Atchison v. City of Tulsa, 21-CV-286-TCK-SH

CourtUnited States District Courts. 10th Circuit. Northern District of Oklahoma
Docket Number21-CV-286-TCK-SH
Decision Date07 March 2022



No. 21-CV-286-TCK-SH

United States District Court, N.D. Oklahoma

March 7, 2022



Before the Court are Motions of Defendants to Dismiss Plaintiff's Complaint (Docs. 13, 30, 31, 32, 40, 52, 53, 54, & 59). Plaintiff filed Responses to the Motions to Dismiss (Docs. 17, 62, 60, 65, 64, 63, 66, 61 & 67). Defendants filed Replies to each Response (Docs. 20, 69, 75, 70, 73, 68, 71, 74 & 72).

Plaintiff alleges that officers of the Tulsa Police Department, the defendants Robert Jackson, Gary Meek, Ken Makinson, Fred Parke, Jack Putnam, Scott Rogers, Michael Eubanks, S.M. Irwin, Harold “Bear” Wilson, and others (collectively “Defendants”), “framed Plaintiff for a 1990 murder after Plaintiff's only connection to the crime was having the decency to stop his car when he saw that someone had been shot, try to help, and urge passersby to call 911.” (Doc. 67 * 8) and (Doc. 57, Corrected Complaint (“Complaint”)).[1] Plaintiff alleges that after Defendants


framed him, he was sentenced to life in prison, where he spent 28 years wrongfully convicted of murder before he was exonerated. There was no physical evidence or motive tying Plaintiff to this crime, nor was a weapon or money found on him at the scene of this robbery/shooting. Plaintiff did not match eyewitness descriptions of the shooter. The Complaint details the alleged conspiracy, wherein Defendants failed to follow leads and buried evidence about the true murderer, choosing instead to coerce teenagers to falsely identify Plaintiff.

Plaintiff brings several claims against the Defendants including § 1983 claims for violations of his due process rights, deprivation of liberty without probable cause, conspiracy to deprive him of his constitutional rights, and failure to intervene. Plaintiff also brings state law claims against the Defendants for intentional infliction of emotional distress, malicious prosecution, and state civil conspiracy.

Defendants contend they are entitled to qualified immunity, and that Plaintiff has not adequately distinguished the factual allegations against each individual officer so as to provide notice.

Plaintiff brings a § 1983 municipal liability claim against the City of Tulsa, Oklahoma (“City”) as well as state law claims for respondeat superior and indemnification. Plaintiff's claims include allegations that the City employed a number of unconstitutional law enforcement policies and customs that were a moving force behind the violation of Plaintiff's constitutional rights, as well as the wrongful convictions of several other citizens.

The City argues that Plaintiff's claims against it are procedurally barred by the Oklahoma


Governmental Tort Claims Act (“OGTCA”) and that the Defendants are not entitled to indemnification under the facts alleged in the complaint.[2]

I. Background

In 161 paragraphs, Plaintiff's Complaint outlines how he believes Defendants' misconduct violated his constitutional and state-law rights and caused his wrongful conviction for a crime he did not commit.

The Complaint alleges that despite his innocence, Plaintiff was wrongfully convicted of the 1990 shooting murder of James Lane and sentenced to life in prison. (Doc.57, ¶ 1). He spent 28 years unjustly imprisoned before he was finally exonerated. There was never any motive, physical evidence, or inculpatory statement connecting Plaintiff to Lane's murder. Id. at ¶ 2. Instead, Plaintiff's arrest, prosecution, and conviction were based on shocking misconduct by the Defendants. Id. at ¶ 3. Specifically, Defendants built an entirely false case against Plaintiff based on fabricated police reports and suppressed exculpatory evidence which Plaintiff could have used to defend himself against the false charges. Id. at ¶¶ 5. Defendants also coerced false statements naming Plaintiff as the assailant from several individuals, including three teenagers, each of whom have since recanted their statements and explained that it was a result of police coercion. Id. at ¶ 6.

The shooting took place during the early morning hours of August 3, 1990, when James Lane fought with a group of men after Lane had pulled a large amount of cash out of his sock to purchase drugs. Id. at ¶¶ 17-18. One of the men involved in the fight fatally shot and robbed Lane.


Id. at ¶¶ 18-19. Plaintiff had nothing to do with this shooting. Id. at ¶ 20. His only connection to the case was that when he heard the gunshot, he parked his car, approached Lane, and tried to help, asking residents in the area to call for assistance. Id. at ¶¶ 22-23. At the time, Plaintiff's car had three passengers-Plaintiff's friends Ben King, Marquis Alexander, and Mareo Johnson. Id. at ¶ 22. Plaintiff, King, Alexander, and Johnson stayed with Lane until police arrived. Id. at ¶ 23.

