. At least one of them was a Negroid hair.
On July 14, 1992, the Jefferson County Grand Jury indicted Mr. Gregory for the burglary and attempted rape Ms. V (Id.). These offenses were resubmitted to the grand jury on December 4, 1992 and Mr. Gregory was again indicted on these same offenses (Id.). Defendant Katz's lab report was not given to the December 4th grand jury (Id.).
The second attack occurred on July 19, 1992. During the early morning hours, Ms. S., a 71 year old white woman, was awakened by a nude black male in her apartment. This black male, who was armed with a large bread knife, forced Ms. S. to engage in sexual intercourse before leaving the residence. The Louisville Police Department sent a sexual assault kit from this incident to Defendant Katz for examination (Id.). Defendant Katz's report on the sexual assault kit did not implicate Mr. Gregory (Id.).
Ms. S. described her attacker to the police as a black male, late 20s to mid 30s, with a slender to small build, short black and curly hair, with a round, clean-shaven face. She also indicated that her assailant felt very greasy around his neck and shoulder area.
Upon learning from another police officer that William Gregory had been charged with a similar type of attack on Ms. V. in the same apartment complex a month and a half ago and that he had been out on bail at the time of Ms. S.'s attack, Defendants John Tarter and Hope Greer, both white, visited Ms. S. with a photopack display containing Mr. Gregory's picture and five others. Ms. S. was unable to make any identification from this photo display.
Undeterred by Ms. S.'s failure to identify Mr. Gregory in the photo display of Mr. Gregory and five other men, Tarter and Greer contacted Mr. Gregory's then-counsel and requested that Mr. Gregory appear in a line-up in the presence of Ms. S. Upon arriving at the police department for the requested line-up, Mr. Gregory and his attorney were informed that it would take some time to gather people with any similarity to his appearance and Mr. Gregory was asked to agree to a one-on-one show up instead. Neither Mr. Gregory nor his attorney were informed that Ms. S. had already seen his face in the photopack, but had not identified him then. Further, Tarter did not tell his supervisor or the prosecutor that Ms. S. had failed to identify Mr. Gregory in a photo display.
After the one-on-one show-up, Ms. S. told the police that Mr. Gregory was her attacker, based upon his grey eyes even though Mr. Gregory has brown eyes. Mr. Gregory was arrested immediately following Ms. S.'s identification. While Mr. Gregory was incarcerated following this second arrest, a third similar sexual assault was committed in the same vicinity on August 14, 1992.
Mr. Gregory did not match either initial description given by Ms. V. or Ms. S. He is 5 feet 11½ inches tall and had a potbelly at the time of his arrest. He had a full beard, which he had worn continually for ten years. In the summer of 1992, Mr. Gregory was 44 years of age.
On August 10, 1993, Mr. Gregory was tried for the crimes against Ms. V. and Ms. S. (Dkt. #67). Mr. Gregory was convicted on all charges on August 16, 1993 (Id.). On October 25, 1995, Katz received a request from the Innocence Project asking her to continue preserving the pantyhose hairs (Id.). Defendant Katz had preserved the hairs from the pantyhose (Id.). On March 6, 1998, Katz was authorized by the Jefferson County Commonwealth Attorney to release the head hairs for DNA testing (Id.).
STANDARD
A movant is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Facts are "material" in a summary judgment inquiry only when they could affect the case's outcome under the controlling substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Stated differently, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Id. Furthermore, an issue of material fact is "genuine" only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252.
DISCUSSION
A. Claims against Louisville Division of the Police
A police department may not be sued; the City of Louisville is the proper party to address the claims in the complaint. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994); See also Jones v. Union County, 296 F.3d 417, 421 (6th Cir. 2002). Therefore, the claims against the Louisville Division of the Police shall be dismissed.
B. Hope Greer
Ms. Greer showed Ms. S. a photo pack on July 19, 1992 and she met with Ms. S. and her son (Dkt.# 70). Also, she went to the crime scene (Id.). However, Ms. Greer did not participate in the one-on-one show-up or the Mr. Gregory's arrest (Id.). Therefore, Ms. Greer was not involved in any of Mr. Gregory's claims. The claims against Ms. Greer shall be dismissed.
