Atchison v. City of Tulsa, Oklahoma

Cnited States District Court

for the sQorthern District of Oklahoma

Case No. 21-cv-286-JDR-SH

CoREY ATCHISON,

Plaintiff,

versus

City OF TULSA, OKLAHOMA; ROBERT JACKSON; GARY MEEK;

KEN MAKINSON; FRED PARKE; JACK PUTNAM; SCOTT ROGERS;

MICHAEL EUBANKS; S M IRWIN; HAROLD WILSON, also known as

BEAR WILSON,

Defendants.

OPINION AND ORDER

Plaintiff Corey Atchison served twenty-eight years in prison for a mur-

der he did not commit. He claims that Defendants Robert Jackson, Gary

Meek, and Harold Wilson,’ all former Tulsa Police Department officers, vio-

lated his constitutional rights by fabricating evidence, failing to disclose ex-

culpatory evidence, depriving him of his liberty, and failing to intervene to

prevent constitutional violations while investigating the crime. Dkt. 57 at 18-

21. He also accuses the officers of intentional infliction of emotional distress

and malicious prosecution in violation of state law. /d. at 23-25. Mr. Atchison

further claims that Defendant City of Tulsa is liable for the constitutional vi-

olations under Monell v. New York City Dept. of Social Servs., 436 U.S. 658

(1978), and the state law claims under theories of respondeat superior and

indemnification. /d. at 23-26. Defendants have moved for summary judgment

'Mr. Atchison dismissed his claims against Defendants Ken Makinson, Fred Parke,

Jack Putman, Scott Rogers, Michael Eubanks, and Samuel Irwin. Dkt. 162.

No. 21-cv-286

on each of Mr. Atchison’s claims. Dkts. 148, 149, 150, 151. The City of Tulsa’s

and Officer Wilson’s motions are granted. Detective Jackson and Detective

Meek’s motions are granted in part and denied in part.

In the early morning hours of August 3, 1990, Detective Jackson was

called to investigate a homicide at 400 South Atlanta Avenue in Tulsa, Okla-

homa. Dkt. 150-3 at 1. When Detective Jackson arrived, he saw the victim,

James Lane, lying on his back. /d. at 2. There was a gunshot wound to Mr.

Lane’s chest and a gun lying near his body. /d. at 2-3.” Other responding of-

ficers told Detective Jackson that Mr. Lane had “been in some type of con-

frontation near where his body lay on the ground and at the time there w[ere]

no specific ... suspects in th[e] case.” /d. at 1.

A. THE INVESTIGATION

Officers talked to approximately thirty witnesses at the scene but ob-

tained written statements from only two: Benjamin King* and Mareo John-

son. Dkt. 151-1 at 7. Mr. King stated that he heard two or three gunshots

around 2:20 a.m., walked around the corner, and saw a body lying on the

ground. Dkt. 150-4. Mr. Johnson told a similar story. Dkt. 150-5; Dkt. 151-1 at

4. One witness told the officers that he saw someone leaving the area in a

white car. Dkt. 151-1 at 7. Several witnesses stated that they saw men arguing

with Mr. Lane, but it was too dark to identify anyone. Jd. at 36.

At 4:00 a.m., TPD officers pulled over Mr. Atchison, who was driving

a maroon Buick LeSabre out of the parking lot of an apartment near the crime

scene. Dkt. 171-14. Mr. King, Mr. Johnson, and one other passenger were also

in the car. Jd. The officers’ report indicated they conducted a “field

? This gun was never linked to the bullet that killed Mr. Lane nor to any of the

suspects. TPD tested a different gun, but it was not the murder weapon. Dkt. 151-1 at 58.

* Benjamin King is referred to as both Benjamin Grisham and Benjamin King. For

consistency, the Court will refer to him exclusively as Mr. King. Dkt. 151 at 5.

No. 21-cv-286

interview” but there are no notes from that interview. /d. The officers

searched Mr. Atchison, his car, and the passengers, but found nothing. Dkt.

171-2 at 78. The four young men then left. Jd. The officers described Mr.

Atchison in their report as a black male, 62” and 265 pounds. Dkt. 171-14 at

Later that same morning, officers interviewed witness Stephanie Jacob

who told Detective Jackson that she and two friends were walking down the

street before the shooting when they saw a group of black men talking to Mr.

Lane. Dkt. 150-6 at 1-2. Sensing trouble, Ms. Jacob and her friends turned to

walk away. Jd. at 2. As they turned, they saw Mr. Lane pull a “large amount

of cash” out of his pocket and the other men attack him. Jd. Ms. Jacob told

Detective Jackson that “a black male that she knows as Steve obtained a gun

from his right sock,” fired an initial shot which missed, fired a second shot

that caused Mr. Lane to fall to the ground, and then fired three more shots.

Id. She identified the other men involved in the altercation as “Jeff,” “Bo,”

and “Short Dog,” and told Detective Jackson that these men could be found

at a house located at Cheyenne Avenue from about 5:30 p.m. to 6:00 p.m.

every day. Jd. at 2-3. She described Steve, the shooter, as a black male, 5’8”

and 140 pounds. /d. at 2. Detective Jackson recorded all of this information

in a written report. Dkt. 150-6."

Two days after the shooting, TPD officers pulled over Mr. Atchison

again. Dkt. 171-10. This time, Mr. Atchison was driving a gold Jeep. Jd. at 1.

Officers conducted a field investigation and then permitted Mr. Atchison to

leave. The officers once again described Mr. Atchison as a black male, 671”

and 260 pounds. Jd.

* Mr. Atchison alleges that his attorney did not receive this report until one week

before trial. His attorney moved to continue the trial, but the Court denied the request. See

infra, Section I(e). The allegation that this report was intentionally withheld by the detec-

tives to prevent Mr. Atchison from using the information at trial is the basis for one of Mr.

Atchison’s § 1983 Brady violation claims. See infra, Section IIT(A)(2).

No. 21-cv-286

On August 7, 1990, TPD Detective Ken Makinson received a phone

call from “Lisa” who reported that two men named Wayne Jones and Reggie

Patterson robbed Mr. Lane and that Mr. Jones shot him. Dkt. 151-1 at 11, 52.

She also stated that Andre Green and Mr. Atchinson were with the two men

during the shooting and that the four men were members of a gang. Jd. Fol-

lowing that call, TPD brought Mr. Atchison into the station for an interview.

Dkt. 151-1 at 52-53. Mr. Atchison told Detective Jackson that he was driving

down the road and turned on Atlanta when he heard gunshots. Jd. at 53. Once

he completed the turn, he saw Mr. Lane, who was already lying on the ground.

