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Defendant's Attorney: Jon Mark Stewart, Norman Ray Giles, William S. Helfand for Cheyenne

John H. Ridge, Timothy W. Miller, and Samuel Lee Williams Lance Cooper Overstreet, Administrator of the Estate of George W. Stanford, et al.

Description: Cheyenne, Wyoming personal injury lawyers represented the Plaintiff who sued the Defendants on civil rights Violation theories.

This matter comes before the Court on Defendant Spencer's Motion to Dismiss
(ECF No. 17), Defendant Estate of George W. Stanford's Motion to Dismiss (ECF No.
45), and Defendant City of Cheyenne's Renewed Motion to Dismiss for Failure to State a
Claim (ECF No. 131).

In August of 2013, more than two decades after being convicted of aggravated

burglary and first-degree sexual assault, Plaintiff was declared innocent of those crimes
based on new DNA evidence. On April 17, 2017, Plaintiff filed this action pursuant to 42
U.S.C. § 1983 against the City of Cheyenne and two of the Cheyenne Police Department
("CPD") officers involved in the investigation of the crimes, alleging various civil rights

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violations related to the evidence used in obtaining Plaintiffs convictions ("2017
Action"). Following this Court's dismissal of Plaintiff s 2017 Action - based on the res
Judicata effect of orders and judgments entered against Plaintiff in civil rights actions he
previously brought in 1991 and 1992 ("1991 Action" & "1992 Action") (see Order and
Judgment, EOF Nos. 48 & 49) - Plaintiff filed Motions to Set Aside Judgments Under
Rides 60(b)(4), 60(b)(6), and 60(d) in each of the earlier cases (see ECF No. 18 in 92-
CV-183; ECF No. 117 in 91-CV-129), seeking relief from the res judicata effect of the
previous orders and judgments. On November 14, 2017, this Court denied Plaintiffs
Rule 60 motions (ECF No. 81).

Plaintiff subsequently appealed the Court's rulings, and on February 13, 2020, the
Tenth Circuit Court of Appeals issued an opinion: (1) affinning the dismissal of the
claims against the Estate and Cheyenne in the 2017 Action, but reversing the dismissal of
the claims against Officer Spencer; and (2) vacating only this Court's order denying Rule
60(b)(6) relief in both the 1991 and 1992 Actions. On remand to this Court, Plaintiff
filed a renewed Motion to Set Aside Judgments Under Rule 60(b)(6) (ECF No. Ill),
which was granted as follows: (1)the judgments in the 1991 and 1992 Actions were set
aside; and (2) this Court's previous Order Granting Motions to Dismiss (ECF No. 48)
was vacated. (ECF No. 122.) The Court then allowed Defendants to renew their motions
to dismiss raising any issues not previously decided by the Court and which Defendants
want to present for consideration anew. (See ECF Nos. 127, 129, 141.) All Defendants
have done so based on failure to state a claim and/or qualified immunity.

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The Court, having considered the briefs and materials submitted in support of the
renewed motions and the Plaintiffs opposition thereto, and being otherwise fiilly
advised, FINDS and ORDERS as follows:

Background

On Sunday, June 11, 1989, shortly before 3:19 a.m., a Cheyenne Police
Department ("CPD") dispatcher received a 911 call from the tenant in the 2nd floor
apartment of a 3-story house on 18th Street in Cheyenne, Wyoming. (Compl. ^ 17.) The
third floor ("attic") apartment was rented by 24-year-old Laurie Slagle and her 33-yearold fiance or boyfriend, Barney Haggberg. {Id. 1-2, 17.) The tenant reported being
awakened by loud and aggressive knocking on the 2nd-floor landing entry door to the
upper-level apartment, followed by the sound of broken glass, footsteps crossing broken
glass, and someone going up the stairs leading to the attic apartment. {Id. H 18.)
Eventually, the tenant heard a woman's voice scream something sounding like "no, no"
which prompted her to call the police. {Id. 18-19.) While still on the phone with the
dispatcher, the 2nd floor tenant heard the "intruder" walking down the attic apartment
stairs and out the ground-floor doorway. {Id. ]| 19.) The police arrived less than a minute
later. {Id.)

The CPD dispatched Defendant Patrolman Alan Spencer and Officer Raybuck to
the scene. {Id. ^ 20.) After both arrived, they proceeded to the top of the stairs outside
the dark attic apartment with guns drawn, announcing that they were police officers and
asking: "Is anybody in the house?" {Id. ^1 21.) Standing at the top of the stairs,
Defendant Spencer could see a doorway to the right cracked open with a light on. {Id.)

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He could hear the person behind the door "whimpering and muffled yells and hysterics."
{Id.) The person behind the door did not respond to the officers' requests to come out,
and Defendant Spencer at some point detennined the person was saying: "Is he still here?

Is he still here?" {Id.) Defendant Spencer and Officer Raybuck then searched the
apartment to make sure nobody else was there. {Id. 20-21.) After the officers advised
the woman behind the door that nobody else was there, she started talking to them. {Id.
23.) The woman told Defendant Spencer: "He had hurt me. He hurt me." Spencer
asked, "Who hurt you?" {Id.\ Def. Spencer Memo, in Supp. of Mot. to Dismiss at 3.) At
Plaintiffs trial, Defendant Spencer's testimony continued as follows:

Q. Now, you asked her who it was - when she said "He hurt me," you
asked "Who hurt you?"; is that correct?

A. That's correct.

Q. Did she respond to you?

A. Yes, she did.

Q. Who did she say hurt her?

A. She said, "A.J."

Q. Did you press her for further details, further explanation as to who
this "A.J." was?

A. I'd asked her, "What is his last name?", and she said she didn't know
his last name.

Q. What next happened as you are trying to talk with her in the
doorway, to find out what happened?

A. As I was talking to her, I had glanced down on the ground, right
there at my feet I noticed a driver's license or an identification card in a
plastic-type container. I then reached down and picked it up. On one side
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there was an identification card. There was also, I think, a driver's license
in there. It was a picture I.D., of that type. I looked at the card and it said
Andrew J. Johnson on it. I held it, and as I held it 1 showed it to her and
asked, 'Ts this the A.J. that you're talking about?"

Q. Did she respond to you?

A. Her response - at first she didn't say anything, she just went back
into hysterics when she looked at the picture. Eventually she shook her
head, and I asked her again, and she said, "Yes, that's A.J."
(Compl. 24.) The woman was eventually identified as Laurie Slagle.

Plaintiff asserts that earlier that evening, on the living room coffee table in the
attic apartment, he had used the single, clear plastic sleeve enclosing his driver's license
and picture I.D. card to separate marijuana leaves from other debris, and he rolled two
marijuana joints. (Id. ^ 25.) Plaintiff and Ms. Slagle then allegedly smoked the joints
and drank Lancers wine together in her living room. (Id) When the pair thereafter left
the attic apartment to go to bars in downtown Cheyenne, he inadvertently left the plastic
sleeve with the cards showing his identity on or near the marijuana detritus sitting in a
box top on the coffee table with the Lancers wine bottle. (Id)

Ms. Slagle gave the following account of what transpired during the night of June
10th, and early morning hours of June 11th, 1989. Sometime around 7:00-8:00 p.m. the
evening of June 10th, she drove herself to a bar in Cheyenne where she drank and
socialized with two acquaintances. She had been frustrated by her unsuccessful attempts
earlier that evening to speak by telephone with Mr. Haggberg, whom she hadn't heard
from for two week and whom she believed was in Rock Springs, Wyoming. Sometime
around 10:00 p.m., Plaintiff walked into the bar. Ms. Slagle had previously met Plaintiff

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through Haggberg and they had, on at least one prior occasion, socialized with Plaintiff
and liis girlfriend. Ms. Slagle stated that Plaintiff told her he and his girlfriend had just
broken up. According to Slagle, she and Plaintiff agreed to go to two other bars in
Cheyenne, but she first needed to return to her attic apartment to get her l.D. and more
money. While there, Plaintiff sat in a chair in the living room as she searched for her LD.
Slagle apparently did not mention that the two of them smoked marijuana and drank wine
in her living room. (Compl. 37-40.)

Ms. Slagle further testified that, because she was "pretty well legally intoxicated,"
she told Plaintiff to drive them in her car to the Cheyenne Club.' (Id. ^ 41.) Ms. Slagle
testified that after just a few minutes at the Cheyenne Club, she and Plaintiff went across
to the Mayflower bar where Plaintiff pulled his l.D. card from his back pocket. (Id. T| 43.)
Her trial testimony on direct examination by the prosecutor continued:

Q. And you're sure that happened downtown?

A. Yes, I'm sure.

Q. No doubt in your mind at all?

A. No doubt about that.

Q Now, even though you had been drinking earlier, there was no
possibility that your memory was clouded?

