GREGORY K. FRIZZELL, CHIEF JUDGE.
This matter comes before the court on the defendant City of Tulsa's Motion for Summary Judgment [Doc. # 175]. For the reasons discussed below, the motion is granted.
On September 12, 1994, Travis Wood, the three-month-old son of Michelle Murphy, was found dead as a result of a stab wound to the chest and incised wound to the neck. The Tulsa Police Department, headed by then Chief Ron Palmer, oversaw the investigation of infant Wood's murder. That same day, Murphy made a statement to TPD detective Michael Cook.
On September 15, 1994, Murphy was charged with murder in the first degree in the District Court in and for Tulsa County. Murphy was convicted of the charge in November of 1995 and served twenty (20) years of a sentence of life without parole. On May 30, 2014, Tulsa County District Court Judge William Kellough vacated and set aside Murphy's conviction and, on September 12, 2014, the charge against Murphy was dismissed with prejudice.
Murphy now brings this case against the City of Tulsa pursuant to 42 U.S.C. § 1983, the federal civil rights statute.
Before considering the City's motion for summary judgment, however, the court must first address four evidentiary issues associated with Murphy's response.
In support of its motion, the City offers eighty-three (83) material facts to which it asserts there is no dispute. These facts are divided into six categories: (1) "The Tulsa Police Department's Murder Investigation," fact nos. 1-28; (2) "Murphy's Confession And Probable Cause," fact nos. 29-36; (3) "Murphy's Confession was Given Knowingly and Voluntarily," fact nos. 37-46; (4) "Causation and Waiver," fact nos. 47-54; (5) "TPD Policies, Practices, Training, and Supervision," fact nos. 55-71; and (6) "The `Earlier' Case — LaRoye Hunter," fact nos. 72-83.
Murphy's response to the motion includes over 1,000 pages of exhibits. The City subsequently moved to strike the exhibits attached to Murphy's response, arguing that the exhibits did not comply with Local Civil Rule 56.1. In an order dated August 29, 2017, the court concluded that Murphy's response failed to comply with LCvR 56.1(c) and Fed. R. Civ. P. 56(c)(1) for five separate reasons. First, the court concluded that Murphy "frequently fail[ed] to `refer with particularity' to those portions of the record upon which she relies," offering as an example Murphy's collective response to the City's first twenty-eight (28) statements of undisputed material facts. In response to the City's first 28 facts, Murphy responded with the statement "[t]he investigation was woefully inadequate, not `thorough' or `constitutionally sound' as asserted ..." and cited to 140 of her own additional statements of undisputed fact, seventeen pages of an expert report prepared on her behalf by Dr. Michael D. Lyman, and twelve pages of deposition testimony from the unnamed "scene investigator." Second, Murphy did not use a consistent format for her references. Third, Murphy referenced missing exhibits. Fourth, Murphy occasionally referred to multi-page exhibits as a whole, without reference to page and line numbers. Finally, for some of the exhibits containing excerpts of testimony, Murphy did not identify the individual whose testimony was presented. In order to correct these identified deficiencies, the court granted Murphy additional time to file an amended response that complied with LCvR 56.1(c) and Fed. R. Civ. P. 56(c)(1). See [Doc. # 279].
Pursuant to Local Civil Rule 56.1(c):
LCvR 56.1(c) (emphasis added). The local rule is consistent with statements of the Tenth Circuit interpreting Fed. R. Civ. P. 56, and meant to further the purposes of Rule 56. The Tenth Circuit has stated that "on a motion for summary judgment, `it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without ... depending on the trial court to conduct its own search of the record.'" Cross v. Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (quoting Downes v. Beach, 587 F.2d 469, 472 (10th Cir. 1978)). This court "is not required to comb through Plaintiffs' evidence to determine the bases for a claim that a factual dispute exists." Bootenhoff v. Hormel Foods Corp., No. CIV-11-1368-D, 2014 WL 3810329, at *2 n.3 (W.D. Okla. Aug. 1, 2014) (citing Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000))
Due to a change in Murphy's counsel, the court granted Murphy an additional extension to file her amended response. See [Doc. # 335]. The amended response lists 197 additional material facts and again appends over 1,000 pages of exhibits which Murphy asserts preclude summary judgment. However, the amended response fails to correct several of the deficiencies previously identified by this court and, for the four following reasons, the court is persuaded that portions of Murphy's amended response do not comply with LCvR 56.1(c) and Fed. R. Civ. P. 56(c)(1).
First, Murphy again fails to "refer with particularity" to those portions of the record on which she relies. By way of example, Murphy did not correct all of the insufficiencies specifically identified by this court in its August 29, 2017 order regarding Murphy's opposition to the City's first twenty-eight undisputed material facts.
As previously mentioned, City fact nos. 1-28 relate to TPD's investigation of the
[Doc. # 338, p. 1 (internal footnote omitted)]. Murphy explains that "Fact ##" refers to Murphy's additional material facts to which she asserts there is no dispute. [Doc. # 338, p. 1 n.1].