Id. My. Atchison then parked his car and walked over to check on Mr. Lane.

Id. He did not see the shooter. Jd.

A few days later, TPD officers arrested (for an unrelated crime) Re-

ginald Patterson near the location of Mr. Lane’s shooting. Dkt. 151-1 at 56.

During Mr. Patterson’s arrest, a neighbor flagged down an officer and told

him that he knew Mr. Lane and saw him with Macio McClendon, Mr. Patter-

son, and a black man with a shaved head the night of the shooting. Jd. The

neighbor identified the man with the shaved head as the shooter. Jd.

In September, Detective Jackson interviewed Mr. King a second time.

Dkt. 151-1 at 54. Mr. King said he was riding around with Mr. Atchison in a

gold Oldsmobile on the night of the shooting. Jd. He told Detective Jackson

that when the car turned the corner, he heard a gunshot, saw Mr. Lane fall to

the ground, and saw a person run away down the alley. Jd. The person who

ran from the scene got into a dark Cadillac and drove away. Jd. Mr. King also

told Detective Jackson that he had heard the shooter was a 15-year-old black

male, LaCount Washington McClendon. Jd.

On November 1, 1990, Detective Jackson interviewed Leticia Notting-

ham, a woman who lived near the crime scene. Dkt. 151-1 at 9-10. Ms. Not-

tingham said that, around 3:00 a.m. on the morning of the shooting, she heard

arguing outside her apartment and saw “two black males and a white male

No. 21-cv-286

arguing with the victim.” /d. at 9. Ms. Nottingham saw the shooting and de-

scribed the shooter as 5’8” to 5’9” and 160 to 170 pounds. Jd.* Detective

Jackson believed this information to be “consistent with information that

[was] derived by Det. Fred Parke, which indicate[d] that a possible suspect in

this case could be a black male known by the street name of Candyman.” Jd. at

9-10. He stated that Detective Parke’s report also indicated that Ms. Notting-

ham’s description of the shooter was consistent with “Candyman’s” physical

description. /d. at 10.

B. THE INTERVIEWS

On February 8, 1991, Detective Jackson interviewed sixteen-year-old

Doane Thomas [Dkt. 150-13], fifteen-year-old Demacio McClendon [Dkt.

151-1 at 73-85], and sixteen-year-old Benjamin King [Dkt. 151-1 at 86-96]. De-

tective Meek was present for all three interviews. Each witness was held for

several hours, but only fifteen to twenty minutes of each interview were rec-

orded. Mr. Atchison alleges that during the unrecorded portions of the inter-

views, the detectives told the witnesses that Mr. Atchison was the shooter,

then coerced false statements implicating Mr. Atchison.

During the taped portion of his interview, Mr. Thomas stated that he

was in the area the night of the shooting when he ran into Demacio McClen-

don. Dkt. 150-13. Mr. McClendon told Mr. Thomas that the people getting

out of a jeep across the street were going to rob someone. Jd. Mr. Thomas

said he saw men assaulting Mr. Lane, saw Mr. Atchison pull out a gun and

shoot Mr. Lane, and saw the men get back into the jeep and leave. Jd. Mr.

Thomas walked away from the scene once he heard the gunshot. /d. Detective

Jackson asked Mr. Thomas why he waited so long to talk to police, and Mr.

Thomas stated he was scared that the men would come after him and kill him.

° Like Detective Jackson’s report from his interview with Ms. Jacob’s, Mr. Atchison

claims that this report was not disclosed to his attorney until a week before trial. See infra,

Section I(e). This allegation is also the basis for one of Mr. Atchison’s § 1983 Brady violation

claims. See infra, Section III(A)(2).

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Id. Mr. Thomas identified Mr. Atchison based on a photo the detectives

showed him. Jd.

During the taped portions of Mr. McClendon’s and Mr. King’s inter-

views, they gave similar statements identifying Mr. Atchison as the shooter.

Dkt. 151-1 at 73-96. Mr. McClendon stated that he “heard pow to the head

somewhere, and [Mr. Lane] just fell down to the ground.” Dkt. 151-1 at 80.

When Detective Jackson asked him about the shooter, Mr. McClendon stated

“T think it was, uh, [Mr. Atchison]. I don’t know which one it was really. ?’m

just trying to say.” Jd. at 82. Mr. King stated that he did not see Mr. Atchison

with a gun, but it was “obvious he shot him ... because that dude was in front

of him....” /d. at 95. These statements were the only statements taken during

the investigation implicating Mr. Atchison.

C. THE PROSECUTION REPORT

On February 11, 1991, Detective Meek prepared and presented a pros-

ecution report to the district attorney. Dkt. 171-20. The report identified Mr.

Atchison and the three men in his car as suspects and recommended charging

them with first-degree murder and armed robbery. /d. The report listed Mr.

Thomas and Mr. McClendon as witnesses who saw Mr. Atchison shoot Mr.

Lane. Jd. at 2. The report stated that Mr. King “‘admitted to th[e] offense”

when Detective Jackson interviewed him. Jd. The district attorney’s office

sought arrest warrants based on the report. Dkt. 151-6 at 2-4.

When Mr. Atchison was arrested, he told officers that he was not in-

volved in the shooting and maintained his innocence. Dkt. 151-1 at 31. Follow-

ing Mr. Atchison’s arrest, Detective Jackson drafted a supplementary offense

report identifying Mr. Atchison and the three other men as suspects. Dkt.

151-1 at 30-31. Detective Jackson identified a gold Jeep Cherokee as the “sus-

pect vehicle” in the report. Jd. at 31.

No. 21-cv-286

D. THE PRELIMINARY HEARING

The four defendants appeared for their preliminary hearing on March

25, 1991. Dkt. 149-8. Assistant District Attorney Tim Harris called Mr.

Thomas as the state’s first witness. /d. at 3, 7. Mr. Thomas testified that he

saw Mr. Atchison and the other defendants get out of a gold Jeep Cherokee,

run across the street, and attack Mr. Lane. /d. at 12-13, 15. He testified that

he started to run away from the scene, briefly glanced back, and saw Mr.

Atchison “pull the trigger.” Jd. at 18-19, 22. On cross-examination, Mr.

Thomas testified that it was very dark that night and that it was hard for him

to distinguish the defendants; he saw “red shirts and fists flying and that’s

it.” Id. at 41-43.

Mr. McClendon testified that, on the night of the shooting, he told Mr.

Thomas that some gang members were about to rob someone. Dkt. 149-8 at

91. He saw a brown Cherokee pull up and saw the four defendants get out,

walk across the street, and attack Mr. Lane. /d. at 92-95. During cross-exam-

ination, the following exchange occurred:

Q. On direct examination when Mr. Harris was asking you

questions in reference to the statement that you gave to police,

you said, “He threatened me to say it.” What did you mean by

that?

