IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION RYAN FERGUSON, Plaintiff, vs. JOHN SHORT, et al., Defendants.
) ) ) ) ) ) ) ) )
Cause No.: 14-4062-CV-NKL JURY TRIAL DEMANDED
DEFENDANT BEN WHITE’S REPLY SUGGESTIONS IN SUPPORT OF HIS MOTION TO DISMISS COMES NOW Defendant Ben White, by and through the undersigned counsel, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and Rule 7.0 of the Local Rules of the United States District Court for the Western District of Missouri, and for his Reply Suggestions in Support of his Motion to Dismiss, states as follows: TABLE OF CONTENTS I. PRELIMINARY STATEMENT ...............................................................................................1 II. LAW AND ARGUMENT ......................................................................................................2 1. Plaintiff’s First Amended Complaint fails to state a claim against Defendant White on any pleaded theory..............................................................................................2 A. Failure to Investigate ...............................................................................................3 B. Malicious Prosecution ..............................................................................................7 C. Conspiracy ................................................................................................................9 2. Defendant White is entitled to absolute immunity, as his alleged conduct falls squarely within the prosecutorial function ............................................................11 III. CONCLUSION ...................................................................................................................12
Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 1 of 17
TABLE OF AUTHORITIES CASES
United States Supreme Court Albright v. Oliver, 510 U.S. 266 (1994)
Ashcroft v. Iqbal, 556 U.S. 662 (2009)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)
Erickson v. Pardus, 551 U.S. 98 (2007)
Papasan v. Allain, 478 U.S. 265 (1986)
United States Court of Appeals for the Eighth Circuit Amrine v. Brooks, 522 F.3d 823 (8th Cir. 2008)
Clemmons v. Armontrout, 477 F.3d 962 (8th Cir. 2007)
Davis v. Hall, 375 F.3d 703 (8th Cir. 2004)
Deck v. Leftridge, 771 F.2d 1168 (8th Cir. 1985)
Hamilton v. Palm, 621 F.3d 816 (8th Cir. 2010)
Harrington v. City of Council Bluffs, Iowa, 678 F.3d 676 (8th Cir. 2012)
Joseph v. Allen, 712 F.3d 1222 (8th Cir. 2013)
Kurtz v. City of Shrewsbury, 245 F.3d 753 (8th Cir. 2001)
Reasonover v. St. Louis County, Mo., 447 F.3d 569 (8th Cir. 2006)
Wilson v. Lawrence County, 260 F.3d 946 (8th Cir. 2001)
Other Circuits Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009)
Genzler v. Longanbach, 410 F.3d 630 (9th Cir. 2005)
Kulwicki v. Dawson, 969 F.2d 1454 (3rd Cir. 1992)
ii Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 2 of 17
Missouri District Courts Schwartz v. Pridy, 874 F. Supp. 256 (E.D. Mo. 1995)
Vargus v. Long, 2012 WL 692972 (W.D. Mo. 2012)
Other District Courts Canaan Wildlife Preserve, Inc. v. Chesapeake Energy Corporation, 2014 WL 794262 (W.D. Ark. 2014)
Other Authorities 42 U.S.C. ยง 1983
FED. R. CIV. P. 8(a)(2)
FED. R. CIV. P. 12(b)(6)
iii Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 3 of 17
I. PRELIMINARY STATEMENT In his Suggestions in Opposition to Defendant White’s Motion to Dismiss, Plaintiff argues federal notice pleading requires nothing more than placing Defendant White “on notice of the claims against him.” (ECF Doc. No. 67, p. 5) (citing FED. R. CIV. P. 8(a)(2)). This overly simplistic approach to notice pleading is precisely why the United States Supreme Court examined and clarified the standard in opinions such as Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). As the Supreme Court has consistently observed, the mere denomination of the pleading standard as ‘notice pleading’ does not throw wide the door for vague and nebulous allegations that do no more than give notice that some claim has been asserted—indeed, if that was the standard, a rote recitation of the title of the legal theory under which Plaintiff proceeded would be sufficient pleading. Rather, the pleading must “give the defendant fair notice of what the…claim is and the grounds upon which it rests.” 550 U.S. at 555 (emphasis added) (citation omitted).
