Powell v. (1) Robert Bradley Miller

• Decision Date: 21 April 2015
• Docket Number: Case Nos. CIV–2010–01294 D,CIV–2010–01295 D.
• Parties: Paris LaPriest POWELL, Plaintiff, v. (1) Robert Bradley MILLER, individually, (2) Robert Bradley Miller, in his official capacity; (3) The State of Oklahoma; (4) Durbin, Larimore and Bialick, a professional corporation, Defendants. Yancey Lyndell Douglas, Plaintiff, v. (1) Robert Bradley Miller, individually, (2) Robert Bradley Miller, in his official capacity; (3) The State of Oklahoma; (4) Durbin, Larimore and Bialick, a professional corporation, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

104 F.Supp.3d 1298

Paris LaPriest POWELL, Plaintiff,

v.(1) Robert Bradley MILLER, individually, (2) Robert Bradley Miller, in his official capacity; (3) The State of Oklahoma; (4) Durbin, Larimore and Bialick, a professional corporation, Defendants.

Yancey Lyndell Douglas, Plaintiff,

v.(1) Robert Bradley Miller, individually, (2) Robert Bradley Miller, in his official capacity; (3) The State of Oklahoma; (4) Durbin, Larimore and Bialick, a professional corporation, Defendants.

Case Nos. CIV–2010–01294 D

CIV–2010–01295 D.

United States District Court, W.D. Oklahoma.

Signed April 21, 2015.

Mark H. Barrett, Mark H. Barrett Law Office, Norman, OK, Stephanie M. Lorance, McLendon & Murphy PC, Oklahoma City, OK, for Plaintiffs.

Kayce L. Gisinger, Goolsby Proctor Heefner & Gibbs PC, Murray E. Abowitz, Abowitz Timberlake & Dahnke PC, Richard N. Mann, Victoria D. Tindall, District Attorney's Office, Wilson D. McGarry, Oklahoma City, OK, for Defendants.

ORDER

TIMOTHY D. DeGIUSTI, District Judge.

Before the Court are the motions for summary judgment of Plaintiff Paris LaPriest Powell (“Powell”) [Doc. No. 97, Case No. CIV–2010–1294–D], and Defendant Robert Bradley Miller (“Miller”) [Doc. No. 94, Case No. CIV–2010–1294–D; Doc. No. 92, Case No. CIV–2010–1295–D].¹Each party has filed respective response briefs [Docs. No. 104 and 106, Case No. CIV–2010–1294–D] and replies [Docs. No. 108 and 110, Case No. CIV–2010–1294–D], and the motions are at issue. This case arises out of the prosecution, conviction, and incarceration of Powell and Yancey Lyndell Douglas (“Douglas”) for the 1993 shooting death of Shauna Farrow and wounding of Derrick Smith, as well as the Tenth Circuit's subsequent grant of their federal habeas petitions under Brady v. State of Maryland,373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Napue v. Illinois,360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States,405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

Powell seeks judgment as a matter of law that Miller violated his constitutional right to due process under 42 U.S.C. § 1983and is liable in negligence under both the Oklahoma Governmental Tort Claims Act (“GTCA”), Okla. Stat.tit. 51 § 151 et seq.,for acts in his official capacity and under common law for acts in his individual capacity. In his cross motion for summary judgment, Miller maintains Powell's § 1983claim fails as a matter of law because there is no proof of state action. For the reasons stated below, the Court denies both parties' motions.

Background and Procedural History ²

Plaintiffs bring this action pursuant to 42 U.S.C. § 1983alleging Defendants violated Plaintiffs' constitutional rights in connection with Plaintiffs' murder convictions in Oklahoma County and their subsequent incarceration.³Plaintiffs also assert pendent state law claims for negligence and malicious prosecution based on their allegedly wrongful criminal convictions.⁴They contend that Miller, the Oklahoma County assistant district attorney who prosecuted each of them, wrongfully procured their convictions by suborning perjury and suppressing exculpatory evidence. Plaintiffs further allege Miller took active steps in the years following their convictions to ensure such perjured testimony and exculpatory evidence remained concealed. Specifically, Plaintiffs insist Miller induced a witness, Derek Smith (“Smith”), who was wounded

in the shooting, to falsely identify Plaintiffs as the perpetrators of the crimes and that, in return for Smith's trial testimony, Miller agreed to assist Smith in obtaining favorable treatment in an upcoming parole hearing as well as in any future criminal matters.⁵

Plaintiffs also allege that, following their convictions and while he was still in State's employ, Miller took steps to fulfill his part of the agreement with Smith by influencing other prosecutors to file reduced charges or otherwise secure leniency for Smith in criminal matters unrelated to Plaintiffs' cases.⁶Plaintiffs insist Miller's purpose in so doing was to ensure Smith would continue to conceal the false nature of his trial testimony as well as both the fact and nature of his quid pro quowith Miller. Plaintiffs further contend Miller persisted in this wrongful conduct after he left the Oklahoma County District Attorney's office for private practice at the law firm of Durbin, Larimore and Bialick in December, 1998.⁷Plaintiffs maintain that without Smith's testimony, Miller would have had insufficient evidence to continue his prosecution or justify their continued incarceration.⁸

In an affidavit dated May 24, 2001, Smith recanted his identification of Douglas and Powell as the shooters and asserted, contrary to his denials at each trial, that he had received Miller's assistance in exchange for his testimony.

