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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

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TABLE OF AUTHORITIES CASES

PAGES

United States Supreme Court Albright v. Oliver, 510 U.S. 266 (1994)

9

Ashcroft v. Iqbal, 556 U.S. 662 (2009)

1,2,4,5

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)

1,2

Erickson v. Pardus, 551 U.S. 98 (2007)

4,6

Papasan v. Allain, 478 U.S. 265 (1986)

2

United States Court of Appeals for the Eighth Circuit Amrine v. Brooks, 522 F.3d 823 (8th Cir. 2008)

6,7

Clemmons v. Armontrout, 477 F.3d 962 (8th Cir. 2007)

7

Davis v. Hall, 375 F.3d 703 (8th Cir. 2004)

2

Deck v. Leftridge, 771 F.2d 1168 (8th Cir. 1985)

9,10

Hamilton v. Palm, 621 F.3d 816 (8th Cir. 2010)

1,2

Harrington v. City of Council Bluffs, Iowa, 678 F.3d 676 (8th Cir. 2012)

8,9

Joseph v. Allen, 712 F.3d 1222 (8th Cir. 2013)

8,9

Kurtz v. City of Shrewsbury, 245 F.3d 753 (8th Cir. 2001)

8,9

Reasonover v. St. Louis County, Mo., 447 F.3d 569 (8th Cir. 2006)

10,11

Wilson v. Lawrence County, 260 F.3d 946 (8th Cir. 2001)

7

Other Circuits Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009)

4,5,6

Genzler v. Longanbach, 410 F.3d 630 (9th Cir. 2005)

11,12

Kulwicki v. Dawson, 969 F.2d 1454 (3rd Cir. 1992)

11

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Missouri District Courts Schwartz v. Pridy, 874 F. Supp. 256 (E.D. Mo. 1995)

9

Vargus v. Long, 2012 WL 692972 (W.D. Mo. 2012)

2

Other District Courts Canaan Wildlife Preserve, Inc. v. Chesapeake Energy Corporation, 2014 WL 794262 (W.D. Ark. 2014)

5,6

Other Authorities 42 U.S.C. ยง 1983

1

FED. R. CIV. P. 8(a)(2)

1

FED. R. CIV. P. 12(b)(6)

1,2,8,9,11,12

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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

1

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

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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

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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.

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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-

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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.

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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,

4

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).

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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.

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(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  

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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.

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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 rwatters@bjpc.com mmaguire@bjpc.com cjuedemann@bjpc.com jpleban@bjpc.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.zellner@gmail.com 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 dbaker@fisherpatterson.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 marshallwilson@berrywilson.com michaelberry@berrywilsonlaw.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 cpr@srfblaw.com bcl@srfblaw.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 bdsimon@bwsplaw.com mlewis@bwsplaw.com ccolbert@bwsplaw.com 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 bfarmer@owwlaw.com bbuckley@owwlaw.com 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


Defendant ben white's reply suggestions in support of his motion to dismiss  
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