ORDER

TIMOTHY D. DeGIUSTI, District Judge.

Before the Court are the motions for summary judgment of Plaintiff Paris LaPriest Powell ("Powell") [Doc. No. 97, Case No. CIV-2010-1294-D], and Defendant Robert Bradley Miller ("Miller") [Doc. No. 94, Case No. CIV-2010-1294-D; Doc. No. 92, Case No. CIV-2010-1295-D].1 Each party has filed respective response briefs [Docs. No. 104 and 106, Case No. CIV-2010-1294-D] and replies [Docs. No. 108 and 110, Case No. CIV-2010-1294-D], and the motions are at issue. This case arises out of the prosecution, conviction, and incarceration of Powell and Yancey Lyndell Douglas ("Douglas") for the 1993 shooting death of Shauna Farrow and wounding of Derrick Smith, as well as the Tenth Circuit's subsequent grant of their federal habeas petitions under Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

Powell seeks judgment as a matter of law that Miller violated his constitutional right to due process under 42 U.S.C. § 1983 and is liable in negligence under both the Oklahoma Governmental Tort Claims Act ("GTCA"), OKLA. STAT. tit. 51 § 151 et seq., for acts in his official capacity and under common law for acts in his individual capacity. In his cross motion for summary judgment, Miller maintains Powell's § 1983 claim fails as a matter of law because there is no proof of state action. For the reasons stated below, the Court denies both parties' motions.

Background and Procedural History2

Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 alleging Defendants violated Plaintiffs' constitutional rights in connection with Plaintiffs' murder convictions in Oklahoma County and their subsequent incarceration.3 Plaintiffs also assert pendent state law claims for negligence and malicious prosecution based on their allegedly wrongful criminal convictions.4 They contend that Miller, the Oklahoma County assistant district attorney who prosecuted each of them, wrongfully procured their convictions by suborning perjury and suppressing exculpatory evidence. Plaintiffs further allege Miller took active steps in the years following their convictions to ensure such perjured testimony and exculpatory evidence remained concealed. Specifically, Plaintiffs insist Miller induced a witness, Derek Smith ("Smith"), who was wounded in the shooting, to falsely identify Plaintiffs as the perpetrators of the crimes and that, in return for Smith's trial testimony, Miller agreed to assist Smith in obtaining favorable treatment in an upcoming parole hearing as well as in any future criminal matters.5

Plaintiffs also allege that, following their convictions and while he was still in State's employ, Miller took steps to fulfill his part of the agreement with Smith by influencing other prosecutors to file reduced charges or otherwise secure leniency for Smith in criminal matters unrelated to Plaintiffs' cases.6 Plaintiffs insist Miller's purpose in so doing was to ensure Smith would continue to conceal the false nature of his trial testimony as well as both the fact and nature of his quid pro quo with Miller. Plaintiffs further contend Miller persisted in this wrongful conduct after he left the Oklahoma County District Attorney's office for private practice at the law firm of Durbin, Larimore and Bialick in December, 1998.7 Plaintiffs maintain that without Smith's testimony, Miller would have had insufficient evidence to continue his prosecution or justify their continued incarceration.8

In an affidavit dated May 24, 2001, Smith recanted his identification of Douglas and Powell as the shooters and asserted, contrary to his denials at each trial, that he had received Miller's assistance in exchange for his testimony.

In affirming and granting habeas relief, the Tenth Circuit found, inter alia, that Plaintiffs' convictions were based on Smith's false testimony; Miller failed to correct Smith's false statements at trial; a tacit testimony-for-intervention agreement existed between Miller and Smith, which Miller both failed to disclose at trial and took active steps to conceal thereafter; and Miller failed to produce certain other potentially exculpatory materials to defense counsel. The Tenth Circuit concluded Miller's misconduct was willful and intentional, violated Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and was "akin to a fraud on the federal habeas courts." Douglas v. Workman, 560 F.3d 1156, 1192-93 (10th Cir. 2009). After sixteen years of incarceration, the Oklahoma County District Attorney dismissed murder charges against Douglas and Powell on October 2, 2009 and, citing insufficient evidence, declined to retry either Plaintiff.

