Rogers v. O'Donnell

Citation737 F.3d 1026
Decision Date16 December 2013
Docket NumberNos. 12–6335,12–6336.,s. 12–6335
PartiesJames J. ROGERS, Plaintiff, Garry Murphy and Brian Hensley, Plaintiffs–Appellants/Cross–Appellees, v. Sheriff Nelson O'DONNELL, et al., Defendants, Jennifer Hall Smith and David W. Smith, Defendants–Appellees/Cross–Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)


ARGUED:Andrew J. Horne, Horne Law Office, Louisville, Kentucky, for Appellants/Cross–Appellees. Lucy A. Pett, Stoll Keenon Ogden PLLC, Lexington, Kentucky, for Appellees/Cross–Appellants ON BRIEF:Andrew J. Horne, Horne Law Office, Louisville, Kentucky, for Appellants/Cross–Appellees. Lucy A. Pett, R. Burl McCoy, Carl N. Frazier, Stoll Keenon Ogden PLLC, Lexington, Kentucky, Matthew W. Breetz, Bethany A. Breetz, Michasel M. Denbow, Stites & Harbison, PLLC, Louisville, Kentucky, for Appellees/Cross–Appellants.

Before: SILER, McKEAGUE and WHITE, Circuit Judges.


McKEAGUE, Circuit Judge.

This appeal is the remnant of litigation stemming originally from offensive, but largely consensual sexual conduct among adults, three men and one woman. Investigation by the local Sheriff Department led to grand jury proceedings, an indictment, and a criminal trial in state court. The three male participants in the escapade, all local police officers, eventually faced charges of assault and witness tampering. After they were found not guilty of the criminal charges, they commenced this action, asserting various claims against numerous persons who had been involved in the investigation and prosecution. In what appears to be the last remaining sliver of the litigation, the district court dismissed plaintiffs' claims against two prosecuting attorneys, finding them protected by absolute and qualified immunity. On appeal, plaintiffs-appellants contend the district court failed to view the record in the light most favorable to them and abused its discretion by disallowing discovery before ruling on the immunity issues. For the reasons that follow, we affirm.


Plaintiffs-appellants are Garry Murphy and Brian Hensley. At all times pertinent, they were Richmond (Kentucky) Police Officers. It is undisputed that on the night of October 26, 2009, they, along with a third officer, while off-duty, visited the Richmond apartment of April McQueen by invitation. The third officer, James J. Rogers, was a plaintiff in this action but he voluntarily dismissed his remaining claims and has not joined in this appeal. For several hours, the four adults engaged in sexual conduct that Murphy and Hensley characterize as having “included bondage and discipline, dominance and submission and sadism and masochism.”

After the encounter ended and the officers left, McQueen visited her neighbor and friend, Bobbie Judd. McQueen, who was concerned about her appearance because she was going to meet another man the following day, explained what had happened and asked Judd for an ice pack or medicine for her bloodied, swollen mouth. Judd insisted, over McQueen's reluctance, that the incident be reported to the police. Later that morning, Judd, with assistance and encouragement of another neighbor, set up a meeting at her apartment between McQueen and others. This meeting led to an investigation by the Madison County Sheriff Department. Throughout the investigation, McQueen refused to cooperate with prosecution of the men. Yet, her account of the extent to which she consented to all the acts she engaged in varied from time to time.

On October 27, 2009, McQueen gave a recorded statement at the Sheriff Department recounting the events of the prior night and maintaining that she did not want to press charges. She explained that the sexual activity was “rough,” but consensual. Only when the men wanted to urinate in her mouth did she balk. After one of them slapped her repeatedly, she assented, then vomited. This part of the episode was “over the top,” made her angry, and sickened her, but McQueen called it a “misunderstanding.” She wanted to “forget the whole damn thing.” R. 11–2, Video recording, 10/27/09 interview.

