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Moses-El v. City and County of Denver

United States District Court, D. Colorado

March 25, 2019



          Marcia S. Krieger, Senior Judge.

         THIS MATTER comes before the Court pursuant to: 1) the Motion to Dismiss brought by Defendants Morrissey, Benedetti, Whitley, and Kimbrough (collectively, “the DA Defendants”) (# 57), Mr. Moses-El's response (# 80) the DA Defendants' reply (# 88); 2) the Motion to Dismiss brought by Defendants City and County of Denver (“Denver”) and Brown-Dressel (“Dr. Brown”) (# 62), Mr. Moses-El's response (# 81), and Dr. Brown's reply (# 87); and 3) the Motion to Dismiss brought by Defendant Estate of James Huff (hereafter “Mr. Huff” or “the Estate, ” as applicable) (# 86), Mr. Moses-El's response (# 95), and the Estate's reply (#103).


         The operative pleading is Mr. Moses-El's Amended Complaint (# 47), a formidable document - 113 pages and 451 numbered paragraphs. It tells a tragic story, but because much of the story is not pertinent to the issues presented, the Court is required to strip away rhetorical flourishes, conclusory statements and threadbare recitals in evaluation of the pleading under Fed.R.Civ.P. 12(b)(6). Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). Having done so, the Court finds that the remaining pertinent, well-pled facts follow.

         On the evening of August 15, 1987, an individual identified as T.S. was assaulted and violently raped in her apartment. ¶ 45. In her initial contacts with police, she identified her attacker as one of three possible men, L.C. Jackson, (hereafter, “Mr. Jackson”), Earl Jackson, or a man named Darnell. ¶ 54. A few days later, T.S. had a dream in which she re-lived the attack. She awoke from that dream convinced that it was Mr. Moses-El who attacked her. ¶ 56. T.S. then contacted Denver police and formally accused Mr. Moses-El.

         Mr. Huff, then a detective on the Denver police force, investigated the attack on T.S. He was skeptical of the accuracy of T.S.'s identification of Mr. Moses-El, and advised the Denver District Attorney's office of that skepticism. ¶ 64. Nevertheless, Denver police chose to focus on T.S.'s accusations, and did not investigate L.C. Jackson or the other individuals initially identified by T.S. ¶ 67. On August 18, 1987, Mr. Huff and other members of the Denver police arrested Mr. Moses-El for the attack. 89.

         On or about October 7, 1987, Dr. Brown reported the results of blood and semen testing taken from the rape kit of T.S. revealed the presence of an O blood type, and that Mr. Moses-El's blood type was B. Dr. Brown reported this information to Mr. Huff, but opined that “the tests are not conclusive either way.” ¶ 97. The Amended Complaint alleges that, because of the sensitivity of the test she used and biological characteristics of Mr. Moses-El, Dr. Brown should have recognized that the blood tests were not inconclusive, but instead exculpated Mr. Moses-El. ¶ 107. Dr. Brown testified at Mr. Moses-El's trial in 1988 that the rape kit revealed the presence of an O blood type and that Mr. Moses-El had a B blood type, but Dr. Brown stood by her conclusion that the testing was inconclusive because, she believed, it was possible that the type-O blood could have come from T.S. instead. ¶ 113. Mr. Moses-El contends that, with the technology available in 1988, Dr. Brown could have readily concluded that it was highly unlikely (i.e. only a 7% chance) that he was the attacker. ¶ 115. Therefore, Mr. Moses-El alleges that Dr. Brown's “mischaracterization” of the blood evidence “was malicious.” ¶ 118. He also contends that Dr. Brown should have addressed the inconclusiveness of the blood testing by requesting authorization to conduct a DNA test, but she did not. ¶ 122.

         On April 8, 1988, Mr. Moses-El was convicted at trial and on March 17, 1989, he was sentenced to 48 years in prison. ¶ 132. Mr. Moses-El commenced a series of collateral attacks on his conviction, and in 1993, the Colorado Court of Appeals inquired whether the blood and semen samples taken from T.S. were still available for DNA testing. ¶ 145. Mr. Moses-El's counsel and the Denver DA's office reached an agreement that the samples would be preserved by the Denver Police Department. ¶ 147. At the request of Mr. Whitley, a Denver DA overseeing Mr. Moses-El's case in July 1995, an employee of the Denver Police Department marked samples relating to Mr. Moses-El's case with the note “DO NOT DESTROY” and logged the existence of the sample in the Police Department's computer. ¶ 153. Nevertheless, in October 1995, Mr. Huff approved a request by police staff to destroy a collection of evidence, including the samples in question, overlooking the notation that the samples should be preserved. ¶ 159. The samples were destroyed in December 1995, right around the time when Mr. Moses- El and Mr. Whitley were preparing to have the samples submitted to an outside lab for further testing. ¶ 171, 175.

