Gregory v. City of Louisville

• Decision Date: 11 April 2006
• Docket Number: No. 04-6482.,No. 04-5856.,No. 04-5859.,04-5856.,04-5859.,04-6482.
• Citation: 444 F.3d 725
• Parties: William Thomas GREGORY, Plaintiff-Appellee/Cross-Appellant (04-6482), v. CITY OF LOUISVILLE; Louisville Division of Police; Hope Greer; Darrell Ammon; Wayne Kessinger; Jay Pierce; Eugene Sherrard; Luanne Thomas, Defendants-Cross-Appellees (04-6482), Dawn Ross Katz, Defendant-Appellant (04-5856)/Cross-Appellee, Joe Carroll; Steve Clark; John Tarter, Defendants-Appellants (04-5859)/Cross-Appellees, John Vance, et al., Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

444 F.3d 725

William Thomas GREGORY, Plaintiff-Appellee/Cross-Appellant (04-6482), v. CITY OF LOUISVILLE; Louisville Division of Police; Hope Greer; Darrell Ammon; Wayne Kessinger; Jay Pierce; Eugene Sherrard; Luanne Thomas, Defendants-Cross-Appellees (04-6482) Dawn Ross Katz, Defendant-Appellant (04-5856)/Cross-Appellee Joe Carroll; Steve Clark; John Tarter, Defendants-Appellants (04-5859)/Cross-Appellees John Vance, et al., Defendants.

No. 04-5856.

No. 04-5859.

No. 04-6482.

United States Court of Appeals, Sixth Circuit.

Argued: October 26, 2005.

Decided and Filed: April 11, 2006.

Rehearing Denied May 4, 2006.^*

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ARGUED: Roger G. Wright, Kentucky State Police Legal Office, Justice & Public Safety Cabinet, Frankfort, Kentucky, for Appellants. Lisa A. Schweickart, Jefferson County Attorney's Office, Louisville, Kentucky, Barry C. Scheck, Deborah L. Cornwall, Cochran, Neufeld & Scheck, New York, New York, James M. Herrick, Office of the Attorney General, Frankfort, Kentucky, for Appellees. ON BRIEF: Roger G. Wright, Kentucky State Police Legal Office, Justice & Public Safety Cabinet, Frankfort, Kentucky, Daniel Luke Morgan, Commonwealth of Kentucky, Justice and Public Safety Cabinet, Frankfort, Kentucky, for Appellants. Lisa A. Schweickart, Paul V. Guagliardo, Jefferson County Attorney's Office, Louisville, Kentucky, Barry C. Scheck, Deborah L. Cornwall, Nick J. Brustin, Cochran, Neufeld & Scheck, New York, New York, James M. Herrick, Office of the Attorney General, Frankfort, Kentucky, Larry D. Simon, Simon & Simon, Louisville, Kentucky, for Appellees.

Before: SILER and CLAY, Circuit Judges; MILLS, District Judge.^**

CLAY, J., delivered the opinion of the court, in which MILLS, D. J., joined. SILER, J. (pp. 761-763), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge.

Plaintiff, William Thomas Gregory, and Defendants cross appeal March 29, 2004 and June 22, 2004 orders entered by the United States District Court for the Western District of Kentucky which ruled on the parties' cross-motions for summary judgment in this action by Plaintiff for violations of his civil rights under 42 U.S.C. § 1983 and various state laws. The orders below dismissed Plaintiff's claims entirely against the municipal and supervisory Defendants, denied other Defendants absolute or qualified immunity, and dismissed certain claims as unsupported by the record.

For the reasons set forth below, this Court AFFIRMS in part and REVERSES in part the orders of the district court.

I BACKGROUND

The series of events underlying this action surround Plaintiff's arrest and 1993 conviction on charges of rape, attempted rape, and burglary. Plaintiff's conviction was vacated in 2000 after DNA tests established that the sole physical evidence linking Plaintiff to either of the crime scenes — several hairs — could not have come from Plaintiff. All charges against Plaintiff were dismissed on August 25, 2000, after Plaintiff had spent more than seven years in custody.

A. SUBSTANTIVE FACTS

1. The Assaults on Mrs. v. and Ms. S

Plaintiff's conviction stems from assaults on two women who lived in the same apartment complex as Plaintiff. The first of these two assaults occurred on June 1, 1992, when "Mrs. V," a white woman, was awakened by an unknown, nude, black male standing over her bed. This intruder, who wore a pair of the victim's pantyhose as a mask, struggled with the victim, choked her, fondled her breasts, and attempted to rape her. Mrs. V reports that she fought off her attacker, managed to pull off the pantyhose, and scratched the attacker's face before he fled her apartment. Mrs. V. described her assailant as a black male, 30-40 years old, 5 feet 6 inches tall, with a stocky build and long, straight, oily or greasy hair. Mrs. V also informed the police that her attacker had a very small, circumcised penis and had attempted to use a lubricant, which the police later determined was Vaseline. The police later discovered that the attacker had disabled three telephones and stolen a television and a compact disc player from the apartment.

Mrs. V's neighbors and mother, all white, saw her immediately after the attack. When Mrs. V gave the police a description of her attacker, the neighbors and her mother informed the police that they thought the description matched that of Plaintiff.

