Cook v. City of Tyler, Texas et al
Filing
89
MEMORANDUM OPINION AND ORDER. The Court GRANTS-IN-PART Defendants' motions for summary judgment (Docket Nos. 60 and 63 ) on the basis of governmental immunity from state-law tort claims as to all Defendants and on the basis of absolut e immunity as to Defendant Robert Wickham. Defendants' motions are DENIED-IN-PART on all other grounds. In light of the Court's rulings contained herein, the parties are ORDERED to meet and confer and file a joint status repo rt within twenty (20) days from the date of this order as to how the parties believe the case should proceed. The parties' pending motions regarding proposed docket control orders (Docket Nos. 48 and 49 ) are DENIED-AS-MOOT, and the Court will instruct the parties to re-submit a proposed docket control order at a later time. Signed by District Judge Robert W. Schroeder, III on 9/18/2018. (rlf)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
KERRY MAX COOK,
Plaintiff,
v.
CITY OF TYLER, TEXAS, SMITH
COUNTY, TEXAS, EDDIE CLARK, ERIC
LIPTAK,
DOUGLAS
COLLARD,
ROBERT BOND, GERALD HAYDEN,
NELSON DOWNING, FRED MAYO,
KENNETH FINDLEY, RONALD SCOTT,
RONNIE MALLOCH, MARVIN T.
MCLEROY,
STUART
DOWELL,
ROBERT WICKHAM, JAKE MASSEY,
J.B.
SMITH,
GENE
CARLSON,
UNKNOWN TYLER POLICE OFFICERS,
UNKNOWN
SMITH
COUNTY
SHERIFF'S DEPUTIES,
Defendants.
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CIVIL ACTION NO. 6:17-CV-00333-RWS
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants City of Tyler, Texas, and its former police officers, Eddie
Clark, Eric Liptak, Robert Bond, Gerald Hayden, Nelson Downing, Fred Mayo, Kenneth Findley,
and Ronald Scott’s (collectively, “City of Tyler Defendants”) Motion for Summary Judgment
(Docket No. 60) and Defendants Smith County, Texas, J.B. Smith and Robert Wickham’s
(collectively, “Smith County Defendants”) Motion for Summary Judgment (Docket No. 63).1 The
1
Smith County Defendants adopt by reference the motion for summary judgment filed by City of Tyler Defendants.
Docket No. 63 at 1. The Court addresses and cites to City of Tyler Defendants’ motion for summary judgment (Docket
No. 60), unless otherwise indicated.
Court heard argument on the motions on March 7, 2018. Docket No. 74. For the reasons explained
below, the parties’ motions are GRANTED-IN-PART and DENIED-IN-PART.
BACKGROUND
Plaintiff Kerry Max Cook has brought the instant action alleging he was wrongfully
prosecuted, convicted, imprisoned, and sentenced to death for the 1977 murder of Linda Jo
Edwards in Tyler, Texas. Docket No. 78, Am. Compl. ¶ 1.2 Cook alleges that he was convicted
on the basis of a homosexual witch-hunt by the Defendants, during which obvious evidence
pointing to the victim’s married, 45-year-old ex-lover, James Mayfield, was actively and
systemically disregarded, downplayed and concealed. Id. ¶ 2. Plaintiff claims that in an attempt
to ensure his conviction, the current and former law enforcement Defendants manufactured a
deliberately false fingerprint analysis, coerced false statements and testimony from various
witnesses, created knowingly and recklessly false investigative materials, concealed crucial
exculpatory evidence and fabricated inculpatory evidence. Id. ¶¶ 5, 6. Cook alleges he spent more
than 20 years in prison as a result of Defendants’ misconduct. Id. ¶ 7.
In this civil suit, Cook seeks monetary damages under 42 U.S.C. § 1983 from the City of
Tyler, the Texas Department of Public Safety, and the Smith County Sheriff’s Office, and from
Defendants Clark, Liptak, Collard, Bond, Hayden, Downing, Mayo, Findley, Scott, Malloch,
McLeroy, Dowell, Wickham, Massey, Smith, and Carlson—all current or former law enforcement
officials under these agencies. The City of Tyler Defendants and Smith County Defendants have
filed motions for summary judgment and seek a take-nothing judgment against Plaintiff in this
action.
2
Plaintiff filed an Amended Complaint on April 12, 2018, after the parties had completed briefing the instant motions
and after the Court heard argument. The Amended Complaint does not alter or affect the Court’s analysis of the
parties’ arguments.
Page 2 of 24
The parties agree to the following undisputed material facts which are relevant to the
resolution of the motions before the Court:3
1. Forty years ago, on June 9, 1977, Linda Jo Edwards, age 21, was brutally murdered
and mutilated in an apartment where she was staying with a friend in Tyler, Texas.
Cook v. State, 821 S.W.2d 600 (Tex. Crim. App. 1991). The grand jury indicted
Cook for her murder (Def. Ex. 1).
2. In Cook’s first trial, on July 13, 1978, the jury convicted Cook of capital murder
and assessed the death penalty. Cook v. State, 821 S.W.2d 600 (Tex. Crim. App.
1991).
3. The Texas Court of Criminal Appeals affirmed Cook’s conviction and death
sentence. Cook v. State, 741 S.W.2d 928 (Tex. Crim. App. 1987).
4. The U.S. Supreme Court reversed and remanded Cook’s conviction. Cook v. Texas,
109 S. Ct. 39 (1988).
5. On remand, the Court of Criminal Appeals held Cook’s rights were violated when
the State’s psychiatrist examined him without giving him an opportunity to consult
with his attorney. On rehearing, a divided Court of Criminal Appeals remanded
the case for a new trial on that ground. Cook v. State, 821 S.W.2d 600, 605 (Tex.
Crim. App. 1991).
6. [In 1991,] after Cook’s first trial, Jack Skeen was elected District Attorney. Neither
District Attorney Jack Skeen nor his First Assistant David Dobbs was involved in
the murder investigation in 1977 or in Cook’s first trial in 1978.4
7. [In 1992,] Cook was tried again. The second trial “ended in a mistrial after the jury
was unable to reach a verdict.” Cook v. State, 940 S.W.2d 623, 624 (Tex. Crim.