C. Supervisor Liability
"Supervisory liability under § 1983 cannot be based upon a mere failure to act but must be based upon active unconstitutional behavior." Combs v. Wilkinson, 315 F.3d 548, 558 (6th Cir. 2002). Further, Mr. Gregory must show that the supervisor encouraged or condoned the actions, played more than a passive role, or showed more than a mere tacit approval of the actions. Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). Another recent 6th Circuit opinion states that a plaintiff must show more than the supervisor's negligence, recklessness, or sloppiness, but must show the supervisor's deliberate indifference to the Plaintiff's constitutional rights. Doe v. City of Roseville, 296 F.3d 431, 439-40 (6th Cir. 2002).
Supervisor liability [under § 1983] occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he [she] fails to do so. The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences.Id. at 440.
Both Mr. Gregory and Defendants Ammon, Kessinger, Pierce, and Sherrard agree that Defendants Ammon, Kessinger, Pierce, and Sherrard failed to review some of Defendants Clark, Carroll, and Tarter's work (Dkt. Nos. 96 99). The failure to review some of the work of Defendants Clark, Carroll, and Tarter was at most a failure to act or negligence, but it does not rise to the level of deliberate indifference; therefore, these defendants must be dismissed on the issue of supervisor liability.
Next, Defendant Thomas failed to review all of the work of Defendant Katz. The failure to review some of the work of Defendant Katz was at most a failure to act or negligence, but it does not rise to the level of deliberate indifference; therefore, these defendants must be dismissed on the issue of supervisor liability. Likewise, this does not constitute deliberate indifference.
Defendant Thomas did not participate in the actions of Katz. Mr. Gregory argues that Defendant Katz made some mistakes on her competency test before she was allowed to become a hair microscopist. However, Defendant Thomas and Defendant Katz reviewed those mistakes and corrected them. Most importantly, Defendant Thomas did not have knowledge of a problem with the investigatory abilities Katz before this lawsuit. None of the supervisor defendants participated in the actions of the people they supervised nor did any of the defendants have knowledge of a problem with the investigatory abilities of their subordinates before this lawsuit. Further, all of the supervisor defendants are dismissed from this lawsuit because they were not directly involved in any events that may give rise to negligent/intentional infliction of emotional distress, outrage, or malicious prosecution.
D. Eighth Amendment
The Eighth Amendment's protections do not attach until after conviction and sentencing. Graham v. Connor, 490 U.S. 386, 393 n. 6 (1989). See also Ingraham v. Wright, 430 U.S. 651, 671 n. 40 (1977). Mr. Gregory only complains of violations that occurred before his conviction and sentencing; therefore, his 8th Amendment claims must be dismissed.
E. Fabrication
1. Allegations against Clark and Carroll
A person's right to due process is violated when evidence is knowingly fabricated and a reasonable likelihood exists that the false evidence could have affected the decision of the jury. Stemmler v. Florence, 126 F.3d 856, 872 (6th Cir. 1997). Mr. Gregory alleges that Defendants Clark and Carroll fabricated notes stating that they did not tell Mr. Gregory what items were stolen from Ms. V.'s apartment and they later overheard Mr. Gregory talking to someone on the phone about the items stolen from Ms. V. apartment (Dkt. # 96). Mr. Gregory alleges that Defendants Clark and Carroll did tell him what the items were (Id.).
Defendants Clark and Carroll argue that they should receive absolute immunity because the alleged fabricated notes were the basis of their testimony at Mr. Gregory's trial (Dkt. #70). The Supreme Court has held that police officers have absolute immunity for testimony at trial. Briscoe v. LaHue, 460 U.S. 325, 345-46 (1983). In Briscoe, one set of police officers gave false testimony suggesting that the defendants had harmonized their stories before talking to the police. Id. at 327. Similarly, in this case, the police allegedly falsely testified that they did not tell Gregory what items were taken from the rape victim's apartment even though Gregory claims that they told him about the items. Further, since DNA evidence has conclusively determined that Gregory was not the rapist, Gregory would have no way of knowing what items were stolen.
Generally, defendants do not have absolute immunity for non-testimonial acts prior to giving testimony. See Spurlock v. Satterfield, 167 F.3d 995, 1001 (6th Cir. 1999). However, merely agreeing to falsify testimony or forming a conspiracy to testify falsely does not constitute non-testimonial acts. Id. at 1002-03. Similarly, in this case, filing a false report and later testifying consistently with the report is not a non-testimonial act because the testimony and the report have essentially the same content. Creating a false report is very similar to forming a conspiracy or agreeing to testify falsely. When the report is written, the author has decided to give false testimony which would be indistinguishable from actually talking to someone about falsifying his testimony. In Spurlock, the non-testimonial acts were numerous, severe, and distinct acts: the defendants coerced a witness to give false testimony, videotaped the testimony twice, and gave the witness hush money. Id. at 998-99. Those separate and distinct acts are not present in this case. Therefore, Defendants Clark and Carroll are entitled to absolute immunity on the fabricated evidence claim.
