Gavitt v. Ionia, County of et al
Filing
93
OPINION & ORDER denying 87 Deft Devries' Motion to Dismiss. Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID L. GAVITT,
Case No. 14-12164
Plaintiff,
Honorable Nancy G. Edmunds
v.
BRUCE BORN, special personal
representative of the estate of JOHN E.
DEVRIES, deceased,
Defendant.
/
OPINION AND ORDER DENYING DEFENDANT DEVRIES’ MOTION TO DISMISS
[87]
The series of events giving rise to this action revolve around Plaintiff David Gavitt’s
arrest and 1986 conviction on state criminal charges of arson and felony murder. See
People v. David Lee Gavitt, Ionia County Circuit Court Case No. 85-007555. Gavitt’s
conviction was vacated in 2012 after the Michigan Innocence Clinic successfully argued
that there was newly discovered scientific analysis of the origin and cause of the fire
establishing that there was no arson. On June 6, 2012, following a stipulation from the Ionia
County Prosecuting Attorney’s Office, all charges against Gavitt were dismissed and he
was released from custody. All told, Gavitt spent over 26 years in prison.
On June 2, 2014, Gavitt filed this civil rights action against numerous individuals
involved with the State’s prosecution of the criminal case. The Court has entertained
significant motion practice resulting in the dismissal of all Defendants with the exception of
John DeVries- a former technician employed by the Michigan State Police Crime
Laboratory.1 Currently before the Court is DeVries’ motion to dismiss the sole remaining
count in this action. For the reasons explained below, the Court DENIES DeVries’ motion.
I.
BACKGROUND
The facts related to Gavitt’s criminal prosecution–and subsequent release–have been
thoroughly documented in several of the Court’s previous decisions. See (Dkt. 65, Order).
In order to more fully understand DeVries’ role in the State’s criminal case against Gavitt,
and the broader context in which this case is premised, the Court reproduces those facts
below.
II.
FACTS
A. Fire, Investigation, Arrest, Trial, and Conviction
Gavitt survived a March 9, 1985 house fire. His wife and two daughters tragically did
not. (Compl., ¶¶ 61-67.) An investigation was initiated by the City of Ionia Police
Department and the Michigan State Police Arson Task Force. (Id. at ¶¶ 71-101.)
On the morning of March 10, 1985, Defendants Kalman and Fatchett, then-Michigan
State Police (“MSP”) officers assigned to the MSP Arson Strike Force Unit (“Det./Sgt.
Kalman” and “Det./Sgt. Fatchett” respectively), were dispatched to the scene of the house
fire to investigate its cause and origin. Based on their initial review of the evidence, they
concluded that the fire was incendiary in nature. (Id. at ¶¶ 48-49, 101-103.) At 2:30 in the
afternoon that same day, Det./Sgts. Kalman and Fatchett summoned Defendant Klein,
then-Sergeant with the Ionia Police Department (“Sgt. Klein”), to the burned home, walked
1
DeVries died over 20 years before this action was filed. After a great deal of
procedural hand wringing, Gavitt successfully moved to substitute a special personal
representative to defend DeVries’ estate.
2
him through the evidence at the fire scene that led them to their initial conclusion that the
fire was incendiary in nature, and collected evidence that Sgt. Klein then placed in an Ionia
Police Department evidence locker. (Id. at ¶¶ 21, 108-115.) Sgt. Klein then continued his
investigation by obtaining evidence from and interrogating Plaintiff David Gavitt (“Gavitt”),
and obtaining more evidence from the burned home. (Id. at ¶¶ 116-121, 125-129.)
On March 12, 1985, as reported in Det./Sgt. Kalman’s March 1985 Report, a meeting
was held “for the purpose of reviewing the evidence and determining the course of the
investigation.” (Defs. Fatchett’s and Kalman’s Mot., Ex. C, Kalman Rpt. at 10.) Defendant
Prosecutor Gabry is listed as being present. (Id.) Det./Sgt. Kalman reported that he
presented evidence, a discussion was held, and a conclusion reached that Gavitt may have
set the fire himself and was unable to save his family once the fire started:
Undersigned officer explained the burn patterns and also relating [sic] the burn
patterns to the burns on the victim. A formal discussion was held on all the
evidence obtained and it is the feeling that there is strong evidence pointing to
the fact that MR. DAVID GAVITT may have indeed set the fire himself and was
unable to save his family once the fire started.