App. 1996).
8. Cook filed an application for a writ of habeas corpus in 1992. The state district
court denied his application and issued a lengthy order addressing Cook’s
complaints (Def. Ex. 2).
9. [In 1994,] Cook was tried a third time. A witness—Robert Hoehn—had died
between the first and third trials. Judge Robert Jones, who presided over the third
trial, admitted into evidence the testimony of the deceased witness from the first
trial. Cook v. State, 940 S.W.2d 623, 627 (Tex. Crim. App. 1996). “The third trial
resulted in [Cook’s] conviction and Cook was sentenced to death . . . .” Id. at 624.
10. [In 1996,] [t]he Court of Criminal Appeals reversed Cook’s conviction and
remanded the case for a new trial.5
Docket No. 60 at 2–4, Statement of Undisputed Material Facts; Docket No. 69-1, Plaintiff’s Response to Defendants’
Statement of Undisputed Material Facts.
4
Cook denies that Skeen and Dobbs disclosed all prosecutorial misconduct in connection with the first trial. On
remand of the second trial, the Court of Criminal Appeals, en banc, stated, “[P]rosecutorial and police misconduct has
tainted this entire matter from the outset. Little confidence can be placed in the outcome of appellant’s first two trials
as a result, and the taint, it seems clear, persisted until the revelation of the State’s misconduct in 1992. Much of the
earlier misconduct by the State was cured prior to appellant’s third trial.” Cook v. State, 940 S.W.2d 623, 627 (Tex.
Crim. App. 1996).
5
The Criminal Court of Appeals sustained Plaintiff’s third and fourth points of error that “the Due Process Clause of
the Fourteenth Amendment to the United States constitution and the Due Course of Law provisions of Articles I,
Sections 13 and 19, of the Texas Constitution prohibited appellant’s second retrial because the Smith County District
3
Page 3 of 24
11. [In 1999,] Cook filed an application for a writ of habeas corpus in federal court
against Judge Robert Jones and others. The federal court issued a memorandum
opinion and order of dismissal, denying Cook’s application.
12. [In 1999,] [p]rior to the start of his fourth trial, Cook entered into a plea agreement.
Cook pled nolo contendere to the lesser-included offense of murder (Def. Ex. 4 at
pgs. 9, 17). Judge Robert Jones—who had presided over Cook’s 1994 trial—took
judicial notice of the record of the 1994 trial, except for the testimony of the
deceased witness (Def. Ex. 4 at pg. 24).
13. [In 1999,] [t]wo months after the plea agreement resulted in Cook’s release from
prison, the Dallas Morning News published an article entitled “DNA Doesn’t
Match Convicted Killer Cook’s,” which stated “Decades-old DNA from the
underwear of a Tyler murder victim matches her ex-boyfriend’s, not that of Kerry
Max Cook, who recently pleaded no contest to murdering the victim, Linda Jo
Edwards.” (Def. Ex. 5 at pg. 1). Cook’s lawyers said “[t]hey would seek further
review of the case and the new evidence, perhaps through a lawsuit, a request for
U.S. Justice Department intervention or a motion in state criminal court” (Def. Ex.
5 at pg. 2).
14. [In 2012,] Cook filed a motion for post-conviction DNA testing in state court. Prior
to May 1, 2012, Cook learned that some of the physical evidence obtained in the
1977 crime-scene investigation had been lost or destroyed in 2001, two years after
the closing of his case (Def. Ex. 6 at pg. 28). The state court allowed new DNA
testing on evidence remaining from the 1977 investigation. Cook v. State, 2014
WL 806377 (Tex. App. – Tyler 2014, no pet.).
15. [In 2015,] Cook filed another application for a writ of habeas corpus in state court.6
16. [In 2016,] [i]n his writ proceeding—now pending in the Texas Court of Criminal
Appeals—Cook and the State stipulated that on April 5, 2016, for the first time,
James Mayfield, a witness in each of Cook’s trials, “admitted that he [Mayfield]
had sexual intercourse with Ms. Edwards on June 8th, the day before her murder;”
that Mayfield committed perjury when he testified he did not have sexual relations
with the victim during the three weeks prior to her death; that Mayfield had never
disclosed the truth to the police about his intercourse with the victim on the day
before her murder; and that the prosecutors never knew Mayfield had intercourse
with the victim on the day before her murder (Def. Ex. 7 at pgs. 281-283).
This stipulation was part of a settlement agreement between the State and Cook, in
which the parties agreed to request the Court of Criminal Appeals:
Attorney’s Office engaged in egregious prosecutorial misconduct during the period of time commencing with the
murder investigation and including appellant’s first two trials.” Cook v. State, 940 S.W.2d 623, 625, 628 (Tex. Crim.
App. 1996) (“For the reasons stated above, we sustain appellant’s third and fourth points of error, reverse the judgment
of the trial court and remand this cause for further proceedings consistent with this opinion.”).
6
Plaintiff clarifies: this writ of habeas corpus was filed with the State of Texas on the basis that Mr. Cook’s due
process rights to a fair trial had been violated and thus his conviction must be set aside. Further answering, Mr. Cook
asserted the additional ground of actual innocence because he was at all times wrongfully convicted for a crime he did
not commit. Mr. Cook sought the statutory compensation for wrongfully convicted individuals, which in his case due
to his 20 years of wrongful imprisonment would have been $1,600,000 under the Texas Wrongful Imprisonment Act,
TEX. CIV. PRAC. & REM. CODE § 103.001 et seq.” (Docket No. 69-1 at 8).
Page 4 of 24
• to reverse his 1999 felony conviction on the ground that Cook’s due process rights
were violated by the false testimony of James Mayfield and to grant a new trial to
Cook on that ground;
• to dismiss with prejudice all of Cook’s other grounds in his application for
challenging his conviction; and
• to submit Cook’s actual innocence claim to the state district court according to the
procedure set by such court (Def. Ex. 7 at pgs. 280-281).