With respect to previous summary judgment proceedings, in a prior Order the Court denied Douglas's motion for summary judgment on State's liability in negligence and granted State's opposing motion, holding State is not liable in negligence to either Plaintiff as a matter of law.9 In the instant motions, Powell moves for summary judgment against both State and Miller on the issue of negligence. Like Douglas, Powell insists that because the Oklahoma Supreme Court in disciplinary proceedings against Miller accepted as true all facts material to Plaintiffs' negligence claims, the doctrine of collateral estoppel applies to prevent the relitigation of the negligence issue. Powell also seeks judgment as a matter of law that Miller is liable for civil rights violations under 42 U.S.C. § 1983. Miller, for his part, advocates the opposite conclusion in his motion, insisting Powell cannot show the requisite state action to establish a § 1983 claim and Miller is thus entitled to summary judgment on Plaintiffs' civil rights claims.

Undisputed Facts10

On July 7, 1995, the day after Douglas's murder trial concluded with the jury sentencing him to death, Miller wrote a letter to the Oklahoma Pardon and Parole Board urging it to grant pre-parole status to Smith on the ten-year sentence he was serving for an earlier cocaine-trafficking charge, Oklahoma County Case No. CF-92-6772.11 In the letter, Miller declares his "office gave [Smith] no special treatment in his case. However, [Smith] was required to testify at [the] preliminary hearing and the trial of Yancey Douglas.... [H]e has fully cooperated and truthfully testified in both instances." See Miller Letter [Doc. No. 97-3]. Miller further maintains that "[w]ithout Derrick [Smith], Douglas would probably not have been convicted" and that Smith "understands that he will be required to testify in Paris Powell's trial." Id. After stating his belief that Smith had "earned an opportunity to reintegrate into society," Miller closes the letter with, "I urge the Board to grant [Smith's] pre-parole status." Id. The parole board granted pre-parole status to Smith on October 24, 1995.

Eighteen months later, on April 20, 1997, a few weeks in advance of Powell's murder trial, Smith, who was back in the custody of the Oklahoma Department of Corrections ("ODOC") at the time, wrote the following letter to his mother asking her to contact Miller about Smith's confinement:

See Smith Letter [Doc. No. 97-5] (errors in original). Three days later, on April 23, 1997, Miller called David Petite, an ODOC sentence administration officer, and wrote the following notes from their conversation: "Warden Ron Ward"; "Derrick Smith"; "coop credits"; and "with credits → 225 days = 11/11/97." See Miller Message [Doc. No. 106-1] at p. 9.

During Powell's murder trial, which commenced one week after Miller's conversation with Petite regarding Smith's sentence, Smith once again positively identified Douglas and Powell as the shooters. Miller elicited testimony from Smith to the effect that Smith was receiving nothing in return for his participation as a witness. In his closing argument to the jury, Miller declared Smith "went to prison in his own case and never asked for a thing .... [a]nd nobody interceded because he didn't want it that way." See Transcript Excerpt of Closing Argument [Doc. No. 97-4]. On May 20, 1997, Powell's jury convicted him on both counts and imposed the death penalty for first degree malice murder and life imprisonment for shooting with intent to kill. Miller admits he never corrected any of the statements he and Smith made to either the jury or the court in Powell's case.

On June 22, 1997, approximately one month after the conclusion of the Powell trial, Smith wrote a letter to Warden Bobby Boone of ODOC's Alford Correctional Center stating "Brad Miller the State DA should have notified you by now" regarding Smith's lost earned credits. See Smith Letter [Doc. No. 106-2] at p. 6. On June 27, 1997, Warden Boone responded to Smith by letter, confirming Miller had called him regarding Smith's situation but informing Smith the "meritorious earned credit policy ... was not intended for a reward for testifying in felony cases," so no merit days would be awarded. See Boone Letter [Doc. No. 106-2] at p. 8. Warden Boone did, however, promise to give "serious consideration to the restoration of lost [earned] credits which would discharge [Smith's] sentence." Id. On July 24, 1997, Warden Boone approved the restoration of 400 days' credit, effectively discharging Smith's sentence. See ODOC Intra-facility Assignment Form [Doc. No. 106-2] at p. 9.