Although, unlike in her original response, Murphy identifies the scene investigator as TPD officer Noordyke and includes specific page and line references, Murphy again broadly refers to 135 of her own statements of additional undisputed material facts — each of which references one or more exhibits — as well as 17 pages of Dr. Lyman's expert report, and 13 pages of Noordyke's testimony. Similarly, Murphy cites only her own statements of additional undisputed material facts to dispute the following undisputed material facts offered by the City: 20, 23, 25, 27, 37, 38
Second, Murphy fails to properly address many of the City's assertions of undisputed material fact. Murphy purports to dispute City fact nos. 22, 46, 52, 53
Third, although Murphy has remedied most of the deficiencies from her prior brief with regard to missing exhibits, one deficiency remains. In opposition to the City's undisputed material fact no. 13, Murphy refers to Exhibit 15, which was not provided to the court.
To the extent that Murphy identifies a numbered material fact of the City relative to which she cites with particularity to the evidentiary record to demonstrate a dispute as required by LCvR 56.1(c), the court will consider the issue for purposes of the City's motion for summary judgment. The court will not "seach[] through the record on plaintiff's behalf, however, to compile the relevant facts." Stallings v. Werner Enters., 598 F.Supp.2d 1203, 1210 (D. Kan. 2009). To do so would require the court to comb through the record, essentially charting Murphy's arguments for her, in a manner not required by the Tenth Circuit. Thus, the court concludes that Murphy fails to properly address the following facts, and the court will consider them undisputed for purposes of the City's motion for summary judgment: 1-10, 12-14, 16-28, 31, 33-38, 40-46, 48-54, 56-57, 63-67, 69, and 72-83.
Pursuant to Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A fact is "material" if it "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). A dispute is "genuine" "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. Further, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
In considering a motion for summary judgment, "[t]he evidence and reasonable inferences drawn from the evidence are viewed in the light most favorable to the nonmoving party." Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004). "A `judge's function' at summary judgment is not `to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505). Summary judgment is appropriate only "where `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a
The court finds the following facts regarding the investigation, trial, conviction, and release of Murphy:
At approximately 6:15 a.m., on Monday, September 12, 1994, EMSA and officers from the Tulsa Police Department ("TPD") arrived on scene at Michelle Murphy's apartment in response to a 911 call regarding the stabbing death of a baby. Officer BK Smith and Officer Gary Neece were among the first to arrive. They were directed to the back door of the apartment, where Smith observed Murphy's three-month old son, Travis Wood, dead, lying in a pool of blood. [CSOMF at ¶ 1]. Smith and Neece entered Murphy's apartment through the back door to search for additional victims. They exited the apartment and set up a perimeter to protect the crime scene. Smith then guarded the back door of Murphy's apartment until he was relieved by a day shift officer. [CSOMF at ¶ 2]. Ultimately, nine uniformed TPD officers and four detectives, including Det. Doug Noordyke, Scene Investigator, assisted in investigating the homicide of Travis Wood. [CSOMF at ¶ 3].
TPD officers immediately separated the witnesses. Murphy and her neighbors, Christina Carter and Christona Lowther, were each placed in separate patrol cars. [CSOMF at ¶ 4]. TPD officers and detectives obtained written and recorded statements from Carter, Lowther, and William Green. [CSOMF at ¶ 5]. TPD officers and detectives also interviewed Murphy's other neighbors, James Fields, Kathy Evans, Steve Mann, LaDonna Summer, William Lee, Kevin Washington, Mike Jarnagan, Pat Jarnagan, and the security guard for the apartment complex. They also interviewed the probation officer of one of Murphy's acquaintances. [CSOMF at ¶ 6]. 911 calls had been made by Lee and Lowther. As part of the investigation, TPD officers obtained copies of these calls. [CSOMF at ¶ 8].
Allen assigned the homicide investigation to Det. Corporal Mike Cook, a 20-year TPD veteran and a 13-year homicide detective. At the time, Cook had investigated hundreds of homicide cases. [CSOMF at ¶ 7]. Allen also assigned Noordyke, a 13-year TPD veteran, as the crime scene investigator. Noordyke's training included police academy training in crime scene processing, evidence recovery, and fingerprinting. He also attended specialized schools in blood stain pattern analysis and latent print examinations and had received training with senior SIU officers regarding crime scene processing. At the time of the Murphy investigation, Noordyke had processed hundreds of crime scenes. [CSOMF at ¶ 9].
When Noordyke arrived at the scene, it had been taped off and preserved. His first duties were to document the scene with video, photographs, sketches, and narrative report. He also recovered physical evidence and processed the scene for prints. [CSOMF at ¶ 10].
Officer Gary Otterstrom was assigned to sit with Murphy in his patrol car until the detectives arrived. While Murphy was seated in the passenger seat of the patrol car, she stepped out of the vehicle several times to speak with neighbors and smoke cigarettes. [CSOMF at ¶ 23]. Allen, the on-scene supervisor, instructed Otterstrom to obtain a written search waiver from Murphy so that she could give permission for the officers to search her residence for evidence. At 7:17 a.m., September 12, 1994, Allen witnessed Otterstrom read Murphy her Miranda warnings from a card and then observed Murphy willingly sign a Consent to Search form for her apartment. [CSOMF at ¶ 24].
