Bledsoe v. Jefferson County, Kansas et al

Filing 114

MEMORANDUM AND ORDER denying 76 Motion to Dismiss for Failure to State a Claim; denying 80 Motion to Dismiss; denying 83 Motion to Dismiss for Failure to State a Claim; denying 85 Motion to Dismiss for Failure to State a Claim; denying 86 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Daniel D. Crabtree on 08/04/2017. (mig)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

FLOYD S. BLEDSOE,
Plaintiff,
v.
Case No. 16-2296-DDC-GLR
JEFFERSON COUNTY, KANSAS,
RANDY CARRENO,
TROY FROST,
ORIN TURNER,
ROBERT POPPA,
ROY DUNNAWAY,
JIM VANDERBILT,
GEORGE JOHNSON,
JIM WOORDS,
TERRY MORGAN,
MICHAEL HAYES,
JEFFREY HERRIG, and
UNKNOWN OFFICERS OF THE
JEFFERSON COUNTY POLICE
DEPARTMENT and KANSAS
BUREAU OF INVESTIGATION,

Defendants.
____________________________________
MEMORANDUM AND ORDER
This matter comes before the court on defendants Michael Hayes, Jim Vanderbilt, Terry
Morgan, Jim Woods, and George Johnson’s separate Motions to Dismiss (Docs. 76, 80, 83, 85,
86) plaintiff Floyd Bledsoe’s First Amended Complaint (Doc. 75). For reasons explained below,
the court denies defendants’ Motions.

I.

Background
The following facts are taken from plaintiff’s First Amended Complaint (Doc. 75).

Because the current dismissal motions rely on Fed. R. Civ. P. 12(b)(6), the court must accept the
pleaded facts as true and view them in the light most favorable to plaintiff. See Ramirez v. Dep’t
of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000) (explaining that, on a motion to dismiss, the court
must “accept the well-pleaded allegations of the complaint as true and construe them in the light
most favorable to the plaintiff” (citation omitted)). The court emphasizes that this standard
controls the facts at this stage of the case. In short, the court expresses no opinion on whether
they represent the true facts.
This lawsuit follows plaintiff’s wrongful conviction for sexual abuse and murder of a
fourteen-year-old girl named Camille Arfmann. A state court jury convicted plaintiff in April
2000, and he was sentenced to life in prison. Plaintiff was released from prison in 2015 after
DNA testing exonerated him, and instead identified his brother, Thomas Bledsoe (“Tom”), as the
likely wrongdoer.
A. Camille’s Murder
In November 1999, plaintiff was 23 years old and married to his wife, Heidi. The couple
had two young sons, and plaintiff worked as a farmhand at a dairy farm in McLouth, Kansas.
The couple invited Heidi’s younger sister, Camille, to live with them in hopes of improving her
school attendance. Plaintiff’s older brother, Tom, then 25 years old, lived nearby with their
parents. Tom had little social life, and he suffered from some intellectual limitations and partial
deafness. Tom had a history of abnormal sexual behavior that included pursuit of young girls,
though he was an active member of the Sunday school group for children at the Countryside
Baptist Church.

2 

On November 5, 1999, Camille took the bus home from school. She arrived at plaintiff’s
home around 4:20 p.m. Her friend Robin Meyer stopped by to visit at 5:00 p.m., but Camille
was not there. Plaintiff and Heidi reported Camille’s disappearance to the Jefferson County
Sherriff’s Department and spent the next 48 hours trying to find Camille. They stopped the
search on November 7, 1999, after Tom confessed that he had murdered Camille.
Tom’s parents arranged for defense attorney defendant Michael Hayes1 to represent Tom.
Later that evening, Tom and Mr. Hayes met with personnel at the Jefferson County Sheriff’s
Department. Defendants Robert Poppa2 and Roy Dunnaway3 attended this meeting, as well as
others including defendant officer Jim Woods.4 Through Mr. Hayes, Tom informed these
defendants that he had murdered Camille and that he knew the location of her body. Tom also
revealed other details about Camille’s murder, including that he had shot her in the head and
moved her body to bury it in a trash dump. Tom and Mr. Hayes took Mr. Poppa, Mr. Woods,
Mr. Dunnaway, and others, to his parents’ property where he had been living. They found
Camille’s body underneath a foot of dirt, plywood, and garbage that included an X-rated movie
and t-shirt that read: Countryside Baptist Church. The wounds on Camille’s body matched
Tom’s description of her murder. The defendants found three of four missing bullet casings at
Camille’s burial site.

1

Defendant Hayes is one of the defendants moving to dismiss plaintiff’s First Amended Complaint under
Fed. R. Civ. P. 12(b)(6). Doc. 76.
2

Defendant Poppa, along with defendants Jeffery Herrig, Randy Carreno, Troy Frost, and Jefferson County
Kansas, are collectively referred to as the “Jefferson County defendants.” The Jefferson County defendants do not
join this motion. They have filed a separate Motion for Judgment on the pleadings (Doc. 102), which this order does
not decide.
3

Defendant Dunnaway passed away on February 24, 2017. See Doc. 101.

4

Defendant Woods is also one of the defendants moving to dismiss plaintiff’s First Amended Complaint
under Fed. R. Civ. P. 12(b)(6). Doc. 85.

3 

The coroner recovered semen from inside Camille’s vagina, but he was unable to
determine whether Camille had been sexually abused. Mr. Hayes surrendered the murder
weapon—Tom’s newly purchased Jennings 9mm firearm—to the police officers. Tom was
charged with Camille’s murder and taken to the Jefferson County Jail. Despite the evidence
against Tom, the defendants planned to frame plaintiff for Camille’s murder.
B. The plan to frame plaintiff
Several days after Tom’s arrest, Mr. Hayes, along with Jefferson County prosecutor Jim
Vanderbilt,5 and other unknown defendants, met to devise a plan to fabricate Tom’s testimony.
The lead detective on Camille’s murder case, Randy Carreno from the Jefferson County Sheriff’s
Department, had focused his investigation on plaintiff even after Tom turned himself in. Mr.
Hayes, Mr. Carreno, and other defendants conspired to obtain false statements from Tom which
would pin Camille’s murder on plaintiff. Allegedly, Mr. Hayes previously had helped Mr.
Vanderbilt avoid exposure for misappropriating county funds. So, Mr. Vanderbilt was indebted
to Mr. Hayes and became a willing ally in the plan to frame plaintiff.
The plan went like this: Tom would recant his confession and claim that he had run into
plaintiff on Saturday, November 6, 1999, at a roadside intersection. Tom would say that plaintiff
had confessed to Camille’s murder and had given him extensive details about the crime. Then,
Tom would say that plaintiff persuaded him to take the blame for the murder by threatening to
expose his deviant sexual history—including viewing X-rated movies and attempting to have sex
with a dog. Mr. Hayes, Mr. Vanderbilt, and other defendants planned and coached Tom on his
recantation. Tom was manipulated easily. Shortly before Tom recanted his confession, Mr.

5

Mr. Vanderbilt is also one of the defendants moving to dismiss plaintiff’s First Amended Complaint under
Fed. R. Civ. P. 12(b)(6). Doc. 80.

4 

Hayes told plaintiff something about how he planned to take Tom off the “hot seat” and replace
him with plaintiff.
Defendants Terry Morgan, Jim Woods, and George Johnson worked as law enforcement
officers for the Kansas Bureau of Investigation (“KBI”) at this time. Mr. Morgan, Mr. Woods,
and Mr. Johnson (collectively, the “KBI defendant officers”) were integral and active
participants in the investigation of Camille’s death. The KBI defendant officers gathered
physical evidence, executed search warrants, photographed the crime scene and victim,
conducted and reviewed polygraph examinations and interviews, completed police reports, and
directed Mr. Carreno to interview certain witnesses.
Mr. Johnson6 administered polygraph examinations to both Tom and plaintiff on
November 12, 1999. At some point during his examination, Tom recanted his confession with
the story that Mr. Hayes and others had coached him to give. During the examination, Tom
exhibited deception on this question: “Did you kill Camille Arffmann?”
Overcome with guilt following the examination, Tom confessed again to Mr. Johnson,
Mr. Vanderbilt, and other defendants, that he had murdered Camille. Mr. Johnson instructed
Tom to continue lying to implicate plaintiff, and Tom acquiesced. Then, plaintiff took the
polygraph examination and truthfully denied any involvement in Camille’s murder.
That evening, Mr. Vanderbilt released Tom from jail and dropped the charges against
him. Mr. Dunnaway and other defendants arrested plaintiff, and they continued to use Tom’s
fabricated statements to frame plaintiff. Specifically, Mr. Carreno and other defendant officers
falsified Tom’s statements about meeting plaintiff at the roadside intersection so that they fit the
timeline for the period when they believed plaintiff lacked an alibi. Additionally, defendants

6

Mr. Johnson is also one of the defendants moving to dismiss plaintiff’s First Amended Complaint under
Fed. R. Civ. P. 12(b)(6). Doc. 86.

