FERNANDO J. GAITAN, Jr., District Judge.
Pending before the Court are (1) Defendant Kenneth Hulshof's Motion for Summary Judgment (Doc. No. 225); and (2) Defendant Judge K. Lewis' Motion for Summary Judgment (Doc. No. 238). Both motions are considered below.
Plaintiff filed the instant case on August 11, 2014. Plaintiff originally named 17 defendants, including both state actors and private individuals. In plaintiff's First Amended Complaint (Doc. No. 35, filed on November 14, 2014), plaintiff alleges generally that he was twice wrongfully convicted of the murder of Catherine Robertson and other offenses in Missouri state courts, and the defendants in this matter conspired with one another to conduct a sham investigation, fabricate false evidence, and suppress exculpatory evidence for many years, resulting in plaintiff spending nearly 18 years in prison. In July 15, 2014, following successful habeas proceedings, all charges against plaintiff were dropped. Plaintiff's First Amended Complaint brings suit against 16 named defendants: (1) Lyndel Robertson (a former farming partner of plaintiff's father, husband of the murder victim, and who was also shot three times in the face and once in the right shoulder on the night of the murder); (2) Rochelle (Robertson) Koehly (daughter of Lyndel Robertson); (3) Brandon Patrick Hagan (a/k/a Brandon Patrick Thomure, former boyfriend of Rochelle Koehly); (4) Kenneth Lewis (former State of Missouri Circuit Judge of the 43
Following the Court's orders on various plaintiffs' motions to dismiss, as well as stipulations of dismissal filed by various parties, the only remaining defendants in this case are the estate of Judge Kenneth Lewis (who died in 2016) and Kenneth Hulshof. The following claims remain pending against Lewis and Hulshof:
Catherine and Lyndel Robertson were shot November 3, 1990; Catherine died shortly after being shot, but Lyndel Robertson survived. Judge Kenneth Lewis was the presiding judge for the 43
On November 21, 1990, eight days after her parents were shot, Rochelle Robertson filed an adult abuse petition against Brandon Thomure (her ex-boyfriend) in the Circuit Court of Livingston County. She alleged that Brandon hit her in the past and had made "frequent harassing telephone calls to me since November 1st." She claimed she was afraid of Brandon because "he may have murdered my mother and attempted to kill my father on November 13th." The court granted the petition and entered an order of protection against Brandon Thomure. Brent Elliott, a local attorney, represented Rochelle Robertson in the adult abuse proceeding. Immediately after the shootings Lyndel Robertson was adamant that Brandon Thomure be prosecuted for the crimes; however, it appears he changed his mind at some later time.
In June 1991, Lyndel Robertson hired Terry Deister as a private investigator to investigate the Robertson shooting. Deister also assisted Robertson in relation to a civil lawsuit Claude Woodworth (plaintiff's father) had filed against him regarding the dissolution of their farming partnership. Gary Calvert, a deputy sheriff of Livingston County, agreed to work with Deister on the investigation of the shooting and they agreed to keep Deister's involvement a secret from Sheriff Leland O'Dell.
Deister regarded plaintiff Mark Woodworth as the prime suspect as soon as he got involved in the investigation. During his first meeting with Calvert, Deister asked what focus had been given to Mark Woodworth, and Calvert replied almost none. Deister proposed shifting the focus of the investigation to Mark Woodworth, and Calvert agreed. Deister had the investigators "assume" that evidence which implicated a suspect other than plaintiff "did not exist," thereby opening up the possibility of pursuing plaintiff. Plaintiff asserts that Brent Elliott, who served as Judge Lewis's personal attorney on an unrelated legal issue in 1990, served as a consultant to the private investigation led by Deister. It appears from Deister's testimony that he talked to Elliott on a number of occasions; however, the substance of those conversations is not apparent from the record.
At some time prior to Plaintiff Woodworth being charged, Lyndel Robertson stopped by the Livingston County Prosecuting Attorney's office to see how the case was going and spoke to prosecutor Doug Roberts. Robertson testified that Roberts told him that there was not sufficient evidence to go forward with charges against Mark Woodworth and that he was not going to pursue charges against him. Calvert and Deister told Robertson that they needed to get a special prosecutor because Doug Roberts couldn't handle the job.
