Jones v. Slay et al

Filing 264

MEMORANDUM AND ORDER - {see Order for complete details}....IT IS HEREBY ORDERED that defendant Carr's Motion for Summary Judgment is GRANTED in part, DENIED in part, and DENIED in part as moot: [Doc. 196]....IT IS FURTHER ORDERE D that defendant Sharp's Motion for Summary Judgment is GRANTED in part, DENIED in part, and DENIED in part as moot: [Doc. 193]...An appropriate partial judgment will accompany this Memorandum and Order.. Signed by District Judge Charles A. Shaw on 11/18/2014. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

STEPHEN JONES,
Plaintiff,
v.
FRANCIS G. SLAY, et al.,
Defendants.

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No. 4:12-CV-2109 CAS

MEMORANDUM AND ORDER
This matter under 42 U.S.C. § 1983 is before the Court on separate motions for summary
judgment filed by defendants Vincent Carr and Shell Sharp. The motions are fully briefed and ready
for decision. For the following reasons, defendants Carr and Sharp’s motions for summary judgment
will be granted in part, denied in part and denied in part as moot.
I. Background
This action was filed on November 9, 2012 by plaintiff Stephen Jones against the members
of the Board of Police Commissioners of the St. Louis Metropolitan Police Department (collectively
the “Board”) and two former St. Louis police officers, defendants Carr and Sharp. Plaintiff alleges
that his federal civil rights were violated when he was arrested, convicted and imprisoned for a
period of over twelve years based on false evidence manufactured by defendants Carr and Sharp.
Specifically, plaintiff alleges that Carr and Sharp conspired with each other and made a false
affidavit to obtain a search warrant for plaintiff’s parents’ apartment, falsely claimed that while
executing the search warrant they observed plaintiff holding a plastic bag containing $15,000 worth
of cocaine base, stole $5,200 belonging to plaintiff’s father during the search of the residence,
suppressed exculpatory evidence, arrested plaintiff and falsely testified against him at trial in order

to prevent any complaints concerning the theft, as part of a pattern of illegal activity on their parts.
Plaintiff also alleges that the Board had a policy, or pervasive custom and practice, of reliance on
manufactured evidence, and that it failed to train, supervise, control, instruct or discipline the
officers under its control in various respects. Plaintiff alleges that as a result of Carr and Sharp’s
conduct, he was found guilty by a jury of one count of possession with the intent to distribute
cocaine base and sentenced to 240 months in prison.
During plaintiff’s incarceration, the Federal Bureau of Investigation and the United States
Attorney’s Office for the Eastern District of Missouri began to investigate Carr and Sharp “for the
same illegal activities that resulted in [plaintiff’s] wrongful conviction and imprisonment.”
Amended Complaint at 8, ¶ 24. Plaintiff alleges that as a result of this investigation, defendant Carr
pleaded guilty in February 2009 to federal criminal charges of conspiracy to commit wire fraud, wire
fraud, making a false statement and obstruction of justice based on facts very similar to those in the
instant case, including wrongfully accusing a third party of criminal activity in order to deflect
investigation into his theft. See United States v. Carr, No. 4:08-CR-703 ERW (E.D. Mo.). Plaintiff
alleges that the investigation also led to defendant Sharp leaving the police department in June 2009
“under charges” of fraudulently concocting affidavits in support of search warrants.
Based on Carr’s conviction, plaintiff sought permission from the Eighth Circuit Court of
Appeals to file a successive habeas corpus motion seeking relief under 28 U.S.C. § 2255. The
United States acquiesced in plaintiff’s request and the Eighth Circuit issued an order authorizing
plaintiff to proceed with his motion, which was filed in September 2010. After reviewing the
evidence presented at plaintiff’s trial along with new evidence concerning Carr’s corrupt practices,
the United States in November 2010 joined in plaintiff’s motion to vacate his sentence, stating there
was no credible independent evidence to corroborate Carr’s testimony against plaintiff. The United
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States also admitted that Sharp’s testimony was not reliable or credible. On November 10, 2010,
this Court, the Honorable Judge Carol E. Jackson presiding, issued an order vacating plaintiff’s
conviction and ordering the United States Bureau of Prisons to release him from custody
immediately.1 Plaintiff subsequently sought a Certificate of Innocence pursuant to 28 U.S.C. § 2513,
which was granted by Judge Jackson on May 12, 2011, who found that plaintiff was actually
innocent of the crime for which he was imprisoned for twelve years and eight months.
Plaintiff asserts federal civil rights claims against Carr, Sharp and the Board pursuant to 42
U.S.C. § 1983 and supplemental state law claims against Carr and Sharp for malicious prosecution,
wrongful imprisonment and abuse of process.2
II. Legal Standard
The standards applicable to summary judgment motions are well settled. Pursuant to Federal
Rule of Civil Procedure 56(a), a court may grant a motion for summary judgment if all of the
information before the court shows “there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Associated
Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988) (the moving party has the burden of clearly
establishing the non-existence of any genuine issue of fact that is material to a judgment in its favor).
Once this burden is discharged, if the record shows that no genuine dispute exists, the burden then

1

See Jones v. United States, 4:10-CV-1748 CEJ (E.D. Mo.).

2

Plaintiff’s state law claims against the Board defendants for malicious prosecution, wrongful
imprisonment and abuse of process were dismissed based on sovereign immunity, by Memorandum
and Order and Order of Partial Dismissal of November 7, 2013. (Docs. 96, 97)
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shifts to the non-moving party who must set forth affirmative evidence and specific facts showing
there is a genuine dispute on a material factual issue. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986).
Once the burden shifts, the non-moving party may not rest on the allegations in its pleadings,
but by affidavit and other evidence must set forth specific facts showing that a genuine issue of
material fact exists. Fed. R. Civ. P. 56(c); Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1029
(8th Cir. 2000); Allen v. Entergy Corp., 181 F.3d 902, 904 (8th Cir. 1999). The non-moving party
“must do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A dispute about
a material fact is “genuine” only “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Herring, 207 F.3d at 1029 (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). A party resisting summary judgment has the burden to designate the specific
facts that create a triable question of fact, see Crossley v. Georgia-Pacific Corp., 355 F.3d 1112,
1114 (8th Cir. 2004), and “must substantiate allegations with sufficient probative evidence that
would permit a finding in the plaintiff’s favor.” Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th
Cir. 2005).
As a threshold matter, the Court notes that in response to defendants’ Carr and Sharp’s
Statements of Uncontroverted Material Fact, plaintiff responded as required by Local Rule 4.01(E),3

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Eastern District of Missouri Local Rule 4.01(E) provides as follows:
A memorandum in support of a motion for summary judgment
shall have attached a statement of uncontroverted material facts, set
forth in a separately numbered paragraph for each fact, indicating
whether each fact is established by the record, and, if so, the
appropriate citations. Every memorandum in opposition shall include
a statement of material facts as to which the party contends a genuine
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and in addition submitted his own Statements of Additional Material Facts supported by citation to
the record.4 Defendants object to a number of plaintiff’s additional facts as being legal conclusions,
opinions, irrelevant and/or argumentative. Some of defendants’ responses are insufficient under
Local Rule 4.01(E) because they fail to articulate how a fact is disputed or do not contain a
sufficiently specific reference to the record.
The Court is mindful that in reviewing a motion for summary judgment, it must view the
facts in the light most favorable to the non-moving party, give the non-moving party the benefit of
any inferences that can logically be drawn from those facts, Matsushita, 475 U.S. at 587, and
resolve all conflicts in favor of the non-moving party. Robert Johnson Grain Co. v. Chemical
Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976). For purposes of resolving instant motions, the
Court largely adopts plaintiff’s statement of additional material facts, although many are
controverted by the defendants.

issue exists. Those matters in dispute shall be set forth with specific
references to portions of the record, where available, upon which the
opposing party relies. The opposing party also shall note for all
disputed facts the paragraph number from movant’s listing of facts.
All matters set forth in the statement of the movant shall be deemed
admitted for purposes of summary judgment unless specifically
controverted by the opposing party.
E. D. Mo. L. R. 4.01(E).
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Plaintiff’s Statements of Additional Material Facts filed in response to the separate Statements
of Uncontroverted Material Facts filed by defendants Carr and Sharp appear to be virtually identical
and are the same in all material respects.
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III. Facts
With the foregoing standards in mind, the Court accepts the following facts as true for
purposes of resolving this motion for summary judgment.
Facts Based on Defendants Carr and Sharp’s Statements of Facts
1. On October 29, 1997, defendant Carr applied for and obtained a state search warrant to
search for cocaine base in a two-story, two-family residence located at 2802 Missouri Avenue
(“2082 Missouri”) in the City of St. Louis. Sharp Ex. A at 1.
2, The target of the search warrant was an individual named Sherrod Greenlaw. Sharp Ex.
A.
3. On October 29, 1997, five officers of the St. Louis Metropolitan Police Department
(“SLMPD”), including defendant Carr and his partner, defendant Sharp, executed the search warrant
at 2802 Missouri. Sharp Ex. B at 7.
4. The police found and seized guns and money during the search and found a bag
containing three clear plastic bags that contained crack cocaine. Sharp Ex. B at 9, Sharp Ex. C at
18-19.
5. Plaintiff Stephen Jones was inside his father’s apartment in the residence at 2802 Missouri
when the police executed the search warrant. Carr Ex. D, Jones Dep. 49-50.
6. The police detained plaintiff on the couch during the search on October 29, 1997. Jones
Dep. 67.
7. Defendants Carr and Sharp took plaintiff to the police station after the search on October
29, 1997, and released him about an hour later the same day. Jones Dep. 76-77, 84-85; Carr Ex. B
at 10.

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8. On October 31, 1997, defendant Carr drafted the report detailing the incident. Sharp Ex.
B at 11.
9. On December 15, 1997, a federal warrant was issued for plaintiff’s arrest. Carr Ex. D.
10. On or about December 24, 1997, plaintiff was arrested by a police officer from an
unknown St. Louis County jurisdiction. Jones Dep. 90-91.
11. Plaintiff was indicted by a federal grand jury and charged with possession of the illegal
drugs allegedly found inside the residence at 2802 Missouri. Jones Dep. 95.
12. Defendants Carr and Sharp testified at plaintiff’s criminal trial in February 1998.
Transcript of Trial and Sent. (“Tr.”) 112-57, 160-79.
13. Defendants Carr and Sharp each testified they had seen plaintiff holding the drugs in his
hand when they entered the premises at 2802 Missouri on October 29, 1997. Tr. 124-28, 163-64.
14. Plaintiff did not testify at his criminal trial, but his attorney argued to the jury in closing
argument that defendants Carr and Sharp had lied about having seen plaintiff holding drugs in his
hand. Tr. 262-67
15. The only exhibits offered at plaintiff’s criminal trial were the drugs allegedly recovered
from 2802 Missouri and the search warrant, affidavit, and return and inventory. Tr. 4, 116-19,
129-31.
16. Defendant Carr took photographs of the scene on October 29, 1997, but he claims that
the photographs were lost between the time he conveyed them to the SLMPD forensic lab and the
time of plaintiff’s criminal trial in February 1998. Tr. 151; Ex. B at 10.
17. No documentation exists to verify that Carr took the photographs to the forensic lab.
The police report Carr prepared contains chain of custody documentation for the seized guns and
drugs, but not the photographs. Ex. B at 12-20.
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18. The jury convicted plaintiff and he was sentenced to 240 months in prison.
19. On November 10, 2010, U. S. District Judge Carol E. Jackson of this Court vacated
plaintiff’s sentence, and plaintiff was released from federal prison shortly thereafter. Carr Ex. G.
20. On or about March 22, 2011, plaintiff applied to this Court for a certificate of innocence
pursuant to 28 U.S.C. § 2513. The United States subsequently joined in the application, and Judge
Jackson granted it on May 12, 2011.
Facts Based on Plaintiff’s Additional Statement of Facts
21. On February 27, 1998, plaintiff Stephen Jones was convicted by a jury in this Court of
one count of possession with intent to distribute 79.49 grams of cocaine base. Pursuant to
sentencing guidelines, plaintiff was sentenced to 240 months in prison, a punishment the Court
stated at the time of sentencing was “a draconian sentence, considering the facts of this case.” Pl.
Ex.1, Tr. 303.
22. Detective Carr’s affidavit formed the basis for the search warrant of the Jones apartment
at 2802 Missouri. In the affidavit, Carr stated the confidential informant had provided information
that had proved reliable and resulted in three prior arrests; the confidential informant had advised
Detective Carr that Sherrod Greenlaw was selling cocaine base out of the Jones apartment at 2802
Missouri; the confidential informant had been inside the Jones apartment within 18 hours of the
execution of the affidavit and had observed a “large amount of cocaine base” inside the residence.
Sherrod Greenlaw was seen using his cell phone on plaintiff’s father Samuel Jones’ front porch by
the investigating Detectives. Sherrod Greenlaw was the sole subject of the search warrant. Pl. Ex.
2, Carr Aff. in Support of Search Warrant.
23. Sherrod Greenlaw was detained by Carr and Sharp and brought to 2802 Missouri at the
time of the execution of the search warrant. Ex. 3, Police Report, JONES 1500-1501.
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24. During the time period around plaintiff’s arrest, Sherrod Greenlaw, the subject of the
search warrant, had constant access to the keys to Samuel Jones’ apartment because Greenlaw was
dating Samuel Jones’ daughter, Monica Jones. Greenlaw would babysit Monica Jones’ children
while she was at work at the U.S. Post Office. Greenlaw came and went from the Jones’ home on
a regular basis to pick up and drop off the children. Ex. 4, Aff. of Samuel Jones (“Jones Aff.”) ¶ 4.
25. Samuel Jones believes the cocaine base belonged to Sherrod Greenlaw and that
Greenlaw was using Jones’ home as a “safe house.” Jones Aff. ¶ 4.
26. Stephen Jones did not live at his father’s apartment. Jones Aff. ¶ 3; Jones Dep. 32-34.
Samuel Jones’ home at 2802 Missouri was a two-bedroom apartment. Jones Aff. ¶ 2. Plaintiff’s
father, Samuel Jones, and his mother Doris Jones, a bus driver, lived in one bedroom of the home.
Id. ¶ 2. Samuel Jones’ granddaughter Kiihandra Jones and his grandniece Taquita Wren shared the
other bedroom. Samuel Jones’ brother-in-law Michael Wren was living in the basement. Id.
27. On the date of his arrest, October 29, 1997, Stephen Jones was primarily residing at an
apartment, at 2506 Lafayette in the City of St. Louis with his girlfriend Loukeena Dixon. Jones Aff.
¶ 3; Jones Dep. 32-34.
28. According to the police report prepared by Carr, on October 29, 1997, “Upon entering
the residence, Detectives Carr and Sharp observed a black male run toward the rear of the residence
holding a plastic bag in his right hand. Detectives Carr and Sharp gave chase after the male into the
kitchen, where he dropped the plastic bag onto the kitchen floor and attempted to open the rear door
of the residence,” when he was detained by Carr and Sharp. Pl. Ex. 3, Police Report, JONES 1501.
29. According to the police report prepared by Carr, the bag containing the crack cocaine
was found on the kitchen floor. Pl. Ex. 3, Police Report, JONES 1501-1502.