THE WITNESS: Is he in the courtroom right now?

THE COURT: No.

A. He threatened me to say Corey did it, shot the man.

Q. Who threatened you to say that?

A. Police.

Q. One of the detectives?

A. Yes, he [was] going to throw me in jail until I sa[id] Corey

did it.

Q. He was going to throw you in jail until you said that Corey

did it?

No. 21-cv-286

A. Yes.

Id. at 113-14.

Mr. McClendon then testified that officers came to his school, took

him to the detective division for questioning, and refused to call his mom. /d.

at 114-15. Eventually, Mr. McClendon conceded that his prior statement to

police was a lie:

Everything I said downtown, it was a story, and [the detective]

made me say that Corey did this, Corey did that. Did you see

Corey shoot the man? Did you see this? Man, I wasn’t even

there. They were making me say it. They made [me] say all that

that they got down on tape.

Id. at 116. When the Court asked Mr. McClendon if he was there the night of

shooting, he said no. /d. at 119. Based on this exchange, the Court took a re-

cess and asked the defense attorneys, Mr. Harris, and Mr. McClendon to

meet in chambers. /d. at 120.

In chambers, Mr. McClendon testified that Mr. Thomas lied about be-

ing with him during the shooting. /d. at 121. Mr. McClendon also testified

that, prior to the preliminary hearing, he told Mr. Harris that he was afraid to

testify and that the police pressured him to identify Corey as the shooter. Jd.

at 124-125. Mr. Harris asked: “But when I read the statement to you line-by-

line, you told me a lot of the information about the Cherokee and the people

that were in the Cherokee and the location that had pulled up, that that was

all true?” /d. at 125. Mr. McClendon told the Court he gave Mr. Harris that

information because he was scared and “didn’t know what to say.” /d. When

asked how he knew Mr. Atchison was driving a Jeep Cherokee, Mr. McClen-

don replied “because that’s what they were riding in all the time.” Jd. Mr.

McClendon also stated that he felt he had to lie at the preliminary hearing

because Mr. Harris “wouldn’t understand.” Jd. at 128, 131.

Following the meeting in chambers, the preliminary hearing contin-

ued with Detective Jackson’s testimony. Detective Jackson recounted his

No. 21-cv-286

investigative efforts and denied threatening or coercing Mr. McClendon into

making a statement. /d. at 140-144. At the end of the preliminary hearing, the

Court granted the State’s motion to dismiss the charges against Mr. Johnson

for lack of probable cause. /d. at 165. The Court granted all of the defendants’

demurrers except for Mr. Atchison’s murder count, which the Court took un-

der advisement until it could hear testimony from the medical examiner. /d.

at 168-69.

At the follow-up hearing two days later, the medical examiner testified

about Mr. Lane’s autopsy and his cause of death. /d. at 172-83. Mr. Atchison

renewed his demurrer because the “case ... turned on the credibility of one

witness. That witness being Mr. Doane Thomas.” /d. at 183. The Court found

that there was enough evidence to bind Mr. Atchison over for trial and over-

ruled the demurrer. /d. at 185.

E. THE JURY TRIAL

The trial was scheduled to begin in June 1991. On June 6, 1991, Mr.

Atchison’s attorney moved to continue the jury trial because he had just re-

ceived supplementary offense reports detailing interviews in which Ms. Jacob

and Ms. Nottingham® described the shooter as having physical features in-

consistent with those of Mr. Atchison. Dkt. 171-25. Mr. Atchison’s attorney

argued that these reports “indicat[ed] the existence of certain eyewitnesses

... who ... identif[ied] a person or persons other than Defendant as the per-

petrator of the alleged murder” and that he needed “additional time to locate

these witnesses, ascertain their testimony and subpoena them for trial.” Jd.

at 1. The motion was denied, and the trial began as scheduled on June 11,

1991.

Mr. Thomas, Detective Jackson, Mr. King, the medical examiner, and

four other TPD officers testified for the State. Dkt. 171-2 at 2-3. Mr. Thomas

testified consistently with his testimony during the preliminary hearing; Mr.

® See supra, I(A).

No. 21-cv-286

Thomas admitted, however, to lying about Mr. McClendon’s presence during

the shooting because he wanted to protect his pregnant girlfriend, who was

with him. /d. at 80-129. Detective Jackson testified about his investigation and

the interview where Mr. King identified Mr. Atchison as the shooter. Jd. at

134-161. He denied using any type of coercion, force, or promise to obtain Mr.

King’s statement. /d. at 150.

When Mr. Harris asked Mr. King about the recorded interview, Mr.

King stated that, before the officers began taping, they yelled at him and told

him he would either get the death penalty or go to jail for the rest of his life

unless he identified Mr. Atchison as the shooter. Jd. at 186, 207. Mr. Harris

then asked Mr. King who he identified as the shooter in that interview and

Mr. King replied: “I said it against my will, but I said it was Corey.” Jd. at 187.

Mr. King also stated:

That whole tape was ... lies. They made me say that. They was

saying all kinds of stuff to me. I couldn’t even leave the detec-

tive room. I tried to leave. They kept on saying, just book him

in jail for first degree murder. I got up, you know, to go, and I

said, well, just take me on down, and they was saying, no, sit

down, sit down. I couldn’t even leave the room to go before I

made the statement.

Id. at 188. He further testified that the officers picked him up from school

right after lunch and held him in the interrogation room until 6:30 p.m. /d. at

189. He was not booked into the jail until around 10:00 p.m. /d. at 196. On

cross-examination, Mr. King testified that “Corey Atchison was in the car

with us. He didn’t shoot James Warren Lane.” /d. at 197. On redirect, the

State played the taped interview from February for the jury. /d. at 205. Fol-

lowing Mr. King’s testimony, the State rested.

Mr. Atchison took the stand in his own defense. His testimony was

consistent with his previous statements to the police: He was driving in his

car when he heard a gunshot, turned the corner, and saw Mr. Lane lying on

the ground. Dkt. 171-2 at 211-25. Mr. Atchison testified that he did not kill

No. 21-cv-286

Mr. Lane. /d. at 218. Mr. Johnson testified on Mr. Atchison’s behalf, corrob-

orating Mr. Atchison’s story. Jd. at 226-33. Following Mr. Johnson’s testi-

mony, the defense rested. Jd. at 233. The jury found Mr. Atchison guilty of

first-degree murder and sentenced him to life in prison.

