Mccarty v. Gilchrist

• Citation: 646 F.3d 1281
• Decision Date: 14 July 2011
• Docket Number: No. 09–6220.,09–6220.
• Parties: Curtis Edward McCARTY, Plaintiff–Appellant,v.Joyce A. GILCHRIST, in her official capacity; William Citty, Chief of Police, City of Oklahoma City, in his official capacity; City of Oklahoma City, Defendants—Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

646 F.3d 1281

Curtis Edward McCARTY, Plaintiff–Appellant,
v.
Joyce A. GILCHRIST, in her official capacity; William Citty, Chief of Police, City of Oklahoma City, in his official capacity; City of Oklahoma City, Defendants—Appellees.

No. 09–6220.

United States Court of Appeals, Tenth Circuit.

July 14, 2011.

[646 F.3d 1282]

R. Thomas Seymour (Scott A. Graham and Anthony L. Allen with him on the brief), Seymour & Graham, LLP, Tulsa, OK, for Plaintiff–Appellant.Richard C. Smith, Assistant Municipal Counselor (Kenneth Jordan, Municipal Counselor, with him on the brief), Oklahoma City, OK, for Defendants–Appellees.Before BYE, COLLOTON, and SHEPHERD, Circuit Judges.^*SHEPHERD, Circuit Judge.

Curtis McCarty brought this 42 U.S.C. § 1983 action against Joyce Gilchrist, former forensic chemist for the Oklahoma City Police Department (OCPD), William Citty, OCPD Chief of Police, and the city of Oklahoma City. McCarty's complaint alleged constitutional violations and damages under theories of malicious prosecution, municipal liability for failure to train or supervise, and supervisor liability for failure to train or supervise. McCarty appeals from the district court's adverse grant of summary judgment, and we affirm.

[646 F.3d 1283]

I.

In 1986, McCarty was charged in Oklahoma state court with the first-degree murder of eighteen-year-old Pam Willis. After a jury trial, McCarty was convicted and sentenced to death. McCarty appealed, and the Oklahoma Court of Criminal Appeals (OCCA) reversed. McCarty v. State, 765 P.2d 1215, 1222 (Okla.Crim.App.1988). Specifically, the OCCA held that the State deprived McCarty of a “fair and adequate opportunity to have critical hair evidence examined by an independent forensic expert” and of an accurate forensic report necessary for intelligent cross-examination. Id. at 1217–18. In addition, the OCCA found that Gilchrist testified beyond the limitations of forensic science when she stated that McCarty was physically present during the murder. Id. at 1218–19. Gilchrist also testified without personal knowledge that the medical examiner had used certain procedures and had found a scalp hair consistent with McCarty's hair in the victim's chest wound. Id. at 1219–20. More improper testimony occurred when a police officer described an “extrajudicial experiment” he conducted. Id. at 1220. Finally, the OCCA held that various instances of prosecutorial misconduct occurred during the trial. Id. at 1220–21. Assistant District Attorney Barry Albert improperly criticized the Cleveland County District Attorney's Office for recommending that McCarty receive only five years upon his entry of a guilty plea on a previous second-degree rape charge. Id. at 1221. Then, during closing argument, District Attorney Robert Macy commented on facts not in evidence, stated his personal views regarding McCarty's guilt in front of the jury, attacked the credibility of defense counsel, and requested sympathy for the victims while urging the jury to impose the death penalty. Id. at 1220–21. Finding the record “replete with error,” the OCCA reversed McCarty's conviction and remanded to the District Court of Oklahoma County for a new trial. Id. at 1222.

McCarty was retried in 1989. The jury again convicted McCarty of first-degree murder and sentenced him to death. On appeal, the OCCA affirmed the conviction but reversed the death sentence because the District Court of Oklahoma County had refused to instruct the jury on the alternative sentencing option of life imprisonment without parole. McCarty v. State, 904 P.2d 110, 129 (Okla.Crim.App.1995). The case was remanded for resentencing. Id. In 1996, McCarty was sentenced to death for the third time, and the OCCA affirmed. McCarty v. State, 977 P.2d 1116, 1141 (Okla.Crim.App.1998).

McCarty then applied to the OCCA for postconviction relief, alleging that the informants who testified against him were unreliable, that the criticism of Macy's trial practices in various judicial opinions showed that his conviction was inherently unreliable, and that his counsel had been ineffective. McCarty v. State, 989 P.2d 990, 993–96 (Okla.Crim.App.1999). The OCCA denied his application. Id. at 996.

