Davis v. Clark Cnty., Wash., Corp.

966 F.Supp.2d 1106

Larry DAVIS, individually and Alan Northrop, individually, Plaintiffs,

v.CLARK COUNTY, WASHINGTON, a municipal corporation, and Donald Slagle, Defendants.

Case No. 12–5765 RJB.

United States District Court,

W.D. Washington,

at Tacoma.

Aug. 20, 2013.

Order on Reconsideration in Part Sept. 9, 2013.

John R. Connelly, Jr., Micah R. Lebank, Connelly Law Offices, Tacoma, WA, David J. Whedbee, Timothy K. Ford, MacDonald Hoague & Bayless, Seattle, WA, for Plaintiffs.

Bernard F. Veljacic, Vancouver, WA, for Defendants.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on Defendants' Motion for Summary Judgment. Dkt. 25. The Court has considered the pleadings filed regarding the motion, argument of counsel heard on August 1, 2013, and the remaining file.

This case arises from a series of tragedies. It was filed by two men who were convicted in 1993 of brutally raping a woman and spent 17 years in prison as a result. In 2010, deoxyribonucleic acid (“DNA”) testing resulted in their exoneration. In this civil suit, they seek damages against Detective Donald Slagle, who was the head investigator of the crime, and against Clark County, Washington, Det. Slagle's employer, asserting that Det. Slagle and Clark County violated their constitutional due process rights and committed various state torts against them. Dkt. 1. In the pending motion, Det. Slagle and Clark County seek summary dismissal of the claims against them. For the reasons set forth below, the motion should be granted, in part, and denied, in part. Due to the complexity of this case, a table of contents is provided.

TABLE OF CONTENTS

I. FACTS AND PROCEDURAL HISTORY

A. BACKGROUND FACTS

1. Rape of Kari Morrison

2. Investigation

a. Reports Received that Dark Haired Assailant looks like Mr. Northrop

b. Photo Montage of Mr. Northrop and Ms. Morrison's Non–Identification of Mr. Northrop

c. Interview of Steve Shade

d. Ms. Morrison Identifies Mr. Davis in Photo Montage

e. Interview of Mr. Northrop and Arrest on other Charges

f. Interview and Arrest of Mr. Davis

g. Ms. Morrison Hears of Suspects

h. Mr. Davis's Lineup

i. d. Detectives Talk with Ms. Morrison before Mr. Northrop's Lineup; Mr. Northrop's Lineup & Arrest

j. Reports from Neighbors of the Home Where Attack Occurred

k. Discussion of Cases among Clark County Detectives

3. Mr. Davis's Trial

4. Mr. Northrop's Trial

5. Post Conviction Appeals

6. Post Conviction DNA Testing

7. Proceedings before Clark County Superior Court in 2010

8. Archived Box Produced to Plaintiffs in 2013 and other Recent Discovery

B. PROCEDURAL HISTORYC. PENDING MOTION

D. ORGANIZATION OF OPINION

II. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

B. FEDERAL CLAIMS

1. Collateral Estoppel

a. Collateral Estoppel Regarding Due Process Claims based on Overly Suggestive identification Procedures

i. Whether Mr. Davis is collaterally estopped from making his current claim that the identification procedures (the photo montage and live line up) violated his due process rights?

ii. Whether Mr. Northrop is collaterally estopped from making his current claim that the identification procedures (the photo montage and live line up) violated his due process rights?

b. Collateral Estoppel Regarding Due Process Claims Based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

i. Whether Mr. Northrop is collaterally estopped from making his current claim that the failure to disclose Ms. Morrison's non-identification of him in the photo montage three days after the rape violated his Brady based due process rights?

ii. Whether Mr. Davis is collaterally estopped from making his current claim that the failure to disclose Ms. Morrison's nonidentification of Mr. Northrop in the photo montage three days after the rape violated his Brady based due process rights? iii. Whether Mr. Northrop and Mr. Davis are collaterally estopped from making their Brady claim regarding the non-disclosure of Ms. Morrison being under investigation for embezzlement at the time?

2. Due Process Claims Based on Brady Violations and Qualified Immunity

a. Failure to Turn Over Information About the Investigation of Ms. Morrison–Violation of Dr. Davis and Mr. Northrop's Due Process Rights?

b. Failure to Disclose the Exact Date of Ms. Morrison's Non–Identification of Mr. Northrop—Violation of Mr. Davis's Clearly Established Due Process Rights?

c. Failure to Disclose Information on Other Suspects–Violation of Mr. Davis and Mr. Northrop's Clearly Established Due Process Rights?

3. Due Process Claims Against Clark County Under § 1983

C. STATE LAW CLAIMS

1. Statute of Limitations

2. Negligent Investigation Against Det. Slagle and Clark County

3. Negligent Training, Supervision, and Retention Claim Against Clark County

a. Clark County Liability based on Vicarious Liability for Det. Slagle's Investigation

b. Clark County Liability Based on Independent Duty to Train and Supervise—for Actions Outside the Scope of Employment

D. CONCLUSIONIII. ORDER

The body of the Order now follows.

