Winslow v. Smith

• Decision Date: 25 November 2009
• Docket Number: No. 4:09CV3147.,4:09CV3147.
• Citation: 672 F.Supp.2d 949
• Parties: Thomas W. WINSLOW, Plaintiff, v. RICHARD T. SMITH, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

672 F.Supp.2d 949

Thomas W. WINSLOW, Plaintiff, v. RICHARD T. SMITH, et al., Defendants.

No. 4:09CV3147.

United States District Court, D. Nebraska.

November 25, 2009.

COPYRIGHT MATERIAL OMITTED

Douglas J. Stratton, Stratton, Ptak Law Firm, Norfolk, NE, Robert F. Bartle, Jeffry D. Patterson, Bartle, Geier Law Firm, Lincoln, NE, for Plaintiff.

Jennifer M. Tomka, Patrick T. O'Brien, Paul L. Douglas, Richard L. Boucher, Boucher Law Firm, Lincoln, NE, for Defendants.

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

In 1989, the plaintiff, Thomas W. Winslow, pleaded no contest to aiding and abetting second degree murder in connection with the 1985 death of Helen Wilson in Beatrice, Nebraska. One of his five criminal co-defendants, Joseph E. White, was tried and convicted of first degree murder. White's conviction was overturned in 2008 after DNA testing conclusively showed that blood and semen found at the crime scene belonged to Bruce Allen Smith, who had no association with White, Winslow, or the other four persons who stood convicted for the Wilson homicide. Winslow was granted a full pardon by the Nebraska Board of Pardons on January 26, 2009.¹

Winslow filed this civil rights action on July 15, 2009.² Named as defendants are: (1) Richard T. Smith, the county attorney for Gage County, Nebraska; (2) Burdette Searcey, a Gage County deputy sheriff; (3) Gerald Lamkin, a Gage County deputy sheriff; (4) Kent Harlan, a Gage County deputy sheriff; (5) Mark Meints, a Gage County deputy sheriff; (6) Wayne R. Price, Ph.D., a Gage County reserve deputy and consulting psychologist; (7) Jerry O. DeWitt, the sheriff of Gage County; (8) the Gage County Sheriff's Office; (9) the Gage County Attorney's Office; and (10) the County of Gage, Nebraska. All individual defendants are sued both in their personal and their official capacities.

Winslow alleges that he "was unconstitutionally arrested, imprisoned and prosecuted for a rape and murder that he did not commit. Defendants solicited, fabricated, manufactured and coerced evidence of an ever-changing story, which rarely, if ever, coincided with the immutable physical evidence at the scene of the crime." (Filing 1, p. 2.) "Defendants willfully and recklessly caused witnesses and WINSLOW's alleged accomplices to provide false evidence and testimony against WINSLOW by providing each such person, each and every necessary fact that defendants deemed incriminating, and by conducting all interviews with overtly leading and suggestive questioning, clearly designed to produce a story consistent with the false narrative defendants decided was the story of the homicide that would be presented in court. WINSLOW, as well as each of his alleged accomplices, was told that they could either provide evidence consistent with defendants' adopted false narrative of the Wilson homicide, or they would face prosecution for first-degree murder and life imprisonment or execution in the electric chair." (Id.) "Defendants knew that some of WINSLOW's alleged accomplices were of low intelligence, diagnosed with personality disorders, and had received counseling, psychological services, or special educational services in the past. Defendants used their knowledge of such mental conditions to overbear their will and coerce false testimony against WINSLOW." (Id., p. 3.) "Defendants solicited, fabricated, manufactured and coerced evidence that was demonstrably unreliable, misleading, false and failed to comport with the known immutable evidence of the Wilson homicide for the sole purpose of justifying the arrest, trial, conviction and incarceration of WINSLOW, when if defendants had not been deliberately indifferent to WINSLOW's constitutional rights, [they] would have known that WINSLOW was actually innocent of any involvement in the murder of Helen Wilson." (Id., ¶ 47.)

Winslow further alleges that he "has always maintained that he was not involved in the Wilson homicide, and he did not testify for the prosecution at the trial of Joseph E. White. Nonetheless, on December 8, 1989, WINSLOW pled no contest to a charge of aiding and abetting second-degree murder. WINSLOW's plea was solely the result of defendants' coercion. WINSLOW knew that White had been convicted of first-degree murder based on fabricated and manufactured evidence, as well as false testimony and confessions. WINSLOW knew, and was told by defendants, that the same evidence used to convict White would be used to convict him of first-degree murder if he did not accept a plea deal." (Id., pp. 2-3.)