Thus, while Plaintiff’s First
Amended Complaint need not make “detailed factual allegations” against Defendant White, there must be something more than bare notice of a claim against him. See id. Plaintiff’s First Amended Complaint does not meet this standard as to Defendant White and must therefore be dismissed. FED. R. CIV. P. 12(b)(6). II. LAW AND ARGUMENT 1. Plaintiff’s First Amended Complaint fails to state a claim against Defendant White on any pleaded theory. Plaintiff’s attempt to convince this Court he has sufficiently pleaded his claims against Defendant White is unavailing. As an initial matter, Plaintiff is correct that Twombly and Iqbal do not abrogate the pleading standard set forth in the Federal Rules of Civil Procedure. (ECF Doc. No. 67, p. 6) (quoting Hamilton v. Palm, 621 F.3d 816, 817 (2010)). However, in the very 1 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 4 of 17
next breath, Plaintiff acknowledges “those decisions confirmed that Rule 8(a)(2) is satisfied when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (emphasis added). Thus, while exactitude is not required, Plaintiff must make allegations of fact that would bring Defendant White’s conduct—and not simply some other defendant’s conduct—within the ambit of the constitutional violations alleged. See Iqbal, 556 U.S. 662; Twombly, 550 U.S. 544. The pleading therefore requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted); Papasan v. Allain, 478 U.S. 265, 286 (U.S. 1986) (“Although for the purposes of [a] motion to dismiss we must take all the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation.”) (citations omitted). In the instant case, Plaintiff has not demonstrated to the Court that he is “entitled to present evidence supporting his claims,” (ECF Doc. No. 67, p. 6), because his claims against Defendant White are not cognizable on the facts pleaded. To properly state each of his Section 1983 claims, Plaintiff “must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676 (emphasis added). This Plaintiff has not done. A. Failure to Investigate1
Plaintiff dismisses in a footnote Defendant White’s argument that he, as an employee of the Boone County Prosecuting Attorney’s Office, did not have a duty to investigate. (ECF Doc. No. 67, p. 3, n.2). Plaintiff claims because he alleged Defendant White participated in the investigation, this ends the inquiry, as it creates a reasonable inference Defendant White “work[ed] hand-in-hand” with the Defendant Officers, “with equal ‘duty.’” Id. There is nothing reasonable about that inference—what this Court can reasonably infer is that prosecutors across the state of Missouri would be surprised to learn they have an ‘equal duty’ as the police to investigate the crimes they prosecute. More importantly, even if true, the fact that Defendant White participated in the investigation does not automatically evidence a duty to do so. But a failure to investigate claim necessarily presupposes such a duty. See, e.g., Davis v. Hall, 375 F.3d 703, 714-16 (8th Cir. 2004) (discussing duty to investigate in context of a failure to investigate claim for prolonged incarceration); Vargas v. Long, 2012 WL 692972, *4 (W.D. Mo. 2012) (same). By logical inference, one who voluntarily undertakes investigation in the absence of any duty—like, for instance, Plaintiff’s father in the instant case—is not liable for not pursuing that investigation with the same rigor as those expressly charged with its conduct. Plaintiff has not alleged Defendant White had a duty to investigate, but only that he did investigate. (ECF
2 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 5 of 17
In responding to Defendant White’s Motion to Dismiss, Plaintiff fails to confine his arguments to the allegations he made against Defendant White, instead noting what he broadly alleged against “the defendants.” (ECF Doc. No. 67, p. 7).
