Holmes v. Slay et al

Filing 172

OPINION MEMORANDUM AND ORDER: HEREBY ORDERED that defendant Garrett's Motion for Summary Judgment, [Doc. No. 105 ], is granted in part and denied in part;IT IS FURTHER ORDERED that defendant Sharp's Motion for Summary Judgment, [Doc. No. 108 ], is granted in part and denied in part.A separate judgment will be entered upon the resolution of the remaining issues herein. Signed by District Judge Henry Edward Autrey on 03/25/2015. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL HOLMES,
Plaintiff,
v.
FRANCIS G. SLAY, et al.,
Defendants.

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Case No. 4:12CV2333 HEA

OPINION, MEMORANDUM AND ORDER
This 42 U.S.C. § 1983 matter is before the Court on separate motions for
summary judgment filed by defendants Bobby Lee Garrett and Shell Sharp, [Doc.
No.’s 105 and 108, respectively]. Plaintiff opposes the motions and the motions are
fully briefed. For the following reasons, defendants Garrett and Sharp’s motions
for summary judgment will be granted in part, denied in part and denied in part as
moot.
Facts and Background
This action was filed on December 17, 2012 by Plaintiff 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 Garrett and Sharp. Plaintiff alleges that his federal civil rights

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were violated when he was arrested, convicted and imprisoned for a period of over
five years based on false evidence manufactured by defendants Garrett and Sharp.
Specifically, Plaintiff alleges that Plaintiff was falsely accused by Sharp of
being in possession of approximately 200 grams of cocaine base. Sharp claimed
that a confidential source advised him that “Big Mike,” a 270 pound black male
wearing a yellow jumpsuit, was selling cocaine from the residence at 5894 Cates,
St. Louis, Missouri. Sharp claimed that he established surveillance of the premises
in an unmarked vehicle across the street from the residence, during which he
observed three “hand-to-hand” transactions between Plaintiff and two unidentified
black males. The police report did not identify the vehicles, the license plates or
any further description of these two black males. Sharp did not radio any of the
other nine officers on standby at a nearby location to advise them about the
vehicles suspected to be departing with narcotics. The police report described a
transaction between Mr. Holmes and a third black male which Sharp later admitted
never happened and/or was a typographical error.
Plaintiff further alleges that Sharp’s false claims in the police report and to
federal prosecutors regarding these transactions, in order to obtain the wrongful
prosecution and conviction of Plaintiff, is part of a pattern whereby Sharp, Garrett
and others routinely falsified information in order to obtain warrants, including

