Timothy John Kennedy v. Mark Finely, et al
Filing
78
ORDER RE: MOTIONS TO DISMISS: 35 MOTION to Dismiss Party 21 Amended Complaint by Defendant USA is granted in part and denied as moot in part. The United States of America is dismissed without prejudice. Denying 34 MOTION to Dismiss Party 21 Amend Complaint by Defendant Ernest Roger Peele. Signed by Judge Robert E. Blackburn on 7/2/12.(dbrow, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-00967-REB-KMT
TIMOTHY JOHN KENNEDY,
Plaintiff,
v.
MARK A. FINLEY,
ERNEST ROGER PEELE,
SHERIFF JOHN WESLEY ANDERSON,
EL PASO COUNTY SHERIFF’S OFFICE, and
UNITED STATES OF AMERICA,
Defendants.
ORDER RE: MOTIONS TO DISMISS
Blackburn, J.
The matters before me are (1) the Motion To Dismiss by Defendant Peele
[#34]1 filed September 13, 2011; and (2) the Motion To Dismiss by Defendant United
States of America [#35] filed September 13, 2011. I grant the government’s motion in
part and deny it as moot in part, and I deny defendant Peele’s motion.
I. JURISDICTION
I have subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
Defendants’ motions raise issues under both Fed. R. Civ. P. 12(b)(1) and
12(b)(6). A motion to dismiss under Fed. R. Civ. P. 12(b)(1) may consist of either a
1
“[#34]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.
facial or a factual attack on the complaint. Holt v. United States, 46 F.3d 1000, 1002
(10th Cir. 1995). Because defendants’ motion presents a facial attack, I must accept the
allegations of the complaint as true. Id. Plaintiff bears the burden of establishing that
subject matter jurisdiction exists. Henry v. Office of Thrift Supervision, 43 F.3d 507,
512 (10th Cir. 1994); Fritz v. Colorado, 223 F.Supp.2d 1197, 1199 (D. Colo. 2002).
When ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), I must
determine whether the allegations of the complaint are sufficient to state a claim within
the meaning of Fed. R. Civ. P. 8(a). For many years, “courts followed the axiom that
dismissal is only appropriate where ‘it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.’” Kansas Penn
Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). Noting that this
standard “has been questioned, criticized, and explained away long enough,” the
Supreme Court supplanted it in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562,
127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007). Pursuant to the dictates of Twombly, I
now review the complaint to determine whether it “‘contains enough facts to state a
claim to relief that is plausible on its face.’” Ridge at Red Hawk, L.L.C. v. Schneider,
493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1974). “This
pleading requirement serves two purposes: to ensure that a defendant is placed on
notice of his or her alleged misconduct sufficient to prepare an appropriate defense, and
to avoid ginning up the costly machinery associated with our civil discovery regime on
the basis of a largely groundless claim.” Kansas Penn Gaming, 656 F.3d at 1215
2
(citation and internal quotation marks omitted).
As previously, I must accept all well-pleaded factual allegations of the complaint
as true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002).
Contrastingly, mere “labels and conclusions or a formulaic recitation of the elements of
a cause of action” will not be sufficient to defeat a motion to dismiss. Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations and internal
quotation marks omitted). See also Robbins v. Oklahoma, 519 F.3d 1242, 1247-48
(10th Cir. 2008) (“Without some factual allegation in the complaint, it is hard to see how
a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of
the claim, but also ‘grounds' on which the claim rests.”) (quoting Twombly, 127 S.Ct. at
1974) (internal citations and footnote omitted). Moreover, to meet the plausibility
standard, the complaint must suggest “more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 129 S.Ct. at 1949. See also Ridge at Red Hawk, 493
F.3d at 1177 (“[T]he mere metaphysical possibility that some plaintiff could prove some
set of facts in support of the pleaded claims is insufficient; the complaint must give the
court reason to believe that this plaintiff has a reasonable likelihood of mustering factual
support for these claims.") (emphases in original). For this reason, the complaint must
allege facts sufficient to “raise a right to relief above the speculative level.” Kansas
Penn Gaming, 656 F.3d at 1214 (quoting Twombly, 127 S.Ct. at 1965). The standard
will not be met where the allegations of the complaint are “so general that they
encompass a wide swath of conduct, much of it innocent.” Robbins, 519 F.3d at 1248.
Instead “[t]he allegations must be enough that, if assumed to be true, the plaintiff
3
plausibly (not just speculatively) has a claim for relief.” Id.