(Id.) Sgt. Klein’s March 20, 1985 Report also discussed the March 12th meeting and calls
it a “‘skull session’ starting at/around 8:30 am, ending a short time later.” (Ionia Cnty. Defs.’
Mot., Ex. 2, 3/20/85 Rpt. at 1, “Journal Entry.”) Sgt. Klein does not list Prosecutor Gabry
as being present. Rather, he reports:
Journal Entry: It was on TUES, MARCH 12th, 1985 that this investigating officer,
Sgt. Wieczorek and Chief Voet met with the following: City Superintendent Allen
Housler, Det/Sgt. JOHN KALMAN and Det/Sgt. JOE DeKRACKER of the Arson
Strike Force, MSP Rockford Post, this meeting was an “initial assessment of the
case”. It should be noted that this meeting was a “skull session” starting
at/around 8:30 am, ending a short time later.
(Id.) (See also Compl., ¶¶ 122-123, 232-233, 270 for discussion of March 12, 1985
3
meeting.)
On June 10, 1985, a felony complaint was issued, and state criminal charges were
brought against Gavitt – three counts of murder, three counts of felony murder, arson, and
arson insured property – and he was subsequently arrested. (Ionia Cnty. Defs.’ Mot., Ex.
4, 6/10/85 criminal complaint and information.) Sgt. Klein was the complaining witness on
the criminal complaint. (Id.)
On June 21, 1985, a preliminary examination hearing was held on the criminal
charges brought against Gavitt. District Court Judge James Ward was the presiding judge
and Defendant Gabry was the prosecutor. The District Court found that probable cause
existed on the charged offenses – murder, felony murder, and arson – but dismissed the
insurance fraud charge. (Compl., ¶¶ 177-178.)
A jury trial was held in the Circuit Court for the County of Ionia. See People v. David
Lee Gavitt, Ionia County Circuit Court Case No. 85-007555. On February 14, 1986, a jury
convicted Gavitt on three counts of murder committed in the perpetration of arson (first
degree felony murder) and one count of arson to a dwelling place. (Ionia Cnty. Defs.’ Mot.,
Ex. 6, 2/14/86 Verdict.) The one count of arson was dismissed by the Court at sentencing.
(Id., Ex. 7, 4/18/86 Sent. Tr. at 2-3.)
On April 18, 1986, Gavitt was sentenced to “imprisonment for life on each of the three
counts of murder, to be served concurrently with each other.” (Ionia Cnty. Defs.’ Mot, Ex.
5, 5/1/86 Judg. of Sentence.)
B. Innocence Clinic’s Post-trial Motion for Relief, Stipulation, and Dismissal
In September 2011, a motion for relief from judgment was filed on Gavitt’s behalf by
the University of Michigan Law School’s Innocence Clinic, arguing that there was newly
4
discovered scientific analysis of the origin and cause of the March 1985 fire establishing
that there was no arson. (Defs. Fatchett’s and Kalman’s Mot., Ex. A, Gavitt Mot. for Relief,
Brief at 16-37.) That motion explained that evidence of actual innocence was only recently
discovered because, beginning in 1992, there has been a complete revolution in the field
of fire investigation:
14. The field of fire investigation has undergone a complete revolution since Mr.
Gavitt was convicted in 1986. In 1992, the National Fire Protection Association
adopted NFPA 921, the current standard of care for fire investigations, which for
the first time put the field of fire investigation on a scientific basis.
15. In light of the changes in the field of fire investigation, John Lentini – a worldrenowned fire investigator who has reviewed all available testimony and
evidence in this case – has concluded that there is no basis to conclude that
arson was the cause of the Gavitt fire. Mr. Lentini’s affidavit is attached to the
brief accompanying this motion.
16. Mr. Lentini’s findings are rooted in the crucial concept of “flashover,” which
was not well understood by the fire investigation community at the time of Mr.
Gavitt’s trial. During flashover – a phenomenon that takes place when a
compartment like the Gavitt living room catches fire – a room becomes so hot
that every exposed combustible surface can catch fire.