Cook arrived at the crime scene between 7:30 and 8:00 a.m. As the detective assigned to the case, he was responsible for interviewing the witnesses and putting together the reports. [CSOMF at ¶ 16]. At approximately 8:40-8:45 a.m., Cook went to the detective division to talk to Murphy. [CSOMF at ¶ 17]. Cook interviewed Harold Eugene Wood (Murphy's common-law husband and infant Wood's father) and took a tape-recorded statement of Murphy. [CSOMF at ¶ 18]. Cook subsequently arrested Murphy. [CSOMF at ¶ 31]. After obtaining Murphy's recorded statement, Cook interviewed Murphy's neighbors, William Lee and LaDonna Summer. [CSOMF at ¶ 19]. Cook also took a recorded statement of Scottie Dale Ritchie, a close friend of Harold Eugene Wood, and obtained copies of recorded conversations between Murphy and Earl Peck while she was in jail after her arrest. [CSOMF at ¶¶ 26 and 28]. Cook prepared a prosecution report for the Tulsa County District Attorney's Office, which identified each witness and summarized their testimony. [CSOMF at ¶ 27].
Cook and Noordyke returned to the scene two additional times. First, they went back to Murphy's apartment at night,
Pursuant to 22 O.S. § 285, Murphy's preliminary hearing was held on November 14 and 15, 1994 before the Honorable J. Peter Messler. Private counsel represented Murphy. [CSOMF at ¶ 33]. At the preliminary hearing, the State presented nine witnesses including William Lee and officers Smith and Otterstrom. Cook did not testify and Murphy's taped confession was not offered into evidence. [CSOMF at ¶ 34]. At the end of the two-day preliminary hearing, Judge Messler denied Murphy's demurrer; found probable cause existed that first-degree murder had been committed; and found probable cause existed that Murphy committed the crime. He bound Murphy over for trial for first-degree murder. [CSOMF at ¶ 35].
At a separate proceeding before the trial, on November 9, 1995, Judge E.R. (Ned) Turnbull conducted a Jackson v. Denno hearing to determine whether Murphy's statement was voluntary. Murphy was represented by counsel at this hearing. [CSOMF at ¶ 37]. At the Jackson v. Denno hearing, Cook testified regarding Murphy's statement. The notification of rights waiver was admitted without objection as State's exhibit 1. [CSOMF at ¶ 38]. Cook testified that he did not coerce Murphy in any way with any kind of punishment or promise; he did not threaten her in any way, with either physical force or mental intimidation; and he did not promise anything to get her to talk. Cook also described the manner in which he read Murphy her Miranda rights and obtained the rights waiver.
During Murphy's criminal trial, which began on November 16, 1995, Murphy's
[Doc. # 175-34, p. 2].
In November of 1995, the jury convicted Murphy of first-degree murder and sentenced her to life without parole. With separate appellate counsel, Murphy appealed her conviction to the Oklahoma Court of Criminal Appeals, and the court found no error in Murphy's conviction. [CSOMF at ¶¶ 45-46; Doc. # 175-35]. On September 5, 2013, Murphy filed an Application for Post-Conviction Relief. [CSOMF at ¶ 47; Doc. # 97-21]. On May 29, 2014, then-Tulsa County District Attorney Tim Harris filed a motion to confess the application for post-conviction relief. [CSOMF at ¶ 49; Doc. # 175-1]. On May 30, 2014, Tulsa County District Judge William C. Kellough vacated Murphy's judgment and sentence. [CSOMF at ¶ 50; Doc. # 175-36]. After vacating Murphy's conviction, Judge Kellough retained jurisdiction to re-try Murphy. Judge Kellough set an appearance bond and ordered her to reappear on June 24, 2014 at 9:00 a.m. for a status conference. [CSOMF at ¶ 51; Doc. # 175-36]. Rather than retry Murphy, the State of Oklahoma filed a Motion to Dismiss the case with prejudice. [CSOMF at ¶ 51; Doc. # 175-53].
The court finds the following facts regarding the Tulsa Police Department's policies, procedures, and training in 1994:
In 1994, the basic training for TPD officers, detectives and supervisors involved in the Murphy murder investigation was approximately 14 weeks at the TPD police academy which included a legal block on constitutional rights, statutes and ordinances, as well as instruction on Miranda warnings, interviewing, interrogations and juvenile law. [CSOMF at ¶ 56; Doc. # 175-40, ¶ 3; Doc. # 175-44, ¶¶ 9 and 11].
In 1994, one of the written policies of the Tulsa Police Department was to protect the constitutional rights of all persons. [CSOMF at ¶ 65; Doc. # 106-6, COT 4]. In 1994, TPD officers were required to take an oath of office which stated, in part, "I, _____, having been duly appointed a Police Officer of the City of Tulsa, and a Peace Officer of the State of Oklahoma, do solemnly swear, that I will defend, enforce, and obey, the Constitution and Laws of the United States, the State of Oklahoma and the Charter and Ordinances of the City of Tulsa." [CSOMF at ¶ 71; Doc. # 106-6, COT 3]. Therefore, the City's general guidelines required TPD officers to be stewards of the Constitution of the United States, the laws of Oklahoma, and the laws of the City of Tulsa. [Doc. # 339, Exh. 56, p. 32:15-24]. Although TPD's policy required officers to follow the Constitution, it was not possible to write a policy for every facet or intricacy of the Constitution. [CSOMF at ¶ 68; Doc. # 175-41, p. 17:9-18].
"A plaintiff suing a municipality under section 1983 for the acts of one of its employees must prove: (1) that a municipal employee committed a constitutional violation, and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation." Myers v. Okla. Cnty. Bd. of Cnty. Comm'rs, 151 F.3d 1313, 1316 (10th Cir. 1998) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); see also Mocek v. City of Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015) ("[A] plaintiff asserting a § 1983 claim must show `1) the existence of a municipal policy or custom and 2) a direct causal link between the policy or custom and the injury alleged.'