         In 2007, a Denver Post investigation highlighted Mr. Moses-El's case in conjunction with a story about the destruction of DNA samples by the Denver Police Department. ¶ 213. Members of Colorado's legislature proposed legislation to address situations like Mr. Moses-El's where potentially exculpatory evidence was destroyed. ¶ 220. Mr. Morrissey, Denver's District Attorney, and Mr. Whitley both lobbied against the bill. ¶ 225, 228. The Amended Complaint contends that Mr. Morrissey made false statements to legislators and the public regarding certain aspects of Mr. Moses-El's case, such as that T.S. had not previously identified others as her attackers or that she had delayed in identifying Mr. Moses-El. ¶ 227. The Amended Complaint does not clearly assert, but the Court assumes the proposed legislation did not pass.

         In April 2012, Mr. Jackson sent a letter to Mr. Moses-El, confessing that he had “a lot on [his] heart” and inviting Mr. Moses-El to having investigators contact him. ¶ 232. Mr. Jackson subsequently told investigators that he had been T.S.'s attacker.[1] ¶ 233. Mr. Moses-El moved to vacate his conviction based upon Mr. Jackson's confession, but Ms. Benedetti, now the D.A. handling Mr. Moses-El's case, opposed the motion, believing Mr. Jackson's confession to be false and opportunistic. ¶ 237. The state court granted Mr. Moses-El an evidentiary hearing on his motion in September 2014. ¶ 236. Ms. Benedetti suggested that the state court appoint counsel for Mr. Jackson, as his testimony might implicate his Fifth Amendment rights; Mr. Moses-El contends that the likelihood that Denver could prosecute Mr. Jackson for any crime relating to T.S. at that point in time was “at best, a stretch.” ¶ 239, 240. Mr. Moses-El contends that Ms. Benedetti was hoping that, with the assistance of counsel, Mr. Jackson might elect not to testify in favor of Mr. Moses-El. ¶ 241.

         Prior to the evidentiary hearing, Ms. Benedetti and Mr. Carroll, an investigator with the D.A.'s office, visited Mr. Jackson and advised him that he could face charges of perjury if he testified falsely at the evidentiary hearing. ¶ 243, 248. Mr. Jackson wrote a note recanting his admission to T.S.'s attack. ¶ 249. Nevertheless, at the evidentiary hearing in July 2015, Mr. Jackson (represented by counsel) testified and admitted to attacking T.S. ¶253, 254. He also testified that he wrote the recantation note because he felt intimidated by Ms. Benedetti and Mr. Carroll. ¶ 259. On December 15, 2015, the state court vacated Mr. Moses-El's conviction, freeing him after 28 years of wrongful incarceration. ¶ 263. At that time, Ms. Kimbrough, a spokesperson for the D.A.'s office, made various statements to the press and others that falsely characterized various items of factual evidence, including contending that Mr. Jackson's confession was untruthful. ¶ 265.

         At this point in time, the D.A.'s office was considering whether to re-try Mr. Moses-El for the attack on T.S. The D.A.'s office ultimately elected to re-try Mr. Moses-El for the attack, and that trial occurred in November 2017. ¶ 335. The Amended Complaint references at least three items of evidence that the prosecution put forward at the second trial. Dr. Brown testified as before, that the blood test results were inconclusive. ¶ 354. The prosecution also presented the testimony of Floyd Howard, a witness who had encountered T.S. shortly after she had been assaulted. ¶ 314. Mr. Carroll and Ms. Benedetti had spoken with Mr. Howard, in August 2016, at which time Mr. Howard informed them that he had been “racking his brain” to remember the incident 28 years earlier, and that he recalled “that T.S. had called out the name of ‘Bubba'” - a variation on Mr. Moses-El's nickname - “as the one who had assaulted her.” ¶ 314. Mr. Moses-El's counsel cross-examined Mr. Howard on this recollection, pointing out that, many years earlier, Mr. Howard had stated no recollection of that identification and that, when talking more recently to Mr. Moses-El's investigation, Mr. Howard rated his confidence in such a recollection as a “1 out of 10, ” whereas now, during the second trial, he rated that confidence as a “10 out of 10.” ¶ 318. The D.A. also called Stephanie Burke, Mr. Moses-El's then-wife and an acquaintance of T.S.'s, to testify. ¶ 324. The prosecution's theory was that Ms. Burke was having a disagreement with T.S. in the time period preceding the assault and that Ms. Burke directed Mr. Moses-El to attack T.S. ¶ 328. The Amended Complaint primarily takes issue with the fact that the D.A. offered immunity to Ms. Burke to testify, so as to overcome her invocation of the spousal privilege, when the D.A. did not similarly offer immunity to Mr. Jackson. ¶ 326. Mr. Moses-El was acquitted at the second trial. ¶ 357. This lawsuit followed.