A. At that point my memory was not clouded.

* * *

Q. How long were you at the Mayflower?

A. Just a few minutes.

' Plaintiff claims that although CPD had requested from the State Crime Lab drug and blood-alcohol level testing of
samples taken from Ms. Slagle and Plaintiff, no such results were ever communicated to Plaintiffs criminal trial
counsel. (Compl. ^42.)

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* * *

Q. So you left the Mayflower. Where did you go then?

A. Then I think we went to - well, we went to this building, and he
[Plaintiff] got out and said "We will wait here." And I had gotten sick.
And that['s] when he said "Well, just hang around," and he ran into the
building. When I got done getting sick I had climbed over into the driver's
seat and put it in gear and then drove home.

* * *

Q. Okay. Do you know the name of the place that it was that A.J.
stopped and went inside?

A. No, I don't.

Q. And do you know if - do you recall telling him that you were going
to stay or leave when he said "Wait right here, 1 will be right back?"

A. I didn't say anything.

Q. Okay. After you had gotten sick, was A.J. anywhere to be seen?

A. No, he wasn't. He was inside the building, I imagine.

Q. Is that when you just, as you said, slid over, got behind the wheel
and left?

Q

A

Q

A

Q

A

Q

A

Yeah.

Where did you go?

I went home.

Do you recall how it was you got home?

I drove.

Ok. Any difficulty driving home?

Not that I can think of.

After you got home, where did you park your car?
Out in front.

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Q. What did you do then?

A. I had gone up the stairs and undressed and climbed in bed.

Q. Okay. Now, as you went upstairs, did you have to flip on that light
switch that you talked about?

A. No, I don't have to. I know it pretty well.

Q. Ok. So you came upstairs. You undressed in the dark?

A. Yes.

Q. And went to bed. Do you know what time it was you did all of that?

A. No, I don't.

(Compl. H 43.) Ms. Slagle says she was awakened from her sleep upon hearing banging
on the attic apartment door at the second-floor landing, the sound of breaking glass, the
lock click on the door, and the sound of someone walking across the broken glass and up
the last flight of stairs to the attic apartment. {Id. 44.) At trial, she testified it was
Plaintiff who broke into her apartment and raped her on June 11, 1989; Mr. Haggberg
testified he was out of town at the time of the break-in and sexual assault. {Id, T[ 45.)
Plaintiff claims these were "all lies, aided or abetted by [D]efendants' actions and
inactions" as pled in his Complaint. {Id)

Plaintiff alleges Officer Raybuck performed the initial forensic collection of
photographic evidence at the scene in the early morning hours of June 11, 1989, after
Defendant Spencer took Ms. Slagle to the hospital for a medical examination and rape kit
samples. (Compl. ^ 27.) At that time, Officer Raybuck had been a CPD peace officer
for approximately ten (10) years. {Id) Plaintiff alleges Officer Raybuck followed

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standard procedure for crime scene investigation photography: the crime scene having
been cleared, Officer Raybuck obtained his crime scene kit out of the trunk of his patrol
car, loaded a cassette of unexposed color negative film into a 35mm camera with flash,
called the CPD dispatcher to get a case investigation number, and wrote a case-identifier
card showing both the CPD case number (89-55912) and his badge number (P-8). {Id. ^
28.) At the beginning of the film roll, Officer Raybuck photographed the case-identifier
card he had prepared. {Id. T| 29.) Officer Raybuck first photographed the front outside of
the house, showing the initial point of entry leading to the attic apartment. {Id. U 30.)
Plaintiff further alleges that, again following standard procedure. Officer Raybuck
photographed the rooms of the attic apartment. {Id. H 31.) Plaintiff claims that, although
Officer Raybuck typically took one full roll of 35mm pictures for each crime scene and
victim, of the 26 photos provided to the district attorney and Plaintiffs defense counsel,
only 6 were from Officer Raybuck's first-responder photos. {Id. 31-32.) No written
CPD report stating when these other 20 crime scene photos were taken and by whom was
ever provided or made available to Plaintiffs criminal trial counsel. {Id. ^ 35.)
Shortly after 5:00 a.m. on the morning of the crime, CPD patrol officers informed
Detective George Stanford that Ms. Slagle had been sexually assaulted and that they had
a suspect. Plaintiff Andrew Johnson, in custody.^ (Compl. ^ 48.) Stanford prepared and
obtained search warrants for the collection of biological evidence from Plaintiff and to
search Plaintiffs residence for clothing Ms. Slagle said he was wearing. {Id.) Stanford
executed the search warrants that day, but found no clothes matching those described by
- Detective Stanford passed away on or about August 13,2007. (Compl. ^ 13.)

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Ms. Slagle as being worn by Plaintiff, except a panama-style hat. {Id.) Stanford logged
Plaintiffs rape kit biological samples, two pairs of shoes, and two panama hats found at
Plaintiffs residence, into the CPD Property Room. {Id.)

Ms. Slagle and Mr. Haggberg met with Detective Stanford at the police station on
June 12, 1989. {Id. ]| 49.) Plaintiff claims Stanford made no tape recording of this
interview or, if one was made, it has since been lost, destroyed, or overwritten. {Id.) The
only record of the interview is a 1-page report of information provided by Slagle and
Haggberg at that time. {Id.) Detective Stanford interviewed Ms. Slagle a second and
third time; the third, on June 30, 1989, was tape-recorded and a partial transcription of it
made. {Id. ]| 50-51.) During this third interview, Slagle told Detective Stanford that she
and Haggberg had not had sex since June 1988 which, Plaintiff claims, was contrary to
other infonnation then known to the detective. {Id. H 51.) Plaintiff further claims that
Detective Stanford recklessly and irresponsibly failed to corroborate Haggberg's asserted
alibi (that he was on an employment assignment in Rock Springs) through any source
other than Slagle and Haggberg himself. {Id. U 52.)

Detective Stanford testified at Plaintiffs criminal trial. Among other things, he
stated that sometime late Tuesday morning, June 13, 1989 - two days following the
break-in and sexual assault - Ms. Slagle telephoned him to tell him that she had
discovered "additional evidence" - eyeglasses - in the bedroom of her attic apartment.
(Compl. ^ 53.) Ms. Slagle testified that she realized "they must have been A.J.'s" so she
called Detective Stanford right after finding them. {Id.) Plaintiff claims the eyeglasses
were planted there after-the-fact by or on behalf of Ms. Slagle. {Id. T| 54.) Plaintiff

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asserts he needs discovery to learn whether Mr. Haggberg, Detective Stanford, or any
other CPD personnel, played any role in this "deliberate fabrication of evidence." (Id.)
Following a jury trial in September 1989, Plaintiff was convicted of aggravated
burglary and first- degree sexual assault.^ Johnson v. State, 806 P.2d 1282 (Wyo. 1991).
The conviction was affirmed on direct appeal. (Id) More than two decades later and
with the aid of the Rocky Mountain Innocence Center, Plaintiff was the first prisoner to
use Wyoming's newly-enacted DNA testing statute, Wyo. Stat. § 7-12-303, to present
new evidence of his innocence and have his convictions set aside. (Compl. ^ 2.) In early
2013, the Wyoming State Crime Lab determined that the seminal fluids from Ms.
Slagle's rape kit did not match Plaintiffs DNA. Plaintiff was declared actually innocent
by Court Order dated August 7, 2013. Plaintiff represents the new evidence showed that
the actual perpetrator was Mr. Haggberg, whose DNA matched Ms. Slagle's sexual
assault kit seminal fluid samples. Id.

Plaintiffs complaint asserts three claims against Defendant Spencer pursuant to 42
U.S.C. § 1983:^^ (1) suppression of material exculpatory evidence (Brady claim); (2)
failure to preserve/disclose apparent exculpatory and potentially useful evidence
(Trombetta and Youngblood claims); and (3) deliberate fabrication of evidence.
Plaintiffs first two claims, which are also asserted against DOES 1-10 (including the
personal representative of the Estate of Detective Stanford), are based on the alleged
"missing crime scene photos." (Compl. 55-71.) Specifically, Plaintiffs first claim
^ The jury also found Mr. Johnson to be a habitual criminal. Johnson v. State, 806 P.2d 1282, 1283 (Wyo. 1991).
'* Section 1983 provides a private cause of action for "the deprivation of any rights, privileges, or immunities secured
by the Constitution[.]"

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alleges Officer Spencer, Detective Stanford or others were involved in "sanitizing,
suppressing, and/or withholding Crime Scene forensic photos from the prosecutor and
thus from Mr. Johnson's criminal trial counsel." {Id. 1 56.) This evidence. Plaintiff
asserts, would have "enabled Plaintiffs criminal trial counsel to impeach the direct trial
testimony of Ms. Slagle, Patrolman Spencer, Detective Stanford, and/or others." {Id. ^
57.) Plaintiffs second claim similarly alleges Officer Spencer, Detective Stanford and/or
others concealed, failed to preserve, destroyed, withheld, and/or failed to disclose the
missing forensic film and photographs, which were "apparent exculpatory and potentially
useful evidence insofar as they or one or more of them would have enabled Plaintiffs
criminal trial counsel to impeach the direct trial testimony of Ms. Slagle, Patrolman
Spencer, Detective Stanford, and/or others." {Id. 65-66.)