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30. There was no physical evidence gathered or disclosed in the underlying criminal
proceeding, such as fingerprints or photographs, that linked Stephen Jones to the cocaine base. Tr.
149:11-22; 151:20-22.
31. There is no indication in the police report and no testimony at trial to the effect that any
of the other detectives on the front porch saw Stephen Jones in possession of the freezer bag or
pursued Stephen Jones into the kitchen where Carr and Sharp alleged he ran. Pl. Ex. 3, Police
Report.
32. The police report prepared by Carr states that “[p]hotographs of the scene and seized
items were taken by Detective Carr.” Ex. 3, Police Report, JONES 1503. However, the photographs
allegedly taken by Detective Carr of the freezer bag where it was allegedly recovered in the kitchen
were not provided to prosecutors because “somehow they got lost” by the forensic lab, according
to Detective Carr. Tr. 151:20-22.
33. Stephen R. Welby, the Assistant United States Attorney in charge of the prosecution of
Stephen Jones, reviewed Carr’s police report and discussed both Carr and Sharp’s testimony with
them before calling them to testify. Mr. Welby relied on what Carr put in the police report as well
as what Carr and Sharp told him in pre-trial interviews in prosecuting Stephen Jones. Ex. 6, Aff.
of Stephen R. Welby ¶¶ 2-3.
34. Without Carr’s police report and the information provided in Carr and Sharp’s pre-trial
interviews, Mr. Welby would not have prosecuted Stephen Jones. Welby Aff. ¶ 4.
35. Kiihandra Jones and Curtiz Prago testified at plaintiff’s criminal trial that Stephen Jones
himself opened the front door for the police. They testified that the police immediately cuffed
Stephen Jones when they entered the apartment and seated him in the front/living room with the
others who were present in the apartment while the apartment was searched. Both witnesses denied
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that either Stephen or the officers ever ran down the hallway and into the kitchen, and testified that
after the police searched the apartment, the police showed everyone in the living room the bag of
cocaine base. Tr. 236:18–237:5, 247:6-16.
36. Kiihandra Jones testified at trial that a police officer first showed the freezer bag to her
while that officer was in the apartment’s middle room, which was her and Taquita Wren’s bedroom.
Tr. 239:17-20.
37. Plaintiff’s father, Samuel Jones, testified that after he arrived home Detective Sharp told
him that the officers had actually found the freezer bag of cocaine base in the dresser by the window
in the middle bedroom. Tr. 221-22.
38. On the date of plaintiff Stephen Jones’ arrest, his father Samuel Jones had $5,200.00
hidden under the insulation/lining of a winter boot in the back of his closet. Mr. Jones had hidden
cash in his closet ever since his family settled a wrongful death case arising out of the death of his
mother, Lillie Mae Jones, from which he received approximately $10,000.00. The money that
Samuel Jones had hidden on the date of his son’s arrest also came from his employment as a
handyman, gardener and running errands. Samuel Jones had never used a bank and routinely kept
cash in his home. Jones Aff.
39. Samuel Jones arrived home while the police were still at his apartment with Stephen
Jones in custody. After learning of the search he asked to go search the closet to see if the money
was still there. The police would not let him look. After the police left he looked and discovered
that the money was no longer in the boot. Jones Aff.
40. Thereafter Samuel Jones called Detective Carr and told him about the missing money.
Samuel Jones told other police officers, as well as Stephen Jones’ criminal defense attorney, Peter
M. Cohen. Samuel Jones told members of the press, including Betsy Bruce, about the missing
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money “every chance that [he] got.” The press always told him to “bring us proof” because, as they
said, it was otherwise Mr. Jones’ word against the police. Jones Aff.
41. Attorney Peter M. Cohen represented Stephen Jones in this Court at the trial of the
criminal case. Mr. Cohen avers that he was advised at the time by Samuel Jones and Stephen Jones
as to each of the circumstances set forth in Samuel Jones’ Affidavit. Ex. 7, Aff. of Peter M. Cohen.
42. Mr. Cohen states that Samuel Jones told him about the missing money, but it was
decided not to use at trial the issue of money being stolen from the apartment, because it was Mr.
Jones’ word against the police and because “it could look to the jury like a desperate act and an
attempt to shift the focus of the case to an irrelevant fact.” Cohen Aff.
43. Defendants Carr and Sharp detained Sherrod Greenlaw a second time on October 29,
1997, at 7:30 p.m. In the police report prepared by Defendant Sharp, Sharp alleges that after
receiving “complaints about suspected narcotics sells,” Sharp witnessed a hand-to-hand transaction
involving Greenlaw. The officers pulled over Greenlaw’s vehicle and arrested him after he
attempted to discard crack cocaine under the vehicle. Ex. 3, Police Reports, JONES 1513.
44. According to the SLMPD’s incident reporting system, the police report of Greenlaw’s
arrest and the police report of plaintiff Stephen Jones’ arrest were both prepared on the same day,
October 31, 1997, two days after the search of 2802 Missouri. See Ex. 3, Police Reports, JONES
1494 and 1507. However, the report prepared by Carr does not reference the fact that Carr was
involved in detaining Greenlaw again later on the same day. The report prepared by Sharp relating
to the second arrest of Greenlaw merely states that Greenlaw “was early [sic] detained by the
detectives in a narcotic investigation.” Id. at 1514. The report does not state where or when
Greenlaw had been earlier detained, nor does it refer to plaintiff Stephen Jones.

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45. In Carr’s deposition testimony, when asked if the police report, or a supplemental report,
should have disclosed that Greenlaw had been arrested later that same day for selling cocaine, he
stated that it should have been included if it were “pertinent information” and that he “probably
would put a statement in there reflecting back to that police report.” Carr Dep. 65-67.
46. Former Assistant United States Attorney (“AUSA”) Stephen Welby does not recall
being aware that Sherrod Greenlaw had been arrested again later on the same day as the execution
of the search warrant and arrest of Stephen Jones, or that Detective Shell Sharp prepared a separate
police report stating that Greenlaw was arrested later on in the same day for doing sales of crack
cocaine on the street. Welby Aff. ¶ 6.
47. Stephen Welby believes that had he known these facts, he would have disclosed the
report of the subsequent arrest of Greenlaw to defense counsel in the prosecution of Stephen Jones.
Welby Aff. ¶ 7.
48. A federal investigation into corruption in the St. Louis Metropolitan Police Department
was initiated in 2007 and eventually led to the indictments of police officers. Among the officers
indicted was Defendant Vincent Carr. United States v. Carr, No. 4:08-CR-703 ERW (E.D. Mo.)
In February 2009, Carr pleaded guilty to five felony charges in this Court stemming from the
investigation into his corrupt activities. These charges included wire fraud, wire fraud conspiracy,
two counts of lying to Special Agents of the Federal Bureau of Investigation, and one count of
obstruction of justice arising from Carr’s misconduct and corrupt practices during a drug raid in June
2008 and Carr’s subsequent attempts to cover up his actions. Carr stole money and drugs from a
drug dealer, and then protected the dealer from investigation so he could keep some of the seized
funds. The officers then planted evidence in order to frame another person for the crime. Pl.’s Ex.
9, Carr Amended Judgment; Pl.’s Ex. 10, Tr. of Carr Guilty Plea in Case No. 4:08-CR-703 ERW.
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49. In his criminal case, Carr admitted that he obtained a search warrant for the first floor
apartment of a building at 1475 Arlington Avenue in the City of St. Louis, saying he had information
that drugs were sold and stored there by an individual named “Black.” Carr and Detective Bobby
Lee Garrett first stopped the building owner, C.C., who did not live there and who stated that any
drugs on the premises belonged to the residents. Carr and Garrett then stopped the vehicle of a
second floor resident, J.S., and questioned him. J.S. admitted he had crack cocaine, a firearm and
$32,000 cash in his apartment. J.S. was handcuffed and placed in the police car. Tr. of Carr Guilty
Plea 9-10.
50. Carr admitted that on June 6, 2008, along with other officers called to assist, he
transported both C.C. and J.S. back to the first floor residence at 1475 Arlington Avenue, where a
search of the first floor premises was conducted pursuant to the state search warrant. C.C. and J.S.
were kept handcuffed and seated in the front room of the first floor residence. Cocaine, marijuana,
and several firearms were located and recovered from the kitchen and a back bedroom during the
search of the first floor premises. Tr. of Carr Guilty Plea 19.
51. While other officers were conducting the search of the first floor premises, Garrett
entered into J.S.’ bedroom on the second floor on two separate occasions and recovered crack
cocaine, a loaded 9mm pistol and approximately $32,000 in cash. Garrett brought the crack cocaine,
the loaded pistol, and a bundle containing $3,710 back into the first floor premises and falsely
advised the officers searching there that he’d recovered the items from a couch in the middle room
of the first floor premises. Garrett kept the remainder of the currency without reporting it.
Defendant Carr admitted in his guilty plea that Garrett gave him approximately $3,300 of the
currency taken from J.S.’ second floor bedroom. Tr. of Carr Guilty Plea 19-20.

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52. Carr and Garrett released J.S. following the search of 1475 Arlington Avenue without
charging him relative to his possession of crack cocaine and the pistol, so that J.S. would not
complain about and report the theft of his money. Carr and Garrett arrested C.C. and booked him
for the possession of all of the illegal drugs recovered during the search of the first floor premises
at 1475 Arlington Avenue as well as the crack cocaine taken by Garrett from J.S.’ bedroom on the
second floor at 1475 Arlington Avenue, in order to conceal the fact that Garrett had entered the
second floor premises and taken J.S.’ crack cocaine, pistol and money. Tr. of Carr Guilty Plea 20.
53. Defendant Carr filled out a false police report in an effort to conceal Carr and Garrett’s
crime. Specifically, in order to conceal the fact that Garrett had taken the crack cocaine, pistol and
money from J.S.’ second floor bedroom, the police report prepared by Carr failed to include the facts
that the officers had stopped J.S. in his vehicle, had handcuffed and detained J.S., and had
transported J.S. back to the first floor premises at the Arlington Avenue address where J.S. remained
until completion of the search. Tr. of Carr Guilty Plea 21.
54. Further, the police report prepared by defendant Carr failed to include the fact that J.S.
had admitted to possessing a large amount of crack cocaine, a pistol, and a large amount of United
States currency inside his bedroom on the second floor at 1475 Arlington Avenue, again to conceal
the fact that Garrett had taken the crack, pistol, and money from J.S.’ second floor bedroom. Tr. of
Carr Guilty Plea 21.
55. The police report prepared by Carr failed to include the fact that Garrett had searched
the second floor bedroom of J.S. and located and recovered the crack cocaine, the loaded pistol and
United States currency, in order to conceal those facts, and falsely stated that Garrett had located
and recovered J.S.’ crack cocaine, the pistol and a portion of the currency in a couch in the middle
room of the first floor premises. Tr. of Carr Guilty Plea 21-22.
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56. On June 16, 2008, in order to further conceal their actions in entering into the second
floor of the Arlington address, stealing J.S.’ money, and charging C.C. with possession of all the
drugs recovered, defendant Carr prepared and filed with the Circuit Court Clerk a “Return and
Inventory” form relative to the search warrant, which falsely stated that the crack cocaine, pistol and
$3,710 located and recovered by Garrett in J.S.’ second floor bedroom was recovered from the first
floor premises. Tr. of Carr Guilty Plea 22-23.
57. On June 6, 2008, in order to further conceal their actions, defendant Carr submitted all
of the illegal drugs located and recovered during the search of the first floor premises at Arlington
as well as the crack cocaine located and recovered by Garrett from the second floor bedroom to the
laboratory for testing under the suspect name C.C., with no mention of J.S. Tr. of Carr Guilty Plea
23.
58. In order to further conceal their actions in entering into the second floor of 1475
Arlington, stealing J.S.’ money, and charging C.C. with possession of all of the drugs recovered,
Carr and Garrett falsely stated during a meeting with FBI Special Agents on September 17, 2008,
that no other civilians were present at the Arlington Avenue residence during the June 6, 2008
search other than C.C., when in fact J.S. was present, and Carr and Garrett falsely stated that neither
of them had gone upstairs to the second floor premises and conducted any type of search on June
6, 2008, when in fact Garrett had. Further, Carr and Garrett failed to advise the FBI Special Agents
that in connection with the search of 1475 Arlington Avenue they had detained J.S., who admitted
possession of the crack cocaine, a pistol and approximately $32,000 located and recovered from his
second floor bedroom at the Arlington Avenue residence. Tr. of Carr Guilty Plea 24.

