In the United States District Court for the District of Nebraska
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4:09-cv-03144-RGK-CRZ Doc # 136 Filed: 08/03/11 Page 1 of 178 - Page ID # <pageID> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA ) JAMES L. DEAN, ) 4:09CV3144 Plaintiff, ) v . ) ) RICHARD T. SMITH, et al., ) Defendants. ) ______________________________ ) ) KATHLEEN A. GONZALEZ, ) 4:09CV3146 Plaintiff, ) v . ) ) RICHARD T. SMITH, et al., ) Defendants. ) ______________________________ ) ) THOMAS W. WINSLOW, ) 4:09CV3147 Plaintiff, ) v . ) ) RICHARD T. SMITH, et al., ) Defendants. ) ______________________________ ) ) ADA JOANN TAYLOR, ) 4:09CV3148 Plaintiff, ) v . ) ) RICHARD T. SMITH, et al., ) Defendants. ) ) MEMORANDUM AND ORDER 4:09-cv-03144-RGK-CRZ Doc # 136 Filed: 08/03/11 Page 2 of 178 - Page ID # <pageID> I. Introduction In 1989, the plaintiffs in these four § 1983 actions, James Dean, Kathleen Gonzalez, Thomas Winslow, and Joann Taylor, pleaded guilty or no contest to committing, or else aiding and abetting the commission of, second-degree murder in connection with the 1985 death of Helen Wilson in Beatrice, Nebraska. A fifth criminal co-defendant, Deb Shelden, also entered a plea of guilty to aiding and abetting second-degree murder, but she has only recently filed a § 1983 action in this court (Case No. 4:11CV3099). A sixth criminal co-defendant, Joseph White, was tried and convicted of first-degree murder. White brought suit in another § 1983 action (Case No. 4:09CV3145) which is assigned to the Honorable Warren K. Urbom. Subsequent to filing suit, White died and that action is being prosecuted by the personal representative of White’s estate. In 2009, the plaintiffs and Shelden received full pardons after White, who had been sentenced to life imprisonment, was granted a new trial on the basis of DNA testing and the State thereafter dismissed the case against him. The Nebraska Pardons Board was informed that recent DNA testing of semen, blood, and hair specimens collected from the crime scene in 1985 established that Helen Wilson had been raped and murdered by a single individual, Bruce A. Smith, who had no known connection to any of the six persons who were convicted of the crime. See filing 110-4 (Dean’s Ex. 24).1 Bruce Smith apparently died in 1992. See id. at 8. 1 Except as otherwise indicated, all filings are referenced (and hyperlinked) solely to the docket sheet in Case No. 4:09CV3144, which was designated as the “lead case” when these actions were consolidated for purposes of discovery and pretrial. See Memorandum and Order entered on January 8, 2010 (filing 36) . Identical documents were filed in the other cases (using the “spread text feature” of the court’s CM/ECF system), but the filing numbers may be different. 2 4:09-cv-03144-RGK-CRZ Doc # 136 Filed: 08/03/11 Page 3 of 178 - Page ID # <pageID> The plaintiffs claim that the Gage County Attorney (Richard Smith), the Gage County Sheriff (Jerry DeWitt), and three sheriff’s deputies (Burdette Searcey, Wayne Price, and Gerald Lamkin)2 violated their due process rights by using false evidence and otherwise coercing them to plea bargain despite their innocence.3 The false evidence consists primarily of statements made by the plaintiffs themselves and Shelden. Taylor, Dean, Shelden and Gonzalez testified against White at his jury trial. The Nebraska Supreme Court, in affirming White’s conviction on appeal in 1991, summarized the evidence that was presented at his trial as follows: The record shows that on the night of February 5, 1985, White, James Dean, Thomas Winslow, Ada JoAnn Taylor, and Debra Shelden forcibly entered the victim’s apartment in Beatrice for the purpose of robbing her. A sixth accomplice, Kathy Gonzalez, entered the apartment during the course of the robbery. The record shows that White participated in at least four planning sessions concerning this incident. During those discussions, White proposed sexually assaulting Mrs. Wilson as well as robbing her. Most of the details of the Wilson homicide are set out in State v. Dean, 237 Neb. 65, 464 N.W.2d 782 (1991). Specifically, Mrs. Wilson was forced into her bedroom and was threatened and physically abused when she refused to tell the intruders where she kept her money. She was then forced back to the living room, screaming and kicking, and either tripped or was pushed to the floor. At this point, White and 2 Two other deputies, Kent Harlan and Mark Meints, were originally named as defendants but were later voluntarily dismissed from the action. See Memorandum and Order entered December 23, 2010 (filing 125) . 3 Previously, in ruling on motions to dismiss filed by the defendants in their individual and official capacities, I determined that the statute of limitations barred additional claims that the plaintiffs’ constitutional rights were violated when they were arrested and allegedly coerced to incriminate themselves. Despite the plaintiffs’ continuing arguments regarding these dismissed claims, my previous rulings stand. 