5 

coached Tom to provide false explanations for how he had known so many details about
Camille’s death. Tom’s false account became the prosecution’s central piece of evidence against
plaintiff.
C. The trial
At trial, the defendant officers7 withheld evidence of Tom’s guilt from plaintiff’s defense.
For example, Mr. Woods and other defendant officers withheld Tom’s detailed description about
how he had tried to have sex with Camille in his truck and shot her when she laughed at him.
The defendant officers also withheld evidence of Tom’s history of pursuing young girls and that
he had made sexual advances on Camille just a few weeks before her murder. The defendant
officers also withheld Tom’s statements to them on the night he turned himself in, where he
described Camille’s wounds and the location of her body. The defendant officers also withheld
information about Tom’s activities between November 8 and November 12, 1999, including his
statements during the polygraph examination.
Additionally, the defendant officers suppressed physical evidence of Tom’s guilt. This
evidence included the shovel that Tom had used to bury Camille’s body and other physical
evidence taken from Tom’s truck. In furtherance of the conspiracy to frame plaintiff, Mr.
Morgan and other defendant officers never conducted a rigorous forensic examination of Tom’s
bedroom or home. Instead, Mr. Morgan and other defendants recovered evidence like Tom’s
weapons and ammunition by letting Tom’s father turn them in. Meanwhile, the defendant
officers subjected plaintiff’s home and vehicle to thorough examinations.
The prosecution also generated false evidence against plaintiff. Mr. Johnson reported to
Mr. Vanderbilt that plaintiff had exhibited deception during the polygraph examination, and that

7

The Jefferson County defendant officers (Randy Carreno, Troy First, Orin Turner, Robert Poppa, Roy
Dunnaway, and Jeffrey Herrig ) and the KBI defendant officers (Terry Morgan, Jim Woods, and George Johnson)
are referred to collectively as the “defendant officers.” Doc. 75 at ¶ 20.

6 

Tom had exhibited truthfulness. But Mr. Johnson knew this characterization was false.
Jefferson County defendants Troy Frost and Orin Turner8 signed an affidavit supporting a
request for a search warrant. It falsely claimed that plaintiff had confessed to visiting his home
around the time Camille disappeared from it. The prosecution used the manufactured evidence
about plaintiff’s confession to bring charges against plaintiff.
Mr. Vanderbilt offered plaintiff a plea deal: plaintiff would serve five years in exchange
for pleading guilty. Plaintiff rejected the deal and, in April 2000, a jury convicted him for
murder, aggravated kidnapping, and taking indecent liberties with a child. The trial judge
sentenced plaintiff to life in prison plus 16 years.
D. Post-Conviction Relief
In June 2008, a federal district court granted plaintiff habeas relief and he was released on
bond. The Tenth Circuit Court of Appeals reversed the ruling in July 2009, and plaintiff was
forced to return to prison. Then, in October 2015, plaintiff obtained additional forensic testing
for some of the physical evidence officers collected from the crime scene. New DNA test results
indicated Tom was the likely source of the semen found on Camille’s vaginal swab. The test
also excluded plaintiff as the source of the semen. Tom committed suicide shortly after this new
DNA testing. He left a note that read:
I sent an innocent man to prison. The Jefferson County police and
county attorney Jim Vanderbelt made me do it. I was told by
Vanderbelt to keep my mouth shut. Now I am going to set thing[s]
right.
I killed Camille Arfmann on November 5, 1999. I had sex with
her and killed her.
. . . I drove up to the ditch where the family dump trash and tried to
convince her not to tell. . . . I went to my truck and got my 9mm

8

Orin Turner does not join the Jefferson County defendants in their Motion for Judgment on the Pleadings.
See Doc. 102.

7 

gun that was behind my seat and pushed her to the ground to try to
scare her, but it failed [and] the gun went off behind her head. . . . I
as well might go ahead and say it I raped and murdered a 14 year
girl.
I tried telling the truth but no one would listen. I was told to keep
my mouth shut. It tore me up doing it. I would ask forgiveness,
but I know none will come. Not even from God.
Floyd S Bledsoe is an innocent man.
Tom E Bledsoe is the guilty one.
Tom also drew a diagram depicting where he shot Camille before moving her body to the
trash dump. Using Tom’s diagram, the police found the fourth missing bullet casing. The
Jefferson County court vacated plaintiff’s conviction on December 8, 2015 and the Jefferson
County Attorney dismissed the charges against him. Plaintiff left prison, but returned home from
prison having missed his sons’ childhoods and many years with his loved ones. Plaintiff
continues to suffer physiological pain and suffering, humiliation, constant fear, anxiety, deep
depression, despair, rage, and other physical and physiological effects.
E. Plaintiff’s Claims
Plaintiff brings the following claims under 42 U.S.C. § 1983 against the defendants:
(Count I) due process violation for fabricating Tom’s testimonial evidence; and (Count II)
conspiracy to deprive plaintiff’s constitutional rights by fabricating Tom’s testimonial evidence.
Plaintiff brings the following § 1983 claims against the defendant officers: (Count III)
Brady v. Maryland9 violation for withholding exculpatory evidence and fabrication of evidence;
and (Count VI) failure to intervene.

9

373 U.S. 83 (1963).

8 

Plaintiff brings the following claims under § 1983 against the defendant officers and Mr.
Hayes: (Count IV) malicious prosecution; and (Count V) conspiracy to deprive constitutional
rights.
Finally, plaintiff brings a claim for municipal liability (Count VII) against Jefferson
County, and a state law claim for indemnification.
II.

Legal Standards
Individually, defendants ask the court to dismiss the case under Fed. R. Civ. P. 12(b)(6)

for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Though
defendants assert different reasons why the court should dismiss the claims against them, each
defendant also asserts that plaintiff has failed to plead one or more of the elements necessary to
state his claims for relief.
A. Failure to State a Claim
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Although this Rule “does
not require ‘detailed factual allegations,’” it demands more than “[a] pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give
the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual

9 

support for these claims.’” Carter v. United States, 667 F. Supp. 2d 1259, 1262 (D. Kan. 2009)
(quoting Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).
On a motion to dismiss under Rule 12(b)(6) the court must assume that a complaint’s
factual allegations are true. But legal conclusions are different. The court need not accept pure
legal conclusions as true. Id. at 1263. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” are not enough to state a claim for relief. Iqbal, 556
U.S. at 678. In addition to the complaint’s factual allegations, the court also may consider
“attached exhibits and documents incorporated into the complaint by reference.” Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citations omitted).
B. Qualified Immunity
Mr. Hayes, Mr. Morgan, Mr. Woods, and Mr. Johnson assert qualified immunity as a
defense to plaintiff’s claims. “The doctrine of qualified immunity protects government officials
‘from liability for civil damages’” as long as “‘their conduct does not violate clearly
established’” constitutional rights that “‘a reasonable person would have known.’” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
This doctrine developed as way to balance “two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably.” Id.
Qualified immunity is “immunity from suit rather than a mere defense to liability.” Id. at 237
(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). So, courts should resolve qualified
immunity questions “at the earliest possible stage in litigation.” Id. at 231.

10 

In Saucier v. Katz,10 the Supreme Court “mandated a two-step sequence for resolving
government officials’ qualified immunity claims.” Callahan, 555 U.S. at 232. First, a court
must decide whether plaintiff has alleged facts sufficient to support a violation of a constitutional
right. Id. Second, if plaintiff satisfies this first step, the court must determine whether the right
at issue was “clearly established” at the time of defendant’s misconduct. Id. Unless the
official’s alleged conduct violated a clearly established constitutional right, qualified immunity
applies. Id.
Since Saucier, the Supreme Court has concluded that the two-step sequence for resolving an
official’s qualified immunity claims is still appropriate, but not mandatory. Id. at 236. Judges
may use their discretion to decide “which of the two prongs” should be addressed first “in light
of the circumstances in the particular case at hand.” Id. At trial, the “plaintiff bears the burden
of persuasion ‘to overcome qualified immunity by showing a violation of clearly established
federal law.’” Stoedter v. Gates et. al., No. 15-4020, slip op. at * 11 (10th Cir. Aug. 3, 2017),
http://www.ca10.uscourts.gov/opinions/15/15-4020.pdf (quoting Estate of Booker v. Gomez, 745
F.3d 405, 411 (10th Cir. 2014)).
III.

