United States District Court, E.D. Missouri, Eastern Division
JOHN C. MIDDLETON, Plaintiff,
TROY STEELE, et al., Defendants,
MEMORANDUM AND ORDER
CAROL E. JACKSON, District Judge.
Plaintiff John C. Middleton is scheduled to be executed by the state at 12:01 a.m. on July 16, 2014. He filed this action under 42 U.S.C. § 1983 on July 7, 2014, alleging that defendants violated his First Amendment, Eighth Amendment, and Due Process rights under the Constitution by interfering with counsel's investigation of his potential competency-forexecution ("CFE") claim by ordering current and former employees of the Missouri Department of Corrections ("MoDOC") not to cooperate with the investigation. Plaintiff has moved for a stay of his execution date so that he can get testimony from current and former correctional officers and medical workers regarding his behavior at Potosi Correctional Center ("PCC").
Defendants have moved to dismiss the case for failure to state a claim upon which relief can be granted and plaintiff filed a response today. Additionally, plaintiff filed an amended complaint. The Court will consider the motion to dismiss as directed to the amended complaint. Plaintiff also filed today a "second-in-time" supplemental habeas corpus petition under 28 U.S.C. § 2254 in which he raises for the first time the claim that he is not competent for execution. See Middleton v. Roper , Case No. 4:03-CV-543 (CDP) (E.D. Mo.) [ECF No. 130].
On July 11, 2014, the Court held a hearing on the motion to stay. After hearing the arguments of counsel and reviewing the pleadings and documents filed in the case, the Court finds that the amended complaint does not state a plausible claim for relief under § 1983. The motion to stay is denied, and the case is dismissed.
Plaintiff was convicted of first degree murder and sentenced to death by a jury in 1997. See Missouri v. Middleton , 995 S.W.2d 443, 452 (Mo. banc 1999). His sentence became final in 1999. Id . He filed his federal petition for writ of habeas corpus in April 2004. Middleton v. Roper , 4:03CV543 CDP (E.D. Mo.). The Court denied the petition in September 2005, id., and the Court of Appeals for the Eighth Circuit affirmed in August 2007, Middleton v. Roper , 498 F.3d 812 (8th Cir. 2007). In June 2009 the Court authorized counsel to pursue clemency proceedings on plaintiff's behalf.
On January 29, 2014, the Missouri Supreme Court ordered plaintiff to show cause why an execution date should not be set. Missouri v. Middleton, No. SC80043 (Mo. banc.). On May 30, 2014, the court set plaintiff's execution for July 16, 2014. Id . On June 2, 2014, plaintiff requested that the Court appoint William S. Logan, M.D., a forensic psychiatrist, "to evaluate him for mental illness and competency to be executed." Roper, 4:03CV543, ECF No. 107. On June 3, 2013, the Court recommended that the request for Dr. Logan's services be approved. Id . ECF No. 110. And Chief Judge William Jay Riley approved the request on June 13, 2014. Id . ECF No. 114.
In the amended complaint, plaintiff alleges:
Defendants have made clear to their staff and other individuals that they are not to speak with Mr. Middleton's counsel or the counsel of any inmate or any person on their behalf with regard to any matters involving a pending execution.... This is not a new practice. Rather, this is part of a pattern of behavior that has occurred over a period of years, and has not ceased, despite court orders that would counsel otherwise. The culture and environment of the DOC is so ingrained that even retired staff are unwilling to give any evidence to anyone associated with one of the Department's prisoners regarding claims they are seeking to raise.
Plaintiff relies on a case formerly before this Court, Winfield v. Steele, 4:14CV1022 CDP (E.D. Mo.), for the proposition that defendants have chilled the speech of their current and former employees by threatening their jobs if they cooperate with counsel for death-sentenced prisoners.
Plaintiff asserts that counsel sent a letter to defendant Troy Steele on June 11, 2014, requesting to speak with any correctional officers who have had contact with him. Plaintiff neglects to say that in the letter counsel represented that they were looking for witnesses relevant to his clemency petition. Pl.'s Ex. K. The letter did not inform Steele that plaintiff was pursuing a CFE claim. Id . The letter listed several current and former MoDOC employees to whom counsel wished to speak. Id . Steele replied that he provided the information to the listed staff members still employed by MoDOC. Pl.'s Ex. L. And he informed counsel which of the listed staff members no longer worked for MoDOC. Id . Steele informed counsel that plaintiff was in a better position than him to advise counsel which staff members he has had contact with since moving to pre-execution status, and he stated that if plaintiff provided additional names, then he would advise those staff members that counsel wished to speak with them. Id.
Plaintiff alleges that his counsel and mitigation expert attempted to talk with several former MoDOC employees, all of whom refused to speak with plaintiff's representatives. Plaintiff's mitigation expert, Jessica Sutton, has submitted an affidavit detailing her encounters with the witnesses. Pl.'s Ex. M.
Sutton first sought to interview Freddy Johnson, a former employee of MoDOC. When Sutton told Johnson she wanted to talk about plaintiff, he told her to get off his property. Id . at 5-6. Sutton then visited Timothy Hahn, another former employee of MoDOC, who also told her to get off of his property. Id . at 6. Sutton also went to the home of Linda Penberthy, another former employee, who told Sutton that she would not talk to her. Id . Sutton then visited Pamela Gilmore, also a former employee, at her home. Id . at 7. Gilmore told Sutton she did not remember plaintiff, but she gave Sutton the names of other MoDOC employees who might remember something about plaintiff. Id . Those witnesses also refused to speak with Sutton. Id . at 7-8. Sutton visited Melody Haney, a former employee, who told Sutton she did not remember anything about plaintiff. Id . at 8. Finally, Sutton went to the home of Dr. R. Nakra, who had previously been plaintiff's psychiatrist. Id . Sutton told Dr. Nakra that she "wanted to find out who Mr. Middleton is as a person." Id . at 9. Sutton did not assert that she asked Dr. Nakra questions relevant to a CFE claim. Dr. Nakra told Sutton to contact the prison to review plaintiff's medical records. Id.
None of the employees reported any threats by state actors. Nor did they say they had been told by defendants not to speak to plaintiff's counsel or investigators. During the hearing, plaintiff's counsel stated that she did not know why the retired MoDOC employees refused to talk to her team. She also acknowledged that all of the current and former employees had the right to ...