Hash v. Close

Decision Date03 July 2013
Docket NumberCivil Action No. 3:12–cv–00065.
Citation968 F.Supp.2d 825
PartiesMichael HASH, Plaintiff, v. Gary CLOSE, Scott Jenkins, James Mack, Calvin Bruce Cave, Mary Peters Dwyer, and Paul Carter, Defendants.
CourtU.S. District Court — Western District of Virginia


Johnathon Earl Schronce, Matthew Paul Bosher, Hunton & Williams, LLP, Richmond, VA, for Plaintiff.

Elizabeth Kay Dillon, Guynn Memmer & Dillon, PC, Salem, VA, James Morton Bowling, IV, Rhonda Quagliana, St. John Bowling Lawrence & Quagliana LLP, Charlottesville, VA, Brian James Brydges, Johnson Ayers & Matthews PLC, Katherine Cabell Londos, Kevin Osborne Barnard, Frith Anderson & Peake PC, Roanoke, VA, for Defendants.

Paul Carter, Gordonsville, VA, pro se.


GLEN E. CONRAD, Chief Judge.

Plaintiff Michael Hash brings this civil rights action, pursuant to 42 U.S.C. § 1983, alleging violations of the due process clause of the Fourteenth Amendment, as well as several violations of state law. The case stems from the wrongful conviction of Hash for the 1996 murder of Thelma Scroggins. The plaintiff has filed a complaint alleging eight counts of prosecutorial and police misconduct. Specifically, the plaintiff asserts claims for false arrest, fabrication of evidence, pre-conviction suppression of favorable evidence, conspiracy to violate constitutional rights, post-conviction suppression of evidence, malicious prosecution under Virginia law, and false imprisonment under Virginia law. The defendants are a mix of prosecutors, police investigators, a prison official, and a jailhouse informant. One of the defendants, Scott Jenkins, is the Culpeper County Sheriff and was the lead detective during the investigation that led to Hash's arrest and conviction. Jenkins is named in all eight counts of the complaint. He has filed a motion to dismiss Count Four of the complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiff alleges in Count Four that Jenkins, along with James Mack, another Culpeper County investigator, violated Hash's right to due process and a fair trial by suppressing evidence favorable to him prior to his conviction. For the reasons stated below, the court will deny the defendant's motion.

I. Background

Hash was convicted in the Circuit Court of Culpeper County for the capital murder of Thelma Scroggins on February 9, 2001. The killing took place in 1996, when Hash was 15 years old. The conviction was based, in part, on “eyewitness” testimony from Eric Weakley, an alleged co-conspirator with whom Hash allegedly committed the crime; testimony from Alesia Shelton, Hash's cousin who described incriminating statements made to her by Hash and his co-defendants; and the testimony of Paul Carter, an inmate who stated that Hash confessed the crime to him while in prison together.1 Hash maintained his innocence during trial and throughout more than a decade in prison. Following the trial, he appealed his conviction to the Court of Appeals of Virginia, which affirmed his conviction. The Supreme Court of Virginia then denied Hash's petitions for appeal and rehearing. Thereafter, the plaintiff filed a petition for habeas corpus in the Culpeper County Circuit Court, which denied his claims. The plaintiff appealed this judgment to the Supreme Court of Virginia, which denied his petition and affirmed the circuit court decision. On April 15, 2010, the plaintiff filed a federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In an amended petition filed on July 2, 2010, Hash set forth four claims: two allegations of constitutionally ineffective assistance of counsel, and two allegations that the Commonwealth violated his due process rights by (1) concealing favorable information from him, and (2) engaging in extreme prosecutorial and police misconduct during the course of the investigation and prosecution.

