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Conway v. Norris

United States District Court, W.D. Arkansas, Hot Springs Division

March 7, 2018



          Susan O. Hickey United States District Judge

         Plaintiff Detric Conway proceeds in this matter pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. Currently before the Court is Defendants Paul Norris and Scott Lampinen's Motion for Summary Judgment (ECF No. 51). Plaintiff filed a response. (ECF No. 59). Defendants filed a reply. (ECF No. 60). Plaintiff filed a sur reply. (ECF No. 61). The Court finds the matter ripe for consideration.

         I. BACKGROUND

         On July 13, 2010, Plaintiff was arrested and charged with the robbery of the Hometown Pharmacy in Hot Springs, Arkansas.[1] (ECF Nos. 53-1, at 1; 53-3, at 10-11). Video surveillance of the robbery showed four African-American men involved in the robbery, two of them holding handguns. (ECF Nos. 59-1, at 1; 53-3, at 33). One man, wearing a red and blue Atlanta Braves cap, yellow gloves, black pants, and a black shirt, held a handgun on the pharmacy employee, Sharay Durbin. (ECF No. 59-1, at 1). Another man, dressed in light colored pants, a black glove on his left hand and a white sock on his right hand, also held a handgun. (ECF No. 53-3, at 33).

         The man in light pants filled a dark colored square tote with medications from the pharmacy and left with the tote. (ECF No. 53-3, at 33).

         After a short foot pursuit, Plaintiff was arrested immediately after the robbery, still wearing the light-colored pants. (ECF No. 53-3, at 33-34). Near where Plaintiff was captured was the dark tote containing a portion of the medications, a white sock, and a .40 caliber handgun. (ECF No. 53-3, at 34). Testing by the Arkansas State Crime Laboratory confirmed that the sock contained DNA from Plaintiff. (ECF No. 53-3, at 36). Months after Plaintiff was arrested and charged with the robbery, the Hot Springs Police Department found a BB gun on top of a building near the escape route from the pharmacy. (ECF No. 53-3, at 39). On July 31, 2012, Plaintiff pled guilty to the robbery. (ECF No. 53-1).

         On July 5, 2010, Jacquard Clark was found dead at Bailey Place Apartments from a gunshot wound to the head. A .40 caliber shell casing was collected at the scene of the homicide. The Arkansas State Crime Laboratory determined that the shell casing came from the same .40 caliber gun seized as evidence in the Hometown Pharmacy robbery. (ECF No. 53, at 1). On October 13, 2010, Larry Thompson was interviewed by Defendants about the murder while he was incarcerated in the Pike County Detention Facility, and Thompson signed a written statement. (ECF No. 53-4). Thompson said he had known Plaintiff for most of his life. He said that about a week before Clark's murder, Plaintiff asked Thompson about “doing a job and hitting this guy” who lived at and sold marijuana at the Bailey Place Apartments. Plaintiff told Thompson that he had a key to Clark's apartment and had been there before. Thompson said he turned down the job because he did not need the money. Thompson said that Plaintiff was carrying a “short forty” at the time. Thompson further stated that a few days after the murder, he was sitting in a car in front of Plaintiff's mother's house. Thompson said that Plaintiff told him that they “hit that dude at the Bailey Place [A]partments and that he shot the dude in the face.” (ECF No. 53-4).

         On January 13, 2011, Plaintiff was charged with capital murder in connection with the death of Clark. On May 17, 2013, Plaintiff was acquitted of the capital murder charge. Plaintiff is currently incarcerated in the Yazoo City Medium Federal Correctional Facility, serving a sentence for the armed robbery of Hometown Pharmacy Plaintiff filed this lawsuit on May 30, 2015. (ECF No. 1). After preservice screening, Plaintiff's claims against three other defendants were dismissed and Plaintiff's claims against Defendants Norris and Lampinen remained for further consideration. Plaintiff alleges that Defendants violated his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment constitutional rights as a result of their actions or inactions during his capital murder case in Garland County, Arkansas, Case No. CR-2011-159-1. (ECF No. 1).

         Specifically, Plaintiff alleges that Defendant Norris, a detective with the Hot Springs Police Department, lied on the affidavit for his arrest warrant, coerced a witness to make a false statement, withheld exculpatory evidence, and attempted to have the crime lab fabricate evidence. He alleges that these actions were racially motivated, as evidenced by statements allegedly made by Defendant Norris. (ECF No. 1, at 3). Plaintiff alleges further that Defendant Lampinen, also a detective with the Hot Springs Police Department, was involved in the investigation, witnessed the racial slurs, and knew the witness was making a false statement, but did nothing. (ECF No. 1, at 5). Plaintiff also alleges that Defendant Norris retaliated against him because of his presence at his brother's separate murder trial.