2. Allegations against Katz
Defendant Katz, who worked at the Kentucky State Police Laboratory, performed hair microscopy analysis on samples from pantyhose that Ms. V's attempted rapist wore as a mask and on standard samples from Mr. Gregory. Mr. Gregory's briefs explain the art of hair microscopy as follows:
Human hairs consist of three basic components: the medulla, a group of specialized cells running down the center of the hair shaft which may be present or absent; the cortex, a cylinder of keratinized cells surrounding the medulla; and the cuticle, an overlapping layer of flattened cells which ranges from one to ten cells in thickness. The structure of a human hair resembles a common lead pencil: the medulla corresponds to the lead, the cortex to the wood and the cuticle to the paint on the pencil shaft. When questioned human hair and known human hairs are compared microscopically, a number of significant microscopic features may be examined, including the diameters of the hair shafts and the variation in diameter along the shafts of the hairs; color and transparency of the cuticle layers and the variation of these features along the hair shafts; the colors of the cortex and the variation in color along the hair shafts; the sizes, densities and distributions of pigment granules and the variations of these features along the hair shafts; the textures of the cortical cells; the presence of "cortical fusi" and "ovoid bodies" in the cortex of the hairs; and the presence or absence of "medullas" (or visible central cores), the morphologies of the medullas and their variation along the hair shafts. Based on their microscopic features, hairs may be classified as to the population ancestry ("race") of the individual they came from. The common "racial" categories are "caucasoid," "negroid" and "mongoloid." (Dkt. #77).
Defendant Katz examined seven hairs found in the stocking mask and compared them to Mr. Gregory's hair (Dkt. #74). Defendant Katz's notes claim that she found 5 similar negroid head hairs (Id.). Defendant Katz did not document or disclose to the prosecutor that she found two dissimilar head hairs (Id.). However, she noted that Mr. Gregory's hair and the hair from the stocking mask did not contain medullas but did contain ovoid bodies (Id.). When both the Defendant and Mr. Gregory's experts looked at the hairs, they found that Mr. Gregory's hair did contain medullas (Id.). Therefore, Mr. Gregory's hair was not a match to the rapist's hair (Id.). DNA tests were performed which also found that Mr. Gregory was not the rapist (Id.). Based on the DNA evidence, Mr. Gregory's conviction for the two rapes was vacated and he was released from prison (Id.).
Mr. Gregory's expert claims that Mr. Gregory only found one additional Negroid head hair. The other head hair was a Caucasian head hair (Dkt. #78).
Defendant Katz testified at trial that the hairs in the stocking cap matched Mr. Gregory's hair sample. Therefore, Mr. Gregory is now alleging that Defendant Katz knowingly fabricated the results of the hair analysis. Defendant Katz argues that police have absolute immunity for their testimony in court. Therefore, because her testimony was based on the results of her hair analysis, she should be immune from any liability for reporting that the hair matched when it did not. In Briscoe, the Supreme Court held that a police officer who testified falsely that a fingerprint was a match had absolute immunity from damages liability based on his testimony. Briscoe, 460 U.S. at 326-27. Likewise, in this case, even if Defendant Katz did testify falsely about the hair matching, she is absolutely immune from liability.
Mr. Gregory argues that absolute immunity does not protect the defendant's non-testimonial activities prior to giving testimony. Spurlock, 167 F.3d at 1001. However, in Spurlock, the defendants completed several non-testimonial acts such as conspiring to procure a witness's false testimony, coercing the witness to give false testimony, videotaping the witness's testimony on two occasions, and giving the witness hush money. Id. at 998-999. Likewise, preparing a report on hair analysis that serves as the basis for testimony is more similar to agreeing to falsify testimony than to doing discrete non-testimonial acts such as giving hush money or videotaping the witness's false testimony. Therefore, Defendant Katz has absolute immunity for the claim that she fabricated evidence.
