United States District Court, D. Columbia.
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For DONALD EUGENE GATES, Plaintiff: Jeffrey S. Gutman, GEORGE WASHINGTON UNIVERSITY LAW, Washington, DC; Nick Brustin, PRO HAC VICE, Peter Neufeld, PRO HAC VICE, Vanessa Buch, PRO HAC VICE, NEUFELD, SCHECK & BRUSTIN, New York, NY.
For DISTRICT OF COLUMBIA a municipal corporation, RONALD S. TAYLOR, Retired Metropolitan Police Detective, NORMAN BROOKS, Retired Metropolitan Police Detective, JOHN HARLOW, Retired Metropolitan Police Lieutenant, Defendants: Shana Lyn Frost, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC.
For UNITED STATES OF AMERICA, Intervenor Defendant: Andrea McBarnette, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
MEMORANDUM OPINION AND ORDER
RICHARD W. ROBERTS, Chief United States District Judge.
Plaintiff Donald Gates brings a claim against the District of Columbia (" the District" ) under the Unjust Imprisonment Act, D.C. Code § 2-421 et seq. (Count One) and individual liability claims under 42 U.S.C. § 1983 against retired Metropolitan Police Department (" MPD" ) detectives Ronald Taylor and Norman Brooks, retired MPD lieutenant John Harlow, and unnamed MPD officers for violating Gates' right to a fair trial (Count Two), failing to intercede in a constitutional violation (Count Three), and conspiring to violate Gates' constitutional rights (Count Four, in which police informant Gerald Smith is named as a defendant) stemming from Gates' wrongful conviction in D.C. Superior Court for Catherine Schilling's rape and murder. Gates moves for partial summary judgment on Count One and the defendants move for summary judgment on the remaining Counts. Because there
remain genuine issues of material fact on Counts One through Four, summary judgment will be denied on those claims.
The defendants also move to strike a supplemental declaration filed by Hamilton Fox, Gates' attorney at the Superior Court trial, on the ground that the statements are inadmissible evidence and not based on personal knowledge. The defendants' motion to strike the declaration will be denied, in part because the declaration is based on personal knowledge and admissible, and in part because the motion is moot. Finally, Gates moves for leave to file a surreply in response to new factual arguments made by the defendants in the defendants' reply to Gates' opposition to the defendants' motion for summary judgment. Gates' motion for leave to file a surreply will be denied as moot.
In 1982, a D.C. Superior Court jury convicted Gates of raping and murdering Catherine Schilling. According to the District, Gates' conviction was based primarily on testimony by Smith, " other crimes" evidence, and microscopic pubic hair analysis. District of Columbia's Opp'n to Gates' Mot. for Partial Summ. J. (" District's Opp'n" ) at 4. Smith identified Gates in a photo array and testified at trial that Gates confessed to him. The other crimes evidence the District refers to consists of crimes Gates admitted to committing that the District claims occurred close in time to and bore some features in common with the Schilling rape and murder. Finally, the FBI lab said that hair found on Schilling matched Gates' hair sample. After a series of appeals, Gates' conviction was affirmed. However, almost 30 years later, DNA evidence demonstrated Gates' innocence. Following litigation in D.C. Superior Court, the D.C. Superior Court issued Gates a certificate of actual innocence.
Gates now brings claims against the District for unjust imprisonment, against Taylor, Brooks, Harlow (" the police defendants" ), and unnamed MPD officers for violating Gates' right to a fair trial by fabricating evidence, failing to disclose exculpatory material, and failing to intercede to stop constitutional violations, and against the police defendants and Smith for conspiring to bring about his false conviction.
Gates filed for summary judgment on Count One alleging that the District is precluded from further litigation because the elements of Count One were already determined in Gates' certificate of actual innocence and, alternatively, that there are no genuine disputes of material fact.
The defendants moved for summary judgment on Counts Two through Four, asserting qualified immunity and laches, and alleging that Gates presents no affirmative evidence to sustain his claims.