F. Post-CONVICTION PROCEEDINGS

In 2016, Mr. King signed an affidavit maintaining that Mr. Atchison

did not shoot Mr. Lane and that he had been threatened and coerced by de-

tectives to identify Mr. Atchison as the shooter. Dkt. 171-3. And in 2017, Mr.

Thomas, the sole eyewitness to identify Mr. Atchison as the shooter at trial,

drafted and signed an affidavit stating that he did not see who shot Mr. Lane,

but he knew it was not Mr. Atchison because he saw him arrive at the scene

afterwards. Dkt. 171-7. He asserted that the officers coerced him into identi-

fying Mr. Atchison as the shooter. /d. at 2. He further stated that, when he

told Mr. Harris the truth, Mr. Harris told him that Mr. Atchison “would get

out of jail and kill [him]” if he did not testify that Mr. Atchison was the

shooter. /d. at 2-3. Following Mr. Atchison’s conviction, Mr. Thomas told

Mr. Harris on several occasions that his statements to the police and testi-

mony at the preliminary hearing and trial were not true. Mr. Harris “told

[him] that if he ever heard those words out of [his] mouth again he would

make sure [Mr. Thomas] spent 25 years behind bars.” Jd. at 3-4. Based on

these affidavits, combined with several other perceived errors at trial and on

appeal, Mr. Atchison filed for post-conviction relief on the basis of actual in-

nocence.

On July 16, 2019, Judge Sharon Holmes granted Mr. Atchison’s re-

quest. Dkt. 171-22. Judge Holmes found that Mr. Atchison’s conviction “was

based solely on eyewitness testimony” from “children who ranged in age

from 15 to about 17” and was obtained without “any physical evidence to con-

nect Mr. Atchison to th[e] crime.” Jd. at 6-7. Judge Holmes also found that

TPD coerced the alleged eyewitnesses and that, without this coerced testi-

mony, no reasonable juror could have found that Mr. Atchison shot Mr. Lane.

No. 21-cv-286

Id. at 8, 11. Based on her finding of actual innocence, Judge Holmes vacated

Mr. Atchison’s conviction. /d. at 15.

Mr. Atchison filed this action in July 2021 and then filed a corrected

complaint in February 2022 bringing claims under 42 U.S.C. § 1983 for vio-

lations of his constitutional rights as well as state-law claims. Dkts. 2, 57. De-

fendants have moved for summary judgment. Dkts. 148, 149, 150, 151. The

three officers argue that they are entitled to qualified immunity and that Mr.

Atchison’s § 1983 claims are time-barred. Dkts. 148, 149, 150. The City agrees

and argues that no City policy or custom was the moving force behind any

alleged violation. Dkt 151. All Defendants argue that Mr. Atchison has failed

to state a viable state-law claim.

I]

Summary judgment is proper “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Federal Rule of Civil Procedure 56(a). A material fact is

one that “might affect the outcome of the suit under the governing law,” and

a dispute is genuine “if the evidence is such that a reasonable jury could re-

turn a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). When resolving a motion for summary judgment, the

Court must “view the evidence and the reasonable inferences to be drawn

from the evidence in the light most favorable to the nonmoving party.” Schaf-

fer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016) (citation omit-

ted).

ITI

The Court begins with Mr. Atchison’s claims under 42 U.S.C. § 1983.’

Mr. Atchison alleges that the officers violated his constitutional rights in four

? To obtain relief under 42 U.S.C. § 1983, Mr. Atchison must show that he was

deprived of a federally protected right by a person acting under color of state law. See, e.g.,

id. The parties do not dispute that the officers were acting under color of state law during

the investigation of Mr. Lane’s murder and Mr. Atchison’s prosecution; accordingly, the

No. 21-cv-286

ways: First, by fabricating evidence. Second, by failing to disclose exculpatory

evidence as required by Brady v. Maryland, 373 U.S. 83 (1963). Third, by con-

spiring together to violate Mr. Atchison’s rights. And fourth, by failing to in-

tervene when his rights were violated. Dkt. 57 at 18-21. He also alleges that

the City is liable for these constitutional violations because they were caused

by its policies, practices, and customs. /d. at 21-23. The officers argue they

are entitled to qualified immunity because their actions during the investiga-

tion did not violate Mr. Atchison’s constitutional rights and they were not on

notice that their actions violated any constitutional rights. Dkt. 148 at 12-19;

Dkt. 149 at 14-22; Dkt. 150 at 14-24. The officers alternatively argue that Mr.

Atchison’s § 1983 claims are time-barred. Dkt. 148 at 19-21; Dkt. 149 at 23-

24; Dkt. 150 at 24-26.

A. QUALIFIED IMMUNITY

Qualified immunity shields officers “‘from damages actions unless

their conduct was unreasonable in light of clearly established law.’” Gutierrez

vy. Cobos, 841 F.3d 895, 899 (10th Cir. 2016) (quoting Estate of Booker v. Gomez,

745 F.3d 405, 411 (10th Cir. 2014)).° It “balances two important interests—

the need to hold public officials accountable when they exercise power irre-

sponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson v. Callahan, 555

USS. 223, 231 (2009). Once a defendant asserts qualified immunity, the plain-

tiff must show that (1) a reasonable jury could find facts supporting a violation

of a constitutional right and (2) the right was clearly established at the time

Court focuses its analysis on whether the officers violated Mr. Atchison’s constitutional

nents ® Mr. Atchison argues that the officers are not entitled to qualified immunity be-

cause “[t]here is no statutory or common law basis to afford immunity to police officers who

are sued under § 1983 for violations of the constitutional rights of civilians.” Dkt. 172 at 30.

But there is long-standing Supreme Court and Tenth Circuit precedent recognizing the

doctrine of qualified immunity, and this Court is bound to follow that precedent. Nidiffer v.

Lovato, No. 24-2056, 2025 WL 719814, at *2 (10th Cir. Mar. 6, 2025).

No. 21-cv-286

of the violation. Wilkins v. City of Tulsa, 33 F.4th 1265, 1272 (10th Cir. 2022)

(citing Pearson, 555 U.S. at 232). If the plaintiff fails to establish either prong,

the Court must grant qualified immunity and enter summary judgment in fa-

vor of the defendant. Tolan v. Cotton, 572 U.S. 650, 656-57 (2014).

1. FABRICATION OF EVIDENCE

Mr. Atchison first argues that the detectives’ violated his Fourteenth

Amendment due process rights when they fabricated evidence to use against

him at the preliminary hearing and trial. The Fourteenth Amendment’s Due

Process Clause guarantees the “right not to be deprived of liberty as a result

of the fabrication of evidence by a government officer.” Truman v. Orem City,

1 F.4th 1227, 1236 (10th Cir. 2021). To prevail on a claim for violation of that

guarantee, Mr. Atchison must prove that: (1) the officers knowingly fabricated

evidence, (2) the fabricated evidence was used against Mr. Atchison, (3) the

use of the fabricated evidence deprived Mr. Atchison of liberty through a

criminal conviction, and (4) the conviction has been vacated. /d.