In 2001, the FBI launched an investigation into Gilchrist's forensic work, this court concluded Gilchrist had fabricated evidence in Mitchell v. Gibson, 262 F.3d 1036 (10th Cir.2001), and Gilchrist was fired. See Pierce v. Gilchrist, 359 F.3d 1279, 1283–84 (10th Cir.2004) (providing an overview of Gilchrist's improper actions as an OCPD forensic chemist). As a result, McCarty again applied to the OCCA for postconviction relief. McCarty v. State, 114 P.3d 1089 (Okla.Crim.App.2005). This time, the State consented to an evidentiary hearing on McCarty's petition because the allegations centered on Gilchrist and her “now notorious actions.” Id. at 1090 & n. 1. The OCCA thus remanded the case to the District Court of Oklahoma County for an evidentiary hearing. Id. at 1090 & n. 3.

[646 F.3d 1284]

The District Court of Oklahoma County found that Gilchrist “most likely lost or intentionally destroyed” exculpatory or inculpatory evidence, “provided flawed laboratory analysis and documentation of her work,” gave expert testimony that “exceeded the acceptable limits of forensic science,” and “altered lab reports and handwritten notes” to hide her actions. Id. at 1092. Based on these findings, the District Court of Oklahoma County concluded that McCarty did not receive a fair trial in 1989 and submitted this recommendation to the OCCA. Id. The OCCA agreed, holding that “Gilchrist's actions alone warrant a new trial” and reversing McCarty's conviction. Id. at 1094–95. The OCCA declined to dismiss the charges against McCarty outright, however, finding that reasonable minds could differ on the question of McCarty's guilt. Id. at 1095. “While the revelations relating to Ms. Gilchrist are clearly damaging to this largely circumstantial case, they are not necessarily fatal.” Id., cert. denied, 546 U.S. 1020, 126 S.Ct. 660, 163 L.Ed.2d 534 (2005). Accordingly, the OCCA remanded the case to the District Court of Oklahoma County for a new trial. Id. at 1094–95.

On remand, the District Court of Oklahoma County held a hearing on May 10–11, 2007, to discuss the status of the case and to rule on the parties' various pre-trial motions. At the close of the hearing, the court found that in 2000, Gilchrist had intentionally destroyed the potentially exculpatory hair evidence recovered from the victim's chest and inside the victim's chest wound. The court concluded that this finding required dismissal of the charges against McCarty. See Hogan v. State, 877 P.2d 1157 (Okla.Crim.App.1994) (adopting Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), which holds that the intentional destruction of potentially exculpatory evidence by law enforcement is a due process violation). McCarty was released from prison after spending almost 19 years on death row.

McCarty brought a civil suit under § 1983 in the U.S. District Court for the Western District of Oklahoma on the theories of malicious prosecution, ² municipal liability for failure to train or supervise, and supervisor liability for failure to train or supervise. The district court dismissed the complaint with prejudice, ruling that McCarty's § 1983 claims accrued when his conviction was reversed on July 14, 2005, and his lawsuit, filed December 5, 2007, was barred by the two-year statute of limitations. On McCarty's motion, the district court permitted him to file an amended complaint alleging an ongoing conspiracy that continued until all charges against him were dismissed in 2007. After discovery, the district court granted summary judgment in favor of the defendants, concluding that McCarty's claims were barred by the statute of limitations, or alternatively, failed as a matter of law. McCarty appeals.

II. A. Standard of Review

We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party. Vaughn v. Epworth Villa, 537 F.3d 1147, 1150 (10th Cir.2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 1528, 173 L.Ed.2d 657 (2009). Summary judgment is appropriate when there is no genuine

[646 F.3d 1285]

issue of material fact and the movant is entitled to judgment as a matter of law. Id. “[W]e may affirm on any basis supported by the record, even though not relied on by the district court.” Seegmiller v. LaVerkin City, 528 F.3d 762, 766 (10th Cir.2008).

B. Section 1983 Malicious Prosecution Claims

Section 1983 provides a federal civil remedy for the “deprivation of any rights, privileges, or immunities secured by the Constitution” by any person acting under color of state law. 42 U.S.C. § 1983. The analysis in a § 1983 case begins with the identification of the precise constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Here, McCarty seeks damages under a theory of § 1983 malicious prosecution for several distinct alleged violations of his constitutional rights under the procedural component of the Due Process Clause. Specifically, McCarty alleges that: (1) Gilchrist falsely testified that hairs found on the victim's chest and in the victim's chest wound were consistent with McCarty's hair; (2) Gilchrist falsely testified that McCarty could not be excluded as the source of the semen in the victim; (3) Gilchrist and others withheld evidence that a bloody print found on the victim's thigh was actually a footprint that did not belong to McCarty; (4) Gilchrist falsely testified that no hairs were discovered on the rope used to strangle the victim; (5) Gilchrist intentionally destroyed potentially exculpatory evidence in 2000; and (6) Gilchrist and the OCPD conspired to prosecute him wrongfully.

In addition to alleging a constitutional violation, a § 1983 plaintiff must prove other tort elements. Novitsky v. City of Aurora,...