F. Duty to investigate
Plaintiff alleges that Defendant Tarter failed to investigate the similarities between two rapes that occurred while Mr. Gregory was incarcerated and whether descriptions of the rapist matched Mr. Gregory. "This Court recognizes that an officer does not have to investigate independently every claim of innocence. But, this axiom does not suggest that an officer has no duty to investigate an alleged crime before making an arrest." Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000). "[T]he officer must consider the totality of the circumstances, recognizing both the inculpatory and exculpatory evidence, before determining if he has probable cause to make an arrest." Id. Further, the time of the arrest is the point where the officer's knowledge of evidence should be examined to determine if probable cause exists. Klein v. Long, 275 F.3d 544, 552 (6th Cir. 2001). "Where the police have sufficient inculpatory evidence to give rise to a determination of probable cause and they do not know of any exculpatory evidence, we have held that `the failure to make a further investigation does not negate probable cause.'" Id. In this case, when Tarter arrested Mr. Gregory, he did not know of Ms. V's description of the rapist's penis as being small and the other two rapes had not occurred. Therefore, he did not have a duty to investigate these things that occurred after Mr. Gregory was arrested.
Mr. Gregory has presented evidence from an expert urologist stating that Mr. Gregory's penis is 5½ inches flaccid, which is normal size (Dkt. # 96, Exh. 24).
H. Suggestive show-up
Mr. Gregory alleges that Defendant Tarter violated his constitutional rights by using a suggestive show-up procedure (Dkt. # 96). First, Ms. S was shown a photo display containing a photograph of the Mr. Gregory (Id.). However, Ms. S was unable to identify Mr. Gregory as her rapist (Id.). Five days after the crime, Defendant Tarter asked Mr. Gregory and his attorney Mark Gaston to come to the police station so that Mr. Gregory could stand in a line-up with other men for Ms. S to identify (Id.). When Mr. Gregory and his attorney arrived at the police station, Defendant Tarter told Mr. Gregory that he could "expedite" the process if Mr. Gregory would agree to a one-on-one show-up (Id.). Defendant Tarter asked Mr. Gregory to sign a "waiver of lineup form and consent for a one-on-one identification," but he did not tell Mr. Gregory that Ms. S had already failed to identify Mr. Gregory in a photo-pak. (Id.). Also, Defendant Tarter asked the prosecutor's permission before he performed the show-up, but he did not tell the prosecutor about the prior photo display (Id.). Defendant Tarter did not tell his supervisor about the photo display either (Id.).
Generally, the term line-up is used when the witness must pick the assailant from a line of several people. A show-up is generally only one person.
Ms. S.'s description of the rapist did not fit the Mr. Gregory. Ms. S. described her attacker to the police as a black male, late 20s to mid 30s, with a slender to small build, short black and curly hair, with a round, clean-shaven face. The victim also indicated that her assailant felt very greasy around his neck and shoulder area. Mr. Gregory is 5 feet 11½ inches tall and had a potbelly at the time of his arrest. He had a full beard, which he had worn continually for ten years. In the summer of 1992, Mr. Gregory was 44 years of age.
"The Supreme Court has held that whether a defendant's due process rights are violated by the admission at trial of an unnecessarily suggestive lineup depends upon the totality of the circumstances surrounding the lineup or confrontation." Hutsell v. Sayre, 5 F.3d 996, 1005 (6th Cir. 1993).
We turn, then, to the central question, whether under the "totality of the circumstances" the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.Neil v. Biggers, 409 U.S. 188, 199-200 (1972). A suggestive show-up implicates an evidentiary interest and "does not in itself intrude upon a constitutionally protected interest." Hutsell, 5 F.3d at 1005 (quoting Manson v. Brathwaite, 432 U.S. 98, 113 (1977). "However, . . . in extraordinary circumstances, such as coercion or other police misconduct, a cause of action under § 1983 might be stated." Id.
In this case, Ms. S gave a description that did not fit Mr. Gregory, she could not identify Mr. Gregory from a photopak, and she was wrong about Mr. Gregory's eye color at the time she identified him in the show-up. Mr. Gregory alleges that Defendant Tartar deceived his supervisor, the prosecutor, and Mr. Gregory in order to stage a one-on-one show-up. Based on these facts, a reasonable jury could find that the show-up was suggestive and not reliable and an issue of police misconduct.