On September 16, 1992, Deister wrote a letter to Judge Lewis for Lyndel Robertson to attempt to get Doug Roberts to recuse himself as prosecutor.
One year later, Deister prepared another letter to Judge Lewis for Lyndel Robertson that criticized Roberts and urged Lewis to convene a grand jury. In that letter, dated September 24, 1993, Mr. Robertson stated in full:
Doc. No. 292, Ex. 3. After receiving the September 24, 1993, letter from Robertson, Judge Lewis summoned Doug Roberts to his office and handed him a copy of the letter. Ex. 7, at MW 7742.
In response, in a letter dated October 5, 1993, Doug Roberts wrote to Judge Lewis in regards to the Robertson matter, stating in full:
Doc. No. 226, Ex. C, p. 4.
Lewis testified in 2011 in relation to Plaintiff Woodworth's post-conviction proceedings that that Roberts "was wrong" to conclude that there was insufficient evidence to proceed to a grand jury against Mark Woodworth, given that two juries had found Woodworth guilty beyond a reasonable doubt and a grand jury found him guilty by probable cause. Ex. 1, at MW3198. On October 7, 1993, Lewis convened a grand jury to investigate the murder of Catherine Robertson and assault of Lyndel Robertson. Lewis was prompted to bring about a grand jury inquiry based on Lyndel Robertson's September 24, 1993, letter.
Defendant Hulshof testified that after receiving the October 5, letter from Roberts, Defendant Judge Lewis initiated a phone call to the Office of the Attorney General and AAG Hulshof was asked by his secretary if he would take that call. Hulshof testified that during the phone call, Judge Lewis asked how cases were assigned and AAG Hulshof advised Judge Lewis that case assignments were made on a rotation between him and another assistant attorney general. Doc. No. 226, Ex. H, pp. 12:24 to 13:8; p. 17:15-25. During the conversations between Lewis and Hulshof before the Attorney General's Office was appointed special prosecutor, Lewis discussed the fact of this case with Hulshof and expressed his desire for Hulshof to handle the case. Doc. No. 242, Ex. 1, at MW3183-84; Ex. 2, at MW6110-11. Specifically, Hulshof testified that Judge Lewis indicated during the phone call that he would prefer AAG Hulshof to take the case because Mr. Hulshof had spent time in Livingston County on previous criminal matters and was familiar with local law enforcement officials. Doc. No. 226, Ex. H, p. 13:9-13.
Defendant Hulshof provides an affidavit he had no specific knowledge of the case or any discussion with law enforcement officials about the crime or any investigation before he received the assignment from Jack Morris, the unit chief for the Criminal Division within the Office of the Missouri Attorney General.
Judge Lewis issued an order on October 7, 1993, appointing the Office of the Missouri Attorney General as special prosecutor in connection with the Robertson shootings. Doc. No. 226, Ex. C, p. 3. Hulshof's affidavit provides that Kenneth Hulshof was selected by Assistant Attorney General Jack Morris and assigned as the special prosecutor by the Office of the Missouri Attorney General. Doc. No. 226, Ex. N, ¶ 1.
Judge Lewis sent a letter on October 7, 1993, to defendant Hulshof. In Judge Lewis' letter of October 7th, he enclosed a copy of his order appointing the Office of the Attorney General appointed special prosecutor. Ex. C, p. 3. Judge Lewis also attached to his October 7th letter to Mr. Hulshof a copy of Livingston County prosecuting attorney Doug Roberts' October 5th letter disqualifying himself. Id. at p. 4. Lewis's letter also enclosed Mr. Robertson's September 24, 1993, letter to Lewis. Doc. No. 242, Ex. 3, at MW2993. (These three letters, dated September 24, 1993, October 5, 1993, and October 7, 1993, are collectively known as the "Lewis Letters.) Judge Lewis' October 7, 1993 letter to Hulshof states, in full:
Doc. No. 226, Ex. C, pp. 1-2.