In affirming and granting habeas relief, the Tenth Circuit found, inter alia,that Plaintiffs' convictions were based on Smith's false testimony; Miller failed to correct Smith's false statements at trial; a tacit testimony-for-intervention agreement existed between Miller and Smith, which Miller both failed to disclose at trial and took active steps to conceal thereafter; and Miller failed to produce certain other potentially exculpatory materials to defense counsel. The Tenth Circuit concluded Miller's misconduct was willful and intentional, violated Brady v. State of Maryland,373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Napue v. Illinois,360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1963), and Giglio v. United States,405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and was “akin to a fraud on the federal habeas courts.” Douglas v. Workman,560 F.3d 1156, 1192–93 (10th Cir.2009). After sixteen years of incarceration, the Oklahoma County District Attorney dismissed murder charges against Douglas and Powell on October 2, 2009 and, citing insufficient evidence, declined to retry either Plaintiff.

With respect to previous summary judgment proceedings, in a prior Order the Court denied Douglas's motion for summary judgment on State's liability in negligence and granted State's opposing motion, holding State is not liable in negligence to either Plaintiff as a matter of law.⁹In the instant motions, Powell moves for summary judgment against both State and Miller on the issue of negligence. Like Douglas, Powell insists that because the Oklahoma Supreme Court in disciplinary proceedings against Miller accepted as true all facts material to Plaintiffs' negligence claims, the doctrine of collateral estoppel applies to prevent the relitigation of the negligence issue. Powell also seeks judgment as a matter of law that Miller is liable for civil rights violations under 42 U.S.C. § 1983. Miller, for his part, advocates the opposite conclusion in his motion, insisting Powell cannot show the requisite state action to establish a § 1983claim and Miller is thus entitled to summary judgment on Plaintiffs' civil rights claims.

Undisputed Facts ¹⁰

On July 7, 1995, the day after Douglas's murder trial concluded with the jury sentencing him to death, Miller wrote a letter to the Oklahoma Pardon and Parole Board urging it to grant pre-parole status to Smith on the ten-year sentence he was serving for an earlier cocaine-trafficking charge, Oklahoma County Case No. CF–92–6772.¹¹In the letter, Miller declares his “office gave [Smith] no special treatment in his case. However, [Smith] was required to testify at [the] preliminary hearing and the trial of Yancey Douglas.... [H]e has fully cooperated and truthfully testified in both instances.” SeeMiller Letter [Doc. No. 97–3]. Miller further maintains that “[w]ithout Derrick [Smith], Douglas would probably not have been convicted” and that Smith “understands that he will be required to testify in Paris Powell's trial.” Id.After stating his belief that Smith had “earned an opportunity to reintegrate into society,” Miller closes the letter with, “I urge the Board to grant [Smith's] pre-parole status.” Id.The parole board granted pre-parole status to Smith on October 24, 1995.

Eighteen months later, on April 20, 1997, a few weeks in advance of Powell's murder trial, Smith, who was back in the custody of the Oklahoma Department of Corrections (“ODOC”) at the time, wrote the following letter to his mother asking her to contact Miller about Smith's confinement:

What's up moma Have you been calling cuz? probley not man call O dude an get that hook up to werr I can come home from the county jail or tell him he's short because i ain't gone let him put me in the cross again like he did last time, but he ain't gone do shit if you don't continue to call him and let him know whats going on it's fiftheen days before the tiral starts and i don't wanna be up on that county jail if he ain't talking write tellem, I want 365 days for helping the state to kill some body cause that's what he plans to do. Plus send me some money daddy was suppose to have sent 25 dollars 3 months ago a nigga ain't got no money but Ima let you'll go. stay own brad miller and I'll holler at you'll later love darric

SeeSmith Letter [Doc. No. 97–5] (errors in original). Three days later, on April 23, 1997, Miller called David Petite, an ODOC sentence administration officer, and wrote the following notes from their conversation: “Warden Ron Ward”; “Derrick Smith”; “coop credits”; and “with credits ? 225 days = 11/11/97.” SeeMiller Message [Doc. No. 106–1] at p. 9.

During Powell's murder trial, which commenced one week after Miller's conversation with Petite regarding Smith's sentence, Smith once again positively identified Douglas and Powell as the shooters. Miller elicited testimony from Smith to the effect that Smith was receiving nothing in return for his participation as a witness. In his closing argument to the jury, Miller declared Smith “went to prison in his own case and never asked for a thing.... [a]nd nobody interceded because he didn't want it that way.” SeeTranscript Excerpt of Closing Argument [Doc. No. 97–4]. On May 20,...