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59. During a meeting with FBI Special Agents on October 1, 2008, Carr concealed and
failed to turn over handwritten notes made during the June 6, 2008 search in order to impair the
notes’ availability for use before a federal grand jury proceeding. Tr. of Carr Guilty Plea 24-25.
60. Defendant Carr’s Internal Affairs Division (“IAD”) File reflects (1) a complaint from
1995 that Carr and Sharp physically abused a subject; (2) a complaint from August 1997 that Carr
seized $42,000 during the execution of a search warrant, but only reported $25,000 and stole the
remainder; (3) a complaint of physical abuse by Sharp and Carr from 2000; and (4) a complaint from
2007 that Carr and Detective Bobby Lee Garrett entered a residence without a search warrant,
physically abused a subject, planted a gun and narcotics on the individual, and stole $1,200 from his
girlfriend. Pl. Ex. 11, Corrected Carr AID File, at JONES 559, 883, 882.
61. In 2009, defendant Sharp became the target of an Internal Affairs investigation into
police corruption. There were allegations that Sharp had made false statements about informants
and surveillance activities.

The investigation was triggered when defendant Sharp was

cross-examined in an evidentiary hearing with examples of his identical search warrant affidavits.
Pl. Ex. 12, Sharp AID File at Jones 0234 and 0240; Pl. Ex. 13, Mem. Supp. Mot. Suppress Evid.,
United States v. Farad, No. 4:08-CR-230 RWS (E.D. Mo.) at 14.
62. According to the testimony of Captain Hayden, the head of SLMPD Internal Affairs at
the time, the investigation was triggered by questions about whether a certain confidential informant
could have been “available” to provide information to defendant Sharp, as defendant Sharp had
testified. Pl. Ex. 14, Hayden Dep. 19-21.
63. The investigation into Sharp discovered a large number of affidavits in support of search
warrants that were “starkly similar” with each other, with the only differences being in times,
locations and targets. Hayden Dep. 24-26.
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64. The Department found that “a review of several search warrants investigated by Police
Officer Shell Sharp, DAN 3183 revealed numerous inconsistencies along with inaccurate
information.” Sharp AID File at Jones 0390; Jones 0240; Jones 0291 to 0379; Collection of Sharp
AFF.; Farad Mem. Supp. Mot. Suppress Evid. at 14.
65. Officer Sharp chose to resign from the SLMPD rather than answer questions from
Internal Affairs regarding the investigation into the legitimacy of his testimony and search warrant
affidavits. Hayden Dep. 31-32.
66. Sharp had a prior history of being investigated by Internal Affairs for misconduct.
Defendant Sharp had complaints for physical abuse in 1995 and 2000. The 1995 complaint was
sustained by the Department as to Sharp for violation of Department procedures, because he was
found to have been associating with a known felon and permitting the felon to live on his property.
Sharp AID File at Jones 0395.
67. Officer Sharp had a complaint against him that he planted narcotics on a subject and
falsely arrested him during an arrest in 2000. Sharp AID File at Jones 0394. Officer Sharp had a
complaint against him that he planted narcotics on a subject during an arrest in 2001. Id. at Jones
0391. Officer Sharp had a complaint against him for stealing during execution of a search warrant
in January 2006. Id. at Jones 0393.
68. Officer Sharp had a sustained complaint in the year 2000 based on a complaint of
stealing $1,480.00 from a woman he had arrested. Sharp received a written reprimand. Sharp AID
File at Jones 0394.
69. Captain Hayden, a former AID commander, testified that Officer Sharp should have
been terminated if he had a complaint sustained for theft. The only documentation available for the
2000 complaint of stealing is the outcome that the complaint was sustained. Hayden Dep. 57-58.
18

Lieutenant Colonel Paul Nocchiero, another former AID commander, testified that an officer with
a sustained stealing charge should be terminated. Pl. Ex.15, Nocchiero Dep. at 76.
70. In joining plaintiff’s Motion to Vacate, Set Aside or Correct his criminal conviction
under 28 U.S.C. § 2255, the Government admitted there was no credible evidence that plaintiff
committed the crime for which he was convicted and spent twelve years and nine months in prison,
and stated as follows:
[T]he movant’s position from the outset has been that the crack cocaine was neither
his nor in his possession. The Government’s case against movant was based on the
testimony of Vincent Carr who, armed with a search warrant, entered the residence
and claimed to have observed the movant to drop a freezer bag containing the illegal
drugs as the movant fled towards the kitchen. While other police officers were in the
vicinity, they were outside the residence and there is no credible independent
evidence corroborating Carr’s testimony. Movant’s contention is that Vincent Carr
lied about the movant’s possession of the drugs just as he (Vincent Carr) lied
concerning the 2008 drug raid which resulted in Carr’s conviction. Whether true or
untrue, it is a contention that the Government is unable to refute.
Pl. Ex. 16, United States’ Motion and Response to Motion to Vacate at 3-4 (footnote omitted).
....
[B]ecause of the subsequent convictions related to his official duties by the police
officer on whose testimony movant’s conviction rests, the Government has lost
confidence in the probity of movant's conviction. As observed by the United States
Supreme Court in Berger v. United States, 295 U.S. 78, 88 (1935), it is as much a
prosecutor’s duty to prevent a wrongful conviction as it is to bring about a just one.
Id. at 4.
The movant’s conviction was based on Vincent Carr’s testimony that he saw the
movant drop the freezer bag containing the crack cocaine. The Government can no
longer vouch for that testimony nor corroborate that testimony by independent
credible evidence. Consequently, the Government would not seek a retrial of the
movant. Under the unique circumstances presented by this case, then, the
Government joins the movant’s request for the vacation of the judgment entered in
United States v. Stephen Jones, EDMO No. 4:98 CR 12 CEJ, and an order that the
movant be discharged.
Id. at 4.
19

71. The government admitted in its Motion and Response joining in plaintiff’s Motion to
Vacate that defendant Sharp’s testimony in the criminal case was not reliable or credible, stating:
“While there was another officer inside the residence who might corroborate Carr’s testimony, the
Government is similarly unable to vouch for that officer’s credibility." Id. at 3, n.1
72. The Honorable Carol E. Jackson of this Court issued a Certificate of Innocence pursuant
to 28 U.S.C. § 2513 on May 12, 2011, which stated in part “it is hereby certified that movant
Stephen Jones is actually innocent of the charge of possession of cocaine base with intent to
distribute set forth in the indictment in Case No. 4:98-CR-12 (CEJ).” Pl. Ex. 17, Amended
Certificate of Innocence at 5, Jones v. United States, No. 4:10-CV-1748 CEJ (E.D. Mo.) (Doc. 16).
73. In the Certificate of Innocence, Judge Jackson found that “apart from the nowdiscredited testimony of Carr and Sharp, there is no evidence that Jones had possession of cocaine
base, either at the time of the search or at any earlier time. . . . . When the non-credible evidence
is stripped away, all that remains is the evidence of Jones’ presence at the apartment. That act,
however, was not a crime.” Id. at 4.
IV. Discussion
A. Count I
In Count I of the Amended Complaint, plaintiff alleges that defendants Carr and Sharp
violated his constitutional rights by the following acts:
a) Preparing a false affidavit in support of a search warrant for the 2802 Missouri
Ave. premises, when Defendants lacked probable cause to search the premises;
b) Planting evidence at the scene and suppressing relevant evidence during the search
of the premises and thereafter during the time period leading up to Plaintiff’s trial,
including the suppression and destruction of photographs and the failure to obtain
fingerprints on the bag of crack cocaine;

20

c) Providing false information in the police report and in other documents and reports
prepared pursuant to their duties with the Department;
d) Providing false information to federal prosecutors in order to wrongfully, illegally
and unconstitutionally deprive Plaintiff of his freedom;
e) Framing Plaintiff for a crime he did not commit and obtaining his conviction in
order to cover up the theft of $5,200 belonging to Plaintiff’s father; and
f) Allowing Plaintiff to languish in prison for almost 13 years, despite Defendants’
knowledge that Plaintiff did not commit the crime alleged.
Am. Complaint at 16. Count I asserts that plaintiff was incarcerated without due process of law and
that defendants Carr and Sharp’s actions violated plaintiff’s constitutional rights “including his due
process rights to a fair trial and his right to discovery of exculpatory evidence, and other rights
preserved under the Fourth, Fifth and Fourteenth Amendments,” Am. Complaint at 16-17. The
defendants move for summary judgment on all of plaintiff’s claims in Count I.
i. Fifth Amendment Claims
Defendant Carr moves for summary judgment on plaintiff’s claims under the Fifth
Amendment, asserting that the facts alleged by plaintiff do not state a claim under the Fifth
Amendment. Carr does not develop this conclusory argument any further or offer any citation to
supporting case law. Defendant Sharp does not mention plaintiff’s Fifth Amendment claims in his
motion.
Despite Carr’s failure to support his argument, he is entitled to summary judgment on
plaintiff’s due process claims to the extent they are brought under the Fifth Amendment, because
the Fifth Amendment’s Due Process Clause applies only to the federal government and Carr was not
a federal employee. See Livers v. Schenck, 700 F.3d 340, 351 (8th Cir. 2012); Baribeau v. City of
Minneapolis, 596 F.3d 465, 484 (8th Cir. 2010).

21

Defendant Sharp is also entitled to summary judgment on plaintiff’s Fifth Amendment
claims, even though he did not move for judgment on this basis, because he was not a federal
employee. See Madewell v. Downs, 68 F.3d 1030, 1049-50 (8th Cir. 1995) (court may grant
summary judgment in favor of a non-moving party on its own initiative where the losing party had
sufficient notice in the form of the summary judgment motion filed by another party, and the nonmoving party’s right to summary judgment turned on the same issue presented by the motion of the
moving party); see also Chrysler Credit Corp. v. Cathey, 977 F.2d 447, 449 (8th Cir. 1992) (per
curiam) (same).
ii. § 1983 Malicious Prosecution and False Arrest Claims
Defendant Carr moves for summary judgment on Count I “to the extent” plaintiff “intends
to assert Fourth Amendment claims for malicious prosecution or false arrest.” Carr Mem. Supp.
Mot. Summ. J. at 4. Defendant Sharp moves for summary judgment on plaintiff’s claims against
him in Count I for false arrest. Plaintiff responds that Count I of his complaint does not assert
§ 1983 claims for either malicious prosecution or false arrest. Accordingly, this aspect of defendants
Carr and Sharp’s motions for summary judgment will be denied as moot.
iii. Due Process Claims
Both the Amended Complaint and the defendants’ summary judgment motions refer
generically to plaintiff’s “due process” claims in Count I. Defendants Carr and Sharp’s motions for
summary judgment separately address plaintiff’s claims that they (1) suppressed exculpatory
evidence, and (2) used false or manufactured evidence against him. The former are properly
analyzed as procedural due process claims, while the latter are substantive due process claims.

22

a. Procedural Due Process Claims
Plaintiff argues that defendants Carr and Sharp recklessly or intentionally suppressed
exculpatory evidence in violation of his Fourteenth Amendment right to procedural due process.
Specifically, plaintiff contends that these defendants suppressed the following material evidence:
(1) photographs showing the location of the bag of crack cocaine discovered in a bedroom, not on
the floor of the kitchen where the police report falsely claimed that Carr and Sharp found it after
seeing it in plaintiff’s hands; (2) information that Carr and Sharp arrested Sherrod Greenlaw, the
target of the search warrant, for street sales of crack cocaine later the same day of plaintiff’s arrest;
and (3) evidence of Carr and Sharp’s corrupt and illegal practices.
As the Supreme Court held in Brady v. Maryland, “[T]he suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of prosecution.” 373 U.S.
83, 87 (1963). Brady’s protections extend to actions of investigating officers, but “an investigating
officer’s failure to preserve evidence potentially useful to the accused or their failure to disclose
such evidence does not constitute a denial of due process in the absence of bad faith.” White v.
McKinley, 519 F.3d 806, 814 (8th Cir. 2008) (“White I”). “[T]he recovery of § 1983 damages
requires proof that a law enforcement officer other than the prosecutor intended to deprive the
defendant of a fair trial.” Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004). “Consequently,
to be viable, [a plaintiff’s] claim must allege bad faith to implicate a clearly established right under
Brady.” White I, 519 F.3d at 814.
Brady “does not require the plaintiff to show that the jury in his criminal trial would have
acquitted him or that he was innocent.” White v. McKinley, 605 F3d 525, 537-38 (8th Cir. 2010)
(“White II”). “The question is not whether the defendant would more likely than not have received
23

a different verdict with the evidence, but whether in its absence he received a fair trial, understood
as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995).
The Court examines plaintiff’s procedural due process claims separately as to each
defendant.
(1) Defendant Sharp
(a) Police Report - Arrest of Sherrod Greenlaw
Plaintiff asserts that Sharp failed to disclose to the prosecutor and in the police report of
Sherrod Greenlaw’s arrest that when Sharp and Carr arrested Greenlaw for selling crack cocaine
later the same day plaintiff was arrested, Greenlaw–who was the target of the search warrant at 2802
Missouri–had been detained earlier that same day and transported to 2802 Missouri pursuant to the
warrant. Plaintiff argues that even though partners Carr and Sharp’s reports of plaintiff’s and
Greenlaw’s arrests were prepared on the same day, neither report refers to the other arrest and no
supplemental report was ever prepared connecting the two incidents, which would have alerted
prosecutors to Greenlaw’s second detention and arrest and its connection to the case against
plaintiff. Plaintiff states that Carr admitted in his deposition that the evidence of Greenlaw’s arrest
would have been “pertinent,” and in that type of circumstance, Carr generally would probably
reference the other police report in his report of plaintiff’s arrest. Plaintiff also cites the affidavit
of Stephen Welby, the former Assistant United States Attorney who prosecuted plaintiff, that if Mr.
Welby had known about the police report of Greenlaw’s arrest, he would have disclosed it to
plaintiff as exculpatory evidence.
Plaintiff argues that evidence Greenlaw was arrested for selling crack cocaine on the same
day crack cocaine was purportedly discovered at the 2802 Missouri residence would have been
powerful evidence that the drugs belonged to Greenlaw, the original target of the investigation, and
24