While it may be “perfectly
acceptable” to attribute—in Plaintiff’s own words—“particular acts,” Id. at p. 8 (emphasis added), to all defendants named in a count, that is not what Plaintiff has done. (ECF Doc. No. 35). Rather, Plaintiff has attributed specific portions of the conduct alleged to the Defendant Officers, other portions to Defendant White, and still other portions to other defendants. Id. Thus, while Plaintiff baldly states he has set forth “allegations that plausibly suggest that the defendants coerced [his co-defendant’s] confession, ignored evidence of innocence, and systematically pressured witnesses to implicate Plaintiff in the face of contrary evidence,” (ECF Doc. No. 67, p. 7), an even cursory review of the cited paragraphs of the First Amended Complaint reveals he has not made those allegations as to Defendant White. (ECF Doc. No. 35, ¶¶ 34-52, 70-188, 240-244).2 Defendant White does not argue Plaintiff needs to identify him by
Doc. No. 35, ¶ 59). This is insufficient to state a cognizable claim for failure to investigate against Defendant White. 2 Paragraphs 34-52 relate to the Defendant Officers’ alleged failure to investigate another potential suspect. Id. Not only is Defendant White never mentioned by name in that section of the Complaint, but there is no general reference to ‘defendants’ to put Defendant White on notice that his conduct may be implicated by those allegations. See id. Rather, the section begins with the allegation that “the Defendant Officers failed to investigate the prime suspect…” and goes on to detail their conduct in that regard. Id. at ¶ 34 (emphasis added). Plaintiff chose to use the label ‘Defendant Officers’ to reference a particular subset of the named defendants not including Defendant White. Id. at ¶ 13. Those allegations cannot be reasonably read to be directed to Defendant White, especially as there is no allegation he was even involved at that stage of the investigation. (ECF Doc. No. 35). Paragraphs 70-85 are headed with the title, “The Defendant Officers feed Erickson information and details about the murder.” Id. (emphasis added). They, too, neither refer to Defendant White by name nor refer to ‘defendants’ generally, referring instead only to the Defendant Officers. Id. While Paragraphs 86-105 bear the title, “Defendants fabricate corroboration of Erickson’s statements,” the actual allegations under that heading once again refer only to the Defendant Officers. Id. The same is true of Paragraphs 106-156. Id. Paragraphs 157-160 mention only Defendant William Haws. Id. Paragraph 161 is the first paragraph cited by Plaintiff that actually mentions Defendant White. Id. It alleges Defendant White, with the Defendant Officers and Defendant Haws, “systematically suppressed evidence favorable to Plaintiff.” Id. However, following that paragraph, the various defendants’ conduct is once again separated out. Id. at ¶¶ 162-188. Of those remaining allegations, only Paragraphs 167-172 relate to Defendant White’s conduct. Id. Indeed, those paragraphs, relating to his interview of Kristopher Canada, embody the only factual allegations against Defendant White in the entirety of the First Amended Complaint. (ECF Doc. No. 35). The remainder of the allegations cited, Paragraphs 240-244, which appear in the substantive failure to investigate count of the Complaint, are legal conclusions based on the predicate factual allegations. Id. Thus, while Plaintiff claims he has alleged each
3 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 6 of 17
name in setting forth the substantive elements of his claim—but he must plead “factual content that allows the court to draw the reasonable inference” that Defendant White in particular is liable for the alleged constitutional violations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The factual allegations as to the conduct of each defendant must necessarily form the basis of the legal claims against him. Iqbal, 556 U.S. at 676. If Plaintiff had intended to allege all defendants engaged in all of the conduct alleged, he would not have needed to specifically attribute any of the conduct. But he did. (ECF Doc. No. 35). And he did so because he is required to state “factual content” to enable this Court to conclude he has a plausible claim as to each defendant. Iqbal, 556 U.S. at 678. The factual content pleaded as to Defendant White does not support the legal conclusions alleged against all defendants in Count III. Plaintiff cites Erickson v. Pardus, 551 U.S. 89 (2007), for the proposition that allegations that ‘prison officials’ refused treatment to the plaintiff was sufficient to satisfy the pleading standard of Rule 8. (ECF Doc. No. 67, p. 4). However, Pardus in no way addresses whether that pleading was sufficient to state a claim against a particular defendant-official—the issue on this Motion. 551 U.S. 89. Rather, the allegation that prison officials withheld medical treatment was one of many the Court considered in determining whether the legal claim itself was sufficiently pleaded—not whether it was sufficiently pleaded as to a particular defendant. See id. at 94.3 In the second case he cites, Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009), the court noted plaintiffs cannot simply “parrot” the language necessary to state a claim, but must provide “some specific facts to ground [their] legal claims.” Id. at 581. Plaintiff quotes Ross for the proposition of three bases for a reckless investigation claim against Defendant White, (ECF Doc. No. 67, p. 7), the only one even potentially alleged as against Defendant White was purposefully ignoring evidence of innocence. 3 One imagines the result would have been different if the complaint had named three officials and noted particular instances of two of them withholding medication. Under those circumstances, it is doubtful the mere use of the term ‘prison officials’ would obviate the requirement of pleading conduct as to the third official that demonstrated that he, too, engaged in the broader alleged legal wrong of withholding medical treatment. Regardless, Pardus did not reach the issue and is of little assistance to the Court for that reason. See id.
