GOUDY v. CUMMINGS et al
ORDER granting in part and denying in part 34 Motion for Judgment on the Pleadings. Order granting in part and denying in part 15 Motion to Dismiss for Failure to State a Claim. The case will proceed accordingly. Signed by Judge Sarah Evans Barker on 9/30/2013. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
RODNEY J. CUMMINGS, in his individual )
capacities as an Anderson police detective )
and as a Madison County prosecutor,
STEVE NAPIER, in his individual capacity )
as an Anderson police detective, CITY OF )
ANDERSON, an Indiana municipality, and )
THE STATE OF INDIANA, for
indemnification purposes only,
ORDER ADDRESSING PENDING MOTIONS
Although Walter Goudy no longer resides within the State of Indiana, he is no
stranger to our federal or state courts. He was twenty-five years old when police
detectives first arrested him in connection with a fatal automobile shooting in Anderson,
Indiana. Nearly two decades later, he seeks redress of numerous alleged injuries
stemming from that tragic event and the ensuing prosecution, to wit: “his loss of liberty,
. . . his job and future employment opportunities, pecuniary loss, and the loss of his society
and companionship with his friends and family.” Compl. ¶ 13. His lawsuit is presently
before the Court on two pending motions: (1) the Motion to Dismiss [Docket No. 15],
filed April 30, 2012 by Defendants Rodney Cummings (in his capacity as Madison County
Prosecutor) and the State of Indiana; and (2) the Motion for Partial Judgment on the
Pleadings [Docket No. 34], filed July 18, 2012 by Defendants Rodney Cummings, Steve
Napier, and the City of Anderson (collectively, “City Defendants”). For the reasons set
forth in this entry, we GRANT IN PART and DENY IN PART the Motion to Dismiss and
GRANT IN PART and DENY IN PART the Motion for Partial Judgment on the Pleadings.
The instant lawsuit has been pending before this court since February 6, 2012, but
the factual underpinnings of Mr. Goudy’s claims date back to 1993. During the early
morning hours of October 2, 1993, Marvin McCloud was shot while driving his vehicle in
Anderson, Indiana. Compl. ¶ 30. At the time of the skirmish, McCloud was transporting
two passengers: Damon Nunn and Jill Barclay. Nunn was also wounded in the skirmish,
but he survived; McCloud died later that day from his injuries. Id. ¶¶ 31-32.
On February 5, 1994, Cummings and Napier informed Jill Barclay and Carlotta
Barclay1 that the City of Anderson Police2 had a suspect for the McCloud murder in
custody and asked her to visit the station to identify the individual. Compl. ¶¶ 37-38. Jill
Barclay was instructed to look through a one-way mirror “to determine if she recognized”
the individual on the other side of the glass. Id. ¶ 38. She identified Mr. Goudy—the
only person in the room adjoining the one-way mirror—“as being involved in the
shooting.” Id. ¶ 39. Soon afterward, Cummings and Napier conducted a lineup
Carlotta Barclay, Jill’s cousin, also witnessed the McCloud shooting. Compl. ¶ 37.
As of that date, Cummings and Napier were both employed by the City of Anderson as
consisting of Mr. Goudy and five Madison County Jail inmates. Mr. Goudy alleges that
“Jill Barclay ha[d] already had her identification tainted3 by the original show-up” and that
Carlotta Barclay was unable to identify anyone in the lineup. Id. ¶¶ 43, 45. Based on the
information provided to them by Jill and Carlotta Barclay, Cummings and Napier obtained
a warrant to search Mr. Goudy’s home and arrest Mr. Goudy in order to perform additional
lineups. Id. ¶ 46. The detectives arrested Mr. Goudy that same day and subsequently
conducted several other physical lineups before other eyewitnesses to the McCloud
shooting. Id. ¶¶ 48-50. For “reasons . . . which are too detailed and numerous to set forth
in th[e] complaint,” Mr. Goudy characterizes these lineups as “impermissibly and unduly
suggestive.” Id. ¶ 53.
After these investigatory proceedings, Madison County Prosecutor William Lawler,
Jr. filed murder and attempted murder charges against Mr. Goudy. Compl. ¶ 2. Mr.
Goudy was remanded to the Madison County Jail until May 16, 1994, when Prosecutor
Lawler dismissed the charges and ordered his release from custody. Id. ¶ 54. To Mr.
Goudy’s dismay, his newfound freedom was nearly as short-lived as the remainder of
Prosecutor Lawler’s tenure. Lawler lost the 1994 Madison County prosecutorial election
to Cummings, who assumed office on January 1, 1995. Cummings re-filed charges
against Mr. Goudy on April 7, 1995—not only the original charges of murder and
attempted murder, but also charges of attempted robbery and attempted carjacking. Id. ¶¶
Mr. Goudy also asserts that prior to Jill Barclay’s departure from the station, Cummings
and Napier became aware that Jill Barclay knew the other four individuals in the lineup. Compl.
57-58, 63. Law enforcement officers arrested Mr. Goudy on April 11, 1995 and
transported him back to Madison County to answer the charges. Id. ¶ 64.