Analysis
A. Michael Hayes
Plaintiff brings four claims under § 1983 against Mr. Hayes, Tom’s court-appointed

attorney: (Count I) due process violation for fabrication of evidence; (Count II) conspiracy to
violate plaintiff’s constitutional rights by fabricating testimony; (Count IV) malicious
prosecution; and (Count V) conspiracy to violate plaintiff’s constitutional rights by withholding
exculpatory information. Mr. Hayes asserts four arguments to support his motion to dismiss.
First, Mr. Hayes asserts that he is not a state actor for the purpose of § 1983. Second, he

10

533 U.S. 194 (2001).

11 

contends he is entitled to qualified immunity. Third, he contends that plaintiff has not pleaded a
sufficient malicious prosecution claim. Finally, Mr. Hayes asserts that the statute of limitations
bars plaintiff’s claims. The court addresses each of Mr. Hayes’ four arguments, below.
1. State Actor
“Section 1983 provides a cause of action against any person who deprives an individual
of federally guaranteed rights ‘under color’ of state law.” Filarsky v. Delia, 566 U.S. 377, 383
(2012) (quoting 42 U.S.C. § 1983). So, only those “whose conduct is ‘fairly attributable to the
state’ can be sued as a state actor under § 1983.” Id. (quoting Lugar v. Edmonson Oil Co., 457
U.S. 922, 937 (1982)).
Mr. Hayes served as Tom’s court appointed defense attorney during the investigation and
prosecution of Camille’s murder. It is “well established that neither private attorneys nor public
defenders act under color of state law for purposes of § 1983 when performing their traditional
functions as counsel to a criminal defendant.” Dunn v. Harper Cty., 520 F. App’x 723, 725–26
(10th Cir. 2013) (citing Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981)). Mr. Hayes thus
contends he was not a state actor at any of the times relevant to the First Amended Complaint.
But public defenders and private defense attorneys are not categorically excluded as state
actors. See Polk Cty., 454 U.S. at 324–325. Indeed, a “sufficient claim of a conspiracy between
a private lawyer and state actors . . . would support the allegation that the private lawyer acted
under color of state law.” Fisher v. Lynch, 531 F. Supp. 2d 1253, 1263 (D. Kan. 2008) (quoting
Ellibee v. Fox, 244 F. App’x 839, 843 (10th Cir. 2007)). And, true to this theory, plaintiff’s First
Amended Complaint alleges that Mr. Hayes conspired with state actors—the defendant
officers—to violate his constitutional rights.

12 

Importantly, the Tenth Circuit applies a “heightened pleading requirement to § 1983
claims alleging a conspiracy between private individuals and state officials.” Scott v. Hern, 216
F.3d 897, 907 (10th Cir. 2000); see also Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533
(10th Cir. 1998) (“a plaintiff must allege specific facts showing an agreement and concerted
action amongst the defendants” to state a valid § 1983 conspiracy claim). Alleging a § 1983
conspiracy claim sufficient to satisfy this standard requires the plaintiff to allege facts that
manifest a “specific goal to violate the plaintiff’s constitutional rights by engaging in a particular
course of action.” Fisher, 531 F. Supp. 2d at 1264 (quoting Gallagher v. Neil Young Freedom
Concert, 49 F.3d 1442, 1445 (10th Cir. 1995)). Conclusory allegations “with no supporting
factual” allegations are insufficient. Fisher, 531 F. Supp. 2d at 1263 (quoting Raiser v. Kono,
245 F. App’x 732, 736 (10th Cir. 2007)).
Because “[d]irect evidence of an agreement to join a criminal conspiracy is rare, [ ] a
defendant’s assent can be inferred from acts furthering the conspiracy’s purpose.” United States
v. Edmonson, 962 F.2d 1535, 1548 (10th Cir. 1992) (quoting United States v. Perkins, 748 F.2d
1519, 1526 (11th Cir. 1984)). And whether plaintiff has alleged sufficient facts to support a
conspiracy claim is decided on a case-by-case basis. Compare Hughes v. Patrolmen’s
Benevolent Ass’n of City of New York, Inc., 850 F.2d 876, 881 (2d Cir. 1988) (affirming decision
that allegations of defendants hiring private investigators with the express or implied consent of
police officers was sufficient to allege a § 1983 conspiracy), and Snell v. Tunnell, 920 F.2d 673,
701–02 (10th Cir. 1990) (holding that plaintiff sufficiently pleaded a § 1983 conspiracy claim to
deprive plaintiff’s Fourth Amendment rights by alleging defendant’s “repeated attempts to harass
and gain entry into [plaintiff’s] home”), with Ciambriello v. Cty. of Nassau, 292 F.3d 307, 325
(2d Cir. 2002) (holding that plaintiff’s failure to provide details of time and place or any factual

13 

details to enable defendants to prepare a defense was insufficient to support a conspiracy claim),
and Fisher, 531 F. Supp. 2d at 1264 (holding that, by themselves, allegations of long telephone
conversations between a private lawyer and a court-appointed mediator were insufficient to
allege a conspiracy), and Poel v. Webber, 899 F. Supp. 2d 1155, 1161 (D.N.M. 2012) (holding
that allegations of innocuous communications between lawyers and judges communicating
through pleadings and motions will not suffice to allege a conspiracy).
Plaintiff alleges the following facts to support his claim that Mr. Hayes conspired with
state actors: (1) several days after Tom’s arrest, Mr. Hayes, Mr. Vanderbilt, and other
defendants held a meeting to put their plan into action (Doc. 75 ¶ 49); (2) Mr. Hayes conspired
with Mr. Carreno to pin the murder on plaintiff by securing false statements from Tom (Id. at ¶
51); (3) using Mr. Hayes’ influence as former Jefferson County Attorney, Mr. Hayes and Mr.
Carreno enlisted Mr. Vanderbilt to help frame plaintiff (Id. at ¶ 52); (4) Mr. Hayes and other
defendants planned to have Tom recant his confession (Id. at ¶ 55); and (5) just before plaintiff
was charged, Mr. Hayes warned plaintiff that he was taking Tom off the “hot seat” and putting
plaintiff on it (Id. at 10 ¶ 56).
Plaintiff’s allegations, if backed by admissible evidence, suffice to support a finding that
Mr. Hayes conspired with state actors and thus acted under color of state law. Either Mr. Hayes,
Mr. Vanderbilt, and other defendants met several days after Tom’s arrest to activate their plan to
frame plaintiff—or they did not. But if plaintiff musters admissible evidence that they conducted
such a meeting, and agreed at that meeting to put their plan into action, that they conducted such
a meeting and that agreement to frame plaintiff would constitute facts. None of these allegations
represent the kind of labels, conclusions, or formulaic recitations that Iqbal deems insufficient.
Similarly, Mr. Carreno and Mr. Hayes either solicited Mr. Vanderbilt’s agreement to enlist in

14 

their plan to frame plaintiff—or they did not. Time will tell whether plaintiff actually can prove
these allegations. But this unresolved evidentiary uncertainty does not change that allegations of
such solicitation and enlistment are allegations of fact—not just conclusions.
Mr. Hayes tries to nullify plaintiff’s response by arguing that plaintiff’s allegations are
merely conclusory. Doc. 77 at 14. This misapprehends the standard. Rule 12(b)(6) requires less
than “detailed factual allegations.” Iqbal, 556 U.S. at 678. Plaintiff specifically alleges when
Mr. Hayes met with other state actors. Doc. 75 at ¶ 49 (alleging that Mr. Hayes met with state
actor defendants “[s]everal days after Tom’s arrest”). And, plaintiff specifically alleges that Mr.
Hayes conspired with Mr. Carreno “to pin the murder on [plaintiff].” Id. at ¶ 51. Plaintiff also
alleges the details Mr. Hayes and other defendants discussed during their meeting. Id. at ¶ 53.
And he alleges that Mr. Hayes told plaintiff that he planned to put him in the “hot seat” shortly
before Tom recanted his confession. Id. at ¶ 56. Taken together, plaintiff has alleged facts from
which the court properly can draw a reasonable inference that Mr. Hayes joined an agreement
and pursued a course of concerted action with state actors to prosecute plaintiff for Camille’s
murder. For Rule 12(b)(6) purposes, plaintiff has alleged that Mr. Hayes acted under color of
state law under § 1983 sufficiently, and his status as a defense attorney is no reason to dismiss
the § 1983 claims pending against him.
2. Qualified Immunity
Mr. Hayes next asserts that even if plaintiff has alleged sufficient facts to support a claim
that he acted under color of state law for § 1983 purposes, he is entitled to qualified immunity.
The Supreme Court has made it clear that a private individual retained by the government, even
temporarily, is entitled to seek qualified immunity from suit under § 1983. See Filarsky, 566
U.S. at 393–94. Mr. Hayes contends that he worked as a court appointed attorney at the times