         On September 6, 2016, Plaintiff filed a motion for production of the trial transcripts from his state capital murder trial. Plaintiff asserted that the transcript would support his constitutional claims against Defendants. (ECF No. 26). On September 12, 2016, the Court granted Plaintiff's request and ordered Defendants to provide a copy of the transcript to Plaintiff. (ECF No. 27). On November 8, 2016, the Court entered a second order, noting that research by the Court and Defendants indicated that Plaintiff's three-day capital murder trial had been recorded but never transcribed. On January 4, 2017, the Court entered an order stating that the Court would bear the cost of limited transcription, and directed Defendants to obtain the testimony of the following witnesses from Plaintiff's criminal trial, as requested by Plaintiff: Michael J. West, Scott Lampinen, Paul Norris, and crime lab officials Stephen Erickson, Jennifer Floyd, Mandi Wertenberger, and Mary Simonson. (ECF No. 39).

         On August 23, 2017, Defendants filed the instant Summary Judgment Motion, and Plaintiff responded. Defendants filed a reply. On December 4, 2017, Plaintiff filed a sur reply, along with a Statement of Facts. Plaintiff did not include any portion of the trial transcript with his response or sur reply. Plaintiff also filed a motion requesting leave of Court to file a sur reply and to file an amended response to the summary judgment motion. (ECF No. 63). The Court granted this motion and instructed Plaintiff to file his amended documents by December 28, 2017. (ECF No. 64).

         On January 9, 2018, the Court entered a Show Cause Order after Plaintiff failed to file the amended documents by the Court-imposed deadline. (ECF No. 65). Neither the order granting leave for the amendment nor the Show Cause Order were returned as undeliverable. Plaintiff's response to the Show Cause Order was due January 24, 2018. Plaintiff did respond to the Show Cause Order. Because Plaintiff has already filed a response and a sur reply in the case, the Court will utilize those documents as his complete response to the Summary Judgment Motion.

         II. STANDARD

         Summary judgment is appropriate if, after viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the record “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

         “Once a party moving for summary judgment has made a sufficient showing, the burden rests with the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists.” Nat'l Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir. 1999).

         The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must show there is sufficient evidence to support a jury verdict in their favor.” Nat'l Bank, 165 F.3d at 607. “A case founded on speculation or suspicion is insufficient to survive a motion for summary judgment.” Id. at 610. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).


         Defendants argue as a preliminary matter that Plaintiff's case against them should be dismissed because it is barred by the statute of limitations. (ECF No. 60). In the alternative, Defendants advance the following arguments that Plaintiff's individual capacity claims should be dismissed: (1) Defendants had probable cause to arrest Plaintiff; (2) Defendants did not lie on an affidavit for Plaintiff's arrest; (3) Plaintiff cannot show that Defendants attempted to have the crime lab fabricate evidence; (4) Plaintiff cannot show that Defendants coerced a witness to make a false statement; (5) Plaintiff's claim that Defendants failed to disclose exculpatory evidence fails because he was not convicted and the evidence in question-a BB gun-was not actually exculpatory; (6) Defendants' actions in charging Plaintiff with capital murder were not racially motivated; (7) Plaintiff's First Amendment retaliation claim must fail because Plaintiff was charged with murder before he engaged in the protected activity; (8) Plaintiff's claim against Defendant Lampinen fails because, outside of the excessive force context, there is no clearly established law regarding a duty to intervene; (9) Plaintiff did not state an Eighth Amendment claim; (10) Defendants are entitled to qualified immunity; and (11) Plaintiff cannot demonstrate that the City of Hot Springs failed to adequately train its employees. (ECF Nos. 52, 60)

         Defendants argue that Plaintiff's claims are barred by the statute of limitations based on the holding in Jones v. McLemore, 2014 Ark.App. 147. (ECF No. 60, at 1-2). In Jones, the plaintiff asserted claims of malicious prosecution, defamation, conspiracy, and violations of his civil rights under the Arkansas Civil Rights Act (“ACRA”) for an unsuccessful criminal prosecution. Jones v. McLemore, 2014 Ark.App. 147, 1. The trial court granted summary judgment on the malicious prosecution claim and found that the ACRA claims were barred by the statute of limitations. Id. at 1-2. The ACRA claims included failure to disclose exculpatory evidence, submission of false affidavits, and due process violations. Id. at 7-8. The Arkansas Court of Appeals affirmed the trial court's finding that the ACRA claims were time-barred, stating:

[W]hile the alleged acts that he relies upon to make his ACRA claims may well be encompassed within the overall tort of malicious prosecution, it is the separate acts that control the limitations period. . . . The probable-cause affidavits executed by [defendant] were prepared in 2007 and [plaintiff's] actual arrest took place in February 2008, both of which occurred more than three years before he filed his lawsuit. The actual trial and his acquittal were not necessary prerequisites to establish his ACRA claim.