The nature and specificity of the allegations required to state a plausible claim
will vary based on context and will “require[] the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 129 S.Ct. at 1950; see also Kansas Penn
Gaming, 656 F.3d at 1215. Nevertheless, the standard remains a liberal one, and “a
well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.“ Dias v. City
and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Twombly, 127
S.Ct. at 1965) (internal quotation marks omitted).
III. ANALYSIS
The facts of this case were recited at length in my prior Order Re: Motion To
Dismiss [#14] filed July 28, 2011, and need not be repeated at length here. In
connection with the investigation of the murders of Jennifer Carpenter and Steve
Staskiewicz, defendant Mark A. Finley, a detective with the El Paso County Sheriff’s
Office, hired defendant Ernest Roger Peele, an FBI Special Agent, to conduct lead
analysis tests on the bullets recovered from the murder scene and compare them to
bullets found during an allegedly illegal search of plaintiff’s home. Plaintiff alleges that
Agent Peele and the FBI knew at the time that the this type of analysis “lacked statistical
and scientific basis,” but failed to disclose these doubts as to its reliability. (Am.
Compl. ¶ 29 at 6.)
Agent Peele’s report detailing the results of his analysis is alleged to have been
found insufficient to justify prosecution. Several months after the report was prepared,
4
however, the district attorney allegedly contacted Agent Peele “for a definitive statement
regarding the analysis performed on the bullets and live cartridges submitted.” (Id. ¶ 31
at 6.) Agent Peele allegedly stated falsely, “that the bullets which killed Carpenter and
Staskiewicz came from the same box as those seized from [plaintiff’s] house.” (Id.)
Plaintiff alleges that the statement helped convince the district attorney to move forward
with the prosecution (id. ¶ 34 at 7) and was utilized to obtain an arrest warrant and at
plaintiff’s preliminary hearing (id. ¶ 31 at 6 & ¶¶ 35-36 at 7). Agent Peele likewise
testified at plaintiff’s 1997 trial for murder. (Id. ¶ 39 at 8.)
Plaintiff ultimately was convicted of the murders and sentenced to two
consecutive life terms without possibility of parole. In April 2009 a state district court
vacated plaintiff’s convictions and ordered a new trial.2 This lawsuit followed.
Plaintiff has brought constitutional claims sounding in malicious prosecution
against all defendants. Agent Peele and the United States, which was substituted on its
own motion for Agent Peele with respect to plaintiff’s Federal Tort Claims Act (“FTCA”)
claim (see Minute Order [#32] filed September 12, 2012), now move to dismiss the
claims against them.
I first address the jurisdictional issued raised by the United States as to the FTCA
claim. See Tafoya v. Department of Justice, 748 F.2d 1389, 1390 (10th Cir. 1984)
(court always must “satisfy itself of its power to adjudicate in every case”). The FTCA
provides that “a tort claim against the United States shall be forever barred unless . . .
action is begun within six months after the date of mailing . . . of notice of final denial of
2
Just last week, the state appellate court upheld that decision. (See County Defendants’
Status Report [#77] filed June 25, 2012.)
5
the claim by the [appropriate Federal] agency to which it was presented.” 28 U.S.C. §
2401(b).3 Because the timeliness requirements of the FTCA define the conditions under
which the government has agreed to waive its sovereign immunity, compliance with
those requirements is jurisdictional. In re Franklin Savings Corp., 385 F.3d 1279,
1287 (10th Cir. 2004), cert. denied, 126 S.Ct. 337 (2005). Thus, a plaintiff must exhaust
his administrative remedies prior to bringing suit. 28 U.S.C. § 2675(a); McNeil v.
United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Duplan v.
Harper, 188 F.3d 1195, 1199 (10th Cir. 1999).
It is undisputed here that plaintiff initiated his administrative claim just one day
prior to filing the instant lawsuit. That claim was not denied, and thus not exhausted,
until June 21, 2011. Although the amended complaint adding the FTCA claim was filed
after that date, “a premature complaint cannot be cured through amendment, but
instead, plaintiff must file a new suit.” Duplan, 188 F.3d at 1199 (citation and internal
quotation marks omitted). Moreover, the addition of the FTCA claim did not change or
add to the essential nature of plaintiff’s claims against the government, and thus it
cannot be construed as an entirely new claim running solely from the date of the filing of
the amended complaint. See Ajaj v. Federal Bureau of Prisons, 2012 WL 1020487 at
*4-6 (D. Colo. March 27, 2012); cf. Ajaj v. United States, 2006 WL 1305198 at *6 (D.
