Brown v. City of Hous.

297 F.Supp.3d 748

Alfred Dewayne BROWN, Plaintiff,

v.CITY OF HOUSTON, Texas, et al., Defendants.

Civil Action No. H–17–1749

United States District Court, S.D. Texas, Houston Division.

Signed December 26, 2017

David Smith Brill, Gwen Elisabeth Richard, LeClairRyan, Houston, TX, Catharine Elizabeth Edwards, Edwards Kirby, Raleigh, NC, for Plaintiff.

Henry Neef Carnaby, Camela June Sandmann, City of Houston Attorney Legal Department, Seth Barrett Hopkins, Patrick Edward Nagorski, Suzanne Bradley, Harris County Attorney's Office, Houston, TX, for Defendants.

MEMORANDUM AND OPINION

Lee H. Rosenthal, Chief United States District Judge

Alfred Dewayne Brown was tried and convicted for capital murder. He spent just over 12 years in prison, most of that time on death row. After the discovery and production of previously withheld exculpatory evidence, the Texas Court of Criminal Appeals vacated Brown's conviction and sentence and remanded the case to the Harris County trial court. Months later, after the District Attorney declined to reprosecute, the court granted Brown's motion to dismiss and released him from custody. In this federal suit, Brown seeks damages under § 1983 from the City of Houston, Harris County, Houston Police Department Detective Breck McDaniel, Harris County Assistant District Attorney Daniel Rizzo, current Harris County District Attorney Kim Ogg, and Houston Police Department Officers Ted Bloyd and D.L. Robertson, for their roles in Brown's conviction. All defendants move to dismiss.

I. Background

This summary of relevant facts is drawn from Brown's complaint and documents in the public record from his trial, appeal, and habeas proceedings. On April 3, 2003, three men—Elijah "Ghetto" Joubert, Dashan "Shawn" Glaspie, and an unidentified third man—went to an Ace Check Cashing store in South Houston to rob it. Glaspie and the third man waited inside a neighboring furniture store while Joubert waited for the store clerk, Alfredia Jones, to arrive. Joubert forced her into the store and demanded that she open the safe. Jones responded that she had to call the store's headquarters to open the safe. When she made the call, she gave the code for a robbery, which resulted in alerting the Houston Police Department. When Houston Police Officer Charles Clark arrived, he fired one shot at the three men, but his gun jammed before he could fire a second. One of the three men shot Officer Clark, killing him instantly. One of the three men shot and killed Jones.

Earlier that morning, Joubert, Glaspie, and an unidentified third man had tried to rob a different check-cashing establishment, but they left when the store owner showed them his gun. Shortly after that, two women, LaTonya Hubbard and Letisha Price, saw and talked briefly to Glaspie, Joubert, and a third man, later identified as Ernest "Deuce" Matthews, at a local gas station. All five individuals lived at the same apartment complex. Neither Hubbard, Price, the check-cashing store owner, nor the furniture-store owner identified Brown as the third man.

After fleeing Ace Check Cashing in Glaspie's car, the three men returned to the apartment complex where Glaspie and Joubert lived. News of the robbery, including a description of Glaspie's car, broke almost immediately. Latonya Hubbard's sister, Lisa Hubbard, called the police and reported that she had seen Glaspie, Joubert, and a third man near Glaspie's car at the apartment complex earlier that day. Lisa Hubbard later identified that third man as Ernest Mathews. At Brown's trial, however, Lisa Hubbard testified that Brown was the third man with Glaspie and Joubert. After the trial, she signed an affidavit stating that her trial testimony was incorrect and that her original identification was the truth. She stated that Rizzo had pressured her to testify falsely to incriminate Brown by identifying him as the third man. Hubbard was specific as to Rizzo's pressure tactics. She stated that he threatened her with a perjury indictment and an indictment for stealing the reward money she had received for coming forward, unless she identified Brown.

Brown alleges that Rizzo also pressured LaTonya Hubbard to falsely identify him as the third man, and that Rizzo pressured a third witness, Sharonda Simon, to falsely testify that she had seen Brown sitting in Glaspie's car the morning of the murders. Brown alleges that Rizzo threatened Simon with causing her to lose custody of her children. Simon later admitted that her trial testimony identifying Brown was not true.