15 

relevant to the First Amended Complaint, and this entitles him to seek qualified immunity from
plaintiff’s claims.
The Tenth Circuit has not held that court appointed defense attorneys are entitled to seek
qualified immunity. And, predicting how the Circuit would rule, if presented with the question,
is a quandary. See Hernandez v. State of N.M., No. 94-2287, 1995 WL 490289, at *4 (10th Cir.
Aug. 16, 1995) (affirming decision that public defenders were entitled to qualified immunity, but
not mentioning court appointed attorneys); see also Polk Cty., 454 U.S. at 333 n.4
(distinguishing between public defenders and court-appointed attorneys, who are not state
officials, who have control over their own caseloads and representations, and who depend on the
state only for a fee with no real day-to-day involvement by the state); cf. Bianchi v. McQueen,
818 F.3d 309, 317 (7th Cir. 2016) (finding that a court-appointed prosecutor is entitled to
prosecutorial immunity for his conduct as a prosecutor). But the court does not need to decide
this question to decide Mr. Hayes’ motion. Even if Mr. Hayes were entitled to assert the
qualified immunity defense, qualified immunity would not shield him from liability.
To determine whether Mr. Hayes’ actions are protected by qualified immunity, the court
must determine whether plaintiff has alleged facts sufficient to support a finding that Mr. Hayes
violated his constitutional rights, and whether the right at issue was “clearly established” at the
time of Mr. Hayes’ conduct. Pearson, 555 U.S. at 231. The inquiry “turns on the ‘objective
legal reasonableness of the action, addressed in light of the legal rules that were clearly
established at the time it was taken.’” Id. at 244 (quoting Wilson v. Layne, 526 U.S. 603 (1999)).
Plaintiff alleges that Mr. Hayes infringed on constitutional due process rights when he,
along with other defendants, fabricated Tom’s testimonial evidence, conspired with state actors
to deprive plaintiff’s constitutional rights by fabricating evidence and withholding exculpatory

16 

evidence, and maliciously prosecuted plaintiff. And, plaintiff alleges facts sufficient to support
these allegations under Rule 12(b)(6)’s standard.
In Pierce v. Gilchrist,11 the Tenth Circuit ruled on this very issue. 359 F.3d at 1282. The
plaintiff in Pierce spent 15 years in state prison for a rape he had not committed. Id. at 1281. He
eventually was exonerated with DNA evidence, and his conviction was vacated. Id. Plaintiff
brought § 1983 malicious prosecution claims against defendant, a police department forensic
chemist, alleging that she maliciously withheld exculpatory evidence and fabricated inculpatory
evidence, “which led prosecutors to indict and prosecute” him for the rape. Id. at 1281. On
appeal from an immunity based motion to dismiss decision, the Tenth Circuit affirmed the
district court’s decision that defendant was not entitled to qualified immunity. After determining
that plaintiff properly had alleged violation of his constitutional rights, the Tenth Circuit held
that the “prohibition on falsification or omission of evidence, knowingly or with reckless
disregard for the truth, was firmly established” when defendant acted. Id. at 1298. It explained:
“Even if there were no case directly on point imposing liability on officials whose falsification of
evidence occurred at the post-arrest stage, an official in [defendant’s] position could not have
labored under any misapprehension that the knowing or reckless falsification and omission of
evidence was objectively reasonable.” Id. at 1299.
Pierce’s holding applies with equal force here. Mr. Hayes is not entitled to qualified
immunity in this case. Mr. Hayes asserts that “the conclusory and vague allegations made by”
plaintiff fail to state a plausible claim that he violated plaintiff’s clearly established constitutional
rights “of which a reasonable person would have known.” Doc. 77 at 21. But, as already
explained, plaintiff has alleged facts from which the court can draw a reasonable inference that
Mr. Hayes was part of an agreement and concerted action along with state actors to falsify and

11

359 F.3d 1279, 1281 (10th Cir. 2004).

17 

withhold evidence, and to maliciously prosecute plaintiff for murder. Under Pierce, plaintiff’s
rights against falsification and omission of evidence were clearly established when Mr. Hayes
acted, and he is not entitled to qualified immunity.
3. Malicious Prosecution Claim
Mr. Hayes next argues that plaintiff has failed to plead any of the claims against him
adequately. But, as already discussed, the court has determined that plaintiff has alleged facts
from which the court can draw a reasonable inference that Mr. Hayes joined a conspiracy to
violate plaintiff’s constitutional rights, and that Mr. Hayes violated plaintiff’s constitutional
rights by fabricating evidence . See supra Part III.A.1.–2. So, the court now turns to plaintiff’s
claim that Mr. Hayes maliciously prosecuted him.
A § 1983 malicious prosecution claim includes the following five elements: (1) the
defendant caused the plaintiff’s prosecution; (2) the original action terminated in favor of the
plaintiff; (3) no probable cause supported the continued prosecution; (4) the defendant acted with
malice; and (5) the plaintiff sustained damages. Wilkins v. DeReyes, 528 F.3d 790, 799 (10th
Cir. 2008).
Mr. Hayes contends that plaintiff has failed to plead the first element of a malicious
prosecution claim. Mr. Hayes explains that he was Tom’s court-appointed defense attorney, and
that he had no role in plaintiff’s criminal prosecution. But, the Tenth Circuit has explained that
this element of malicious prosecution does not require that it was the defendant who actually
filed the charges at issue. Instead, the actions of one who “prevaricates and distorts evidence to
convince the prosecuting authorities to press charges” can be said to cause the prosecution.
Pierce, 359 F.3d at 1293. Here, plaintiff alleges that Mr. Hayes conspired to fabricate and
withhold evidence. Specifically, plaintiff alleges that Mr. Hayes helped fabricate Tom’s

18 

narrative and coached him about how to give it. Doc. 75 ¶ 55. These allegations suffice to
allege that Mr. Hayes distorted evidence to convince prosecuting authorities to press charges.
Plaintiff has pleaded the first element of his malicious prosecution claim against Mr. Hayes.
Mr. Hayes also contends that plaintiff has failed to plead the second element because the
original action has not terminated in favor of plaintiff. Mr. Hayes asserts that plaintiff’s
conviction merely was vacated, and the charges against him were dismissed without prejudice.
Doc. 77 at 25. Mr. Hayes asserts that because plaintiff could be charged again, he cannot plead
the second element of his malicious prosecution claim. But, once again, the Tenth Circuit
already has rejected Mr. Hayes’ theory. See Pierce, 359 F.3d at 1294 (explaining that such a
“narrow construction of state common law would be inconsistent with federal constitutional
standards.”). Plaintiff’s conviction was vacated, and that will suffice to allege the second
element of a malicious prosecution claim. Id.
Next, Mr. Hayes asserts that plaintiff alleges no facts to support the third element of his
malicious prosecution claim. Mr. Hayes relies on plaintiff’s conviction by a jury in 200, and
plaintiff’s first appeal of that conviction, where the Kansas Supreme Court concluded that
sufficient evidence supported plaintiff’s murder conviction. But, the allegations in plaintiff’s
First Amended Complaint, taken as true, are such that the court can draw the reasonable
inference that no probable cause supported the continued prosecution. Plaintiff has pleaded the
third element of his malicious prosecution claim.
Finally, Mr. Hayes asserts that plaintiff has failed to plead the fourth element because he
has asserted no facts from which the court could draw a reasonable inference that he acted with
malice. But, the Tenth Circuit has recognized that the district court properly can infer malice so
long as the allegations, if proven, would support a finding that defendant acted with malice. See

19 

Pierce, 359 F.3d at 1296–97 (affirming district court’s conclusion that “the allegations, if
proven, would support that Defendant possessed malice” in her actions). Similarly here, if the
plaintiff’s allegations are proven, they support the theory that Mr. Hayes acted with malice.
In sum, plaintiff has alleged sufficient facts to support his claims against Mr. Hayes.
4. Statute of Limitations
Mr. Hayes contends plaintiff’s claims that the statute of limitations bars plaintiff from
prevailing on his claims. Section 1983 “provides a federal cause of action,” but federal law
“looks to the law of the State in which the cause of action arose” to determine the applicable
statute of limitations. Wallace v. Kato, 549 U.S. 384, 387 (2007). Courts apply the statute of
limitations which the “State provides for personal-injury torts.” Id. Because plaintiff’s § 1983
claims arose in Kansas, the court applies Kansas’s two-year statute of limitations for personal
injury actions to his claims. See Kan. Stat. Ann. § 60-513(a)(4).
The “accrual date of a § 1983 cause of action is a question of federal law.” Id. at 388.
Mr. Hayes contends that plaintiff’s claims accrued in 2000, when he was convicted. Doc. 77 at
22. For support, he relies on Lyons v. Kyner,12 where the Tenth Circuit explained that a “civil
rights action accrues when facts that would support a cause of action are or should be apparent.”
Lyons, 367 F. App’x at 882. According to Mr. Hayes, the facts to support plaintiff’s claims
should have become apparent when Tom recanted his confession. Doc. 77 at 22. Mr. Hayes
contends that Kansas’s two-year statute of limitations bars plaintiff’s claims.
But in Heck v. Humphrey,13 the Supreme Court held that § 1983 plaintiffs challenging
unconstitutional convictions, imprisonment, or other harm caused by “actions whose
unlawfulness would render a conviction” invalid, must first “prove that the conviction or