Before appearing at the grand jury, Hulshof reviewed the investigative file. Hulshof understood that Roberts had no desire or intention to present the case to the grand jury and that Lyndel Robertson was an "insistent victim" who was "very adamant that his case go forward." Hulshof did not speak with Doug Roberts about the case at any time, and did not know what evidence law enforcement officials or Mr. Robertson had provided to Doug Roberts. Prior to the grand jury proceeding, Hulshof knew that Deister was a private investigator working for Mr. Robertson and that Deister had been involved in the criminal investigation. This was the only case Hulshof prosecuted where the victim had hired a private investigator, a circumstance Hulshof recognized was "pretty unusual." Hulshof testified that "there are a number of issues that could be raised by having non-law enforcement involved in a criminal matter." Doc. No. 242, Ex. 13, at MW8160. Hulshof understood that one of the reasons Calvert had retained Deister was to work on a fraud action that Claude Woodworth (Mark's father) had filed against him. Hulshof also recalled that there was a question about chain of custody because he believed Deister may have supplied the revolver.
On October 15, 1993, AAG Hulshof first appeared before the grand jury in his role as the appointed special prosecutor. Judge Lewis personally addressed the grand jury on October 15 as well. Judge Lewis stated that "the convening of a grand jury at this time is necessary to the effective administration of justice in Livingston County." Lewis said he was very disturbed by a newspaper article indicating that the grand jury was meeting about the Robertson murder case. He said prosecuting attorney Doug Roberts admitted telling the reporter that the grand jury was meeting but denied telling the reporter that the Robertson case was being focused upon. Lewis stated that the newspaper article "attempted to acquit Mr. Roberts of any disclosure of the purpose of this investigation" and that "Mr. Roberts makes the same denial." Lewis told grand jurors that Roberts' denials reminded him of the "line from Shakespeare when he said, `The lady doth protest too much', referring to innocence." Doc. No. 242, Ex. 18.
At the grand jury proceeding, Hulshof presented evidence against only Mark Woodworth. Hulshof called Deister as a witness in the grand jury proceeding and questioned him. A court reporter was present and taking notes of the testimony during the entire presentation of evidence against Mark Woodworth; however, the only grand jury transcripts which were produced were of the testimony of Mark's mother and father, Claude and Jackie.
On October 19, 1993, the grand jury returned an indictment of Mark Woodworth to Judge Lewis charging him with murder in the first degree, armed criminal action with regard to that murder, assault in the first degree, armed criminal action with regard to that assault, and burglary in the first degree. After plaintiff was indicted, Brent Elliott represented the juvenile officer in the proceeding to certify plaintiff to be tried as an adult. Judge Lewis presided over the juvenile certification proceeding and certified plaintiff to stand trial as an adult.
Mark Woodworth's criminal attorney, Mr. McFadin, filed his appearance on behalf of Mark Woodworth on November 8, 1993. After Mr. McFadin had entered his appearance, on November 16, 1993, Judge Lewis sent McFadin and Hulshof a jointly-addressed letter dated November 12, which indicated that Lewis was enclosing a letter he had received from Jim Johnson two days earlier. On or about November 16, 1993, Judge Lewis stated he filed in the Livingston County grand jury record three docket items: 1) an order Judge Lewis issued that a letter addressed to the Court from Jim Johnson, and all references thereto, be sealed and kept separate and apart from the official court file; 2) Mr. Johnson's letter, and 3) Judge Lewis letter jointly-addressed to Mr. Hulshof and Mr. McFadin. Ex. G. (The Order and the letters from Judge Lewis and Mr. Johnson are collectively known as the "Johnson Letters.") Plaintiff, however, disputes that the docket sheet and the order sealing the Johnson letter were filed because neither document is file stamped.