4 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 7 of 17
that “allegations attributing conduct to ‘the Defendants’ ‘adequately pled personal involvement,’ because the allegations specified that they were directed at all of the defendants.” (ECF Doc. No. 67, p. 4). Defendant White places the quoted language in context for this Court’s review: In this paragraph, [the plaintiff] adequately pleads personal involvement, because he specifies that he is directing this allegation at all of the defendants. He also describes unlawful conduct, because it is not lawful to prosecute someone maliciously in retaliation for that person’s exercising her constitutional rights. Nonetheless, this paragraph fails under Iqbal, because it is merely a formulaic recitation of the cause of action and nothing more. It therefore does not put the defendants on notice of what exactly they might have done to violate [the plaintiff’s] rights under the Constitution, federal law, or state law. Ross, 578 F.3d at 582 (emphasis added). Directing an allegation to all defendants is permissible, but there must be “factual content” as to each defendant supporting the constitutional violation alleged. Iqbal, 556 U.S. at 678 (citation omitted). Thus, Ross does not stand for the proposition that alleging conduct as to all defendants renders a claim proper, as Plaintiff would evidently have this Court believe. Finally, Canaan Wildlife Preserve, Inc. v. Chesapeake Energy Corporation, 2014 WL 794262 (W.D. Ark. 2014), is likewise inapposite. In Chesapeake, the court rested its decision not to dismiss on the particular facts of that case, in which the plaintiff named nine defendants, each of whom had allegedly failed to pay it royalties for natural gas production at its wells. Id. at *1. In finding the pleading sufficient, the court expressly stated, “[A]llegations referring to Defendants collectively was [sic] acceptable because ‘the complained of conduct is the same for all defendants the Plaintiff has just not alleged which leasehold interest is controlled by which Defendant and contends that they cannot do so until further discovery is completed.” Id. at *2. In other words, all of the defendants in that case engaged in the same wrongful conduct. Id. They simply carried out that conduct at different locations. Id. This is a far cry from the situation in the instant case. Defendant White’s role in the prosecution was not the same as his co-
5 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 8 of 17
defendants’ roles—each, by Plaintiff’s own admission in his pleading, engaged in different and separate conduct. (ECF Doc. No. 35). Plaintiff must establish the particular conduct of each defendant caused the constitutional deprivations he alleges. It is plain on the face of the First Amended Complaint that he cannot establish Defendant White’s conduct caused his injury. While Plaintiff quotes out of context and ignores the distinct facts of Pardus, Ross, and Canaan, he simultaneously labels Amrine v. Brooks, 522 F.3d 823 (8th Cir. 2008), one of the cases cited by Defendant White in support of his Motion, “irrelevant to the adjudication of [a] motion to dismiss.” (ECF Doc No. 67, p. 5). His assessment of Amrine is critically flawed. He argues Amrine applied the standard for assessing a motion for summary judgment, not a motion to dismiss. Id. Plaintiff has either not read Amrine closely or purposefully ignores its true import. While Amrine was decided after the defendant-officers moved for summary judgment, the Eighth Circuit was not reviewing a ruling on that motion. 522 F.3d at 834. Rather, the Court was reviewing the district court’s denial of leave to the plaintiff to amend his complaint to add a substantive due process claim for failure to investigate. Id. As such, the Eighth Circuit was considering not whether the plaintiff could establish, but whether he could plead, a claim for failure to investigate. Id. at 834-35. Thus, the summary judgment context is relevant, just not for the reason Plaintiff suggests—it is relevant because it shows the Eighth Circuit, with the benefit of the facts from a full summary judgment record, nonetheless found the plaintiff could not even plead a claim for failure to investigate. Id. The Court specifically considered the “early focus” on the plaintiff as a suspect and the defendant-officers’ failure “to follow through on investigating other leads.” Id. at 835. Nevertheless, it concluded “the facts alleged by [the plaintiff were] insufficient to make out a claim of reckless investigation.” Id.