*****
29. Mr. Lentini’s scientific conclusions regarding the origin and cause of the
Gavitt fire meet this [newly discovered evidence] test. His findings are based on
the new standards of origin and cause investigation, which were not adopted
until the early 1990s, at the earliest, years after Mr. Gavitt’s trial. The evidence
refutes all scientific evidence presented at trial, so it is not cumulative. Further,
because the prosecution’s case relied wholly on the testimony of fire experts, no
rational jury could have found Mr. Gavitt guilty of murder if the findings of Mr.
Lentini or any competent fire investigator applying modern standards had been
presented. This is particularly true when this evidence is considered alongside
the new evidence regarding the absence of gasoline on the carpet samples. . .
.
30. Finally, because the field of gas chromatography was much less precise in
1986 than it is today, trial counsel could not have discovered the new evidence
that undermines Mr. DeVries’s testimony through the exercise of due diligence,
and the fourth and final prong for granting a new trial based on newly-discovered
5
evidence is satisfied.
(Id., Mot. at 3 (emphasis added).)
The supporting brief relied heavily on John Lentini’s Affidavit and similarly argued that,
because of “significant advancements in the field of fire science and arson investigation,”
there is newly-discovered evidence that undermines the prosecution’s case against Gavitt:
While the investigation of this case was, perhaps, normal for a fire investigation
conducted in the mid-1980s, approximately a decade before scientific principles
were first applied to fire investigation, practically all of the investigative methods
and conclusions reached by the various fire investigators in this case fail to meet
modern standards of accuracy and reliability.
*****
The field of fire investigation has undergone a complete revolution since Mr.
Gavitt’s conviction. John Lentini Affidavit ¶¶ 15-59. Theories that low-burning,
alligatoring, pour patterns, depth of char, and temperature and speed of fires can
serve as indicators of arson were once unquestioned, but have been completely
and unequivocally repudiated by rigorous scientific testing. Id. at ¶¶ 36-59. As
such, every indicator of arson relied upon by the prosecution’s experts at Mr.
Gavitt’s trial has been discredited and is understood to be useless in determining
the true origin and cause of fires. Id. Many factors once thought to be present
only in accelerated fires are now understood to be present in natural fires that
have undergone flashover and progressed to full room involvement, a
phenomenon that was not understood in 1986[.] Id. at ¶¶ 29-35.
*****
Mr. Lentini’s finding that Mr. DeVries’s testimony about the carpet flame tests
was false meets all parts of the standard for newly-discovered evidence. Given
that the understanding of flashover is a novel concept in arson science and
certainly was not known outside of a very small subset of the scientific
community at the time of Mr. Gavitt’s trial, the evidence itself and not merely its
materiality is newly-discovered. For this same reason, it is clear that the
evidence could not have been discovered with due diligence at the time of trial;
indeed the concept of flashover would not become widely known and understood
by fire investigators until at least a decade after Mr. Gavitt’s conviction. . . .
(Id., Br. at 7, 13, 36-37 respectively (emphasis added).)
As Mr. Lentini admitted in his affidavit, at the time that Sgt. Fatchett and the Ionia
6
County Prosecutor’s expert, Dr. Edwards, considered the impact of flashover, they had no
way of knowing that their generally accepted interpretations of burn patterns would be
refuted years later:
Neither Sgt. Fatchett nor Dr. Edwards considered the impact of flashover and the
impact of the burning curtains when they attempted to discern what caused the
patterns they observed on the living room floor in the course of their
investigation. Nor would such consideration have been expected in 1986,
because the state of the art in fire investigation had not come to fully recognize
flashover at that time.
*****
All of the above testimony [Defendant Fatchett’s trial testimony evaluating
evidence from the fire and opining that the fire was intentionally set] can be
shown by today’s standards to have been false and misleading, albeit without
malicious intent. . . .
*****
The State’s experts had no way of knowing that their interpretation of the burn
patterns at the Gavitt residence was without any scientific validity because, at
the time of the trial, those interpretations were, in fact, generally accepted by
most fire investigators, including your affiant. The misinterpretation was
bolstered by the incorrect laboratory analysis performed by Mr. DeVries. The
state’s fire investigators “expectations” were not properly “calibrated.” They
expected the confined fire in the Gavitt residence to behave like an unconfined
fire. Because the fire did not meet their expectations of normal fire behavior,
they incorrectly determined the fire to be incendiary.