In 1993 Doug Roberts filed an application to revoke the probation of Jim Johnson for 3 counts of passing a bad check, a class D felony. The case is styled
Johnson also wrote a letter to the Livingston County Grand Jury in February 1994. In that letter Johnson represented that he could "shed some light on the Robertson murder." Doc. No. 242, Ex. 27. Johnson went on to state in that letter: (1) "I have dealt with Claude Woodworth and Lyndel Robertson since 1980 and help them steal beans—milo—chemicals as recently as July 1983"; (2) "I have had conversations with Claude Woodworth about the murder of Mrs. Robertson that will shed some light on the facts concerning the murder"; (3) "Claude Woodworth set up place's [sic] for me and four other people from this county to rip off so he could buy the stolen good's [sic] and Claude Woodworth did buy it along with 3 other people of this county. Recent as 1983 (July)"; (4) "Claude Woodworth tried to purchase a gun from me just after the Robertson murder. Claude stated to me it (gun) had to be unmarked so no one could trace it back to it's [sic] owner"; and (5) "I feel without the grand jury non [sic] of these cases would have been solved and at this time I will talk with you. I will make only one promise to you and that would be it. #1 I will tell you the truth and nothing but the truth if you will give me this chance." Doc. No. 242, Ex. 27. The foreman of the grand jury provided Judge Lewis with Johnson's letter. On March 7, 1994, Judge Lewis sent Johnson's letter to Hulshof. The cover letter transmitting the letter does not indicate a copy of Johnson's letter was mailed to plaintiff's defense counsel.
In a handwritten note dated December 21, 1993, following a pretrial conversation with plaintiff's defense attorney McFadin, Hulshof wrote:
Doc. No. 242, Ex. 23, at MW5084; Ex. 24, at 59-62.
On September 30, 1994, Attorney James Wyrsch entered his appearance on behalf of Woodworth. As of January 1995, Mr. Woodworth's attorneys, James Wyrsch and Richard McFadin, conceded that "[a]lthough [d]efendant has had discovery of the State's file in large degree, [d]efendant is without sufficient knowledge of the facts concerning the above alleged acts to enable him to prepare his defense with the exception of the firearm." Ex. K, p. 2, No. 4. Notably, Mr. McFadin moved his office after Wyrsch had entered his appearance on Mr. Woodworth's behalf and McFadin was thereafter "unable to locate some of the discovery which has previously been produced." Ex. L (2/7/95 ltr from Wyrsch's paralegal to G. Calvert). Before Mr. Woodworth's first trial, his attorneys petitioned the trial court for a writ commanding that James Johnson (of the "Johnson Letters") be present for trial. Judge Lewis did not preside over Mark Woodworth's criminal trials.
Plaintiff argues that Mr. Robertson's September 24, 1993 letter, Doug Roberts' October 5, 1993 letter, and Judge Lewis's October 7, 1993 letter (the "Lewis Letters") were not produced to Mark Woodworth's defense attorneys in the criminal case, noting that Hulshof had no direct recollection of producing those three letters, and that the letters did not bear numbers indicating that they had been produced to the defense during discovery. Hulshof acknowledged that the letters would be Brady material, and that if they had not been turned over it would have been a "big deal."
At plaintiff's first criminal trial Robertson stated he did not remember telling anyone he had seen who had shot his wife, further testifying that he had not seen a thing at the time of the shootings. Doc. No. 242, Ex. 28, at MW0489, p. 447:1-3. Shortly after the shooting, however, in 1990, Robertson stated he was almost 100 percent sure Brandon Thomure shot him and his wife. Doc. No. 242, Ex. 29, at MW3005. Mr. Robertson later told Deputy Sheriff Calvert that he thought Claude Woodworth might have done it because he is "the only one that had a reason to," or that Claude Woodworth ordered Mark Woodworth to shoot him. Doc. No. 242, Ex. 14, at MW5789, MW5792. In his 1995 deposition, Lyndel Robertson claimed that he never "point[ed] my finger at anybody" when asked by Officers Lightner and Smith at Research Hospital, but also noted that the question was always who could have possibly done it. Doc. No. 242, Ex. 30, at MW5682. Plaintiff argues that Hulshof, who was present at the 1995 deposition, did not correct Robertson's testimony which plaintiff asserts contradicts Robertson's prior insistence that Doug Roberts prosecute Brandon Thomure for the crimes as Roberts stated in his October 5, 1993, letter to Judge Lewis. Ex. 30, at MW5640-41.
