Hood v. McKinnon

MAURICE J HOOD, Plaintiff, v. DAVID McKINNON, et al, Defendants.

CIVIL ACTION NO. H-14-1719

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

ENTERED: August 17, 2016

August 16, 2016

MEMORANDUM AND ORDER

Plaintiff Maurice J. Hood ("Plaintiff") brings this civil rights action pursuant to 42 U.S.C. § 1983 and the Texas Constitution against Fort Bend County, Detective David C. McKinnon, and John Does 1-10 (collectively, "Defendants"). Plaintiff alleges that Defendants violated his federal and state constitutional rights stemming from an investigation and prosecution for an October 8, 2009 home invasion and aggravated robbery.

Pending are Defendants' Motions to Dismiss (Docket Entry Nos. 31, 37, 38, 39). After reviewing the motions, the responses, the replies, and the applicable law, the Court concludes as follows.

I. Background

Plaintiff alleges the following facts in his Second Amended Complaint ("SAC")¹:

On the morning of October 8, 2009, David Haye ("Haye") heard a knock at the door and saw through the peep-hole an individual he thought was a United Parcel Service ("UPS") delivery employee carrying a box and a clipboard. As soon as Haye opened the door, the manposing as a UPS employee ("Imposter" or "Second Assailant") and his accomplice forced their way into Haye's home. Imposter held Haye at gunpoint in the living room while his accomplice, later identified as Ronnie Alvarra Alfred ("Alfred"), searched the house and discovered that Haye's infant daughter was asleep in the next room. Alfred demanded money from Haye and threatened to kill Haye's daughter if Haye refused. The robbers ordered Haye to lie face-down on the ground and pointed their handguns at Haye's chest. Haye, believing he would be killed, fought the robbers, causing them to bleed. The robbers again threatened to kill Haye's infant daughter if he kept fighting, causing Haye to surrender and give Alfred $500 cash. The robbers fled in a 2001 Buick Century ("get-away vehicle"), and Haye called the police.

Fort Bend County Sheriff's Deputies Christina Saucedo ("Saucedo") and Fernando Flores ("Flores") arrived at the scene, entered, cleared the residence, and summoned medics for Haye. Fort Bend County Sheriff's Detectives David McKinnon ("McKinnon") and Dalia Simons ("Simons") arrived at the scene about an hour later. Haye told the detectives and the deputies that Alfred was a black man with medium skin, about 5'7" tall, and thin build, while the Second Assailant, dressed like a UPS delivery employee and carrying a box and a clip board, was a black man with dark skin, about 6'3" tall, and a muscular build. Haye also reported that the two assailants had fled in the get-away vehicle.

Plaintiff alleges that Simons observed blood at the scene and found a windshield repair invoice bearing identifying information about the get-away vehicle, which was believed to be the paper the robbers used for their UPS delivery clipboard. Simons was able to identify the vehicle and reported it to police dispatch from the information on the invoice. Crime Scene Investigators Kimberly Oreskovich ("Oreskovich") and James Tabares ("Tabares") allegedly collectedevidence at Haye's house, but did not check Haye's person for physical evidence left by the robbers. Later that same afternoon, Fort Bend Sheriff's Patrol deputies stopped the get-away vehicle, detained the driver, searched the vehicle, and notified Simons.

Simons and Oreskovich allegedly arrived at the location of the vehicle and driver, and Oreskovich took blood smear evidence from the interior of the vehicle. Simons impounded the vehicle, and the next day Investigator Jeremy Goodrich ("Goodrich") searched the vehicle for evidence and found two latent prints on the exterior of the vehicle. Goodrich also took buccal swab evidence from Haye.

On or around October 12-14, 2009, McKinnon and Simons learned that Alfred borrowed the get-away vehicle shortly before the robbery. Haye identified Alfred from a photographic line-up for eyewitness identification provided by McKinnon. Haye later confirmed that Alfred was one of his assailants when Simons showed him two other photographs of Alfred. Haye then filled out a "Photo Line-Up Affidavit" and hand wrote that he was 100% sure that Alfred was one of the individuals who had robbed him. Alfred was arrested on October 15, 2009 and charged with the Haye home invasion as well as another aggravated robbery unrelated to Haye. Alfred did not identify who his accomplice was for the Haye home invasion.

On or around January 6, 2010, Goodrich processed the latent prints he had obtained off the get-away vehicle, and one of them reportedly belonged to Plaintiff Maurice Hood ("Plaintiff"). Goodrich reported this finding to McKinnon, who located Plaintiff's license information, found that Plaintiff's race, height, and build were similar to Haye's description of the Second Assailant, and that Plaintiff was one of Alfred's acquaintances. Plaintiff claims that McKinnon formed a hunch that Plaintiff might be the Second Assailant from these facts.