Colo. May 11, 2006) (holding that section 2675(a) did not bar suit where FTCA claim did
not relate back to filing of original complaint; plaintiff asserted no tort claims prior to
bringing amended complaint, and FTCA claim did not arise out of conduct alleged in
3
In addition, the claim must be brought before the appropriate agency within two years of the
date it accrued. In re Franklin Savings Corp., 385 F.3d at 1287.
6
original complaint). I thus am constrained to dismiss the FTCA claim against the United
States for lack of jurisdiction.4
I now turn to Agent Peele’s motion. His first and primary argument is that he is
absolutely immune from plaintiff’s claims as a testifying witness. See Briscoe v.
LaHue, 460 U.S. 325, 328, 103 S.Ct. 1108, 1111, 75 L.Ed.2d 96 (1983); Anthony v.
Baker, 955 F.2d 1395,1400 (10th Cir. 1992). This immunity, which existed at common
law, serves the dual purposes of ensuring that witnesses come forward, in the first
instance, and that they present truthful evidence to the tribunal:
A witness's apprehension of subsequent damages liability
might induce two forms of self-censorship. First, witnesses
might be reluctant to come forward to testify. And once a
witness is on the stand, his testimony might be distorted by
the fear of subsequent liability. Even within the constraints
of the witness's oath there may be various ways to give an
account or to state an opinion. These alternatives may be
more or less detailed and may differ in emphasis and
certainty. A witness who knows that he might be forced to
defend a subsequent lawsuit, and perhaps to pay damages,
might be inclined to shade his testimony in favor of the
potential plaintiff, to magnify uncertainties, and thus to
deprive the finder of fact of candid, objective, and
undistorted evidence.
Briscoe, 103 S.Ct. at 1114 (citations omitted). Insofar as plaintiff’s claim implicates
Agent Peele’s testimony during pretrial proceedings and at trial, therefore, it is clear
beyond question that Agent Peele is entitled to absolute immunity. To that extent,
Agent Peele’s motion must be granted.
4
Of course, plaintiff may refile that claim, and equitable tolling is almost certain to save those
claims from dismissal on limitations grounds. See Hyatt v. United States, 968 F.Supp. 96, 100-01
(E.D.N.Y. 1997).
7
However, plaintiff’s claim does not rest solely on Agent Peele’s in-court
testimony. He has alleged also that Agent Peele, knowing that the results of his lead
bullet analysis were unreliable, nevertheless informed the district attorney that the
bullets found at the crime scene came from the same box of ammunition as those
recovered from plaintiff’s home. In other words, Agent Peele is alleged to have
knowingly fabricated evidence that influenced the prosecutor’s decision to pursue
charges against plaintiff. This allegation is sufficient to plausibly suggest that Agent
Peele was a “complaining witness,” that is, a person “who actively instigated or
encouraged the prosecution of the plaintiff.” Anthony, 955 F.2d at 1399 n.2. As such,
he enjoys no immunity from suit. See Malley v. Briggs, 475 U.S. 335, 340-41, 106
S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986); Anthony, 955 F.2d at 1399.
It is important to maintain the analytical distinction between the roles of a
complaining witness and a testifying witness. Just this term, the Supreme Court
clarified that the complaining witness had a “distinctive function . . . during the period
when § 1983's predecessor was enacted:”
At that time, the term complaining witness was used to refer
to a party who procured an arrest and initiated a criminal
prosecution. A complaining witness might not actually ever
testify, and thus the term “witness” in “complaining witness”
is misleading.
It is true that a mid-19th century complaining witness might
testify, either before a grand jury or at trial. But testifying
was not a necessary characteristic of a complaining witness.
Rehberg v. Paulk, – U.S. –, 132 S.Ct. 1497, 1507, 182 L.Ed.2d 593 (2012) (internal
citations and quotation marks omitted). Even so, where the complaining witness
8
actually testifies, he cannot be held liable. Id. See also Gregory v. City of Louisville,
444 F.3d 725, 738-39 (6th Cir. 2006) (“Subsequent testimony cannot insulate previous
fabrications of evidence merely because the testimony relies on that fabricated
evidence. . . . Merely because a state actor compounds a constitutional wrong with
another wrong which benefits from immunity is no reason to insulate the first
constitutional wrong from the actions for redress. ”), cert. denied, 127 S.Ct. 962 (2007);
Anthony, 955 F.2d at 1400 n.4 (courts “have not been careful to distinguish between
the constitutional tort of giving false testimony and the constitutional tort of a
complaining witness initiating a baseless prosecution”); Norris v. City of Aurora, 2005
WL 1768758 at *7-8 (D. Colo. July 25, 2005) (caselaw “does not indicate that the fact
that an officer acted as a complaining witness in initiating a criminal case eliminates the
broad witness protection provided by Briscoe”). Accordingly, the fact that Agent Peele
later testified as an expert witness does not immunize his alleged non-testimonial
statements. See Pierce v. Gilchrist, 359 F.3d 1279, 1300 (10th Cir. 2004) (holding that
an action could proceed against a forensic hair examiner accused of intentionally or
recklessly falsifying her investigative report); Keko v. Hingle, 318 F.3d 639, 644 (5th Cir.