Plaintiffs third claim centers around allegations that Defendant Spencer "falsely
reported that he found [Mr. Johnson's] Plastic Sleeve at the foot of the Attic Apartment
bathroom door, falsely reported that Ms. Slagle identified the intruder by nickname or
initials before he showed Mr. Johnson's I.D. or Driver's License picture to Ms. Slagle,
and falsely testified under oath at trial to the same effect."^ (Compl. ^ 74.) Instead,
Plaintiff asserts Defendant Spencer fabricated evidence by removing the plastic sleeve
from the coffee table when he did his first walk-through of the attic apartment and then,
when endeavoring to learn the identity of the intruder and before Ms. Slagle had in any
way identified the man who "hurt" her, Defendant Spencer showed Ms. Slagle Plaintiffs
^ Plaintiff makes no mention of the eyeglasses within the context of his third claim for relief based on the alleged
deliberate fabrication of evidence, but suggests earlier in his Complaint that he will seek to amend after "appropriate
discovery to attempt to get to the bottom of this evidence fabrication." (Compl. H 54.)

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I.D. in the plastic sleeve, "prompting Ms. Slagle at that time to affirmatively assert Mr.

Johnson was that man." (/c/. 1|73.)
Plaintiff s complaint alleges two claims against the City of Cheyenne pursuant to
42 U.S.C. § 1983: (1) selective preservation and disclosure of evidence (Monell claims);
and (2) constitutionally inadequate training and/or supervision (Canton claims against
Defendant City, individual claims against DOES 16-20). Specifically, Plaintiffs fourth
claim alleges that, at the time of the investigation and prosecution of the crime for which
Plaintiff was accused and convicted, CPD either failed to have written policies or
procedures or constitutionally adequate policies or procedures, or failed to adequately
monitor and enforce its written policies and procedures, relating to the handling of
forensic photographs taken of a crime scene. (Compl. in[ 78-81.) Plaintiffs fifth claim
alleges the City of Cheyenne failed to train and/or supervise CPD personnel in the
investigation of crimes. (Id. UK 90-100.) More specifically, Plaintiff alleges "the need for
more and different training and/or supervision in investigations of alleged interracial rape
was obvious ... to Defendant City ... as applied to the investigation and prosecution of
Mr. Johnson" - particularly regarding the need for supervision and training of Detective

Stanford. (M K 98.)

Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal when a plaintiffs
complaint fails to state a claim upon which relief can be granted. In reviewing a motion
to dismiss under Rule 12(b)(6), this Court must accept as true "all well-pleaded factual
allegations in a complaint and view these allegations in the light most favorable to the

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plaintiff." Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). In order to
survive a motion to dismiss, a complaint 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).
The "plausibility standard" is not a probability requirement but requires "more than a
sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). "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." Id. A complaint that "offers labels and conclusions[,] a formulaic
recitation of the elements of a cause of action[,]" or "naked assertions devoid of further
factual enhancement," will not survive a motion to dismiss. Id. (quoting Twombly, 550
U.S. at 555, 557) (internal quotations omitted).

"Qualified immunity protects governmental officials 'from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.'" Schwartz v.
Booker, 702 F.3d 573, 579 (10th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). To survive a motion to dismiss based on qualified immunity, then, the
plaintiff must allege sufficient facts that show - when taken as true - "the defendant
plausibly violated his constitutional rights, which were clearly established at the time of
violation." Id.; see also Hernandez v. Ridley, 734 F.3d 1254, 1258 (10th Cir. 2013). In
the context of this case, the Court must detennine if the complaint sufficiently alleges the
violation of a clearly established constitutional right by each of the individual Defendants
asserting qualified immunity.

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Discussion

Beyond the substantive arguments raised by Defendants in support of dismissal,
they also contend Plaintiffs claims are barred by statutes of limitation. Plaintiff argues
Defendants waived the issues they raise in their renewed motions by failing to crossappeal them, and that this Court exceeds the scope of the Tenth Circuit's mandate by

considering them again "at the pleadings stage." {See PL's Mem. in Opp'n to Spencer's
Renewed Mot. to Dismiss at 23-24.) The Court will address these threshold issues before
proceeding to discuss the merits of Defendants' substantive arguments.

A. Tenth Circuit Mandate

Without citation to controlling authority, Plaintiff argues Defendants were
required to file cross-appeals to preserve arguments that were timely raised in their
original motions to dismiss but not considered by this Court. Plaintiff also uses other
circuit's cases regarding the "mandate rule" to argue these undecided issues raised anew
by Defendants "are not within the scope of the remand for the district court to consider
again at the pleadings stage." Id. at 23. Plaintiff is incorrect on both accounts.
First, though Defendants timely raised various arguments in support of their
motions to dismiss, this Court's dismissal of Plaintiffs action relied solely on the
Defendants' res judicata arguments. The Tenth Circuit Court of Appeals afflnned this
Court's dismissal of the claims against the Estate and Cheyenne and reversed the
dismissal of the claims against Officer Spencer. (ECF No. 106-2.) Accordingly, the

Court of Appeals "remanded [this case] for further proceedings consistent with [its]

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opinion."^ Id. (emphasis added). The Court of Appeals also vacated this Court's order
denying Rule 60(b)(6) relief in the 1991 and 1992 Actions and "remanded [those cases]
for proceedings consistent with [its] opinion." Id. Pursuant to the plain language of the
appellate court's mandate allowing further proceedings consistent with its opinion,^ and
this Court's subsequent reconsideration and grant of Rule 60(b)(b) relief in the 1991 and
1992 Actions - which resulted in the vacating of the Court's Order Granting Motions to
Dismiss in this case (see ECF No. 122) - the Court may properly proceed to address
"issues that were timely raised before the district and/or appellate courts but which
remain undecided." Trentadue v. U.S., 244 F. App'x 874, 878 (10th Cir. Aug. 7, 2007)
(unpublished) (quoting United States v. Morris, 259 F.3d 894, 898 (7th Cir. 2001)).
Plaintiff cites to additional language in Morris not included in the Trentadue
court's quotation, arguing "special circumstances" could dictate a district court not be
permitted to address any timely raised but undecided issues on remand. The Seventh
Circuit court stated: "on remand and in the absence of special circumstances, a district
court may address only (1) the issues remanded, (2) issues arising for the first time on
remand, or (3) issues that were timely raised before the district and/or appellate courts but
which remain undecided." 259 F.3d at 898 (emphasis added). The Court reads this
differently, however. In other words, on remand, a district court may only address these
three categories of issues unless special circumstances are present - in which case, the
^ The Tenth Circuit did not consider the alternative grounds for dismissal asserted by the City of Cheyenne on
appeal. See Case No. 17-8089, Doc. 010110024339 at 38-50; see generally Johnson v. Spencer et al, 950 F.3d 680
(10th Cir. 2020).

^ "The mandate consists of [the appellate court's] instructions to the district court at the conclusion of the opinion,
and the entire opinion that preceded those instructions." Procter & Gamble Co. v. Haugen, 317 F.3d 1121, 1126
(10th Cir. 2003).

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district court may address additional issues outside of these three categories. Thus, the
Court finds it appropriate, and not outside the scope of the Tenth Circuit's mandate, to
allow Defendants to renew their motions to dismiss and address the various arguments
timely raised but leff undecided. See Procter & Gamble Co. v. Haugen, 317 F.3d 1121,
1126 (10th Cir. 2003) ("Although a district court is bound to follow the mandate, and the
mandate controls all matters within its scope,... a district court on remand is free to pass
upon any issue which was not expressly or impliedly disposed of on appeal.") (internal
quotation and citation omitted); Dish Network Corp. v. Arrowood Indem. Co., Ill F.3d
856, 864 (10th Cir. 2014) (quoting V.S. v. West, 646 F.3d 745, 749 (10th Cir. 2011))
("[T]he scope of the mandate on remand in the Tenth Circuit is carved out by exclusion:
unless the district court's discretion is specifically cabined, it may exercise discretion on
what may be heard.").