Robertson did not attempt to have Claude Woodworth charged with the shooting because there was no evidence against him; however, Robertson expected Mark Woodworth to implicate his father following his conviction. Plaintiff also presented testimony at his post-conviction hearing that during jury deliberations at the first trial, Ronald Motley (a relative of plaintiff Woodworth) approached Defendant Hulshof outside the courtroom and asked him "if he really believed that Mark Woodworth had committed the crime." Doc. No. 242, Ex. 7, at MW7668-69. According to Motley, Hulshof responded "oh, no," and said that "someone else had done it and he thought they [the guilty party] would step forward if Mark was prosecuted." Doc. No. 242, Ex. 7, at MW7669. Another person who overheard the exchange (and who was also a relative of Woodworth) recalled that Hulshof said "he knew Mark didn't do it, but he thought if we got this far, that the guilty party would confess." Doc. No. 242, Ex. 7, at MW7672-73.
Plaintiff was convicted by a jury in 1995 of murder in the second degree, burglary in the first degree, assault in the first degree, and armed criminal action. The jury recommended the minimum sentences. The Court ordered them to run consecutively for a total of 31 years. Plaintiff's conviction was reversed in 1997 by the Missouri Court of Appeals for the reason that Mark had been unfairly deprived by the trial court of his right to present evidence of an alternative perpetrator (Brandon Thomure).
Before the second trial, the prosecutor who tried the first case with Hulshof acknowledged the ballistics evidence is "pretty much our only evidence" and the "ballistics testimony is critical." Doc. No. 242, Ex. 33, at MW2651. He requested permission to send the state's ballistics expert to meet with another prosecution expert in England so they can "try[] to strengthen their test results/testimony."
Plaintiff filed a state habeas corpus petition which resulted in the Missouri Supreme Court appointing a Special Master to conduct an evidentiary hearing.
In January 2013, the Missouri Supreme Court accepted the findings of the Special Master and vacated Mark's conviction.
After a hearing, Platte County Circuit Judge Hull excluded all ballistics evidence because the chain of custody documents did not document that Deister had been in possession of the bullet. Doc. No. 242, Ex. 36, at MW3059-67. The court found that the record "does not establish a complete, transparent, credible provenance of the `Robertson bullet.'" Ex. 36, at MW3066. On February 25, 2014, Judge Hull appointed Don Norris as special prosecutor. Doc. No. 242, Ex. 37. After reviewing the record, Special Prosecutor Norris concluded that there was no credible evidence against Mark Woodworth and that Mark Woodworth had been targeted for prosecution. Norris dismissed all charges against Mark Woodworth, finding no probable cause existed for his prosecution.
Summary judgment is appropriate if the movant demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.
A nonmoving party must establish more than "the mere existence of a scintilla of evidence" in support of its position.
For qualified immunity cases, however, "once the predicate facts have been established, ... there is no such thing as a `genuine issue of fact' ... The conduct was either `reasonable under settled law in the circumstances,' or it was not ... ."
In the operative Complaint, plaintiff alleges in Count IV that Mr. Hulshof conspired and "agreed to fabricate evidence against [him] so as to conceal or suppress evidence against the actual perpetrator(s)." Doc. No. 35, ¶ 167. Defendant argues that the alleged factual basis of the conspiracy allegation is that in a series of telephone calls occurring before Hulshof was appointed, Lewis recruited Hulshof and Hulshof agreed to join the conspiracy to present a false version of the facts (including that Lyndel had not previously identified or demanded the prosecution of Brandon, and suppressing evidence of Brandon as the shooter). Doc. No. 35, ¶ 69.
Defendant Hulshof notes that prosecutorial immunity shields him from suit for such activities as reviewing investigative materials, reaching charging conclusions, as well as preparing and presenting witnesses before grand jury and trial.
Furthermore, with respect to the activities taking place between Judge Lewis's first phone call to defendant Hulshof and Hulshof's appointment by the attorney general's office, defendant argues that plaintiff cannot establish a meeting of the minds to deprive Woodworth of his constitutional rights through the available evidence.