6 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 9 of 17
Those same facts are insufficient here. The factual content of Plaintiff’s allegations against Defendant White suggest, at the very most, that he failed to follow up after his interview of Mr. Canada revealed potentially impeaching information—and to reach even that conclusion requires a very liberal reading of the allegations. (ECF Doc. No. 35, ¶¶ 167-172).4 From the facts pleaded, it is less than clear what leads Plaintiff contends Defendant White should have gleaned from the content of the interview. See id. But it is clear an allegation of failure to follow up on leads, without more, is insufficient to state an actionable claim for failure to investigate. Amrine, 522 F.3d at 835. Even in Amrine, where the plaintiff was able to advance specific, tangible leads on which the defendant-officers failed to follow up, the Court concluded the allegations were insufficient to demonstrate the officers’ conduct of the investigation was anything more than negligent. Id.; see also Clemmons v. Armontrout, 477 F.3d 962, 966 (8th Cir. 2007) (“[N]egligent failure to investigate other leads or suspects does not violate due process.”) (citing Wilson v. Lawrence County, 260 F.3d 946, 955 (8th Cir. 2001)). Amrine is on point. Plaintiff has not stated—and cannot state—a claim for failure to investigate against Defendant White. Count III of his First Amended Complaint should be dismissed. FED. R. CIV. P. 12(b)(6). B. Malicious Prosecution Plaintiff next argues not that a claim for malicious prosecution under Section 1983 is recognized under the law of the Eighth Circuit, but that it should be. (ECF Doc. No. 67, p. 10). Indeed, the best jibe Plaintiff can deliver is that Defendant White cannot state the Eighth Circuit has conclusively refused to recognize a malicious prosecution claim under Section 1983. Id. at p. 9. The problem with Plaintiff’s argument is twofold: There is no currently cognizable claim,
In its Suggestions in Opposition, Plaintiff goes so far as to admit this does not rise to the level of a Brady violation. (ECF Doc. No. 67, p. 14, n.4).