not to plaintiff. Plaintiff contends the reasonable inference from the facts is that Carr and Sharp
were acting together, in bad faith, and intended to deprive him of a fair trial by not disclosing the
exculpatory evidence of Greenlaw’s arrest.
Sharp counters that plaintiff offers no explanation as to how an alleged failure to inform
plaintiff of “freely available public information” regarding Greenlaw’s arrest constitutes bad faith
on his part. Sharp also argues that no evidence was suppressed, as plaintiff testified that he knew
who Greenlaw was, and Greenlaw admitted to plaintiff on the night of the arrests that the drugs
found at 2802 Missouri belonged to him. Sharp contends that plaintiff thus “admittedly had
possession of similar, and arguably superior, information to defend himself.” Defendant Sharp did
not cite any cases in support of his argument in his summary judgment memorandum, but in his
reply memorandum cited United States v. Zuazo, 243 F.3d 428, 431 (8th Cir. 2001) (“The
government does not suppress evidence in violation of Brady by failing to disclose evidence to
which the defendant had access through other channels.”).5
Sharp’s argument that information regarding Greenlaw’s arrest was “public” and “freely
available” is unsupported by any citation to record evidence, case law or statutes. Sharp does not
assert that plaintiff testified he knew Greenlaw had been arrested, only that Greenlaw admitted the
crack cocaine was his. In contrast, plaintiff alleges that Sharp suppressed the fact that Greenlaw–the
subject of the warrant at 2802 Missouri–was arrested by Sharp and Carr for selling street quantities
of crack later the same day plaintiff was allegedly found holding crack by Sharp and Carr during
their execution of the warrant. Plaintiff offers evidence that information concerning Greenlaw’s

5

Sharp as the moving party bears the burden to establish his entitlement to summary judgment
as a matter of law. Sharp must therefore cite case law to support his arguments in the memorandum
in support of his summary judgment motion, as opposed to waiting to offer support in his reply
memorandum. The latter smacks of sandbagging.
25

arrest was not known by the AUSA who prosecuted him, Mr. Welby, who believes he would have
disclosed the evidence as exculpatory if he had known of it. The allegedly suppressed evidence
possessed an apparent exculpatory value, see California v. Trombetta, 467 U.S. 479, 489 (1984), and
plaintiff has alleged that Sharp acted in bad faith in suppressing it.
Nonetheless, the Court concludes that Sharp is entitled to summary judgment on this claim.
Plaintiff testified in his deposition, as cited by defendant Carr but not by defendant Sharp, that after
plaintiff was arrested and it was clear the case was going to trial, Greenlaw offered to come forward
and state that the crack cocaine was his. Plaintiff testified he told his attorney Mr. Cohen about this
offer and asked if it would help, and the attorney responded that it would not, “Because all they’re
going to do is say you was trying to discard the drugs for Greenlaw.” Jones Dep. 178:1-14. Based
on this testimony, it is clear plaintiff and his trial counsel obtained information from another source
that was closely related to and more exculpatory than the information plaintiff alleges was
suppressed by Sharp. As a result, plaintiff cannot show there is a remaining fact issue as to whether
a Brady or procedural due process violation occurred based on Sharp’s failure to disclose
information plaintiff had through other channels. See Zuazo, 243 F.3d at 431.
Defendant Sharp’s motion for summary judgment should therefore be granted on plaintiff’s
procedural due process claim in Count I to the extent it is based on the alleged suppression of
exculpatory evidence regarding Sherrod Greenlaw’s arrest.
(b) Photographs of Seized Drugs
Sharp also moves for summary judgment to the extent plaintiff alleges in Count I that Sharp
was involved in suppressing photographs of the crack cocaine found at 2802 Missouri. Sharp argues
that plaintiff admitted in his deposition he has no evidence Sharp played any role in suppressing the
photographs. In opposing Sharp’s motion for summary judgment, plaintiff does not offer any facts
26

or argument to support a procedural due process claim against Sharp, as opposed to Carr, for the
alleged suppression of the photographs. Sharp is therefore entitled to summary judgment on this
aspect of plaintiff’s procedural due process claim in Count I.
(c) Evidence of Sharp’s Corruption
In opposing Sharp’s motion for summary judgment on Count I, plaintiff argues that a Brady
claim can exist for suppression or concealment of exculpatory information when police officers
conceal their own pattern of misconduct which, if disclosed, would have impeached their testimony
and credibility, citing Thompson v. City of Chicago, 722 F.3d 963 (7th Cir. 2013). Plaintiff argues
he has shown substantial evidence of Sharp’s corruption, and that his conviction was set aside
because evidence of Sharp and Carr’s corruption impeached the credibility of their testimony to such
an extent it no longer held any probative value.
Sharp replies that plaintiff was tried in February 1998 and therefore any actions Sharp may
have taken after February 1998 could not have been suppressed because they had not yet occurred.
Sharp asserts that the record shows he had only one sustained complaint as of February 1998, for
violation of a departmental procedure that resulted in a written reprimand and was not similar to the
claims plaintiff makes in this case, and that the evidence of corruption plaintiff cites dates from
February 2007 to July 2008. Sharp argues that plaintiff cannot show there would have been a
reasonable probability of a different result at his trial if this information had been known, citing
Kyles, 514 U.S. at 434.
The Court concludes that Sharp has established he is entitled to summary judgment on
plaintiff’s claim of a procedural due process violation for failure to disclose a pattern of misconduct,
as no such pattern existed at the time of plaintiff’s trial in February 1998. Because Sharp had only
one sustained complaint at that time, which was dissimilar to plaintiff’s claims here, plaintiff has
27

not shown the existence of a fact issue as to whether there is a reasonable probability he did not
receive a fair trial because of the failure to disclose this evidence. See Kyles, 514 U.S. at 434. The
evidence concerning Sharp’s conduct as of 1998 is unlike the extensive evidence in Thompson of
a long-standing pattern and practice of police corruption before Thompson’s arrest, by officers who
regularly fabricated evidence, conducted illegal searches, made false arrests, pursued false criminal
charges, and covered up their wrongful conduct by filing false police reports and giving false
testimony. 722 F.3d at 972.
Because the Court concludes defendant Sharp is entitled to summary judgment on all of
plaintiff’s procedural due process claims against him in Count I, it does not reach Sharp’s qualified
immunity argument.
(2) Defendant Carr
(a) Suppression of Photographic Evidence
Defendant Carr moves for summary judgment on plaintiff’s claim in Count I that Carr
violated his procedural due process rights and Brady by suppressing photographs taken during the
warrant execution at 2802 Missouri that showed the crack cocaine was found in a bedroom and not
in plaintiff’s hands or on the kitchen floor.6 In support, Carr argues that the photographs were lost,
and plaintiff “has not discovered any evidence that would shed light on the whereabouts or
provenance of the missing photographs.” Carr Mem. Supp. Mot. Summ. J. at 7
Plaintiff responds that it is uncontroverted Carr took photographs of the scene where the bag
containing crack cocaine was found at 2802 Missouri, and that Carr claimed he took the photos to
the police forensic lab but they were somehow lost. Plaintiff states that Carr was admittedly

6

Defendant Carr’s motion for summary judgment does not mention any other aspect of plaintiff’s
procedural due process claims in Count I.
28

responsible for preserving the chain of evidence, but no receipts or other documentation showing
that Carr actually took the photographs to the forensic lab were produced by the SLMPD in response
to plaintiff’s discovery request for all documents relating to the photographs. Plaintiff asserts there
is no evidence other than the testimony of Carr, a convicted felon and admitted perjurer, that he in
fact took the photographs to the forensic lab. Plaintiff states that the location where the crack
cocaine was purportedly found was highly material in the case brought against him, because the
police report falsely stated it was found on the floor of the kitchen after Carr and Sharp saw plaintiff
holding it in his hand and attempting to flee the officers, and Carr testified at trial that he
photographed the crack in the kitchen and not in the bedroom. Other witnesses, however, testified
that plaintiff was seated on a couch in the front room throughout the warrant execution, and that they
were told by the officers that the crack cocaine was found in a dresser in the middle bedroom.
Plaintiff argues that a dispute of fact exists as to whether Carr destroyed this physical evidence
because it contradicted his and Sharp’s false version of the events.
Because there is no specific evidence that Carr suppressed the photographs, the inquiry is
whether the facts create a reasonable inference that he did. See Reasonover v. St. Louis County,
Mo., 447 F.3d 569, 581 (8th Cir. 2006). The Court finds that when the facts are viewed in the light
most favorable to plaintiff and all reasonable inferences from the evidence are allowed, including
evidence of the criminal conduct Carr confessed to in connection with his official duties, there is a
reasonable inference from which a jury could find that Carr deprived plaintiff of a fair trial by
deliberately suppressing the photographs–which would have shown that the crack cocaine was found
in a bedroom rather than in the kitchen with plaintiff, contrary to Carr’s police report and Carr and
Sharp’s trial testimony–in order to further Carr and Sharp’s efforts to cover up their theft of money
from 2802 Missouri. Cf. Reasonover, 447 F.3d at 581 (no reasonable inference of unlawful
29

suppression of a potentially exculpatory audio tape arose from the fact that the name of the police
officer and the date of the conversation were on the side of the tape that contained the recording,
particularly where the officer denied making the recording or having responsibility for the tape).
Whether Carr’s alleged failure to preserve the photographs was done in bad faith is a disputed
factual issue not appropriate for summary judgment. Cf. White I, 519 F.3d at 814.
Carr also argues that even if plaintiff could prove he suppressed the photographs, he is
entitled to summary judgment based on qualified immunity principles because, while “the Eighth
Circuit has suggested that police officers might be liable for the intentional suppression of
exculpatory evidence,” Carr Mem. Supp. Mot. Summ. J. at 7, such conduct was not clearly
actionable under § 1983 at the time of plaintiff’s trial in 1998.
“The party asserting immunity always has the burden to establish the relevant predicate facts,
and at the summary judgment stage, the nonmoving party is given the benefit of all reasonable
inferences.” White I, 519 F.3d at 813 (citation omitted). In determining whether an officer is
entitled to qualified immunity, courts ask two questions: (1) “whether, taking the facts in the light
most favorable to the injured party, the alleged facts demonstrate that the official’s conduct violated
a constitutional right”; and (2) whether the asserted constitutional right is clearly established. Id.
A court may address either question first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). “If
either question is answered in the negative, the public official is entitled to qualified immunity.”
Norris v. Engles, 494 F.3d 634, 637 (8th Cir. 2007) (quoted case omitted). “To determine whether
a right is clearly established we ask whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” White I, 519 F.3d at 813 (quoted case omitted).
The Eighth Circuit has held that “Brady’s protections also extend to actions of other law
enforcement officers such as investigating officers,” but this can constitute a due process violation
30

permitting the recovery of § 1983 damages only where the plaintiff alleges the officer had a bad faith
intent to deprive him of a fair trial. White I, 519 F.3d at 814 (quoting Villanova, 368 F.3d at 980).
Subsequently, in White II, the Eighth Circuit upheld a large verdict in favor of the plaintiff on his
§ 1983 claim against a police officer based on the suppression of exculpatory evidence. 605 F.3d
at 528, 532-33. In White I, the Eighth Circuit rejected the police officer’s argument, similar to
Carr’s, that this right was not clearly established at the time, stating:
[W]e have held that “the absence of a factually similar case does not guarantee
government officials the shield of qualified immunity .... [t]he key inquiry in
deciding whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.”
Moran v. Clark, 359 F.3d 1058, 1060-61 (8th Cir. 2004) (internal citations and
quotations omitted). We hold that no reasonable police officer in Richard’s shoes
could have believed that he could deliberately misrepresent the nature and length of
his relationship with Tina, or that he could deliberately fail to preserve a child
victim’s diary containing potentially exculpatory information.
White I, 519 F.3d at 814. The alleged suppression of evidence found actionable in White I occurred
in 1998 and 1999, see id. at 810-12, and plaintiff’s trial in this case was in 1998. The right was
therefore clearly established.
Accepting the facts as alleged by plaintiff, the Court concludes that no reasonable police
officer in Carr’s shoes could have believed he could deliberately fail to preserve photographs
showing the actual location where the crack cocaine was found, which was potentially exculpatory
information. Whether Carr did so in bad faith is a question for the jury and is not appropriate for
summary judgment. Cf. White I, 519 F.3d at 814. The Court will therefore deny Carr’s motion for
summary judgment based on qualified immunity on this aspect of plaintiff’s procedural due process
claim.