The state court approved this stipulation, settlement agreement, and
recommendation to the Court of Criminal Appeals (Def. Ex. 7 at pgs. 290-291).
The state court then held a hearing on Cook’s claim of actual innocence. After the
hearing, the court entered findings of fact and conclusions of law recommending
that the Court of Criminal Appeals deny Cook’s claim of actual innocence (Def.
Ex. 7 at pgs. 292-314).
Plaintiff filed this suit on June 5, 2017, alleging: due process violations under §1983 and
the Fifth and Fourteenth Amendments (Count 1); malicious prosecution and illegal detention under
§ 1983 and the Fourth and Fourteenth Amendments (Count 2); violations of substantive due
process under the Fourteenth Amendment, including fabricating false evidence, deliberately
withholding material exculpatory evidence from Plaintiff, providing false inculpatory evidence
used to obtain Plaintiff’s wrongful conviction and coercing witnesses to testify falsely and provide
false statements used to convict Plaintiff (Count 3); destruction of evidence under § 1983 (Count
4); Monell liability claims against the City of Tyler and Smith County under § 1983 (Count 5);
conspiracy to deprive constitutional rights under § 1983 (Count 6); failure to intervene by the
Defendants to prevent the violation of his constitutional rights under § 1983 (Count 7); malicious
prosecution under state law (Count 8); intentional infliction of emotional distress under state law
(Count 9); respondeat superior under state law (Claim 10); and indemnification under City of
Tyler Ordinances (Count 11).
The Court held a scheduling conference in this matter on October 31, 2017. Docket No.
55. The Defendants requested an opportunity to file initial motions for summary judgment on
threshold, case-dispositive issues of law, including issues related to the statute of limitations,
Page 5 of 24
before the Court set this case on a schedule. The Court granted the Defendants’ request and the
Defendants subsequently filed the instant motions.
LEGAL STANDARD
The Court renders summary judgment only when there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322–25 (1986); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d
455, 458 (5th Cir. 1998). An issue of material fact is genuine if the evidence could lead a
reasonable jury to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). In determining whether a genuine issue for trial exists, a court views all inferences
drawn from the factual record in the light most favorable to the non-moving party. Matsushita
Elec. Indus. v. Zenith Radio, 475 U.S. 574, 587 (1986).
The moving party must identify the portions of the record that demonstrate the absence of
a genuine issue of material fact. Celotex, 477 U.S. at 323. Once a party has made that showing,
the non-moving party bears the burden of establishing otherwise. Geiserman v. MacDonald, 893
F.2d 787, 793 (5th Cir. 1990) (citing Celotex, 477 U.S. at 323). The non-moving party cannot
“rest upon mere allegations or denials” in the pleadings, but “must set forth specific facts showing
there is a genuine issue for trial.” Anderson, 477 U.S. at 248. Thus, summary judgment “is
appropriate if the non-movant ‘fails to make a showing sufficient to establish the existence of an
element essential to that party’s case.’ ” Bluebonnet Hotel Ventures, LLC v. Wells Fargo Bank,
N.A., 754 F.3d 272, 276 (5th Cir. 2014) (quoting Celotex, 477 U.S. at 322).
Page 6 of 24
DISCUSSION
I.
Statute of Limitations
Defendants argue that Cook’s claims regarding his 1978 and 1994 convictions accrued
more than 20 years ago and are thus barred by the two-year statute of limitations for a § 1983
action. The parties do not dispute that the two-year statute of limitations governs Cook’s claims.
Docket No. 60 at 14; see Docket No. 69. Rather, the parties dispute when Cook’s § 1983 causes
of action accrued and, therefore, when the two-year limitations period began.
Defendants argue that Cook’s claims are barred for two primary reasons: (1) Cook’s §1983
claims are false imprisonment or wrongful imprisonment claims that relate to conduct that
occurred before each criminal trial and that this prior conduct cannot be extended to future
convictions under Wallace v. Kato, 549 U.S. 384 (2007); and (2) Cook’s 1978 and 1994
convictions were favorably terminated each time the convictions were reversed and remanded, and
so, the statute of limitations for any claims relating to those convictions began to run immediately
upon reversal and remand of each conviction. Docket No. 60 at 14–16; see also Hr’g. Tr. 19:6–
10. Cook responds that the statute of limitations has not begun to accrue on any of his claims and
that accrual is deferred under the Heck bar until the Court of Criminal Appeals reverses his 1999
conviction and the indictment against him is dismissed. Docket No. 69 at 10–11.
In Heck v. Humphrey, 512 U.S. 477, 486–87 (1994), the Supreme Court held that:
[i]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983.
Page 7 of 24
In Heck, the plaintiff alleged that prosecutors and an investigator with the state police
“engaged in ‘unlawful, unreasonable, and arbitrary investigation’ leading to [Heck’s] arrest;
‘knowingly destroyed’ evidence which was exculpatory in nature . . . and caused ‘an illegal and
unlawful voice identification procedure’ to be used at [Heck’s] trial.” Heck, 512 U.S. at 479. The
Supreme Court determined that the common-law cause of action for malicious prosecution
provided the closest analogy to the claims brought by Heck because, “unlike the related cause of
action for false arrest or imprisonment, it permit[ted] damages for confinement imposed pursuant
to legal process.”7 Id. at 484.
The Court affirmed the district court and appellate court’s findings that Heck’s civil suit
was barred because his malicious prosecution claims challenged the legality of his conviction. Id.
at 477. The Court reasoned that requiring termination of the prior criminal proceeding in favor of
the accused as a condition for bringing a malicious prosecution suit “avoids parallel litigation over
the issues of probable cause and guilt . . . and it precludes the possibility of the claimant succeeding
in the tort action after having been convicted in the underlying criminal prosecution.” The Court
cautioned that permitting a convicted defendant to file a § 1983 civil suit “would permit a collateral
attack on the conviction through the vehicle of a civil suit.” Id. at 486.