As previously stated, Murphy asserts two constitutional violations: (1) violation of her Fifth Amendment right against self-incrimination through the use of Murphy's allegedly coerced statement at her criminal trial, and (2) violation of the Fourteenth Amendment due process clause's right to a fair trial. The court will consider each alleged violation separately.
The City argues that Murphy is collaterally estopped from claiming that her statement was coerced by virtue of Judge Turnbull's ruling in the Jackson v. Denno hearing and, therefore, Murphy cannot establish a Fifth Amendment violation. The court is not persuaded.
"In accordance with the doctrine of issue preclusion (previously known as collateral estoppel), once a court has decided an issue of fact or law necessary to its judgment, the same parties or their privies may not relitigate that issue in a suit brought upon a different claim." Okla. Dep't of Pub. Safety v. McCrady, 176 P.3d 1194, 1199 (Okla. 2007) (internal footnote omitted). However, for issue preclusion to apply, there must exist
Under Oklahoma law, a judgment reversed, set aside, or vacated is of no preclusive effect. See Wininger v. Day, 376 P.2d 211, 213 (Okla. 1962) (in considering assertion that collateral estoppel should apply, stating "[t]he validity, if any, of such contention must necessarily be based on the fact or assumption that the verdict in the [first] case does validly exist"); Brumark Corp. v. Corp. Comm'n of the State of Okla., 924 P.2d 296, 301 (Okla. Civ. App. 1996) ("A judgment that is reversed on appeal — and the cause remanded — loses its conclusive character and cannot stand as a bar to further suit on the same cause of action.") (quoting Mobbs v. City of Lehigh, 655 P.2d 547, 549 n.5 (Okla. 1982)); Williams Prod. Mid-Continent Co. v. Patton Prod. Corp., 277 P.3d 499, 501 (Okla. Civ. App. 2012) ("In what appears to be a case of first impression before an Oklahoma court, we hold a second judgment predicated on a prior judgment later reversed cannot stand."); see also Woodrow v. Ewing, 263 P.2d 167, 172 (Okla. 1953) ("The judgment, until properly set aside is conclusive not only as to all questions actually decided but also as to all germane issues that might have been litigated or availed of.") (emphasis added); Franklin Savs. Ass'n v. Office of Thrift Supervision, 35 F.3d 1466, 1469 (10th Cir. 1994) ("`A judgment that has been vacated, reversed, or set aside on appeal is thereby deprived of all conclusive effect, both as res judicata and as collateral estoppel.'") (quoting Jaffree v. Wallace, 837 F.2d 1461, 1466 (11th Cir. 1988)); Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1266 (10th Cir. 2002) (same); Eastom v. City of Tulsa, No. 11-CV-0581-HE, 2012 WL 12540242, at *2 (N.D. Okla. Mar. 2, 2012) ("However,
Here, Judge Kellough vacated Murphy's judgment and sentence. [CSOMF at ¶ 50; Doc. # 175-36]. Rather than retry Murphy, the State of Oklahoma dismissed the charge. [CSOMF at ¶ 51; Doc. # 175-53]. As a result, based on the foregoing cases, the court is persuaded that no "final order" exists which would have any preclusive effect in this matter.
The City urges the court to consider two Oklahoma Court of Criminal Appeals decisions and give conclusive effect to Judge Turnbull's Jackson v. Denno ruling. See [Doc. # 175, pp. 19-23 (citing Jackson v. State, 41 P.3d 395 (Okla. Crim. App. 2001) ("Jackson I") and Jackson v. State, 146 P.3d 1149 (Okla. Crim. App. 2006) ("Jackson II")]. However, this court is not satisfied that these cases require the court to ignore what appears to be well-established Oklahoma case law holding that vacated judgments are of no preclusive effect. In Jackson I, the court concluded that Shelton Jackson's confession was not coerced, but reversed Jackson's conviction for first-degree murder and remanded the matter for a new trial on the basis of ineffective assistance of counsel. Jackson I, 41 P.3d at 401. A jury again convicted Jackson, and Jackson appealed his second conviction and sentence to the Oklahoma Court of Criminal Appeals. Jackson II, 146 P.3d at 1154. During his second appeal, Jackson again sought to contest the voluntariness of his confession. Id. at 1156. However, the court refused to consider the issue, concluding that the issue was procedurally barred. Id. at 1157. In rejecting Jackson's request, the court cited Oklahoma case law holding that issues decided in extraordinary writ appeals or direct appeals will not be reconsidered on direct appeal following retrial. Id. (citing Brown v. State, 989 P.2d 913 (Okla. Crim. App. 1998) and Humphreys v. State, 947 P.2d 565 (Okla. Crim. App. 1997)).
Jackson I and Jackson II are factually distinguishable and do not require that this court give preclusive effect to Judge Turnbull's Jackson v. Denno ruling. Unlike the Jackson cases, this case does not present a direct appeal following Murphy's retrial. Nor is this case a request for post-conviction relief to which the Oklahoma Post Conviction Relief Act, 22 O.S. § 1086, would apply. Rather, this case is a federal civil rights case, brought after the State of Oklahoma opted not to retry Murphy and at a point when, procedurally, no valid state conviction or judgment exists. This court cannot give preclusive effect to a legal nullity.