31

(b) Evidence Regarding Sherrod Greenlaw
Although defendant Carr did not move for summary judgment on plaintiff’s claim that Carr
suppressed potentially exculpatory evidence regarding the arrest of Sherrod Greenlaw, he addressed
this claim in his reply memorandum. Although the Court cannot condone Carr’s failure to address
this claim in his summary judgment motion, as discussed above with respect to defendant Sharp,
plaintiff’s deposition testimony shows that plaintiff and his trial counsel obtained from another
source information that was related to and more exculpatory to that allegedly suppressed by Carr.
As a result, plaintiff cannot show there is a remaining fact issue as to whether a Brady or procedural
due process violation occurred based on Carr’s alleged suppression of information concerning
Greenlaw’s arrest. See Zuazo, 243 F.3d at 431.
Defendant Carr’s motion for summary judgment should therefore be granted on plaintiff’s
procedural due process claim in Count I to the extent it is based on the alleged suppression of
exculpatory evidence regarding Sherrod Greenlaw’s arrest. As a result, the Court does not address
Carr’s argument that he is entitled to qualified immunity on this claim.
(c) Evidence of Carr’s Corruption
In opposing Carr’s motion for summary judgment on the procedural due process claims in
Count I, plaintiff argues that Carr suppressed or concealed exculpatory information concerning his
own pattern of misconduct which, if disclosed, would have impeached his testimony and credibility,
citing Thompson, 722 F.3d 963. Plaintiff argues he has shown substantial evidence of Carr’s
corruption, and that his conviction was set aside because evidence of Carr and Sharp’s corruption
impeached the credibility of their testimony to such an extent it no longer held any probative value.
Carr replies that plaintiff was tried in February 1998 and the record shows Carr had no
sustained Internal Affairs Division complaints as of the time of plaintiff’s arrest and prosecution,
32

so there was no evidence of corruption to suppress. Carr asserts that the evidence of corruption
plaintiff cites dates from June 2008 and therefore has no bearing on whether Carr withheld
impeachment evidence in 1998.
The evidence is that there were two unsustained IAD complaints made against Carr prior to
1998, one of which was comparable to aspects of the instant case because it alleged that Carr seized
money during the execution of search warrant but only reported a portion of it and stole the rest.
Assuming the existence of a duty to disclose evidence of corruption, the Court concludes such a duty
would not extend to unsustained complaints.
The Court concludes Carr has established he is entitled to summary judgment on plaintiff’s
claim of a procedural due process violation for failure to disclose a pattern of misconduct, as there
is no evidence such a pattern existed at the time of plaintiff’s trial in February 1998 because Carr
had no sustained Internal Affairs complaints at the time. Plaintiff has not shown the existence of
a fact issue as to whether there is a reasonable probability that he did not receive a fair trial because
of the alleged failure to disclose evidence of Carr’s corruption. See Kyles, 514 U.S. at 434.
b. Substantive Due Process Claims
In paragraphs 53 b) through e) of Count I of the Amended Complaint, plaintiff alleges that
defendants Sharp and Carr framed him for a crime he did not commit and obtained his conviction
in order to cover up their theft of $5,200 during execution of the search warrant at 2802 Missouri.
Plaintiff alleges the defendants planted evidence at the scene, provided false information in the
police report, and provided false information to federal prosecutors in order to unconstitutionally
deprive plaintiff of his freedom.
A police officer’s use of false evidence to secure a conviction violates a defendant’s
substantive due process rights. White v. Smith, 696 F.3d 740, 754 (8th Cir. 2012) (citing Wilson
33

v. Lawrence County, 260 F.3d 946, 954 (8th Cir. 2001), and Napue v. Illinois, 360 U.S. 264, 269
(1959)). The Eighth Circuit has “recognized that a plaintiff can make out a violation of substantive
due process by ‘offer[ing] evidence of a purposeful police conspiracy to manufacture, and the
manufacture of, false evidence.’” White, 696 F.3d at 754 (quoting Moran v. Clarke, 296 F.3d 638,
647 (8th Cir. 2002) (en banc)). Plaintiff’s allegations that the defendants manufactured false
evidence against him are properly analyzed under the rubric of substantive due process.
“To establish a substantive due process violation, [plaintiff] must demonstrate that a
fundamental right was violated and that the conduct shocks the conscience.” Akins v. Epperly, 588
F.3d 1178, 1183 (8th Cir. 2009). “[I]n a due process challenge to executive action, the threshold
question is whether the behavior of the governmental officer is so egregious, so outrageous, that it
may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523
U.S. 833, 847 n.8 (1998). Whether conduct shocks the conscience is a question of law. Terrell v.
Larson, 396 F.3d 975, 981 (8th Cir. 2005) (en banc).
“In order to ‘shock the conscience,’ it is not enough that the government official’s behavior
meets the ‘lowest common denominator of customary tort liability.’” White v. Smith, 696 F.3d at
757 (quoting Lewis, 523 U.S. at 848-49). “[C]onduct intended to injure in some way unjustifiable
by any government interest is the sort of official action most likely to rise to the conscience-shocking
level.” Lewis, 523 U.S. at 849. “Only the most severe violations of individual rights that result from
the ‘brutal and inhumane abuse of official power’ rise to this level.” White v. Smith, 696 F.3d at 75758 (quoted case omitted). Relevant to the allegations in this case, the Eighth Circuit has stated,
“There can be little doubt that intentionally manufacturing false evidence to convict a criminal
defendant is the sort of ‘brutal and inhumane abuse of official power’ that shocks the conscience.”
Id. at 758.
34

Different standards of culpability can apply to determine whether a defendant’s conduct may
be considered conscience shocking because “a wide variety of official conduct may cause injury.”
Folkerts v. City of Waverly, Ia., 707 F.3d 975, 980 (8th Cir. 2013) (quoted case omitted). Where the
“state actors have the opportunity to deliberate various alternatives prior to selecting a course of
conduct, such action violates due process if it is done recklessly.” Wilson, 260 F.3d at 956 & n.9
(noting that the “reckless standard normally contains a subjective component similar to criminal
recklessness.”). The Eighth Circuit has also described the recklessness standard as “evinc[ing]
deliberate indifference.” Scheeler v. City of St. Cloud, Minn., 402 F.3d 826, 831 (8th Cir. 2005).
To establish a violation of his substantive due process rights based on the manufacture of false
evidence against him, plaintiff must show that Carr and Sharp acted intentionally or recklessly,
“thereby shocking the conscience.” See Akins, 588 F.3d at 1184.
The Court examines plaintiff’s substantive due process claims separately as to each defendant.
(1) Defendant Sharp
Defendant Sharp moves for summary judgment on plaintiff’s substantive due process claims
in Count I, asserting that plaintiff “has failed to offer any evidence that Defendant Sharp knowingly
used false evidence to secure a conviction,” and that the evidence used to convict plaintiff was trial
testimony for which he has absolute immunity under Briscoe v. LaHue, 460 U.S. 325, 345 (1983).
Sharp Mem. Supp. Mot. Summ. J. at 5. Sharp also asserts that plaintiff has failed to produce any
evidence supporting a claim that he fabricated evidence.
Plaintiff responds that the case against him would never have been brought without Carr and
Sharp’s pretrial actions, including the creation of the false police report, suppression of the
photographic evidence, failure to disclose Greenlaw’s arrest, failure to disclose the defendants’
corrupt practices, and providing false information to the prosecutor. Plaintiff offers the affidavit of
35

AUSA Stephen Welby, who states that he reviewed Carr’s police report and discussed both Carr and
Sharp’s testimony with them before calling them to testify, relied on that information in prosecuting
plaintiff, and would not have prosecuted plaintiff without Carr’s report and the information provided
in Carr and Sharp’s interviews. Plaintiff asserts that testimonial immunity does not apply to
investigative conduct by an officer or the officer’s conduct as a complaining witness, citing Malley
v. Briggs, 475 U.S. 335, 340-41 (1986), and Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003).
Sharp replies that the only admissible evidence concerning his alleged fabrication of evidence
is that he met with AUSA Welby shortly before trial to discuss his testimony. Sharp asserts that he
has absolute immunity for his testimony under Briscoe, and that the absolute immunity extends to
any pretrial meetings with prosecutors to discuss his testimony, citing Snelling v. Westhoff, 972 F.2d
199, 200 (8th Cir. 1992), Mowbray v. Cameron County, 274 F.3d 269, 277 (5th Cir. 2001), and
Helmig v. Fowler, 2012 WL 3111888, at *2 (W.D. Mo. July 31, 2012).
As a threshold matter, plaintiff attempts to rely on conduct that he alleges violated his
procedural due process rights (the alleged suppression of photographs, failure to disclose Greenlaw’s
arrest, failure to disclose corrupt practices) in arguing that his substantive due process claims should
survive summary judgment. The Court will focus on the actions that are alleged to constitute the
manufacture of false evidence: preparation of the false police report of plaintiff’s arrest and providing
false information to the prosecutor that corroborated the false police report. Plaintiff does not allege
that Sharp had a role in preparing the police report, so Sharp is entitled to summary judgment on that
aspect of plaintiff’s claim and the Court examines only Sharp’s alleged act of providing false
information to the prosecutor.
“[T]he official seeking absolute immunity bears the burden that such immunity is justified for
the function in question.” Burns v. Reed, 500 U.S. 478, 486 (1991). The Supreme Court has stated
36

that its recognition of absolute immunity has been “quite sparing” and it has “refused to extend it any
‘further than its justification would warrant.’” Id. at 487 (quoting Harlow v. Fitzgerald, 457 U.S. 800,
811 (1982)). Sharp’s contention that his pretrial communication to the prosecutor is protected by
absolute immunity is not supported by the cases he cites. In Briscoe, the Supreme Court held that
witnesses, including police officers, have absolute immunity for testimony in a judicial proceeding,
even where the testimony is perjured. 460 U.S. at 331-32. The Supreme Court explained that
absolute immunity derived from the common law and was granted to encourage witnesses to testify
fully without fear of liability. Id. at 333. Subsequent decisions, including Snelling and Mowbray,
extend Briscoe’s holding of absolute witness immunity to bar § 1983 claims that allege witnesses
entered into a pretrial conspiracy to commit perjury. See Snelling, 972 F.2d at 200; Mowbray, 274
F.3d at 277; Helmig, 2012 WL 3111888, at *2 (citing Snelling and Mowbray; dismissing on the basis
of absolute witness immunity § 1983 claim that officer conspired to testify falsely).
Snelling does not control here, because plaintiff does not allege that Sharp conspired with
Carr to commit perjury. Rather, plaintiff alleges that Sharp provided false information to the
prosecutor as part of the defendants’ scheme to frame plaintiff in order to cover up their theft of
money from 2802 Missouri during execution of the search warrant. Sharp has not cited any decisions
holding that a law enforcement officer has absolute witness immunity where he deliberately provides
false information to a prosecutor.
A police officer is entitled only to qualified immunity when acting as a “complaining witness”
in a non-adversarial context, as opposed to absolute immunity as a testimonial witness in an
adversarial proceeding. See Malley, 475 U.S. 335 (police officer was not entitled to absolute
immunity, but rather qualified immunity, in applying for an arrest warrant on the basis of a felony
complaint and affidavit he prepared that failed to state probable cause; absolute immunity did not
37

apply because the officer’s function in seeking the arrest warrant was similar to that of a complaining
witness, and complaining witnesses were not absolutely immune at common law); Odom v. Kaizer,
417 F. App’x 611, 611 (8th Cir. 2011) (unpublished per curiam) (police officer was not entitled to
absolute immunity on Fourth Amendment claim he knowingly gave false information while testifying
in support of issuance of an arrest warrant; citing Malley); see also Manning v. Miller, 355 F.3d
1028, 1031-33 (7th Cir. 2004) (allegations that FBI agents created and submitted false written reports
stating that plaintiff had confessed when they knew he had not, and destroyed or tampered with tapes
of the purported confessions, were not “merely a dressed-up claim for conspiracy to commit perjury”
and agents were not entitled to absolute immunity); Spurlock v. Satterfield, 167 F.3d 995, 1003-04
(6th Cir. 1999) (deputy sheriff accused of testifying falsely against the plaintiff, fabricating probable
cause and coercing an informant to testify falsely was entitled to absolute immunity for his testimony,
but not for the alleged non-testimonial acts of fabricating evidence and coercing the informant’s false
testimony); compare Kalina v. Fletcher, 522 U.S. 118, 129-31 (1997) (prosecutor was not entitled
to absolute immunity for making false statements of fact in an affidavit supporting an application for
an arrest warrant; in so doing she was performing the function of a complaining witness).7 Based on
these authorities, the Court concludes that Sharp has not established he is entitled to absolute