Plaintiff further claims that McKinnon prepared a six-person photographic line-up for eyewitness identification with Plaintiff's driver's license picture as one of the photographs, and showed the photo line-up to Haye. Haye told McKinnon that none of the people in the line-up was the Second Assailant. McKinnon then showed Haye another photograph of Plaintiff and told him that Plaintiff's palm print was found on the get-away vehicle, Plaintiff was a known associate of Alfred, and that he was the Second Assailant.

Plaintiff additionally alleges that Haye told McKinnon that (1) he got a good look at the robbers because they did not wear masks; (2) Plaintiff had lighter skin and was fatter than the Second Assailant; and (3) the Second Assailant was not in the photograph provided. McKinnon allegedly insisted that the man in the photograph [Plaintiff] was the Second Assailant. Haye allegedly became exhausted from McKinnon's efforts and eventually filled out a "Photo Line-Up Affidavit" supplied by McKinnon and printed on the affidavit that Plaintiff was "the big guy who robbed me" and printed that "number 5 [Plaintiff] looks like the big guy that robbed me" on the Fort Bend County Sheriff's Office Photo Spread. Plaintiff claims that McKinnon went to Haye with the intent to convince Haye that Plaintiff was the suspect and that McKinnon refused to accept Haye's response that Plaintiff was not the one who robbed him.

On January 11, 2010, McKinnon wrote in his incident report that Haye had positively identified Plaintiff as being the taller suspect who robbed and pistol-whipped Haye inside his home. McKinnon did not include Haye's earlier negative identification of Plaintiff. McKinnon prepared an arrest warrant affidavit for Plaintiff for the offense of aggravated robbery and presented this affidavit to the Honorable R.H. Bielstein, who issued Arrest Warrant #011110-1 for Plaintiff's arrest and set the bond amount for $100,000.

On January 13, 2010, Fort Bend County's Investigator Michael Kulbricht ("Kulbricht") received the arrest warrant, and on January 22, 2010 Kulbricht and unnamed Houston Police Department ("HPD") officers converged on Plaintiff's last known residence and repeatedly knocked on the door at around 1:30 a.m. Plaintiff claims they kicked the door in and sent an HPD officer with an HPD dog to secure Plaintiff in a bedroom. The police dog allegedly located Plaintiff and bit him on his right thigh. Kulbricht handcuffed Plaintiff and took him into custody. Plaintiff alleges that the handcuffs were too tight and caused him pain and temporary nerve damage.

On June 10, 2010, while Plaintiff was awaiting trial, McKinnon met with Plaintiff and explained that witnesses had identified him as the Second Assailant, that his palm print was found on the get-away car, and that he should confess to the home invasion so that he could receive a lighter sentence than he would get if they proceeded to trial. Plaintiff denied that he was involved in the home invasion robbery and maintained that he had never been involved in any home invasion robberies. Plaintiff alleges that on that occasion McKinnon informed him that "I'm the detective. I can do anything I want."

On October 24, 2012, the jury was empaneled for Plaintiff's trial. Haye asked the prosecutor if he could see the accused because he had never seen the person who was charged with the crime. Upon seeing Plaintiff, Haye indicated to the prosecutor that Plaintiff was not the Second Assailant. The prosecutor moved to dismiss, and the case was dismissed against Plaintiff. Plaintiff alleges that he was in custody for 1006 days, 817 of which were in detention while for the other 189 he was released on bond.

Plaintiff alleges the following causes of action against various defendants: (1)manufactured probable cause in violation of the Fourth and Fourteenth Amendments to the United States Constitution through section 1983, against McKinnon and Doe defendants; (2) malicious prosecution in violation of the Fourth Amendment through section 1983, against McKinnon and Doe defendants; (3) failure to train or supervise investigators in the collection, testing, and suspect exoneration with DNA evidence in violation of the Fourteenth Amendment through section 1983, against Fort Bend County ("County") and Doe defendants; (4) failure to train or supervise investigators in adequate lineups in violation of the Fourteenth Amendment through section 1983, against Fort Bend County ("County") and Doe defendants; and (5) manufactured probable cause in violation of the Texas Constitution against McKinnon and Doe Defendants.²

For relief, Plaintiff seeks actual and compensatory damages against all defendants, punitive damages against individual defendants only, damages from the County pursuant to respondeat superior liability and joint and several liability; pre- and post-judgment interest, attorney's fees, costs of...