In 2007, the Supreme Court further expounded on the exception to the deferred accrual rule
under Heck for false arrest claims. Wallace v. Kato, 549 U.S. 384 (2007). In Wallace, the Court
determined that Wallace’s challenge of his unlawful arrest was most analogous to the commonlaw tort of false imprisonment. The Court held that the Heck bar did not apply in Wallace because
“the Heck rule for deferred accrual is called into play only when there exists ‘a conviction or
“42 U.S.C. § 1983 creates a species of tort liability.” Heck, 512 U.S. at 483. “In defining the contours and
prerequisites of a § 1983, including its rule of accrual, courts are to look first to the common law of torts.” Manuel v.
City of Joliet, Ill., 137 S. Ct. 911, 920 (2017).
7
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sentence that has not been . . . invalidated,’ that is to say, an ‘outstanding criminal judgment.’ It
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 (emphasis in original). The
Court found that Wallace’s claim began to accrue when he was taken before a magistrate and
bound over for trial because at that point he became detained pursuant to legal process and his civil
action would not impugn any anticipated future conviction. Id.
A. Type of Claim
Defendants argue that all of Cook’s claims arise out of being “wrongfully imprisoned”
under the Fourth Amendment and that, therefore, under Wallace, Cook’s claims began to accrue
before his first trial in 1978. Docket No. 60 at 14–16. This is an oversimplification of Cook’s
claims. Though, at times, Cook does indeed allege in his complaint that he was “wrongfully
arrested,” Am. Compl. ¶¶ 1, and “falsely arrested,” id. ¶ 82, all of Cook’s claims, with the
exception of his malicious prosecution claim, are due process claims brought under the Fifth and
Fourteenth Amendment. Cook has not alleged an independent false imprisonment or false arrest
claim. See Am. Compl. Rather, Cook claims that Defendants deliberately withheld exculpatory
and impeachment evidence from Plaintiff and from prosecutors,” id. ¶ 95, Defendants fabricated
and solicited false evidence, id. ¶ 96, Defendants acted in conspiracy with each other to
unreasonably seize Cook, frame him and perpetuate judicial proceedings against him despite
knowing that Cook was innocent, id. ¶¶ 102, 129, Defendants failed to intervene to prevent the
violation of Cook’s constitutional rights, id. ¶ 136, and Defendants maliciously prosecuted Cook,
id. ¶ 140.
But even if Cook did allege false arrest or imprisonment claims, Cook argues that these
claims would arise out of Defendants’ misconduct and malicious prosecution, id. ¶¶ 107, 111, and
Page 9 of 24
so, are not Fourth Amendment false imprisonment claims. In a recent opinion, the Fifth Circuit
further clarified the applicability of Wallace in this type of situation and distinguished that “[a]
false-imprisonment claim is based upon ‘detention without legal process’, ” which “begins to run
at the time the claimant becomes detained pursuant to legal process;” whereas “a malicious
prosecution claim is based upon ‘detention accompanied . . . by wrongful institution of legal
process’,” and “does not accrue until the prosecution ends in the plaintiff’s favor.” Winfrey v.
Rogers, ___F.3d.___, No. 16-20702, 2018 WL 3976939, at *5 (5th Cir. Aug. 20, 2018) (emphasis
in original). In Winfrey, the Court found that because plaintiff was “arrested pursuant to an arrest
warrant, issued through the normal legal process, that [was] alleged to contain numerous material
omissions and misstatements,” plaintiff’s allegations were more of “a wrongful institution of legal
process—an unlawful arrest pursuant to a warrant—instead of a detention with no legal process”
claim. Id. at *6.
Though it is a nuanced distinction, Cook does not allege that he was wrongfully detained
without legal process; rather, Cook claims he was arrested and imprisoned pursuant to an
investigation conducted by the Defendants, but that the investigation itself was based on falsified
inculpatory evidence and unlawfully concealed exculpatory evidence. In other words, Cook does
not allege he was unlawfully arrested without a warrant or probable cause; he claims that the legal
process resulting in his imprisonment was unlawfully instituted.
Cook’s claims are more akin to those in Heck, where Heck complained of unlawful,
unreasonable, and arbitrary investigation leading to his arrest, exculpatory evidence being
knowingly destroyed by officers acting under the color of law, and illegal and unlawful voice
identification procedure being used at his trial. Heck, 512 U.S. at 479. Other courts have followed
that reasoning under similar factual circumstances. See Brown v. City of Houston, 297 F. Supp.
Page 10 of 24
3d 748, 760 (finding that “Brown’s § 1983 claims are most analogous to the malicious prosecution
tort” where Brown alleged that defendant manipulated and concealed exculpatory evidence,
actively harassed and intimidated multiple witnesses into providing false testimony, and initiated
and continued criminal proceedings against him without probable cause); Jordan v. Blount Cty.,
885 F.3d 413, 414–15 (6th Cir. 2018) (finding that claim of prosecutorial misconduct that led to
Jordan’s wrongful conviction, specifically that prosecutors withheld exculpatory evidence in
violation of Brady, was analogous to a malicious prosecution claim); Saunders-El v. Rohde, 778
F.3d 556, 560 (7th Cir. 2015) (finding that plaintiff’s allegations that law officers submitted a false
police report, planted a gun, and provided false testimony at plaintiff’s criminal trial qualified as
fabricating evidence, implicated plaintiff’s Fourteenth Amendment due process rights, and
triggered the Heck bar, though ultimately dismissing the claims on other grounds); Owens v.
Baltimore City State’s Attorneys Office, 767 F.3d 379, 390 (4th Cir. 2014) (finding that parties
properly agreed that Owen’s Brady-like claims of withholding exculpatory evidence were most
analogous to the tort of malicious prosecution and that plaintiff timely filed his suit).
