Black v. The W.Va. State Police

1

JUSTIN K. BLACK, Plaintiff, v. THE WEST VIRGINIA STATE POLICE, ANTHONY CUMMINGS, KIMBERLY PACK, GREG LOSH, MIKE PARDE, EDDIE BLANDKNSHIP, and UNKNOWN OFFICERS OF THE WEST VIRGINIA STATE POLICE, Defendants.

Civil Action No. 3:22-0096

United States District Court, S.D. West Virginia, Huntington Division

March 28, 2023

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendants' Motion to Dismiss. ECF No. 15. For the following reasons, the Motion is GRANTED, in part, and DENIED, in part.

I. BACKGROUND

This case stems from Plaintiff Justin Black's conviction and eventual exoneration for the murder of Deanna Crawford. See Compl. ¶¶ 1-9, ECF No. 1. On August 8 2002, Ms. Crawford's body was found in Cabell County. Id. ¶ 26. Approximately five years after the initial investigation into her murder, in January 2007, a man named Gregory Bailey provided information to Defendant Officers Anthony Cummings and Eddie Blankenship, implicating Mr. Bailey's nephew, Brian Dement, and three friends in the murder. Id. ¶ 29. Mr. Bailey subsequently recorded two conversations with Mr. Dement in which he indicated he had “witnessed or participated in the crime.” Id. ¶ 30. On January 28, 2007, Defendant Officers Cummings, Greg Losh, and Mike Parde detained and interrogated Mr. Dement. Id. ¶ 32-33. Mr. Dement was allegedly interrogated for nine hours, during which he provided the police with three inconsistent statements, each implicating Mr. Black and brothers Philip and Nathan Barnett in incongruent narratives of the crime. See id. ¶¶ 33-35, 37-38.

On January 29, 2007, Mr. Black was subjected to an allegedly coercive seven-hour police interrogation by Defendants Cummings, Losh, Parde, and Kimberly Pack. Id. ¶¶ 39-58. According to the Complaint, the interrogation involved providing Mr. Black with “vivid details about the crime,” explaining Mr. Dement's narrative of events, falsely claiming the Barnetts had provided information against him, a polygraph test performed by Defendant Pack, telling Mr. Black he failed the polygraph test, and threatening to revoke his parole if he did not confess. Id. ¶¶ 39-48. Apparently believing “that if he did not falsely confess, the Defendants would not allow him to leave the station and would instead send him back to prison,” Mr. Black untruthfully confessed to the murder. Id. ¶¶ 50-51. The statement provided by Mr. Black was allegedly guided by the Defendants using the statements provided by Mr. Dement; however, Mr. Black's confession was allegedly inconsistent with both Mr. Dement's confession and with the facts of the case. Id. ¶¶ 52-56. After obtaining this statement, the Defendants allowed Mr. Black to leave without arresting him. Id. ¶ 58.

However, about two weeks after the interrogation, Mr. Black returned to the police station and recanted his confession. Id. ¶ 59. Mr. Black asserts that in response, Defendant Cummings “promised that if [Mr. Black] said the Barnett brothers were guilty of the crime, then [he] would be given immunity from prosecution,” but that Mr. Black refused to lie. Id. ¶ 61. In May 2007, a grand jury indicted Mr. Black, Mr. Dement, and the Barnetts for the murder of Ms. Crawford. Id. ¶ 66. Shortly thereafter, Mr. Black was arrested. Id. It appears undisputed that no physical evidence ever linked Mr. Black to the murder. Id. ¶ 64. In fact, the Complaint asserts that DNA taken from crime scene evidence excluded all four men. Id. ¶ 63. Accordingly, the probable cause used to support Mr. Black's indictment and arrest was based entirely on the allegedly coerced confessions of Mr. Dement and Mr. Black. Id. ¶¶ 66-68. While Mr. Dement agreed to testify against Mr. Black and the Barnetts in exchange for a plea deal, he privately admitted to an investigator to fabricating all three of his statements after being subject to police coercion. Id. ¶¶ 70-72, 74.

Mr. Black's trial began on April 15, 2008. Id. ¶ 76. The Complaint alleges that Defendants Cummings and Parde falsely testified as to the nature of Mr. Black's interrogation and the veracity of Mr. Dement's statements. Id. ¶¶ 77-78. Furthermore, Mr. Black asserts that numerous witnesses at his trial testified that the Defendant Officers fabricated incriminatory statements which did not reflect the witnesses' answers to the Defendants' questions. Id. ¶¶ 7879. Nonetheless, Mr. Black was convicted of second-degree murder and sentenced to 40 years imprisonment. Id. ¶¶ 83-84.