(Defs. Fatchett’s and Kalman’s Mot., Ex. A, Gavitt Mot. for Relief, Appendix B, Lentini Aff.
at ¶¶ 66, 70, 100 (emphasis added).)
An experienced fire investigator that Gavitt’s defense attorney consulted with in 1985
also provided an affidavit which was attached as an exhibit to Gavitt’s motion for relief.
(Defs. Fatchett’s and Kalman’s Mot., Ex. A, Lentini Aff., Appendix R, Churchwell Aff. at ¶¶
1-5.) Mr. Churchwell, like Mr. Lentini, stressed that “the world of fire science is vastly
different today than it was in 1985;” that the way he “would have viewed the fire scene in
1985 is completely different from the way” he “would view the same scene today;” and “the
7
advancements in fire science would enable [him] to have far better insights and be wary
of false findings today.” (Id. at ¶ 6.) Mr. Churchwell, like Mr. Lentini, stated that he
subscribed to the same beliefs that science has now proven to be false; that he can say
now that Gavitt was falsely convicted; but could not have reached that conclusion in 198586 when he was consulting with defense counsel:
Well into the 1980's, the arson investigation profession believed that things like
floor burn patterns, low burning, deep charring and alligatoring were automatic
indicators of arson: I subscribed to those beliefs at one time as well. But in the
1990s, with a wider understanding of the concept of flashover and the
emergence of NFPA 921, the profession grew up and began to embrace the
rigors of actual science. Upon doing so, the open-minded among us discovered
that the old indicators that we thought were automatic markers of arson were in
fact not. This led to the realization that each of us – investigators who had
worked in the 1970s and 1980s – had misread many fire scenes, possibly
leading to the conviction of innocent people. I have no doubt in my mind that
David Gavitt is one such falsely-convicted person. I can say this knowing what
I know today, but such a conclusion would have been impossible for me to make
in 1985-86 (when Mr. Kolenda consulted with me) because the profession had
yet to become enlightened to the errors of the old ways of arson investigation at
that time.
(Id. at ¶ 10 (emphasis added).)
Mr. Churchwell also admitted that he “would likely have made the same mistake” as
those investigating the Gavitt home fire by failing to give adequate consideration to possible
accidental causes of that fire:
As I know from having worked many similar fires in the 1980s, the fact that
obvious sources of ignition and the presence of various fuels (candles, ashtray,
oil lamps, paneling, etc.) went largely ignored at the trial is not all that surprising.
In those days, fire investigators would look first for pour patterns, alligatoring and
other such things, and upon finding them, we would assume the fire was arson
– so much so that we’d ignore far more obvious accidental sources of the fire.
I have no doubt that the investigators who looked at the fire scene at the Gavitt
home made this mistake. As cautious and careful as I always try to be, I would
likely have made the same mistake upon seeing the Gavitt fire scene in 1986:
Fire investigators simply did not have enough knowledge about the true nature
of enclosed (compartment) fires at that time. Today, years later, being wise to
8
the many advancements and the rigors of actual science that have finally come
to dominate the arson investigation profession, I can say that the prosecution’s
experts were blinded by the myths (alligatoring, charred glass, low burning, etc.),
and failed to give due deference to far more obvious and likely accidental
sources of the fire.
(Id. at ¶ 12 (emphasis added).)
The parties stipulated to a stay of Gavitt’s motion, allowing the Ionia Prosecutor’s
Office time for scientific review of Gavitt’s claims. (Ionia Ctny. Defs.’ Mot., Ex. 12, 9/15/11
Stip.) On June 6, 2012, after a thorough investigation, current Ionia County Prosecutor
Ronald Schafer, on behalf of the People of the State of Michigan, responded to Gavitt’s
motion.
Prosecutor Schafer acknowledged that, although “fire investigators” involved in the
original investigation “held to a common understanding within fire investigation,” it is now
known that that “was inaccurate, specifically regarding the recognition and identification of
unusual burn patterns in the floor as definitive evidence of ignitable liquid pour patterns.