12

367 F’Appx. 878 (10th Cir. 2010).

13

512 U.S. 477 (1994).

20 

sentence has been . . . declared invalid by a state tribunal authorized to make such
determination.” Heck, 512 U.S. at 486–87. According to the Supreme Court, “until the
conviction or sentence is reversed, expunged, invalidated or impugned,” no § 1983 cause of
action exists for such plaintiffs to assert. Id. at 489. The Supreme Court explained specifically
that “a § 1983 cause of action for damages attributable to an unconstitutional conviction or
sentence [thus] does not accrue until the conviction or sentence has been invalidated.” Id. at
489–90; see also Smith v. Gonzales, 222 F.3d 1220, 1222 (10th Cir. 2000) (finding that the
statute of limitations on plaintiff’s § 1983 action began to run when the Tenth Circuit vacated his
conviction and remanded his habeas petition to the district court); Garza v. Burnett, 672 F.3d
1217, 1218 (10th Cir. 2012) (explaining that a plaintiff may not sue under § 1983 “if success in
the action would undermine a criminal conviction,” and, because of that bar, plaintiff’s cause of
action “does not accrue until the conviction” has been invalidated).
Plaintiff’s § 1983 claims allege that Mr. Hayes conspired to violate, and violated, his
constitutional rights by fabricating evidence that led to his conviction, and withholding
exculpatory evidence. Plaintiff also alleges that Mr. Hayes maliciously prosecuted him. The
rule in Heck v. Humphrey would have precluded plaintiff’s claims if he had tried to bring them
before his conviction was overturned. Plaintiff’s claims thus did not accrue until the state court
overturned his conviction on December 8, 2015. And, because plaintiff filed his original
Complaint on May 10, 2016, he asserted his § 1983 claims well within the two-year clock.
Plaintiff’s claims against Mr. Hayes are not barred by the statute of limitations.
The court thus denies Mr. Hayes’ Motion to Dismiss (Doc. 76).

21 

B. Jim Vanderbilt
Plaintiff brings two § 1983 claims against Mr. Vanderbilt, who served as the County
Attorney for the county where plaintiff was convicted during plaintiff’s prosecution and
wrongful conviction: (Count I) due process violation for fabricating Tom’s testimonial evidence;
and, (Count II) conspiracy to deprive plaintiff’s constitutional rights. In his Motion to Dismiss,
Mr. Vanderbilt asserts that, as a prosecutor, he is entitled to absolute immunity, and the court
should dismiss plaintiff’s claims against him.
1. Absolute Immunity
Because of their unique role in the judicial system, prosecutors enjoy absolute immunity
from suit for their actions as an officer of the court. See Van de Kamp v. Goldstein, 555 U.S.
335, 341–42 (2009) (explaining that the “public trust of the prosecutor’s office would suffer” if
the prosecutor feared personal liability when making prosecutorial decisions). Prosecutors’
absolute immunity applies to conduct that is “‘intimately associated with the judicial phase of the
criminal process.’” Burns v. Reed, 500 U.S. 478, 485 (1991) (quoting Imbler v. Pachtman, 424
U.S. 409, 430 (1976)). But, absolute immunity does not extend to conduct when the prosecutor
is engaged in “investigative or administrative tasks.” Goldstein, 555 U.S. at 342. The court
takes a functional approach when deciding whether prosecutorial immunity applies to particular
claims. Reed, 500 U.S. at 485. In other words, the court looks to “the nature of the function
performed, not the identity of the actor who performed it.” Buckley v. Fitzsimmons, 509 U.S.
259, 269 (1993).
Plaintiff asserts two claims against Mr. Vanderbilt. In Count I, plaintiff claims Mr.
Vanderbilt and other defendants used Tom’s fabricated testimony to secure his conviction and
“failed to correct fabricated evidence that they knew to be false” at plaintiff’s criminal trial.

22 

Doc. 75 at ¶ 110. Plaintiff claims that these actions denied his right to a fair trial and “[a]bsent
this misconduct, [his] prosecution could not and would not have been pursued.” Id. at ¶ 112. In
Count II, plaintiff alleges that Mr. Vanderbilt and other defendants agreed to fabricate
testimonial evidence “that would be used to convict Plaintiff.” Id. at ¶ 117. Because Counts I
and II are tied to plaintiff’s trial and conviction, Mr. Vanderbilt contends that this alleged
conduct was “directly and intimately connected with the judicial phase of the prosecutorial
process.” Doc. 81 at 7.
Claiming he deserves absolute immunity, Mr. Vanderbilt relies on Esquibel v. Brian
Williamson.14 In Esquibel, a prisoner filed a § 1983 claim against the deputy district attorney,
alleging he had conspired to withhold exculpatory evidence. Esquibel, 421 F. App’x at 814. The
Circuit held that the prosecutor was entitled to absolute immunity. Id. at 816. It explained:
“Absolute prosecutorial immunity applies to both claims that a prosecutor willfully used
perjurious testimony and claims that a prosecutor willfully suppressed evidence.” Id. (discussing
Imbler, 424 U.S. at 431 n.34). Mr. Vanderbilt asserts that because he, like the prosecutor in
Esquibel, is alleged to have presented falsified evidence at trial, he is entitled to absolute
prosecutorial immunity.
But, plaintiff’s First Amended Complaint alleges much more than that. It alleges facts
about Mr. Vanderbilt’s activities before the trial. Specifically, plaintiff alleges that Mr.
Vanderbilt conspired with Mr. Hayes and Mr. Carreno, and other defendants to pin Camille’s
murder on plaintiff. Doc. 75 at ¶ 52. Plaintiff claims Mr. Vanderbilt and other defendants
planned to have Tom recant his confession and tell officers that plaintiff had persuaded him to
take the blame. Id. at ¶ 53. Plaintiff also asserts that Tom confessed to the murder in Mr.
Vanderbilt’s presence, but Mr. Vanderbilt released Tom from his charges, and other defendants

14

421 F. App’x 813 (10th Cir. 2010).

23 

arrested plaintiff in his place. Id. at ¶¶ 60, 62. Plaintiff cites Tom’s suicide note to support his
claims against Mr. Vanderbilt. It read: “I sent an innocent man to prison. The Jefferson County
police and county attorney Jim Vanderbelt made me do it. I was told by Vanderbelt to keep my
mouth shut. Now I am going to set thing right.” Id. at ¶ 95.
In Buckley, petitioner brought § 1983 claims seeking damages from a prosecutor, alleging
he fabricated evidence during the preliminary investigation of a crime and made false statements
to the press. Buckley, 509 U.S. at 261. The Supreme Court held that the prosecutor was not
entitled to absolute immunity for fabricating false evidence during the preliminary investigation
or for his statements to the press. Id. at 275–79. In concluding that respondent was not entitled
to absolute immunity for fabricating evidence, the Supreme Court paid special attention to the
timing of his investigation. Id. at 273–74. The Court emphasized that the prosecutor allegedly
had manufactured the evidence before the grand jury was convened. Id. at 274–75. Indeed, the
Supreme Court explained that the prosecutor lacked probable cause to arrest petitioner during
that period, and that petitioner was not arrested until ten months after the grand jury convened.
Id. Given these facts, the Supreme Court held that the prosecutor could not claim he was acting
as an advocate during the alleged activities, and thus were not entitled to absolute immunity. Id.
at 275
Buckley is instructive here. Plaintiff alleges that Mr. Vanderbilt conspired with other
defendants to fabricate a narrative that plaintiff had convinced Tom to take the blame for the
murder. These alleged activities took place before plaintiff was arrested and, thus, before
probable cause existed to arrest plaintiff. The time between Mr. Vanderbilt’s investigation and
plaintiff’s arrest in this case is much more compressed than the timeline in Buckley, but the
functional analysis produces the same outcome. Mr. Vanderbilt was not acting in his role as an

24 

advocate when he allegedly conspired with other defendants to pin Camille’s murder on plaintiff.
Mr. Vanderbilt thus is not entitled to absolute immunity for this alleged conduct.
This leaves Mr. Vanderbilt’s alternative theory—that he is entitled to qualified immunity.
The First Amended Complaint’s allegations also prevent him from qualifying for that form of
immunity. See Eden v. Voss, 105 F. App’x 234, 245 (10th Cir. 2004) (explaining that
prosecutors are entitled to seek qualified immunity when they are acting in an investigative
capacity). Plaintiff alleges that Mr. Vanderbilt violated his constitutional due process rights
when he, along with other defendants, conspired to fabricate and fabricated Tom’s testimonial
evidence. And plaintiff alleges facts sufficient to support these allegations under Rule 12(b)(6)’s
standard. See Doc. 75 at ¶¶ 52, 54, 55; Doc. 75 at ¶ 95. So, the only question for the court is
whether these rights were clearly established during Mr. Vanderbilt’s alleged actions. As
discussed above, undoubtedly they were. See supra Part III.A.3.; see also Pierce, 359 F.3d at
1299 (holding that the right against the deliberate or reckless falsification or omission of
evidence was clearly established as early as 1986).
2. Conspiracy Claims
Mr. Vanderbilt also asserts that the court should dismiss the claims against him because
plaintiff has failed to allege sufficient facts to support a conspiracy. A sufficient conspiracy
claim under § 1983 requires the plaintiff to “allege specific facts showing an agreement and
concerted action amongst the defendants.” Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533
(10th Cir. 1998); see also Edmonson, 962 F.2d at 1548 (“a defendant’s assent can be inferred
from acts furthering the conspiracy’s purpose.”). Plaintiff has alleged specific facts to support
both an agreement and concerted action, and thus he has stated a conspiracy claim against Mr.
Vanderbilt sufficient to survive Rule 12(b)(6).