In October 2008, Mr. Black appealed his conviction, but was denied in 2010. Id. ¶ 87. From 2010 to 2014, Mr. Black filed numerous pro se petitions and a motion for post-conviction DNA testing which requested the appointment of counsel. Id. ¶ 88. In April 2015, his motion for appointment of counsel was granted. Id. In September 2016, the Circuit Court granted Mr. Black's second request that crime scene evidence-including Ms. Crawford's pants-be tested using a method of DNA testing not available at the time of his trial. Id. ¶¶ 89, 92. In August 2017, the results of that testing definitively excluded Mr. Dement, Mr. Black, and the Barnetts from the DNA profile obtained from newly discovered semen found on Ms. Crawford's pants. Id. ¶¶ 92-93. However, the semen DNA profile matched that of DNA initially found on cigarette butts from the crime scene. Id. ¶ 94. The DNA profile was run through the Federal Bureau of Investigation's Combined DNA Index System, revealing a match to convicted sex offender Timothy Smith, who was incarcerated in Ohio. Id. ¶¶ 92, 94.

Based on this evidence, on May 1, 2019, the Circuit Court vacated Mr. Black's conviction and granted him a new trial. Id. ¶ 99. On October 5, 2021, the State announced its decision to dismiss all charges against Mr. Black. Id. ¶ 100. The Complaint alleges that due to his wrongful incarceration, Mr. Black “has suffered tremendous damage, including psychological trauma and emotional suffering, solely because of Defendants' misconduct.” Id. ¶ 104.

On February 22, 2022, Mr. Black filed suit in this Court. ECF No. 1. His Complaint brings eleven causes of action: Count I - Fifth Amendment Coerced Confession; Count II -Fourth Amendment Coerced Confession and False Arrest; Count III - Federal Malicious Prosecution; Count IV - Fourteenth Amendment Due Process; Count V - Failure to Intervene; Count VI - Civil Conspiracy to Deprive Constitutional Rights; Count VII - State Law Malicious Prosecution; Count VIII - Intentional Infliction of Emotional Distress; Count IX - State Law Civil Conspiracy; Count X - Vicarious Liability; and Count XI - Indemnification. On May 31, 2022, Defendants filed the instant Partial Motion to Dismiss. ECF No. 15. Plaintiff has responded (ECF No. 21), and Defendants have replied (ECF No. 17), rendering this matter ripe for the Court's adjudication.

II. LEGAL STANDARD

To survive a motion to dismiss, a complaint must contain “a short and plain statement of the claim showing [the plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). While the facts alleged in the complaint need not be probable, the statement must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In considering the plausibility of a plaintiff's claim, the Court accepts all factual allegations in the complaint as true. Id. Still, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted).

Determining whether a complaint states a plausible claim is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. If the court finds from its analysis that “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'- ‘that the pleader is entitled to relief.'” Id. (quoting, in part, Fed.R.Civ.P. 8(a)(2)). Nonetheless, a plaintiff need not show that success is probable to withstand a motion to dismiss. Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.”).

III. DISCUSSION

A. Absolute Immunity Based on Testimony

Defendants argue that they are absolutely immune from all claims brought in the Complaint, due to Defendants Cummings and Parde's testimony at Mr. Black's trial. Defs.' Mem. Of Law in Supp. of Partial Mot. to Dismiss at 7. As a preliminary matter, the Court rejects this argument.

Government officials who testify at criminal trials have absolute immunity from liability based on their testimony in § 1983 actions. Briscoe v. LaHue, 460 U.S. 325, 326 (1983). Likewise, adverse fact witnesses have absolute immunity for their testimony under West Virginia law. Zsigray v. Langman, 842 S.E.2d 716, 723-25 (W.Va. 2020). The Complaint alleges that Defendants Cummings and Parde “falsely testified” at Mr. Black's criminal trial. Compl. ¶¶ 76-77, 129, 156. Defendants assert this is the “basis” of Mr Black's claims, and therefore argue that “all of Plaintiff's claims fail as a matter of law and should be dismissed.” Defs.' Mem. of Law in Supp. of Partial Mot. to Dismiss at 8. The Court notes that two of the four cited allegations as to Defendants Cummings and Parde's testimony are given in the background section of the Complaint, rather than included as integral aspects of the...