United States District Court, W.D. Arkansas, Hot Springs Division
O. Hickey United States District Judge
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
13, 2010, Plaintiff was arrested and charged with the robbery
of the Hometown Pharmacy in Hot Springs,
Arkansas. (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).
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).
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).
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).
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).
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.
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).
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).
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.
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).
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).
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
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)
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
[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.
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.
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).
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. 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.
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.
Facial Validity of the Probable Cause Affidavit
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.
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).
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