Mr. Goudy stood trial in the Madison Superior Court in the fall of 1995.4 The
prosecution’s case-in-chief included testimony from five eyewitnesses: Damon Nunn, Jill
Barclay, Jackie Barclay, LaTonya Young, and Kaidi Harvell. Nunn and Jill Barclay
described their respective positions in McCloud’s vehicle and told the jury that McCloud
had picked up Jill Barclay from “a parking lot near an after-hours hangout.” Compl. ¶ 74.
They both testified that as McCloud was leaving the parking lot, Mr. Goudy and “a shorter
accomplice” approached the vehicle on either side and fired shots. Id. ¶ 75. According
to Nunn, Mr. Goudy was between five feet eight and five feet ten inches tall, had an “Afro”
hair style covered by a cap, and wore a “brown or beige corduroy” jacket. Jill Barclay
testified that Mr. Goudy wore a “dark sweatshirt.” Id. ¶¶ 77-78. However, both Nunn
and Barclay identified Mr. Goudy as the man on the passenger’s side of McCloud’s vehicle
and noted that they had seen him earlier that night (during the evening hours of October 1,
1993) at a club called the Oasis. Id. ¶¶ 76, 79.
Jackie Barclay and LaTonya Young provided testimony describing their
observation of the McCloud shooting from across the street. These witnesses had also
seen Mr. Goudy at the Oasis on the evening of October 1, 1993. Compl. ¶¶ 79-80. At the
time of the shooting, both women were standing outside the “after-hours hangout” where
Because of his substantial role in the pretrial proceedings, Cummings was asked to (and
did) recuse himself from the case. Compl. ¶ 68.
McCloud arrived in the parking lot to pick up Jill Barclay. Jackie Barclay testified that
she saw Mr. Goudy and another man approach McCloud’s vehicle. She told the jury that
Mr. Goudy was approximately six feet tall, that he wore “a dark jacket, dark pants, or
jeans,” and that he wore his hair in braids “partially covered by his hood.” Id. ¶ 84. She
also stated that the other man (the “shorter accomplice” noted above), who approached the
driver’s side of the vehicle, had no facial hair and wore a “brown uniform.” Id. ¶ 85. By
contrast, Young testified that Mr. Goudy was the perpetrator on the driver’s side of
McCloud’s vehicle. Young estimated that Mr. Goudy was five feet eight inches tall and
noted that he had “braids and [a] ponytail and wore no hat or hood.” Id. ¶ 86.
The remaining key eyewitness, Kaidi Harvell, was one of Mr. Goudy’s roommates.
Harvell asserted that he had consented to testify in exchange for immunity, but not
pursuant to any other deal with the prosecutor’s office. In 1997, he pled guilty to assisting
a criminal and was sentenced to serve two years in prison. Id. ¶¶ 92, 94. At Mr. Goudy’s
trial, Harvell told the jury that he, Romeo Lee, Lamont Thomas,5 and Mr. Goudy drove
from Indianapolis to Anderson on October 1, 1993 for a night of bar-hopping. Compl. ¶
88. He further stated that Mr. Goudy and Lee intended to steal McCloud’s car that
evening. To effectuate their scheme, the men planned to part company; while Harvell and
Thomas drove around the block, Mr. Goudy and Lee would go to the Oasis and the
“after-hours hangout,” where they would eventually steal the car. Id. ¶ 89. Harvell
testified that Mr. Goudy was wearing a “brown prison coat,” a black cap, and gloves. The
Lee and Thomas are Mr. Goudy’s brothers. Compl. ¶ 88.
linchpin of his testimony, however, was his account of the two shooters in relation to
McCloud’s car. According to Harvell, Mr. Goudy shot into the driver’s side of the
vehicle, and Lee shot into the passenger’s side. Id. ¶ 90-91.
Not surprisingly, Mr. Goudy’s narrative of the evening in question differs from the
foregoing accounts. Several alibi witnesses testified at trial that Mr. Goudy was in
Indianapolis at the time of the McCloud shooting and, therefore, could not have been in
Anderson. Specifically, they told the jury that Mr. Goudy was hosting a party that
night—a detail they remembered because it had been the weekend of the Circle City
Classic in Indianapolis. Compl. ¶¶ 96-97. Mr. Goudy’s understanding of Harvell’s
testimony is also a point of contention; he alleges that, “[i]n fact, Harvell was testifying
pursuant to a deal with [Cummings’s] office, and Cummings knew it, but failed to disclose
this information to [Mr. Goudy] and his attorney.” Id. ¶ 93.
Some evidence in the government’s possession was not introduced at Mr. Goudy’s
trial. Notably, Lee’s pre-trial confession to the shooting was stricken from the record
when he attempted to testify on Mr. Goudy’s behalf, was denied immunity, and
subsequently invoked his Fifth Amendment right against self-incrimination. Compl. ¶ 99.
