United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTIONS TO
S. Krieger, Senior Judge.
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
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.
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.
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.
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. ¶
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.
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.
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. ¶ 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.
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.
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
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.
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.
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
Standard of review
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).
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).