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Howard v. City of Durham

United States District Court, M.D. North Carolina

March 31, 2018

DARRYL HOWARD, Plaintiff,
v.
CITY OF DURHAM, et. al., Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMAS D. SCHROEDER, District Judge.

         Plaintiff Darryl Howard brings this action against the City of Durham and various officers of the Durham Police Department (“DPD”) and Durham Fire Department (collectively, the “Individual Defendants”) for claims arising out of his arrest, conviction, and imprisonment for over twenty-three years until his exoneration and release in 2016. Howard alleges violations of the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983; obstruction of justice; negligence; intentional infliction of emotional distress; malicious prosecution; and a violation of the North Carolina Constitution. (Doc. 1 ¶¶ 120-75.) Before the court is the motion to dismiss certain claims against the Individual Defendants. (Doc. 13.) The motion has been fully briefed and is ready for consideration. (Docs. 14, 19, 21.) For the reasons set forth below, the motion will be granted in part and denied in part.

         I. BACKGROUND

         Viewed in the light most favorable to Howard as the non-moving party, the operative facts are as follows:[1]

         A. Factual History

         On November 27, 1991, Doris Washington and her 13 year-old daughter, Nishonda, were brutally raped, sexually assaulted, strangled, beaten, and murdered, and their apartment was then set on fire. (Doc. 1 ¶ 24.) Although there was evidence implicating others, Howard was arrested and charged with these murders on November 12, 1992. (Id. ¶ 65.) From the beginning of the investigation, there was clear evidence that both Doris and Nishonda were the victims of sexual assault, and both bodies were tested with a rape kit. (Id. ¶¶ 28, 69.) The results initially revealed that sperm was found on Nishonda, but not on Doris. (Id. ¶ 69.) The DNA found on Nishonda was not tested before Howard was charged with both murders. (Id.)

         In February of 1993, Howard's trial counsel requested DNA testing of the rape kits. (Id. ¶ 70.) The testing was conducted and conclusively excluded Howard as the source of the sperm found on Nishonda. (Id. ¶ 71.) Regardless, on March 31, 1995, Howard was convicted of two counts of second-degree murder and one count of first-degree arson, and he was sentenced to eighty years in prison. (Id. ¶ 84.)

         In 1997, Howard filed a pro se motion for appropriate relief in North Carolina Superior Court. That motion was denied, as was a petition for discretionary review to the North Carolina Supreme Court. (Id. ¶ 87.)

         In 2009, after North Carolina created a statutory right to post-conviction DNA testing, N.C. Gen. Stat. § 15A-270, Howard filed an unopposed motion for DNA testing on Doris and Nishonda's rape kits, which was granted in 2010. (Doc. 1 ¶ 88.) The testing of the rape kits confirmed that Howard was properly ruled out as the source of the sperm found on Nishonda's body but also found previously unidentified sperm on Doris's body. (Id. ¶¶ 89-91.) Testing of this sperm also conclusively ruled out Howard as the source but did identify Jermeck Jones, a convicted felon, as a possible match. (Id. ¶¶ 91-93.)

         On August 25, 2011, the North Carolina State Bureau of Investigation crime lab informed the DPD that Jones was a possible match for the newly discovered DNA. (Id. ¶ 94.) On September 15, 2011, apparently upon application by Howard, a North Carolina Superior Court judge entered an order directing the DPD to “immediately share with counsel for Mr. Howard any information it possesses about the man whose DNA was detected in Doris W.'s sexual assault kit.” (Id. ¶ 95.) On December 14, 2011, Michele Soucie, [2]as directed by her sergeant, Scott Pennica, obtained a warrant to collect a DNA sample from Jones. (Id. ¶ 96.)