         Based on these facts, Mr. Moses-El asserts seven claims for relief, all arising pursuant to 42 U.S.C. § 1983: (i) a claim sounding in malicious prosecution under the 4th and 14thAmendments to the United States Constitution, against Defendants Morrissey, Benedetti, Kimbrough, Carroll, Brown, and the Estate, in that they lacked probable cause to charge Mr. Moses-El in both the 1988 and 2016 prosecutions; (ii) a claim that Mr. Whitley and Mr. Huff violated Mr. Moses-El's rights under the 14th Amendment - the right in question is not identified but the Court will assume it is the right to substantive due process - by failing to prevent the destruction of the DNA samples and other evidence; (iii) a claim that Ms. Benedetti and Mr. Carroll violated Mr. Moses-El's 14th Amendment rights - again, the right in question is not specified, but the Court will assume it is the right to substantive due process - by “manfactur[ing] false inculpatory evidence” used at the second trial, specifically that they “intimidated” Mr. Jackson, via “threat[s] that they could file further charges against him, ” into recanting his confession, by “persuad[ing]” Mr. Howard “to remember” an identification made by T.S. that Mr. Howard was previously unsure of, and by “willfully and wantonly” giving Ms. Burke immunity “for the sole purpose of fabricating” evidence that Ms. Burke had directed Mr. Moses-El to commit the attack; (iv) a claim that Denver violated his 14th Amendment rights - presumably substantive due process - by maintaining a custom or policy of “pursuing malicious prosecutions to cover up wrongful convictions, ” of mishandling evidence in various respects, and of failing to train or supervise its forensic laboratory personnel; (v) a claim that Defendants Morrissey, Benedetti, Kimbrough, and Carroll conspired to deprive him of unspecified rights under the 4th and 14th Amendments, in that they “reached an agreement amongst themselves to use their positions of authority and influence to spread lies about the 1987 crime . . . and to prosecute him through any means possible”; (vi) a claim that all of the individual defendants violated his substantive and procedural due process rights under the 14th Amendment by performing various acts (i.e. destroying or withholding evidence, manufacturing evidence, refusing to investigate alternative suspects, and misrepresenting the results of blood tests, among others) “ensuring that Mr. Moses-El's prosecution and criminal trials lacked fundamental fairness”; and (vii) a claim that Mr. Morrissey violated his substantive and procedural due process rights under the 14th Amendment by failing to adequately supervise and train D.A.'s office staff, such as Ms. Benedetti, Ms. Kimbrough, and Mr. Carroll.

         All of the Defendants have moved to dismiss Mr. Moses-El's claims, raising a wide range of arguments. In the interests of efficiency, the Court will forego a recitation of the various arguments each Defendant have made, simply address the pertinent issues in its analysis.


         The Court begins is analysis with challenges to the sufficiency in pleading of Mr. Moses-El's claims under Fed.R.Civ.P. 12(b)(6). Denver expressly raised this issue with regard to claims against it. It is also an essential consideration with regard to every claim brought against the individual Defendants, because each has invoked the defense of qualified immunity, and the first prong of the qualified immunity analysis requires an examination of the sufficiency of the constitutional claim under the standards that govern Rule 12(b)(6). See Pearson v. Callahan, 555 U.S. 223, 232 (2009).

         A. Standard of review

         In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-pleaded allegations in the Amended Complaint as true and view those allegations in the light most favorable to the nonmoving party. Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1149 (10th Cir. 2001) (quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). The Court must limit its consideration to the four corners of the Amended Complaint, any documents attached thereto, and any external documents that are referenced in the Amended Complaint and whose accuracy is not in dispute. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir. 2001).

         A claim is subject to dismissal if it fails to state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To make such an assessment, the Court first discards those averments in the Complaint that are merely legal conclusions or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678-79. The Court takes the remaining, well-pleaded factual contentions, treats them as true, and ascertains whether those facts (coupled, of course, with the law establishing the requisite elements of the claim) support a claim that is “plausible” or whether the claim being asserted is merely “conceivable” or “possible” under the facts alleged. Id. What is required to reach the level of “plausibility” varies from context to context, but generally, allegations that are “so general that they encompass a wide swath of conduct, much of it innocent, ” will not be sufficient. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).

         B. ...

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