In their reply brief, Defendants contend that the Supreme Court in Wallace applied its
rulings to all § 1983 claims, not just to claims of false arrest, when it stated that “[i]f a plaintiff
files a false-arrest claim before he has been convicted (or files any other claim related to rulings
that will likely be made in a pending or anticipated criminal trial), it is within the power of the
district court . . . to stay the civil action until the criminal case or likelihood of a criminal case is
ended.” Docket No. 71 at 2 (quoting Wallace, 549 U.S. at 393–94) (emphasis added). Defendants
argue that Cook’s fabricated evidence claims fall within the parenthetical category of “any other
claim,” because the issue of admissibility of allegedly fabricated testimony would “relate to rulings
Page 11 of 24
that will likely be made pending trial.” Id. at 3; Tr. at 25:1–4. Defendants’ reliance on this
explanatory parenthetical is misplaced.
The Supreme Court in Wallace “expressly limited [its] grant of certiorari to [petitioner’s]
Fourth Amendment false-arrest claim.” 549 U.S. at 387 n.1. Defendants have not directed this
Court to any authority where a court has applied Wallace beyond the scope of a false arrest claim.
Just the opposite is true. Since Wallace, courts have readily distinguished false arrest claims from
other claims brought under § 1983, including malicious prosecution and withholding of evidence
claims. See, e.g., Winfrey v. Rogers, 2018 WL 3976939, at *5–6 (distinguishing application of
Wallace in false arrest claims from other claims brought under § 1983, including malicious
prosecution and withholding of evidence claims); Brown v. City of Houston, 297 F. Supp. 3d 748,
759–61 (same); Jordan v. Blount Cty., 885 F.3d 413, 414–15 (same); Owens v. Baltimore City
State’s Attorneys Office, 767 F.3d 379, 390 (same). Moreover, Cook’s claims of fabrication or
withholding of evidence go directly to the substantive validity of his conviction, which are
precisely the types of claims barred under Heck to prevent collateral attack of a conviction through
a civil suit.
Cook’s claims are most analogous to the common-law tort of malicious prosecution.
Therefore, Cook’s claims are subject to deferred accrual under Heck and are subject to the twoyear statute of limitations upon a favorable termination of the criminal proceedings.
B. Favorable Termination
The Court next turns to the inquiry of what constitutes a favorable termination and whether
Cook’s criminal proceeding has been favorably terminated. Defendants argue that Cook’s § 1983
claims as to each conviction began to accrue upon reversal of those convictions or his release. In
other words, Defendants assert that: (1) Cook’s claims regarding his 1978 conviction began to
Page 12 of 24
accrue when his conviction was reversed and remanded for a new trial in 1991; (2) that his claims
regarding his 1994 conviction began to accrue upon reversal in 1996; and (3) that his claims
regarding his 1999 conviction began to accrue upon his release from prison later that year. Docket
No. 60 at 16–17. According to Defendants, each time Cook’s criminal conviction was reversed
and remanded—even if Cook was still under indictment—the underlying conviction was favorably
terminated such that the statute of limitations on any claims relating to that conviction began to
run. Docket No. 60 at 10–13. Defendants primarily rely on three Fifth Circuit cases in making
this argument.
Defendants cite to Davis v. Zain, 79 F.3d 18 (5th Cir. 1996), which they contend is “the
key case for the Court to consider in this case.” Tr. at 7:19–21; Docket No. 60 at 10–11. In Davis,
the Texas Criminal Court of Appeals reversed Davis’s 1990 conviction and remanded for a new
trial because the district attorney engaged in prosecutorial misconduct and suborned perjury.
Davis, 79 F.3d at 18. Davis then filed his § 1983 suit in federal district court, which the court
dismissed on the basis that the criminal proceedings against Davis had not terminated in his favor
—Davis was still awaiting his second trial—and, consequently, his claim had not accrued under
Heck. Id. at 19. The Fifth Circuit reversed the district court, finding that “the question arising
from Davis’s criminal trial over which he is now suing—his alleged wrongful 1990 conviction in
state court using tainted evidence—has been fully adjudicated in his favor: the conviction has been
reversed.” Id. Defendants argue that similar to Davis, Cook’s § 1983 action based on the events
prior to his first conviction accrued when that conviction was reversed, even if Cook was facing a
retrial on the same charges. Docket No. 60 at 11.
Defendants, however, overlook the entire second half of the Davis opinion, in which the
Fifth Circuit also found that “it is highly unlikely that Davis’s § 1983 suit will implicate the validity
Page 13 of 24
of his pending retrial for capital murder” because the state indicated that it did not intend to use
any of the tainted evidence in retrying Davis. 79 F.3d at 19 (“Consequently, there is little
likelihood here for conflict between Davis’s § 1983 suit and the pending state court proceeding.”).
More importantly, the Fifth Circuit also noted that “if some presently unforeseen or unarticulated
conflict arises between the criminal retrial and the pending § 1983 case, the district court may
consider the propriety of a stay or, perhaps, abstention.” Id. at 19 (citing Heck, 512 U.S. at 487
n.8). Davis is readily distinguishable in a case like this where any success on Cook’s § 1983 claims
would necessarily impugn and call into question his criminal conviction.
The Fifth Circuit addressed this issue again in Clay v. Allen, 242 F.3d 679 (5th Cir. 2001),
in which the court considered the question of “whether Heck applies when a state court reverses a
criminal defendant’s conviction but orders a retrial, subjecting the defendant to a potential
conviction in the future.” Id. at 681. The Fifth Circuit reiterated its holding in Davis that “a
criminal defendant may initiate a § 1983 suit if the state court has merely reversed the conviction;
it does not necessarily matter if the defendant faces a pending criminal charge on retrial.” Id.
(emphasis added). The court found, however, that Heck did not bar Clay’s § 1983 suit because in
reversing his conviction, the Mississippi Supreme Court had clearly ruled in Clay’s favor on his
claim that the trial court erred in setting an excessive bail and so, there could be no future conflict
between Clay’s § 1983 suit and any potential future conviction. Clay, 242 F.3d at 682 (“[E]ven if
the district court ruled in the § 1983 suit that [defendants] had violated Clay’s constitutional right—
by tampering with trial records, handpicking the jury in the first trial, setting an excessive bail,
etc.—it would not undermine any potential conviction in the retrial, because that conviction would
not likely be based upon the alleged misconduct of [defendants]”). Like Davis, Clay is similarly
inapposite to the case at hand because Cook alleges that he was convicted as a result of Defendants’
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conduct in manufacturing evidence, withholding exculpatory evidence, and coercing witnesses to
bear false testimony, all of which would have undermined any potential conviction in Cook’s
subsequent retrials.