In response, plaintiff makes a laundry list of assertions against Hulshof that supposedly prevent prosecutorial immunity from attaching, including: (1) allegedly procuring false statements from Lyndel Robertson (citing to
The Court finds that plaintiff's theory of the case lacks factual support in the evidentiary record. With respect to activity allegedly taken in the two-day period between the first phone call from Judge Lewis and his appointment to the case, there is no evidence on the record that defendant Hulshof did anything that could be considered entering into a conspiracy to fabricate or suppress evidence. Even if Judge Lewis had given him a factual overview of the case against Woodworth (a point which is not supported by the record), that does not mean that Hulshof agreed to suppress evidence of a different suspect. With respect to the remaining facts regarding failure to present evidence as to another suspect to the grand jury, failure to apprise the trial court of deficiencies in the ballistic evidence, or failure to correct Mr. Robertson's testimony as to alleged contradictions, those examples are more properly categorized as acts taken in good faith pursuit of conviction. There is no evidence that Hulshof intimidated or coerced others to testify falsely at trial. Finally, to the extent that Hulshof did not disclose the Lewis letters, that hardly amounts to the nefarious claim made out by plaintiff; alternate explanations could be attorney oversight or mistake, or that plaintiff's trial counsel, McFadin, received the letters but later could not find them after his office move.
In short, the lack of factual support demonstrating that Hulshof entered into a conspiracy, coupled with prosecutorial immunity, leaves the Court no option other than to grant defendant Hulshof's motion to summary judgment as to Count IV of the Amended Complaint.
Defendant Lewis also asserts that plaintiff has failed to provide facts supporting a Section 1983 conspiracy claim against him. In the operative complaint (Doc. No. 35), plaintiff alleges that former defendants Robertson, Calvert, Diester, Johnson and Williams enlisted Judge Lewis to frame Woodworth, conceal the alleged conspiracy and ensure Woodworth was never freed from wrongful incarceration. Doc. No. 35, ¶ 167. Plaintiff then states that "circumstances indicate" that Lewis recruited Mr. Hulshof to "[present] a false version of the facts; namely that [Robertson] had not previously identified or demanded the prosecution of [Thomure] and suppressing evidence that [Robertson] had, in fact, previously identified [Thomure] as the shooter." Doc. No. 35, ¶ 169.
To demonstrate a conspiracy claim that survives summary judgment, plaintiff must provide factual support indicating that (1) the defendant conspired with others to deprive plaintiff of his constitutional rights; (2) at least one of the alleged co-conspirators engaged in an overt act furthering the conspiracy; and (3) that the overt act injured plaintiff.
Additionally, as noted by defendant, Judge Lewis has judicial immunity.
Here, defendant Lewis notes that the facts are that on October 7, 1993, Lewis convened and presided over a grand jury. On the same date, Lewis issued an order appointing the Office of the Attorney General of Missouri as special prosecuting attorneys in connection with the Robertson shootings. This order followed an October 5
Defendant Lewis states that all the actions outlined in the preceding paragraph are judicial actions, which were not taken in the complete absence of all jurisdiction. All actions are of a nature normally performed by judges, such as presiding over grand jury and other court proceedings, issuing orders, and seeking a special prosecutor.
In response, plaintiff argues that the doctrine of judicial immunity does not apply to Judge Lewis because Judge Lewis engaged in prosecutorial acts which are not entitled to immunity, comparing this case to
The Court further notes that, in response, plaintiff comes up with what he terms "reasonable inferences" from the evidence that show defendant Lewis joined a conspiracy. However, as noted by defendant Lewis, rather than being "reasonable inferences," these allegations a merely speculations based on Judge Lewis's October 7, 1993 letter. Plaintiff asserts that Judge Lewis presumably wanted Woodworth indicted in 1993; however, the letters sent by Lewis to Hulshof do not even name Woodworth as the alleged suspect. Plaintiff also argues that the October 7, 1993 letter supports the inference that "Hulshof had agreed to a prosecutorial approach which suppressed the evidence that Mr. Robertson had previously `fingered' a different suspect." Doc. No. 242, p. 37. However, as noted by defendant Lewis, nothing in the letter supports such an inference. Plaintiff also notes that the letter references "various conversations" between Hulshof and Lewis before the October 7, 1993, letter. However, the mere fact that various conversations (i.e., more than one) were held does not support the inference that they conversed about the subjects plaintiff "infers," such as a conflict between prosecutor Roberts and victim Robertson, or the inference the Lewis told Hulshof he wanted Woodworth to be indicted. Again, these are not inferences based on the record, but speculation. Finally, to the extent plaintiff argues that defendants Hulshof and Lewis later somehow agreed to hide from Woodworth a conflict of interest with his trial counsel McFadin, who also represented witness Johnson (who sent letters to Judge Lewis and the grand jury), that claim is belied by the fact that (1) Judge Lewis sent a letter to both Hulshof and McFadin enclosing the first Johnson letter, and (2) Johnson was requested as a witness at trial by the defense.