Nor is the court persuaded by the Sixth Circuit and Second Circuit cases cited by the City. See [Doc. # 175, pp. 24-26 (citing Hatchett v. City of Detroit, 495 Fed.Appx. 567 (6th Cir. 2012) and Doc. # 340, p. 7 (citing Owens v. Treder, 873 F.2d 604, 610-11 (2d Cir. 1989)]. In Hatchett, an unpublished decision, the Sixth Circuit rejected plaintiff's argument that the Jackson v. Denno hearing could not preclude his civil rights claim because his conviction was "set aside," noting that "Michigan courts treat a factual finding as to voluntariness pursuant to a [Jackson v. Denno] hearing as a final determination on the merits." Id. at 570. Under Oklahoma law, however, the jury, rather than the trial judge, is the final arbiter of voluntariness.
Further, the United States District Court for the Western District of Michigan recently disagreed with Hatchett, stating "[t]his Court is not persuaded that Michigan courts would reach the same conclusion as the court did in Hatchett." Peterson v. Heymes, 277 F.Supp.3d 913, 924 (W.D. Mich. 2017). In Peterson, the Western District cited Sixth Circuit case law broadly holding that a "judgment that has been vacated, reversed, or set aside on appeal is thereby deprived of all conclusive effect, both as res judicata and as collateral estoppel," to conclude that, because Peterson's conviction had been vacated, "no valid and final judgment exists in Peterson's criminal case, [and] collateral estoppel cannot preclude him from relitigating the issues raised in his criminal case." Id. at 921 (quoting Erebia v. Chrysler Plastic Prods. Corp., 891 F.2d 1212, 1215 (6th Cir. 1989)).
As for Owens, the Second Circuit's statement in that case was dicta. Further, the United States District Court for the Eastern District of New York recently qualified Owens, stating that "[the Owens] standard must be read in conjunction with other rulings holding that `[a] vacated judgment, by definition, cannot have any preclusive effect in subsequent litigation.'" Tankleff v. Cnty. of Suffolk, No. 09-CV-1207-JS-WDW, 2010 WL 5341929, at *4 (E.D.N.Y. Dec. 21, 2010).
A conclusion that preclusive effect should not be given to Judge Turnbull's ruling in the Jackson v. Denno hearing is consistent with the pronouncements of other courts under factually similar circumstances. See Spurlock v. Whitley, 971 F.Supp. 1166, 1177 (M.D. Tenn. 1997) (concluding that a civil plaintiff's criminal guilty plea did not preclude plaintiff's subsequent civil claims because the guilty plea was vacated); Thomas v. Riddle, 673 F.Supp. 262, 266 (N.D. Ill. 1987) (declining to give preclusive effect to a trial court's subsequently reversed denial of a suppression motion, although the denial was reversed on other grounds, reasoning that "a judgment that has been vacated, reversed or set aside on appeal is thereby deprived of all conclusive effect, both as to res judicata and as to collateral estoppel"); Chandler v. Louisville Jefferson Cnty. Metro Gov't, No. 10-CV470-H, 2011 WL 781183, at *2 (W.D. Ky. Mar. 1, 2011); McCray v. City of New York, No. 03-CV-10080-DAB, 2007 WL 4352748, at **12-13 (S.D.N.Y.
Thus, this court is persuaded that issue preclusion does not apply, and Judge Turnbull's ruling in the Jackson v. Denno hearing is not conclusive. Murphy may challenge the voluntariness of her confession in this case.
The court now turns to whether Murphy's Fifth Amendment rights were violated. In opposition to the City's motion, Murphy submits evidentiary materials to support the following: (1) that Cook rewound and started the tape over during Murphy's statement [Doc. # 339, Exh. 102, p. 238:10-15]; (2) that Cook ran his hands up Murphy's legs during the interrogation, which "scared" Murphy [Doc. # 339, Exh. 116, p. 27:15-22 and Doc. # 339, Exh. 119, p. 225:2-5]; (3) that Cook promised Murphy that, if she confessed, Murphy could see her daughter, receive therapy, and go home [Doc. # 339, Exh. 121, p. 204:17-25; Doc. # 339, Exh. 122, p. 192:1-9]; (4) that Murphy informed Cook several times that she had been hit on the head, but Cook did not examine her for concussion symptoms [Doc. # 339, Exh. 174, p. 679:13-22; Dkt. # 55, ¶ 45]; and (5) that Cook yelled at Murphy during the interrogation until she agreed to make a deal [Doc. # 339, Exh. 143, p. 241:3-17; Doc. # 339, Exh. 123, p. 240:10-14]. These evidentiary materials, viewed in the light most favorable to non-movant Murphy, establish a genuine issue of material fact as to whether Cook violated Murphy's Fifth Amendment right against self-incrimination during the September 12, 1994 interrogation. See Sharp v. Rohling, 793 F.3d 1216, 1235 (10th Cir. 2015) (concluding that, based on the totality of the circumstances, "[plaintiff's] will was overborne once Detective ... promised her she would not go to jail after she admitted to participating in the crime"); see also Arizona v. Fulminante, 499 U.S. 279, 287, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ("[C]oercion can be mental as well as physical, and ... the blood of the accused is not the only hallmark of an unconstitutional inquisition.") (quoting Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960)).
The City next argues that Murphy cannot prove a violation of her Fourteenth Amendment due process right to a fair trial, as she cannot establish the necessary intentional or reckless misconduct.