Davis and Clay have little applicability here given the facts of this case. Cook’s first
conviction was reversed and remanded because the State’s psychiatrist had interviewed and
examined Cook, without first advising him of his constitutional rights and giving him an
opportunity to consult with his attorney, and then later testified at trial about conclusions gained
from that interview during the penalty phase of trial. See Cook v. State, 821 S.W.2d 600 (Tex.
Crim. App. 1991). In reversing the first conviction, the Texas Criminal Court of Appeals never
considered Cook’s claims of fabrication of evidence, withholding of evidence, malicious
prosecution, coercion of witnesses or conspiracy.
Moreover, while the Criminal Court of Appeals reversed and remanded Cook’s third trial
(his second conviction), observing that it was tainted from the outset by prosecutorial and police
misconduct, it only barred the State from using Robert Hoehn’s prior trial testimony in a
subsequent retrial because Hoehn’s testimony was tainted by the State’s prior misconduct and
could not be corrected by cross-examination or other means. Cook v. State, 940 S.W.2d 623 (Tex.
Crim. App. 1996). There is no evidence in the record that the State agreed not to use any of the
other alleged tainted evidence underlying Cook’s § 1983 claims in a fourth retrial. And in fact,
the parties do not dispute that when Judge Jones entered Cook’s plea agreement prior to the start
of his fourth trial, he took judicial notice of the entire 1994 trial record, except for Robert Hoehn’s
testimony. See supra, undisputed fact no. 12.
Defendants also rely on Prince v. Curry, 423 Fed. App’x. 447 (5th Cir. 2011), in which the
Fifth Circuit upheld the defendants’ motion to dismiss Prince’s § 1983 claims, noting that Prince’s
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lawsuit “clear[ed] the hurdle of Heck v. Humphrey . . . because his four-year sentence was declared
invalid by the Texas Court of Criminal Appeals.” Prince, 423 Fed. App’x. at 450 n.3. The opinion,
however, provides no information about when Prince’s § 1983 claims began to accrue or whether
the suit could proceed because it did not implicate the validity of the conviction.
Cook relies on Brandley v. Keeshan, 64 F.3d 196 (5th Cir. 1995), abrogated on other
grounds by Wallace v. Kato, 549 U.S. 384 (2007), to argue that a favorable termination has not yet
occurred in his case, and will not occur, until his 1999 felony conviction is reversed and any
subsequent indictment against him is dismissed. Docket No. 69 at 10–11, 17. In Brandley, the
Fifth Circuit applied Heck to a situation where a plaintiff’s conviction in a second trial (after his
first trial resulted in a hung jury) was reversed and remanded for a new trial on a finding that the
prosecution had suppressed evidence and improperly investigated the case. 64 F.3d at 198. Before
he had been retried, Brandley filed a § 1983 suit in district court. The Fifth Circuit held pursuant
to Heck that “[t]he underlying criminal proceeding must terminate in the plaintiff’s favor before a
malicious prosecution claim accrues.” Id. at 199. It then further elaborated that the burden of
establishing termination typically is met by “proving that the state court with jurisdiction has so
ruled,” or by “an order of dismissal based on the running of the statute of limitations on the crime
or an order of dismissal reflecting an affirmative decision not to pursue.” Id. “Even a prosecutor’s
failure to act on remand will at some point entitle a defendant to an order of dismissal. However,
the reversal of a conviction and remand for a new trial is not, in and of itself, a termination.” Id.
The State of Texas and Cook have jointly requested the Court of Criminal Appeals to
reverse Cook’s 1999 felony conviction. The Court of Criminal Appeals has not yet ruled on the
request. Under Brandley, Cook’s § 1983 claims will not begin to accrue until the Court of Criminal
Appeals vacates Cook’s conviction and the State dismisses the charges. See Brown v. City of
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Houston, 297 F. Supp. 3d 748, 762 (S.D. Tex. 2017) (relying on Brandley to find that Brown’s
conviction did not favorably terminate when his conviction was vacated, but rather that it favorably
terminated when the State elected not to re-prosecute him and the trial court dismissed the
charges); Colomb v. Grayson, No. 07-2171, 2011 WL 335673, at *4 (W.D. La. Jan. 31, 2011)
(citing to Brandley to support a finding that Colomb’s criminal prosecution was terminated in her
favor when the charges against her were dismissed); Rodarte v. Beneficial Texas. Inc., No. SA-16CA-71-RP, 2016 WL 1312637, at *19 (W.D. Tex. Apr. 4, 2016) (citing to Brandley for favorable
termination); Hoog-Watson v. Guadalupe Cty., Tex., 591 F.3d 431, 434–35 (5th Cir. 2009)
(same);8 see also Jordan v. Blount Cty., 885 F.3d 413, 414–15 (6th Cir. 2018) (finding that
plaintiff’s criminal proceeding continued even after his conviction was vacated and that it only
favorably terminated upon his acquittal); Owens v. Baltimore City State’s Attorneys Office, 767
F.3d 379, 390 (4th Cir. 2014) (finding that plaintiff’s claims were favorably terminated only when
a nolle prosequi was entered, and not merely when the state vacated the conviction and granted a
new trial).
Consistent with Heck and Fifth Circuit law, Cook’s conviction has not been favorably
terminated yet and his § 1983 claims will not begin to accrue until the Court of Criminal Appeals
vacates the conviction and the State dismisses the indictment. Defendants’ motions for summary
judgment (Docket Nos. 60 and 63) on the basis of the statute of limitations are DENIED.
8
Defendants contend that Brandley has no precedential value after Wallace. Docket No. 71 at 5–6. The Fifth Circuit
has stated that “[t]o the extent Wallace conflicts with our decision Brandley” as to when a false arrest action accrues,
“Wallace abrogates Brandley.” Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008). But Wallace did not abrogate
Brandley on the issue of favorable termination, and the Fifth Circuit and district courts have continued to rely on
Brandley in determining what actions constitute favorable termination, even after Wallace.