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falsifying information purportedly given by confidential informants and falsifying
observations of “transactions” purportedly made during surveillance.
Sharp further claimed in the police report and to federal prosecutors that he
radioed the standby officers to come to the scene, and approached the residence at
5984 Cates to do a knock and talk. The door was opened by 85 year old Maetta
Griffin, Plaintiff’s grandmother, to whom Sharp claimed he told about the
information from the alleged confidential informant and the transactions he
witnessed during surveillance, and who then gave consent to search the residence.
In the police report, Sharp claimed that when the officers entered the house
they saw Plaintiff coming down the stairs. At trial, Sharp testified that he did not
see Plaintiff until they reached the second floor landing, where they saw Plaintiff
coming down the stairs carrying a brown paper bag. Sharp claimed falsely that
Plaintiff dropped this bag in plain sight of the officers and then ran back upstairs.
Sharp claimed that Officer Ray detained Plaintiff while Sharp looked into the bag
to determine whether it contained controlled substances, and found cocaine.
Sharp claimed falsely that Plaintiff told him he lived on the third floor, and
even identified his “bedroom” to the officers. Sharp claimed in the police report
and to federal prosecutors that after searching the room identified by Plaintiff, the
officers recovered a roasting pan, glass beakers, a scale, some heroin, $4000 from
an open safe, baggies, a shotgun and two bags of rubber bands. The officers did not
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search the rest of the house. Sharp admitted that there were two other black males
present in the house that day, but could not recall what they looked like or how
they were dressed. The police report indicated that both of these men were in the
house. Sharp did not ask those people which bedrooms they lived in or otherwise
interview them.
Plaintiff alleges that Sharp’s claims were false. As in other, similar cases,
Sharp manufactured evidence in order to frame Plaintiff for possession of the crack
cocaine. Plaintiff did not have or “throw down” a brown bag on the stairs in front
of the officers. He was never in possession of the weapons, drugs or other
paraphernalia admitted into evidence at his trial.
While still at the home after he was arrested, Defendant Garrett told Plaintiff
that he was going to take him downtown and would release him without charging
him “as long as he agreed not to go back to that house anymore.” Detective Garrett
indicated to Plaintiff that he was well aware that Plaintiff had lived in Ferguson for
approximately two years and did not reside at his Grandmother's residence where
he was arrested.
In addition, in an effort to further carry out Defendants’ corrupt conspiracy,
Officer Garrett performed surveillance at the scene of the arrest and performed an
interview of Plaintiff at the station after his arrest. At this time he encouraged
Plaintiff to sign a consent form to search the premises where Plaintiff had been
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arrested at his Grandmother’s residence, which Plaintiff refused to do. Garrett did
this in an attempt to validate the search and falsely establish that Plaintiff lived at
or was in control of the premises and therefore had authority to consent to the
search.
During the interview Defendant Garrett also had Plaintiff sign a “money
disclaimer” attesting that Plaintiff had no knowledge of any monies in the house.
Garrett did this in furtherance of the officers’ corrupt conspiracy, to ensure that
Garrett, Sharp and other officers could steal and keep any money found inside the
house.
While in the Federal Court house waiting for his trial to begin, Plaintiff also
observed Defendants Garrett and Sharp go into a conference room where Garrett
and Sharp remained for at least an hour. On information and belief, the purpose of
this meeting was to go over the details of Defendants’ conspiracy and ensure that it
was completed successfully.
Defendant Garrett’s false assertion to federal prosecutors that Plaintiff was
an ‘admitted drug dealer’ was crucial in their decision to pursue the prosecution of
Plaintiff arising from the incident on December 9, 2003, and thus instrumental and
material in carrying out the malicious prosecution of Plaintiff, ultimately resulting
in his illegal and unconstitutional imprisonment. Furthermore, Garrett at all times

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acted with and coordinated the conspiracy with Defendant Sharp and other officers
of the Department to obtain Plaintiff’s wrongful conviction.
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 Garrett and Sharp’s conduct, he was found guilty
by a jury of possession of more than 50 grams of a substance containing cocaine
base with intent to distribute and possession of firearms in furtherance of a drug
trafficking crime. Plaintiff was sentenced to 300 months in prison.
Plaintiff alleges that Defendant Garrett was indicted on federal corruption
charges related to his official duties and later pleaded guilty to federal criminal
charges of theft, conspiracy and making false statements and admitted planting
evidence, arresting an innocent man to cover up the theft of money and
involvement in falsifying court documents, lab forms and police reports.
See United States v. Garrett, No. 4:08CR703 ERW (E.D. Mo.). Plaintiff alleges
that the investigation also led to defendant Sharp leaving the police department
“under charges” of fraudulently concocting affidavits in support of search
warrants.
Plaintiff asserts federal civil rights claims against Garrett, Sharp and the
Board pursuant to 42 U.S.C. § 1983 and supplemental state law claims against
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Garrett and Sharp for malicious prosecution, wrongful imprisonment and abuse of
process.
Summary Judgment Standard
The standard applicable to summary judgment motions is 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 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
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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).
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).
Discussion