Defendant Tartar argues that since Mr. Gregory signed a waiver of line-up form, Mr. Gregory has waived his right to argue that the show-up was unconstitutional. Mr. Gregory counters that his waiver was not valid since he was not told that a photopak was already shown to the victim and Defendant Tartar also misled his supervisor and the prosecutor by not telling them either. To be a valid waiver, the person must intentionally relinquish a known right or privilege. Schneckloth v. Bustamonte, 412 U.S. 218, 239 (1972). The waiver must be voluntary in that it is "the product of free and deliberate choice rather than intimidation, coercion, or deception," and it must be "knowing and intelligent" in that it is made with "the awareness of both the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances . . . reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that . . . rights have been waived." Moran v. Burbine, 475 U.S. 412, 421 (1986). Mr. Gregory was told that he was coming to the station to stand in a line-up but when he got there Defendant Tartar had not prepared for the line-up and instead asked him to stand in a show-up. Mr. Gregory signed the waiver but Mr. Gregory was misled by the Defendant because Mr. Gregory was not told that the victim could not identify Mr. Gregory in a photopak. At the very least, these facts create a jury issue as whether Mr. Gregory knowingly, intelligently, or voluntarily waived his right.
I. Probable Cause and Malicious Prosecution/False Arrest
1. Clark and Carroll
Mr. Gregory claims that Defendants Clark and Carroll did not have probable cause to arrest him. "A law enforcement officer is entitled to rely on an eyewitness identification to establish adequate probable cause with which to sustain an arrest." Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999). Unless, at the time of the arrest, the officer believes that the eyewitness was lying, gave an inaccurate description, or mistaken. Id. Defendants Clark and Carroll had probable cause to arrest Mr. Gregory for Ms. V's rape because Ms. V identified Mr. Gregory and swore out a warrant for Mr. Gregory's arrest. Defendants Clark and Carroll were not involved in Ms. V's identification. Ms. V identified Mr. Gregory upon seeing him in her apartment complex parking lot.
Although the 6th Circuit has not set forth the elements for a malicious prosecution action, the 6th Circuit has stated that there must be no probable cause to justify the arrest and prosecution. Thacker v. City of Columbus, 328 F.3d 244, 259 (6th Cir. 2003). Since Defendants Clark and Carroll had probable cause to arrest Mr. Gregory, the action for malicious prosecution against them must be dismissed.
2. Tarter
Mr. Gregory claims that Defendant Tarter lacked probable cause for his arrest and continuing prosecution. Defendant Tarter arrested Mr. Gregory for the rape of Ms. S when the evidence to support probable cause was a one-on-one show-up and similarities to the rape of Ms. V. Further, Defendant Tarter testified later in front of the grand jury to secure an indictment of Mr. Gregory. "An investigator may be held liable under § 1983 for making material false statements either knowingly or in reckless disregard for the truth to establish probable cause for an arrest." Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003) (citing Ahlers, 188 F.3d at 373). "To overcome an officer's entitlement to qualified immunity, however, a plaintiff must establish: (1) a substantial showing that the defendant stated a deliberate falsehood or showed reckless disregard for the truth and (2) that the allegedly false or omitted information was material to the finding of probable cause." Vakilian v. Shaw, 335 F.3d at 517. An officer is entitled to rely on an eyewitness identification unless the officer has reason to believe that the victim was lying, gave an inaccurate description, or mistaken. Ahlers, 188 F.3d at 370.
The jury may find that Defendant Tartar had several reasons for believing Ms. S was mistaken, but he omitted material facts from his grand jury testimony showing a reckless disregard for the truth. First, Ms. S described her assailant as 25-30 years old, dark eyes, medium complexion, short, curly hair, thin build, greasy around the neck and shoulders (Dkt. #96). In contrast, Mr. Gregory was 44 years old, 5'11', brown eyes, and straightened black hair that was long on the sides and short in the back (Id.). However, the most significant discrepancy was that Mr. Gregory had a beard and mustache, which he had worn consistently for years (Id.). Ms. S described her rapist as clean-shaven (Id.). Significantly, Ms. S should have known whether the rapist was clean-shaven because he french-kissed her during the attack (Id.). Then, five days after the attack, Ms. S viewed Mr. Gregory in a one-on-one show-up (Id.). Mr. Gregory had a beard as he had for years (Id.). Defendant Tarter should have known that it was very unlikely that Mr. Gregory had grown a full beard and mustache in five days (Id.). Further, Ms. S identified Mr. Gregory only by his grey eyes when, in fact, Mr. Gregory has brown eyes (Id.). The only other evidence that Defendant Tarter had was that Mr. Gregory had been arrested for the attempted rape of Ms. V. Ms. V and Ms. S lived in the same apartment complex and both had been attacked by a naked African American man with a knife in their apartments in the early morning hours. A reasonable jury could conclude that Tarter lacked probable cause to arrest Mr. Gregory and Defendant Tarter recklessly disregarded the truth by omitting material facts from his grand jury testimony.