2003) (declining to extend absolute immunity to a forensic examiner who allegedly
falsified a forensic report).5 Accordingly, Agent Peele’s motion to dismiss for lack of
jurisdiction on the basis of absolute immunity is denied.
5
Rehberg, works no sea change in this well-established doctrine. Although the Court concluded
that grand jury witnesses enjoyed absolute immunity for their testimony as well as for “preparatory activity,
such as a preliminary discussion in which the witness relates the substance of his intended testimony,”
132 S.Ct. at 1507, it also confirmed that absolute immunity did not “extend[] to all activity that a witness
conducts outside of the grand jury room,” including, for example, the falsification of affidavits or evidence,
id. at 1507 n.1.
9
Agent Peele claims also that the amended complaint fails to adequately plead a
cause of action for malicious prosecution.6 To the extent that the elements of the tort of
malicious prosecution as formulated in Colorado are informative,7 the amended
complaint sets forth facts sufficient to make out a plausible claim. To prove a claim for
relief for malicious prosecution under Colorado law, a plaintiff must demonstrate: “(1)
the defendant contributed to bringing a prior action against the plaintiff; (2) the prior
action ended in favor of the plaintiff; (3) no probable cause; (4) malice; and (5)
damages.” Hewitt v. Rice, 154 P.3d 408, 411 (Colo. 2007). Agent Peele suggests that
the amended complaint fails to adequately plead the first, third, and fourth of these
elements. I disagree.
As should be apparent from the foregoing discussion, the amended complaint
asserts facts sufficient to suggest a plausible claim that Agent Peele was a complaining
witness insofar as he made out-of-court statements to the district attorney that
contributed directly to the decision to bring charges against plaintiff. Agent Peele
6
Agent Peele also advances an argument urging me to find that there is no Bivens remedy for
redress of a claim sounding in malicious prosecution. This argument is woefully underdeveloped, which in
itself provides grounds not to consider it.
Substantively, however, the argument fails in any event. First, it depends on Agent Peele’s
assertion that the same policy considerations that inform the common law doctrine of absolute witness
immunity should pertain to preclude such a claim. Yet Agent Peele is not entitled to such immunity for his
alleged non-testimonial acts. Moreover, the argument is clearly foreclosed by the Tenth Circuit’s decision
in Pierce v. Gilchrist.
7
Of course, plaintiff’s claim is pleaded, as it must be, as arising under the Fourth, Fifth, and
Fourteenth Amendments to the Constitution. See Pierce, 359 F.3d at 1285-86. Although the state law
tort of malicious prosecution provides the most closely analogous paradigm under which to analyze claims
such as those asserted by plaintiff, id. at 1286, the elements of the tort under any particular state’s law
provide only a “starting point” for the constitutional analysis, id. at 1288. “[T]he term ‘common law,’ in this
context, refers not to the specific terms of the tort law of any particular state, but to general principles of
common law among the several states. . . . Those rules are applicable by analogy – but only by analogy –
to constitutional torts.” Id. (footnote omitted). “[T]he ultimate question is whether plaintiff can prove a
constitutional violation.” Id.
10
suggests that other evidence demonstrates that the content of this alleged phone call
may be overstated, and points out that plaintiff stipulated at trial that the gun belonged
to him,8 but it is not appropriate to consider these evidentiary matters at this juncture.
See Dias, 567 F.3d at 1178 (“[A] well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of those facts is improbable, and that a recovery is very
remote and unlikely.”).
Likewise, the amended complaint adequately alleges that there was no probable
cause for plaintiff’s arrest. Agent Peele maintains that, excluding his alleged
statements, the arrest warrant affidavit still included evidence that was more than
sufficient to support a finding of probable cause. See Pierce, 359 F.3d at 1293 (“In the
case of a Fourth Amendment claim of falsified evidence, the existence of probable
cause is determined by setting aside the false information and reviewing the remaining
contents of the affidavit.”). The problem with this argument is that it ignores plaintiff’s
allegations that the remainder of the evidence contained in the warrant affidavit also
was infirm. Although the parties have cited to no analogous case, and this court has
found none,9 it cannot be the law that a defendant may escape liability for allegedly
falsifying evidence simply because he was but one of several parties whose fabrications
together contributed to the constitutional deprivation. Of course, plaintiff “bear[s] the
8
It is not entirely clear to the court how Agent Peele believes this stipulation informs the issue of
plaintiff’s guilt or innocence. Moreover, plaintiff suggests that it was the prospect of Agent Peele’s
testimony that convinced his attorney to agree to the stipulation. In all events, a motion to dismiss under
Rule 12(b)(6) is not the appropriate vehicle to consider such factual disputes.
