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Ferguson v. Short

United States District Court, W.D. Missouri, Central Division

August 12, 2014

RYAN FERGUSON, Plaintiff,
v.
JOHN SHORT, et al., Defendants.

ORDER

NANETTE K. LAUGHREY, District Judge.

In this civil lawsuit, Plaintiff Ryan Ferguson alleges violations of federal and state laws arising out the Defendants' investigation of Ferguson and his prosecution for the murder of Kent Heitholt. Defendants Short, Nichols, Westbrook, Liebhart, Stroer, and Simons were detectives at the Columbia, Missouri Police Department during the investigation and prosecution of Ferguson. Defendant Boehm was the Chief of Police at the time and Defendant Monticelli was a sergeant in the Department. Defendants Haws and White were investigators with the Boone County Prosecuting Attorney's Office. Defendant Crane was the Boone Country Prosecuting Attorney who prosecuted Ferguson. The City of Columbia and Boone County are also Defendants.

In his First Amended Complaint, [Doc. 35], Ferguson claims that certain Defendants violated his federal rights under 42 U.S.C. § 1983 by destroying and suppressing evidence (Count I), fabricating evidence (Count II), recklessly or intentionally failing to investigate (Count III), maliciously prosecuting him (Count IV), and conspiring with each other (Count V). He alleges the City of Columbia and County of Boone are liable for these acts because they had a custom or policy to permit such conduct. (Count VI). He also alleges Missouri state law violations for false arrest (Count VII) and defamation (Count VIII).

Pending before the Court are Motions to Dismiss filed by White, Boone County, the City of Columbia, Boehm, Monticelli and Crane. White's Motion to Dismiss is granted as it relates to Count IV and denied as to Counts III and V. The Motions to Dismiss filed by the City of Columbia and Boone County are denied. The Motions to Dismiss filed by Crane, Monticelli and Boehm are granted as they relate to Count IV, VI and VIII.

I. Background

The purpose of this Order is to determine whether certain allegations made by Ferguson in his First Amended Complaint are sufficient to state a claim recognized by law. At this stage of the litigation, the Court makes no findings of fact but instead relies solely on the following allegations made by Ferguson in his First Amended Complaint.

On November 1, 2001, Kent Heitholt was murdered next to his car. Despite an investigation by the Columbia Police Department and the Boone County Prosecuting Attorney's Office, no arrests were made for more than two years. In November 2003, Charles Erickson, a man in the same graduating class as Ferguson and who was with Ferguson the night of Heitholt's murder, read an article about the Heitholt murder. Erickson began to experience feelings of paranoia after a composite sketch provided by a witness at the crime scene resembled him.

The night of the murder, Erickson and Ferguson had been at a bar located in downtown Columbia. Erickson and Ferguson left the bar shortly before it closed at 1:30 a.m. Erickson ingested drugs and alcohol that night. The next morning, Erickson had no memory of leaving the bar or arriving at his house. In January 2004, Erickson expressed concern to Ferguson that he had repressed the murder. A bystander overheard the conversation and informed the Columbia Police Department.

In March 2004, Erickson came to the Columbia Police Department. His behavior and appearance suggested he was mentally impaired and under the influence of alcohol or drugs. After Erickson repeatedly gave information that was inconsistent with the evidence recovered from the crime scene, Defendants Short and Nichols provided Erickson information and details about the murder and coerced a confession out of him, which also implicated Ferguson. After obtaining Erickson's fabricated confession, Defendants Short, Nichols, Westbrook, Liebhart, Stroer, Simons, Monticelli and Boehm, (Columbia Police Officer Defendants) fabricated or coerced additional witness statements to corroborate Erickson's statements. They also destroyed or suppressed evidence that would impeach statements made by Erickson about the night of the murder and other evidence that would tend to show Ferguson was not guilty of the murder.

In March 2004, Ferguson was arrested for the murder of Heitholt. Ferguson was never presented in a lineup to two possible witnesses. The Columbia Police Officer Defendants did not investigate the last person to see Heitholt alive, who also made numerous inconsistent statements about the night of Heitholt's murder and who had had a recent dispute with Heitholt. The Columbia Police Officer Defendants continued to fabricate evidence and reports and suppress evidence that would tend to show Ferguson was not guilty of Heitholt's murder. They also met and agreed to use fabricated evidence to induce a plea agreement from Erickson. The Columbia Police Officer Defendants and Defendants White and Haws met on multiple occasions to discuss the case. Erickson was never told about evidence that was discovered by the Defendants that would tend to show that he was not guilty. For example Detective Short and Investigators White and Haws interviewed people who were at the same bar as Erickson and Ferguson the night of the murder. The witnesses consistently told Short, White, and Haws that the bar closed at 1:30 a.m. This information undermined statements made by Erickson about the timing of the murder and his statement that after they committed the murder (approximately 2:15 a.m.), they went back to the bar.

In October 2005, Ferguson was tried by a jury and found guilty of second degree murder. After several appeals and eight years in prison, the Missouri Court of Appeals granted Ferguson's petition for writ of habeas corpus and vacated his conviction, citing a pattern of nondisclosures which included evidence that a witness at the crime scene could not identify Ferguson or Erickson after seeing their photographs. After the Missouri Attorney General's Office declined to retry Ferguson, Boehm and Crane made statements to the media about the investigation and prosecution of Ferguson which are alleged to be false statements of fact.