Unfortunately, during that time period many fire investigators did not understand the
phenomena of flashover and post-flashover and their effects on the production of unusual
burn patterns in floors within compartments.” (Defs. Fatchett’s and Kalman’s Mot., Ex. B,
People’s Resp. at 16.) Prosecutor Schafer also acknowledged that Gavitt had satisfied the
requirements for a new trial.
[T]he Peoples [sic] recent investigation confirms the 1985 findings which found
the presence of accelerants on the carpet samples introduced at trial can no
longer be independently verified as having a presence of ignitable liquids,
specifically gasoline. Therefore, the parameters for meeting the legal
requirement for a new trial are not disputed.
(Id.)
Despite an admission that “three independent analyses of the evidence suggest there
9
was likely no gasoline on the carpet samples taken out of the Gavitt house in 1985,”
Prosecutor Schafer emphasized that “there are still a great deal of questions surrounding
this case which raise significant questions.” (Id. at 18.) “Still today, these unanswered
questions linger when looking at the case on the whole, even in light of the acknowledged
findings in this response. In fact, this is the exact type of case that would have remained
open had it not been prosecuted earlier; the type of case where justice would demand that
it stay open.” (Id. at 19.) Nonetheless, Prosecutor Schafer acknowledged, “it does not
change the fact that fire investigation has advanced in the twenty-seven years since this
fire.” (Id. at 19-20.)
Prosecutor Schafer identified some of those fire investigation advances and explained
why, in light of those advances, Gavitt cannot be retried.
In particular, our understanding of flashover, post-flashover and the production
of unusual burn patterns in floors, potentially identified as pour patterns, is
different today than in 1985. Testing of materials in fire cases has also
advanced, with more sophisticated instrumentation and analysis. Consequently,
there is new evidence in this case and [Gavitt] is entitled to a new trial. As
outlined, based on today’s understanding of fire dynamics and the evolved level
of fire investigation, this fire incident would likely be classified as undetermined
and consequently the People will not be able to retry [Gavitt] . . . . there is only
one thing known with certainty, as of today, this case involves a fire of
undetermined origin and cause. Having no laboratory verification of the
presence of an accelerant, combined with what the People now know through
scientific research and testing regarding flashover and post-flashover
compartment fires, and the production of unusual burn patterns in the floor, the
determination that an ignitable liquid (gasoline) was used to initiate the fire at the
Gavitt residence cannot be verified. As a result, this is a case this office could
not charge as arson based on the evidence available today. However, this is
also a case that, if it was new today, this office would not close. There are
simply too many questions, questions which may never be answered.
Ultimately, this remains a case in which the lives of three innocent people were
taken by a fire that can only be classified as having an undetermined origin and
cause.
(Id. at 20 (emphasis added).)
10
On June 6, 2012, the People of the State of Michigan and Gavitt stipulated that
Gavitt’s motion for relief from judgment be granted, that all charges against Gavitt be
immediately dismissed, and that the Court order his immediate release from the custody
of the Michigan Department of Corrections. (Ionia Ctny. Defs.’s Mot, Ex. 15, 6/6/12 Stip.)
III.
PROCEDURAL HISTORY
On December 15, 2014, the Court dismissed all of Gavitt’s claims and further denied
his motion to amend the complaint with one limited exception, finding that: “the only claim
that would survive a Rule 12(b)(6) motion to dismiss and thus not be futile in Count I is that
based on alleged misrepresentations occurring during the investigation time period”
asserted against DeVries. (Order, Dkt. No. 69 at 10) (emphasis added). Following the
Court’s order, Gavitt filed a third amended complaint against DeVries maintaining, in
essence, that he “fabricated, concealed and offered false and misleading test reports, data,
and testimony as evidence utilized by the Ionia County Prosecutor for the criminal
prosecution of David Gavitt.” (Third Amend, Compl. ¶ 51). On June 5, 2015, Bruce Born,
as personal representative of the Estate of John DeVries, filed the instant motion to dismiss
the last remaining count of the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6).
IV.