It is claimed that the defendants' actions "constitute unreasonable seizure of WINSLOW in violation of the Fourth and Fourteenth Amendments to the federal Constitution[;] . . . deprived WINSLOW of his liberty without due process of law in violation of the Fifth and Fourteenth Amendments to the federal Constitution[;] . . . deprived WINSLOW of his right to a speedy public trial by an impartial jury in violation of the Sixth and Fourteenth Amendments to the federal Constitution [and;] . . . constitute deliberate infliction of cruel and unusual punishment upon WINSLOW regarding his incarceration . . . for a crime he did not commit in violation of the Eighth and Fourteenth Amendments to the federal Constitution." (Id., ¶ 49.) The complaint also contains a conspiracy count and a claim that the County, the County Sheriff's Office, and the County Attorney's Office had in effect certain policies, practices, and customs that resulted in the alleged constitutional violations.

The defendants have moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). The defendants contend that:

1. The case is barred by the applicable statute of limitations and must be dismissed;

2. The plaintiff cannot recover against defendants Gage County or the individual Defendants in their official capacities under 42 U.S.C. § 1983 using a theory of respondeat superior;

3. Defendants Gage County Sheriff's Office and Gage County Attorney's Office are not suable entities under Nebraska law;

4. Defendant [S]mith is entitled to absolute prosecutorial immunity;

5. The complaint fails to state a cause of action against Defendant DeWitt 6. Malicious prosecution is not an action that can be brought pursuant to 42 U.S.C. § 1983;

7. Plaintiff's complaint fails to state a cause of action against the individual defendants; and

8. This court lacks pendant [sic] jurisdiction over any state law tort claims.

(Filing 31.)

I. BACKGROUND

Winson's complaint is 34 pages long and includes the following history of the underlying criminal case:

At approximately 9:30 a.m. on February 6, 1985, Helen Wilson's sister discovered her body in the living room of her apartment located at 212 N. 6th Street, Beatrice, Nebraska. The Beatrice Police (BPD) initiated an examination of the crime scene, and an investigation of the circumstances of Wilson's death. The [Gage County Sheriff's Office (GCSO)] became involved in the investigation of Wilson's death on this same day. Eventually, the Nebraska State Patrol (NSP) and the Federal Bureau of Investigation (FBI) would become involved in the investigation. SMITH and his office, the [Gage County Attorney's Office (GCAO)], worked closely with both the BPD and the GCSO during this initial investigatory phase.

Examination of Wilson's apartment building indicated that the assailant gained entry to Wilson's apartment by prying the doorstop from the doorframe and slipping the lock. The residents of the apartment building reported that the hall lights for the building were always on. However, on the morning of February 6, the hall lights were off and the furnace to one of the apartments was not working. Examination of the basement utility room indicated that the hall lights had been turned off at the fuse box in the basement. The [sic] two of the apartment building residents recalled coming home and seeing the hall lights on around 12:15 a.m. on February 6. The last known person to see Helen Wilson alive was her son Darrell Wilson, who left Wilson's apartment at approximately 9:45 p.m. on February 5.

Examination of Wilson's apartment indicated that a struggle occurred in her bedroom, as evidenced by considerable disarray and a large amount of dried blood. However, in the living room where Wilson's body was discovered, there was little evidence of a struggle and virtually no evidence of dried blood. There were defensive cuts to Wilson's hands, and a steak knife similar to knives found in Wilson's kitchen was found in the bedroom. Wilson was discovered lying on her back on the floor near the sofa with an afghan wrapped tightly around her face, and her hands loosely bound in front of her with a towel. Her nightgown was pulled up exposing her from the waist down. Her underpants had been removed without damage and placed on the sofa. Wilson was wearing booties and calf-length nylons that had been neatly rolled down to her ankles. Found in the apartment was a significant amount of cash — $1,180.00 in twenties, fifties and one hundred dollar bills, as well as checks and several large money market certificates.

Wilson's autopsy indicated that the cause of death was suffocation due to the afghan wrapped tightly around her head and stuffed into her mouth. She also suffered a fractured sternum, fractured left fifth and sixth rib, and a fractured left humorous near her elbow. Wilson had been sexually assaulted, both vaginally and anally, with penetration occurring most likely after Wilson's death. An FBI analysis of the crime scene evidence and investigation concluded that robbery was not the motive for the crime. The FBI report also concluded; "We can state with almost total certainty that this crime was committed by one individual acting alone."

Examination of the blood recovered from Wilson's bedroom and the semen recovered from Wilson's body indicated that the assailant had type B blood and was a non-secretor of blood group substances in...