3 4:09-cv-03144-RGK-CRZ Doc # 136 Filed: 08/03/11 Page 4 of 178 - Page ID # <pageID> Winslow took turns sexually assaulting Mrs. Wilson. According to Taylor, White had vaginal intercourse with the victim, saying that she “deserved it,” while Winslow held the victim’s legs. Winslow then sodomized the victim while White held her down. Meanwhile, Taylor suffocated Mrs. Wilson with a pillow. Mrs. Wilson did not move after she was raped, and appeared to be either dead or near death. The intruders proceeded to search the apartment for money. Taylor went into the kitchen and made some coffee for White and Winslow. Dean testified that after they left the apartment building, there was a general conversation between Taylor and White “about how nice it was to do it. They would do it again. It was fun. If they had the opportunity, they would do it again.” White, Taylor, Winslow, and Dean then went to a truckstop and had breakfast. When Mrs. Wilson’s body was found the next morning by her brother-in-law, she had a complete fracture through the lower part of the left humerus, fractured ribs, a fractured sternum, a 2-centimeter vaginal tear, and numerous bruises, abrasions, and scratches. Her hands were loosely tied with a towel, and a scarf was tightly wrapped around her head and tied. State v. White, 477 N.W.2d 24, 24-25 (Neb. 1991); filing 54-3 (Defendants’ Ex. 1E) at 53-54. The defendants, in their individual capacities, have moved for summary judgment on the basis of qualified immunity. Richard Smith also claims absolute immunity. For the reasons discussed below, the defendants’ motions will be granted. Because I determine as a matter of law that the plaintiffs’ constitutional rights were not violated, I will also dismiss their claims against the defendants in their official capacities and their claims against Gage County. Caused largely by the need to address the facts in minute detail, this opinion is long. Therefore, a summary of my 4 4:09-cv-03144-RGK-CRZ Doc # 136 Filed: 08/03/11 Page 5 of 178 - Page ID # <pageID> ultimate conclusions will be provided now to orient the reader to the detailed discussion that follows. That is: 1. As a matter of due process, it was clearly established in 1989 that police officers and prosecutors could not coerce criminal defendants to plead guilty (or no contest) by illegitimately threatening the accused or fabricating evidence. Viewing the evidence in the light most favorable to the plaintiffs, there is no evidence that the defendants illegitimately threatened the plaintiffs or fabricated evidence. On the contrary, each of the plaintiffs, with the assistance of competent counsel, were fully aware of the strength and weaknesses of the prosecution’s case and voluntarily elected to enter pleas. Those pleas were accepted by a judge who complied with all the required constitutional formalities. Therefore, all the defendants are entitled to qualified immunity on the coerced-plea claims. 2. It was not clearly established in 1989 that police officers were required to conduct criminal investigations in any particular fashion in order to avoid liability under a substantive due process theory. The only substantive due process limitation that existed in 1989 was that criminal investigations must not be conducted in a manner that “shocks the conscience.” Viewed in the light most favorable to the plaintiffs, the behavior of the defendants does not shock the conscience. Therefore, all of the defendants have qualified immunity on the substantive due process claims. 3. The prosecutor has absolute immunity. 4. All of the other claims are either barred by the statute of limitations or have no merit. 5 4:09-cv-03144-RGK-CRZ Doc # 136 Filed: 08/03/11 Page 6 of 178 - Page ID # <pageID> A. Defendants’ Statement of Material Facts Our local rules provide that a party moving for summary judgment “must include in the brief in support of the summary judgment motion a separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law.” NECivR 56.1(a)(1). “The statement of facts should consist of short numbered paragraphs, each containing pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials that support the material facts stated in the paragraph. The statement must not contain legal conclusions.” NECivR 56.1(a)(2) (emphasis in original). The defendants have generally complied with Rule 56.1(a) by including in their supporting brief a lengthy statement of material facts, including references to filed exhibits.4 Our local rules also provide that “[t]he party opposing a summary judgment motion should include in its brief a concise response to the moving party’s statement of material facts.