25 

Plaintiff alleges the defendants “schemed” to pin Camille’s murder on plaintiff. Doc. 75
at ¶ 48. He alleges that Mr. Vanderbilt, Mr. Hayes, and other defendants met several days after
Tom’s arrest and held a meeting to put their plan into action. Id. at ¶ 49. Plaintiff also alleges
that during their meeting, Mr. Vanderbilt and other defendants discussed a plan that Tom should
recant his confession and inform authorities that plaintiff had confessed to the murder. Id. at ¶
53. Finally, plaintiff alleges that Mr. Vanderbilt and other defendants planned Tom’s recanting
before it occurred. Id. at ¶ 55. Mr. Vanderbilt contends that plaintiff relies on “purely
conclusory” allegations. Doc. 81 at 12. But the allegations in plaintiff’s First Amended
Complaint far surpass “purely conclusory” ones and they are sufficiently specific. These
allegations, taken as true, suffice to state a claim that Mr. Vanderbilt conspired to violate
plaintiff’s constitutional rights.
Plaintiff’s First Amended Complaint also alleges an alternative conspiracy theory:
“Alternatively, the scheme was perpetuated solely by the Defendant Officers and Defendant
Hayes, who concealed it from defendant Vanderbilt.” Id. at ¶ 54. Mr. Vanderbilt contends that
plaintiff’s alternative conspiracy claim, in effect, nullifies the viability of a conspiracy claim
against him. But the Federal Rules of Civil Procedure explicitly provide for pleading alternative
theories. Rule 8(d)(2) provides: “A party may set out 2 or more statements of a claim . . .
alternatively or hypothetically.” And, Rule 8(d)(3) provides: “A party may state as many
separate claims or defenses as it has, regardless of consistency. If a party makes alternative
statements, the pleading is sufficient if any one of them is sufficient.” Plaintiff’s First Amended
Complaint alleges sufficient facts for the court to draw a reasonable inference that defendant
conspired to deprive plaintiff’s constitutional rights. Plaintiff’s decision to plead an alternative
theory does not change the outcome of this analysis.

26 

The court thus denies Mr. Vanderbilt’s Motion to Dismiss (Doc. 80).
C. KBI Defendant Officers
Plaintiff brings six claims under § 1983 against the KBI defendant officers Terry Morgan,
George Johnson, and Jim Woods: (Count I) due process violation for fabricating Tom’s
testimonial evidence; (Count II) conspiracy to deprive plaintiff’s constitutional rights by
fabricating Tom’s testimonial evidence; (Count III) Brady v. Maryland15 violation for
withholding exculpatory evidence; (Count IV) malicious prosecution; (Count V) conspiracy to
deprive plaintiff’s constitutional rights by withholding exculpatory evidence; and (Count VI)
failure to intervene. Separately, Mr. Morgan, Mr. Woods, and Mr. Johnson move to dismiss
plaintiff’s claims under Rule 12(b)(6).
As a preliminary matter, all three KBI defendant officers rely on the statute of limitations
and Lyons for their position that plaintiff’s claim is barred by the applicable two-year statute of
limitations in Kansas. See Doc. 84 at 16; Doc. 89 at 14; Doc. 90 at 12. For the same reasons
discussed in Part III.A.4., the court rejects this argument. The statute of limitations does not bar
plaintiff’s claims against the KBI defendant officers.
Next, the KBI defendant officers assert that plaintiff has failed to meet the standard under
Rule 12(b)(6) to state a claim against them. Doc. 84 at 8–9; Doc. 89 at 7– 8; Doc. 90 at 10.
They contend plaintiff’s allegations fail to allege their personal participation in violating his
constitutional rights. This is so, they assert, because plaintiff sometimes grouped the KBI
defendant officers with the Jefferson County defendants and made allegations about the
“defendant officers.” The KBI defendant officers contend that these collective allegations are

15

373 U.S. 83 (1963).

27 

insufficient to state a claim for relief against any of them, and they rely on the Tenth Circuit
opinion Pahls v. Thomas16 to support their position.
In Pahls, our Circuit held that, at summary judgment, plaintiffs must establish that “each
defendant—whether by direct participation or by virtue of a policy over which he possessed
supervisory responsibility—caused a violation of” constitutional rights. Pahls, 718 F.3d at 1228.
The Tenth Circuit held that plaintiffs alleging constitutional rights violations must do more than
show that “‘defendants,’ as a collective and undifferentiated whole, were responsible for those
violations.” Id. “They must identify specific actions taken by particular defendants.” Id. Pahls
also held that “failure to make this showing . . . dooms plaintiffs’ § 1983” claims “and entitles
defendants to qualified immunity.” Id.; see also Robbins v. Oklahoma, 519 F.3d 1242, 1250
(10th Cir. 2008) (“[I]t is particularly important [in a § 1983 action against multiple government
actors] that the complaint make clear exactly who is alleged to have done what to whom, to
provide each individual with fair notice as to the basis of the claims against him or her.”).
But the Tenth Circuit never has adopted blanket prohibition against collective allegations.
The Tenth Circuit permits the Complaint to refer to defendants collectively so long as “there is
no confusion as to whom the allegation is asserted against.” See Briggs v. Johnson, 274 F.
App’x 730, 736 (10th Cir. 2008) (holding that plaintiff’s allegations were sufficiently specific
under Rule 12(b)(6) because plaintiff “clearly nam[ed]” the defendants as the defendants who
committed the allegedly unconstitutional acts).
Also, the allegations in Pahls differ significantly from the ones asserted here. First,
Pahls did not involve conspiracy allegations. See Pahls, 718 F.3d at 1225. And, the Tenth
Circuit has recognized that “[d]irect evidence of an agreement to join a criminal conspiracy is
rare,” so the court properly can infer an agreement based on the defendant’s actions. Edmonson,

16

718 F.3d 1210 (10th Cir. 2013).

28 

962 F.2d at 1548. The court sees no reason why a different rule would apply to allegations of a
civil conspiracy. Second, in Pahls, the district court’s determinations about defendants’
involvement were stated in passive voice. Pahls held that the district court’s determinations that
“‘law enforcement’ subjected plaintiffs to disparate treatment” and that plaintiff’s First
Amendment rights “‘were violated’” were insufficient to show personal involvement by the
defendants. Pahls, 718 F.3d at 1232. In contrast, plaintiff here makes several allegations of fact
about the defendant officers’ actions—and he does so specifically and in the active voice. See
Doc. 75 at ¶ 55 (alleging that the defendant officers “planned Tom’s recantation before it ever
occurred” and coached Tom on the false narrative); see also Id. at ¶ 65 (alleging that “Defendant
Officers falsified Tom’s statements to fit the fictitious roadside meeting”); Id. at ¶¶ 69– 71
(alleging that the “Defendant Officers withheld evidence of Tom’s guilt from [plaintiff’s]
defense and the prosecution” including Tom’s “detailed confession that he tried to have sex with
Camille in his truck . . . and that he had then shot her”); Id. at ¶ 72 (“The Defendant Officers
purposefully withheld their documentation of inculpatory statements made by Tom and [Mr.
Hayes] on the night Tom turned himself in.”). Finally, in Pahls, the plaintiffs had filed a
complaint against government entities, five unnamed officials, and other defendants including
three individual law enforcement defendants. Pahls, 718 F.3d at 1223. So, when plaintiffs
alleged that “law enforcement” violated their constitutional rights, they had lumped eight
individuals and several aspects of the government together in one undifferentiated group. No
basis existed for a reasonable person to infer that any individual defendant personally
participated. Pahls, 718 F.3d at 1231–32.
Here, there is no confusion. Plaintiff’s allegations, when they refer to the “defendant
officers,” refer to the KBI defendant officers—Mr. Morgan, Mr. Woods, and Mr. Johnson—and

