Dean v. Smith

Decision Date03 August 2011
Docket Number4:09CV3148.,4:09CV3146,Nos. 4:09CV3144,4:09CV3147,s. 4:09CV3144
Citation805 F.Supp.2d 750
PartiesJames L. DEAN, Plaintiff, v. Richard T. SMITH, et al., Defendants.Kathleen A. Gonzalez, Plaintiff, v. Richard T. Smith, et al., Defendants.Thomas W. Winslow, Plaintiff, v. Richard T. Smith, et al., Defendants.Ada Joann Taylor, Plaintiff, v. Richard T. Smith, et al., Defendants.
CourtU.S. District Court — District of Nebraska


Herbert J. Friedman, Friedman Law Offices, Robert F. Bartle, Jeffry D. Patterson, Bartle, Geier Law Firm, Lincoln, NE, Douglas J. Stratton, Stratton, Delay Law Firm, Norfolk, NE, for Plaintiffs.

Jennifer M. Tomka, Richard L. Boucher, Boucher Law Firm, Patrick T. O'Brien, Butler, Galter Law Firm, Paul L. Douglas, Lincoln, NE, for Defendants.


RICHARD G. KOPF, District Judge.

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.

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 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, 239 Neb. 554, 477 N.W.2d 24, 24–25 (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 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.

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. The response should address each numbered paragraph in the movant's statement and, in the case of any disagreement, contain pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies. Properly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response. NECivR 56.1(b)(1) (emphasis in original).

The plaintiffs have made no effort to comply with the requirements of Rule 56.1(b)(1) by addressing each numbered paragraph of the defendants' statement of facts. Instead, they have responded with lengthy narratives of their own. While I will give due consideration to any additional facts that are properly referenced in the plaintiffs' briefs and supported by admissible evidence, see Jenkins v. Winter, 540 F.3d 742, 747 (8th Cir.2008) (holding that district court erred in not considering statement of facts presented in opposition to summary judgment motion), the defendants' statement of material facts, to the extent it is supported by the record and does not contain legal conclusions, will be deemed admitted by the plaintiffs.5 See, e.g., Ballard v. Heineman, 548 F.3d 1132, 1133 (8th Cir.2008) (We follow the district court in considering [the defendants'] statements of fact in support of their motions for summary judgment ‘deemed admitted’ under Nebraska Local Civil Rule 56.1(b) because [the plaintiff] did not respond to those...

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1 cases
  • Winslow v. Smith
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 15, 2012
    ...prepared by the district court, from which we have borrowed heavily for our own overview of the facts herein. See Dean v. Smith, 805 F.Supp.2d 750, 756–834 (D.Neb.2011). Although Plaintiffs contend the district court's narrative is based on Defendants' version of events, we do not discern a......

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