The government also had three police reports containing statements given by Jill Barclay,
Jackie Barclay, Harvell, Young, and Donzetta Clay.6 Id. ¶ 104. The first of these reports
details a phone call Jill Barclay made to police in which she admitted having seen Harvell
at a mall in Indianapolis. She believed that Harvell was looking at her (and, that same day,
Donzetta Clay did not testify at trial. Compl. ¶ 104.
at her license plate) and “was positive he was one of the gunmen” in the McCloud
shooting. Id. ¶¶ 105-07. Also contained in the first report is a description of the photo
lineup presented to Jill Barclay, Jackie Barclay, and Young—all of whom “positively . . .
and without hesitation identified Harvell as the gunman on the driver’s side of McCloud’s
car and said he wore brown clothing.” Id. ¶ 109. The second police report discusses an
in-person lineup presented to Jill Barclay, Jackie Barclay, Nunn, and Clay. From that
lineup, Jill Barclay, Jackie Barclay, and Clay selected Harvell as the shooter, and Nunn
selected an individual who was not a suspect. Id. ¶¶ 110-11. The third police report
includes a statement by Harvell in which he acknowledges having talked to one of Mr.
Goudy’s alibi witnesses. According to Harvell, this witness indicated that she “want[ed]
to change her story.” Id. ¶ 112.
On December 21, 1995, a jury convicted Mr. Goudy of murder, attempted murder,
attempted robbery, and attempted carjacking in connection with the McCloud shooting.
Mr. Goudy filed a motion to vacate the judgment and obtain a new trial, which the trial
court denied on January 17, 1996. He received consecutive sentences of sixty years for
the murder charge and fifty years for the attempted murder charge, both to be served in the
Indiana Department of Correction. Compl. ¶¶ 117-19. Additionally, he was sentenced
concurrently to fifty years for the attempted robbery charge and twenty years for the
attempted carjacking charge. Goudy v. State, 689 N.E.2d 686, 699 (Ind. 1997). The
Indiana Supreme Court eventually vacated his conviction and sentence for the attempted
carjacking charge in 1997. Id.
Not long after Mr. Goudy began serving his sentence, Cummings prosecuted Lee
for crimes arising out of the same criminal transaction. During Lee’s October 1997 jury
trial, Lee’s attorney unearthed the three above-mentioned police reports and brought them
to the attention of Mr. Goudy’s attorney. Id. ¶¶ 100-02. This was the first Mr. Goudy
had heard of the existence and content of such exculpatory evidence. His direct appeal
was pending in the Indiana Supreme Court at the time and he attempted to use the evidence
on direct appeal and subsequently in a post-conviction petition in the sentencing court, but
the petition was denied all the way to the Indiana Supreme Court level. Id. ¶¶ 122-23.
Mr. Goudy subsequently filed a federal habeus corpus petition in the Southern
District of Indiana. The district court originally denied the petition and Mr. Goudy
appealed to the Seventh Circuit Court of Appeals. On May 3, 2010, the Court of Appeals
reversed the district court’s decision, holding that Mr. Goudy’s constitutional rights were
violated and that he did not receive a fair trial and remanded the case to the district court
with instructions to grant his request for a writ of habeas corpus and to order the state to
re-try him or release him within 120 days. Goudy v. Basinger, 604 F.3d 394 (7th Cir.
2010). The Southern District of Indiana, on remand, granted Mr. Goudy’s habeas corpus
petition, vacated the re-filed case against him, and ordered him released. Compl. ¶ 127.
Mr. Goudy was released from prison on September 3, 2010. Id. ¶ 129. The special
prosecutor ultimately decided to dismiss the re-filed case on January 13, 2012. Id. ¶ 132.
Mr. Goudy’s Complaint, filed February 6, 2012, contains a variety of federal and
state claims. His federal claims, which all allege due process violations by Cummings and
Napier in contravention of 42 U.S.C. § 1983, are as follows: Count I, Brady doctrine
violations; Count II, unduly suggestive identification procedures; Count III, malicious
prosecution; and Count VII, conspiracy. His state claims against Cummings, Napier, and
the City of Anderson are: Count IV, malicious prosecution; and Count V, intentional
infliction of emotional distress. Presumably due to typographical error, Mr. Goudy’s
remaining state claims are both designated Count VI. The first Count VI, asserted against
Cummings and the State of Indiana, alleges intentional infliction of emotional distress; the
second Count VI, asserted against the City of Anderson, is an Illinois claim for
I. Standard of Review
The State of Indiana and Prosecutor Cummings have filed their motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). In this procedural context, the
Court must accept as true all well-pled factual allegations in the complaint and draw all
ensuing inferences in favor of the non-movant. Lake v. Neal, 585 F.3d 1059, 1060 (7th
Cir. 2009). Nevertheless, the complaint must “give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests,” and its “[f]actual allegations must . . . raise
a right to relief above the speculative level.” Pisciotta v. Old Nat’l Bancorp, 499 F.3d
629, 633 (7th Cir. 2007) (citations omitted). The complaint must therefore include
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see Fed. R. Civ. P. 8(a)(2). Stated otherwise, a
facially plausible complaint is one which permits “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
By comparison, the City Defendants’ motion for partial judgment on the pleadings
is governed by Federal Rule of Civil Procedure 12(c). This rule allows a party to move for
judgment “[a]fter the pleadings are closed[,] but early enough not to delay trial.” Fed. R.