Smith was arrested shortly thereafter for the October 17, 1997 shooting of Joe Shells and charged with assault with a dangerous weapon in Oklahoma County Case No. CF-98-1545. The charges against Smith were later dismissed, purportedly due to insufficient evidence of identification. In February 1998, Smith was charged in Oklahoma County Case No. CF-98-1162 with using a vehicle to facilitate intentional discharge of a firearm. The charges against Smith were again dismissed, this time due to lack of cooperation from the victims. Subsequently, on May 17, 1999, Smith allegedly beat his girlfriend with a baseball bat and was charged in Oklahoma County Case No. CF-99-3338 with felonious assault and battery with a deadly or dangerous weapon.12 His January 2001 conviction yielded a fifteen-year sentence.

On March 8, 2000, before his assault and battery trial, Smith was arrested and charged in Oklahoma County Case No. CF-00-1683 with trafficking in crack cocaine. Even though he was no longer an assistant district attorney at the time, Miller admits he contacted Clayton Niemeyer ("Niemeyer"), the assistant district attorney in charge of the case, to inform him that Smith was helpful and cooperative in a capital homicide and partially responsible for Douglas and Powell being on death row. Miller acknowledges, and documentary evidence shows, Smith's initial recommended sentence on the drug charge was thirty years. While Miller insists he did not ask or tell Niemeyer to do anything, an undated, hand-written note in the case file states, "Derrick Smith 5 to do based on cooperation w/B. Miller in Yancy [sic] Douglas murder." See Case File [Doc. No. 106-1] at p. 16. Although Miller provides some support for the fact that Niemeyer used his sole discretion in deciding the nature of the plea deal to offer Smith, the same record evidence indicates Niemeyer remembers the gist of Miller's communication being, "[Smith] helped, we couldn't have done it without him, you know, can you cut him a break?" See Niemeyer Testimony [Doc. 92-4] at pp. 8-9. On March 21, 2001, Smith pled guilty to reduced charges of possession with intent to distribute and acquiring and concealing proceeds derived from violation of the Uniform Controlled Dangerous Substances Act, OKLA. STAT. tit. 63 § 2503.1, and was sentenced to five years in ODOC custody to run concurrently with his fifteen-year sentence for assault and battery in CF-99-3338.13

While in custody for the assault and battery charge, Smith was arrested for murder stemming from a robbery in Wichita Falls, in Texas Case No. 38-193-6.14 Miller admits he contacted then-assistant district attorney Shannon Henson ("Henson"), whom he knew to be a former resident of Wichita Falls, to get information on the charges against Smith and to remind Henson that Smith had cooperated with Miller in the Douglas and Powell cases. Following Miller's phone call, Henson contacted the Wichita Falls district attorney's office and reported back to Miller. Although Miller provides support for the fact that Henson did not ask the Wichita Falls prosecutor for any favors or intervention on Smith's behalf, Henson reveals in the same record evidence, "I thought when I first talked to [Miller], he was still in the DA's office." See Henson Testimony [Doc. No. 92-4] at pp. 1177-78. Smith later entered a plea to the lesser charge of aggravated robbery and was sentenced to twelve and a half years to run concurrently with his sentence in CF-99-3338, the assault and battery case, and CF-00-1683, the drug case.

