Jones v. Frost et al
ORDER denying 64 Separate Defendant Gary Dunn's Motion to Dismiss. Signed by Judge James M. Moody on 1/18/2013. (dmn)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
MARK FROST, GARY DUNN,
and JAMES BACON
Pending is Separate Defendant Gary Dunn’s motion to dismiss. (Docket # 64). Plaintiff
has filed a response and Dunn has filed a reply. For the reasons set forth below, Dunn’s motion is
Facts as alleged in the Amended Complaint
On December 15, 2005, Nona Dirksmeyer, a nineteen year old Arkansas Tech University
student, was attacked and murdered in her apartment in Russellville, Arkansas. In 2006, Plaintiff,
who had been dating Ms. Dirksmeyer at the time of her death, was charged with her murder.
Plaintiff went to trial and was acquitted. Plaintiff alleges that the Defendants violated his Fifth,
Sixth, and Fourteenth Amendment rights by conspiring to withhold evidence and falsify
information in an effort to have Plaintiff prosecuted for the murder of Ms. Dirksmeyer.1
Defendant Mark Frost was the Russellville Police Department’s lead criminal investigator
on the Dirksmeyer murder and Defendant James Bacon was the Chief of the Russellville Police
Department. Plaintiff alleges that Defendant Gary Dunn was the person who actually attacked and
murdered Dirksmeyer. Plaintiff alleges that Dunn, Frost, Bacon and the City engaged in a
conspiracy with a common purpose of protecting Dunn from prosecution in order to have Plaintiff
Plaintiff’s claims against Defendants Frost and Bacon based on the Fifth and Sixth
Amendments were dismissed by Order dated June 25, 2012 (docket entry 44).
prosecuted for the murder2.
Motions to Dismiss
Defendant Dunn argues that Plaintiff’s amended complaint should be dismissed because he
failed to state a claim on which relief can be granted and because his claims are barred by the
statute of limitations.
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 566 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The plausibility
standard requires a plaintiff to show at the pleading stage that success on the merits is more than a
“sheer possibility.” Id. It is not, however, a “probability requirement.” Id. Thus, “a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is
improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. at 556, 127
S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
Plaintiff specifically alleges that the defendants engaged in a conspiracy with a common
purpose of protecting Dunn from prosecution in order to have the Plaintiff prosecuted for the
murder. Plaintiff alleges that during the Dirksmeyer murder investigation, Defendant Dunn
knowingly made false statements to support a false alibi that he was away from Nona’s apartment
complex during the established time interval when Nona was murdered. Frost investigated the
alibi of suspect Gary Dunn and conclusively determined that it was false. However, Frost lied to
Dunn was subsequently charged with the murder of Nona Dirksmeyer resulting in two
trials both declared mistrials because the juries were unable to reach a verdict.
Prosecutor David Gibbons telling Gibbons that he had confirmed Dunn’s alibi. Frost further
convinced Dunn’s polygrapher to slant his finding in Dunn’s favor in order to deflect
prosecutorial focus from Dunn. Frost falsely informed the prosecutor that an FBI Behavioral
Science team report supported Frost’s conclusion that Plaintiff staged the Dirksmeyer crime scene.
Frost purposely failed to obtain DNA testing of the condom wrapper found at the crime scene that
excluded Plaintiff and was later found to have Dunn’s DNA on it. Frost did not cooperate with a
subsequent Arkansas State Police investigation by refusing to produce his investigative notes that
contained proof of Dunn’s false alibi. Plaintiff also alleges that Chief Bacon knew Dunn’s alibi
was false but did not advise the prosecutor. Chief Bacon purposely failed to secure a Lowe’s
video surveillance tape that would have confirmed that Dunn’s alibi was false and Bacon
pressured the prosecutor to file a murder charge against Plaintiff. After Plaintiff’s acquittal and
Dunn’s DNA was identified on the crime scene condom wrapper, it was learned that the polygraph
data and other information had been reviewed by Dr. Richard Poe, a polygraph authority who had
trained Glover. Dr. Poe opined that Dunn caused the death of Nona Dirksmeyer. Plaintiff claims
that the Defendants did not release the opinion of Dr. Poe. Plaintiff also claims that following the
Plaintiff’s acquittal the entire Russellville Police Department refused to assist the Arkansas State
Police investigation of Dunn.