Civ. P. 12(c); Riggins v. Walter, 279 F.3d 422, 428 (7th Cir. 1995). A motion for
judgment on the pleadings is subject to the same standard as a motion to dismiss pursuant
to Rule 12(b)(6), which necessarily implicates Rule 8(a) as well. Killingsworth v. HSBC
Bank Nev., N.A., 507 F.3d 614, 618-19 (7th Cir. 2007) (noting Rule 8(a)(2)’s requirement
of “a short and plain statement of the claim showing that the pleader is entitled to relief”).
If the parties present matters outside the pleadings on a Rule 12(c) motion, the Court will
treat the motion as one for summary judgment under Rule 56. Fed. R. Civ. P. 12(d).
However, judicially noticed “historical documents, documents contained in the public
record, and reports of administrative bodies” may be considered at this stage of litigation
without converting the motion into a motion for summary judgment. In re Salem, 465
F.3d 767, 771 (7th Cir. 2006). All uncontested allegations to which the parties had an
opportunity to respond must be accepted as true. Alexander v. City of Chi., 994 F.2d 333,
335 (7th Cir. 1993).
II. Motion to Dismiss
Statute of Limitations
In his opening brief, Cummings argued that Mr. Goudy’s federal claims for false
arrest/false imprisonment and for federal due process violations relating to an unfair trial
are barred by the applicable statute of limitations. However, Mr. Goudy has not brought a
claim for false arrest/false imprisonment and the accrual date for his claim alleging Brady
violations is the date when his conviction was vacated or set aside. Dominguez v.
Hendley, 545 F.3d 585, 589 (7th Cir. 2008). Although in this case it is not entirely clear
which date should be considered the date the statute of limitations began to run (e.g., May
3, 2010, the date the Seventh Circuit ordered the district court to grant his habeas petition;
July 12, 2010, the date the federal district court granted the habeas corpus petition;
September 3, 2010, the date Mr. Goudy was released from custody; or January 13, 2012,
the date the criminal charges were dismissed against Mr. Goudy), each of the possible
operative dates falls within the applicable two-year statute of limitations. Thus, as
Cummings apparently now concedes, Mr. Goudy’s federal claims were timely filed.7
Cummings next argues that none of Mr. Goudy’s federal and state claims against
him in his individual capacity as Madison County Prosecutor state an actionable claim
Although Cummings concedes that Mr. Goudy’s claim for alleged Brady violations falls
within the applicable statute of limitations, Cummings argues that it is unclear whether Mr.
Goudy’s claim for alleged Brady violations and his claim for malicious prosecution are based on
the same alleged actions taken by Cummings. Cummings contends that Mr. Goudy has not
specifically alleged which of his actions as a prosecutor would support a malicious prosecution
claims separate of the alleged Brady violations, and thus, Mr. Goudy’s malicious prosecution
claim must fail. Alternatively, Cummings argues that Goudy’s federal malicious prosecution claim
must be dismissed because a state law remedy exists. Because these arguments have nothing to
do with whether Mr. Goudy’s claims fall within the applicable statute of limitations, we address
them fully elsewhere in our ruling.
because his alleged misconduct is protected by the doctrine of absolute prosecutorial
immunity. Mr. Goudy concedes that his state law claim for intentional infliction of
emotional distress should be dismissed based on Indiana’s prosecutorial immunity
doctrine; thus, Cummings’s motion to dismiss is granted as to that claim. Mr. Goudy
contends however, that the more narrow federal immunity provided to prosecutors does not
shield Cummings from liability on his claims brought pursuant to § 1983.
Our Supreme Court first discussed the prosecutorial immunity doctrine in the
context of § 1983 lawsuits in Imbler v. Pachtman, 424 U.S. 409, 424 (1976), concluding
that “the same considerations of public policy that underlie the common-law rule [of
prosecutorial immunity] likewise countenance absolute immunity under § 1983.”
However, the Court curtailed its ruling by “hold[ing] only that in initiating a prosecution
and in presenting the State’s case, the prosecutor is immune from a civil suit for damages
under § 1983.” Imbler, 424 U.S. at 431. Whether or not a prosecutor’s actions fall
within the scope of his official duties depends upon its function. Van de Kamp v.
Goldstein, 555 U.S. 335, 342 (2009). As the Seventh Circuit explained in Fields v.
Wharrie, 672 F.3d 505 (7th Cir. 2012), this inquiry acknowledges the wide scope of
prosecutorial job responsibilities, to wit:
[A] prosecutor has job responsibilities that are not prosecutorial in nature. There
exists a difference between [his] advocate’s role in evaluating evidence and
interviewing witnesses as he prepares for trial . . . and [his] detective’s role in
searching for the clues and corroboration that might give him probable cause to
recommend that a suspect be arrested. . . . Actions and decisions made in
accordance with the latter set of responsibilities entitle him only to the qualified
immunity granted to the police and other members of the prosecution team who
share those duties.
Id. at 511 (internal citations and quotation marks omitted).