7 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 10 of 17
even under the Fourth Amendment,5 and even if there was, it was not clearly established at the time of Defendant White’s conduct, such that he is undeniably entitled to qualified immunity. Plaintiff once again attempts to evade on-point decisions of the Eighth Circuit in Kurtz v. City of Shrewsbury, 245 F.3d 753 (8th Cir. 2001), and Joseph v. Allen, 712 F.2d 1222 (8th Cir. 2013), by (unsuccessfully) distinguishing those decisions and citing other Circuits’ law. Id. at pp. 9-10. Joseph is on all fours with the instant case. In Joseph, the plaintiff alleged the defendantofficers “lacked probable cause to instigate a criminal prosecution.” Id. at 1228. This is the exact purported constitutional deprivation alleged by Plaintiff in his First Amended Complaint. (ECF Doc. No. 35, ¶ 249). In an effort to avoid acknowledging that fact, Plaintiff argues the Court in Joseph declined to recognize the claim because it concluded the defendant-officers had probable cause for the arrest. (ECF Doc. No. 67, p. 7). Plaintiff’s citation to Joseph in that regard is selfdefeating. The Eighth Circuit stated summary judgment for the defendant-officers would be proper for that reason “even if Kurtz did not preclude [the plaintiff’s] malicious prosecution claim.” Id. (citing Joseph, 712 F.3d at 1228) (emphasis added). In short, the Eighth Circuit first concluded Kurtz prohibited the claim under Section 1983, and only then determined there was an independent basis for granting summary judgment even if that was not the case. See id. Plaintiff is not arguing a cognizable claim, but for an extension of law in derogation of the Eighth Circuit’s opinion in Joseph. Not only is there no precedent to support his request, but to permit such an extension of the law as against Defendant White would be the height of inequity, as a Fourth Amendment right against malicious prosecution was not clearly established when Defendant White acted. Harrington v. City of Council Bluffs, Iowa, 678 F.3d 676, 680-81 5
Plaintiff apparently abandons wholesale his assertion that a malicious prosecution claim can arise under the Sixth or Fourteenth Amendments, as he does not address Defendant White’s argument on this point, instead arguing his ability to state a claim under the Fourth Amendment only. (ECF Doc. No. 67, pp. 5-8). Therefore, to the extent the pleading of Count IV implicates the Sixth and Fourteenth Amendments as currently pleaded, Defendant White requests dismissal of Count IV, as Plaintiff has not opposed his arguments supporting dismissal. See id.
8 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 11 of 17
(8th Cir. 2012). Although the Supreme Court noted in Albright v. Oliver, 510 U.S. 266 (1994), “the embarrassing diversity of judicial opinion on the extent to which a claim of malicious prosecution is actionable under [Section] 1983,” Id. at 270 (internal quotation marks omitted), it did nothing to resolve the issue. Id. at 275 (“We express no view as to whether petitioner’s claim would succeed under the Fourth Amendment…”) (emphasis added). Thus, just as in Harrington, even after Albright, a Fourth Amendment right against malicious prosecution was not clearly established—and that is especially true in light of subsequent cases such as Kurtz and Joseph. Defendant White is entitled to qualified immunity on this claim, and Count IV must be dismissed. FED. R. CIV. P. 12(b)(6); Schwartz v. Pridy, 874 F.Supp. 256, 258 (E.D. Mo. 1995) (finding dismissal appropriate where the factual allegations “either fail to state a claim or clearly give rise to an immunity defense”) (citations and internal quotation marks omitted) (emphasis added). C. Conspiracy As to Count V, Plaintiff’s response to Defendant White’s Motion amounts to an admission he has not specifically alleged a conspiracy involving Defendant White and an attempt to justify that omission by arguing the clandestine nature of the conspiracy prevented him from accumulating the necessary facts to allege. (ECF Doc. No. 67, p. 9). Once again, however, Plaintiff acknowledges the very case law that defeats his argument. Id. (citing Deck v. Leftridge, 771 F.2d 1168 (8th Cir. 1985)). In Deck, the Eighth Circuit held “allegations of a conspiracy must be pleaded with sufficient specificity and factual support to suggest a meeting of the minds.” 771 F.2d at 1170 (citation omitted) (emphasis added). Thus, to withstand a motion to dismiss, as Plaintiff points out, he must allege at least “some facts suggesting…a meeting of the
9 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 12 of 17
minds.” (ECF Doc. No. 67, p. 9) (citing Deck). Plaintiff has alleged no facts in this regard. (ECF Doc. No. 35). Instead, he once again suggests allegations of misconduct by other defendants somehow provide that factual basis. Id. This is an incorrect application of the law. While Plaintiff is correct that other defendants’ conduct can bind a co-conspirator, there must be some facts suggesting Defendant White did, in fact, have status as a co-conspirator before that is the case. Deck, 771 F.2d at 1170. This Court cannot draw any inferences from the other defendants’ conduct until it is satisfied it has been sufficiently pleaded, with factual support, that there was a meeting of the minds between Defendant White and those other defendants. See id.6 There is no such factual support as to Defendant White. Count V must be dismissed. FED. R. CIV. P. 12(b)(6). 2. Defendant White is entitled to absolute immunity, as his alleged conduct falls squarely within the prosecutorial function. Plaintiff argues Defendant White, in support of his claim of immunity, simply points to the fact that he was employed by the Boone County Prosecuting Attorney’s Office. (ECF Doc. No. 67, p. 11). This is inaccurate. Rather, Defendant White points to that fact along with the fact that the only conduct alleged as to him is unquestionably within the prosecutorial function. As Plaintiff concedes, “[a]n investigation by a prosecutor or his investigators can be intimately associated with the judicial process.” Id. (citing Reasonover v. St. Louis County, Mo., 6
