Walker v. Tyler County Com'n

• Decision Date: 22 May 1995
• Docket Number: Civ.A. No. 1:94-CV-143.
• Citation: 886 F. Supp. 540
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Jack Earl WALKER and Eleanor Walker, Plaintiffs, v. The TYLER COUNTY COMMISSION, Gary Keller, personally and in his capacity as Sheriff of Tyler County, Earl Robert Kendall, personally and in his capacity as a Deputy Sheriff of Tyler County, Walter Smittle, personally, Robert Hall, personally, Mack Dennis, personally, Irvin Sopher, M.D., D.D.S., personally, George Trent, personally, Ron Gregory, personally, Carl Legurskey, personally, Nicholas Hun, personally, and Dave Vancamp, personally, Defendants.

886 F. Supp. 540

Jack Earl WALKER and Eleanor Walker, Plaintiffs, v. The TYLER COUNTY COMMISSION, Gary Keller, personally and in his capacity as Sheriff of Tyler County, Earl Robert Kendall, personally and in his capacity as a Deputy Sheriff of Tyler County, Walter Smittle, personally, Robert Hall, personally, Mack Dennis, personally, Irvin Sopher, M.D., D.D.S., personally, George Trent, personally, Ron Gregory, personally, Carl Legurskey, personally, Nicholas Hun, personally, and Dave Vancamp, personally, Defendants.

Civ.A. No. 1:94-CV-143.

United States District Court, N.D. West Virginia.

May 22, 1995.

COPYRIGHT MATERIAL OMITTED

Stephen D. Herndon, Wheeling, WV, for plaintiffs.

Michael Kozakewich, Jr., Steptoe & Johnson, Clarksburg, WV, for defendants Tyler County Com'n, Gary Keller, and Earl Robert Kendall.

David L. Wyant, Shuman, Annand & Poe, Wheeling, WV, for defendants Walter Smittle, Robert Hall and Mack Dennis.

M. Richard Dunlap, Dickie, McCamey & Chilcote, Pittsburgh, PA, for defendant Irvin Sopher, M.D., D.D.S.

Harry M. Rubenstein, Kay, Casto, Chaney, Love & Wise, Morgantown, WV, for defendants George Trent, Ron Gregory, Carl Legurskey, Nicholas Hun and Dave VanCamp.

MEMORANDUM OPINION AND ORDER

KEELEY, District Judge.

This matter is before the Court on defendant Dr. Irvin Sopher's ("Sopher") motion to dismiss the claims pending against him filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The parties have fully briefed this motion in accordance with Local Rule 2.07(f) and, accordingly, the Court finds it ripe for consideration.¹ For the reasons stated below, it is ORDERED that the Court hereby GRANTS-IN-PART and DENIES-IN-PART Sopher's motion.

FACTUAL BACKGROUND

Initially, the Court notes that it can only grant Sopher's motion to dismiss if, after accepting all of the Walkers' allegations in the complaint as true, it concludes that they can prove no set of facts entitling them to relief. See e.g., Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). Accordingly, the following narration of the events giving rise to this lawsuit reflects the Walkers' version of the facts.

I.

On May 11, 1989, Jack Earl Walker ("Walker") was arrested in Tyler County for the murder of Mary Sherwood and arson of her home. He was incarcerated in the Tyler County jail until March 23, 1990, when he was found guilty of these charges and transferred to the West Virginia State Penitentiary in Moundsville, West Virginia to begin serving a life sentence.

The West Virginia Supreme Court of Appeals subsequently reversed Walker's conviction and remanded the case to Tyler County for a second trial. As a result, Walker was returned to the Tyler County jail where he remained throughout the second trial. On May 17, 1993, when this trial resulted in a hung jury, Walker was released from custody.

Thereafter, the state retried Walker again in April 1994. Pursuant to Walker's request, however, the third trial took place in Marshall County, West Virginia where, almost four years after his initial arrest, Walker was acquitted of the murder and arson charges pending against him.

On December 4, 1994 pursuant to 42 U.S.C. § 1983 and state law, Jack and Eleanor Walker ("the Walkers") filed suit in this Court against several defendants, including Sopher, for their allegedly malicious participation in Walker's prosecution. Insofar as these claims relate to Sopher, the Walkers contend that, as the Chief Medical Examiner for West Virginia during the relevant time period, Sopher played a key role in Walker's prosecution by providing false testimony and withholding and/or falsifying material evidence.

II.

Sopher first became involved in this matter on May 11, 1989, when he conducted a post mortem examination of the victim, Mary Sherwood. As part of this examination, Sopher reviewed an x-ray of Sherwood's skull and noticed what appeared to be a bullet in her head. Sopher removed fragments of this bullet and sent them to the Forensic Section of the West Virginia Department of Public Safety ("the Department") for analysis. Prior to receiving these lab results, however, Sopher verbally reported to Gary Keller ("Keller"), the former Sheriff of Tyler County, that Sherwood had died from smoke inhalation after receiving a gunshot wound to the left side of her head with what appeared to be a .38 caliber gun. Sopher never advised Walker of these initial conclusions.