Our starting point, therefore, is the general rule that absolute immunity does not
protect conduct that is investigative or administrative, or which does not involve a
prosecutor acting as an officer of the court. Van de Kamp, 555 U.S. at 342. However, we
are also mindful that “a certain kind of administrative obligation—a kind that itself is
directly connected with the conduct of a trial”—may confer absolute immunity. Id. at 344
(distinguishing between administrative actions shielded as prosecutorial functions, like
training prosecutors on properly disclosing to the defense material evidence, and
administrative actions that are not protected under the doctrine, such as workplace hiring
and facilities management). The protection of absolute prosecutorial immunity
“endeavors to preserve the function of the public office, and, thus, encompasses any action
directly relevant to a prosecutor’s ability to conduct a trial.” Fields, 672 F.3d at 510
(internal citations omitted).8 Defendant prosecutors have the burden in § 1983 actions of
showing that absolute immunity is justified in their particular case. Buckley v.
Fitzsimmons, 509 U.S. 259, 269 (1993).
Here, Defendant Cummings argues that he is entitled to absolute immunity for the §
1983 claims brought against him in his individual capacity as a Madison County
Prosecutor alleging a due process Brady violation in connection with Cummings’s
Absolute prosecutorial immunity “protects judicial resources by preventing the retrial of
every criminal offense in a new forum, as well as encourages prosecutors to volunteer for and
vigorously perform the job by shielding them from frivolous suits and the corresponding litigation
costs.” Fields, 672 F.3d at 511 n.1 (citation omitted).
withholding of exculpatory evidence, a malicious prosecution claim, and a claim that
Cummings conspired with Detective Napier and other police officers and prosecutors to
frame Mr. Goudy. We address each of these claims in turn.
1. Brady Claim
Mr. Goudy alleges that, as a police officer, Cummings withheld exculpatory police
reports from the original prosecutor, and then, after the original charges were dropped and
Cummings was subsequently elected as prosecutor, he continued to withhold that evidence
in order to refile the charges and manufacture a false case against Mr. Goudy. It is clear
that once formal criminal proceedings were reinitiated against Mr. Goudy, Cummings’s
failure to turn over the three police reports cannot subject him to damages because at that
point, his immunity is absolute. Fields, 672 F.3d at 513 (“Once a defendant is indicted,
the disclosure obligation and the due process in question correspond to his trial rights, and
a prosecutor’s failure to uphold that obligation, in the form of suppression, coincides with
his prosecutorial functions.”). Thus, any claim against Cummings alleging a Brady
violation based on suppression of evidence once formal proceedings against Mr. Goudy
recommenced is barred and the motion to dismiss is granted as to any such claims.9
However, at this point, it is not clear what actions Cummings took from the time he
Although Cummings was forced to recuse as prosecutor before Mr. Goudy’s case went to
trial, Mr. Goudy concedes that under the current state of Seventh Circuit law, this fact is
insufficient to defeat Cummings’s claim of absolute immunity. See Fields, 672 F.3d at 516
(holding that original prosecutor, although not directly involved in the plaintiff’s appeal or retrial,
was still entitled to absolute immunity because he “was not fully divorced from [plaintiff’s]
judicial proceedings until all direct judicial remedies were exhausted and [plaintiff’s] conviction
became a prosecutor up to the point of the issuance of the second arrest warrant. If
Cummings misrepresented the nature of the government’s evidence against Mr. Goudy
during that time period, depending on the context in which he did so, he may have been
performing a non-advocative function. See, e.g., Kalina v. Fletcher, 522 U.S. 118, 129-31
(1997) (no absolute immunity for prosecutor who represented under penalty of perjury the
truth of facts supporting probable cause for arrest warrant); Buckley, 509 U.S. at 274
(denying absolute immunity to prosecutors investigating evidence before convening
special grand jury because “[a] prosecutor neither is, nor should consider himself to be, an
advocate before he has probable cause to have anyone arrested”). Because the facts are
not sufficiently fleshed out at this stage in the litigation to enable us to make a definitive
determination on this issue, we cannot conclude at this point that Cummings is entitled to
absolute immunity for withholding exculpatory evidence before he refiled the charges
against Mr. Goudy. The Seventh Circuit has recognized that, given that an immunity
defense usually depends on the facts of the case, dismissal at the pleading stage may in
some cases be inappropriate. Alvarado v. Litscher, 267 F.3d 648, 651-52 (7th Cir. 2001).
This is especially true in this case, given the unique circumstances at issue, to wit, the fact
that Cummings began as the lead detective on Mr. Goudy’s case and was thus intimately
involved in all investigatory stages of the case before becoming prosecutor and deciding to
refile charges. At this point, it is simply unclear the exact actions taken by Cummings
after being elected prosecutor up to the point at which formal criminal proceedings were
reinitiated against Mr. Goudy.
2. Malicious Prosecution Claim
Defendant Cummings maintains that he is entitled to absolute immunity for Mr.