On May 24, 2001, Smith executed an affidavit recanting his identification of Douglas and Powell as the shooters and asserting he had received Miller's assistance in exchange for his testimony, contrary to his denials at both trials. See Smith Affidavit [Doc. No. 106-2] at pp. 1-4. Specifically, Smith asserted that he told Miller he was unable to identify any of the shooters that night because he was high on marijuana, drunk on grain alcohol, and it was dark outside at the time. He swore his initial identification of Powell was based on a statement someone made at the scene, rather than on his own identification. Smith stated he told Miller he could not identify either Powell or Douglas and would not testify against them unless Miller provided assistance on Smith's then-pending trafficking case. Smith further declared it was at his request that Miller contacted the parole board in 1995 and Warden Boone in 1997 to secure Smith's release from prison. Miller's assistance continued after the conclusion of both trials, according to Smith's affidavit, including when Miller dismissed assault charges against Smith in 1998 under threat by Smith that he would reveal his perjury in Plaintiffs' murder trials.

Summary Judgment Standard

Summary judgment is proper "if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine if the evidence is such that a reasonable jury could return a verdict for either party. Id. at 255, 106 S.Ct. 2505. All facts and reasonable inferences must be viewed in the light most favorable to the nonmoving party. Id. If a party who would bear the burden of proof at trial lacks evidence on an essential element of a claim, then all other factual issues concerning the claim become immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

"Movants for summary judgment bear the initial burden of demonstrating the absence of a genuine issue of material fact and entitlement to judgment as a matter of law." Silverstein v. Federal Bureau of Prisons, 559 Fed.Appx. 739, 752 (10th Cir. 2014); see also Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir.1998). If the movant carries this initial burden, the nonmovant must then go beyond the pleadings and "set forth specific facts" that would be admissible in evidence and that show a genuine issue for trial. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Adler, 144 F.3d at 671. To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein. See Fed.R.Civ.P. 56(c)(1)(A); see also Adler, 144 F.3d at 671. "The court need consider only the cited materials, but may consider other materials in the record." See Fed.R.Civ.P. 56(c)(3); see also Adler, 144 F.3d at 672. The Court's inquiry is whether the facts and evidence identified by the parties present "a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Discussion

A. Powell's Negligence Claims

Powell seeks judgment as a matter of law against both State and Miller in negligence. Concerning Powell's claim against State, the Court adopts and incorporates the same reasoning and reaches the same conclusion as it did in its Order denying Douglas's negligence claim and, for these reasons, the Court denies Powell's motion for summary judgment against State on the issue of negligence. See discussion, supra n. 9.

In order to support a claim for negligence against Miller individually, Powell "must show the existence of a duty on the part of the defendant to protect plaintiff from injury, a breach of the duty, and an injury to plaintiff proximately resulting from the breach." Tuffy's, Inc. v. City of Okla. City, 212 P.3d 1158, 1167 (Okla.2009). The showing regarding these elements which Powell sets forth in his summary judgment brief reads in its entirety:

See Powell's Motion at pp. 5-6.

It is well established under Brady that prosecutors have a constitutional duty to disclose exculpatory evidence to criminal defendants. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. In addition, the Supreme Court's Giglio decision makes it clear such evidence includes the existence of benefit-for-testimony agreements between witnesses and prosecutors. Giglio v. United States, 405 U.S. at 154-55, 92 S.Ct. at 766. Thus, the evidence Powell presents satisfies the "existence of a duty" prong of a negligence claim. The indisputable fact that Powell spent sixteen years in prison is likewise sufficient to establish the injury element of Powell's prima facie negligence case.

The question thus becomes whether the evidence Powell presents in support of the second prong of the claim, that Miller breached the duty he owed to Powell, is so one-sided that Powell must prevail as a matter of law on his negligence claim. The breach-of-duty evidence on which Powell relies is the following excerpt from Miller's deposition addressing his communications with Smith:

See Miller Deposition [Doc. No. 97-6] at pp. 64-66.

