O'DELL v. McSpadden

• Decision Date: 26 November 1991
• Docket Number: No. S90-0143C.,S90-0143C.
• Citation: 780 F. Supp. 639
• Parties: Denver O'DELL, Plaintiff, v. Coleman McSPADDEN, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

780 F. Supp. 639

Denver O'DELL, Plaintiff, v. Coleman McSPADDEN, et al., Defendants.

No. S90-0143C.

United States District Court, E.D. Missouri, Southeastern Division.

November 26, 1991.

Denver O'Dell, pro se.

John L. Oliver, Jr., Oliver, Oliver, Waltz & Cook, Cape Girardeau, Mo., for Pewitt.

Gerald L. Meyr, Stephen E. Walsh, Summers, Walsh, Pritchett & Blaich, Poplar Bluff, Mo., for Cotrell and Montgomery.

MEMORANDUM

LIMBAUGH, District Judge.

Plaintiff brought this action pursuant to 42 U.S.C. § 1983 alleging that defendants violated his constitutional rights by engaging in a conspiracy regarding his second-degree felony murder conviction for the shooting death of his wife, Ruth O'Dell. Although Ruth O'Dell was shot by another man, Calvin Eugene Pyatt, the incident took place during O'Dell's attempted second-degree assault on Pyatt. The events are recited by the Missouri Court of Appeals in affirming O'Dell's conviction, State v. O'Dell, 684 S.W.2d 453 (Mo.Ct.App.1984), cert. denied, 488 U.S. 930, 109 S.Ct. 319, 102 L.Ed.2d 337 (1988) and by the Eighth Circuit Court of Appeals in affirming the denial of O'Dell's petition for a writ of habeas corpus under 28 U.S.C. § 2254, O'Dell v. Armontrout, 878 F.2d 1076 (8th Cir.1989).

Plaintiff brought an earlier suit pursuant to 42 U.S.C. §§ 1983 and 1985 and challenged the validity of his state court conviction. O'Dell v. Smith, S85-238C. In that case, he alleged a conspiracy among a number of persons involved in his criminal trial, including the prosecuting attorney, a trial witness, the county sheriff and the defense attorney who represented him at trial. This Court granted the motions to dismiss and for summary judgment of the defendants, and the Eighth Circuit Court of Appeals affirmed. O'Dell v. Smith, 815 F.2d 710 (8th Cir.1987).

In this action, plaintiff purports that he is not attacking his state court conviction. He alleges, however, that the defendants conspired to suppress and falsify evidence regarding the "real killer" of Ruth O'Dell. His theory is that Johnny Pyatt shot Ruth O'Dell instead of or in addition to Calvin Eugene Pyatt and that certain medical records, which defendants allegedly concealed, would have revealed that. The claims in this lawsuit presumably relate to protections guaranteed by the 5th and 6th Amendments as incorporated in the Due Process Clause of the Fourteenth Amendment.¹

Plaintiff names as defendants: Coleman McSpadden, Carter County coroner; Dennis McSpadden, Carter County deputy coroner; Charles Pewitt, Reynolds County coroner; Gary H. Terando, plaintiff's criminal defense attorney; Larry Cottrell, Butler County coroner; and Paul Montgomery, Butler County commissioner. All of the defendants have filed motions to dismiss or for summary judgment to which plaintiff has filed responses. This matter is before the Court on the various motions of the parties.²

As a preliminary matter, the Court must note that § 1983 may not be used to mount a collateral attack on a plaintiff's criminal conviction. See, e.g., Scruggs v. Moellering, 870 F.2d 376, 378-79 (7th Cir.) cert. denied, 493 U.S. 956, 110 S.Ct. 371, 107 L.Ed.2d 357 (1989). Although plaintiff seeks only damages, his lawsuit amounts to an attack on his criminal conviction and is not cognizable under § 1983. Further, each of the motions to dismiss or for summary judgment has additional support. The Court will consider each in turn.

PLAINTIFF'S MOTION FOR RECONSIDERATION

Plaintiff moves for reconsideration of this Court's order of April 15, 1991 dismissing defendants Coleman McSpadden and Dennis McSpadden. Plaintiff alleges Coleman McSpadden acted as coroner and that Dennis McSpadden acted as deputy coroner of Carter County³ and that they suppressed evidence, conducted a bogus inquest, provided a false death certificate and gave false testimony at trial.