Winslow v. Smith, 696 F.3d 716, 732 (8th Cir. 2012) (quoting Akins v. Epperly, 588 F.3d 1178, 1184 (8th Cir. 2009)). "Negligent failure to investigate other leads or suspects does not violate due process." Wilson v. Lawrence Cnty., 260 F.3d 946, 955 (8th Cir. 2001).
As previously stated, viewed in the light most favorable to Murphy, there is sufficient evidence to allow the reasonable inference that a state actor — specifically Cook — attempted to coerce Murphy. Further, Murphy has submitted evidence based upon which a reasonable factfinder could conclude that, following Murphy's confession, Cook chose not to pursue other investigatory avenues. See [Doc. # 339, Exh. 175, p. 751:7-11, p. 753:24 to p. 753:8 (Cook never considered whether Lee committed the murder and never questioned Lee's truthfulness); Doc. # 339, Exh. 29, p. 65:8-23 (infant Wood's diaper was never tested for fingerprints)]. If the evidence is viewed in the light most favorable to Murphy, a reasonable fact finder could find that Cook systematically attempted to coerce Murphy to implicate herself, despite the potential for exculpatory evidence to the contrary. Thus, a genuine issue of fact exists as to whether Murphy's interrogation violated her Fourteenth Amendment substantive due process rights. See Wilson, 260 F.3d at 955 (agreeing with district court's reasoning that "[i]f Wilson's allegations about unlawful coercion are proved true, a reasonable factfinder could determine that Defendants recklessly or intentionally chose to force Wilson to confess instead of attempting to solve the murder through reliable but time consuming investigatory techniques designed to confirm their suspicions") (alterations in original).
As previously stated, "[a] municipality is not liable solely because its employees caused injury." Mocek v. City of Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015) (citing Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006)). Rather, "a plaintiff asserting a § 1983 claim must show 1) the existence of a municipal policy or custom and 2) a direct causal link between the policy or custom and the injury alleged. Through its deliberate conduct, the municipality must have been the `moving force' behind the injury." Id. (internal citations and quotations omitted).
Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (alterations in original) (quoting Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010)). The court will separately consider each form.
Murphy cites two TPD formal regulations or policy statements which she contends were unconstitutional. [Doc. # 338, p. 34]. First, based on the testimony of former chief and final policymaker Palmer, Murphy alleges that the City gave "full authority" to its interrogators regarding the method and manner of interrogations, including the power to make threats. However, the evidentiary materials submitted do not support Murphy's claim. Palmer did not testify that the "full authority" of the police department included the authority to make threats.
Murphy's position not only lacks evidentiary support, it also lacks support in the relevant law. Murphy attempts to analogize this case to City of Canton, wherein the trial court ruled that the jury properly found that the city had a custom or policy of vesting "complete authority" with the police supervisor of when medical treatment would be administered to prisoners. See [Doc. # 338, p. 40 (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 382, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1988) (characterization of the theory of liability by the district court)]. However, City of Canton was premised on a failure to train theory, rather than a facially unconstitutional policy or procedure. City of Canton, 489 U.S. at 386, 109 S.Ct. 1197 ("There can be little doubt that on its face the city's policy regarding medical treatment for detainees is constitutional."). In other words, § 1983 liability in City of Canton depended upon the grant of authority, coupled with the failure to adequately train, and then only if the failure to train amounted to deliberate indifference to the rights of persons with whom the police came into contact. Id. at 388, 109 S.Ct. 1197. City of Canton is therefore distinguishable and does not obviate against summary judgment as to this issue.
Second, Murphy alleges that TPD had in force an unconstitutional policy which treated police officers differently than citizens during interrogations, because in 1994 TPD had a regulation — part of the "Police Officer Bill of Rights" — which forbade the use of threats or promises during interrogations of police officers, but did not have a similar written prohibition applicable to interrogations of ordinary citizens. As an initial matter, Murphy's alleged second formal policy — which forbade threats or promises during interrogations of police officers, but not ordinary citizens — appears to be little more than a restatement of Murphy's first alleged formal policy — that TPD officers had carte blanche authority in the conduct of interrogations of ordinary citizens — which this court has rejected.
Further, Murphy has not cited nor has the court identified any Supreme Court or Tenth Circuit authority standing for the proposition that a lack of a written policy amounts to a formal regulation or policy statement for purposes of § 1983 tort liability. Rather, Murphy appears to be attempting to shoehorn her theory of liability into the "formal regulation or policy statement" context in order to take advantage of the Supreme Court's pronouncement in City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) ("Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker."). Pursuant to City of Canton, the omissions alleged here are more properly considered in connection with Murphy's failure to train theory. Thus, the court finds that Murphy has failed to present evidence of an unconstitutional formal regulation or policy statement.
Municipal liability may also "be based on an informal `custom' so long as this custom amounts to `a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a `custom or usage' with the force of law.'" Brammer-Hoelter, 602 F.3d at 1189 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). However, when the
Although the Tenth Circuit has never adopted a bright-line rule as to the number of similar incidents required to establish the existence of a municipal policy or custom, most courts, including the Tenth Circuit, have concluded that one prior incident is insufficient. See Williams v. City of Tulsa, 627 Fed.Appx. 700, 704 (10th Cir. 2015); Wilson v. Cook Cnty., 742 F.3d 775, 780 (7th Cir. 2014) ("Although this court has not adopted any bright-line rules for establishing what constitutes a widespread custom or practice, it is clear that a single incident — or even three incidents — do not suffice."); Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996) (two instances of misconduct were insufficient to indicate a "persistent and widespread" pattern of misconduct); Dunn v. City of Newton, Kan., No. 02-1346-WEB, 2003 WL 22462519, at *7 (D. Kan. Oct. 23, 2003) (two incidents insufficient).