Powell insists the cited deposition testimony amounts to an admission by Miller that he gave false information to the jury and the trial court concerning the assistance he provided Smith prior to Powell's trial and that he never corrected that misinformation. The quoted language appears to relate only to the time of Powell's trial, when Miller was still in State's employ. To the extent Powell premises his negligence claim against Miller on actions Miller undertook while prosecuting Powell, it is properly viewed as an action against State. Douglas v. Miller, 864 F.Supp.2d 1205, 1220, n. 6 (W.D.Okla.2012) (citing Speight v. Presley, 203 P.3d 173, 179 (Okla. 2008)); see also Pellegrino v. State ex rel. Cameron Univ., 63 P.3d 535, 537 (Okla. 2003) (reasoning "a tort claim brought against an employee in his or her official capacity [is viewed] as an attempt to impose liability upon the governmental entity, and thus the claim must be based upon the employee having acted within the scope of his or her employment."). As such, this aspect of the negligence claim Powell is attempting to assert against Miller would be subject to the same procedural constraints of the GTCA that served to bar his negligence claim against State.

The deposition testimony Powell cites could be interpreted to be an admission by Miller that he continued to cover up his alleged fraud upon the trial court after both the conclusion of Powell's murder trial and upon entering private practice, through continued assistance to Smith. At that point in time, because Miller was no longer employed by State, this testimony could support a negligence claim against Miller individually. But the cited testimony also is subject to more than one interpretation. Indeed, a reasonable jury could conclude it simply shows Miller agreed with Smith's declaration at trial that Miller had no involvement in or influence over the drug trafficking case that predated Miller's first meeting with Smith. Viewing the testimony in the light most favorable to Miller, the non-moving party, the Court concludes it is not "so one-sided" that a jury could reach "but one reasonable conclusion," namely, that Miller breached his duty toward Powell, and Powell must prevail on his negligence claim as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). For these reasons, the Court denies Powell's motion for summary judgment against Miller on the issue of negligence.16

B. 42 U.S.C. § 1983

Two subsets of Powell's § 1983 claims, barred neither by absolute nor qualified immunity, survived Miller's motion to dismiss: (1) those founded on Miller's post-trial actions while still a State employee in which he did not act as an advocate for State; and (2) those based on Miller's alleged efforts on Smith's behalf after Miller left the District Attorney's office. Douglas v. Miller, 864 F.Supp.2d at 1215-16. By limiting his argument to the second category of claims, Miller's motion is properly viewed as one for partial summary judgment. Miller insists Powell's claim fails as a matter of law as it pertains to Miller's actions after he left State's employ because there is an absence of evidence to demonstrate Miller was acting under color of law when he contacted officials in Oklahoma and Texas to secure leniency for Smith.

Conversely, Powell argues he is entitled to summary judgment on his § 1983 claim because the undisputed facts show Miller failed to disclose during trial that he had provided assistance to Smith in exchange for his testimony in the Douglas case; that Miller continued to withhold such evidence following the conviction both while employed by State as a prosecutor and upon entering private practice; and Powell was convicted, sentenced to death, and spent sixteen years in prison as a result.

Criminal convictions obtained by presentation of known false evidence or by suppression of exculpatory or impeaching evidence violate the due process guarantees of the Fourteenth Amendment and are actionable under 42 U.S.C. § 1983. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. This is because "deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice." Giglio, 405 U.S. at 153, 92 S.Ct. at 766 (internal quotations omitted). "The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Napue, 360 U.S. at 269, 79 S.Ct. at 1177.

Establishing a Brady violation requires proof of three elements: "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). "Plaintiffs alleging a violation of § 1983 must demonstrate they have been deprived of a right `secured by the Constitution and the laws of the United States,' and that the defendants deprived them of this right acting under color of law." Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1125 (10th Cir.2000), quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 930, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Put another way, "[s]ection 1983 provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights." Howards v. McLaughlin, 634 F.3d 1131, 1139 (10th Cir.2011).