3. Katz
Defendant Katz argues that the malicious prosecution claim against her should be dismissed because without her analysis of the hair, probable cause still existed (Dkt. #67). Mr. Gregory argues that if Katz had properly performed the hair microscopy tests, the hair evidence would have been exculpatory and weighed against a finding of probable cause (Dkt. #77). The probable cause to arrest Mr. Gregory was based on what the officers knew at the time of the arrest. At that time probable cause to arrest Mr. Gregory was based on the eyewitness testimony of Ms. V. While the proceedings may not have continued against Mr. Gregory if the truth about the hair evidence exculpating Mr. Gregory had been known, this seems to be a question of whether there was a Brady violation not probable cause. The cause of action against Katz for malicious prosecution is dismissed.
I. Brady claims
1. Generally
The suppression of exculpatory evidence "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 v. Maryland, 373 U.S. 83, 87 (1963). "[E]vidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Zuern v. Tate, 336 F.3d 478, 484 (6th Cir. 2003) (quoting Kyles v. Whitley, 514 U.S. 419, 433-434 (1995)) (internal quotation marks omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)) (internal quotation marks omitted). "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles, 514 U.S. at 434. "The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict." Id. at 435.
In its previous opinion, this Court did not state what level of intent is necessary for a Brady violation to be actionable under § 1983. The standard for a Brady violation must be at least "knowing" because defendants have qualified immunity for all but knowing violations of constitutional rights. Malley, 475 U.S. at 341.
2. Failure to disclose the existence of a Fourth Rape
Mr. Gregory alleges that Defendant Tarter knew about the Fourth Rape but failed to disclose it to the Prosecutor (Dkt. #96). Defendant Tarter counters that Mr. Gregory has not established that Tartar knew about the rape (Dkt. #99). However, Mr. Gregory has at least raised a question of material fact about this issue by citing to Officer DeSpain's deposition testimony (Dkt. #96). Officer DeSpain testified that he discussed the case with Defendant Tarter on an ongoing basis (Dkt. #96, Exh. 38). Therefore, Defendant Tarter may have had information about the fourth rape but did not disclose it to the prosecutor.
After Mr. Gregory was in jail awaiting trial, two other people were raped with a similar modus operandi as the two rapes for which Mr. Gregory was charged (Dkt. #96). The existence of a third similar rape was disclosed at trial (Id.). Another similar rape may have been dismissed by the jurors as coincidence. However, if the fourth rape had been presented to jurors, they may have decided that someone besides the Mr. Gregory was raping women in Louisville. "Materiality under Brady presents a mixed question of law and fact." U.S. v. Phillip, 948 F.2d 241, 250 (6th Cir. 1991). Mixed questions of law and fact are for the jury to decide. U.S. v. Gaudin, 515 U.S. 506, 512 (1995). Whether the existence of the fourth rape was material is a question for the jury in this case to decide.
3. Failure to disclose the existence of a dissimilar head hairs
Mr. Gregory alleges that Defendant Katz failed to disclose that one or possibly two head hairs that she found in the stocking mask were not Mr. Gregory's hairs (Dkt. #74). In reality, all of the head hairs from the stocking mask were dissimilar from Mr. Gregory's (Id.). In this case, there is a question of whether Defendant Katz's failure to disclose one or two dissimilar head hairs is material. Therefore, this is a question for the jury. There also is an issue of whether Defendant Katz knowingly falsely reported the similarity of the five hairs. Likewise, this is a question for the jury.
4. Other Possible Brady Violations
Mr. Gregory alleges two other Brady violations (Dkt. #96). First, Mr. Gregory alleges that Defendants Clark and Carroll were under a duty to disclose that they lied about not telling the prosecutor or Mr. Gregory what items were stolen from Ms. V's apartment (Id.). Second, Defendant Tarter did not tell the prosecutor or Mr. Gregory that Ms. S identified Mr. Gregory by his grey eyes (Id.). "No Brady violation occurs, however, `where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source.'" Workman v. Bell, 178 F.3d 759, 767 (6th Cir. 1998). In this case, Mr. Gregory knew that Defendants Clark and Carroll had in fact told him the items that were stolen (Dkt. #99). In fact, Mr. Gregory testified during his trial that he had been told the items (Id.). Second, Mr. Gregory elicited the fact that Ms. S recognized Mr. Gregory by his grey eyes on cross-examination during his trial (Id.). Further, Mr. Gregory presented testimony that his eyes were in fact brown (Id.). Therefore, Mr. Gregory knew of the essential facts and took advantage of the exculpatory information for both allegations.