While Plaintiff purports to offer that factual support, noting he has alleged certain of the Defendant Officers, Defendant Haws, and Defendant White all conducted interviews and learned potentially exculpatory information, he balks upon reaching the critical allegation—that none of those interviews was memorialized or its content disclosed. (ECF Doc No. 67, p. 10). Although he states that allegation was made—incidentally without citing to any paragraph of the First Amended Complaint as he does with all previous allegations, see id.—a careful review of that Complaint reveals Plaintiff nowhere alleges Defendant White withheld the contents of his interview with Mr. Canada. (ECF Doc. No. 35, ¶¶ 167-172). Such allegations do exist as to other defendants. And, indeed, those defendants are named in Count I for suppression of exculpatory evidence. Id. at ¶¶ 217-228. Tellingly, Defendant White is not. Id. While Plaintiff baldly alleges in one paragraph that Defendant White and other defendants systematically suppressed evidence favorable to him, Id. at 161, there are no factual allegations as to Defendant White to support that legal conclusion.
10 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 13 of 17
447 F.3d 569, 579 (8th Cir. 2006)). Defendant White’s interview of Mr. Canada was just such an action. In the Ninth Circuit case cited by Plaintiff, investigators were found to have engaged in police-type investigative work, despite the fact that the witness interviews at issue took place after the arrest and indictment. Genzler v. Longanbach, 410 F.3d 630, 641-42 (9th Cir. 2005). Nonetheless, the Court in that case specifically predicated its finding that the conduct was purely investigatory on the fact that the interviews took place before the probable cause hearing, before the criminal complaint was filed, and while police investigation was ongoing. Id. at 640 (citing Kulwicki v. Dawson, 969 F.2d 1454, 1465 (3rd Cir. 1992), for the proposition that filing of the complaint is relevant factor in determining whether interview is more appropriately characterized as investigatory or involving advocacy). In the instant case, the interview took place much further into the judicial process. Realizing this shortcoming, Plaintiff argues “every investigative act occurs before trial,” (ECF Doc. No. 67, p. 13) (emphasis deleted), such that his allegation that Defendant White’s interview of Mr. Canada took place “[p]rior to…trial” does not really tell this Court anything about the timing. (ECF Doc. No. 35, ¶ 167). This argument is disingenuous. While the exact timing cannot be determined from the allegation, Plaintiff cannot use his own poor pleading as a shield. That Plaintiff specifically identifies the interview was prior to his trial compels the conclusion that trial was inevitable by the point at which the interview was conducted. It was no longer theoretical—probable cause had been determined (whether rightly or wrongly), the criminal complaint had been filed, and Plaintiff was to be tried for the offense. See id. Before that trial, Defendant White conducted an interview. Id. As the Genzler Court acknowledged, “[T]here is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and
11 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 14 of 17
the detective’s role in searching for clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand.” 410 F.3d at 639 (citation omitted). That difference is determinative here. Defendant White was clearly interviewing Mr. Canada in preparation for trial, as it is clear from the face of Plaintiff’s First Amended Complaint that trial was inevitable at the time of the interview. See id. Defendant White was not gathering evidence in order to obtain probable cause. He was acting in an advocacy role in preparing for the prosecution of Plaintiff. He is entitled to absolute immunity. As the facts alleged clearly give rise to an immunity defense, Plaintiff’s First Amended Complaint must be dismissed as to Defendant White. FED. R. CIV. P. 12(b)(6). III. CONCLUSION Based on the foregoing, Plaintiff has not stated a claim against Defendant White under any of his pleaded theories in Counts III, IV, and V. Those counts must be dismissed as to Defendant White. Moreover, even if Plaintiff had otherwise stated a claim, Defendant White is entitled to absolute immunity for the conduct allegedly supporting Plaintiff’s claims against him. For that reason, too, Counts III, IV, and V must be dismissed as to Defendant White. WHEREFORE, Defendant Ben White respectfully requests this Court issue an Order granting his Motion to Dismiss and awarding such other and further relief as the Court deems just and proper under the circumstances.