I. Discussion

A. Count III: Reckless or Intentional Failure to Investigate, 42 U.S.C. § 1983

Count III alleges "Defendants Haws, White, and the [Columbia Police Officer Defendants] recklessly and/or intentionally failed to conduct an investigation that would have led to the real murderer of Heitholt and eliminated [Ferguson] and Erickson as suspects". [Doc. 35, ¶ 240]. Defendant White contends that this claim against him should be dismissed because all of the specific allegations in the First Amended Complaint concerning a failure to investigate only discuss misconduct by Columbia Police Department personnel. Thus the narrow question before the Court is whether there is any allegation in Count III that states a viable claim against White for recklessly or intentionally failing to conduct an investigation that would have eliminated Ferguson as a suspect. The Court finds that there is and therefore White's Motion to Dismiss must be denied.

"Intentionally or recklessly failing to investigate other leads or manufacturing false evidence may shock the conscience and can violate the Fourteenth Amendment's due process clause." Livers v. Schenck, 700 F.3d 340, 350 (8th Cir. 2012) (citations omitted). "Negligence and even gross negligence is not enough because the state action must be truly egregious and extraordinary' to shock the conscience and so severe as to amount to brutal and inhumane abuse of official power.' Id. (internal citations omitted). The Eighth Circuit has recognized three areas of "reckless investigation": "(1) coercing a suspect's confession; (2) purposely ignoring evidence suggesting innocence; and (3) systemic pressure to implicate a suspect in the face of evidence to the contrary." Id. (internal quotations omitted).

While Ferguson alleges several acts of failure to investigate against the Defendants in Count III, he only factually describes one incident involving White in his Amended Complaint. During the investigation and prosecution of Ferguson, White was an investigator with the Boone County Prosecuting Attorney's Office. [Doc. 35, ¶ 17]. Prior to Ferguson's trial, and not at the direction of Prosecuting Attorney Kevin Crane, White interviewed a bartender at the bar Ferguson and Erickson went to on the night of the murder. The bartender told White everyone was out of the bar by 1:30 a.m., which is evidence that would impeach Erickson's testimony that he and Erickson were in the bar after 2:15 a.m. Thus, Ferguson's Amended Complaint alleges White purposefully ignored evidence tending to eliminate Ferguson as a suspect and suppressed the bartender's statements from Erickson, defense attorneys, and the prosecution. Id. at ¶ 161, 167-69, 241. The Eighth Circuit has held that an allegation that a defendant has "purposefully ignored evidence that strongly tended to exonerate" the plaintiff could be sufficient to support a claim for reckless investigation. See Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002). As alleged, Ferguson has fairly put White on notice of this Constitutional claim for failure to investigate; no more is required at this stage of the litigation.

White also argues that regardless of whether Ferguson sufficiently pleaded a claim against him, he is entitled to absolute immunity because he was employed by the Boone County Prosecuting Attorney's Office, and during the investigation he was acting within his prosecutorial function. "A prosecutor enjoys absolute immunity for acts performed in initiating a prosecution and in presenting the State's case. Functions intimately associated with the judicial phase of the criminal process as opposed to investigative police work'... are absolutely shielded from liability." Reasonover v. St. Louis Cnty, Mo., 447 F.3d 569, 579 (8th Cir. 2006). This immunity extends to a prosecutor's investigators so long as their actions are in connection with a criminal prosecution. Keating v. Martin, 638 F.2d 1121, 1122 (8th Cir. 1980). However,

[t]here is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is "neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.

Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

White has not established that on the face of Ferguson's Amended Complaint, White's interview of the bartender was done in furtherance of the prosecutorial function as opposed to investigative police work. To the contrary, Ferguson specifically alleges that Crane, Boone County Prosecuting Attorney at the time the investigation was ongoing, did not ask White to interview the bartender. [Doc. 35, ¶ 172]. While Ferguson did allege that the interview occurred "prior to [Ferguson]'s trial, " this is insufficient to suggest that the interview was purely prosecutorial. Instead, further factual information is necessary to determine if White was engaging in police-type investigative work. See Gobel v. Maricopa Cnty, 867 F.2d 1201 (9th Cir. 1989) (plaintiffs adequately alleged that the prosecutors acted in a non-prosecutorial investigatory role, and "[g]iven the limited factual record at this point in the proceedings, it does not appear beyond doubt that the plaintiffs will be unable to prove that the prosecutors were engaging in police-type investigative work"), abrogated on other grounds by Merrit v. Cnty of Los Angeles, 875 F.2d 764 (9th Cir. 1989).

White also argues in a footnote that he cannot be liable for failure to investigate because, as a member of the Boone County Prosecuting Attorney's Office, he had no duty to investigate. However, this argument does not negate the fact that White did conduct an investigation. He cannot engage in misconduct during an investigation and subsequently seek to excuse the misconduct by claiming he had no duty to investigate in the first place. This is especially true in light of the facts alleged against him - that he interviewed a witness who provided potentially exculpatory evidence and did not tell anyone, including the prosecutor, about the information he learned.

White's Motion to Dismiss count III is denied.

B. Count IV: Malicious Prosecution, 42 U.S.C. § 1983

Count IV alleges that several Defendants, including White, Boehm and Monticelli are liable under § 1983 because they "maliciously caused the commencement and/or continuation of a baseless prosecution against [Ferguson] without probable cause" in violation of the Fourth, Sixth, and Fourteenth Amendments. [Doc. 35, ¶ 248]. Defendants White, Boehm, and Monticelli seek dismissal of Count IV. [Docs. 49, 57]. "Section 1983 only provides a remedy for violations of rights expressly secured by federal statutes or the Constitution." Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th ...


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