J. Conspiracy
In support of Mr. Gregory's claim of conspiracy, Mr. Gregory alleges that Tarter, Carroll, and Clark spoke with each other about the investigation (Dkt. #96). The 6th Circuit has stated the following regarding § 1983 conspiracy:
A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant.Spadafore v. Gardner, 330 F.3d 849 (6th Cir. 2003). Mr. Gregory agrees that Clark, Carroll, and Tarter all spoke about the case (Dkt. #99). However, no evidence has been presented that they agreed to convict Mr. Gregory even though he was innocent. Certainly, there has to be more evidence than the police officers were doing their jobs to find that they formed a conspiracy to violate Mr. Gregory's rights.
K. Municipal Liability
A city's failure to train is actionable under § 1983 when it reflects the city's deliberate indifference to the constitutional rights of its citizens. City of Canton v. Harris, 489 U.S. 378, 392 (1989). "To be actionable, a municipality's training must be inadequate to the tasks that its officers must perform, this inadequacy must be the product of deliberate indifference, and this inadequacy must have been closely related to or have actually caused the plaintiff's injury." Cherrington v. Skeeter, 344 F.3d 631, 646 (6th Cir. 2003). The 6th Circuit has given two instances where a failure to train would be actionable:
One is failure to provide adequate training in light of foreseeable consequences that could result from the lack of instruction, as would be the case, for example, if a municipality failed to instruct its officers in the use of deadly force. A second type of situation justifying a conclusion of deliberate indifference is where the city fails to act in response to repeated complaints of constitutional violations by its officers.Id. See also Brown v. Shaner, 172 F.3d 927, 931 (6th Cir. 1997). The city may be liable for a single decision if it can be shown that the city council or similar legislative body took the single action. Pembauer v. City of Cincinnati, 475 U.S. 469, 480 (1986). In this case, Defendants were trained about proper identification techniques. Further, no showing of other complaints has been made. Mr. Gregory also alleges that the City failed to properly discipline Defendant Carroll (Dkt. # 96). However, Mr. Gregory cannot show that the City was deliberately indifferent to his rights because there is no causal connection between Defendant Carroll's private domestic dispute and his alleged fabrication of evidence.
Mr. Gregory's claim is that Defendant Carroll lied during the investigations of his domestic dispute. However, Defendant Carroll was never even charged with lying. Therefore, Defendant Carroll could not be disciplined because he was not charged.
L. Negligent Infliction of Emotional Distress
Physical contact is required in "negligent infliction" cases to corroborate the plaintiff's emotional injury. Deutsch, 597 S.W.2d at 146. Consequently, the requisite contact may be "slight, trifling, or trivial." Id. However, for recovery to lie, the thing that causes the mental distress must also be the thing that comes into contact with the plaintiff. Wilhoite, 761 S.W.ed at 626; see Deutch, 597 S.W.2d at 146; Hetrick v. Willis, 439 S.W.3d 942 (Ky. 1969); Ky. Traction Terminal Co. v. Roman's Guardian, 23 S.W.2d 272, 275 (Ky. 1929). The claimed injuries were caused by the failure to provide exculpatory evidence to the prosecutor, fabrication of evidence, and suggestive line-ups, where no physical contact occurred. The alleged physical contact was Mr. Gregory's being taken into custody and being physically restrained in prison. The events causing mental injury did not create contact with the Mr. Gregory, so Mr. Gregory has failed to state a cause of action for negligent inflictions of emotional distress against the remaining defendants. Therefore, this cause of action is dismissed as to all defendants.