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The parties have each presented their respective version of the facts giving
rise to this action. Plaintiff disputes the overwhelming majority of Defendants’
facts, and Defendants dispute the overwhelming majority of Plaintiff’s facts.
In Count I of the Amended Complaint, Plaintiff alleges that Defendants
Garrett and Sharp violated his constitutional rights by the following acts:
a) Manufacturing evidence against Plaintiff, including planting evidence at the
scene; b) Sharp’s false statements in the police report and to federal prosecutors,
including that Plaintiff dropped the bag of crack cocaine and admitted to residing
in the residence; c) Garrett’s claim to prosecutors that Plaintiff had previously
admitted to being a “drug dealer”; d) Providing false information in the police
report and in other documents and reports prepared pursuant to Defendants’ duties
with the Department; e) Providing false information to federal prosecutors in order
to wrongfully, illegally and unconstitutionally deprive Plaintiff of his freedom;
f) Framing Plaintiff for a crime he did not commit and obtaining his conviction;
and g) Allowing Plaintiff to languish in prison for over 5 years and 3 months,
despite Defendants’ knowledge that Plaintiff did not commit the crime alleged.
Count I asserts that plaintiff was incarcerated without due process of law and
that Defendants Garret 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
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Fourteenth Amendments.” The Defendants move for summary judgment on all of
Plaintiff’s claims in Count I.
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.
It is elementary that 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 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 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
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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 757-58 (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.
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
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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).
In establishing a violation of his substantive due process rights based on the
manufacture of false evidence against him, Plaintiff must show that Garrett and
Sharp acted intentionally or recklessly, “thereby shocking the conscience.” See
Akins, 588 F.3d at 1184.
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 also asserts that plaintiff has failed to produce any
evidence supporting a claim that he fabricated evidence.
Plaintiff responds that there was no evidence of Plaintiff’s guilt of any
crime. That the case against him was based on Garrett and Sharp’s pretrial actions,
including the creation of the false police report and failure to disclose Defendants’
corrupt practices.

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Sharp asserts that he is entitled to summary judgment based on qualified
immunity because there is no identifiable action that he took that would shock the
conscience. Clemmons v. Armontrout, 477 F.3d 962,965 (8th Cir. 2007).
“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 prepared the police report, which contained false statements of fact.
Specifically, although Defendant claims that Plaintiff’s fingerprints were found on
drug paraphernalia, his fingerprints were not so found. Likewise, Plaintiff’s
fingerprints were not found on the brown paper bag Defendant claimed was used to
perform multiple transactions with individuals on the street and that Plaintiff had
been holding moments before Plaintiff was arrested.
These facts give rise to a reasonable inference that Sharp purposefully or
with deliberate indifference manufactured false evidence in order to convict
Plaintiff. The Eighth Circuit has recognized that a plaintiff can establish

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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 abuse of official power’ that
shocks the conscience.” White, 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 is denied,
including on qualified immunity grounds.
Defendant Garrett moves for summary judgment on plaintiff’s substantive
due process claims in Count I. He also argues that even assuming plaintiff’s
allegations are true, he is entitled to summary judgment based on qualified
immunity. Plaintiff’s allegations against Defendant Garrett are that he was aware
of the false evidence against Plaintiff and allowed the prosecution based on the
false charges. In order to state and maintain a Section 1983 action, a “plaintiff
must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662
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(2009). Thus, “each Government official, his or her title notwithstanding, is only
liable for his or her own misconduct. Id. Plaintiff’s claim against Garrett cannot
withstand Defendant’s qualified immunity challenge. Plaintiff merely alleges that
Garrett failed to intervene to stop a false arrest and prosecution of Plaintiff. The
Eighth Circuit has recently held that “outside of the excessive force context, there
is no clearly established law regarding a duty to intervene to prevent constitutional
violations.” Hess v. Ables, 714 F.3d 1048, 1052 (8th Cir.2013). As a result, Garrett
is entitled to qualified immunity on this claim.
Plaintiff alleges in Count II that defendants Garrett and Sharp conspired and
acted together to frame him for a crime he did not commit, by engaging in multiple
overt acts. Both Garrett 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).
In order 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 v.
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McKinley, 519 F.3d 806, 814 (8th Cir. 2008).(internal citations omitted).
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 Defendant Sharp’s motion
for summary judgment should bedenied in part on Plaintiff’s due process claims,
the motions for summary judgment on the conspiracy claim should be denied.
Plaintiff’s Amended Complaint asserts supplemental state law claims against
defendants Garrett and Sharp for malicious prosecution (Count V), wrongful
imprisonment (Count VI), and abuse of process (Count VII). The defendants
separately move for summary judgment on each count.
Defendants assert entitlement to official immunity on plaintiff’s state law
tort claims because the actions in investigating and arresting plaintiff were
discretionary, and there is no evidence they committed a willful or malicious
wrong related to the investigation or arrest. Plaintiff responds that Defendants are
not entitled to official immunity because a reasonable juror could find that their
actions 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
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not from liability in claims arising from their performance of ministerial acts.”
Reasonover v. St. Louis County, Mo., 447 F.3d 569, 585 (8th Cir. 2006)(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 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.