STANDARD OF REVIEW
The Sixth Circuit recently noted that under the United States Supreme Court's
heightened pleading standard laid out in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “a complaint only survives a motion to
dismiss if it contains sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Estate of Barney v. PNC Bank, Nat'l Ass’n, 714 F.3d 920, 924-25
(6th Cir. 2013) (internal quotation marks and citations omitted). The court in Estate of
11
Barney goes on to state that under Iqbal, “[a] claim is plausible 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. (internal quotation marks and citations omitted).
Furthermore, “[w]hile the plausibility standard is not akin to a ‘probability requirement,’ the
plausibility standard does ask for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678. Finally, “where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged—but
it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Id. at 679 (quoting Fed. R. Civ.
P. 8(a)(2)). If the plaintiffs do "not nudge[ ] their claims across the line from conceivable
to plausible, their complaint must be dismissed." Twombly, 550 U.S. at 570.
V.
ANALYSIS
Gavitt’s amended complaint relies on three factual premises in support of the theory
that DeVries intentionally misrepresented evidence in violation of his constitutional right to
due process under the Fourteenth Amendment. More specifically, Gavitt maintains that
DeVries falsely reported that (1) “the ‘flame spread test’ of the carpet sample proved that
the carpet would not burn without the presence of an accelerant[]’”, and (2) the “gas
chromatograph[] analysis [of the carpet] showed two of the pieces to contain residues of
highly evaporated gasoline . . . .” (Amend. Compl. at ¶¶ 26, 33). Gavitt further claims that
DeVries concealed “from the Prosecutors, David Gavitt, or his attorneys that [the Michigan
State Police] regional crime laboratories from 1980-1985 were experiencing contamination
of samples resulting in false positive findings of accelerants in gas chromatograph analysis
. . . . ” (Id. at ¶ 41).
DeVries, for his part, argues that he is immune from any civil liability stemming from
12
Gavitt’s wrongful conviction for two reasons. First, he maintains that the real source of
Gavitt’s alleged injury is “his trial and conviction for felony murder. And all of DeVries’ action
in connection with those events are subject to . . . absolute immunity.” (Def.’s Mot. 5). In
the alternative, DeVries suggests that he is protected under the doctrine of qualified
immunity on the basis that all of his actions were objectively reasonable and “consistent
with understandings of fire behavior and other science at the time.” (Id. at 11). The Court
considers each of DeVries’ arguments in turn.
A. Absolute Immunity
According to Defendant, “the real gist of Gavitt’s Amended Complaint is that he was
wrongfully convicted based on DeVries’s testimony at his trial.” (Def.’s Mot. 8). Extending
this logic to its natural conclusion, Defendant maintains that DeVries is entitled to absolute
immunity for all of his conduct in connection with Gavitt’s prosecution. This argument
misapprehends both Gavitt’s complaint and well-settled Sixth Circuit precedent regarding
the scope of absolute immunity.
The federal courts have adopted a functional approach to determine whether absolute
immunity applies to bar civil liability. See Spurlock v. Thompson, 330 F.3d 791, 797 (6th
Cir. 2003) (citing cases). “Using this approach, courts must look to the nature of the
function performed, not the identity of the actor who performed it.” Koubriti v. Convertino,
593 F.3d 459, 467 (6th Cir. 2010) (internal quotation marks and citation omitted).
“Functions that serve as an integral part of the judicial process or that are intimately
associated with the judicial process are absolutely immune from civil suits. Meanwhile,
functions which are more investigative or administrative in nature, because they are more
removed from the judicial process, are subject only to qualified immunity.” Id. (internal
13
quotation marks and citations omitted).
In Gregory v. City of Louisville, 444 F.3d 725, 738 (6th Cir. 2006), the Sixth Circuit
further clarified the important distinction between testimonial and pretrial acts. Similar to
here, the plaintiff in Gregory alleged that a detective “fabricated evidence when she
construed and documented [p]laintiff’s hairs as a ‘match’ to those found at [a] crime
scene.’” Id. at 737. The detective argued that such “pretrial acts [were] [] inextricably linked
to [her] testimony at trial and therefore [could not] be the basis of liability under the doctrine
of absolute immunity.” Id. The court disagreed, holding that “absolute testimonial immunity
does not ‘relate backwards’ to ‘protect [a defendant] for any activities he allegedly engaged
in prior to taking the witness stand for his [] testimony.” Id. at 738. In other words,
“[s]ubsequent testimony can not insulate previous fabrications of evidence merely because
the testimony relies on that fabricated evidence.” Id. at 739.