Goudy’s malicious prosecution claim brought pursuant to § 1983. However, because we
dismiss Mr. Goudy’s federal malicious prosecution claim on other grounds explained in
detail below, we need not address whether Cummings might alternatively be protected by
3. Conspiracy Claim
Mr. Goudy also alleges that Cummings and Napier engaged in a § 1983 conspiracy
to withhold exculpatory and impeaching evidence from Goudy and his attorney and to
engage in unconstitutional identification procedures in order to frame Goudy and deny him
a fair trial. Cummings argues that he is entitled to absolute prosecutorial immunity from
the conspiracy charge because prosecutorial immunity applies to prosecutorial acts
committed in conspiracy with non-immune persons. Peña v. Mattox, 84 F.3d 894, 897
(7th Cir. 1996) (“It would not do to strip a … prosecutor of his immunity merely because
he conspired with nonimmune persons.”). However, a prosecutor is not absolutely
immune when the underlying violation supporting § 1983 liability is conduct outside the
prosecutor’s role. Id. (“[Absolute immunity] does not extend to a case in which the
conduct of the prosecutor’s coconspirators includes acts wholly unrelated to the
prosecutor’s role.”). Thus, courts have held that “a prosecutor involved in a conspiracy to
target a criminal suspect is not protected by absolute immunity….” Hill v. City of Chicago,
No. 06 C 6772, 2009 WL 174994, at *11 (N.D. Ill. Jan. 26, 2009) (citing Johnson v.
Dossey, 515 F.3d 778, 783 (7th Cir. 2008)).
At this early stage in the litigation, Mr. Goudy has alleged sufficient facts for the
court to conclude that it is possible that a conspiracy could have been formed which
included Cummings in his capacity as prosecutor acting in an investigatory rather than
prosecutorial role. Again, further factual development will be required, but we cannot
conclude at this point that Cummings is protected by absolute immunity for the § 1983
conspiracy alleged by Mr. Goudy.
The Eleventh Amendment provides: “The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State or by Citizens or Subjects of any
Foreign State. U.S. CONST. amend. XI. “An unconsenting State is immune from suits
brought in federal courts by her own citizens as well as by citizens of another state.”
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (citation omitted).
It is well established that “in the absence of consent[,] a suit in which the State or one of its
agencies or departments is named as the defendant is proscribed by the Eleventh
Amendment.” Id. (citations omitted). The State has not consented to suit nor has
Congress abrogated the Eleventh Amendment immunity in this case.
Mr. Goudy argues that the Eleventh Amendment has no application to the case at
bar, however, because the State is not being sued as a substantive party but rather only for
indemnification purposes. This argument has been clearly rejected by the Seventh Circuit
Court of Appeals. In Stoner v. Wisconsin Department of Agriculture, Trade and
Consumer Protection, 50 F.3d 481 (7th Cir. 1995), the Court of Appeals addressed this
issue, observing that just as it would be absurd if a state’s promise to indemnify state
employees for any damages awarded in a § 1983 case put its employees beyond the reach
of such a lawsuit, “[i]t would be equally absurd if such indemnification statutes served
automatically to abrogate Eleventh Amendment immunity by allowing states to be joined
as indemnitors. Untenable also; this argument fails.” Id. at 483. Thus, any claim against
the State is barred and must be dismissed.
III. Motion for Partial Judgment on the Pleadings
The City Defendants have moved for judgment on the pleadings with respect to
three counts in Mr. Goudy’s Complaint: the Brady violation claim, the federal malicious
prosecution claim, and the Indiana state law malicious prosecution claim. Mr. Goudy
now concedes that the City Defendants are immune from any state law claim for malicious
prosecution under the Indiana Tort Claims Act. See, e.g., Butt v. McEvoy, 669 N.E.2d
1015, 1018 (Ind. Ct. App. 1996). Accordingly, Mr. Goudy’s claim for malicious
prosecution brought under Indiana law is dismissed. We address in turn below the
remaining two claims that are the subject of Defendants’ motion for judgment on the
A. Federal Malicious Prosecution Claim
Count III represents Mr. Goudy’s attempt to state a federal cause of action for
malicious prosecution arising from the Due Process Clause of the 14th Amendment and
pursuant to 42 U.S.C. § 1983. According to the City Defendants, this claim is not
cognizable in federal court because Mr. Goudy could have availed himself of state law
remedies. To be sure, the Seventh Circuit has held that a § 1983 malicious prosecution
claim cannot stand if state law provides a remedy. Newsome v. McCabe, 256 F.3d 747,
750-51 (7th Cir. 2001). Although Mr. Goudy does not dispute the holding in Newsome
(indeed, he argues for its “straightforward” application), he contends that his claim should
survive because “it [is] clear that there is no state law remedy available to [him].” Pl.’s
Resp. at 10. Mr. Goudy’s argument is based on the fact that, while Indiana law provides
for a claim of malicious prosecution, in his case such a claim is barred by official
immunity. IND. CODE § 34-13-3-3(8). Thus, he contends that, because the State of
Indiana has granted its officials immunity from malicious prosecution claims, there are no
state law remedies available to him and his due process claim is therefore cognizable under
This issue has been addressed by our colleagues in this District on a few recent
occasions and they have uniformly found the argument advanced by Mr. Goudy “without
merit as the ‘existence of immunity for certain types of claims does not render a State law
remedy constitutionally defective.” Serino v. Hensley, No. 3:12-cv-40-RLY-WGH, 2012
WL 6025751, at *4 (S.D. Ind. Dec. 4, 2012) (quoting Hart v. Mannina, No.