Second, as to Plaintiffs waiver argument, "[o]nly a party aggrieved by the
judgment may appeal[.]" Leprino Foods Co. v. Factory Mut. Ins. Co., 453 F.3d 1281,
1290 (10th Cir. 2006) (internal quotation marks and citation omitted). Moreover, a
prevailing party need not cross-appeal to defend a Judgment on alternative grounds
properly raised before, but not decided by, the district court. See Northwest Airlines, Inc.
V. Cty. of Kent, Mich., 510 U.S. 355, 364 (1994); United Fire & Cas. Co. v. Boulder
Plaza Residential, LLC, 633 F.3d 951, 958 (10th Cir. 2011); 15A CHARLES ALAN
Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 3904, at 199-204 (2d ed. 1992) ("Cross-appeal is unnecessary even with
respect to matters that have been put aside by the district court[.] . .. Cross-appeal also is

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not required to preserve the right to orderly disposition of issues that become relevant
only because of reversal"). The Court afforded the Defendants complete relief by
dismissing this action on res judicata grounds and denying Plaintiffs Rules 59 and 60
motions. Therefore, a cross-appeal would not have been necessary or appropriate. See
Leprino Foods Co., 453 F.3d at 1290. Plaintiff cites no controlling authority to the
contrary.

B. Statutes of Limitation

Defendants argue Plaintiffs claims should be considered in the context of the
Fourth Amendment, and the accrual date of his claims is thus controlled by Wallace v.
Kato, 549 U.S. 384 (2007), which held "[l]imitations begin to run against an action for
false imprisonment when the alleged false imprisomnent ends. . . . Reflective of the fact
that false imprisomnent consists of detention without legal process, a false imprisomnent
ends once the victim becomes held pursuant to such process - when, for example, he is
bound over by a magistrate or arraigned on charges." Id. at 389 (emphasis in original).
Based on Wallace, then, Defendants contend Plaintiffs claims accrued no later than June
14, 1989, within 72 hours after his arrest on June 11, 1989. (Def. City's Br. in Supp. of
Renewed Mot. to Dismiss at 18, ECF No. 132) (citing W.R.Cr.P. 5(a)). Because the
applicable limitations period under Wyoming law is four years. Plaintiffs claims became
time-barred on June 14, 1993 - if calculated pursuant to the accrual date established in
Wallace.^ The Court, however, disagrees with Defendants' premise.

® See Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 557 (lOlh Cir. 1999) ("State statutes of limitations
applicable to general personal injury claims supply the limitations periods for § 1983 claims, but federal law governs
the time of accrual of § 1983 claims.") (internal citations omitted); WYO. STAT. § l-3-105(a)(iy)(C); Gee v,

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Plaintiff has not brought a Fourth Amendment claim for false imprisonment;
rather, Plaintiffs claims are based on alleged due process violations. See Smith v. Sec'y
of New Mexico Dep't of Corr., 50 F.3d 801, 835 (10th Cir. 1995) (failure to disclose
relevant, material exculpatory evidence to defendant violated his constitutional due
process right to a fair trial).

[The Tenth Circuit has] held that a plaintiff who claims that the
government has unconstitutionally imprisoned him has at least two
potential constitutional claims. "The initial seizure is governed by the
Fourth Amendment, but at some point after arrest, and certainly by the time
of trial, constitutional analysis shifts to the Due Process Clause. " Pierce v.
Gilchrist, 359 F.3d 1279, 1285-86 (10th Cir. 2004). If he has been
imprisoned without legal process he has a claim under the Fourth
Amendment analogous to a tort claim for false arrest or false imprisomnent.
If he has been imprisoned pursuant to legal but wrongful process, he has a
claim under the procedural component of the Fourteenth Amendment's Due
Process Clause analogous to a tort claim for malicious prosecution. These
torts are only analogies because § 1983 suits ultimately rest on the
Constitution, not on state (or federal) common law. Pierce, 359 F.3d at
1285-88. However, these analogies guide us in applying rules for the
accrual of a cause of action.

Both Fourth Amendment claims and due process claims for
unconstitutional imprisonment are subject to special federal rules of
accrual. As the Supreme Court explained in Wallace, the statute of
limitations for a Fourth Amendment claim for false arrest or imprisonment
"begin[s] to run ... when the alleged false imprisonment ends." 127 S.Ct. at
1096 (internal quotation marks omitted). The false imprisonment ends for
these purposes either when the victim is released or when the victim's
imprisomnent becomes "pursuant to [legal] process—when, for example,
he is bound over by a magistrate or arraigned on charges." Id. (emphasis
omitted). Thus, either the date of release or the date of sufficient legal
process starts the statute of limitations running for the Fourth Amendment
claim.

Pacheco, 627 F.3d 1178, 1189-90 (10th Cir. 2010) (the applicable limitations period for § 1983 actions filed in the
District of Wyoming is four years).

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After the institution of legal process, any remaining constitutional
claim is analogous to a malicious prosecution claim. . . . [The Tenth
Circuit] has held that the Constitution pennits due process claims for
wrongful imprisomnent after the wrongful institution of legal process.
Pierce^ 359 F.3d at 1285-86. [It] also held that a due process claim for
malicious prosecution arises only once "the original action," whatever form
it has taken, has "been tenninated in favor of the plaintiff." Id. at 1294.
Because the statute of limitations does not start running before the elements
of a claim are satisfied, the statute of limitations for this due process claim
cannot start until the plaintiff has achieved a favorable result in the original
action.

In summary, two claims arise from an allegedly unconstitutional
imprisomnent as analysis "shifts" from the Fourth Amendment to the Due
Process Clause. Pierce, 359 F.3d at 1285-86. The period of time between
an unlawful arrest and the institution of legal process fonns one
constitutional claim, arising under the Fourth Amendment. That claim
accrues when the plaintiff is released or legal process is instituted justifying
that imprisonment. The period of time between the institution of that
process and its favorable termination—through acquittal, habeas
corpus, voluntary dismissal, etc.—forms a second claim, arising under
the Due Process Clause. That claim accrues, at the earliest, when
favorable termination occurs.

Mondragon v. Thompson, 519 F.3d 1078, 1082-83 (10th Cir. 2008) (emphasis added).
Plaintiffs § 1983 claims arise under the Due Process clause and, therefore, his claims
accrued upon entry of the Order of Actual Innocence on August 1, 2013.^ Plaintiff filed
this action on April 17, 2017, within the applicable four-year limitation period."^

^ See Bledsoe v. Jefferson Cty., Kan., 275 F. Supp. 3d 1240, 1256-57 (D. Kan. 2017) (plaintiffs § 1983 due process
claims asserting Brady violations accrued when state court overturned his conviction); Smith v. Gonzales, 222 P.3d
1220, 1222 (10th Cir. 2000) (statute of limitations began to run on ex-convict's § 1983 claim based on prosecution's
Brady violation when conviction was vacated in federal habeas proceedings).
Delendants argue the deferred accrual rule articulated in Heck v. Humphrey, on which Plaintiff relies, does not
apply to Plaintiffs claims. In Heck, the Supreme Court held that, "in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance of a writ of habeas corpus." 512 U.S. 477, 786-
87 (1994). "A claim for damages bearing that relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983." Id at 487. Defendants contend that, on direct appeal of this Court's
previous dismissal of Plaintiffs claims, the Tenth Circuit Court of Appeals rejected Plaintiffs //ec^-based

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Defendant Estate of Stanford also argues this Court lacks subject matter
jurisdiction over it because:" (I) Plaintiff is proceeding as a creditor of the Estate and, as
such, was required to seek appointment of a personal representative of Detective
Stanford's estate within two years of his death pursuant to Wyo. Stat. §§ 2-4-211 and 2-
4-212; and (2) there is no real or personal property in the Estate. Section 2-4-211
provides: "If letters testamentary or of administration have not been issued upon the
request of any other person, any creditor of the decedent may apply for letters of
administration at any time within two (2) years after the death of decedent, but not
afterwards." Section 2-4-212 further provides: "If the letters are not issued within the
time specified, all claims of creditors are forever barred and the purchasers of the
property of the decedent from the heirs of the decedent shall take the title free from any
claim of creditors... The Court finds Defendant Estate's argument is misplaced.