As Gavitt’s amended complaint makes clear, the bulk of his claims against DeVries
are focused squarely on acts taking place during the investigatory stage. Indeed, Gavitt
alleges that “DeVries falsely reported . . . that the ‘flame spread test’ of the carpet sample
demonstrated that the carpet would not burn without the presence of an accelerant”, and
that the “Court was materially misled by DeVries’ . . . laboratory reports that physical
evidence secured from the scene had been forensically analyzed and proven to contain
residues of highly evaporated gasoline . . . . ” (Amend. Compl. ¶¶ 23, 33) (emphasis
added).2 As in Gregory, any “report affected the course of the criminal proceedings
2
To the extent that Gavitt is attempting to lump statements made by DeVries
during the preliminary exam and/or trial into the claims asserted in the amended
complaint, the Court finds no reason to disturb its prior ruling concluding that such
claims are barred under the doctrine of absolute immunity. See (Dkt. 69, Order at 8-10).
14
independent of [the defendant’s] testimony to its contents.” 444 F.3d at 741. (concluding
that the “report [was] a piece of documentary evidence upon which [the] [p]laintiff argue[d]
that the prosecutors justifiably relied to continue their prosecution of [the] [p]laintiff” and
thus it “exist[ed] independently of [his] subsequent testimony.”) Accordingly, the Court finds
that DeVries’ pretrial/investigatory acts do not fall within the scope of conduct protected by
absolute immunity.
B. Qualified Immunity
In the alternative, DeVries maintains that he is protected under the doctrine of
qualified immunity on the basis that he “conducted his testing consistent with
understandings of fire behavior and other science of the time.” (Def.’s Mot. 11). This
argument fails for at least two reasons. First, the Sixth Circuit has been clear that “[i]t is
generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis
of qualified immunity. Although an officer’s entitlement to qualified immunity is a threshold
question to be resolved at the earliest possible point, that point is usually summary
judgment and not dismissal under Rule 12.” Wesley v. Campbell, 779 F.3d 421, 433-34 (6th
Cir. 2015) (internal citations and quotation marks omitted); See Grose v. Caruso, 284 Fed.
Appx. 279, 283 (6th Cir.2008) (“[T]he standard for a 12(b)(6) motion is whether the
allegations, if taken as true, could state a claim upon which relief may be granted, [and]
dismissal of Appellants on the basis of qualified immunity is premature.”). The reason for
this is simple: determining whether an official’s conduct was “objectively reasonable”–a
central component of the application of qualified immunity–requires careful consideration
of the entire record. See also Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir. 2000)
(Easterbrook, J., concurring) (“Rule 12(b)(6) is a mismatch for immunity and almost always
15
a bad ground of dismissal.”) While Defendant correctly notes that DeVries is deceased, the
Court has no means of assessing the reasonableness of his testing methods–or, more
importantly, whether he intentionally misrepresented his results–at this juncture of the case.
Moreover, notwithstanding the Sixth Circuit’s general admonition against granting
qualified immunity at the pleading stage, the allegations in Gavitt’s amended complaint,
accepted as true, suggest that DeVries would not be entitled to immunity. Indeed, a
government official enjoys qualified immunity unless the facts, when viewed in the light
most favorable to the plaintiff, would permit a reasonable juror to find that: "(1) the
defendant violated a constitutional right; and (2) the right was clearly established."
Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009) (internal citations
omitted). Once it is determined that the right is clearly established, the court must
determine “whether the plaintiff has alleged sufficient facts supported by sufficient evidence
to indicate what [the officer] allegedly did was objectively unreasonable in light of [the]
clearly established constitutional rights.” Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th
Cir. 1996) (quoting Adams v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994)) (alteration in
original).