7

In addition, in White I, the plaintiff alleged that the defendant police officer lied to the
prosecutor about matters fundamental to the prosecutor’s assessment of the relationship between the
officer and plaintiff’s ex-wife. See White II, 605 F.3d at 532 (discussing White I). The Eighth
Circuit found that genuine issues of material fact existed as to whether the officer had deliberately
withheld information from the prosecutor and failed to preserve exculpatory evidence, and affirmed
the district court’s denial of summary judgment on the basis of qualified immunity. See id. There
was no discussion of absolute immunity. In White II, the Eighth Circuit found that a reasonable jury
could have concluded the officer’s misrepresentation to the prosecutors about his relationship with
plaintiff’s ex-wife and his failure to preserve evidence were done in bad faith, and affirmed the
district court’s denial of the officer’s motion for judgment as a matter of law.
38

immunity on plaintiff’s claim that he provided false evidence to the prosecutor in the pretrial
interview.
Sharp also asserts that he is entitled to summary judgment based on qualified immunity
because there is no evidence he used false evidence, much less that he knew any knew evidence was
false. Sharp also contends plaintiff has not identified any constitutional right that Sharp violated.
“At the summary judgment stage, a defendant is entitled to qualified immunity unless ‘(1) the facts,
viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or
statutory right; and (2) the right was clearly established at the time of the deprivation.’ Howard v.
Kan. City Police Dep’t, 570 F.3d 984, 988 (8th Cir. 2009).” Payne v. Britten, 749 F.3d 697, 708 (8th
Cir. 2014) (J. Riley, concurring).
Viewing the facts in the light most favorable to plaintiff, the evidence is that Sharp falsely told
the federal prosecutor in a pretrial interview that when Sharp executed the search warrant at 2802
Missouri, he entered the apartment, saw plaintiff holding a bag of crack cocaine, and chased him into
the kitchen where plaintiff dropped the bag, when in fact plaintiff had no crack cocaine in his
possession and was seated on a couch in the front room of the apartment during the warrant
execution. The evidence is also that the prosecutor relied on Sharp’s statements in deciding to
prosecute plaintiff.
These facts give rise to a reasonable inference that Sharp purposefully or with deliberate
indifference manufactured false evidence in order to convict plaintiff and, possibly, to cover up the
theft of money from 2802 Missouri. The Eighth Circuit has recognized that a plaintiff can establish
a substantive due process violation by offering evidence of the manufacture of false evidence. White
v. Smith, 696 F.3d at 754; Moran, 296 F.3d at 647. “There can be little doubt that intentionally
manufacturing false evidence to convict a criminal defendant is the sort of ‘brutal and inhumane
39

abuse of official power’ that shocks the conscience.” White v. Smith, 696 F.3d at 758 (quoting
Moran, 296 F.3d at 647). The first prong of the qualified immunity inquiry is therefore met.
“[T]he right to be free from a conviction purposefully obtained by false evidence and false
testimony has long been clearly established.” Id. at 759 (citing Napue, 360 U.S. at 269, and Mooney
v. Holohan, 294 U.S. 103, 112 (1935) (per curiam)). The second prong of the inquiry is also met, and
Sharp’s motion for summary judgment on plaintiff’s substantive due process claim based on
providing false evidence to the prosecutor will be denied, including on qualified immunity grounds.
(2) Defendant Carr
(a) Substantive Due Process
Defendant Carr moves for summary judgment on plaintiff’s substantive due process claims
in Count I, that he prepared a false affidavit in support of a search warrant, planted evidence at 2802
Missouri, provided false evidence in a police report and in other documents, and provided false
information to federal prosecutors. Carr asserts there is no competent evidence the search warrant
affidavit he prepared was false, or that he provided federal prosecutors with any information prior
to plaintiff’s trial. Carr argues that even assuming plaintiff’s allegations are true, he is entitled to
summary judgment because any damages plaintiff suffered resulted from Carr’s trial testimony and
not from any alleged pretrial fabrications plaintiff alleges, citing Briscoe, 460 U.S. at 326 (police
officers are entitled to immunity under § 1983 for damages stemming from perjured testimony given
at criminal trial). In support of the argument that he is entitled to absolute immunity, Carr asserts that
plaintiff’s “conviction hinged entirely on eyewitness accounts provided by . . . Carr and Sharp, and
such conviction would not have been possible without their testimony,” Carr Mem. Supp. Mot.
Summ. J. at 9, as no police reports or other documents were shown to the jury or used at plaintiff’s

40

trial, only the drugs and search warrant were admitted into evidence, and the jury was not allowed
to see the warrant.8
Plaintiff responds that the case against him would never have been brought without Carr’s
pretrial actions, including creation of the false police report, suppression of the photographic
evidence, failure to disclose Greenlaw’s arrest, failure to disclose the defendants’ corrupt practices,
and providing false information to the prosecutor. As previously stated, plaintiff offers the affidavit
of former AUSA Stephen Welby, who avers that he reviewed Carr’s police report and discussed both
Carr and Sharp’s testimony with them before calling them to testify, relied on that information in
prosecuting plaintiff, and would not have prosecuted plaintiff without Carr’s report and the
information provided in Carr and Sharp’s interviews. Plaintiff asserts that testimonial immunity does
not apply to investigative conduct by an officer or the officer’s conduct as a complaining witness,
citing Malley, 475 U.S. at 340-41, and Vakilian, 335 F.3d at 516.
Carr replies that plaintiff’s damages result from the defendants’ trial testimony, not any
alleged pretrial fabrications, and that plaintiff does not dispute his assertions concerning the evidence
admitted at trial. Carr reiterates his position that he is entitled to summary judgment based on
absolute testimonial immunity under Briscoe and Rehberg v. Paulk, 132 S. Ct. 1497 (2012)
(extending immunity under § 1983 to witnesses in a grand jury proceeding). Carr also offers a new
argument in his reply memorandum, as follows: Because the allegedly fabricated evidence was not
shown to the jury at trial, plaintiff cannot establish that the fabrication caused his conviction and his
claims must be dismissed. In support, Carr cites Myers v. Bull, 599 F.2d 863, 866 (8th Cir. 1979)

8

Carr does not assert that he is entitled to qualified immunity on plaintiff’s substantive due process
claims.
41

(“Absent some showing that the alleged perjurious deposition had some causal relationship to
appellant’s conviction, he has failed to state a claim upon which relief can be granted.”).
As with defendant Sharp, the Court limits its analysis to the actions alleged to violate
plaintiff’s substantive due process rights: Carr’s alleged creation of a false police report and
providing false information to the federal prosecutor in support of the false police report.9 As stated
previously, “[T]he official seeking absolute immunity bears the burden of showing that such
immunity is justified for the function in question.” Burns, 500 U.S. at 486. Carr does not cite any
factually similar cases to support his contention that he is entitled to absolute immunity in connection
with preparing the false police report and providing false information to the federal prosecutor. Carr
is entitled only to qualified immunity when acting as a “complaining witness” in a non-adversarial
context, as opposed to absolute immunity as a testimonial witness in an adversarial proceeding. See
Malley, 475 U.S. 335; Odom, 417 F. App’x at 611; see also White I, 519 F.3d at 813-14; Manning,
355 F.3d at 1031-33; Spurlock, 167 F.3d at 1003-04; compare Kalina, 522 U.S. at 129-31. Based on
these authorities, the Court concludes Carr has not established that he is entitled to absolute immunity
on plaintiff’s claims she created a false police report and provided false evidence to the prosecutor.
To the extent it is appropriate to address Carr’s belated argument, raised for the first time in
his reply brief, that he is entitled to summary judgment because the allegedly false police report was
not shown to the jury, the Court concludes the motion should be denied. Here, plaintiff offers
evidence of a causal relationship between the allegedly perjured evidence and plaintiff’s conviction:
the prosecutor’s affidavit stating that he reviewed Carr’s police report, discussed Carr’s testimony

9

The Court will discuss separately plaintiff’s claim that Carr included false information in the
warrant application, as this invokes his Fourth and Fourteenth Amendment rights rather than
substantive due process.
42

with him before calling him to testify, relied on the content of the police report and the officers’
pretrial statements in prosecuting plaintiff, and would not have prosecuted plaintiff without the police
report and information provided in the pretrial statements. As a result, the Myers case on which Carr
relies is factually distinguishable. Carr’s motion for summary judgment on plaintiff’s substantive due
process claims based on the manufacture of false evidence should therefore be denied.
(b) False Affidavit in Support of Search Warrant
Plaintiff also alleges in paragraph 53.a) of Count I that the defendants prepared a false
affidavit to obtain the search warrant for 2802 Missouri. Carr moves for summary judgment asserting
that plaintiff lacks any evidence that the search warrant affidavit was false. Carr discusses this aspect
of Count I in the portion of his summary judgment memorandum addressing the fabrication of
evidence, i.e., the substantive due process claims.
The Supreme Court has instructed that “[w]here a particular Amendment provides an explicit
textual source of constitutional protection against a particular sort of government behavior, that
Amendment, not the more generalized notion of substantive due process, must be the guide for
analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion of
Rehnquist, C.J.) (internal punctuation marks, quotation marks and quoted case omitted). Plaintiff’s
allegation that Carr submitted a false affidavit to obtain a search warrant in the absence of probable
cause invokes plaintiff’s rights under the Fourth and Fourteenth Amendments rather than the Due
Process Clause. See Franks v. Delaware, 438 U.S. 154, 171-72 (1978); Livers, 700 F.3d at 357.
Plaintiff’s summary judgment opposition states that he does not bring claims for malicious
prosecution or false arrest under § 1983. Pl.’s Mem. Opp at 5. Plaintiff’s opposition to the
defendants’ motions for summary judgment on his substantive due process claims does not mention
a claim based on the filing of a false affidavit in support of the search warrant. Id. at 10-12. The
43

Court therefore concludes plaintiff has abandoned any claim concerning a false affidavit. Carr’s
motion for summary judgment should therefore be granted to the extent it is based on the alleged
filing of a false affidavit in support of the search warrant, and summary judgment should also be
granted as to defendant Sharp on the same basis. In addition, there is no evidence in the record to
show that Sharp had any involvement in preparation of the affidavit.
B. Count II - Conspiracy in Violation of § 1983
In Count II, plaintiff alleges that defendants Carr and Sharp conspired and acted together to
frame him for a crime he did not commit, by engaging in multiple overt acts. Both Carr and Sharp
move for summary judgment on the § 1983 conspiracy claim on the sole basis that plaintiff has failed
to establish an underlying constitutional tort claim, citing Gordon v. Hansen, 168 F.3d 1109, 1115
(8th Cir. 1999).
To prevail on a claim of § 1983 conspiracy, a plaintiff must show “(1) that the defendant
conspired with others to deprive him of constitutional rights; (2) that at least one of the alleged
co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) that the overt act
injured the plaintiff. The plaintiff is additionally required to prove a deprivation of a constitutional
right or privilege in order to prevail on a § 1983 civil conspiracy claim.” White I, 519 F.3d at 814
(internal citations omitted). The defendants are correct that a claim of civil conspiracy is not an
independent cause of action, and can only be sustained after an underlying tort claim has been
established. See Hanten v. School Dist. of Riverview Gardens, 183 F.3d 799, 809 (8th Cir. 1999)
Because the Court has concluded that defendants’ motions for summary judgment should be
denied in part on plaintiff’s procedural and substantive due process claims, their motions for
summary judgment on the conspiracy claim should be denied as well.

44

C. State Law Claims
Plaintiff’s Amended Complaint asserts supplemental state law claims against defendants Carr
and Sharp for malicious prosecution (Count V), false imprisonment (Count VI), and abuse of process
(Count VII). The defendants separately move for summary judgment on each count. Where
appropriate, the Court will address the defendants’ arguments separately.
i. Official Immunity - Defendant Sharp
Defendant Sharp asserts that he is entitled to official immunity on plaintiff’s state law tort
claims because his actions in investigating and arresting plaintiff were discretionary, and there is no
evidence he committed a willful or malicious wrong related to the investigation or arrest. Plaintiff
responds that Sharp is not entitled to official immunity because a reasonable juror could find that
Sharp’s actions with Carr to frame plaintiff for a crime he did not commit were undertaken in bad
faith and with malice.
“Under Missouri law, the official immunity doctrine protects public officials from liability
for injuries arising out of their discretionary acts or omissions, but not from liability in claims arising
from their performance of ministerial acts.” Reasonover, 447 F.3d at 585 (cited case omitted). “The
investigation of a crime is a discretionary act, not a ministerial one.” Id. Official immunity does not
apply, however, to discretionary acts done in bad faith or with malice. Id.; State ex rel. Twiehaus v.
Adolf, 706 S.W.2d 443, 446 (Mo. 1986) (en banc). “The relevant definition of bad faith or malice
in this context ordinarily contains a requirement of actual intent to cause injury.” Twiehaus, 706
S.W.2d at 447. “A defendant acts with malice when he wantonly does that which a man of
reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial
or injurious to another. An act is wanton when it is done of wicked purpose, or when done
needlessly, manifesting a reckless indifference to the rights of others.” Id. (internal punctuation and
45

quoted case omitted). “Bad faith, although not susceptible of concrete definition, embraces more than
bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing,
breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud.” Id.
(brackets and quoted case omitted). An allegation of “malicious motive or purpose or of conscious
wrongdoing” is sufficient under Missouri law to preclude application of the official immunity
doctrine. See Twiehaus, 706 S.W.2d at 447.
In this case, plaintiff alleges that defendant Sharp committed intentional torts – malicious
prosecution, false imprisonment and abuse of process – based on his actions in executing the search
warrant at 2802 Missouri, arresting plaintiff, providing false information to the prosecutor, and
testifying falsely at plaintiff’s trial. These allegations describe a conscious abuse of official duty and
power which fall within the scope of malice or bad faith. Under these circumstances, whether official
immunity applies is a question of fact which must be considered by the jury. See Blue v. Harrah’s
North Kansas City, LLC, 170 S.W.3d 466, 479-80 (Mo. Ct. App. 2005) (summary judgment
inappropriate where facts created a genuine dispute about whether officer acted in bad faith or with
malice in making arrest, thereby precluding him from claiming official immunity, and issue was for
jury). Defendant Sharp’s motion for summary judgment on plaintiff’s state law tort claims on the
basis of official immunity should therefore be denied.
ii. Witness Immunity - Defendant Carr
In his reply memorandum, defendant Carr raises a new argument that he has absolute witness
immunity under state law barring plaintiff from recovering damages on any state law tort claims to
the extent the claim depends on Carr’s testimony at plaintiff’s criminal trial. In support, Carr cites
Murphy v. A. A. Mathews, 841 S.W.2d 671, 680 (Mo. 1992) (en banc), and provides only a
parenthetical comment, “approving of Briscoe’s reasoning.” Carr Reply Mem. at 10. It appears
46