Because no federal law addresses the issue of the survival of a civil rights action
under § 1983 following the death of a party, "§ 1988 gives authority to the courts to look
arguments. See Johnson v. Spencer, 950 F.3d 680, 695-98 (10th Cir. 2020). However, the Court of Appeals did not
address whether governed the actual accrual of PlaintifTs claims; rather, it simply rejected Plaintiffs argument
that the judgments entered in his "pxQ-Heck civil actions were void because the court lacked jurisdiction to enter those
judgments. See id. at 695-96. "While it is true that '[a] judicial construction of a statute is an authoritative
statement of what the statute meant before as well as after the decision of the case giving rise to that construction,'
Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 [] (1994), that does not mean that Heck's interpretation of §
1983 must apply retroactively to void earlier final judgments." Johnson, 950 F.3d at 696-97. "Even if the district
court's exercise of jurisdiction constituted error under Heck, it certainly was not the sort of 'plain usurpation of
power' that would have rendered the judgments entered in those actions void." Id. at 698. So, the Tenth Circuit's
determination that Heck "did nothing to disturb civil judgments entered under a prior understanding of [§ 1983],"
does not change the analysis as to when Plaintiffs claims began to run for statute of limitations purposes.
" A dead person obviously caimot be named as a party defendant in a lawsuit. LN Mgmt., LLC v. JP Morgan Chase
Bank, N.A.. 957 F.3d 943, 950-51 (9th Cir. 2020). Moreover, an estate is not a legal entity that can be sued; instead,
any action must be brought against the personal representative of the estate. See id.', Wyo. Stat. § 2-7-718. Where
an estate has been closed or, as it appears in this case, no estate has been created, a plaintiff "must vindicate himself

of the procedures afforded to him under [] state law for reestablishing [or establishing] a personal representative of
[decedent's] estate," and then name that representative as a defendant. Washington v. Baltimore Police Dep't, —
F.3d —, 2020 WL 2198083, at *16 (D. Md. 2020) (denying motion to appoint personal representative for deceased
police officer named as defendant in 1983 action alleging violation of constitutional rights stemming from wrongful
conviction).

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to state law to determine which actions survive."'^ Rosa v. Cantrell, 705 F.2d 1208, 1221
(10th Cir. 1982). See also Jackson v. City of Cleveland, 925 F.3d 793, 810 (6th Cir.
2019). The applicable Wyoming law provides:

In addition to the causes of action which survive at common law, causes of
action for mesne profits, injuries to the person, an injury to real or
personal estate, or any deceit or fraud also survive. An action may be
brought notwithstanding the death of the person entitled or liable to the
same, but in actions for personal injury damages, if the person entitled
thereto dies recovery is limited to damages for wrongful death.

Wyo. Stat. § 1-4-101 (1977) (emphasis added). In determining the threshold issue of
whether Plaintiffs present action as against Detective Stanford survives the detective's
death, the Court finds persuasive Jackson v. City of Cleveland, in which the court applied
Ohio's survival statute, which is nearly identical to Wyoming's in all relevant respects.
There, the Sixth Circuit Court of Appeals detennined "all claims brought under § 1983
are to be treated as actions sounding in personal injury tort;" and, because Ohio's survival
statute provides that "actions for personal injury survive the death of the tortfeasor, and
that statute does not conflict with the laws of the United States . . ., all § 1983 actions
brought in Ohio survive the death of the tortfeasor." 925 F.3d at 812 (citing Crabbs v.
Scott, 880 F.3d 292, 295 (6th Cir. 2018)).

Pursuant to Wyo. Stat. § 2-7-706, "[wjhere a cause of action against the decedent
survives his death under W.S. 1-4-101 . . before an action may be brought thereon in
any court, a claim based thereon shall be filed and shall have been rejected by the
Section 1988 provides that "in ail cases where [the laws of the United States] are deficient in the provisions
necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed
by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is
held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to
and govern the said courts in the trial and disposition of the cause[.]" 42 U.S.C. § 1988(a).

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personal representative. . . . Any judgment rendered by any court with respect to which
compliance with this section has not been accomplished, if sought to be enforced, shall be
deemed to be a claim not timely filed under W.S. 2-7-703." (Emphasis added.)
Despite Plaintiff having not applied for letters of administration within two years
after Detective Stanford's death, the state court ordered the issuance of Letters of
Administration designating Gregory C. Dykeman as Administrator of Stanford's estate
on June 9, 2017 (ECF No. 38-2) (though Plaintiff has not formally moved to amend his
complaint to replace "DOE 1" with the actual name of the personal representative).'^ On
June 19, 2017, Plaintiff filed a creditor's claim against the Stanford estate for unspecified
amounts to be awarded in this federal action, and the administrator rejected the claim.
Matter ofEstate of Stanford, 448 P.3d 861, 863 (Wyo. 2019). Mr. Dykeman, as personal
representative, was served with this lawsuit on June 29, 2017 (ECF No. 41). Still, the
record reflects Plaintiff did not file a claim based on his § 1983 action, and receive a
rejection thereof by the personal representative, before bringing this action as required by
§ 2-7-706. Nevertheless, the Court finds the record and arguments related to these issues
Plaintiffs attorney filed a petition for probate of the intestate estate of George W. Stanford, and for appointment
of an administrator, on May 31, 2017 in Wyoming's First Judicial District Court (EOF No. 38-1). After the petition
was granted, and an administrator appointed, the State of Wyoming filed an objection to the appointment of Mr.
Dyekman as administrator of the estate. See Matter of Estate of Stanford, 448 P.3d 861, 863 (Wyo. 2019); Def.
Estate of Stanford's Mem. in Supp. of Mot. to Dismiss at II. On October 15, 2018, the probate court judge entered
an order vacating the appointment of the administrator and closing the estate, finding the State had standing to object
to the appointment and the grant of Administration of the Estate upon Plaintiffs speculative and untimely claim
"was improvidently ordered" (citing Wyo. Stat. §§ 2-4-211, -212). 448 P.3d at 863. On appeal, the Wyoming
Supreme Court held the "State did not meet the requirements for standing," so the district court "should have
dismissed the State's objection." Id. at 866. The state supreme court thus reversed the lower court's decision,
leaving unanswered any questions regarding the timeliness of Plaintiff s petition. It appears no further proceedings
have taken place in the state court probate matter following the ruling on appeal.

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are insufficiently developed, making any determination of them at this stage of the
proceedings ill-advised."'*

C. Qualified Immunity

This doctrine balances "the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties
reasonably." Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172
L.Ed.2d 565 (2009). Qualified immunity is more than a defense to liability:
It is "an immunity from suit" that "is effectively lost if a case is erroneously
permitted to go to trial." Mitchell, 472 U.S. at 526, 105 S. Ct. 2806
(emphasis omitted). Accordingly, qualified "immunity questions [should be
resolved] at the earliest possible stage in litigation." Hunter v. Bryant, 502
U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiani).
Schwartz, 702 F.3d at 579. "Once an individual defendant asserts qualified immunity,
the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a
federal constitutional or statutory right, and, if so, (2) that the right was clearly
established at the time of the defendant's unlawful conduct." Gutierrez v. Cabas, 841
F.3d 895, 900 (10th Cir. 2016) (internal quotation marks and citation omitted). If a
plaintiff fails to establish either part of this "heavy two-part burden," a court must grant
the defendant qualified immunity. Grissom v. Roberts, 902 F.3d 1162, 1167 (10th Cir.
2018). "Under this test, 'immunity protects all but the plainly incompetent or those who
knowingly violate the law.'" Id. (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018)).

As stated above, Plaintiffs claims are based on alleged violations of his
constitutional due process right to a fair trial. See Smith, 50 F.3d at 835. The Due
In its reply brief (filed jointly with Defendant Spencer), Defendant Estate of Stanford did not address Plaintiffs
responsive arguments regarding the timeliness of the claims against the Estate pursuant to Wyo. Stat. 2-4-211 and
2-4-212 {see ECF No. 148, generally).

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Process Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deprive
any person of life, liberty, or property, without due process of law[.]" U.S. Const, amend.
XIV, § 1. "The due process clause does not confer upon a criminal defendant a right to
an error-free trial. But it unquestionably guarantees a criminal defendant a fundamental
right to a fair trial." Smith, 50 F.3d at 835 (emphasis in original) (citations omitted).
1. Suppression and/or Failure to Preserve/Disclose Exculpatory Evidence
Plaintiffs first two claims against Defendants Spencer and Estate of Stanford are
closely related and revolve around the alleged withholding and/or mis-handling of
"forensic photos" supposedly taken at the crime scene. In Brady v. Maryland, 373 U.S.
83, 87 (1963), the Supreme Court held "the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution." In other words, "the State violates a defendant's right to due process if it
witliholds evidence that is favorable to the defense and material to the defendant's guilt
or punishment." Smith v. Cain, 565 U.S. 73, 75 (2012). "[E]vidence is 'material' within
the meaning of Brady when there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different." Id. (quoting Cone v.
Bell, 556 U.S. 449, 469-70 (2009)). The Tenth Circuit has described the boundaries of a
Trombetta/Youngblood claim as follows:

To the extent the Constitution's due process guarantees impose a
duty upon the government to preserve evidence, the Supreme Court has told
us that the "duty must be limited to evidence that might be expected to play
a significant role in the suspect's defense." California v. Trombetta, 467
U.S. 479, 488-89, 104 S. Ct 2528, 81 L.Ed.2d 413 (1984). To qualify as

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constitutionally material in this sense, the evidence must: (1) "possess an
exculpatory value that was apparent [to the police] before the evidence was
destroyed," and (2) "be of such a nature that the defendant would be unable
to obtain comparable evidence by other reasonably available means." Id. at
489, 104 S. Ct. 2528. In addition, "if the exculpatory value of the evidence
is indetenninate and all that can be confirmed is that the evidence was
'potentially useful' for the defense," then the defendant must also show (3)
"that the government acted in bad faith in destroying the evidence." United
States V. Bohl^ 25 F.3d 904, 910 (10th Cir. 1994) (quoting Arizona v.
Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L.Ed.2d281 (1988)).
United States V. Ltidwig, 641 F.3d 1243, 1253-54 (10th Cir. 2011).