29 

the Jefferson County defendants. The “defendant officers” refers to eight individuals who
plaintiff has alleged were integral and active participants in the investigation of Camille’s death,
and then, the conspiracy to frame plaintiff. For example, plaintiff alleges that Mr. Morgan
searched plaintiff’s home, but did not search Tom’s home. Doc. 75 at ¶ 79. And, plaintiff
alleges that Mr. Woods heard Tom’s confession, but withheld it from the prosecution and
defense. Id. at ¶¶ 37, 71. Plaintiff also alleges that Mr. Johnson falsified polygraph results. Id.
at ¶¶ 82–83. Then, collectively, plaintiff alleges that the defendant officers, as part of the
conspiracy, planned Tom’s recantation and withheld evidence of Tom’s guilt. See e.g., Id. at ¶¶
55, 69–71. This is sufficient for the court to infer that the KBI defendant officers personally
participated to violate plaintiff’s constitutional rights.
In sum, plaintiff’s “defendant officer” allegations suffice to show personal involvement
by Mr. Morgan, Mr. Woods, and Mr. Johnson.
1. Mr. Morgan
Mr. Morgan asserts that plaintiff’s First Amended Complaint fails to allege sufficient
facts to support claims against him. Mr. Morgan contends that he only is mentioned explicitly
once: “Defendant Morgan and other Defendant Officers declined to subject Tom’s home—or
even his room—to any rigorous forensic examination, and instead intentionally recovered such
items as Tom’s weapons and ammunition by permitting Tom’s father to handle them and turn
them over.” Id. at ¶ 79. But, as explained above, plaintiff also mentions Mr. Morgan several
times as part of the collective group he calls the “defendant officers.” Id. at ¶ 20. First, plaintiff
alleges that the defendant officers “actively suppressed physical evidence that would have
proven Tom’s guilt including physical evidence from the truck in which Tom had shot Camille . .
. and the shovel that Tom identified as having been used to bury Camille’s body.” Id. at ¶ 78.

30 

Second, plaintiff alleges that Mr. Morgan, along with the other defendant officers, were “active
participants in the investigation of Arfmann’s death and directed various aspects of the
investigation.” Id. at ¶ 19. Third, plaintiff alleges that the defendant officers:
gathered physical evidence; executed search warrants;
photographed the crime scene and victim; conducted and reviewed
polygraph examinations and interviews; completed dozens of
police reports; directed Defendant Carreno to interview certain
witnesses; and themselves interviewed scores of witness including
[plaintiff], Tom, another early suspect, and numerous alibi and
other witnesses.
Id. at ¶ 19. Plaintiff alleges that “defendant Hayes directly schemed with, conspired with, and
collaborated with the” defendant officers, and that “[d]efendant Hayes, Vanderbilt, and/or other
Defendant officers planned Tom’s recantation before it ever occurred.” Id. at ¶¶ 55, 22. Finally,
plaintiff alleges that the defendant officers concealed Tom’s many inculpatory statements from
the defense. Id. at ¶¶ 70–73, 75–76.
a. Qualified Immunity
Mr. Morgan asserts that he is entitled to qualified immunity. So, the court must decide
whether plaintiff has alleged facts sufficient to support a violation of a constitutional right.
Callahan, 555 U.S. at 232. And, the court must determine whether the right at issue was “clearly
established” at the time of defendant’s misconduct. Id. Unless Mr. Morgan’s alleged conduct
violated a clearly established constitutional right, qualified immunity shields him from suit. Id.
Plaintiff alleges that Mr. Morgan violated his constitutional due process rights when he,
along with other defendant officers, fabricated evidence, withheld exculpatory evidence, and
conspired to deprive plaintiff’s constitutional rights. Id. at ¶¶ 78–79, 19, 55, 22, 70–73, 75–76.
Plaintiff has alleged sufficient facts to support his claim that Mr. Morgan violated his
constitutional rights by falsifying and withholding evidence. And, the right against falsification

31 

or omission of evidence clearly was established at the time of his alleged conduct. See Pierce,
359 F.3d at 1299. Mr. Morgan is not entitled to qualified immunity.
b. Malicious Prosecution
Mr. Morgan also contends that plaintiff has not stated a claim for malicious prosecution
against him. As explained above, a malicious prosecution claim under § 1983 requires the
following five elements: (1) the defendant caused the plaintiff’s prosecution; (2) the original
action terminated in favor of the plaintiff; (3) no probable cause supported the continued
prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages.
Wilkins, 528 F.3d at 799. Mr. Morgan contends plaintiff’s First Amended Complaint fails to
allege facts that support several of these elements.
First, Mr. Morgan contends plaintiff failed to plead facts to support that Mr. Morgan
acted with malice. Doc. 84 at 10. But the Tenth Circuit has recognized that “allegations, if
proven,” may support the theory that defendant acted with malice. See Pierce, 359 F.3d at 1296–
97 (affirming district court’s conclusion that “the allegations, if proven, would support that
Defendant possessed malice” in her actions). Similarly here, if plaintiff’s factual allegations are
proven, they could support an inference that Mr. Morgan acted with malice.
Second, Mr. Morgan contends that he did not cause plaintiff’s prosecution. Doc. 84 at
12. But plaintiff specifically alleges that Mr. Morgan failed to search Tom’s home, but
rigorously searched plaintiff’s home. Plaintiff also alleges that Mr. Morgan, as part of the more
general “defendant officers,” suppressed exculpatory evidence. Id. at ¶¶ 78–79, 19, 55, 22, 70–
73, 75–76. These allegations, if proven, support the theory that Mr. Morgan distorted evidence
as part of an effort to convince prosecuting authorities to press charges. See Pierce, 359 F.3d at
1293 (explaining that the actions of one who “prevaricates and distorts evidence to convince the

32 

prosecuting authorities to press charges” can be said to have caused the prosecution). So,
plaintiff has alleged facts that support this element.
Finally, Mr. Morgan contends that the original action has not terminated in favor of
plaintiff because in December 2015, his conviction was merely vacated and the charges against
him dismissed without prejudice. Doc. 84 at 13. But, as explained in above, the Tenth Circuit
already has rejected this very theory. See supra Part III. B.3.; see also Pierce, 359 F.3d at 1294
(explaining that such a “narrow construction of state common law would be inconsistent with
federal constitutional standards.”).
In sum, plaintiff has alleged sufficient facts to support a malicious prosecution claim
against Mr. Morgan.
c. Fabrication of Evidence
Mr. Morgan next asserts that plaintiff has failed to state a claim for fabricating evidence
or Brady claim against him. The Supreme Court case, Brady v. Maryland, focuses on the duty to
disclose exculpatory evidence. Morgan v. Gertz, 166 F.3d 1307, 1309 (10th Cir. 1999). The
“duties to disclose and preserve . . . exculpatory evidence [are] grounded in the due process right
to a fair trial.” Id. at 1310. Here, plaintiff argues that Mr. Morgan failed to search Tom’s home
and bedroom, and thus participated in suppressing evidence by ensuring that no physical
evidence from Tom could be obtained. Doc. 94 at 16. And, as part of the defendant officers,
plaintiff alleges that he “suppressed physical evidence that would have proven Tom’s guilt
including . . . the shovel that Tom identified as having been used to bury Camille’s body.” Id. at
¶ 78. Plaintiff also alleges that the defendant officers concealed Tom’s many inculpatory
statements from the defense. Id. at ¶¶ 70–73, 75–76. Taken as true, one properly could infer

33 

from these allegations—if proven—establish that Mr. Morgan violated plaintiff’s due process
right by fabricating evidence.
d. Failure to Intervene
Mr. Morgan asserts that plaintiff’s failure to allege that he participated personally in the
conspiracy and the alleged acts that deprived plaintiff of his right to a fair trial also fails to link
him to the claim that the defendant officers failed to intervene. “It is widely recognized that all
law enforcement officials have an affirmative duty to intervene to protect the constitutional
rights of citizens from infringement by other law enforcement officers in their presence.”
Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (citing O’Neill v. Krzeminski, 839 F.2d 9,
11 (2d Cir. 1988); Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986) (rev’d on other grounds);
Webb v. Hiykel, 713 F.2d 405, 408 (8th Cir. 1983); Bruner v. Dunaway, 684 F.2d 422, 426 (6th
Cir. 1982); Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972)). And “an officer who is present but
fails to intervene to prevent another law enforcement official from infringing a person’s
constitutional rights is liable if the ‘officer had reason to know . . . that any constitutional
violation has been committed by a law enforcement official [ ] and the officer had a realistic
opportunity to intervene to prevent the harm from occurring.’” Reid v. Wren, No. 94-7122, 1995
WL 339401, at *3 (10th Cir. June 8, 1995) (quoting Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.
1994)).
Plaintiff’s allegations, if proven true, could support a finding that Mr. Morgan failed to
intervene to prevent officials from infringing on his constitutional rights.
e. Conspiracy
Finally, Mr. Morgan asserts that plaintiff has failed to state a claim that he conspired with
others to fabricate and withhold evidence to deprive plaintiff’s constitutional rights. Doc. 84 at