Id. at 8-9.

         Defendants point to Jones and argue that Plaintiff's claims accrued and began to run, at the latest, on January 13, 2011, when he was arrested. Plaintiff argues that the alleged violations raised in this case were not revealed to him until discovery was complete in his capital murder case, and testimony was provided at trial. (ECF No. 61, at 2). Plaintiff asserts that discovery in his capital murder case was not completed until approximately two weeks before trial, or no earlier than May 2013. (ECF No. 61, at 3). Plaintiff subsequently filed this case on May 30, 2015.

         Section 1983 does not contain its own statute of limitations. Instead, causes of action under section 1983 are governed by “the most appropriate or analogous state statute of limitations.” Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987). In Arkansas, the three-year personal injury statute of limitations found in Ark. Code Ann. § 16-56-105(3) is applicable to section 1983 cases. See Miller v. Norris, 247 F.3d 736, 739 (8th Cir. 2001). The date when a section 1983 cause of action accrues “is a question of federal law that is not resolved by reference to state law.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (emphasis in original); see also Montin v. Estate of Johnson, 636 F.3d 409, 413 (8th Cir. 2011). The United States Supreme Court recently discussed accrual of a section 1983 claim for unlawful pretrial detention in violation of the Fourth Amendment, stating, “[i]n support of [the plaintiff's] position, all but two of the ten Courts of Appeals that have recognized a Fourth Amendment claim like his have incorporated a ‘favorable termination element' and so pegged the statute of limitations to the dismissal of the criminal case.” Manuel v. City of Joliet, Ill., 137 S.Ct. 911, 921 (2017).

         Defendants' reliance upon the Jones case is misplaced, and this Court declines to find that Plaintiff's claims are time-barred based on that precedent. Although the Eighth Circuit has not yet had the opportunity to address the recent Manuel case, the language used by the Supreme Court in support of the “favorable termination element” is clear.[2] Plaintiff's section 1983 claims accrued when he was acquitted of the murder charge on May 17, 2013. Plaintiff filed his case on May 30, 2015. Thus, the Court finds that his Complaint was filed well within the three-year personal injury statute of limitations set forth by Arkansas law.

         Therefore, the Court will not dismiss Plaintiff's claims as time-barred by the applicable statute of limitations. The Court will separately address Defendants' other summary judgment arguments. Because the events of the Hometown Pharmacy robbery were used to establish probable cause for the capital murder charge, the relevant undisputed events concerning the robbery and the murder will be described prior to addressing each argument.

         A. Facial Validity of the Probable Cause Affidavit

         It is well established that the Fourth Amendment prohibits citizens from being arrested without probable cause. Kuehl v. Burtis, 173 F.3d 646, 649 (8th Cir. 1999). Whether police have probable cause at the time of an arrest is a question of law for a court to decide. Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010). “[T]he probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” Smithson v. Aldrich, 235 F.3d 1058, 1062 (8th Cir. 2000).

         “Probable cause to arrest exists when, at the moment the arrest was made . . . the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964); City of Omaha, 75 F.3d 1261, 1264 (8th Cir. 1996). “Probable cause is to be assessed in terms of the circumstances confronting a reasonably cautious police officer at the time of the arrest, and the arresting officer is entitled to consider the circumstances, including arguably innocent conduct, in light of his training and experience.” Hannah v. City of Overland, Mo., 795 F.2d 1385, 1389 (8th Cir. 1986) (quoting United States v. Wallraff, 705 F.2d 980, 990 (8th Cir. 1983)); see also Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008) (stating that “any later developed facts are irrelevant to the probable cause analysis for an arrest”). Moreover, police officers are entitled to “substantial latitude in interpreting and drawing inferences from factual circumstances.” United States v. Washington, 109 F.3d 459, 465 (8th Cir. 1997). “[T]he fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner.” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012).

         The probable cause affidavit in this case states that Jacquard Clark was killed by a gunshot wound to the head at 108 Bailey Place, Apartment C-3. (ECF No. 53-2, at 1). A .40 caliber shell casing was found at the scene of the murder. The spent shell casing matched that of the .40 caliber handgun used in the Hometown Pharmacy robbery. The affidavit further states:

The surveillance video for the robbery showed a black male wearing light colored pants, a black glove on his left hand and a white sock on his right hand wielding a handgun. The video also shows this person filling a dark colored square tote and leaving with this tote. Conway was arrested immediately after the robbery and after a short foot pursuit still wearing light colored pants. Near where Conway was captured was the tote containing a portion of the medications stolen, a white sock and a .40 caliber handgun, a Glock Model 27. The white sock and the weapon were sent to the Arkansas State Crime Laboratory.
The Crime Lab reported the sock, with all scientific certainty, contained DNA from Detric Conway and the spent shell casing from the Jacquard Clark homicide scene, with all scientific ...

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