Defendants argue Plaintiff has not alleged sufficient facts to show they violated his
constitutional rights and that those rights were so clearly established at the time of the
alleged misconduct that every reasonable officer would have understood what they did
was unconstitutional. See Ashcroft v. al-Kidd^ 563 U.S. 731, 741 (2011) ("A Government
official's conduct violates clearly established law when, at the time of the challenged
conduct, the contours of a right are sufficiently clear that every reasonable official would
have understood that what he is doing violates that right.") (internal quotations and
citation omitted). A case directly on point is not required for a law to be clearly
established, "but existing precedent must have placed the statutory or constitutional
question beyond debate." Id.

With respect to the allegedly "missing Crime Scene forensic photographs,"
Plaintiff alleges first-responder Officer Raybuck "shot a full roll of 35 mm color film
consisting of at least 24 to 36 photo negatives" at the crime scene the morning of the
assault. (Compl. H 32.) Officer Raybuck's contemporary written report purportedly
states: "When Spencer returned [from talking with the neighboring tenant], 1 assisted

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Slagle to gather up some clothing to take to the hospital with her. I then took photos of
the broken door glass and the floor by the door. I then went to Memorial Hospital where
I took photos of bruises and scratches on Slagles [sic] anus and inner thigh .... The film
that I used was given to P-46 to be placed in evidence." {Id.) Plaintiff indicates Officer
Spencer's badge number was P-46. {Id. T| 5.) Plaintiff further alleges Officer Raybuck
prepared a handwritten log of the crime scene photos he took that day, which "has since
been destroyed, misplaced, or lost, [and] was never disclosed by [the Cheyenne Police
Department] to Plaintiffs criminal trial counsel." {Id. ^ 33.) While Plaintiffs allegations
as to the materiality and exculpatory nature of the missing photographic evidence are
somewhat conclusory, he does allege such evidence would have enabled his criminal trial
counsel to impeach the victim's and/or officers' testimony about why Plaintiffs
identification and driver's license were found in the apartment and where they were
initially found, and about the location where the victim supposedly found Plaintiffs
eyeglasses. Though tenuous, Plaintiffs factual allegations are sufficient to state a
plausible violation of his constitutional rights.

As to the second part of Plaintiffs burden. Plaintiff contends the constitutional
principles set forth in the Brady/Trombetta/Youngblood line of cases were all clearly
established by the time of the 1989 investigation and prosecution of Plaintiff. The
Supreme Court has repeatedly emphasized, however, that "clearly established law" must
not be defined "at a high level of generality." Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018). Still, "general statements of the law are not inherently incapable of giving fair
and clear warning to officers, but in the light of pre-existing law the unlawfulness must

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be apparent." White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal quotations and
citations omitted). Plaintiff does not cite a case clearly establishing that all photographic
evidence obtained by investigating officers at the crime scene qualifies as exculpatory
evidence which must be disclosed and/or preserved. Instead, Plaintiff argues less
specificity is required here because Defendants would have obviously understood their
conduct violated established law in light of prevailing constitutional principles. See A.M.
V. Holmes, 830 F.3d 1123, 1135-36 (10th Cir. 2016) ("The more obviously egregious the
conduct in light of prevailing constitutional principles, the less specificity is required
from prior case law to clearly establish the violation.").

By the time of Plaintiffs prosecution, the Supreme Court had established that
"[ijmpeachment evidence, [] as well as exculpatory evidence, falls within the Brady
rule[,] ... as 'evidence favorable to an accused."' United States v. Bagley, 473 U.S. 667,
676 (1985) (citations omitted). Moreover, with respect to the burden of showing a clearly
established constitutional right by citing "a Supreme Court or Tenth Circuit opinion
finding a constitutional violation on facts similar to those alleged in the complaint," the
Tenth Circuit recently observed that the Supreme Court "tempered this direction in Paidy
by also acknowledging that clearly established general rules of law can provide notice of
the unlawfulness of an official's conduct in appropriate circumstances." A.M. by &
through Ponder v. Syling, 928 F.3d 1191, 1197-98 (10th Cir. 2019). "In other words,
"general statements of the law can clearly establish a right for qualified immunity
purposes if they apply with obvious clarity to the specific conduct in question. And this

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is so even though the very action in question has not previously been held unlawful." Id.
at 1198 (internal quotations and citations omitted).

Whether photographic evidence is in fact material and exculpatory depends on the
facts of individual cases. See Ballinger v. Kerby, 3 F.3d 1371, 1375 (10th Cir. 1993)
("The question of materiality and the possible effect of the withheld evidence on the
verdict is a mixed question of fact and law."). Accepting Plaintiffs factual allegations
regarding the material and exculpatory nature (and existence) of the photographic
evidence as true - which the Court must at this stage of the proceedings - it would have
been apparent to Defendants that a failure to disclose and/or preserve the photographs
taken at the scene shortly after the crime was committed would violate Plaintiff s due
process rights. Therefore, Defendants Spencer and Estate of Stanford are not entitled to
qualified immunity on Plaintiffs first two (Brady/Trombetta/Youngblood) claims.'^

2. Fabrication of Evidence

Plaintiffs third claim for relief alleges Defendant Spencer (and Does 11-15)
deliberately fabricated evidence by showing Ms. Slagle Plaintiffs identification card or
driver's license (which was indisputably found in the attic apartment) "when endeavoring
to learn the identity of the intruder and before Ms. Slagle in any way generally or
specifically identified the man who 'hurt' her . . . that early morning." (Compl. ]| 73.)

In their original motions to dismiss filed in 2017, the individual Defendants argued entitlement to absolute
immunity because Plaintiffs claims were based on their trial testimony, citing Briscoe v, LaHue, 460 U.S. 325, 345
(1983) (testifying police officer entitled to absolute immunity). {See ECF Nos. 18 at 14-16,46 at 16-17.) However,
although Plaintiffs Complaint makes references to Defendants' trial testimony, read as a whole, it is clear his first
two claims for relief are based on Defendants' actions related to the allegedly missing forensic photos and not to the
Defendants' later trial testimony. (See PL's Mem. in Opp'n to Def. Spencer's Renewed Mot. to Dismiss at 8)
("Accurately read, [] and read as a whole, it is clear that the Complaint alleges that Defendants' actions comprised
constitutional violations that preceded and extended far beyond their testimony at Mr. Johnson's criminal trial.").
Defendants did not address the issue of absolute immunity in their reply brief. {See ECF No. 148.)

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Plaintiff contends this violated his due process right to a fair trial because it "corruptly
influence[ed]" Ms. Slagle "to affirmatively assert" Plaintiff was the perpetrator of the
assault.'^ {Id. 73-74.) The Court finds Plaintiff has not alleged sufficient facts that
show Defendant Spencer plausibly violated his constitutional rights in this manner.
Plaintiff characterizes Defendant Spencer's conduct as a "contrived one-person
photo array" constituting a fabrication of evidence that "unreasonably influenced the
alleged victim and created unreliable evidence." (PL's Mem. in Opp'n to Def. Spencer's
Renewed Mot. to Dismiss at 3.) More specifically, Plaintiff alleges "Spencer removed
[his] driver's license from the coffee table, showed it to Ms. Slagle, and impermissibly
prompted her to identify [Plaintiff] as her assailant." Id. "Because the focus is on
whether the officer had fair notice that [his] conduct was unlawful, reasonableness is
judged against the backdrop of the law at the time of the conduct." Grissom, 902 F.3d at
1167 (quoting Kisela, 138 S. Ct. at 1152) (internal quotation marks omitted). Plaintiff
cites two pre-1989 cases he argues gave Defendant Spencer "fair notice" that his conduct
was unlawful. The Court disagrees.

First, in Manson v. Brathwaite, 432 U.S. 98 (1977), the Supreme Court considered
the constitutionality of pretrial identification evidence obtained by police. There, an
undercover agent identified the defendant, whom he previously did not know, by a single

To the extent Plaintiffs third claim is based on allegations Defendant Spencer "falsely reported" where in the
apartment he found Plaintiffs identification or that Ms. Slagle identified her alleged assailant by nickname or
initials before Spencer showed her the identification/driver's license (Compl. 74), Plaintiff does not state a
constitutional violation. See Warnick v. Cooley, 895 F.3d 746, 753 (lOtli Cir. 2018). And, to the extent Plaintiffs
third claim is based on the allegation Spencer "falsely testified" to the same {see Compl. 1| 74), Defendant Spencer
would be entitled to absolute immunity. See Bledsoe v. Vanderbilt, 934 F.3d 1112, 1118-21 (10th Cir. 2019)
(absolute immunity applies to defendant's use of fabricated evidence at trial but does not shield a defendant from
allegations he fabricated evidence during the preliminary investigation).