Page 17 of 24
II.
The 1999 Conviction
Defendants offer a number of additional arguments for why Cook’s claims relating to his
1999 conviction are without merit. Docket No. 60 at 17–25. None of these arguments passes
muster for granting summary judgment as a matter of law.
Defendants argue that Cook is estopped from challenging his 1999 conviction because he
entered a nolo contendre plea and accepted the benefits of the plea agreement “by remaining free
for the last eighteen years.” Docket No. 60 at 19. Defendants rely on Rhodes v. State, 240 S. W.3d
882, 891 (Tex. Crim. App. 2017), in which the plaintiff who had accepted a more lenient
punishment as a result of a technical mistake in the prior judgment was estopped from later
challenging the validity of that same judgment. But the Court of Criminal Appeals clarified in a
subsequent case that Rhodes cannot be used to estop a defendant from collaterally attacking a
conviction that resulted from a plea agreement. Ex Parte Shay, 507 S.W.3d 731, 734 (Tex. Crim.
App. 2016). Regardless, Cook’s plea agreement resulted in a conviction, and Defendants do not
cite to any authority that would suggest that a conviction resulting from a nolo contendre plea
agreement is treated differently from a conviction obtained through other means for the purpose
of bringing a § 1983 case. See Docket Nos. 60 at 17–19; 71 at 8.
Defendants also contend that Cook cannot establish that any act or omission of Defendants
proximately caused his 1999 conviction because Judge Jones’s acceptance of Cook’s plea
agreement constituted a supervening act or an “independent intermediary,” relieving the
Defendants of any liability for the 1999 conviction.
Docket No. 60 at 20. The independent
intermediary doctrine shields an officer from being liable for an unlawful arrest “if the facts
supporting a warrant or indictment are put before an intermediary such as a magistrate or a grand
jury.” Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988). However, Defendants’ argument goes
Page 18 of 24
well beyond the scope intended by the independent intermediary doctrine. See Murray v. Earle,
405 F.3d 278 (5th Cir. 2005) (emphasizing “our analysis does not apply to Fourteenth Amendment
claims that attack the lawfulness of the interrogation itself.”). Defendants do not cite to any
authority that would suggest this doctrine may be extended to a § 1983 suit that is based on
substantive due process violations and claims of malicious prosecution. Likewise, Defendants
have not shown, as a matter of law, that the 1999 conviction broke a causal link for damages. Nor
have Defendants met their summary judgment burden to demonstrate that Cook’s plea agreement
relieves Defendants who were not personally involved in the plea agreement from any liability, or
that the stipulation of evidence entered in connection with the plea agreement was an independent
basis for conviction. Docket No. 60 at 21–22. Defendants’ arguments that Cook’s plea agreement
precludes Cook from asserting his § 1983 claims are conclusory and wholly unsupported by law.
Defendants further claim that Cook may only challenge the 1999 conviction for
Defendants’ pre-1994 investigations, acts or omissions because the evidence used to convict Cook
in 1999 was only from two sources: (1) a stipulation of evidence signed by Cook, and (2) the 1994
trial record. Docket No. 60 at 22. Defendants do not cite to a single case to support this
proposition, and have not met their burden to establish, as a matter of law, that Cook is limited to
challenging his 1999 conviction based only on pre-1994 acts.
Defendants’ motions for summary judgment (Docket Nos. 60 and 63) on these grounds are
DENIED.
III.
Absolute Immunity
Defendants next claim that absolute immunity bars all of Cook’s claims relating to the
testimony of witnesses and the alleged acts or omissions of Defendants relating to such testimony.
Docket No. 60 at 25–26. Defendants argue that under Rehberg v. Paulk, 566 U.S. 356, 370 (2012),
Page 19 of 24
any “preparatory activity, such as a preliminary discussion in which the witness relates the
substance of his intended testimony,” grants that witness absolute immunity from any § 1983 claim
based on their testimony. Docket No. 60 at 25. Smith County Defendants claim that Robert
Wickham, in particular, is protected by absolute immunity because his only involvement in this
matter was his 1992 and 1994 trial testimony. Docket No. 63 at 2–4.
Wickham was a reserve deputy with the Smith County Sheriff’s Office from 1976 to 1983.
Docket No. 63-1, Robert Wickham Aff. (prepared December 14, 2017). According to Wickham,
during the jury selection for Cook’s first trial in 1978, he received a phone call from Sheriff J.B.
Smith requesting that he come to the courthouse to assist in escorting Cook to the courtroom. Id.
Wickham rode alone in the elevator with Cook from the basement of the courthouse up to the
courtroom for jury selection. Id. Wickham attests that during the elevator ride, Cook asked
Wickham if he thought Cook had “killed that girl,” to which Wickham replied he did not know
and that it was for the jury to decide. Id. Wickham attests that, in response, Cook “stated that he
had killed her and that he did not give a shit what they did to him.” Id. Wickham attests that he
had no subsequent conversations with Cook. Id. Wickham argues that because his only role in
this case was his trial testimony on Cook’s confession in the elevator, he is entitled to absolute
immunity, regardless of any claim by Cook that this testimony was negligent, reckless or
untruthful. Docket No. 63 at 3–4.
It is well-established that “a trial witness has absolute immunity with respect to any claim
based on the witness’ testimony.” Rehberg, 566 U.S. at 367 (citing Briscoe v. LaHue, 460 U.S.
325, 323–33 (1983)).
“Witnesses, including police officers, are also shielded by absolute
immunity from liability for their allegedly perjurious testimony.” Enlow v. Tishomingo Cty., Miss.,
962 F.2d 501, 511 (5th Cir. 1992) (citing Briscoe).
Page 20 of 24
The parties do not appear to dispute that Wickham is entitled to absolute immunity for the
testimony he gave at trial. Docket No. 69 at 25; see also Am. Compl. ¶ 75. Cook argues, however,
that he has “alleged misconduct beyond Wickham’s trial testimony. Namely, that in 1991 prior to
trial, Wickham fabricated the claim that Plaintiff confessed to him back in 1978 and reduced this
fabricated evidence to an affidavit.” Id.; see Docket No. 69-4 at 2–3, Robert Wickham Aff.