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In this case, plaintiff alleges that defendant Sharp committed intentional torts
– malicious prosecution, false imprisonment and abuse of process – based on his
actions in providing the information and evidence on which the prosecution’s
decision to charge was based. 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.
Defendants Garrett and Sharp separately move for summary judgment on
plaintiff’s malicious prosecution claim in Count V. Each defendant asserts there
was probable cause to arrest Plaintiff; there was a reasonable belief that Plaintiff
had committed an offense. Plaintiff responds that there exists disputes as to
whether Defendants had probable cause or whether they lied in order to concoct
probable cause.

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“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). 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:

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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 though 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 Sharp 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 Garrett failed to intervene in the false arrest and
testified falsely at plaintiff’s trial. These facts are sufficient to permit a reasonable
jury to find that Garrett and Sharp each affirmatively encouraged Plaintiff’s
prosecution. Defendants’ motions for summary judgment on Plaintiff’s malicious
prosecution claim should therefore be denied.
Defendants Garrett and Sharp separately move for summary judgment on
Plaintiff’s wrongful imprisonment claim in Count VI. Defendants argue that
probable cause to arrest Plaintiff existed, and therefore, they are entitled to
summary judgment.
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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 to determine whether Defendants had probable
cause or whether they lied in order to concoct that probable cause.
“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
wrongful imprisonment claim. Defendants’ motions for summary judgment should
therefore be denied on Count VI.
In Count VII, plaintiff asserts a claim against defendants Garrett 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 Garrett and Sharp assert that the Missouri five-year statute of
limitations for general personal injury claims, § 516.120(2), Mo. Rev. Stat. (2000),
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applies to abuse of process claims, citing 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 June 2006 1998 and expired in June 2011, 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 Garrett
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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 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).

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Finally, plaintiff argues that Sharp and Garrett 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.
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 equitable estoppel. See Walker v. Barrett, 650 F.3d
1198, 1203-04 (8th Cir. 2011). The Missouri five-year statute of limitations applies
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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 2006 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).
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
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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
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
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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 38990 (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 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

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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
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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-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.
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

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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 2006, more than five years
before this action was filed. 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.
Conclusion
For the foregoing reasons, the Court concludes that defendants Garrett and Sharp’s
motions for summary judgment should be granted in part, denied in part, as
provided herein.
Accordingly,

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IT IS HEREBY ORDERED that defendant Garrett’s Motion for Summary
Judgment, [Doc. No. 105], is granted in part and denied in part;
IT IS FURTHER ORDERED that defendant Sharp’s Motion for Summary
Judgment, [Doc. No. 108], is granted in part and denied in part.
A separate judgment will be entered upon the resolution of the remaining
issues herein.
Dated this 25th day of March, 2015.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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