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photograph which he viewed two days after a controlled buy. Id. at 99-101. At trial, the
photograph from which the undercover agent had identified the defendant was received in
evidence and the agent testified that the person shown in the photo was the defendant. Id.
at 102. "No explanation was offered by the prosecution for the failure to utilize a
photographic array or to conduct a lineup." Id. Though the procedure used was both
"suggestive and unnecessary," the Court detennined, considering the totality of the
circumstances,'^ admission of the evidence did not violate the Due Process Clause. Id. at
114-16.

In making its detennination, the Supreme Court concluded that "reliability is the
linchpin in determining the admissibility of identification testimony. .. and the factors to
be considered . . . include the opportunity of the witness to view the criminal at the time
of the crime, the witness' degree of attention, the accuracy of his prior description of the
criminal, the level of certainty demonstrated at the confrontation, and the time between
the crime and the confrontation." Id. at 114. Here, Plaintiff admits Ms. Slagle knew him
and even spent time with him before the assault; Plaintiff admits he was in the attic
apartment that evening, leaving behind his identification; Ms. Slagle was certain in her
identification of Plaintiff as her alleged assailant, which occurred within minutes of the
crime. These indicators of the reliability of Ms. Slagle's identification are hardly
outweighed by any suggestive effect of the challenged identification itself. See id. at 116.

Although ultimately rejecting a strict rule of exclusion regarding suggestive photographic identification, the
Supreme Court acknowledged such a rule attempts to address concern with eyewitness identification - specifically
that "[ujsually the witness must testify about an encounter with a total stranger . . . [and] the witness' recollection of
the stranger can be distorted easily by the circumstances or by later actions of the police." 432 U.S. at 112. Such
concerns were not at issue in the circumstances presented in this case, as Plaintiff admits he and the victim were
acquaintances and had been socializing together the evening of the alleged assault.

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Where in the apartment Patrolman Spencer found the identification, or whether Ms.
Slagle first indicated "A.J." was her assailant, is immaterial - Defendant Spencer's
actions in showing Ms. Slagle Plaintiffs I.D./driver's license and asking if he was the
perpetrator simply cannot be fairly characterized as "crafting false evidence" or
fabricating evidence. (See Pl.'s Mem. in Opp'n to Def. Spencer's Renewed Mot. to
Dismiss at 18.)

Plaintiff also cites Johnston v. Makowski, 823 F.2d 387 (10th Cir. 1987), which
likewise supports a finding Defendant Spencer's actions did not violate Plaintiffs due
process right to a fair trial. In Johnston^ the defendant/appellant claimed the trial court
violated his due process rights by permitting an in-court identification which he asserts
was tainted by a prior impennissibly suggestive photographic identification. Id. at 388.
In that case, the victim identified her assailant from a photo array shown to her a few
weeks after the assault against her, which consisted of several old pictures and a newly
taken photo of the defendant. Id. at 389. The Tenth Circuit Court of Appeals determined
the due process clause requires a two-pronged inquiry when an identification procedure is
challenged: "first, it must be determined whether the identification procedure was
impennissibly suggestive; and, second, if it is found to have been so, whether the
identification nevertheless was reliable in view of the totality of the circumstances." Id.
at 391. Although the appellate court found the photo array was impennissibly suggestive
"since [defendant's] picture obviously was newly taken, whereas the other pictures were
visibly older," it rejected defendant's due process claim because, under the totality of
circumstances, the identification of defendant was reliable. Id. In doing so, the Tenth

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Circuit court cited and considered the factors set forth in Manson, supra. As discussed
above, this Court finds those factors of reliability present in this case outweigh any
suggestive or corrupting effect of the challenged identification itself. Regardless,
Plaintiff has failed to first show that Patrolman Spencer's actions - in asking Ms. Slagle
within minutes of the assault if the perpetrator was the person depicted in the
identification found at the scene - were impennissibly suggestive. Nor does Plaintiff
allege facts establishing Defendant Spencer should have somehow known Ms. Slagle was
lying. Thus, Defendant Spencer is entitled to qualified immunity with respect to
Plaintiffs third claim for relief.

D. Municipal Liability

Plaintiffs fourth and fifth claims for relief assert municipal liability against
Defendant City of Cheyenne based on allegations of selective preservation and disclosure
of evidence (fourth claim) and inadequate training and/or supervision (fifth claim). "[A]
local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents." Waller v. City & Cty. of Denver, 932 F.3d 1277, 1283 (10th Cir.
2019) (quoting Monell v. Dep't of Sac. Servs., 436 U.S. 658, 694 (1978)) (internal
quotation marks omitted). "Instead, 'the government as an entity' may only be held
liable 'when execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy,
inflicts the injury.'" Id. (quoting Monell, 436 U.S. at 694). A municipal "policy or
custom" may take the form of:

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(1) a formal regulation or policy statement; (2) an informal custom
amounting to a widespread practice that, although not authorized by written
law or express municipal policy, is so pennanent and well settled as to
constitute a custom or usage with the force of law; (3) the decisions of
employees with final policymaking authority; (4) the ratification by such
final policymakers of the decisions—and the basis for them—of
subordinates to whom authority was delegated subject to these
policymakers' review and approval; or (5) the failure to adequately train or
supervise employees, so long as that failure results from deliberate
indifference to the injuries that may be caused.

Id. (quoting Bfyson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010)).

After establishing a municipal policy or custom, a plaintiff must
demonstrate "a direct causal link between the policy or custom and the
injury alleged." Bryson, 627 F.3d at 788 (internal quotation marks omitted).
"Where a plaintiff claims that the municipality has not directly inflicted an
injury, but nonetheless has caused an employee to do so, rigorous standards
of culpability and causation must be applied to ensure that the municipality
is not held liable solely for the actions of its employee." [Bd. of Cty.
Comm'rs of Bryan Cty, Okla. v. Brown, 520 U.S. 397, 405 (1997)]. "The
causation element is applied with especial rigor when the municipal policy
or practice is itself not unconstitutional, for example, when the municipal
liability claim is based upon inadequate training, supervision, and
deficiencies in hiring." Schneider v. City of Grand Junction Police Dep V,
717 F.3d 760, 770 (lOth Cir. 2013) (internal quotation marks omitted).
Finally, at least for claims of inadequate hiring, training, or other
supervisory practices, a plaintiff "must demonstrate that the municipal
action was taken with 'deliberate indifference' as to its known or obvious
consequences." Brown, 520 U.S. at 407.
Id. at 1284.

1. Preservation and Disclosure of Evidence

Plaintiff does not allege the execution of any fonnal City regulation or policy
inflicted injury upon him; rather, he alleges that, in 1989, the Cheyenne Police
Department ("CPD") had no written policies or procedures, or had constitutionally
inadequate written policies or procedures, addressing the proper handling and disclosure

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of crime scene forensic photographs, which "was a moving force in causing
constitutional injury" to him. {See CompL 79-80.) Alternatively, Plaintiff alleges
CPD "inadequately monitored and enforced its written policies or procedures" related to
the preservation and/or disclosure of crime scene photographs. 7^/. T] 81. Plaintiff further
alleges CPD's custom or practice in 1989 relating to crime scene photographs -
specifically, "for the investigating patrolman and/or detective and/or CPD supervisor to
maintain in his/her own case investigation file" the negatives and/or prints of the
photographs - allowed for the "selective" preservation and disclosure of the negatives
and prints, which was somehow a "moving force in causing constitutional injury" to
Plaintiff. Id. 83-84.

Plaintiffs Complaint identifies a host of policies or procedures CPD allegedly
should have had, or if it did have, should have better monitored or enforced. (Compl.
79, 81.) However, Plaintiff cites no authority supporting that such specific procedures
were (or are) constitutionally required,'^ or that the lack of or failure to enforce such
specific policies or procedures was a "moving force" behind Plaintiffs alleged due
process deprivation. See Brown, 520 U.S. at 400 ("in enacting § 1983, Congress did not
intend to impose liability on a municipality unless deliberate action attributable to the
municipality itself is the "moving force" behind the plaintiffs deprivation of federal
rights") (emphasis in original). A § 1983 plaintiff "cannot simply assert that there should
be a policy[.]" Tomberlin v. Clark, 1 F. Supp. 3d 1213, 1230 (N.D. Ala. 2014). Indeed,
See Stokes v. Bullins, 844 F.2d 269,275 (5th Cir. 1988) (refusing to constitutionalize a single criterion - the NCIC
report - for hiring policemen).