Carr’s belated argument was raised in response to a footnote in plaintiff’s opposition memorandum
which asserted that testimonial immunity under Briscoe is limited to Section 1983 civil rights claims.
See Pl.’s Mem. Opp. at 14, n.3. The Court believes it would be appropriate to disregard this new
argument because it is entirely conclusory and was raised for the first time in the reply. Out of an
abundance of caution, the Court will address the argument and concludes it does not entitle Carr to
summary judgment.
The Murphy case was an action against an engineering firm for professional negligence in
preparing litigation-related services, to which the engineering firm asserted a defense of witness
immunity. In Murphy, the Missouri Supreme Court stated that the doctrine of witness immunity is
narrowly applied in Missouri and has been limited to “defamation, defamation-type, or retaliatory
cases against adverse witnesses.” Id. at 680. After observing that the case before it was “outside the
realm of defamation,” the Missouri Supreme Court held that witness immunity did not bar the claim
for negligent pretrial litigation support services. Id. at 680. The court distinguished Briscoe, noting
that it addressed whether § 1983 permits damages to be recovered from a police office for giving
allegedly perjured testimony at a defendant’s criminal trial. Id. The court stated in dictum, “Clearly,
there would be an adverse chilling effect on free testimony, and great disruption to our criminal
justice system, if officers were not immune from suits for their testimony.” Id. at 680. Presumably,
this statement refers to defamation or defamation-type claims against officers, given the Missouri
Supreme Court’s emphasis in Murphy that witness immunity is narrowly applied.
Murphy is readily distinguishable from the present case on its facts. Carr does not cite any
Missouri cases holding that a tort action against a police officer for malicious prosecution, false
imprisonment or abuse of process involving trial testimony would be barred by absolute witness
immunity. Nor does Carr discuss which of plaintiff’s state tort claims are based on his trial
47

testimony. Carr has not cited any authority to establish that plaintiff’s state law claims are in the
nature of defamation, and it does not appear that they are. Justice Scalia addressed the distinction
between defamation and malicious prosecution in Burns v. Reed, 500 U.S. 478 (1991):
At common law, all statements made in the course of a court proceeding were
absolutely privileged against suits for defamation. Thus, an ordinary witness could
not be sued at all; a complaining witness (i.e., the private party bringing the suit)
could be sued for malicious prosecution but not for defamation. This immunity did
not turn upon the claimant’s status as a public or judicial officer, for it protected
private parties who served as witnesses, and even as prosecuting witnesses. The
immunity extended, however, only against suits for defamation.
Id. at 501 (Scalia, J., concurring in part and dissenting in part) (internal citations omitted) (emphases
added). Justice Scalia also observed, “At common law, the tort of maliciously procuring a search
warrant was not a species of defamation (an unintentional tort) but a form of the intentional tort of
malicious prosecution.” Id. at 504 (citations omitted). See also Restatement (Second) of Torts § 587
(1977), comment a (providing that statements made in the course of a judicial proceeding are
absolutely immune in the context of a defamation suit, but not in the context of a suit for malicious
prosecution); Houska v. Frederick, 447 S.W.2d 514, 518-19 (Mo. 1969) (while absolute privilege
applied to claims of slander of title based on recording of lis pendens, the privilege would not apply
to a malicious prosecution claim).
In addition, as plaintiff observes, the Supreme Court’s decision in Briscoe addressed witness
immunity under § 1983, not state tort law. Briscoe, 460 U.S. at 330 n.9. Although § 1983 “creates
a species of tort liability,” Heck v. Humphrey, 512 U.S. 477, 483 (1994) (quoted case omitted), and
common law tort rules provide a “starting point for the inquiry under § 1983,” Carey v. Piphus, 435
U.S. 247, 258 (1978), the parameters of potential liability under § 1983 for actions taken “under color
of law” in violation of “rights, privileges or immunities secured by the Constitution and laws” are
governed by the language of the statute as well as its history and purpose. See Heck, 512 U.S. at 492.
48

Significantly, the Supreme Court remarked in Briscoe that the “states remain free to grant relief” in
cases where an innocent plaintiff has obtained post-conviction relief, 460 U.S. at 344 n.30, even
though the Court held there was absolute immunity for damages under § 1983.
In sum, Carr’s conclusory citation to Murphy, unsupported by argument, does not establish
that he is entitled to summary judgment based on absolute immunity from plaintiff’s state law tort
claims to the extent those claims are based on his trial testimony.
iii. Malicious Prosecution
Defendants Carr and Sharp separately move for summary judgment on plaintiff’s malicious
prosecution claim in Count V. Each defendant asserts there is no evidence that he “instigated”
plaintiff’s prosecution, a necessary element of malicious prosecution. Plaintiff responds that the
purported evidence against him was summarized in the police report prepared by Carr, which was
reviewed by the prosecutor, and the prosecutor avers he interviewed both Carr and Sharp prior to
plaintiff’s trial and would not have prosecuted plaintiff without the information they provided.
Plaintiff also cites Judge Jackson’s finding in the Order granting him a Certificate of Innocence that
“apart from the now-discredited testimony of Carr and Sharp, there is no evidence that [plaintiff] had
possession of cocaine base, either at the time of the search or at any earlier time.”
“To establish a prima facie claim for malicious prosecution, a party must plead and prove six
elements: (1) commencement of an earlier suit against the party; (2) instigation of that suit by the
adverse party; (3) termination of the suit in the party’s favor, (4) lack of probable cause for filing the
suit; (5) malice by the adverse party in initiating the suit; and (6) damage sustained by the party as
a result of the suit. Edwards v. Gerstein, 237 S.W.3d 580, 582-83 (Mo. banc 2007).” State ex rel.
O’Basuyi v. Vincent, 434 S.W.3d 517, 519 (Mo. 2014) (en banc) (original emphasis deleted).
Defendants challenge only the second element, instigation.
49

“Instigation requires that there be some affirmative action by way of encouragement, advice,
pressure, or the like in the institution of the prosecution.” Crow v. Crawford & Co., 259 S.W.3d 104,
115 (Mo. Ct. App. 2008). Under Missouri law, to instigate also means “to stimulate or goad to an
action, especially a bad action.” Snider v. Wimberly, 209 S.W.2d 239, 242 (Mo. 1948) (quoted case
omitted). Simply triggering an investigation is insufficient to establish that a defendant instigated
the prosecution. Zike v. Advance Am., 2010 WL 1816747, at *7 (E.D. Mo. May 3, 2010).
“Where . . . an informant knowingly gives false or misleading information or directs or
counsels officials in such a way as to actively persuade and induce the decision to prosecute, the
informant may be liable for malicious prosecution.” J. D. Lee & Barry A. Lindahl, Modern Tort Law
Liability & Litigation § 40:4 (2d ed. 2006). This is the rule in Missouri: “Merely providing honest
information from which a prosecution ensues is not instigation, although liability may arise from
supplying false information to the prosecuting official.” Crow, 259 S.W.3d at 115. The instigation
element of malicious prosecution has been described by a leading treatise on tort law as follows:
The defendant may be liable either for initiating or for continuing a criminal
prosecution without probable cause. But the defendant cannot be held responsible
unless the defendant takes some active part in instigating or encouraging the
prosecution. The defendant is not liable merely because of approval or silent
acquiescence in the acts of another, nor for appearing as a witness against the accused,
even through the testimony be perjured . . . . On the other hand, if the defendant
advises or assists another person to begin the proceeding, ratifies it when it is begun
in defendant’s behalf, or takes any active part in directing or aiding the conduct of the
case, the defendant will be responsible.
Prosser and Keeton on Torts 872 (5th ed. 1984).
Here, when the evidence is viewed in the light most favorable to plaintiff, it tends to show that
(1) defendant Carr knowingly prepared a false police report incriminating plaintiff, arrested plaintiff
based on the allegations in that report, provided false information to the federal prosecutor, and
testified falsely at plaintiff’s trial; and (2) defendant Sharp provided false information to the federal
50

prosecutor and testified falsely at plaintiff’s trial. The evidence further tends to show that the
prosecutor’s decision to prosecute plaintiff was based on the police report prepared by Carr and the
pretrial statements made to him by Carr and Sharp, the prosecutor would not have prosecuted plaintiff
absent this information, and there was no other evidence against plaintiff. These facts are sufficient
to permit a reasonable jury to find that Carr and Sharp each affirmatively encouraged plaintiff’s
prosecution, and gave false or misleading information in such a way as to actively persuade and
induce the prosecutor to prosecute plaintiff. The defendants’ motions for summary judgment on
plaintiff’s malicious prosecution claim should therefore be denied.
iv. False Imprisonment
Defendants Carr and Sharp separately move for summary judgment on plaintiff’s false
imprisonment claim in Count VI. Defendant Carr argues there is no evidence that he confined
plaintiff without legal justification, as the short detention of plaintiff during and after the search at
2802 Missouri was lawful, and there is no evidence he instigated, caused or procured plaintiff’s
subsequent arrest and prosecution by federal authorities. Defendant Sharp similarly argues there is
no evidence he unlawfully restrained plaintiff, as the evidence is only that plaintiff was detained
pursuant to the execution of a search warrant and then for a period of one hour to perform an
investigation.10
Plaintiff responds that disputed issues of fact exist concerning whether his detention was
legally justified, that preclude summary judgment on this claim. Plaintiff argues that it is for the jury

10

In the memoranda in support of their motions for summary judgment, defendants argue that
their detention of plaintiff was lawful and support this assertion by providing the citations of various
state and federal cases. Defendants do not offer any explanation, however, of the holdings of the
cited cases or otherwise explain how the cases support their position and entitle them to judgment
as a matter of law. Defendants cannot expect to meet their burden on summary judgment without
properly supporting their arguments.
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to determine whether the defendants were acting in good faith reliance on a valid search warrant and
detained plaintiff because they had reason to believe he was in possession of the crack cocaine, or
whether the officers were acting in bad faith and conspiring together to lie in the police report and
to prosecutors to frame plaintiff for possession (1) because they could not connect Sherrod Greenlaw,
the target of the investigation, to the cocaine, and/or (2) to deflect from the theft of plaintiff’s father’s
money during the warrant execution at 2802 Missouri.
“False imprisonment, also called false arrest, is ‘the confinement, without legal justification,
by the wrongdoer of the person wronged.’ Warrem v. Parrish, 436 S.W.2d 670, 672 (Mo. 1969).”
Highfill v. Hale, 186 S.W.3d 277, 280 (Mo. 2006) (en banc). “A person can be liable for false
imprisonment if he encourages, causes, promotes, or instigates the arrest.” Id. (cited cases omitted).
“Whether a person instigated an arrest is a fact-specific inquiry; there is no fixed test that may be
applied.” Id. (quoted case omitted).
The Court finds that issues of material fact exist which preclude summary judgment on
plaintiff’s false imprisonment claim, including but not limited to whether defendants Carr and Sharp
had legal justification to detain plaintiff when they took him to the police station following execution
of the search warrant at 2802 Missouri. Defendants’ motions for summary judgment should therefore
be denied on Count VI.
v. Abuse of Process
In Count VII, plaintiff asserts a claim against defendants Carr and Sharp for the state law tort
of abuse of process. Defendants move for summary judgment on the grounds that the claim is barred
by the applicable statute of limitations, and that it fails on the merits.
Defendants Carr and Sharp assert that the Missouri five-year statute of limitations for general
personal injury claims, § 516.120(2), Mo. Rev. Stat. (2000), applies to abuse of process claims, citing
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Corley v. Jacobs, 820 S.W.2d 668, 672 (Mo. Ct. App. 1991). Defendants assert that the statute
begins to run from the termination of the acts that constitute the alleged abuse of process, citing
Steinhilber v. Lake Winnebago Home Owner’s Association, 965 F.2d 602, 604 (8th Cir. 1992).
Defendants argue that the statute of limitations in this case began to run at plaintiff’s trial in February
1998 and expired in February 2003, and they are entitled to summary judgment because the claim
is time barred.
Plaintiff responds that defendants fail to cite any Missouri case law addressing the statute of
limitations for abuse of process in the context of a claim by an exonerated prisoner where the abuse
of process resulted in a wrongful conviction. Plaintiff argues that the statute of limitations does not
bar his abuse of process claim for three reasons. First, plaintiff asserts that the Missouri Supreme
Court would adopt the analytical framework of Heck v. Humphrey, 512 U.S. 477, which holds that
a claim for damages for an unconstitutional conviction or imprisonment, or for other actions whose
unlawfulness would render a conviction or sentence invalid, does not accrue until the conviction or
sentence has been reversed on direct appeal or otherwise set aside. Plaintiff states that his abuse of
process claim is premised on the false statements and manufacture of evidence in the police report
and search warrant affidavit, the same facts defendants Carr and Sharp testified to at trial that resulted
in his conviction. Plaintiff argues that an abuse of process claim premised on the statements in the
police report and warrant affidavit would have impugned his then-existing conviction, and is
therefore tolled under Heck’s principles.
Second, plaintiff argues that the statute of limitations on this claim did not begin to run until
his conviction was set aside, because he would have been collaterally estopped by his conviction
from bringing an abuse of process claim during that time period, citing Adams v. VanWormer, 892
S.W.2d 655 (Mo. Ct. App. 1994) (convicted murderer was collaterally estopped from claiming in
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civil lawsuit against police officer and witness involved in criminal trial that these witnesses lied or
suborned perjury to wrongly convict him).
Third, plaintiff argues that abuse of process can constitute a “continuing tort” or “continuing
wrong” under Missouri law, citing Davis v. Laclede Gas Co., 603 S.W.2d 554, 556 (Mo. 1980) (en
banc) (“If . . . the wrong may be said to continue from day to day, and to create a fresh injury from
day to day, and the wrong is capable of being terminated, a right of action exists for the damages
suffered within the statutory period immediately preceding suit.”); and Guirl v. Guirl, 708 S.W.2d
239, 247 (Mo. Ct. App. 1986) (filing and maintaining a petition constituted abuses of process).
Finally, plaintiff argues that Sharp and Carr raised these same legal arguments in their
motions to dismiss, which were denied, and have not raised any new legal or factual grounds to
revisit that decision on summary judgment.
Defendant Carr replies that the claim is time barred because there is no requirement that a
plaintiff asserting a claim for abuse of process must be vindicated in the underlying action prior to
bringing his claim, citing Moffett v Commerce Trust Co., 283 S.W.2d 591, 599 (Mo. 1955).
Defendant Sharp replies that statutes of limitation are favored under Missouri law and plaintiff bears
the burden of showing he strictly comes with a claimed exception, citing Graham v. McGrath, 243
S.W.3d 459, 464 (Mo. Ct. App. 2007). Sharp states that while Missouri recognizes a “litigation
exception” which tolls a statute of limitations “where a person is prevented from exercising his legal
remedy by the pendency of legal proceedings,” citing Knipmeyer v. Spirtas, 750 S.W.2d 489, 490
(Mo. Ct. App. 1988), the exception only applies where a party was “legally prevented from bringing”
the suit, State ex rel. Mahn v. J.H. Berra Construction Co., Inc., 255 S.W.3d 543, 547 (Mo. Ct. App.
2008), and plaintiff was not “legally prevented” from bringing this claim by the pendency of legal
proceedings.
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As an initial matter, plaintiff’s argument that the Court should deny defendants’ motion for
summary judgment because it previously denied defendants’ motions to dismiss on statute of
limitations grounds fails to recognize the different standards applied to motions to dismiss and for
summary judgment. In the context of a motion to dismiss under Rule 12(b)(6), dismissal on the basis
of the statute of limitations is proper only where the complaint itself establishes the defense. See
Joyce v. Armstrong Teasdale, LLP, 635 F.3d 364, 367 (8th Cir. 2011). The complaint itself did not
establish the defense and therefore the motions to dismiss were denied. See Mem. and Order of Nov.
7, 2013 at 14 (Doc. 96). On summary judgment, the Court must determine whether there are any
genuine issues of material fact that preclude summary judgment and whether the defendants have
established they are entitled to judgment on the claim as a matter of law. See Celotex, 477 U.S. at
322.
A plaintiff must prove three elements to succeed on a claim for abuse of process under
Missouri law: “(1) the present defendant made an illegal, improper, perverted use of process, a use
neither warranted nor authorized by the process; (2) the defendant had an improper purpose in
exercising such illegal, perverted or improper use of process; and (3) damage resulted.” Stafford v.
Muster, 582 S.W.2d 670, 678 (Mo. 1979) (en banc). In contrast to a malicious prosecution claim,
a prior favorable termination is not an element of an abuse of process claim. Moffett, 283 S.W.2d
at 599 (“The purpose for which the process is used, once it is issued, is the only thing of importance.
Consequently in an action for abuse of process it is unnecessary for the plaintiff to prove that the
proceeding has terminated in his favor, or that it was obtained without probable cause or in the course
of a proceeding begun without probable cause.”) (quoted source omitted).
Because this is a state law claim, the Court applies Missouri law regarding the statute of
limitations and any rules that are an integral part of the statute of limitations, such as tolling and
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equitable estoppel. See Walker v. Barrett, 650 F.3d 1198, 1203-04 (8th Cir. 2011). The Missouri
five-year statute of limitations applies to a claim for abuse of process. See Corley, 820 S.W.2d at
672. The statute of limitations on an abuse of process claim under Missouri law begins to run “from
the termination of the acts which constitute the abuse complained of, and not from the completion
of the action in which the process issued.” Id. (citation omitted). “The cause of action for an abuse
of process is complete as soon as the acts complained of are committed.” Id. (quoting 72 C.J.S.
Process § 112 (1987)). Barring any exceptions or tolling provision, plaintiff’s abuse of process claim
from events that occurred in 1997 and 1998 are barred by the five-year statute of limitations.
To determine whether tolling principles apply to save the abuse of process claims, the Court
must first predict whether the Missouri Supreme Court would apply the Heck accrual rule to abuse
of process claims, an issue that court has not addressed. See Blankenship v. USA Truck, Inc., 601
F.3d 852, 856 (8th Cir. 2010) (recognizing that federal courts make an “Erie-educated guess” when
a state supreme court has not addressed an issue).11
The Supreme Court in Heck, 512 U.S. at 484, held that favorable termination was an essential
element of a § 1983 claim based on allegations police officers engaged in an unreasonable
investigation leading to the plaintiff’s arrest, knowingly destroyed exculpatory evidence, and caused
an illegal voice identification procedure to be used at trial. The Court concluded the § 1983 claims
were most analogous to the common law tort of malicious prosecution. The Supreme Court noted
the principle that “to permit a convicted criminal defendant to proceed with a malicious prosecution
claim would permit a collateral attack on the conviction through the vehicle of a civil suit,” id. at 484
(quoted source omitted), and held this principle precluded a § 1983 claim that necessarily required