Mr. Atchison has presented sufficient evidence upon which a reason-

able jury could determine that Detectives Jackson and Meek fed Mr. Thomas,

Mr. McClendon, and Mr. King false information that was used to deprive Mr.

Atchison of his liberty. For example, Mr. Atchison has pointed to significant

inconsistencies in the recorded statements regarding the type and color of the

car he was driving the night of the shooting. He has also presented evidence

that a large portion of the interviews were not recorded, and that Mr.

McClendon and Mr. King recanted their statements implicating Mr.

Atchison prior to trial. A reasonable jury could determine, based on that evi-

dence, that the detectives fabricated a narrative to implicate Mr. Atchison and

forced the witnesses to make false statements which resulted in Mr.

Atchison’s conviction. See, e.g., O’Connell v. Alejo, No. 18-cv-01359-RBJ,

* The claims against Detective Jackson and Detective Meek will be analyzed to-

gether. The Court will consider Officer Wilson’s liability separately.

No. 21-cv-286

2020 WL 1244852, at *7-8 (D. Colo. Mar. 16, 2020), aff’d on other grounds

sub nom. O’Connell v. Tuggle, No. 20-1148, 2021 WL 5973048 (10th Cir. Dec.

16, 2021).

The Court must next determine whether it was clearly established in

1991 that the detectives’ conduct violated Mr. Atchison’s rights. A right is

clearly established if a reasonable officer “would understand that what he is

doing violates that right.” Perry ». Durborow, 892 F.3d 1116, 1123 (10th Cir.

2018) (citation omitted). It has been long established by the Supreme Court

“that a defendant’s due process rights are implicated when the state know-

ingly uses false testimony to obtain a conviction ....” Pierce v. Gilchrist, 359

F.3d 1279, 1299 (10th Cir. 2004) (citing Pyle »v. Kansas, 317 U.S. 213, 216

(1942)). Thus, officers in 1991 would have been on notice that falsification of

evidence was a constitutional violation. Detectives Jackson and Meek are not

entitled to qualified immunity and the falsification of evidence claims will pro-

ceed to trial on a theory that the detectives provided the witnesses with false

information to frame Mr. Atchison and then put that false information in the

prosecution report.

2. BRADY VIOLATIONS

Mr. Atchison next claims that the detectives deprived him of his con-

stitutional right to a fair trial under the Fourteenth Amendment by “with-

holding and suppressing exculpatory evidence.” Dkt. 57 at 18. In Brady ».

Maryland, the Supreme Court held that “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.” 373 U.S. 83, 87 (1963). These

Brady obligations extend to police officers “who are actively involved in a par-

ticular investigation.” Tiscareno v. Anderson, 639 F.3d 1016, 1022 (10th Cir.

2011) vacated in part on other grounds, 421 F. App’x 842 (10th Cir. 2011).

No. 21-cv-286

Mr. Atchison argues that the detectives violated his rights under Brady

by coercing false statements, relying on those false statements when drafting

the supplementary offense report and the prosecution report, and suppress-

ing the “truthful exculpatory statements of various witnesses” and “the co-

ercive tactics ... used to obtain the inculpatory statements used in the prose-

cution.” Dkt. 170 at 27-28. He also points to several items missing from the

investigation file: maps referenced in interviews; photographs used for sus-

pect identifications; the recording and/or transcript of Ms. Nottingham’s in-

terview; and a report documenting an interview of Mr. Patterson. Jd. at 29-

30.

To prevail on his § 1983 claim based on a Brady violation, Mr. Atchison

must show “that ‘(1) the prosecution suppressed evidence, (2) the evidence

was favorable to the defendant, and (3) the evidence was material.’” Goode ».

Carpenter, 922 F.3d 1136, 1149 (10th Cir. 2019) (quoting United States v. Ford,

550 F.3d 975, 981 (10th Cir. 2008)). “‘[E]vidence is ‘material ... when there is

a reasonable probability that, had the evidence been disclosed, the result of

the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469-70

(2009) (citing United States v. Bagley, 473 U.S. 667, 682 (1985)). “In other

words, favorable evidence is subject to constitutionally mandated disclosure

when it ‘could reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict.’” Jd. at 470 (collecting cases).

Most of the evidence Mr. Atchison identified was neither withheld nor

material to his defense, so the detectives’ alleged failure to disclose it was not

a Brady violation. To the extent that any maps or photographs existed that

were used during Mr. Thomas, Mr. McClendon, or Mr. King’s interviews,

they were not suppressed. Mr. Atchison’s attorney knew these items existed

based on recordings, transcripts, and testimony provided prior to trial, and

there is no evidence that Mr. Atchison’s attorney sought this information.

Further, there is no evidence that these items would have been favorable to

Mr. Atchison or that these items would have called Mr. Atchison’s conviction

No. 21-cv-286

into question, as the location of the shooting was not in dispute. There is no

evidence that the photos used to identify Mr. Atchison during the interview

would have been favorable or material to his defense. See, e.g., United States v.

Holloway, 939 F.3d 1088, 1105 (10th Cir. 2019) (holding that the defendant’s

Brady violation failed “because he d[id] not even attempt to argue that the

documents in the receiver’s possession [were] favorable to him”).

Likewise, Mr. Atchison has failed to present evidence demonstrating

that a report of Mr. Patterson’s interview was withheld, favorable to Mr.

Atchison, or material. Although the report drafted on August 11, 1990, which

identified an alternate suspect as the shooter, is absolutely exculpatory, Mr.

Atchison’s attorney had access to the report and could have interviewed ei-

ther Mr. Patterson or the neighbor prior to trial. There is no evidence that

another missing document would have resulted in information different from

what was already available to Mr. Atchison’s attorney or that it would have

changed the proceedings in any way. See, e.g., Sandoval v. Ulibarri, 548 F.3d

902, 915 (10th Cir. 2008) (concluding that the defendant must establish that

“his [Brady] theory was more than speculation”).

Mr. Thomas’s, Mr. McClendon’s, and Mr. King’s truthful, exculpa-

tory statements are different. All three statements, and the coercive tactics

used to obtain those statements, were material to Mr. Atchison’s defense. In-

formation that these statements were false and knowledge of the tactics used

to obtain the statements would have been favorable to Mr. Atchison at trial.