At the time of the murders, Brown lived with his girlfriend, Ericka Dockery. On the day of his arrest, Brown gave police an alibi. He was at home the morning when murders were committed. Dockery confirmed Brown's account with significant detail. Brown alleges that Rizzo repeatedly threatened, intimidated, and harassed Dockery to change her grand jury testimony to inculpate Brown. Rizzo threatened Dockery with an indictment for perjury and to have her children removed from her custody unless she incriminated Brown. When she refused, Rizzo did charge Dockery with three counts of aggravated perjury. She sat in jail for four months, unable to afford bail, until she was released in December 2003 under a plea agreement she negotiated with Rizzo. The agreement required Dockery to meet with Houston Police Department detectives once a week about her testimony or go back to jail. Brown alleges that this coercion and intimidation caused Dockery to change her grand jury and trial testimony to testify that Brown was not at the apartment when the murders were committed. Dockery provided a posttrial affidavit recanting her testimony and detailing Rizzo's intimidation. Brown alleges that Dockery's cousin, Reginald Jones, also corroborated Brown's alibi, but that the police refused to consider his statements.

Glaspie was the primary witness against Brown at his 2004 trial. Glaspie had previously confessed his involvement to the police. Brown alleges that Glaspie received a reduced sentence—30 years instead of a possible death sentence—in exchange for falsely testifying against Brown. Brown alleges that Rizzo knowingly elicited false testimony from Glaspie that Joubert had shot Jones, when Rizzo had reason to believe that Glaspie himself had shot her.

In addition to witness intimidation to produce perjured testimony, Brown alleges that Rizzo and the police unreasonably pursued him despite ample and consistent evidence that he had no involvement in the murders. Brown alleges that the police failed to investigate Jero Dorty, a suspect in a earlier aggravated robbery who the evidence pointed to as the third man involved in this robbery-murder. Telephone records showed that Dorty was a known associate of Joubert, who years later identified Dorty as the third man involved in the robbery-murders.

Brown was convicted and sentenced to death. In April 2013, after Brown had been incarcerated for years, appealed without success, and filed a habeas petition, Houston Police Officer McDaniel "discovered" telephone records from the investigation of Brown's case in his home garage. McDaniel turned the records over to the Harris County District Attorney's Office, which had been subpoenaed to produce them in Brown's habeas case. The District Attorney's Office contacted Judge Ellis, the Harris County district court judge presiding over Brown's pending state habeas petition. Brown alleges that the telephone records corroborated Dockery's evidence in support of his alibi and showed that her recanted testimony had been obtained by intimidation.

In May 2013, Judge Ellis entered Findings of Fact and Conclusions of Law on Brown's habeas petition. Judge Ellis held that the State had withheld material exculpatory evidence. In November 2014, the Texas Court of Criminal Appeals vacated Brown's conviction, finding that the State had committed Brady violations by withholding the telephone records. The case was remanded to the trial court. In June 2015, after the State declined to retry Brown and moved to dismiss the indictment, the trial court granted the motion and dismissed the case. Brown was released from prison. He had spent twelve years there, ten on death row.

Brown alleges the following grounds for relief:

1. violations of § 1983, by fabricating evidence, against all defendants;

2. violations of § 1983, by failing to disclose material evidence, against Harris County, Rizzo, and McDaniel;

3. violations of § 1983, by concealing or conspiring to conceal evidence about Brown's whereabouts and failing to pursue other known leads, against the City of Houston and McDaniel;

4. violations of § 1983 and the 5th, 8th, or 14th Amendments, by creating unconstitutional customs, policies, and practices, against Harris County;

5. violations of § 1983, for unconstitutional polices, customs, and practices by the Houston Police Department, against the City of Houston;

6. violations of § 1983 on a municipal and supervisory liability theory, against the City of Houston; and

7. violations of § 1983 on a municipal and supervisory liability theory, against Harris County.

All defendants have moved to dismiss. Kim Ogg and Harris County filed a joint motion to dismiss, (Docket Entry No. 9), and Rizzo filed a separate motion, (Docket Entry No. 7). Brown filed a consolidated response to both. (Docket Entry No. 22). The City of Houston, McDaniel, Bloyd, and Robertson filed a single motion to dismiss, (Docket Entry No. 24), to which Brown responded. (Docket Entry No. 32). Rizzo, Ogg, and the City defendants all replied to Brown's response. (Docket Entry Nos. 25, 26, 33). The motions and responses raise different issues; all are analyzed below.

II. The Legal Standard For Dismissal

Rule 12(b)(6) allows dismissal if a plaintiff fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is...