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CPD officers were already constitutionally required to comply with the dictates of the
Brady/Trombetta/Youngblood line of cases with respect to the disclosure and preservation
of evidence. Thus, it can hardly be said that a lack of, or inadequate, or failure to
enforce, certain written policies or procedures regarding the proper handling and
disclosure of crime scene photographs caused the individual defendants to violate
Plaintiffs due process rights.

Still, another way of challenging a municipal policy is to object to omissions in the
policy, see Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005), and official municipal
policy also includes "practices so persistent and widespread as to practically have the
force of law," Connick v. Thompson, 563 U.S. 51, 61 (2011). Moreover, a "city's 'policy
of inaction' in light of notice that its program will cause constitutional violations is the
functional equivalent of a decision by the city itself to violate the Constitution." Id. at
61-62 (internal quotation marks and citation omitted) (emphasis added). Plaintiff states
his municipal liability claims "are primarily founded on the City's deficient policies and
widespread customs of inaction." (PL's Mem. in Opp'n to Def. City's Renewed Mot. to
Dismiss at 11.) "In both of these situations, the claim requires more evidence than a
single incident to establish [municipal] liability." Calhoun, 408 F.3d at 380 (citing City
of Okla. V. Tuttle, 471 U.S. 808, 822-23 (1985)). The Seventh Circuit Court of Appeals
further explained:

Both in the "widespread practice" implicit policy cases and in the cases
attacking gaps in express policies, what is needed is evidence that there is a
true municipal policy at issue, not a random event. If the same problem has
arisen many times and the municipality has acquiesced in the outcome, it is
possible (though not necessary) to infer that there is a policy at work, not

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the kind of isolated incident that Brown held cannot support municipal
liability.

Id. (citing Tutde, 471 U.S. at 823). Accordingly, "where the policy relied upon is not
itself unconstitutional, considerably more proof than the single incident will be necessary
in every case to establish both the requisite fault on the part of the municipality, and the
causal connection between the [deficient policy] and the constitutional deprivation."
Tutde, 471 U.S. at 824. Likewise, "[a] single unconstitutional incident is ordinarily
insufficient for municipal liability" to attach under the "informal custom" theory.
Murphy v. City ofTulsa, 950 F.3d 641, 649 (10th Cir. 2019). See also Depew v. City of
St. Marys, Ga., 787 F.2d 1496, 1499 (11th Cir. 1986) ("To establish a policy or custom, it
is generally necessary to show a persistent and wide-spread practice. . . . Normally
random acts or isolated incidents are insufficient to establish a custom or policy.").
Plaintiff alleges facts only about his own case and fails to allege a single fact
involving other instances of constitutional violations resulting from the same allegedly
inadequate policies and procedures. Therefore, Plaintiff fails to state a plausible claim
against Defendant City of Cheyenne for the alleged selective preservation and disclosure
of photographic evidence.

2. Inadequate Training and/or Supervision

Plaintiff alleges the training of Detective Stanford was inadequate in that he "had
little or no classroom detective training as of the time he was assigned to investigate the
crimes of which [Plaintiff] was accused, charged, and convicted." (Compl. ^ 92.) Thus,
Plaintiff alleges, "Detective Stanford was unfit for conducting the investigation and unfit

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to make charging recommendations without very substantial active participation, or very
active and critical oversight, of the investigation by another appropriately trained and
experienced CPD peace officer." Id. 95. Plaintiff also generally alleges CPD
"inadequately trained and monitored and supervised" Defendant Spencer "in his patrol
officer conduct in this case." Id. T| 93. Through this inadequate training and lack of
supervision, Defendant City allegedly "set in motion a series of acts by Detective
Stanford and/or Patrolman Spencer and/or others which these defendants knew or should
have known would cause constitutional injuries to [Plaintiff]." Id. T| 96. Plaintiff further
alleges:

In light of the duties assigned CPD detectives, including but not
limited to Detective Stanford, the need for more and different training
and/or supervision in investigations of alleged interracial rape was obvious,
and with the exercise of reasonable care should have been obvious to
Defendant City[.] . . . Defendant City . . . [was] recklessly, callously, or
deliberately indifferent, or willfully blind, to the need for such supervision
and for the completion of such training by Detective Stanford, prior to
undertaking or completing such investigations, given that the inadequacy or
absence of such supervision and/or training was so likely to result in
violation of a non-Caucasian suspect's constitutional rights.
Id. T1 98.

" 'Deliberate indifference is a stringent standard of fault, requiring
proof that a municipal actor disregarded a known or obvious consequence
of his action,'" Coa2/7/cA: V. Thompson, 563 U.S. 51,61, 131 S.Ct. 1350, 179
L.Ed.2d 417 (2011) (quoting Brown, 520 U.S. at 410, 117 S.Ct. 1382)
(internal quotation marks and brackets omitted), as "[a] less stringent
standard of fault for a failure-to-train claim 'would result in de. facto
respondent superior liability on municipalities,' " id. at 62, 131 S.Ct. 1350
(quoting City of Canton v. Harris, 489 U.S. 378, 392, 109 S.Ct. 1197, 103
L.Ed.2d 412 (1989)). "The deliberate indifference standard may be satisfied
when the municipality has actual or constructive notice that its action or
failure to act is substantially certain to result in a constitutional
violation, and it consciously or deliberately chooses to disregard the risk

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of harm." Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). "In
most instances, notice can be established by proving the existence of a
pattern of tortious conduct." Id. Deliberate indifference "may be found
absent a pattern of unconstitutional behavior" only in "a 'narrow range of
circumstances'" where "a violation of federal rights is a 'highly
predictable' or 'plainly obvious' consequence of a municipality's action or
inaction." Id. at 1307-08 (quoting Brown, 520 U.S. at 409, 117 S.Ct. 1382).
Waller, 932 F.3d at 1284 (emphasis added). Acknowledging his failure to allege facts
showing a pattern of tortious conduct. Plaintiff alleges a violation of his constitutional
rights was an obvious consequence of the City's/CPD's inadequate training and/or
supervision of Detective Stanford and Patrolman Spencer. See City of Canton, 489 U.S.
at 390. Plaintiffs conclusory allegations, however, fail to state a plausible claim.
"A municipality's culpability for a deprivation of rights is at its most tenuous
where a claim turns on a failure to train." Id. at 1285 (quoting Connick, 563 U.S. at 61).
To satisfy the stringent deliberate indifference standard, [a] pattern of
similar constitutional violations by untrained employees is ordinarily
necessary: Without notice that a course of training is deficient in a
particular respect, decisiomnakers can hardly be said to have deliberately
chosen a training program that will cause violations of constitutional rights.
Evidence of a pre-existing pattern of violations is only unnecessary in a
narrow range of circumstances, however rare, in which the unconstitutional
consequences of a failure to train are "highly predictable" and "patently
obvious."

Id. (internal quotations and citations omitted). The factual allegations in Plaintiffs
Complaint are insufficient to make this showing. First, the only specific inadequacy
Plaintiff identifies in Detective Stanford's training is that he had "little or no classroom
detective training." (Compl. ^ 92.) With respect to Stanford's experience. Plaintiff
alleges, as of June 1989, he had been a CPD peace officer for slightly more than 4 years
and had approximately 6 months of detective on-the-job or in-service training. Id.

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Plaintiff alleges no facts whatsoever about the supposed inadequacy of Patrolman
Spencer's training or lack of experience necessary to participate in the investigation of
Plaintiffs criminal case. Plaintiff makes no connection between any particular
inadequacies in CPD's training and the alleged mistakes made by Stanford and Spencer
in the criminal investigation. Plaintiff has simply failed to allege any facts falling within
the "narrow range of circumstances" in which the "need for more or different training
[was otherwise] so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need." Waller, 932 F.3d at 1288 (internal quotations and
citations omitted).

Although Plaintiffs Complaint alleges in conclusory fashion that the City, through
CPD, failed to adequately supervise Stanford and Spencer, it fails to allege any facts
describing how the supervision was inadequate or how the purportedly inadequate
supervision caused Plaintiffs injury. See id. at 1284 ("causation element is applied with
especial rigor" when the municipal liability claim is based upon inadequate training or
supervision). "Aside from conclusory statements, no allegations in the complaint give
rise to an inference that the municipality itself established a deliberate policy or custom
that caused [Plaintiffs] injuries. Consequently, the complaint 'stops short of the line
between possibility and plausibility of entitlement to relief.'" Id. at 1291 (quoting Mocek
V. City of Albuquerque, 813 F.3d 912, 934 (10th Cir. 2015) (internal quotation marks
omitted). Plaintiff has accordingly failed to state a plausible claim against the Defendant
City for inadequate supervision. See id. at 1289.

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