Therefore, for the foregoing reasons, plaintiff's Section 1983 conspiracy claim in Count IV against defendant Lewis fails, and summary judgment is granted in defendant Lewis's favor.
As an initial matter, to the extent that plaintiff is seeking relief pursuant to the 5
As discussed previously, plaintiff Woodworth contends that both before and after Hulshof was appointed special prosecutor, he engaged in prosecutorial misconduct. Between October 5, 1993 and October 7, 1993, plaintiff alleges that defendant Hulshof engaged in a series of telephone conversations with Judge Lewis about the case. However, there is no evidence that the conversations were anything other than Judge Lewis seeking information about appointing a special prosecutor and discussing the fact that the Robertson homicide investigation existed. Thus, as discussed above in regards to plaintiff's conspiracy claim, there is insufficient evidence to proceed to trial regarding any of Hulshof's activities prior to being appointed special prosecutor in this case.
Furthermore, as for the pre-appointment contacts occurring between October 5th and October 7th, Mr. Hulshof is entitled to qualified immunity. The record supports Hulshof's statements that the contacts between he and Lewis from October 5 through October 7 addressed primarily administrative concerns, including the date of the Robertson shootings relative to the running of potentially applicable statutes of limitation, as well as coordinating Hulshof's appearance before the grand jury. Doc. No. 226, Ex. C. Qualified immunity shields government officials who are engaged in discretionary activities from liability for money damages made against them in their individual capacities unless their conduct violated clearly established statutory or constitutional rights.
Hulshof argues that his contact with Judge Lewis over a two-day period regarding largely administrative matters before being appointed the special prosecutor of the Robertson shooting did not constitute a 14
With respect to plaintiff's allegations that Hulshof concealed and suppressed disclosure of the "Lewis letters," a violation of the 14
Finally, for the reasons stated above in relation to the conspiracy claim, Hulshof's actions after he was appointed special prosecutor are subject to absolute prosecutorial immunity.
Accordingly, for all the foregoing reasons, summary judgment is
In Count I of the First Amended Complaint (Doc. No. 35), plaintiff alleges that Judge Lewis failed to disclose the "Lewis letters" to defense counsel (Doc. No. 35, ¶ 147) and further concealed a conflict of interest between defense counsel McFadin and Woodworth related to McFadin's representation of witness James Johnson These are the sole allegations that expressly state that Lewis violated plaintiff's 14
With respect to the allegations regarding Johnson and McFadin, it appears from the record that Lewis sent McFadin copies of Johnson's letters as well as a November 24, 1993 letter from Lyndel Robertson. Lewis also entered an order in the 1993 grand jury docket, noting that Mr. Johnson's letters were sent to McFadin and Hulshof, and that the letter be otherwise sealed and kept separate and apart from the official grand jury court file. Otherwise, as discussed by defendant Lewis, there is no admissible evidence regarding the alleged conflict between Woodworth and his attorney McFadin, or whether Lewis was aware of such a conflict.
Furthermore, as noted above in relation to the conspiracy claims, judicial immunity applies to claims against Judge Lewis.
Therefore, defendant Lewis's motion for summary judgment as to Count I is
Accordingly, for the above-stated reasons: (1) Defendant Kenneth Hulshof's Motion for Summary Judgment (Doc. No. 225) is