12 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 15 of 17
Respectfully submitted, BROWN & JAMES, P.C. /s/ Michael B. Maguire Russell F. Watters, #25758MO Michael B. Maguire, #35036MO Cynthia M. Juedemann, #63921MO J.C. Pleban, #63166MO 800 Market Street, 11th Floor St. Louis, Missouri 63101-2501 314-421-3400 314-421-3128 – FAX firstname.lastname@example.org email@example.com firstname.lastname@example.org email@example.com Attorneys for Defendants Boone County and Ben White CERTIFICATE OF SERVICE The undersigned hereby certifies that a true copy of the foregoing was filed electronically with the Clerk of the Court to be served via operation of the Court’s electronic filing system on this 15th day of May, 2014 to: Kathleen T. Zellner Douglas H. Johnson Kathleen T. Zellner & Associates, P.C. 1901 Butterfield Road, Suite 650 Downers Grove, IL 60515 Kathleen.firstname.lastname@example.org Djohnson43@aol.com Attorneys for Plaintiff
Samuel Henderson 2015 Bredell Avenue St. Louis, MO 63143 Hendersa85@hotmail.com Co-counsel for Plaintiff
David S. Baker Fisher, Patterson, Sayler & Smith, LLP 51 Corporate Woods, Suite 300 9393 West 110th Street Overland Park, KS 66210 email@example.com Attorneys for The City of Columbia, Stephen Monticelli and Randy Boehm
Marshall V. Wilson Michael G. Berry Berry Wilson, LLC 200 East High Street, Suite 300 P.O. Box 1606 Jefferson City, MO 65102 firstname.lastname@example.org email@example.com Attorneys for Defendant William Haws
13 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 16 of 17
Christopher P. Rackers Brad C. Letterman Schreimann, Rackers, Francka & Blunt, LLC 931 Wildwood Drive, Suite 201 Jefferson City, MO 65109 firstname.lastname@example.org email@example.com Attorneys for Defendants John Short, Jeff Nichols, Jeff Westbrook, Brian Liebhart, Latisha Stroer and Lloyd Simons
B. Daniel Simon Marjorie M. Lewis R. Caleb Colbert Brown, Willbrand, Simon, Powell & Lewis PC 601 East Broadway, Suite 203 P.O. Box 1304 Columbia, MO 65205-1304 firstname.lastname@example.org email@example.com firstname.lastname@example.org Attorneys for Defendant Kevin Crane
Bruce Farmer Robert J. Buckley Oliver Walker Wilson, LLC 401 Locust, Suite 406 P.O. Box 977 Columbia, MO 65205-0977 email@example.com firstname.lastname@example.org Co-Counsel for Randy Boehm
/s/ Michael B. Maguire 11708377
14 Case 2:14-cv-04062-NKL Document 78 Filed 05/15/14 Page 17 of 17