There is no evidence that the detectives ever told the district attorney or de-

fense counsel that the statements were false or that they used coercive tech-

niques to obtain the statements. Thus, the fact that the statements were false

combined with the tactics used by the detectives to obtain those statements

can form the basis of a § 1983 Brady claim.

Mr. Atchison also alleges that his constitutional rights were violated

by the late disclosure of Detective Jackson’s August 3 and November 1

No. 21-cv-286

reports, both of which recorded statements indicating that the shooter’s

height and build differed from Mr. Atchison’s.’? Mr. Atchison’s attorney

asked the trial court for an extension to pursue those leads, but the request

was denied. It is clear from the record that the presence of two eyewitnesses

who described the shooter as someone much smaller than Mr. Atchison

would have called the credibility of Mr. Thomas’s testimony into question.

Mr. Atchison has presented sufficient evidence from which a reasonable jury

could determine that this evidence was favorable and material to Mr.

Atchison’s defense, but because of the detectives’ late disclosure, he was pre-

vented from presenting it at trial.

Brady would have undoubtedly put the detectives on notice in 1991

that failing to disclose the witnesses’ truthful exculpatory statements, the tac-

tics used to coerce the false statements, and the two reports describing a dif-

ferent perpetrator violated Mr. Atchison’s constitutional rights. See Prerce ».

Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004) (holding that the state was

clearly on notice in 1986 that “knowingly us[ing] false testimony to obtain a

conviction” and “withhold[ing] exculpatory evidence from the defense” is a

due process violation). Mr. Atchison’s § 1983 claims may proceed against De-

tective Jackson and Meeks based on those Defendants’ failure to comply with

their well-established obligations under Brady.

3. DEPRIVATION OF LIBERTY WITHOUT PROBABLE CAUSE

Mr. Atchison’s third claim alleges that the officers “used false evi-

dence that they had manufactured in order to accuse [him] of criminal activity

and cause the deprivation of [his] liberty, without probable cause in violation

of his rights secured by the Fourth and Fourteenth Amendments.” Dkt. 57 at

1 Mr. Harris testified that he knew information about a potential alternate suspect

was exculpatory and that he would have turned that information over to the defendant as

soon as he received it. Dkt. 171-6 at 24-25, 40-41, 47-49. Because the two reports were not

disclosed until a week before trial, Mr. Atchison argues that the detectives were responsible

for the delay. Dkt. 170 at 30.

No. 21-cv-286

19. The detectives argue that they did not cause Mr. Atchison to be arrested

and that there was sufficient probable cause for the arrest. Dkt. 149 at 19-20;

Dkt. 150 at 20-22.

The Fourth Amendment protects “[t]he right of the people to be se-

cure in their persons ... against unreasonable ... seizures.” A Fourth Amend-

ment malicious prosecution claim brought under § 1983 requires a showing

that “(1) the defendant caused the plaintiff’s continued confinement or pros-

ecution; (2) the original action terminated in favor of the plaintiff; (3) no prob-

able cause supported the arrest, confinement, or prosecution; (4) the defend-

ant acted maliciously; and (5) the plaintiff sustained damages.” Shrum ».

Cooke, 60 F.4th 1304, 1310 (10th Cir. 2023) (emphasis omitted); see also

Thompson v. Clark, 596 U.S. 36, 49 (2022). The Tenth Circuit “takes the com-

mon law elements of malicious prosecution as the ‘starting point’ for the anal-

ysis of a § 1983 malicious prosecution claim [| but always reaches the ultimate

question ... of whether the plaintiff has proven a constitutional violation.” Tay-

lor v, Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996).

The first requirement is satisfied. Mr. Atchison has provided evidence

that Detectives Jackson and Meek provided Mr. Thomas, Mr. McClendon,

and Mr. King with false information and then coerced false statements to craft

a narrative that Mr. Atchison was the shooter. The detectives then drafted a

prosecution report that identified Mr. Atchison as the shooter based on those

statements. Dkt. 171-20. The district attorney’s office relied on that report

when it found probable cause to arrest Mr. Atchison. Dkt. 151-6 at 3-4. The

judge who held Mr. Atchison over for trial also relied on the coerced false

statement without any physical evidence or any other eyewitness testimony.

Dkt. 151-6 at 13-14, 22-23. A jury could determine that Mr. Thomas’s inter-

view and testimony as the sole eyewitness identifying Mr. Atchison as the

shooter was the probable cause that led to Mr. Atchison’s arrest and prosecu-

tion.

No. 21-cv-286

Mr. Atchison has satisfied the second element because his conviction

was vacated. Dkt. 171-22 at 12-15. See Montoya v. Vigil, 898 F.3d 1056, 1066

(10th Cir. 2018) (citing Pierce v. Gilchrist, 359 F.3d 1279, 1294 (10th Cir.

2004)). The third element, which requires proof that no probable cause sup-

ported the arrest is also met. When considering this element, the Court asks

whether a reasonable officer could have found probable cause to support Mr.

Atchison’s detention pending trial in 1991. See, e.g., Stonecipher v. Valles, 759

F.3d 1134, 1141 (10th Cir. 2014) (citation omitted). Probable cause for an ar-

rest exists when the information is sufficient “to warrant a prudent man in

believing that the [suspect] had committed or was committing an offense.”

Beck v. Ohio, 379 U.S. 89, 91 (1964) (citing Brinegar v. United States, 338 U.S.

160, 175-76 (1949); Henry v. United States, 361 U.S. 98, 102 (1959)).

A Fourth Amendment violation can occur “when, for example, a

judge’s probable-cause determination is predicated solely on a police officer’s

false statements.” Manuel v. City of Joliet, 580 U.S. 357, 367 (2017). When a

probable-cause determination takes fabricated evidence into account, the

Court must determine whether the same result would have been reached

without the fabricated evidence. That is not the case here. When you strip

Mr. Thomas’s and Mr. McClendon’s interviews from the prosecution report,

there is nothing left linking Mr. Atchison to the crime: There was never any

physical evidence tying Mr. Atchison to the crime scene. Mr. Atchison has

met his burden of showing that the State lacked arguable, probable cause for

his arrest and prosecution without the allegedly false statements.

Mr. Atchison has presented sufficient evidence to permit a jury to find

malicious prosecution in violation of Mr. Atchison’s Fourth and Fourteenth

Amendment rights. Furthermore, Mr. Atchison’s right to be free from mali-

cious prosecution was clearly established at the time of the investigation. As

the Tenth Circuit has recognized, “[n]o one could doubt that the prohibition

on falsification or omission of evidence, knowingly or with reckless disregard

for the truth, was firmly established as of 1986, in the context of information

No. 21-cv-286

supplied to support a warrant for arrest.” Prerce, 359 F.3d at 1298. Detectives

Jackson and Meek’s requests for qualified immunity from the § 1983 mali-

cious prosecution claims are denied, and the claims may proceed to trial.