To prove a 42 U.S.C. § 1983 conspiracy claim, a plaintiff must show: (1) that the
defendant conspired with others to deprive him of constitutional rights; (2) that at least one of the
alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) that the
overt act injured the plaintiff. Askew v. Millerd, 191 F.3d 953, 957 (8th Cir.1999). “[A] private
actor can be liable ‘under § 1983 for conspiring with state officials to violate a private citizen's
right[s]....’ The key inquiry is whether the private party was a willful participant in the corrupt
conspiracy.” White v. McKinley, 519 F.3d 806, 816 (8th Cir. 2008), citations omitted. To prevail
on a conspiracy claim, “the plaintiff need not show that each participant knew ‘the exact limits of
the illegal plan ...,’ but the plaintiff must show evidence sufficient to support the conclusion that
the defendants reached an agreement to deprive the plaintiff of constitutionally guaranteed rights.”
White, 519 F.3d at 816 (quoting Larson by Larson v. Miller, 76 F.3d 1446, 1458 (8th Cir.1996)).
Viewing the facts as alleged in the Complaint as true as the Court must at this stage of the
litigation, the Court cannot say that Plaintiff has failed to allege facts which support his conspiracy
claim. Therefore, Dunn’s Motion to Dismiss Plaintiff’s Conspiracy claim is denied.
Statute of Limitations
The Court has previously held that Plaintiff sufficiently pled facts which would constitute
concealment of the evidence by the Defendants and which would support the tolling of the statute
of limitations. At this time, the Court must construe Plaintiff’s allegations as truthful. Therefore,
the Court finds that Plaintiff has set forth sufficient facts to withstand the Defendant’s motion to
dismiss based upon the statute of limitations.
Malicious Prosecution Claims
In order to establish a claim for malicious prosecution, a plaintiff must prove the following
five elements: (1) a proceeding instituted or continued by the defendant against the plaintiff; (2)
termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for the
proceeding; (4) malice on the part of the defendant; and (5) damages. Brooks v. First State Bank,
N.A., 2010 Ark. App. 342, 5, 374 S.W.3d 846, 849 (2010). In South Arkansas Petroleum Co. v.
Schiesser, 343 Ark. 492, 36 S.W.3d 317(2001) and Larsen v. Family Dollar Stores of Arkansas,
Inc., 2005 WL 2767193(Ark. App. 2005) the Supreme Court of Arkansas and Arkansas Court of
Appeals examined when a private person could be responsible for the “institution of proceedings”
as required to satisfy the first element of a malicious prosecution claim. The Courts examined
comment g to the Restatement (Second) of Torts, § 653 (1977). Comment g explains the
culpability of a private person who gives a public official information of another’s supposed
criminal misconduct. However, comment g states:
In order to charge a private person with responsibility for the initiation of
proceedings by a public official, it must therefore appear that his desire to have the
proceedings initiated, expressed by direction, request or pressure of any kind, was
the determining factor in the official's decision to commence the prosecution, or
that the information furnished by him upon which the official acted was
known to be false.
Here, Plaintiff does not allege that Dunn specifically accused Jones of the murder, but instead
provided false information about his own actions which he knew to be false and which led to the
prosecution of Plaintiff. Viewing the facts as alleged in the Amended Complaint as true, as the
Court must do at this stage of the proceeding, the Court finds that Plaintiff has stated sufficient
facts to support a claim for malicious prosecution against Dunn.
The motion to dismiss filed by Gary Dunn (docket no. 64) is DENIED.
IT IS SO ORDERED this 18th day of January, 2013.
James M. Moody
United States District Judge
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