McGhee v. Pottawattamie County, Ia
| Decision Date | 23 February 2007 |
| Docket Number | No. 4:05-cv-00178.,No. 4:05-cv-00255.,4:05-cv-00255.,4:05-cv-00178. |
| Citation | 475 F.Supp.2d 862 |
| Parties | Curtis W. McGHEE, Jr., Plaintiff, v. POTTAWATTAMIE COUNTY, IOWA; The City of Council Bluffs, Iowa; Joseph Hrvol; David Richter; Matthew Wilber; Daniel Larsen; Lyle Brown; and David Dawson, Defendants. Terry Harrington, individually and in his capacity as the father of Nicole Antoinette Harrington, Plaintiff, v. County of Pottawattamie, Iowa; City of Council Bluffs, Iowa; David Richter, in his individual and official capacities; Joseph Hrvol, in his individual and official capacities; Daniel C. Larsen, in his individual and official capacities; Lyle W. Brown, in his individual and official capacities; and John Does One Through Nine, in their individual and official capacities, Defendants. |
| Court | U.S. District Court — Southern District of Iowa |
Stephen Dillard Davis, William H. Jones, Canel, Davis & King, Chicago, IL, Alan O. Olson, Olson Law Office PC, Des Moines, IA, Thomas P. Frerichs, Frerichs Law Office PC, Waterloo, IA, Larissa A. McCalla, Gerry L. Spence, Spence Shockey & McCalla, J. Douglas McCalla, Mel C. Orchard, Spence Law Firm LLC, Jackson, WY, for plaintiffs.
David Stephen Baker, Daniel C. Estes, Fisher Patterson Sayler & Smith LLP, Overland Park, KS, Michael A. Sciortino, City of Council Bluffs Legal Dept., Robert M. Livingston, Kristopher K. Madsen, Stuart Tinley Peters Thorn Hughes Faust & Madsen, Margaret J. Reyes, Pottawattamie County Attorneys Office, Council Bluffs, IA, Vincent J. Connelly, Lori E. Lightfoot, Zaldwaynaka Scott, Mayer, Brown, Rowe & Maw LLP, Chicago, IL, for defendants.
On March 25, 2005, Plaintiff Terry Harrington ("Harrington"), individually and in his capacity as the father of Nicole Antoinette Harrington, filed a Complaint and Jury Demand (Clerk's No. 1) against Pottawattamie County, the City of Council Bluffs, David Richter ("Richter"), Joseph Hrvol ("Hrvol"), Daniel Larsen ("Larsen"), Lyle Brown ("Brown"), and various John Does, alleging the following claims: 1) Fabricated and Perjured Testimony — § 1983 Civil Rights Violations; 2) Withheld Evidence — Brady and Giglio Violations; 3) Conspiracy under the Color of State Law to Deny Constitutional Rights; 4) State Claim — Intentional Infliction of Emotional Distress; 5) State Claim — Malicious Prosecution; and 6) State Claim — Loss of Parental Consortium. Harrington Clerk's No. 1. On May 4, 2005, Plaintiff Curtis W. McGhee, Jr. ("McGhee"), filed a similar action against Pottawattamie County, Council Bluffs, Hrvol, Richter, Matthew Wilber ("Wilber"), Larsen, Brown, and David Dawson ("Dawson"), alleging thirty-two counts, including § 1983 violations; Malicious Prosecution; False Arrest and Imprisonment; Intentional Infliction of Emotional Distress; Conspiracy; Unconstitutional Customs and Policies; and Defamation. McGhee Clerk's No. 1.
On October 10, 2006, having previously consolidated both of the above-captioned cases, along with a defamation case filed by Harrington, for purposes of discovery, United States Chief Magistrate Judge Thomas Shields ordered the trials of both cases consolidated. The Magistrate Judge ordered that McGhee's defamation claim be consolidated with Harrington's defamation and slander claims made in Case No. 4:03-cv-90616, and that trial on those matters should be bifurcated from the trial on Harrington and McGhee's various constitutional and other state law claims. See McGhee Clerk's No. 103; Harrington Clerk's No. 97 (Order Consolidating Cases for Trial) ("[T]he underlying facts and the common thread throughout the testimony of all liability witnesses who will testify is essentially the same.").
Currently pending before the Court are several motions, including Motions for Summary Judgment, filed by Defendants Pottawattamie County, Hrvol, Richter, and Wilber, in each of the above-captioned actions (McGhee Clerk's No. 95; Harrington Clerk's No. 93); a Motion for Partial Judgment on the Pleadings, filed by Defendants Larsen, Brown and the City of Council Bluffs in the Harrington case (Clerk's No. 90); a Motion for Judgment on the Pleadings, filed by Defendants Dawson and the City of Council Bluffs in the McGhee case (Clerk's No. 99); and a Motion for Judgment as a Matter of Law, filed by Defendants Larsen, Brown, and the City of Council Bluffs in the McGhee case (Clerk's No. 100). Each Plaintiff has resisted the respective motion and the matters are fully submitted. In light of the fact that both cases arise from fundamentally the same factual backgrounds, and in light of the fact similar arguments are raised in each of the motions, the Court finds it prudent to deal with all pending motions in one order.