Here, Gavitt offers a number of specific allegations in support of his contention that
DeVries’ conduct was not objectively reasonable. Indeed, according to Gavitt, DeVries
“fabricated, concealed, and offered false and misleading test reports, [and] data . . . .”
related to the flame spread test and gas chromatograph analysis. (Amend. Compl. ¶¶ 51;
21-29). In response, Defendant summarily argues that the “public records acknowledge
that there was no malicious intent on the part of DeVries, and no intentional
misrepresentation or fabrication.” (Def.’s Mot. 12). Even assuming, arguendo, that the
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Court was inclined to accept Defendant’s interpretation of DeVries’ conduct based on the
extensive public record in this case, there is a plethora of evidence supporting the opposite
conclusion. In fact, both of the experts retained in connection with Gavitt’s motion for relief
from judgment in the State court concluded that the gas chromatographs did not indicate
the presence of gasoline. See (Plf.’s Resp. Ex. K, Balliet Affidavit, Ex. M, Hedglin Report).
While far from dispositive of DeVries’ liability, the Court is hard-pressed to imagine a
scenario less deserving of qualified immunity at the pleadings stage. See Grose, 284 Fed.
Appx. at 283 (“[s]upplemented by more detailed facts ascertained through discovery, it is
possible Grose could set forth a viable . . . .” claim. "Grose has not yet had an opportunity
to initiate discovery in order to develop a factual record upon which a court may determine
whether dismissal based on qualified immunity is proper.”)
Finally, while Defendant does not address this factor, there can be no question that
Gavitt’s amended complaint implicates constitutional rights that were clearly established
at the time in question. As the Sixth Circuit held in Spurlock v. Satterfiled, 167 F.3d 995,
1006-07 (6th Cir. 1999), a “reasonable police officer would be on notice that unlawfully
detaining a suspect, despite the fact that the evidence used to detain that individual was
fabricated, would . . . be unlawful.” Indeed, “[Plaintiff] cannot seriously contend that a
reasonable [lab technician] would not know that such actions were inappropriate and
performed in violation of an individual's constitutional and/or statutory rights.” Id. at 1005.
Moreover, there is similarly no dispute that Gavitt’s rights were clearly established at the
time in question. See Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214 (1942)
(knowing use of false testimony to obtain conviction violates Fourteenth Amendment).
As such, the Court concludes that Gavitt has successfully pled a violation of his clearly
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established rights under the Fourth and Fourteenth Amendments to the Constitution.
Furthermore, the strength of Gavitt’s amended complaint precludes the Court from finding
that DeVries’ conduct was objectively reasonable. As such, the Court must, and does,
DENY DeVries’ motion to dismiss on qualified immunity grounds.
C. Statute of Limitations
In a last ditch appeal, Defendant argues, for the first time in his reply brief, that Gavitt’s
claims are barred by the statute of limitations. (Def.’s Reply, 8). The Court sees no reason
to depart from the well-settled rule that “[r]aising [an] issue for the first time in a reply brief
does not suffice; reply briefs reply to arguments made in the response brief—they do not
provide the moving party with a new opportunity to present yet another issue for the court's
consideration. Further the non-moving party ordinarily has no right to respond to the reply
brief, . . . . As a matter of litigation fairness and procedure, then, we must treat [such
issues] as waived.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008)
(citations omitted).
Moreover, the primary authority relied upon by Defendant in support of the proposition
that the statute of limitations has expired is easily distinguishable. In Wallace v. Kato, 549
U.S. 384 (2007) the Court held that, with respect to the tort of false imprisonment, the
limitations period begins to run “once the victim becomes held pursuant to such
process—when, for example, he is bound over by a magistrate or arraigned on charges.”
Id. at 389. “From that point on, any damages recoverable must be based on a malicious
prosecution claim and on the wrongful use of judicial process rather than detention itself.”
Id. Here, Gavitt’s claim is based on the intentional misrepresentation of evidence–i.e. a
wrongful use of the judicial process. In other words, Gavitt does not allege that he was
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detained without legal process–as in Wallace–but rather that DeVries tainted the process
he was afforded by knowingly relying on fabricated evidence. Accordingly, the Court finds
that Defendant’s statute of limitations argument is procedurally and substantively devoid
of merit.
VI.
Conclusion
For the above stated reasons, Defendant DeVries’ motion to dismiss [87] is DENIED.
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: August 24, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of record
on August 24, 2015, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager
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