(prepared September 26, 1991).
Plaintiff argues that Wickham’s fabrication is similar to
“investigation-type” misconduct, like falsifying a police report, which the Fifth Circuit has found
is not protected by testimonial immunity. Docket No. 69 at 31 (citing Castellano v. Faragozo, 352
F.3d 939, 958 & n.107 (5th Cir. 2003)).
While courts have indeed held that non-testimonial pretrial actions, such as the fabrication
of evidence, are not within the scope of absolute immunity because they are not part of the trial,
Castellano v. Faragozo, 352 F.3d at 958, Wickham’s affidavit was created in 1991 ahead of, and
in preparation of, Cook’s 1992 retrial. Based on Cook’s allegations and the evidence in the record,
Wickham’s trial testimony was cabined to the contents of the affidavit. The mere fact that
Wickham reduced his oral testimony into an affidavit does not defeat the absolute immunity
afforded to witnesses who testify at trial, even if that testimony is alleged to be perjurious. See
Enlow, 962 F.2d at 511; see also Coggins v. Buonora, 776 F.3d 108 (2d Cir. 2015) (dismissing all
claims that were dependent on the officer’s alleged perjurious grand jury testimony on the basis of
absolute immunity but allowing claims unrelated to the officer’s grand jury testimony to go
forward.).
For summary judgment purposes, the Fifth Circuit has consistently held that the defendant
who pleads the affirmative defense of absolute immunity bears the burden of proving that the
conduct at issue is protected. Cole v. Carson, 802 F.3d 752, 777 (5th Cir. 2015), vacated sub nom.
Page 21 of 24
on other grounds, Hunter v. Cole, 137 S.Ct. 497 (2016) (citing Hoog-Watson v. Guadalupe Cty.,
Tex., 591 F.3d 431, 437 n.6 (5th Cir. 2009) (finding that the district court correctly placed the
burden of proving absolute immunity at summary judgment with the prosecutor to show she was
performing a prosecutorial function)); see also Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982)
(“Butz also identifies the location of the burden of proof. The burden of justifying absolute
immunity rests on the official asserting the claim.”).
Defendant Wickham is entitled to absolute immunity with respect to his trial testimony in
Cook’s 1992 and 1994 retrials and has established that this immunity extends to the affidavit he
prepared in 1991 wherein he related the substance of his intended testimony. Accordingly, Smith
County Defendants’ motion for summary judgment (Docket No. 63) is GRANTED-IN-PART
with respect to Defendant Robert Wickham.
To the extent the remaining Defendants seek absolute immunity, Plaintiff agrees “[t]here
is no dispute that Defendants would be absolutely immune for their trial testimony, preparation for
that testimony, and any conspiracy to falsely testify.” Docket No. 69 at 29. However, Defendants
have not met their summary judgment burden of proving that the misconduct Cook alleges falls
into those protected categories. Accordingly, the motions for summary judgment for absolute
immunity with respect to all other remaining Defendants (Docket Nos. 60 and 63) are DENIED.
IV.
Destruction of Evidence
Defendants also argue that Cook’s claims that Defendants “destroyed evidence that
Plaintiff could have used to further prove his innocence” are barred by the two-year statute of
limitations. Docket No. 60 at 26. Specifically, Defendants argue that any claims relating to the
loss or destruction of DNA evidence in 2001 are barred because Cook knew of these claims by
2012. Id.
Page 22 of 24
Whether Cook knew in 2012 that crime scene evidence was lost or destroyed in 2001 is
immaterial to whether Cook may now bring a § 1983 destruction of evidence claim. For the
reasons discussed above, see supra Section I, Cook’s allegations that Defendants withheld
exculpatory DNA evidence or fabricated or destroyed any evidence would necessarily imply and
attack the validity of his underlying conviction, and thus, Cook would have been barred from
bringing a § 1983 suit on the matter before his conviction is favorably terminated.
Accordingly, Defendants’ motions (Docket No. 60 and 63) on this ground are DENIED.
V.
Immunity with Respect to State Law claims
Lastly, Defendants argue that governmental immunity bars all state-law tort claims against
Defendants. Docket No. 60 at 27. Cook acknowledges that “Defendants are entitled to assert
absolute immunity to state claims.” Docket No. 69 at 35. Accordingly, Defendants’ motions for
summary judgment (Docket Nos. 60 and 63) are GRANTED on the basis of governmental
immunity from state-law tort claims.
CONCLUSION
In accordance with the above, the Court GRANTS-IN-PART Defendants’ motions for
summary judgment (Docket Nos. 60 and 63) on the basis of governmental immunity from statelaw tort claims as to all Defendants and on the basis of absolute immunity as to Defendant Robert
Wickham.
Defendants’ motions are DENIED-IN-PART on all other grounds. Cook’s claims are not
barred by the statute of limitations; they have not begun to accrue. Furthermore, Defendants have
not shown that Cook’s claims relating to his 1999 conviction or his claims relating to destruction
of evidence are barred as a matter-of-law. Moreover, with the exception of Defendant Robert
Page 23 of 24
Wickham, the remaining Defendants have not shown that their alleged misconduct falls into any
of the protected categories for absolute immunity.
. Plaintiff acknowledges that all of his federal claims are premature pending dismissal of the
indictment. Docket No. 69 at 6, 22. In light of the Court’s rulings contained herein, the parties
are ORDERED to meet and confer and file a joint status report within twenty (20) days from the
date of this order as to how the parties believe the case should proceed.
The parties’ pending motions regarding proposed docket control orders (Docket Nos. 48
and 49) are DENIED-AS-MOOT, and the Court will instruct the parties to re-submit a proposed
docket control order at a later time.
So ORDERED and SIGNED this 18th day of September, 2018.
____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE
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