A. Defendants' Initial Investigation

Within hours of the shooting, officers conducted a neighborhood canvas and learned that there were at least three eyewitnesses to the shooting: Stephenne Jacob, Lynette Williams, and Lisa McClish. Id. at ¶ 24. Defendants Putnam, Rogers, Eubanks, and Irwin also learned that a 16-year-old boy named Doane Thomas had heard gunshots and ducked into bushes near the shooting, seeking cover. Id. at ¶ 25. Thomas did not see who shot Lane, and he waited for a few minutes to pass before leaving the cover of bushes. Id. When he exited the bushes, he saw Plaintiff walk up to Lane and yell for someone to call 911. Id.

Defendants Putnam, Rogers, and Irwin questioned and searched Plaintiff, his passengers King, Alexander, and Johnson, and his car at the scene. Id. at ¶ 26. Defendants found no evidence implicating any of them in the robbery or shooting. Id. Plaintiff explained to the officers that he had nothing to do with the shooting and knew nothing about it. Id. at ¶ 27. No arrests were made, and Plaintiff and his friends were permitted to leave. Id. at ¶ 28.

B. Defendants Fabricate and Suppress Evidence of the True Perpetrator

1. The False and Suppressed Lisa McClish Reports

Four days after the shooting, eyewitness Lisa McClish called Defendant Detective Ken Makinson and reported that a Black man named Wayne Jones had shot and robbed Lane. Id. At ¶ 29.


At the time of the Lane shooting, Jones was 30 years old, 5'9” and approximately 140 pounds. Id. at ¶ 30. This description is consistent with descriptions of the shooter from other eyewitnesses. Id. However, it was completely incongruent with Plaintiff, who was 20 years old, 6'2”, and weighed 265 pounds. Id. at ¶¶ 21, 30. Moreover, Jones had a lengthy criminal history, including convictions for robberies with firearms, and at the time of the shooting, Jones was out of prison and on probation for escape from a penal institution. Id. at ¶ 31.

Defendant Makinson created a police report of his interview with McClish recording that McClish identified Wayne Jones as having shot Lane, but this report was never turned over during Plaintiff's criminal proceedings. Id. at ¶ 32. Defendants suppressed this report for decades, and it did not resurface until 2018. Id. at ¶ 33.

Instead, Defendants created and tendered in discovery a false report by Defendant Mackinson stating that McClish had provided the following information about possible suspects of the Lane shooting: the name Wayne Jones; the name Reginald Patterson; information that Patterson was with Jones when Lane was robbed and shot; the name Andre Green; and Plaintiff's name. Id. at ¶ 34. This report did not name Jones as the person who shot Lane, nor did it provide any other information about those named except for their names. Id. By creating this false and misleading version of the McClish report, Defendant Makinson, in conspiracy with the other Defendants, ensured that Plaintiff was not aware that Wayne Jones had been identified as an alternative suspect and could not further investigate Jones' involvement in the shooting. Id. at ¶ 35.

2. The Suppressed “Candyman” Report

On or around November 1, 1990, Defendant Detective Fred Parke received a lead that a


possible suspect in this case could be a Black male known by the street name of “Candyman.” Id. at ¶ 36. Although Defendant Parke created a report documenting his lead regarding “Candyman, ” Defendants suppressed Parke's report and it was never turned over during Plaintiff's criminal proceedings. Id. at ¶¶ 37-38.

3. The Falsified and Suppressed Stephenne Jacob Report

Stephenne Jacob witnessed the Lane shooting and was able to provide an eyewitness description of the shooting and the culprit to investigators on the night of the murder. Id. at ¶ 39. Like McClish, Jacob described the shooter as 5'8” tall and weighing around 140 pounds-half a foot too short and over 100 pounds too light to be Plaintiff. Id. at ¶¶ 21, 30, 40. Moreover, Jacob knew Plaintiff well at the time of the shooting and stated emphatically that Plaintiff was not the shooter. Id. at ¶ 40. Defendant Irwin, under the direction of Defendant Eubanks, created a report that purported to set forth Jacob's statement about the shooting, but Jacob has attested that the report contains many fabrications. Id. at ¶ 41-42. It is accurate only in the sense that Jacob was indeed a witness to the shooting, but the remainder of the statements attributed to her are false. Id. at ¶ 42.

Defendants suppressed even the false Jacob report until the eve of trial. Id. at ¶ 43. Defendants also never provided the transcript or audio of Jacob's statement, which would have exculpated Plaintiff because it would have included a description of the shooter which did not match Plaintiff's body type. Id. By suppressing Jacob's actual statement, suppressing the...

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