Additionally pending before the Court is McGhee's Motion for Leave to File Surreply Brief on County and Prosecutors' Motion for Summary Judgment (Clerk's No. 133). Defendants filed a resistance to the Motion and a Request to Strike the Surreply accompanying it (Clerk's No. 137). Defendants argue that the Surreply is redundant and merely continues arguing points raised in McGhee's resistance. While admittedly the Local Rules do not provide for the filing of a surreply, they also do not prohibit the consideration of a surreply in the Court's discretion. Having reviewed the surreply, filed in response to Defendants' Reply Brief, the Court finds that consideration of the document will aid the Court in resolution of the pending Motions for Summary Judgment. Accordingly, McGhee's Motion for leave to file the document is GRANTED.
On approximately July 5, 1977, Captain John Schweer ("Schweer") retired from the Council Bluffs, Iowa Police Department. On or about July 12, 1977, Schweer went to work as a night security guard for three car dealerships in Council Bluffs: McIntyre Oldsmobile; Bluffs Toyota; and O'Neill Datsun.2 At around 9:30 a.m. on Friday, July 22, 1977, Schweer's body was found on the railroad tracks near O'Neill Datsun. Schweer had died of a 12-gauge shotgun wound to the right chest. A lone 12-gauge shotgun shell was found on the premises of McIntyre Oldsmobile. The shell was a green Remington paper shotgun shell containing size # 4 shot, the same size pellets found in Schweer's body. Additionally, the live shell found at McIntyre Oldsmobile had paper wadding, a component that Remington stopped using in approximately 1966, and similar to that found at the murder scene.
Defendants Brown and Larsen, detectives with the Council Bluffs police department at the time of the murder, were assigned as lead investigators on the Schweer murder. County Attorney Richter and Assistant County Attorney Hrvol worked closely with Brown, Larsen, and the Council Bluffs Police Department during the investigation, and both participated in witness interviews prior to any arrests being made in the case.3
Early in the Schweer investigation, Defendants learned that, on or about July 20, 1977, Schweer had written a note to McIntyre Oldsmobile employee David Edwards, stating that he had witnessed a man trying to get into one of the trucks on the lot the night before. When Schweer approached the man, the man ran away. Schweer recommended that flood lights be placed in that portion of the dealership lot. Additionally, Defendants learned that Schweer had a conversation with Council Bluffs Police Officer Ron Cady in the early morning hours of July 21, 1977. Schweer told Cady that he had seen a man carrying what he thought was a rifle or a car jack at O'Neill Datsun, and that he believed the man and his dog were still in the area.
Plaster casts of footprints and dog prints were taken in the area around Schweer's body following the murder. On July 23, 1977, Council Bluffs Police Officer Richard Moore reported that he and Officer O.G. Chapin had found shoe and dog prints west of the area where Schweer's body was found that were of the same type and shape as those found at the crime scene. Moore also noted that a fit person could get from the murder scene and completely across the nearby I-29 interstate in four minutes.
On July 25, 1977, Brown wrote a report of an interview with James Burke ("Burke"), an employee at the Northwestern Bell office located due west of where Schweer's body was found. Brown reported that Burke told police that he had seen a man of average build running in a westerly direction between the Northwestern Bell building and I-29 on July 19, 1977, at about 11:30 p.m. According to Burke, the man was wearing overalls, and had a shotgun and a dog with him. Burke also reported that Schweer drove up to him that same evening and asked if he had seen a man running in the area. A July 28, 1977 report by Council Bluffs Police Sergeant Larry Williams states that when Williams and Richter reinterviewed Burke, they obtained substantially the same information as Brown had reported.
When Larsen heard that a man with a dog had been seen in the area of Schweer's murder, he thought of Charles Richard Gates ("Gates"). Gates was a white male, aged approximately 47, whose sister, Marcella Oamek was married to a Captain on the Council Bluffs Fire Department. Gates was known to carry a shotgun while walking his dogs. Council Bluffs police picked up Gates and photographed him. A police report states that Gates was questioned by Council Bluffs police officers a few days after the murder, but there is no report detailing that interview.
A July 28, 1977, police report reflects that Council Bluffs police, along with Richter, interviewed David Waide ("Waide"), who worked in the area of the murder. Waide was shown a photograph of Gates and positively identified him as the man Waide saw walking his dogs in the area. Waide had last seen Gates on July 19, 1977. Another report of the same date reflects that Council Bluffs Police Officer L.L. Diamond and Hrvol canvassed the...
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