Murphy has presented no evidence of an unconstitutional informal custom or usage. Although Murphy cites the LaRoye Hunter case
The state court's docket in the Hunter Case reflects only the following with respect to the suppression of Hunter's confession: "Beasley B.R.: Deft's Motion to Suppress Deft's Confession: Sustained. Case Remanded to Preliminary Hearings on 8/9/90 at 9:00 a.m. Deft in Custody and Represented by Loretta [Radford]. State by Dennis Fries. Reba Gibson Reporting." [Doc. # 175-50, p. 9]. The court did not enter an order providing its reasons for suppressing Hunter's confession. Although Murphy alleges that Cook stopped the tape during Hunter's interrogation, Murphy has presented no admissible evidence that Cook coerced Hunter's confession.
Murphy provides no further evidence of a persistent or widespread pattern of unconstitutional interrogations or
For purposes of section 1983 liability, a municipal policy may also exist based on the "decisions of employees with final policymaking authority." Bryson, 627 F.3d at 788. At the dispositive motion hearing held in this matter, the parties agreed that the sole final policymaker in this case is former Chief of Police Ron Palmer. As previously discussed, Palmer's testimony that the City gave "full authority" to its interrogators regarding the method and manner of interrogations does not constitute an unconstitutional policy. Murphy identifies no additional statements or decisions of Palmer (regarding interrogations or investigations), and the court finds no evidence upon which the jury may find an unconstitutional policy based on a decision of the final policymaker.
"[I]f a subordinate's position is subject to review by the municipality's authorized policymakers and the authorized policymakers approve a subordinate's decision and the basis for it, their ratification will be chargeable to the municipality." Moss v. Kopp, 559 F.3d 1155, 1169 (10th Cir. 2009). See also Cacioppo v. Town of Vail, Colo., 528 Fed.Appx. 929, 933 (10th Cir. 2013) ("[A] municipality will not be found liable ... unless a final decisionmaker ratifies an employee's specific unconstitutional actions, as well as the basis for these actions.") (quoting Bryson, 627 F.3d at 790). However, where the municipality is not aware of the unconstitutional actions with respect to the plaintiff, the municipality cannot be liable. Bryson, 627 F.3d at 790.
As previously stated, Palmer testified that, prior to his deposition taken in this case, he had never heard that Cook had
Murphy's case primarily relies upon theories of failure to train and supervise. The court will separately consider each theory.
As previously mentioned, the U.S. Supreme Court has held that "the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton, 489 U.S. at 388, 109 S.Ct. 1197. However, such circumstances are "limited" — "[a] municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011). The Connick Court went on to state:
Id. at 1360.
Due to this stringent standard of fault, "[a] pattern of similar constitutional violations by untrained employees is `ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train." Id. However, the Supreme Court has not foreclosed the possibility that, in rare circumstances, "the unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations." Id. at 1361. Such rare circumstances in which deliberate indifference may be found absent a pattern of unconstitutional conduct exist when a municipality fails to train employees in "specific skills needed to handle recurring situations, thus presenting an obvious potential for constitutional violations." Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998).
Nor is this a situation in which deliberate indifference may be found absent a pattern of unconstitutional conduct. Murphy has presented no additional evidence of inadequate training in interrogations or investigations more broadly. Rather, it is undisputed that, at the time of the Murphy's interrogation, the basic training for TPD officers, detectives, and supervisors was approximately fourteen weeks at the TPD police academy. The police academy included a legal block on Constitutional rights, statutes, and ordinances, as well as instruction on Miranda warnings, interviewing, interrogations, and juvenile law. [CSOMF at ¶ 56; Doc. # 175-40, ¶ 3; Doc. # 175-44, ¶¶ 9 and 11]. From at least 1978 to 2003, in order to maintain CLEET (Council of Law Enforcement Education and Training) certification, all TPD officers were required to attend forty hours of in-service training yearly that included current legal procedures, and every officer also received monthly legal bulletins regarding new ordinances, statutes, and court decisions. [CSOMF at ¶ 57; Doc. # 175-41, p. 14]. The evidentiary materials submitted demonstrate that the legal bulletins included training as to U.S. Supreme Court decisions examining the Miranda decision in three distinct areas — traffic stops, the public safety exception, and interruption to request counsel [Doc. # 231-2]; Miranda's requirements, including the application of Miranda to juveniles [Doc. # 231-3]; the Supreme Court's decision in Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), regarding statements and confessions [Doc. # 231-4]; questioning of juveniles [Doc. # 231-5]; and statements and confessions from persons under eighteen [Doc. ## 231-6; 231-7]. By 1988, all officers assigned to the Detective Division were required to complete forty hours of training in interrogations, arrest warrants, search warrants and affidavits. Officers assigned to the Homicide Unit also completed this additional forty hours of training. [CSOMF at ¶ 58].
Murphy relies heavily upon Cook's training records and deposition testimony to dispute the constitutional adequacy of TPD's training policies. However, evidence of a city's failure to train a single officer is insufficient to demonstrate a department-wide inadequacy. See Meas v. City & Cnty. of San Francisco, 681 F.Supp.2d 1128, 1142 (N.D. Cal. 2010) ("A Monell claim will fail where the plaintiff provides evidence as to only a single officer, rather than evidence regarding department-wide inadequacy in training.") (citing Blankenhorn v. City of Orange, 485 F.3d 463, 484-85 (9th Cir. 2007)).