1:10-cv-1691-WTL-MJD, 2012 WL 188055, at *6 (S.D. Ind. Jan. 23, 2012)); accord
Julian v. Hanna, No. 1:11-cv-1536-TWP-DML, 2013 WL 64516, at *4 (S.D. Ind. Jan. 4,
2013). See also Daniels v. Williams, 474 U.S. 327, 342 (1986) (Stevens, J., concurring)
(“[T]he mere fact that a State elects to provide some of its agents with a sovereign
immunity defense in certain cases does not justify the conclusion that its remedial system is
constitutionally inadequate.”). In such cases, due process is “afforded by way of the
legislative process ultimately granting immunity.” Hart, 2012 WL 188055, at *7
(citations omitted). In the absence of clear Seventh Circuit precedent directing
otherwise,10 we adopt this same reasoning here and therefore dismiss Plaintiff’s federal
malicious prosecution claim.
B. Brady Violation
Mr. Goudy asserts that the government, through Detectives Cummings and Napier,
unlawfully withheld exculpatory evidence in contravention of Brady v. Maryland, 373
U.S. 83 (1963). Pursuant to Brady, “‘the suppression by the prosecution of evidence
favorable to an accused . . . violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’”
Moore v. Casperson, 345 F.3d 474, 492-93 (7th Cir. 2003) (quoting Kyles v. Whitley, 514
U.S. 419, 433 (1995)). Although the duty under Brady to disclose exculpatory and
impeaching evidence to a criminal defendant rests ultimately with the prosecutor, police
officers who investigate crimes have a Brady obligation as well. Because a prosecutor can
fulfill his Brady obligations only if he knows of the existence of potentially exculpatory or
impeaching evidence, police officers have a duty to disclose such information to the
This issue arose before the Seventh Circuit Court of Appeals in Tully v. Barada, 599
F.3d 591 (7th Cir. 2010), but the court declined to “decide whether Indiana provides [plaintiff] an
adequate post-deprivation remedy despite that it also recognizes an affirmative immunity defense
for governmental actors acting within the scope of their employment.” Id. 595.
prosecutor. E.g., Harris v. Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007) (“[The Brady]
obligation extends to police officers, insofar as they must turn over potentially exculpatory
evidence when they turn over investigative files to the prosecution.”); Newsome, 256 F.3d
at 752 (“If officers are not candid with prosecutors, then the prosecutors’ decisions –
although vital to the causal chain in a but-for sense – are not the important locus of
In their motion for judgment on the pleadings, Defendants Cummings and Napier,
in their individual capacities as Anderson police detectives, and the City of Anderson
(collectively “the City Defendants”) argue that Cummings and Napier are entitled to either
absolute or qualified immune from monetary liability for Mr. Goudy’s Brady claims
because, even if they failed to disclose the three police reports at issue to the prosecutor,
they acted in accordance with a facially valid court order. It is true that public officials
may be absolutely immune from monetary liability under § 1983 when acting pursuant to a
facially valid court order or judicial directive. See, e.g., Kincaid v. Vail, 969 F.2d 594,
601 (7th Cir. 1992) (collecting cases). There is “general agreement that court officials …
who act at the behest of a judge or pursuant to a court order are entitled to absolute
quasi-judicial immunity from suit as to those actions….” Forte v. Sullivan, 935 F.2d 1, 3
(1st Cir. 1991). However, for the reasons detailed below, we are not persuaded that
Defendants Cummings and Napier are protected by absolute quasi-judicial immunity here.
At the time Mr. Goudy was first charged with the murder of Mr. McCloud, the
original prosecutor on the case, William Lawler, provided to Mr. Goudy’s counsel copies
of all police reports through March 21, 1994. As noted above, those charges were
dismissed on May 16, 1994. Defendant Cummings began his term as the Madison County
Prosecutor in January 1995 and re-filed the charges against Mr. Goudy on April 7, 1995.
On October 17, 1995, Mr. Goudy filed a motion for additional discovery, seeking, inter
alia, “[c]opies of all police reports concerning any investigative activities which have been
conducted since the 21st day of March, 1994 with regard to the incident alleged in the
charging.” Defs.’ Exh. B. The trial court held a hearing on the motion and, on October
23, 1995, issued an order ruling in relevant part that: “The Court will not order the State of
Indiana to turn over police reports and denies said request.” Defs.’ Exh. C. Mr. Goudy
responded to this ruling by filing a motion for in camera review of the police reports to
determine whether they contained exculpatory material or were otherwise discoverable.
Defs.’ Exh. D. On November 22, 1995, the trial court summarily denied the motion.
Defs.’ Exh. E (“The Court affirms its prior ruling herein with no amendments.”).
Based on these facts, the City Defendants claim that “the trial court ordered (twice)
that the [three exculpatory police reports] did not have to be provided to Goudy ….”
Def.’s Br. at 6. We disagree. Mr. Goudy never alleged in his request that specific
documents of an exculpatory nature were being withheld nor did the trial court rule as
Defendants claim that exculpatory material did not have to be provided to Mr. Goudy.
Instead, the trial court merely denied Mr. Goudy’s blanket request that he be provided all
police reports prepared after a certain date and further declined to conduct a review of those
police reports to determine whether there was information in any of the reports that was
discoverable. In no way can the trial court’s orders be construed to have clearly and
definitively authorized the withholding of Brady material as is required to successfully
invoke the quasi-judicial immunity doctrine. See Schneider v. County of Will, 366 Fed.