I. FACTS AND PROCEDURAL HISTORYA. BACKGROUND FACTS

The Court is mindful that at oral argument, Plaintiffs' motions to strike certain of Defendants' exhibits and attachments were granted. As a result, the following facts are gleaned from the remaining record which was provided by the non-moving party (including police reports, some of the testimony heard during the criminal trials, and deposition testimony taken for purposes of this litigation) and may or may not reflect all the facts and evidence that may be admitted at trial.

1. Rape of Kari Morrison

The following facts are taken from a March 17, 1993 interview of Kari Morrison by Deputy Prosecutor Robert Shannon, investigator Steven Teply, and victim advocate Janet Ragan. Dkt. 41–20.

On January 11, 1993, Kari Morrison was cleaning a home in La Center, Washington. Dkt. 41–20, at 3. She left the front door of the residence open so that she could retrieve cleaning supplies from her truck. Id. She began work around 9:30 a.m. Dkt. 41–20, at 3. After ten or fifteen minutes, two men broke into the home and attacked her. Dkt. 41–20, at 9. One man was blonde and large and the other was smaller with dark hair. Id. They had gloves on. Dkt. 41–20, at 9. A violent struggled ensued. Id. Ms. Morrison states that she got a better look at the dark haired attacker because the blonde attacker primarily stayed behind her and held her. Id., at 11. Eventually, the men dragged her to the kitchen, placed duct tape over her eyes, and tied both arms and one leg to the kitchen table. Id., at 13–15. The dark haired attacker cut a hole in her pants and raped her with a foreign object. Id., at 16–18. Ms. Morrison then heard tearing of something that sounded like a condom package. Id., at 19. She stated that the blonde assailant said something like “you don't have time for that,” and the other replied “well, I'm not doing her without it.” Id. Ms. Morrison stated that the dark haired assailant then raped her while the blonde one held her down. Id. She stated that then she heard a horn honking and the blonde attacker said something like “come on we got to go, you know that's our signal.” Id., at 20. Ms. Morrison struggled to the phone and called 9–1–1. Id. Ms. Morrison was rushed to the emergency room. Id. A medical examination was done. Id. This concludes the facts taken from the March 17, 1993 interview.

DNA testing from samples collected at the hospital were consistent with Ms. Morrison and her then boyfriend. Dkt. 41–13, at 4.

2. Investigation

According to his January 19, 1993 police report, Det. Slagle was dispatched to the scene around 10:30 a.m. Dkt. 41–21. He then went to the hospital and talked with Ms. Morrison right after she received medical treatment. Dkt. 41–21, at 3. At the hospital, she gave Det. Slagle the following descriptions of the men who had attacked her: “# 1 [w]hite, male, early to mid 20's, 5'10? tall, 170 pounds, dkt. bro. hair, dark eyes, medium complexion, ear length hair and long around the face” and “# 2 [w]hite, male, early to mid 20's, 6'1? tall, 210 pounds, shoulder-length, dirty blonde hair, very fair complexion with ‘pink’ spots on the face, muscular.” Dkt. 41–21, at 4. Det. Slagle reported that he contacted the homeowner and that nothing was missing from the residence. Dkt. 41–21, at 6.

The next day, Clark County Officer Jana Anderson interviewed Ms. Morrison, and together they created a composite sketch of the dark haired assailant. Dkt. 41–22, at 3–4. Ms. Morrison indicated she could not describe the blonde attacker well enough to draw a sketch of him. Dkt. 41–1, at 24. The composite of the dark haired assailant was circulated around the La Center area. Dkt. 42.

a. Reports Received that Dark Haired Assailant looks like Mr. Northrop

On January 13, 1993, Clark County Deputy Sheriff Todd Baker completed a supplemental report regarding the incident. Dkt. 42, at 2. The report stated that he took the composite to the La Center police department, and while there, talked with Reserve Officer Brent Murray. Id. Officer Murray told Deputy Baker that the composite looked like Alan Northrop. Id. Officer Murray also told Deputy Baker that Mr. Northrop had an associate named Steve Shade, who may resemble the second suspect. Id. Deputy Baker stated in the report that he found a similarity between Mr. Northrop's mug shot and the composite. Id. The report stated that the composite, mugs shots of both Mr. Northrop and Mr. Shade, and both men's criminal records were attached to the report. Id. The report also stated that Mr. Northrop was wanted on an outstanding misdemeanor warrant out of Cowlitz County. Id.

Det. Slagle testified at Mr. Davis's May 1993 criminal trial that he got a call from Officer Murray and was told that the composite looked like Mr. Northrop and that Mr. Northrop had an associate named Mr. Shade, who might meet the description of the second suspect. Dkt. 42–7, at 3–4. (In...