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Harper v. Bohanan

August 25, 2006

JENNY HARPER, AS THE WIDOW AND NEXT OF KIN OF JAMES H. HARPER, LEONARD D. HUTCHISON, PLAINTIFFS,
v.
ARTHUR BOHANAN, JIM MORRIS, PATRICK WADE, REX OWENBY, JOE MANN, CLYDE MERRYMAN, TOM STILES, JAMES DAVID COMER ERNEST PEEL, AND CITY OF KNOXVILLE DEFENDANTS.



The opinion of the court was delivered by: Edgar

MEMORANDUM

Plaintiffs Jenny Harper, as the widow and next of kin of James H. Harper, and Leonard D. Hutchison bring this civil rights action against state and federal law enforcement officials, Arthur Bohanan, Jim Morris, Patrick Wade, Rex Ownby,*fn1 Joe Mann, Clyde Merryman, Ernest Peel, Tom Stiles, the City of Knoxville, and one private citizen, James David Comer.*fn2 Plaintiffs assert claims pursuant to 42 U.S.C. § 1983 ("Section 1983") for violation of their constitutional due process rights under the Fourteenth Amendment to the U.S. Constitution against City of Knoxville Police Department ("KPD") Officers Patrick Wade, Arthur Bohanan, Jimmie Morris, and Ernest Peel in their individual and in their official capacities, and the City of Knoxville.

Plaintiffs further assert a Section 1983 claim against Mr. Comer, an alleged police informant. Plaintiffs also bring claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, against Federal Bureau of Investigation ("FBI") Agents Clyde Merryman, and Joe Mann for violation of their due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution. 403 U.S. 388, 29 L.Ed.2d 619, 91 S.Ct. 1999 (1971).

Defendant Clyde Merryman moves to dismiss Plaintiffs' claims for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). [Court Doc. No. 128]. Plaintiffs oppose the motion. [Court Doc. No. 130]. After reviewing the record in the light most favorable to the Plaintiffs, the Court concludes that it will GRANT Defendant Merryman's motion to dismiss.

I. Background

This Court and several state courts have described the facts of this complicated case in great detail. See Harper v. Bohanan, 2006 WL 319029 (E.D. Tenn. 2006); Harper v. Bohanan, 2006 WL 1462574 (E.D. Tenn. 2006); Hutchison v. State, 1997 WL 789923 (Tenn. Crim. App. 1997); State v. Harper, 753 S.W.2d 360 (Tenn. Crim. App. 1987); State v. Hutchison, 1990 WL 170437 (Tenn. Crim. App. 1991); Hutchison v. State, 118 S.W.3d 720 (Tenn. Crim. App. 2003); [Court Doc. Nos. 31-2, 118-2]. Because the facts have been summarized in various other legal opinions, this Court will only summarize the salient facts pertaining to Defendant Merryman for purposes of reviewing the merits of his motion.

In 1985 a jury convicted Mr. Hutchison and Mr. Harper of theft of a vehicle and attempted homicide of James David Comer that occurred on September 1, 1982. [Court Doc. No. 116, Second Amended Complaint]. Mr. Hutchison served around fourteen years in the Tennessee State Regional Correction Facility Bledsoe State Penitentiary for possession of burglary tools, burglary of an automobile, and felonious assault with intent to commit second degree murder. Id. at ¶ 13. Mr. Harper served fourteen months in the Knox County jail and the Knox County Penal Farm for burglary of an automobile and felonious assault with intent to commit second degree murder. Id. at ¶ 14.

Plaintiffs' second amended complaint alleges that they were wrongfully convicted due to the suppression of exculpatory evidence collected by KPD officers, prosecutors, and FBI agents. Such evidence includes an alleged exculpatory witness statement that contradicted the victim's statement, an exculpatory FBI laboratory report indicating that tools seized from Hutchison's apartment did not match the marks made on the vehicle that perpetrators attempted to steal, and an exculpatory confession to the crime made by another individual unassociated with the Plaintiffs. The second amended complaint also alleges that KPD officers tampered with the photographic line-up by which the victim, James David Comer, identified the Plaintiffs. Plaintiffs further assert that defendant Comer and KPD officers conspired falsely to identify Hutchison so that Comer, an alleged confidential informant, could receive more lenient treatment in the KPD's investigation into his own criminal activity. See Second Amended Complaint, ¶¶ 16-21, 23, 25, 27, 29.

Plaintiffs filed their original complaint on January 14, 1997 naming Clyde Merryman as a Defendant. This Court issued an order on March 5, 1997 staying the proceedings in this action until the completion of Plaintiffs' post-conviction appeals through the state court system. [Court Doc. No. 6]. This Court lifted the stay on March 16, 2005. [Court Doc. No. 33]. Plaintiffs filed their amended complaint on June 13, 2005. [Court Doc. No. 36]. Plaintiffs filed a second amended complaint on April 21, 2006. [Court Doc. No. 116, Second Amended Complaint]. The second amended complaint also names Agent Merryman as a defendant. Id. The record demonstrates that the Plaintiffs served Agent Merryman on July 18, 2006. [Court Doc. No. 127].

The second amended complaint alleges that Defendant Merryman was an FBI agent who received relevant exculpatory evidence regarding the crimes with which Hutchison and Harper were eventually charged. Second Amended Complaint, ¶ 5. The second amended complaint further alleges that FBI Agents Merryman and Mann obtained information that someone other than Hutchison or Harper had confessed to shooting Mr. Comer. Id. at ¶ 18. Agents Merryman and Mann did not write a report regarding the information they learned. Id. at ¶ 19. Because these agents were operating "deep undercover" in investigating an automobile "chop-shop ring," they allegedly contacted Special Agent Ownby to provide him with the information regarding the confession. Id. Agents Merryman and Mann allegedly expected that Special Agent Ownby would provide the information about the confession to the KPD because of his contacts there.

Id. However, Ownby allegedly failed to do so, and the Plaintiffs admit in the second amended complaint that Tennessee state courts have held that the Attorney General's office was unaware of the information learned by Agents Merryman and Mann until after the Plaintiffs had been convicted. Id. The second amended complaint states that Agents Ownby, Merryman, and Mann: deprived Hutchison and Harper of their due process rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution when they acted willfully or in gross disregard and with deliberate indifference to the unconstitutional incarceration of Hutchison and Harper, including but not limited to their decision not to prepare written reports of the exculpatory information obtained from Paul Allen and Tommy McClanahan, contrary to FBI policy, and their decision not to report this exculpatory information to the [KPD].

Second Amended Complaint, ¶ 64.

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court "must read all well-pleaded allegations of the complaint as true." Weiner v. Klais and Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997) (citing Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir. 1996)). In addition, a court must construe all allegations in the light most favorable to the plaintiff. Bower, 96 F.3d at 203 (citing Sinay v. Lamson & Sessions, 948 F.2d 1037, 1039 (6th Cir. 1991)). The Sixth Circuit has explained that a court must " 'take the plaintiff's factual allegations as true and if it appears beyond doubt that the plaintiff can prove no set of facts in support of its claims that would entitle it to relief, then . . . dismissal is proper.' " Weiner, 108 F.3d at 88 (quoting Forest v. United States Postal Serv., 97 F.3d 137, 139 (6th Cir. 1996)); Grant v. Hollenbach, 870 F.2d 1135, 1138 (6th Cir. 1989) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, ...


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