Gates has moved for summary judgment under Federal Rule of Civil Procedure 56(a), which provides that if there is " no genuine dispute as to any material fact . . . the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). " To prevail on a motion for summary judgment, the moving party must show that the nonmoving party 'fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Akers v. Liberty Mut. Grp., 744 F.Supp.2d 92, 95 (D.D.C. 2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). At this stage, however, all factual inferences must be taken in favor of the nonmoving party. Cruz--Packer v. D.C., 539 F.Supp.2d 181, 189 (D.D.C. 2008) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
I. COUNT ONE: UNJUST IMPRISONMENT ACT, D.C. CODE § 2-421 ET SEQ.
Count One, Gates' claim under D.C. Code § 2-421 et seq., requires that Gates prove:
(1) That his conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted, or on new trial or rehearing was found not guilty of such offense, as appears from the record or certificate of the court setting aside or reversing such conviction, or that he has been pardoned upon the stated ground of innocence and unjust conviction; and
(2) That, based upon clear and convincing evidence, he did not commit any of the acts charged or his acts or omissions in connection with such charge constituted no offense against the United States or the District of Columbia the maximum penalty for which would equal or exceed the imprisonment served and he did not, by his misconduct, cause or bring about his own prosecution.
D.C. Code § 2-422. There is no genuine dispute as to whether Gates satisfies D.C. Code § 2-422(1) because Gates has provided a certificate of actual innocence and an order to vacate Gates' conviction. District of Columbia's Response to Gates' Statement of Material Facts Not in Dispute ¶ 16. Moreover, the parties do not dispute that Gates " did not commit any of the acts charged or his acts or omissions in connection with such charge constituted no offense against the [District of Columbia]." D.C. Code § 2-422(2); District of Columbia's Response to Gates' Statement of Material Facts Not in Dispute ¶ 17. However, the parties dispute whether the record establishes that, by clear and convincing evidence, Gates " did not, by his misconduct, cause or bring about his own prosecution." Id. ¶ 18.
Gates argues that the District is precluded from litigating this element of D.C. Code § 2-422 because it was previously litigated, along with the other elements of D.C. Code § 2-422, in D.C. Superior Court when Gates sought his certificate of actual innocence. In the alternative, Gates asserts that material facts are not genuinely disputed. The District, on the other hand, argues that it cannot be bound by the litigation in D.C. Superior Court because the District was not a party to the prior suit, which was between Gates and the U.S. Attorney's Office, namely, the federal government. Further, the District
argues that a material dispute exists as to whether Gates caused or brought about his prosecution.
Gates asserts that collateral estoppel, also known as issue preclusion, resolves his claim under D.C. Code § 2-422. In particular, Gates argues that the District is precluded from litigating the issue of whether Gates, " by his misconduct, cause[d] or
br[ought] about his own prosecution" because this element was a finding of fact made in support of Gates' certificate of actual innocence. Mem. in Supp. of Gates' Mot. for Partial Summ. J. on Liability on the Unjust Imprisonment Act Claim (" Gates' Mot." ) at 5-12.
" Collateral estoppel . . . bars the re-litigation of issues determined in a prior action 'where (1) the issue was actually litigated; (2) was determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the party; [and] (4) under circumstances where the determination was essential to the judgment.'" DeWitt v. District of Columbia, 43 A.3d 291, 300 (D.C. 2012) (quoting Wilson v. Hart, 829 A.2d 511, 514 (D.C. 2003)), cert. denied, 133 S.Ct. 449, 184 L.Ed.2d 275 (2012).
The requirement that an issue be " actually litigated" and " necessarily determined" " protects . . . adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). " An issue is actually litigated when it 'is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined[.]'"
Ali Baba Co., Inc. v. WILCO, Inc., 482 A.2d 418, 422 (D.C. 1984) (quoting Restatement (Second) Of Judgments § 27(d) (1982)); see also Oubre v. D.C. Dep't of Emp't Servs., 630 A.2d 699, 703 (D.C. 1993) (" [The issue must be] properly raised, considered on the merits, and determined." ). For instance, an issue is actually litigated if a party " submit[s] three sets of documentation as evidence[.]"
Jahr v. D.C., 968 F.Supp.2d 186, 2013 WL 5182646, at *6 (D.D.C. 2013) (finding that the issue of disparate treatment had been actually litigated in prior proceedings when plaintiff previously presented evidence of disciplinary actions against two similarly situated employees, information given to federal commission about three other terminations in the four prior years, and a letter from opposing counsel responding to a discovery request regarding former co-plaintiff); see also Pipher v. Odell, 672 A.2d 1092, 1095 (D.C. 1996); Davis v. Davis, 663 A.2d 499, 501 (D.C. 1995); Ali Baba Co., Inc., 482 A.2d at 425-26. On the other hand, an issue " never mentioned" in the pleadings, orders, or decrees would not have been actually litigated for the purposes of collateral estoppel. Goldkind v. Snider Bros., Inc., 467 A.2d 468, 473 (D.C. 1983). " The burden is on the party asserting preclusion to show actual decision of the specific issues involved." Major v. Inner City Prop. Mgmt., Inc., 653 A.2d 379, 382 (D.C. 1995).