"[T]he only proper defendants in a § 1983 claim are those who represent [the state] in some capacity, whether they act in accordance with their authority or misuse it." Gallagher v. "Neil Young Freedom Concert," 49 F.3d 1442, 1447 (10th Cir.1995), (quoting Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988)) (internal quotation omitted). To implicate § 1983, the defendant's conduct must be "fairly attributable to the state." Lugar, 457 U.S. at 937, 102 S.Ct. 2744. "[P]rivate conduct, no matter how discriminatory or wrongful" is excluded from the reach of § 1983's state-action requirement. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quotations omitted).

The Tenth Circuit has identified four tests used to determine whether a private entity is acting under color of law and is thus subject to liability under § 1983: the nexus test, the public function test, the joint action test, and the symbiotic relationship test. Wittner v. Banner Health, 720 F.3d 770, 775 (10th Cir.2013), citing Johnson v. Rodrigues, 293 F.3d 1196, 1202-03 (10th Cir.2002). "If any one of the tests indicates a party is a state actor, that alone is sufficient to find the party a state actor." Anaya v. Crossroads Managed Care Sys., Inc., 195 F.3d 584, 596 (10th Cir.1999). In their summary judgment briefs, both Powell and Miller have the joint action test as their primary focus and the Court agrees "the joint action test speaks most clearly to whether [Miller] acted as a state actor." Id. Under the joint action test, state action is present if a private party is a "willful participant in joint activity with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). "[T]he focus of this test is not on long-term interdependence between the state and a private entity" but on "whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights." Gallagher, 49 F.3d at 1453. "[T]he mere acquiescence of a state official in the actions of a private party is not sufficient." Id., citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978).

Although "one way to prove willful joint action is to demonstrate that the public and private actors engaged in a conspiracy," a requirement of which "is that both public and private actors share a common, unconstitutional goal," Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1126 (10th Cir.2000), evidence that private persons exerted influence over a state entity, substituted their judgment for the state entity, or participated in the decision leading to the deprivation of rights, is also sufficient to establish joint action in satisfaction of the "color of law" element of § 1983. Beedle v. Wilson, 422 F.3d 1059, 1071 (10th Cir.2005); see also Gallagher, 49 F.3d at 1454 (joint action test may be satisfied where there is a "substantial degree of cooperative action between state and private officials ... in carrying out the deprivation of the plaintiff's constitutional rights.") (internal quotations and citations omitted). "The actions of a former government employee, without more, cannot amount to state action," however; "[r]ather there must be some evidence of involvement by current government officials in the offending conduct." Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir.2012) (holding state prosecutor who had retired six years before sending autopsy photograph to the press cannot be said to have been acting under color of state law for purposes of § 1983 where plaintiff failed to allege participation by any person who was a government official at the time the photograph was published).

While the Tenth Circuit consistently has held citizens who merely make complaints or furnish information to police officers that result in arrests are not state actors (see, e.g., Carey v. Continental Airlines Inc., 823 F.2d 1402 (10th Cir.1987); Lee v. Town of Estes Park, 820 F.2d 1112 (10th Cir.1987); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983)), it also has held a store security guard who reported a suspected shoplifter to the police was a state actor where the officer who made the arrest did not make an independent investigation but relied on the judgment of the security guard. Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1429 (10th Cir.1984), cert. denied in part, granted in part as to other party, 474 U.S. 818 & 805, 106 S.Ct. 65 & 40, 88 L.Ed.2d 53 & 33 (1985). No state action exists "where a private party is simply reporting suspected criminal activity to state officials who then take whatever action they believe the facts warrant," Lee v. Town of Estes Park, 820 F.2d 1112, 1115 (10th Cir.1987), but if "there are allegations that the police officers actually acted under the direction" of a private party, or the evidence establishes the private party "acted in a concerted manner" with police, there are sufficient facts from which a jury could find the private party acted under color of law for § 1983 purposes. Bailey v. Kenney, 791 F.Supp. 1511, 1522-23 (D.Kan.1992) (denying summary judgment to bail bondsman who informed police there was a bond forfeiture at a particular residence, knocked on the door with the officers, decided they should forcibly enter the residence, then broke a glass pane on the back door and pointed a gun at plaintiff); see also Coleman v. Turpen, 697 F.2d 1341, 1345 (10th Cir.1982) (finding state action allegations sufficient to withstand dismissal of § 1983 due process claim against automobile wrecking company for deprivation of plaintiff's property rights to truck where company "jointly participated in seizing the truck by towing it away" and because the company's sale of the truck "was an integral part of the deprivation.").