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15. As already explained, a conspiracy claim requires plaintiff to allege facts showing an
agreement and concerted action. Fisher, 531 F. Supp. 2d at 1263. And, “a defendant’s assent
can be inferred from acts furthering the conspiracy’s purpose.” Edmonson, 962 F.2d at 1548.
Plaintiff alleges that Mr. Morgan helped frame him by failing to conduct rigorous forensic
examination of Tom’s home and bedroom. Doc. 75 at ¶ 27. And, plaintiff alleges that Mr.
Morgan, as part of the conspiracy with the defendant officers, suppressed physical evidence and
helped plan Tom’s recantation. Id. at ¶¶ 78, 55, 22. These allegations, if true, suffice to support
an inference that Mr. Morgan agreed to the conspiracy and took concerted action to further it.
The court thus denies Mr. Morgan’s Motion to Dismiss (Doc. 83).
2. Mr. Woods
Like Mr. Morgan, Mr. Woods asserts that plaintiff’s First Amended Complaint fails to
allege sufficient facts to support the claims against him. Mr. Woods contends that the First
Amended Complaint only mentions him twice: first, when plaintiff alleges that Mr. Woods and
other defendants met with Tom and Mr. Hayes at the Jefferson County Sheriff’s department, id.
at ¶ 37, and second, when it alleges that Mr. Woods and other defendants “purposely withheld
their documentation of Tom’s detailed confession.” Id. at ¶ 71. But, like Mr. Morgan, Mr.
Woods is included in plaintiff’s allegations against the defendant officers.
a. Qualified Immunity
Mr. Woods asserts that he is entitled to qualified immunity because plaintiff has not
alleged that Mr. Woods caused a violation of his constitutional rights. But this ignores important
aspects of the First Amended Complaint. It alleges that Mr. Woods and the defendant officers
“purposely withheld their documentation of Tom’s detailed confession.” Id. at ¶ 71. And, the
Complaint alleges that Mr. Woods, as one of the defendant officers, suppressed physical

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evidence and helped plan Tom’s recantation. Id. at ¶¶ 78, 55, 22. Plaintiff sufficiently has
alleged that Mr. Woods violated his constitutional rights, and those rights were clearly
established when he allegedly engaged in this conduct. See Pierce, 359 F.3d at 1299 (holding
that the right against the deliberate or reckless falsification or omission of evidence was clearly
established as early as 1986). Mr. Woods is not entitled to qualified immunity.
b. Malicious Prosecution
Also like Mr. Morgan, Mr. Woods asserts that plaintiff has failed to state a malicious
prosecution claim against him because he did not initiate or continue the proceedings against
plaintiff. But again, the content of the First Amended Complaint contradicts this theory. It
alleges that Mr. Woods helped fabricate testimony and that he withheld evidence. Id. at ¶¶ 78,
55, 22. This is sufficient, if proved true, to support a finding for plaintiff on the first element of a
malicious prosecution claim. Pierce, 359 F.3d at 1293 (explaining that one who “prevaricates
and distorts evidence to convince the prosecuting authorities to press charges” can be said to
have caused the prosecution). Mr. Woods also contends that the proceedings did not terminate in
plaintiff’s favor. But the court already has rejected this argument. See supra Part III.B.3.
Plaintiff thus has stated a malicious prosecution claim against Mr. Woods.
c. Fabrication of Evidence and Brady
Mr. Woods also asserts that plaintiff fails to state a claim for fabrication of evidence or a
Brady violation against him. But, plaintiff alleges that Mr. Woods, as one of the defendant
officers, “planned Tom’s recantation before it ever occurred.” Id. at ¶ 55. He also asserts that
the defendant officers “suppressed physical evidence that would have proven Tom’s guilt
including . . . the shovel that Tom identified as having been used to bury Camille’s body.” Id. at
¶ 78. Also, plaintiff alleges that the defendant officers concealed Tom’s many inculpatory

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statements from the defense. Id. at ¶¶ 70–73, 75–76. Taken as true, one can infer that Mr.
Woods violated plaintiff’s due process right by fabricating and withholding evidence.
d. Conspiracy
Finally, Mr. Woods asserts that plaintiff has failed to show that a conspiracy involving
him is plausible. Mr. Woods relies on Tom’s suicide note as support for his position, asserting
that Tom’s failure to mention any KBI defendant officers demonstrates that Tom did not believe
that Mr. Woods was a part of the conspiracy. Doc. 89 at 13. But, plaintiff alleges that Mr.
Woods, as part of the defendant officers, suppressed physical evidence and helped plan Tom’s
recantation. Doc. 75 at ¶¶ 78, 55, 22. These allegations, if true, would suffice to support any
inference that Mr. Woods agreed to the conspiracy. See Fisher, 531 F. Supp. 2d at 1263
(explaining that a claim for a conspiracy requires plaintiff to allege facts showing an agreement
and concerted action); see also Edmonson, 962 F.2d at 1548 (“a defendant’s assent can be
inferred from acts furthering the conspiracy’s purpose.”). And, plaintiff’s allegations, if true, are
sufficient to support his claim that Mr. Woods failed to intervene to prevent officials from
infringing on his constitutional rights. The court denies Mr. Wood’s Motion to Dismiss (Doc.
85).
3. Mr. Johnson
Like the KBI defendant officers, Mr. Johnson asserts that plaintiff’s First Amended
Complaint fails to allege sufficient facts to support the claims against him. Mr. Johnson
contends that the First Amended Complaint barely mentions him. But this assertion ignores the
Complaint’s actual content. It references Mr. Johnson, individually, a number of times and in
important ways. See Doc. 75 at ¶¶ 57–60 (alleging that Mr. Johnson instructed Tom to continue
lying to implicate plaintiff during the polygraph exam); Id. at ¶ 74 (alleging that Mr. Johnson

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purposefully withheld their documentation of Tom’s statements during the polygraph
examination). And, as discussed above, plaintiff includes Mr. Johnson in his allegations against
the defendant officers.
Mr. Johnson joins the KBI officer defendants, asserting that he is entitled to qualified
immunity. So, the court must determine whether plaintiff has alleged that Mr. Johnson violated
his constitutional right, and if so, whether that right was clearly established at the time of Mr.
Johnson’s conduct. Callahan, 555 U.S. at 232.
Plaintiff has alleged sufficient facts to support the claim that Mr. Johnson violated his
constitutional rights. Mr. Johnson contends that he could not have violated plaintiff’s
constitutional rights since plaintiff was under no obligation to take the polygraph exam, and the
results were not used at trial. Doc. 90 at 11. But Mr. Johnson does not cite, and the court does
not find, any authority to support his conclusory assertion. And, like the other KBI defendant
officers, plaintiff includes Mr. Johnson in his defendant officer allegations. Plaintiff alleges that
the defendant officers suppressed physical evidence, and helped plan Tom’s recantation. Doc.
75 at ¶¶ 78, 55, 22. Plaintiff has alleged that Mr. Johnson violated his constitutional rights, and,
these rights were clearly established when Mr. Johnson acted. See Pierce, 359 F.3d at 1299
(holding that the right against the deliberate or reckless falsification or omission of evidence was
clearly established as early as 1986). Mr. Johnson is not entitled to qualified immunity.
And, like with the other KBI defendant officers, plaintiff has alleged sufficient facts to
support his claims for relief against Mr. Johnson. Plaintiff alleges that Mr. Johnson helped frame
plaintiff by instructing Tom to continue lying to implicate plaintiff. Doc. 75 at ¶¶ 57–60.
Plaintiff also alleges that Mr. Johnson withheld Tom’s confession during the polygraph
examination. Id. at ¶ 74. And, plaintiff includes Mr. Johnson in his allegations against the

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defendant officers. See Id. at ¶¶ 57–60, 74, 78, 55, 22. In sum, plaintiff has alleged sufficient
facts to support that Mr. Johnson violated his constitutional rights, conspired to violate his
constitutional rights, violated Brady v. Maryland, failed to intervene, and maliciously prosecuted
plaintiff.
The court denies Mr. Johnson’s Motion to Dismiss (Doc. 86).
IV.

Conclusion
For the reasons explained above, the court denies defendants’ motions to dismiss.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant Michael Hayes’

Motion to Dismiss (Doc. 76) is denied.
IT IS FURTHER ORDERED BY THE COURT THAT defendant Jim Vanderbilt’s
Motion to Dismiss (Doc. 80) is denied.
IT IS FURTHER ORDERED BY THE COURT THAT defendant Terry Morgan’s
Motion to Dismiss (Doc. 83) is denied.
IT IS FURTHER ORDERED BY THE COURT THAT defendant Jim Woods’
Motion to Dismiss (Doc. 85) is denied.
IT IS FURTHER ORDERED BY THE COURT THAT defendant George Johnson’s
Motion to Dismiss (Doc. 86) is denied.
IT IS SO ORDERED.
Dated this 4th day of August, 2017, at Topeka, Kansas.

s/ Daniel D. Crabtree______
Daniel D. Crabtree
United States District Judge

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