The Department's analysis indicated that the bullet was not from .38 caliber gun but, rather, a Winchester Western Xpediter. Upon searching Walker's home, the police officers found neither Winchester Xpediter bullets nor .38 caliber cartridges. They did, however, find several .22 bullet cartridges.

Throughout Walker's prosecution, the state theorized that Walker had shot Sherwood with a .22 caliber gun, and, in an attempt to cover up his crime, then set her house on fire. When testifying as a witness for the state, Sopher allegedly tailored his testimony to reinforce this theory. For instance, at the first trial, Sopher declined to speculate as to the type of gun used to shoot Ms. Sherwood despite his initial conclusion that the perpetrator had used a .38 caliber gun. Moreover, he wholly neglected to testify about the Department's lab analysis, which also contradicted the state's theory.

In addition to this alleged perjury, Sopher failed to disclose much of the information obtained during his examination of the body despite a court order directing him to do so. In point of fact, prior to the first trial, Sopher provided only his final report and one photograph of Sherwood's skull, thereby depriving Walker of significant exculpatory evidence.

The judge presiding over the second trial directed Sopher to provide the court clerk with "all audio and video recordings of the autopsy, all photographs of the autopsy, all notes of the autopsy, all tests even with materials relevant to the determination of cause of death, and all notes and evidence reflecting the testing procedures used." Less than one month before the second trial was scheduled to begin, however, Walker informed the prosecution that Sopher had not complied with this order. As a consequence, the trial judge held a hearing on April 26, 1993, during which the state agreed to provide Walker with its prosecutorial file. Walker concedes that he received that file, but asserts, nonetheless, that Sopher kept various exculpatory materials in a separate investigatory file never disclosed to the defense.

At a pretrial conference held on May 15, 1993, the prosecution disclosed for the first time that Sopher had taken twelve photographic teaching slides of the autopsy as well as a number of x-rays which he had not provided to the court clerk. Sopher also had taken tissue and blood samples which he had never provided to Walker.² Finally, Sopher stated that he had recently discovered an undated hand drawn diagram of Sherwood's body which reinforced his theory that she had been shot on the left side of her head.

As part of his defense, Walker vigorously contested these conclusions at each trial, apparently arguing that Sherwood either intentionally or accidentally shot herself in the right side of her head after the fire had begun. Contrary to this theory, Sopher relied on the recently discovered diagram and testified that the x-rays of Sherwood's skull, when properly oriented in a vertical direction, proved that the wound was on the left side of the head. He further stated that he had based his conclusions on gas chromatography/mass spectrometry testing of Sherwood's blood.

The Walkers now contend that Sopher fabricated the undated drawing, incorrectly testified that the x-ray should be held in a vertical manner, and falsely represented that he had performed sophisticated and accurate testing techniques, when, in fact, Sopher had employed the far less reliable method of sulfide extraction analysis. In addition, the Walkers charge that Sopher improperly destroyed the blood and tissue samples contrary to lab protocol which required examiners to maintain such evidence until two years after the last court action involving the deceased person.

On April 17, 1994, the day before the third trial was to begin, the state disclosed a number of autopsy related materials that it had not earlier provided to Walker in the first two trials. Nonetheless, although Sopher continued to maintain that Sherwood had been shot on the left side of her head, with the benefit of this previously withheld evidence Walker was acquitted on April 23, 1994.

ANALYSIS

The precise legal theories which the Walkers intend to pursue against Sopher are not entirely clear from reading the complaint. They are apparently alleging that Sopher conspired with state officials to prosecute Walker in violation of 42 U.S.C. § 1983 by concealing exculpatory evidence and providing perjured testimony. The Walkers further contend that, under West Virginia law, Sopher committed the tort of malicious prosecution. Sopher responded to those allegations claiming that he is immune from suit under 42 U.S.C. § 1983 and, further, that the Walkers cannot state a claim for malicious prosecution under state law.

A. The State Law Claim.

In Pote v. Jarrell, 186 W.Va. 369, 412 S.E.2d 770, 774 (1991), the West Virginia Supreme Court of Appeals reaffirmed that before a plaintiff can recover for malicious prosecution, he or she must prove:

(1) that the prosecution was set on foot and conducted to its termination, resulting in plaintiff's discharge;

(2) that it was caused or procured by defendant;

(3) that it was without probable cause; and

(4) that it was malicious.

Id. (citations omitted). In such a case, the plaintiff must overcome the presumption that a criminal prosecution is supported by probable cause and has been instituted to promote the ends of justice. Id. Where the evidence is not in dispute, whether or not a defendant acted maliciously and...