On February 28, 2012, Judge James C. Turk granted Hash's petition for habeas relief as to all four of his claims, vacated his conviction, and ordered the Commonwealth either to retry Hash within six months or release him from custody. Hash was eventually released, and the charges against him were dropped. As to Hash's concealment and misconduct claims, which serve as the basis for the complained of behavior in the case sub judice, Judge Turk held that the Culpeper Commonwealth Attorney's Office and the Culpeper Sheriff's Office concealed evidence favorable to Hash and engaged in gross misconduct that violated Hash's guarantees of due process and a fair trial. Noting “a cavalcade of evidence,” Judge Turk explained the multiple police and prosecutorial transgressions entitling Hash to relief. Hash v. Johnson, 845 F.Supp.2d 711, 749 (W.D.Va.2012). Regarding Hash's allegations specifically concerning the police investigation, the Court found that he had successfully demonstrated at least three instances of improper concealment of evidence by the investigators: First, Weakley was coached by Jenkins and Mack on important details of the crime, bolstering his testimony at trial, and this fact was never revealed to Hash or his counsel. Second, Jenkins made “a promise” to Paul Carter “to talk to the U.S. Attorney on behalf of Carter regarding his federal sentence.” Id. at 719. The Court found that “Jenkins' offer to assist Carter with his federal sentence may have appeared to be contingent on the strength of Carter's testimony at Hash's trial, thereby increasing Carter's motivation to testify falsely.” Id. at 747. These conversations, as well as additional correspondence between Jenkins, Mack, and Carter, were not disclosed to Hash's counsel. Finally, the results of failed polygraph examinations of both Weakley and Shelton were not disclosed. Id. at 747–51.

The Court stated “the conduct of Investigator[ ] Jenkins ... rises to the level of outrageous misconduct because the acts were intentional and not merely negligent,” and concluded that “the cumulative effect of this misconduct violated Hash's right to due process.” Id. at 751. Although the Court at times considered the police and prosecutorial misconduct in tandem, ultimately the Court distinguished between the different standards necessary to establish violations for each, and held that the intentional withholding of material information on the part of the police investigators independently violated Hash's constitutional right to a fair trial. Id. at 751–52.

II. DiscussionA. Standard of Review

In reviewing a motion to dismiss under Rule 12(b)(6), the court must “acceptas true all well-pleaded allegations” and construe those allegations in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). [T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

B. Analysis

In Count Four of the complaint, the plaintiff alleges that:

Jenkins and Mack suppress[ed] ... favorable evidence prior to Hash's conviction in violation of Hash's Fourteenth Amendment rights to due process and a fair trial.


Defendants Jenkins and Mack knew their suppression of favorable evidence violated Hash's rights.


Defendants Jenkins' and Mack's suppression of the truth about their dealings with witnesses and potential witnesses led to Hash's conviction and incarceration. Hash's conviction and lengthy incarceration were the reasonably foreseeable results of Jenkins' and Mack's suppression of favorable evidence.

The question presented to the court is whether the alleged suppression of evidence by the investigating officers states a legal claim for a violation of Hash's constitutional rights under the Fourteenth Amendment. Jenkins contends that they do not, based on a concurring opinion by Judge Wilkinson in Jean v. Collins, 221 F.3d 656 (4th Cir.2000) (en banc) (Jean II or “concurrence”). In Jean II, an equally divided en banc court affirmed the District Court's grant of summary judgment in favor of a police officer defendant who was accused of failing to disclose exculpatory evidence. 2 The case had been remanded to the Fourth Circuit for reconsideration in light of the Supreme Court's decision in Wilson v. Layne, which held that [a] court evaluating a claim of qualified immunity ‘must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all ....’ 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999)). The question before the Fourth Circuit on remand was whether the plaintiff had established an independent constitutional violation on behalf of the investigating police officers—as opposed to the prosecutors—for their failure to turn over exculpatory evidence prior to trial. Jean II, 221 F.3d at 659. The concurrence noted that, while the Supreme Court decisions in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny establishing a duty on behalf of prosecutors to turn over exculpatory evidence to the defendant do not address the duty of police officers to do the same, lower court cases, including some from within the Fourth Circuit, have “pointed toward such a duty.” Jean II, 221 F.3d at 659. For example, in Goodwin v. Metts, the Fourth Circuit held that [a] police officer who withholds exculpatory information from the prosecutor can be liable under ... § 1983.” 885 F.2d 157, 162 (4th Cir.1989).3 Similarly, in Carter v. Burch, the...

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