The next day, after communicating with Rogers about the incident, McQueen decided to return to the Sheriff Department to clarify her statement. She explained that the room was dark when Murphy hit her and it may have been accidental; that she was “freaked out” by the idea of swallowing urine, but nobody “forced” her; that she told them to stop, but didn't necessarily mean it; that she consented not because she was afraid the men would hurt her, but because she was afraid of disappointing them. She insisted that Rogers did not try to make her change her story; that Judd and others had pressured her into reporting the incident in the first place; and that she still wanted to drop the whole thing and forget it ever happened. R. 11–3, Video recording, 10/28/09 interview.1

In early November, McQueen was advised by defendant Assistant Commonwealth Attorney Jennifer Hall Smith that she wanted to speak with her and intended to present charges to the Madison County Grand Jury with or without McQueen's assistance. The two met, in the company of McQueen's attorney, Mary Sharp, on November 12, 2009.2 Smith confronted McQueen with the differences between her two prior statements at the Sheriff Department, on October 27 and 28, and inquired whether Rogers or the other officers had intimidated her. The recording of the interview shows that Smith did not question either the nature of the sexual conduct or the issue of consent. Her questions went to the nature and frequency of McQueen's interactions with Rogers, the apparent inconsistencies in statements made to the Sheriff Department investigators, and the nature of the injury inflicted by Murphy during the encounter.3 McQueen insisted that the officers had not threatened or intimidated her. The greater influence had come, she said, from her friend Bobbie Judd and others, including others in the Sheriff Department, who were pressuring her to bring charges. R. 11–4, Video recording, 11/12/09 interview.

On December 10, 2009, McQueen testified before the grand jury. Her testimony was roughly consistent with the second statement she made at the Sheriff Department, indicating that essentially the whole affair was consensual. On December 21, she testified a second time before the grand jury. This time, purportedly prompted by encouragement from her mother to tell the truth, McQueen clarified that she allowed the men to urinate in her mouth only because Murphy slapped her and scared her with his aggressiveness. “That part was not consensual,” she said. Further, she testified that she was still scared of Murphy and Rogers.

Later that day, defendant Commonwealth Attorney David W. Smith escorted McQueen back to the grand jury room for a meeting with Jennifer Smith and others.4 At that time, McQueen having now testified under oath that at least one act was not consensual and that she was intimidated by at least two of the men, Jennifer Smith allegedly urged McQueen to tell the truth and not to cover for the police officers. Smith also reportedly questioned whether McQueen's attorney, Mary Sharp, who customarily defended police officers, was really serving McQueen's best interests.

McQueen went on to testify before the grand jury a third time, on January 28, 2010. McQueen confirmed that her December 21 testimony was truthful and that Murphy and Rogers scared her. Yet, in addition to pressure being exerted by Rogers, McQueen testified about pressure being applied by Sheriff Department personnel as well.

The grand jury returned an indictment charging Murphy with fourth degree assault and all three officers with witness intimidation and tampering offenses. Trial was conducted in March 2010. McQueen testified at trial that all the acts between her and the officers on the night of October 26, 2009 were consensual. Insofar as this account differed from her grand jury testimony on December 21 and January 28, McQueen explained that she had felt pressured by Jennifer Smith and others. McQueen testified that Jennifer Smith “intimidated” her through her very presence, by planting seeds of doubt in her mind and undermining her trust in her attorney. All three defendants were found not guilty on all charges.

In October 2010, Rogers, Murphy and Hensley commenced this action by filing a 13–count, 33–page complaint in the District Court for the Eastern District of Kentucky. Among the numerous named defendants were the Madison County Sheriff and two subordinate officers, two of McQueen's neighbors, as well as her landlord, and the prosecutors, Commonwealth Attorneys David Smith and Jennifer Smith. The three plaintiffs asserted claims under federal and state law for malicious prosecution, abuse of criminal process, violation of privacy rights, defamation and conspiracy to violate civil rights. In lieu of an answer, the Smith defendants moved to dismiss or, in the alternative, for summary judgment. In the ruling that is the subject of this appeal, the district court awarded summary judgment to David Smith and Jennifer Smith on all claims against them based on absolute prosecutorial immunity and qualified immunity.

The district court recognized that all the allegations against the Smith defendants arose out of two meetings, one between Jennifer Smith and April McQueen on November 12, 2009, and one between both Smith defendants and McQueen on December 21, 2009. In these meetings, the Smith defendants allegedly intimidated and harassed McQueen to induce her to testify against plaintiffs in the grand jury proceedings.

In regard to the former meeting, on November 12, the district court held David Smith was entitled to summary judgment on all claims because plaintiffs had not alleged any involvement by him. The district court held Jennifer Smith was not entitled to absolute immunity for her role in the November 12 meeting, concluding that she had not met her burden of proof and...

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