Plaintiff has failed to state a claim. First, plaintiff raised these issues in his 27.26 motion to the state court and plaintiff is collaterally estopped from relitigating them here. "Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (citing Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979)). A state court decision may have a preclusive effect on a federal suit. Allen, 449 U.S. at 95, 101 S.Ct. at 415. The doctrine of collateral estoppel applies to a § 1983 suit. Allen, 449 U.S. at 105, 101 S.Ct. at 420-21.

In his decision on plaintiff's 27.26 motion in state court, the Hon. Judge James R. Hall considered these issues and found that plaintiff "failed to show that an improper inquest occurred, that a false cause of death was put on Ruth O'Dell's death certificate, that any misconduct by local officials occurred, or that any of the aforementioned in this sentence could constitute grounds upon which relief could be granted." O'Dell v. Missouri, No. CV187-183CC, slip op. at 8 (Butler County Ct., Mo., April 9, 1991). The state court also found that "there was no conspiracy to cover up the cause of death of Ruth O'Dell." O'Dell v. Missouri, No. CV187-183CC, slip op. at 7 (Butler County Ct., Mo., April 9, 1991).

Further, both Coleman McSpadden and Dennis McSpadden are absolutely immune for their testimony. Briscoe v. La Hue, 460 U.S. 325, 334, 103 S.Ct. 1108, 1115, 75 L.Ed.2d 96 (1982); Bates v. New York City Transit Authority, 721 F.Supp. 1577, 1580 (E.D.N.Y.1989).

For the foregoing reasons, plaintiff's motion to reconsider will be denied.

DEFENDANT TERANDO'S MOTION TO DISMISS

Defendant Gary H. Terando, plaintiff's criminal defense attorney, moves to dismiss for failure to state a claim upon which relief can be granted. Plaintiff alleges that Terando conspired to cover up the "real murderer" of Ruth O'Dell.

In passing on a motion to dismiss, a court must view the facts alleged in the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Toombs v. Bell, 798 F.2d 297, 298 (8th Cir.1986). The court should not grant a motion to dismiss merely because the complaint does not state with precision every element of the offense necessary for recovery. 5 Wright & Miller, Federal Practice and Procedure: Civil, Sec. 1216 at 120 (1969). A complaint is sufficient if it contains "allegations from which an inference can be drawn that evidence on these material points will be introduced at trial." Id. at 122-123. Moreover, a court should not dismiss a complaint unless it "appears beyond a reasonable doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, supra, 355 U.S. at 45-46, 78 S.Ct. at 102. Thus, a motion to dismiss is likely to be granted "only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir.1982). With this standard in mind, the Court turns to an examination of the plaintiff's complaint.

Plaintiff's claim against Terando is that he conspired with the other defendants to supply a false cause of death of Ruth O'Dell and "cover up for the actual murderer." He asserts that Terando did not attend the inquest of O'Dell and allowed the coroners to give false testimony about the cause of death. He also alleges that Terando conspired with the jury commissioner, Paul Montgomery to deny him a fair trial. Acts of defense counsel in performing "traditional functions as counsel to a defendant to a criminal proceeding" are not acts "under color of state law" as contemplated in § 1983. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453-54, 70 L.Ed.2d 509 (1981). However, allegations that a defense attorney has conspired with state officials states a cause of action under that statute. Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984).

Nonetheless, plaintiff has failed to state a claim. First, plaintiff's claim is barred by the doctrine of res judicata. "Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979); see also Poe v. John Deere Co., 695 F.2d 1103, 1105 (8th Cir.1982). The doctrine of res judicata bars a later suit when (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involved the same cause of action; and (4) both suits involved the same parties or their privies. Lovell v. Mixon, 719 F.2d 1373, 1376 (8th Cir.1983).

Plaintiff previously filed suit against Terando in O'Dell v. Smith, No. S85-0238C(D). In that case, Terando's motion for summary judgment was granted except with regard to plaintiff's claim that plaintiff conspired with the prosecuting attorney, Bradshaw Smith. That claim was dismissed without prejudice with leave to file a more specific complaint within fifteen days. Plaintiff failed to comply with the Order and the case was closed. Plaintiff appealed and the Eighth Circuit Court of Appeals affirmed. O'Dell v. Smith, 815 F.2d 710 (8th Cir.1987).

All the requirements for claim preclusion are met. The first suit resulted in a judgment on the merits and was based on proper jurisdiction. Both suits involved the same parties: plaintiff and Terando. Both suits involve the same cause of action: an allegation that Terando conspired to deprive plaintiff of his constitutional rights in connection with his criminal trial. The Court concludes that plaint...