The issue of whether Gates' misconduct caused or brought about his prosecution was not actually litigated in the court that issued Gates' certificate of actual innocence. To begin with, Gates failed to allege in the proceedings in D.C. Superior Court that his misconduct did not cause or bring about his prosecution. The issue of whether Gates' misconduct caused or brought about his prosecution appeared in the record, for the first time, in Gates'
motion for a certificate of actual innocence. In that motion, Gates failed to allege, though, that his misconduct or neglect did not cause his prosecution. Cf. Huffman v. Westmoreland Coal Co., 205 P.3d 501, 507 (Colo. Ct. App. 2009) (" Here, the issue was properly raised in the federal proceeding because plaintiff alleged the claims in his complaint against defendant." ). Rather, Gates merely asked the court to issue a certificate, noting that the certificate was a " prerequisite to a suit for damages against the United States for unjust conviction and imprisonment pursuant to 28 U.S.C. § 1495." Gates' Mot., Ex. 29, Gates' Unopposed Mot. for Certificate of Actual Innocence at 1 (" Gates' Mot. for Innocence" ). Gates then informed the court of the elements required for a certificate under 28 U.S.C. § 2513, which includes a finding that the plaintiff did not, by his misconduct or neglect, cause or bring about his own prosecution. Id. at 1 (citing 28 U.S.C. § 2513). Gates did not provide in the motion any factual basis for the D.C. Superior Court to determine the causal relationship between Gates' conduct and his prosecution. Id. Moreover, no argument or reasoning that Gates' misconduct did not cause his prosecution was advanced in either Gates' motion to vacate his conviction or during the court's hearing on that motion. See Gates' Mot., Ex. 22, Gates' Mot. to Vacate Convictions on the Grounds of Actual Innocence; Gates' Mot., Ex. 28, Tr. of Oral Argument (" Tr. of Oral Argument" ); cf. Borger Mgmt., Inc. v. Sindram, 886 A.2d 52, 62-63 (D.C. 2005) ( " [T]he term 'actually litigated' is not limited to just what is [pled] on paper but also what is presented, considered and determined . . . . [Here, the issue was] 'actually litigated' in that [the party] had to argue the [issue] in order to overcome the presumption in favor of [the opposing party]." ).
Even if Gates properly raised the issue of whether his misconduct or neglect caused his prosecution in D.C. Superior Court, the issue was not actually litigated because the federal government presented no facts or argument on the issue.
An issue is not actually litigated if . . . it is raised by a material allegation of a party's pleading but is admitted (explicitly or by virtue of a failure to deny) in a responsive pleading; nor is it actually litigated if it is raised in an allegation by one party and is admitted by the other before evidence on the issue is adduced at trial; nor is it actually litigated if it is the subject of a stipulation between the parties.
Restatement § 27 cmt. e. When parties enter into an agreement or stipulation to a relevant issue, the resulting record " provides no indication that the [factfinder] . . . ever considered [the issue] during the course of its deliberations." Jonathan Woodner Co. v. Adams, 534 A.2d 292, 296 (D.C. 1987). The " issues dealt with in [stipulated] judgments are not 'actually litigated' for the purpose of issue preclusion." Amador Cnty., Cal. v. Salazar, 640 F.3d 373, 384, 395 U.S.App.D.C. 110 (D.C. Cir. 2011) (citing Otherson v. Dep't of Justice, INS, 711 F.2d 267, 274, 228 U.S.App.D.C. 481 (D.C. Cir. 1983)). As a result, in situations such as these, the court must " decline to make . . . an inference" that the issue was actually litigated and essential to the judgment. Jonathan Woodner Co., 534 A.2d at 296.
The federal government's choice not to make an issue of whether Gates' misconduct caused or brought about his prosecution is akin to facts proven by consent or stipulation that are not " actually litigated." The federal government did not discuss the issue of whether Gates' misconduct or neglect caused ...