4. CONSPIRACY

Mr. Atchison also claims that the TPD Officers acted together to

frame him for Mr. Lane’s murder, deprive him of his constitutional rights,

fabricate evidence, and withhold exculpatory evidence. Dkt. 57 at 20. To sur-

vive summary judgment on his § 1983 conspiracy claim, Mr. Atchison must

present evidence raising a triable issue of fact about “‘(1) a shared conspirato-

rial objective, i.e., an agreement to deprive Plaintiff of his constitutional or

statutory rights; (2) concerted action; and (3) actual deprivation of rights.”

Kinkead ». Durborow, No. 08-cv-562-JHP-FHM, 2011 WL 3438405, at *10

(N.D. Okla. Aug. 5, 2011) (citing Snell ». Tunnell, 920 F.2d 673, 701-02 (10th

Cir. 1990)). “Mere conclusory allegations of conspiracy, unsupported by a

factual showing of any type of agreement and concerted action among De-

fendants, are insufficient to support a conspiracy action.” Roberts ». Cham-

pion, 255 F. Supp. 2d 1272, 1295 (N.D. Okla. 2003) (citations omitted).

Mr. Atchison has failed to present evidence from which a jury could

determine that Detectives Jackson and Meek agreed to deprive Mr. Atchison

of his constitutional rights. The only evidence provided in support of the con-

spiracy claims is that Detectives Jackson and Meek conducted the February

8 interview together. This, standing alone, is insufficient to create a genuine

issue for trial about whether the two men agreed to feed Mr. Atchison false

information or withhold Brady information from the prosecutor, and it is also

insufficient to support the conclusion that there was concerted action to

achieve these goals. See, e.g., Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir.

1989) (per curiam) (“‘Conclusory allegations of conspiracy are insufficient to

state a valid § 1983 claim.”); see also McKibben v. Chubb, 840 F.2d 1525, 1533

(10th Cir. 1988) (affirming district court’s decision granting defendants’ mo-

tions for summary judgment on the conspiracy claims because there was no

No. 21-cv-286

evidence of meeting of the minds). Accordingly, the conspiracy claims cannot

proceed to trial.

5. FAILURE TO INTERVENE

Last, Mr. Atchison alleges that Detective Meek" “stood by without

intervening to prevent the violation of [Mr. Atchison’s] constitutional rights,

even though [he] had the opportunity to do so.” Dkt. 57 at 21. Detective Meek

argues that Mr. Atchison has failed to point to evidence that he had

knowledge of a constitutional violation or an opportunity to intervene. Dkt.

148 at 18-19. He also argues that a failure-to-intervene claim was not clearly

established in 1991. Jd.

“The Tenth Circuit has recognized that all law enforcement officials

have an affirmative duty to intervene to protect the constitutional rights of

citizens from infringement by other law enforcement officers in their pres-

ence.” Bledsoe v. Carreno, 53 F.4th 589, 616 (10th Cir. 2022) (internal quota-

tion marks and citations omitted). To bring a failure-to-intervene claim, Mr.

Atchison must show “that 1) a government officer violated his constitutional

rights, 2) a different government actor (the defendant) observed or had rea-

sons to know about the constitutional violation, and 3) the defendant had a

realistic opportunity to intervene, but failed to do so.” Jd. (citations omitted).

Mr. Atchison has presented evidence that Detective Meek witnessed

Detective Jackson’s allegedly unconstitutional actions during Mr. Thomas’s

February 8 interview and could have intervened. He has also presented evi-

dence that Detective Meek knew that the information provided to the district

attorney’s office was either false or incomplete. The question, then, is

whether Mr. Atchison’s right to have Detective Meek intervene during the

interview was clearly established in 1991. The Tenth Circuit recently held in

" Mr. Atchison has agreed to dismiss the failure to intervene claim against Detec-

tive Jackson. Dkt. 170 at 34 n.10. Detective Jackson’s motion for summary judgment on the

failure to intervene claim is granted.

No. 21-cv-286

a similar case that this type of failure to intervene claim was not clearly estab-

lished in 1999. Dkt. 172 at 34 (citing Bledsoe, 53 F.4th at 617). But here, Mr.

Atchison raises an argument that was not raised in Bledsoe: that Detective

Meek’s duty to intervene “would have ‘been obvious to any objectively rea-

sonable law enforcement officer.’” /d. Detective Meek does not respond to

this argument. Dkt. 193 at 16.

Detective Meek testified during his deposition that, as a police officer,

he was obligated to report any police officer misconduct to internal affairs or

his supervisor and that it would be wrong to threaten a suspect with the death

penalty as an interrogation technique because it would be a “borderline civil

rights violation” and “coercive.” Dkt. 171-9 at 20, 44-45. He also testified that

police officers are required to take an oath to uphold the law which includes

being honest. Jd. at 139. By Detective Meek’s own admission, it would have

been obvious to any objectively reasonable police officer, even in 1991, that he

should intervene or report to a supervisor if another detective provided a wit-

ness with false information and then coerced a false statement by threatening

him with the death penalty during an interview. Thus, Detective Meek is not

entitled to qualified immunity from Mr. Atchison’s claim based on Detective

Meek’s alleged failure to intervene during the witnesses’ February 8 inter-

views.

6. OFFICER WILSON

Mr. Atchison’s claims are largely based on the detectives’ February 8

interviews and their failure to provide the district attorney with exculpatory

evidence. But Mr. Atchison has failed to present any evidence that Officer

Wilson was in any way involved in these violations. The evidence shows that

Officer Wilson picked up Mr. King from school and transported him to the

interview. Dkt. 148 at 12. Mr. Atchison argues that Officer Wilson also helped

Detective Meek pick up Mr. Thomas, take him to the detective division, and

conduct a second interview in March 1991. Dkt. 175 at 13-14. During this al-

leged second interview, Mr. Atchison argues that Officer Wilson “insisted

No. 21-cv-286

that [Mr. Atchison] shot Mr. Lane, threatened [Mr.] Thomas by telling him

he could not go home, and continuously badgered and coerced him until [Mr.]

Thomas, scared, agreed to falsely implicate |[Mr. Atchison].” /d. at 14. But the

record evidence does not support that claim.