To demonstrate the assistance Miller provided Smith after Miller's tenure as a prosecutor, Powell attached as Exhibit 8 to his initial brief in support of his summary judgment motion the following excerpt of Miller's March 14, 2014 deposition testimony:

See Miller Deposition [Doc. No. 97-7] at pp. 23-25. By this testimony, Miller appears to acknowledge not only that he contacted prosecutors on Smith's behalf after leaving the District Attorney's office for private practice, but also that his status as a former prosecutor was well known to the state officials with whom he spoke.

Powell provides support for factually detailed allegations that, after leaving the District Attorney's office, Miller not only communicated with prosecutors in both Oklahoma and Texas, but successfully persuaded them to reduce criminal charges against Smith or otherwise obtain leniency for him. Specifically, there is evidence that after Miller called Clayton Niemeyer regarding Smith's crack-cocaine trafficking charge, the recommended sentence was reduced from thirty down to five years for the lesser charge of possession. Likewise, it appears that after Miller contacted Shannon Henson regarding Smith's arrest for murder in Texas, the charge was downgraded to aggravated robbery. In both instances, Smith was permitted to have his sentences run concurrently with the fifteen years he received for beating his girlfriend with a baseball bat.

As a former assistant district attorney, Miller's actions in contacting then-current prosecutors concerning a witness whose testimony was central to two high-profile murder convictions Miller achieved while still a prosecutor himself are readily distinguishable from those of private citizens unilaterally reporting suspected criminal activity to police. Powell has provided sufficient record evidence from which a jury could reasonably conclude that Miller, while known as a prosecutor or former prosecutor, continued to intervene with and exert influence over government officials in furtherance of a promise of assistance to Smith to ensure the perpetuation of Smith's perjured testimony and the continuation of Plaintiffs' incarceration. There are genuine issues of material fact, however, regarding whether Miller's actions as a private attorney support Plaintiffs' contention he exerted influence over and/or acted jointly with state actors as required to show Miller acted under color of law. The existence of these fact disputes warrant consideration of these § 1983 claims by a jury and render summary judgment in favor of Powell inappropriate.17

To support his summary judgment argument that there is an absence of evidence to establish he was a state actor within the meaning of Brady, Miller relies on testimony of both Niemeyer and Henson, which he contends establishes they were not influenced by Miller's contacts but used their independent judgment in making prosecutorial decisions vis-a-vis Smith. But that same testimony, in addition to the case file notes and the other circumstances surrounding Smith's plea deals, supports the reasonable inference that Miller did influence Niemeyer and Henson in a manner sufficient to establish the requisite state action. Thus, genuine issues of material fact exist regarding whether Miller actually influenced the officials with whom he spoke regarding Smith or whether the decisions they made concerning the nature of criminal charges to bring against, and prison sentences to recommend for, Smith were fully a product of their own discretion. Given the existence of these factual disputes, summary judgment in favor of Miller on the § 1983 claims is likewise inappropriate.

Conclusion

For the reasons stated above, the Court finds neither Powell nor Miller are entitled to summary judgment.

IT IS THEREFORE ORDERED that Plaintiff Paris LaPriest Powell's Motion for Summary Judgment [Doc. No. 97, Case No. CIV-2010-1294-D] and Defendant Robert Bradley Miller's Motion for Summary Judgment [Doc. No. 94, Case No. CIV-2010-1294-D; and Doc. No. 92, Case No. CIV-2010-1295-D] are DENIED.