9
The Tenth Circuit has stated that defendants may not rely on evidence that may have
established probable cause when such evidence was not revealed in the warrant application. See
Wilkins v. DeReyes, 528 F.3d 790, 802 (10th Cir. 2008), cert. denied, 129 S.Ct. 1526 (2009).
11
heavy burden of showing that [Agent Peele’s] falsification of inculpatory evidence or
suppression of exculpatory evidence was necessary to the finding of probable cause.”
Id. at 1295. Whether he will ultimately be able to meet that burden, however, presently
is not before me. It is sufficient that the amended complaint sets forth, in adequate
detail, facts that if true would show that the affidavit was not supported by probable
cause.
Moreover, and contrary to Agent Peele’s construction, plaintiff’s allegations of
malice are not wholly conclusory, but rather based on factual averments that Agent
Peele knew his methods were questionable, but nevertheless made definitive
statements confirming a match between the bullets found at the crime scene and those
found at plaintiff’s home. Such allegations are sufficient to plausibly assert the element
of malice. See Wilkins v. DeReyes, 528 F.3d 790, 801 (10th Cir. 2008), cert. denied,
129 S.Ct. 1526 (2009); Pierce, 359 F.3d at 1296-97 & n.12. See also Sancetta v.
Apollo Stereo Music Co., 616 P.2d 182, 183 (Colo. App. 1980) (“Malice may be
inferred from a lack of probable cause.”). I thus find and conclude that the amended
complaint adequately states a plausible claim and is not subject to dismissal under Rule
12(b)(6).
Finally, Agent Peele asserts that he is entitled to qualified immunity.10 Officials
10
Agent Peele’s suggestion that he did not personally participate in plaintiff’s arrest or
prosecution ignores precedent in this circuit and borders on frivolous. A defendant is not insulated from
liability simply because the prosecutor, grand jury, and petit trial jury also had to act in order to effectuate
the ultimate harm:
A prosecutor's decision to charge, a grand jury's decision to indict, a
prosecutor's decision not to drop charges but to proceed to trial-none of
these decisions will shield a police officer who deliberately supplied
misleading information that influenced the decision . . . . If police officers
have been instrumental in the plaintiff's continued confinement or
12
are immune from civil liability unless their actions violate “clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also
Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000), cert. denied, 122 S.Ct. 96
(2001). To overcome this immunity, plaintiff must establish both that Agent Peele
violated his rights under federal law and that such rights were clearly established at the
time of the violation. Greene v. Barrett, 174 F.3d 1136, 1142 (10th Cir. 1999). In light
of the Tenth Circuit’s decision in Pierce v. Gilchrist, Agent Peele cannot seriously
contest either element of this test. See Pierce, 359 F.3d at 1297-1300.11
Accordingly, I deny Agent Peele’s motion for summary judgment.
THEREFORE, IT IS ORDERED as follows:
1. That the Motion To Dismiss by Defendant United States of America [#35]
filed September 13, 2011, is GRANTED IN PART and DENIED AS MOOT IN PART as
follows:
a. That the motion is GRANTED insofar as it seeks dismissal for failure to
properly exhaust administrative remedies; and
b. That the motion in all other respects is DENIED AS MOOT;
prosecution, they cannot escape liability by pointing to the decisions of
prosecutors or grand jurors, or magistrates to confine or prosecute him.
They cannot hide behind the officials whom they have defrauded.
Pierce, 359 F.3d at 1292 (citation and internal quotation marks omitted).
11
Agent Peele’s attempts to differentiate Pierce on its facts are unavailing. Although the
allegations against the forensic expert in that case indeed were egregious, the differences between that
case and this one are matters of degree, not kind.
13
2. That plaintiff’s claims against the United States of America are DISMISSED
WITHOUT PREJUDICE for lack of federal subject matter jurisdiction;
3. That the United States of America is DROPPED as a named party to this
action, and the case caption AMENDED accordingly; and
4. That the Motion To Dismiss by Defendant Peele [#34], filed September 13,
2011, is DENIED.
Dated July 2, 2012, at Denver, Colorado.
BY THE COURT:
14
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