Later in the day on June 1, 1992, Mrs. V saw Plaintiff in the apartment complex, and police were called to the area. Several officers of the Louisville Division of Police ("LDP") went to Plaintiff's apartment, told Plaintiff that they were investigating an incident unrelated to Mrs. V's assault, and were allowed to search Plaintiff's apartment. Police found no evidence linking Plaintiff to the assault, either in the apartment or on Plaintiff's person (such as marks or injuries).

Two days later, Clark and Carroll, LDP officers, showed Mrs. V a photopak that included Plaintiff's picture. Mrs. V initially made no identification, but when asked to pick a photo which resembled her attacker, Mrs. V chose a photo other than Plaintiff's. When Mrs. V's mother looked through the photopak she identified Plaintiff as living in the same apartment complex.

Later on the same day that Mrs. V had reviewed the photopak, Mrs. V's mother called police to tell them that Mrs. V had seen Plaintiff at the apartment complex and was now sure that he was her assailant. With the assistance of Clark and Carroll, Mrs. V swore out a criminal complaint, pursuant to which Clark and Carroll obtained a warrant for Plaintiff's arrest.

At a preliminary hearing on June 15, 2002, Clark testified on direct examination that Mrs. V had twice identified Plaintiff. Clark was presumably referring to Mrs. V's two sightings of Plaintiff at the apartment complex, once prior to Mrs. V's failure to pick Plaintiff out of a photopak, and once after the photopak procedure. On cross-examination Clark revealed that Mrs. V had failed to pick Plaintiff out of a photopak, but did not reveal that Mrs. V actually picked another photo. When asked if the police had any evidence against Plaintiff other that Mrs. V's identification, Clark responded "Not at this time." (J.A. at 1301.) When asked if Mrs. V had given a physical description of her assailant, Clark responded: "That's correct and it fits [Plaintiff]." (J.A. at 1301.) When Plaintiff moved to dismiss for lack of probable cause, the judge denied the motion, but noted that "because of the extremely minimal burden on the Commonwealth I'm gonna have to find probable cause but I'll state for the record it's just barely." (J.A. at 1302.) Plaintiff was released on bail.

According to the testimony of Clark and Carroll at Plaintiff's criminal trial, following Plaintiff's arrest, Plaintiff made a telephone call to a friend and told the friend about the items stolen from Mrs. V's apartment. Plaintiff claims that, prior to the telephone call, Carroll and Clark told him what had been stolen from the apartment; Carroll and Clark, however, deny that they ever told Plaintiff what had been stolen. Carroll and Clark recorded the overheard telephone conversation in their contemporaneous investigative notes.

In July 1992, Dawn Katz, in her role as Examiner with the Kentucky State Police Crime Laboratory, examined hairs found in the pantyhose Mrs. V's attacker had been wearing as a mask. Katz compared these hairs to samples taken from Plaintiff. In her laboratory notes, Katz records the hairs found in the pantyhose as "# NH & 1 CH." (J.A. at 557.) The notes appear as if the number preceding the "NH" (for negroid hairs) had been scratched out ("CH" stands for caucasoid hair). Katz's notes further record that "5 HHs" (head hairs) were similar to Plaintiff's hair, and later reports that Plaintiff's head hair standard was similar in color and microscopic characteristics with the Negroid hairs recovered from the pantyhose. No mention is made anywhere in Katz's notes of additional negroid hairs found on the pantyhose. Katz's deposition for this instant action revealed that Katz had actually found 7 negroid head hairs on the pantyhose, only 5 of which she found similar to Plaintiff's hair. Katz testified in the deposition that before she sent the slide with the hairs to the Innocence Project in 1996, Katz checked to insure there were still 7 hairs on the slide because she remembered that there had been seven hairs taken from the pantyhose. Katz testified that she was not and still is not in the habit of recording dissimilarities.

While Plaintiff was out on bail, a second assault occurred in the same apartment complex on July 19, 1992, on a 71 year old white woman, "Ms. S." Ms. S awoke to a nude, black male in her apartment. Armed with a kitchen bread knife, the man raped Ms. S with the aid of hand lotion as a lubricant, french-kissed her, and stole items before leaving. Police also discovered that the intruder had drank from several items of liquor in Ms. S's apartment. A sexual assault kit from Ms. S, processed by Katz, contained no secretions or other pertinent evidence.

Ms. S described her attacker as a black male, late 20s to mid 30s, with a slender to small build, short black and curly hair, with a round, clean-shaven face. Mrs. S also indicated the attacker felt very greasy around the neck and shoulders.

Defendants Tarter and Greer, LDP officers, investigated the attack on Ms. S. Tarter and Greer visited Ms. S with a photopak that included Plaintiff's picture and five others. Only Plaintiff's photo had a recent date on it ("06:03:92 "), but Ms. S was unable to make any identification from the photopak. Thereafter, Tarter and Greer asked Plaintiff to come in for a line-up in the presence of Ms. S. By the time Plaintiff and his attorney arrived at the station, Tarter had taken no affirmative steps, beyond securing the presence of Ms. S, to...