Nor does the expert report of Dr. Michael Lyman create a disputed issue of fact regarding the adequacy of TPD's training procedures. Dr. Lyman identifies additional policies that he believes the City should have had in place. Dr. Lyman's proposed policies generally relate to the "do's and don'ts of interrogations," including prohibitions against threats and promises.
[Doc. # 231-3, at COT 11.0014]. See Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009) ("[A]s with any motion for summary judgment, `[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts.'") (quoting York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)); Heiman v. United Parcel Serv., Inc., 12 Fed.Appx. 656, 664 (10th Cir. 2001) ("`Summary judgment is appropriate when an ill-reasoned expert opinion suggests the court adopt an irrational inference, or rests on an error of fact or law.'") (quoting Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 531 n.12 (5th Cir. 1999)). Further, neither Murphy nor Dr. Lyman present any evidence or authority that some of Dr. Lyman's suggested policies or training were constitutionally required. Compare, e.g., [Doc. # 191-9, pp. 29-30 (suggesting training or policies that investigators record interrogations in their entirety) with United States v. Short, 947 F.2d 1445, 1451 (10th Cir. 1991) (police are not required to record statements)]. See also Parker v. City of Tulsa, No. 16-CV-0134-CVE-TLW,
In light of the undisputed evidence regarding TPD's training, the court is not persuaded "that it was highly predictable or plainly obvious," that a TPD officer would coerce a confession. Cf. Bryson, 627 F.3d at 789 ("We are not persuaded, however, that it was highly predictable or plainly obvious that a forensic chemist would decide to falsify test reports and conceal evidence if she received only nine months of on-the-job training and was not supervised by an individual with a background in forensic science."); Barney, 143 F.3d at 1308 ("Specific or extensive training hardly seems necessary for a jailer to know that sexually assaulting inmates is inappropriate behavior."). Thus, Murphy has presented no evidence of a constitutional inadequacy in TPD's training program, and the court finds that Murphy has failed to present evidence of deliberate indifference for purposes of § 1983 liability.
The Tenth Circuit applies the same standard to failure to supervise claims. See Schepp v. Fremont Cnty., Wyo., 900 F.2d 1448, 1454 (10th Cir. 1990). Thus, to withstand summary judgment, Murphy "must provide evidence of a failure to supervise, which amounts to deliberate indifference to the federal rights of persons with whom the [TPD officers] come into contact, and that there is a direct causal link between the constitutional deprivation and the inadequate supervision." King v. Glanz, No. 12-CV-137-JED-TLW, 2014 WL 2838035, at *2 (N.D. Okla. June 23, 2014).
In support of her failure to supervise theory, Murphy primarily relies on the following deposition testimony of Palmer:
[Doc. # 339, Exh. 73, p. 85:6-18]. Murphy also cites to Allen's deposition testimony that he never received a report on tactics used during an interrogation, [Doc. # 339, Exh. 142, p. 22:5-25], as well as Allen's alleged lack of training. However, even when viewed in the light most favorable to Murphy, this evidence does not give rise to an inference of deliberate indifference by the City.
To satisfy the deliberate indifference standard, Murphy must show that "the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm." Barney, 143 F.3d at 1307. Murphy has presented no evidence that the City's alleged failure to supervise interrogations was substantially certain to result in constitutional violations.
As previously discussed, Murphy alleges that the City's training and supervision regarding interrogations and investigations was deficient. In order for liability to attach in a failure to train or supervise case, the identified deficiency in a city's training program must be "closely related to the ultimate injury, so that it actually caused the constitutional violation." Carr v. Castle, 337 F.3d 1221, 1231 (10th Cir. 2003) (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018). A general lack of training or supervision is insufficient. Id.
The Tenth Circuit has recognized that "[t]he causal link between the officers' training and the alleged constitutional deprivation" is less direct in cases asserting that officers were not given enough training. See Allen v. Muskogee, Okla., 119 F.3d 837, 844 (10th Cir. 1997). Murphy provides no evidence regarding how the alleged lack of training actually caused the alleged constitutional violations. Although Dr. Lyman's report cites testimony by Cook that he would have followed written policies detailing the "do's and don'ts of interrogations," the court is unwilling to "partake of the post hoc, ergo propter hoc fallacy," of finding an adequate causal link. See Carr, 337 F.3d at 1231. See also King, 2014 WL 2838035, at *8; City of Canton, 489 U.S. at 391-92, 109 S.Ct. 1197 ("To adopt lesser standards of fault and causation would open municipalities to unprecedented liability under § 1983. In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city `could have done' to prevent the unfortunate incident."). Further, as noted above, the City's policy prohibited promises, coercion, or touching — conduct which forms the basis of many of Murphy's allegations. In short, Murphy has failed to show that the alleged failure to train or supervise was closely related to Murphy's alleged injury such that it actually caused the alleged constitutional violation.
Although Murphy has provided some evidence of a constitutional violation, a municipality cannot be liable under § 1983 solely because its employee caused injury or damage. Murphy has failed to produce evidence of the requisite unconstitutional policy or custom. The City is therefore entitled to the entry of summary judgment in its favor.
WHEREFORE, the City of Tulsa's Motion for Summary Judgment [Doc. # 175] is granted.