App’x 683, 686 (7th Cir. 2010) (“Although the contours of quasi-judicial immunity remain
unsettled, courts regularly require nonjudicial actors invoking the doctrine to demonstrate
that their acts were directly and explicitly ordered by a judge.”) (citing Stein v. Disciplinary
Bd. of Supreme Court of N.M., 520 F.3d 1183, 1191 (10th Cir. 2008); Richman v. Sheahan,
270 F.3d 430, 437-38 (7th Cir. 2001); Kincaid, 969 F.2d at 601).
The City Defendants also argue that they are entitled to qualified immunity. Under
the doctrine of qualified immunity, public officials “performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted).
Thus, “[d]efeating qualified immunity requires (1) conduct violating the plaintiff’s
constitutional or statutory rights that is (2) clearly established at the time of the violation
such that a ‘reasonable official would understand that what he is doing violates that right.’”
Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013) (quoting Denius v. Dunlap, 209
F.3d 944, 950 (7th Cir. 2000)).
Clearly, withholding exculpatory or impeaching evidence is conduct that violates a
plaintiff’s constitutional rights. Brady, 373 U.S. at 87. The City Defendants argue that
Detectives Cummings and Napier are nevertheless entitled to qualified immunity because
the trial court ultimately shielded the documents from disclosure. However, as discussed
above, while the trial court denied Mr. Goudy’s request for the disclosure of all police
reports after a certain date, it did not rule that the government did not have to produce
exculpatory evidence if any was contained in those reports. To the contrary, it was clearly
established in 1995 as it remains today that, although investigative police reports are
considered protected as the work product of the prosecutor and thus are not discoverable
unless the privilege has been waived, (which is the ruling the state trial court made), police
officers and prosecutors still have an independent duty to comply with their Brady
obligations as to exculpatory or impeaching evidence contained within such reports. See
State ex rel. Keaton v. Circuit Court of Rush County, 475 N.E.2d 1146, 1147-48 (Ind.
1985) (holding that the prosecution does not have to tender a copy of police reports to the
defense upon a timely work product-privilege objection, but recognizing the “affirmative
duty to disclose exculpatory information not otherwise revealed through discovery”).
Accordingly, the City Defendants are not entitled to qualified immunity for their alleged
failure to disclose Brady material to the prosecutor in Mr. Goudy’s case.
Alternatively, the City Defendants argue that any obligation on the part of
Detectives Cummings and Napier to disclose the police reports was discharged when
Cummings became prosecutor because the only Brady obligation police officers have is to
disclose exculpatory information to the prosecutor and “[w]hen Prosecutor Cummings
took office, he had a complete and thorough knowledge of the investigation into Goudy’s
involvement in the McCloud murder, including knowledge of the three reports at issue
because of his role as [detective].” Defs.’ Br. at 9. In other words, the City Defendants
contend that Cummings had no obligation to disclose the police reports to himself once he
became prosecutor because his knowledge from his time as an investigator on the case was
imputed to his new office thereby curing any failure by Detectives Cummings and Napier
in their role as detectives.
It is true that for purposes of § 1983 liability, “[t]he causal link between a police
officer’s [withholding of evidence] and the victim’s injury may be broken if that police
officer tells a prosecuting attorney before trial about the [withheld evidence].” Whitlock v.
Brueggemann, 682 F.3d 567, 583 (7th Cir. 2012). In such circumstances, a prosecutor’s
decision to continue to withhold exculpatory evidence may sometimes constitute a
“superseding or supervening cause of the violation.” Id. at 584. However, this does not
help Cummings in this case because “[o]ne’s own conduct cannot be an intervening cause
sufficient to defeat a finding of causation.” Id. Here, as in Whitlock, “there is no
supervening cause that breaks the chain from [Cumming’s withholding of exculpatory
evidence] as an investigator to the constitutional violation.” Id.
Because we find that Detectives Cummings and Napier are not entitled to either
absolute or qualified immunity in connection with their alleged failure to disclose the three
police reports to the prosecutor and that Cummings’s subsequent election as prosecutor did
not cure their alleged failure to comply with their Brady obligations as detectives, Mr.
Goudy’s Brady claims against the City Defendants survive Defendants’ motion for
judgment on the pleadings.
For the foregoing reasons, we GRANT IN PART and DENY IN PART Defendants’
Motion to Dismiss and GRANT IN PART and DENY IN PART Defendants’ Motion for
Judgment on the Pleadings. The case will proceed accordingly.
IT IS SO ORDERED.
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Richard Bruce Walker
Cory Christian Voight
COOTS HENKE & WHEELER, P.C.
Anthony W. Overholt
FROST BROWN TODD LLC
Heather M. Wyatt
OFFICE OF THE INDIANA ATTORNEY GENERAL
Betsy M. Isenberg
OFFICE OF THE INDIANA ATTORNEY GENERAL
Blake Wolfe Horwitz
THE BLAKE HORWITZ LAW FIRM
THE BLAKE HORWITZ LAW FIRM
THE LAW OFFICES OF RICHARD DVORAK
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