M. Intentional Infliction of Emotional Distress
The plaintiff must show four elements to establish intentional infliction of emotional distress: "the wrongdoer's conduct must be intentional or reckless; the conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; there must be a causal connection between the wrongdoer's conduct and the emotional distress and the distress suffered must be severe." Osborne v. Payne, 31 S.W.3d 911, 913-14 (Ky. 2000). First, the intentional or reckless element is satisfied "where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result." Craft v. Rice, 671 S.W.2d 247, 249 (Ky. 1984). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Seitz, 796 S.W.2d at 3. When other traditional torts are stated and emotional injuries are recoverable, the tort of intentional infliction of emotional distress or outrage is not actionable unless defendant's conduct was intended solely to cause extreme emotional distress. Banks v. Fritsch, 39 S.W.3d 474, 481 (Ky.Ct.App. 2001). Under Kentucky law, damages for emotional distress are recoverable in an action for malicious prosecution. See Palmore, Kentucky Instructions to Juries § 27.04 (Civil) (4th Ed. 1989). Therefore, Mr. Gregory's claim for intentional infliction of emotional distress must be dismissed as to all defendants because he has alleged malicious prosecution against them.
The tort of outrageous conduct and intentional infliction of emotional distress are the same tort with two different names in Kentucky. See Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 2-3 (Ky. 1990) (applying the same elements as above).
N. False Arrest/False Imprisonment
False arrest or imprisonment is actionable "when the arrest or imprisonment is without legal authority. Where the arrest is made under authority of a valid process, the remedy is an action for malicious prosecution." Rader v. Parks, 258 S.W.2d 728, 729 (Ky. 1953). See also, Banks v. Fritsch, 39 S.W.3d 474 (Ky.Ct.App. 2001) ("[F]alse imprisonment requires that the restraint be wrongful, improper, or without a claim of reasonable justification, authority or privilege."). Defendants Carroll and Clark arrested Mr. Gregory pursuant to a valid warrant. Therefore, Mr. Gregory has no cause of action for False Arrest/False Imprisonment against them. Defendant Tarter arrested Mr. Gregory without a warrant (Dkt. # 70). Defendant Tarter argues that he had authority under Ky. Rev. Stat. Ann. § 431.005. Under that statute, for an officer to make an arrest in a felony case, the officer must have probable cause. Ky. Rev. Stat. § 431.005(1)(c). Whether probable cause existed is a question for the jury and dependent on the outcome of the jury's findings of whether Defendant Tarter relied on a suggestive and unreliable show-up.
O. Malicious Prosecution under Kentucky Law
Mr. Gregory has brought malicious prosecution claims against Defendants Carroll, Clark, Katz, and Tarter. A plaintiff seeking to recover under Kentucky law for malicious prosecution must prove the following six elements:
1) the institution or continuation of judicial, administrative or disciplinary proceedings.
2) by, or at the behest of, the defendant,
3) the termination of such proceedings in plaintiff's favor,
4) malice in the institution of such proceeding,
5) a lack of probable cause for the proceeding, and
6) damages.
Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981). This cause of action is dismissed as to Defendants Carroll, Clark, and Katz because they did not institute proceedings against Mr. Gregory instead Ms. V instituted the action against Mr. Gregory by swearing out a warrant. Also, the proceeding was based on probable cause which had been established by Ms. V's eyewitness identification. Mr. Gregory has presented some evidence to show that Defendant Tarter proceeded with a lack of probable cause by using a show-up which may be suggestive and unreliable. This is a question for the jury. "[M]alice necessary to sustain the action may be presumed from a want of probable cause." F.S. Marshall Co. v. Brashear, 37 S.W.2d 15, 16-17 (Ky.Ct.App. 1931). See also Sweeney v. Howard, 447 S.W.2d 865 (Ky. 1969).
This Court GRANTS in part and DENIES in part the motions for summary judgment.
ORDER
Upon the Plaintiff's and the Defendant's Motions for Summary Judgment, Responses, and Replies (Dkt. Nos. 67, 70, 71, 74, 77, 78, 79, 86, 87, 88, 96, 99) and the Court being sufficiently advised,IT IS ORDERED:
Defendant's Motions for Summary Judgment are GRANTED in part and DENIED in part. Defendants City of Louisville, Louisville Division of Police, Joe Carroll, Steve Clark, Hope Greer, Luanne Thomas, Darrell Amon, Wayne Kessinger, Jay Pierce, and Eugene Sherrard are dismissed from this case. The following claims are not dismissed:
1. Claims against Defendant Katz for Brady violations arising from the hair examination and failure to disclose the results.
2. Claims against Defendant Tarter based on a suggestive line-up and for Malicious Prosecution and False Imprisonment/False Arrest under State and Federal law and for a Brady violation in failing to disclose the Fourth Rape.