         After taking Jones into custody but before collecting the DNA sample from him, Soucie and Pennica met with him in an interview room to question him about the Washington murders. (Id. ¶ 97.) During and directly after this interview, Jones made a number of incriminating, contradictory, and inconsistent statements (some of which were made to Soucie and Pennica and some of which were recorded by a device that was hidden in the interview room). (Id. ¶¶ 97-99.) These include: a statement that Doris had been his girlfriend but that he did not kill her; once he was informed that his DNA would be taken, his contradictory statement that he did not know Doris (despite the fact that his DNA was subsequently found on her); a statement that he had consensual sex with Nishonda (despite the fact that she was 13 years old and his DNA was not found on her); the fact that when he was in the interview room alone, he made a series of calls from his cell phone in which he implicated himself in the crimes and indicated that he had just lied to Soucie and Pennica, including statements that he did not want to “rat on anybody, ” that “I ain't said nothing, ” that “ain't nothing they going to learn without my attorney”, and that he had visited the Washington apartment. (Id. ¶ 99)

         Subsequent testing of the DNA sample from Jones found him to be a conclusive match for the newly-discovered DNA. (Id. ¶ 93.)

         Howard alleges, and the court accepts as true for purposes of the present motion, that in a written report on this encounter Soucie misrepresented the interview she had with Jones and intentionally failed to report Jones's contradictory statements or disclose the recording. (Id. ¶ 98.) Howard also alleges that although Soucie and Pennica knew that Jones was not being truthful when they questioned him, they did not conduct any follow-up investigation on Jones's involvement in the crimes. (Id. ¶ 101.)[3]

         On March 19, 2014, Howard's defense counsel filed a motion for appropriate relief in North Carolina Superior Court requesting a new trial based on newly discovered evidence, including, among other things, the new DNA evidence. (Id. ¶ 105.) The Superior Court granted the motion for appropriate relief and ordered a new trial, and the state appealed. (Id. ¶ 106.) Howard's counsel then filed a separate motion for a new trial, arguing that North Carolina General Statute § 15A-270 entitled Howard to a new trial. (Doc. 1 ¶ 108.) In August of 2016, the Superior Court held an evidentiary hearing on the motion. (Id. ¶ 109.) At this hearing, Howard's counsel presented the recording of Jones, which had only been disclosed to counsel the month before. (Id. ¶ 110.) Jones was called as a witness at this hearing but refused to testify and invoked his Fifth Amendment right against self-incrimination. (Id.) At the end of the hearing, the Superior Court ruled from the bench in favor of Howard. (Id. ¶ 111.) In a subsequent written order, the Superior Court found that the DNA test results showed that Howard was innocent of the Washington murders. (Id.) On August 21, 2016, Howard was released from prison.

         B. Procedural History

         On March 24, 2017, Howard filed his complaint in this court. (Doc. 1.) The Individual Defendants and the City of Durham each filed an answer on August 29, 2017. (Docs. 12, 14.) On the same day, the Individual Defendants, but not the City of Durham, moved to dismiss many of Howard's claims. (Doc. 13.) Apparently persuaded by some of the Individual Defendants' arguments, Howard stipulated to the dismissal of several of his claims and responded to the arguments as to remainder. (Doc. 20.) As a result of this stipulation, only the following claims are challenged on substantive grounds: third cause of action (§ 1983 claim under the Fourteenth Amendment for falsifying and withholding evidence) against Soucie and Pennica; fourth cause of action (common law obstruction of justice) against Soucie and Pennica; and fifth cause of action (negligence) against Soucie and Pennica. In addition, the Individual Defendants contend that the fourth, fifth, sixth (intentional infliction of emotional distress against Darrel Dowdy and Milton Smith)[4], and seventh (common law malicious prosecution against Dowdy and Smith) causes of action against the Individual Defendants in their official capacity should be dismissed as duplicative of the second cause of action against the City of Durham. (Docs. 13, 20.) Each claim is addressed below.

         II. ANALYSIS

         A. Legal Standard

         A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of a complaint. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). A complaint that does not contain “sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face'” must be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. “The plausibility standard requires a plaintiff to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.'” Giacommelli, 588 F.3d at 193 (quoting Iqbal, 556 U.S. at 678.) In assessing the legal sufficiency of a complaint, the factual allegations must be construed in the light most favorable to the plaintiff. Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009). However, “‘[t]he presence [] of a few conclusory legal terms does not ...


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