11

See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (holding a federal court sitting in diversity
is bound by the decisions of the state’s highest court).
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the plaintiff to prove the unlawfulness of his conviction or confinement. Id. at 484, 487. The Court
also held that a cause of action under § 1983 “for damages attributable to an unconstitutional
conviction or sentence does not accrue until the conviction or sentence has been invalidated.” Id. at
489.
The Heck accrual rule was clarified and limited in Wallace v. Kato, 549 U.S. 384 (2007), in
which the Supreme Court held that the statute of limitations for a § 1983 claim for unlawful arrest
in violation of the Fourth Amendment began to run when the arrestee appeared before an examining
magistrate and was bound over for trial, not later when charges were dropped. Id. at 390. The
Supreme Court looked to the federal common law of false imprisonment as the most analogous cause
of action, and held that the claim could not accrue until the tort of false imprisonment ended. Id. at
388. The Court then turned to the question of when false imprisonment ends and determined that it
ends when the person becomes held pursuant to legal process:
Reflective of the fact that false imprisonment consists of detention without legal
process, a false imprisonment ends once the victim becomes held pursuant to such
process—when, for example, he is bound over by a magistrate or arraigned on
charges. Thereafter, unlawful detention forms part of the damages for the “entirely
distinct” tort of malicious prosecution, which remedies detention accompanied, not
by absence of legal process, but by wrongful institution of legal process. “If there is
a false arrest claim, damages for that claim cover the time of detention up until
issuance of process or arraignment, but not more. 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.” Thus, petitioner’s contention that his
false imprisonment ended upon his release from custody, after the State dropped the
charges against him, must be rejected. It ended much earlier, when the legal process
was initiated against him, and the statute would have begun to run from that date[.]
Wallace, 549 U.S. at 389-90 (internal citations omitted).
In Wallace, the Supreme Court declined to apply the Heck rule for deferred accrual, which
applies only where there is an outstanding criminal judgment and “delays what would otherwise be
the accrual date of a tort action until the setting aside of an extant conviction which success in that
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tort action would impugn.” Id. at 393. The Supreme Court distinguished Wallace from Heck on the
basis that the claim in Heck was analogous to the tort of malicious prosecution, rather than false
imprisonment. Id. at 393-94. The Court stated that while a claim of malicious prosecution would
inevitably impugn the validity of a conviction, a claim of false imprisonment only impugns an
anticipated future conviction because the claim ends well before the conviction occurs. Id. at 394.
The Seventh Circuit has characterized Wallace as holding “a claim that accrues before a
criminal conviction may and usually must be filed without regard to the conviction’s validity.” Evans
v. Poskon, 603 F.3d 362, 363 (7th Cir. 2010). This interpretation of Wallace’s holding focuses “on
the factual distinction between Heck and Wallace: the tort of false arrest is complete, and therefore
begins to accrue, once the individual is brought before a magistrate; the tort of malicious prosecution
is not complete until a conviction occurs and that conviction has been overturned, and therefore the
statute of limitations for malicious prosecution does not begin to accrue until that time.” Parish v.
City of Elkhart, 614 F.3d 677, 681-82 (7th Cir. 2010).
As with the unlawful arrest claim in Wallace, plaintiff’s claims for abuse of process under
Missouri law were complete and accrued immediately upon the termination of the acts constituting
the improper use of process, see Corley, 820 S.W.2d at 672, well prior to plaintiff’s criminal
conviction. In contrast to the facts in Heck, plaintiff did not have to show that the prior criminal
proceedings terminated in his favor before he could bring an abuse of process claim. See Moffatt,
283 S.W.2d at 599. Plaintiff could have brought suit on his abuse of process claim immediately after
the acts he complains of occurred, and for these reasons the Court concludes the claim is time
barred.12 Cf. Dickerson v. City of Hickman, 2010 WL 816684, at *5 (W.D. Ky. Mar. 4, 2010) (one-

12

The Court questions whether defendant Carr’s preparation of an allegedly false police report
or the defendants’ allegedly false trial testimony can be considered “process” in the context of an
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year Kentucky statute of limitations for abuse of process claims accrued from the termination of the
acts which constituted the abuse complained of, and the claims were time barred). For these reasons,
the Court concludes that the Missouri Supreme Court would not apply the Heck accrual rule to
Missouri abuse of process claims.13
Addressing plaintiff’s second argument, Missouri courts have held that certain types of claims
are collaterally estopped by a criminal conviction, see, e.g., VanWormer, 892 S.W.2d at 657 (criminal
conviction collaterally estopped the defendant from claiming he was not guilty and that witnesses lied
in the criminal proceeding to wrongly convict him); Johnson v. Raban, 702 S.W.2d 134, 138 (Mo.
Ct. App. 1985) (denial of relief in postconviction proceeding collaterally estopped defendant from
relitigating his counsel’s negligence in a legal malpractice action). The Court concludes, however,
that plaintiff’s criminal conviction would not have collaterally estopped him from bringing the abuse
of process claim for the same reasons the claim would not have been barred by the Heck accrual rule:
under Missouri law, the claim accrued when the acts alleged to be abuse of process were completed,
and plaintiff was not required to show favorable termination of the criminal proceedings against him
to establish an abuse of process claim.
Finally, because the statute of limitations on an abuse of process claim “begins to run from
the termination of the acts which constitute the abuse complained of, and not from the completion
of the action in which the process issued,” Corley, 820 S.W.2d at 672, the Court concludes the
Missouri continuing tort or continuing wrong doctrine does not apply to an abuse of process claim.

abuse of process claim. This need not be addressed, however, as all of the actions plaintiff claims
as abuse of process were completed in 1997 or 1998, more than five years before this action was
filed.
13

In so concluding, the Court does not intend to offer any comment as to whether the Missouri
Supreme Court might adopt the Heck accrual rule for any other type of claim.
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For these reasons, the Court concludes that defendants’ motions for summary judgment
should be granted on plaintiff’s abuse of process claims in Count VII, which are barred by the statute
of limitations. As a result, the Court does not reach the defendants’ arguments concerning the merits
of the abuse of process claims.
V. Conclusion
For the foregoing reasons, the Court concludes that defendants Carr and Sharp’s motions for
summary judgment should be granted in part, denied in part, and denied in part as moot, as set forth
below.
In summary, plaintiff’s claims remaining for trial against defendant Carr are the: (1)
procedural due process claim in Count I based on Carr’s alleged suppression of photographs showing
where the crack cocaine was found; (2) substantive due process claims in Count I based on the
alleged manufacture of false evidence (creating a false police report and providing false information
to the prosecutor); (3) § 1983 conspiracy claim in Count II; (4) state law malicious prosecution claim
in Count V; and (5) state law false imprisonment claim in Count VI.
Plaintiff’s claims remaining for trial against defendant Sharp are the: (1) substantive due
process claim in Count I based on the alleged manufacture of evidence (providing false evidence to
the prosecutor); (2) § 1983 conspiracy claim in Count II; (3) state law malicious prosecution claim
in Count V; and (4) state law false imprisonment claim in Count VI.
Accordingly,
IT IS HEREBY ORDERED that defendant Carr’s Motion for Summary Judgment is
GRANTED in part, DENIED in part, and DENIED in part as moot: [Doc. 196]
The motion is GRANTED as to the Fifth Amendment claims in Count I; procedural due
process claims in Count I based on the alleged suppression of evidence of Sherrod Greenlaw’s arrest
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and Carr’s corruption; Fourth and Fourteenth Amendment claims in Count I based on submitting a
false affidavit in support of the search warrant; and abuse of process claim in Count VII;
The motion is DENIED as to the procedural due process claims in Count I based on Carr’s
alleged suppression of photographs showing where the crack cocaine was found, including on the
basis of qualified immunity; substantive due process claims in Count I based on the manufacture of
false evidence (creating false police report and providing false information to the prosecutor); § 1983
conspiracy claims in Count II; state law malicious prosecution claim in Count V; and state law false
imprisonment claim in Count VI; and
The motion is DENIED as moot as to claims of § 1983 malicious prosecution and false arrest
in Count I because plaintiff has stated he does not assert such claims.
IT IS FURTHER ORDERED that defendant Sharp’s Motion for Summary Judgment is
GRANTED in part, DENIED in part, and DENIED in part as moot: [Doc. 193]
The motion is GRANTED as to the Fifth Amendment claims in Count I, procedural due
process claims in Count I; substantive due process claims in Count I based on creation of a false
police report; Fourth and Fourteenth Amendment claims in Count I based on submitting a false
affidavit in support of the search warrant; and state law abuse of process claims in Count VII;
The motion is DENIED as to the substantive due process claims in Count I based on
providing false evidence to the federal prosecutor, including on the basis of qualified immunity;
§ 1983 conspiracy claims in Count II; state law malicious prosecution claim in Count V; and state
law false imprisonment claim in Count VI; and
The motion is DENIED as moot as to claims of § 1983 malicious prosecution and false arrest
in Count I because plaintiff has stated he does not assert such claims.

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An appropriate partial judgment will accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 18th day of November, 2014.

62