The only evidence Mr. Atchison points to in an effort to create a gen-

uine issue of material fact of Officer Wilson’s involvement is Mr. Thomas’s

testimony at the 2018 post-conviction hearing where he stated that he talked

to Officer Wilson. Dkt. 149-13 at 47. But when questioned about his memory

during that same hearing, Mr. Thomas stated “Sir, I don’t remember. I was

young, 17, 28 years ago. Smoked a lot of weed.” Jd. at 83. This testimony

alone, which contradicts his own 2017 affidavit and the investigation reports,

is not sufficient evidence to permit a reasonably jury to find that Officer Wil-

son gave Mr. Thomas false information that was later used to convict Mr.

Atchison or was aware that the detectives did so. Accordingly, there is no ev-

idence that Officer Wilson violated Mr. Atchison’s constitutional rights, and

he is entitled to qualified immunity on all the claims. See, e.g., Shash v. City of

Pueblo, 770 F. Supp. 3d 1279, 1293 (D. Colo. 2025) (holding that officer who

did not personally participate in the constitutional violation could not be lia-

ble under § 1983). Officer Wilson’s motion for summary judgment is granted.

B. STATUTE OF LIMITATIONS

Detective Jackson and Detective Meek argue that any claims that sur-

vive qualified immunity are nevertheless time-barred. Dkt. 149 at 23-24; Dkt.

150 at 24-26. They argue that the statute of limitations on Mr. Atchison’s §

1983 claims began to run in 1991 when the investigation and prosecution took

place. Jd. Alternatively, they argue that it began to run in 2017 when Mr.

Thomas drafted his affidavit stating that his interview and testimony were

false. Jd. Mr. Atchison responds that his claims are not time-barred because

the statute of limitations began to run in 2019 when the state court vacated

his conviction. Dkt. 170 at 33-34; Dkt. 172 at 34-36.

No. 21-cv-286

To determine when a § 1983 claim accrued, the Court begins by iden-

tifying “the specific constitutional right” the plaintiff claims was violated. A/-

bright v. Oliver, 510 U.S. 266, 271 (1994) (citations omitted). After identifying

the claim, the Court looks to the analogous common law tort to determine the

applicable statute of limitations. Manuel v. City of Joliet, 580 U.S. 357, 370

(2017). Mr. Atchison’s fabrication of evidence, Brady, and § 1983 malicious

prosecution claims arise under the Fourteenth Amendment’s Due Process

Clause and are most analogous to common-law malicious prosecution claims.

A malicious prosecution claim has a statute of limitations of two years that

accrues only upon the favorable termination of the challenged criminal pro-

ceedings. See, e.g., McDonough v. Smith, 588 U.S. 109, 125 (2019); see also Heck

». Humphrey, 512 U.S. 477, 489-90 (1994). Mr. Atchison’s fabrication of evi-

dence, Brady, and § 1983 malicious prosecution claims are timely because

they were brought within two years of the court’s decision to vacate Mr.

Atchison’s conviction.

The Court reaches a different conclusion on Mr. Atchison’s failure-to-

intervene claim. Not all § 1983 claims begin to accrue upon favorable termi-

nation of the criminal proceedings. See, e.g., Wallace »v. Kato, 549 U.S. 384,

394 (2007) (recognizing that some § 1983 claims “accrue before the setting

aside of —indeed, even before the existence of—the related criminal convic-

tion”). Mr. Atchison’s remaining failure-to-intervene claim against Detective

Meek is not attributable to his conviction. Instead, the claim focuses on De-

tective Meek’s alleged observation of the constitutional violations and failure

to report them. This claim accrued when Mr. Atchison learned of the alleged

coercion and Detective Meek’s failure to intervene. See, e.g., Stewart v. City

of Boulder, No. 1:19-cv-01588-RM-NY W, 2020 WL 5201289, at *3 (D. Colo.

Sept. 1, 2020) (adopting magistrate judge’s report and recommendation,

holding that plaintiff’s failure to intervene claim accrued at the time of the

alleged constitutional violation because the claim “d[id] not attack the crim-

inal process that resulted in his conviction”); Thomas v. City of Troy, 293 F.

No. 21-cv-286

Supp. 3d 282 (N.D.N.Y 2018) (“The statute of limitations for a claim based

on failure to intervene accrues when the failure to intervene occurs.”), 01 re-

consideration on other grounds sub nom. Thomas v. Mason, No. 1:17-cv-626

(DJS), 2019 WL 6111572 (N.D.N.Y. 2019). The violation took place in 1991,

and Mr. Atchison learned of it in Mr. Thomas’s 2017 affidavit. Either way,

Mr. Atchison filed his complaint in 2021, which falls outside the two-year

statute of limitations. Mr. Atchison’s failure-to-intervene claim is time barred

and cannot proceed to trial.

C. MUNICIPAL LIABILITY

The Court turns next to Mr. Atchison’s Monell claim against the City.

To establish municipal liability, a plaintiff must show not only that the em-

ployees committed a constitutional violation but also that a policy or custom

of the employer was the moving force behind the constitutional deprivations.

Myers v. Okla. Cty. Bd. of Cty. Comm’rs, 151 F.3d 1313, 1316 (10th Cir. 1998)

(citing Monell ». New York City Dept. of Social Servs., 436 U.S. 658, 694 (1978).

The City argues that none of its officers committed a constitutional violation.

Dkt. 151 at 16-17. But because there is evidence from which a jury could find

that the detectives fabricated evidence, committed Brady violations, and de-

prived Mr. Atchison of his liberty without probable cause, see supra, Sections

III(A)(1)-(3), the Court must determine whether the City had a policy or cus-

tom that was the moving force behind these violations.

1. POLICIES, PRACTICES, AND CUSTOMS

In the context of a Monell claim, a policy or custom can include:

(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 mu-

nicipal policy, is so permanent and well settled as to consti-

tute a custom or usage with the force of law;

(3) the decisions of employees with final policymaking author-

ity;

No. 21-cv-286

(4) the ratification by such final policymakers of the deci-

sions—and the basis for them—of subordinates to whom

authority was delegated subject to these policymakers’ re-

view and approval; or

(5) the failure to adequately train or supervise employees, so

long as the failure results from “deliberate indifference” to

the injuries that may be caused.

Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (internal quo-

tation marks and citations omitted). Under his formal policy theory, Mr.

Atchison identifies three City policies that allegedly gave rise to his injuries:

(1) conducting unrecorded pre-interviews; (2) affording officers broad discre-

tion on interview techniques; and (3) not requiring the presence of parents

for juvenile witnesses.” Mr. Atchison has failed to provide evidence upon

which a reasonable jury could determine that these policies caused his spe-

cific constitutional violations. This lack of evidence is fatal to Mr. Atchison’s

Monell claim.

In Bryson v. City of Oklahoma, the Tenth Circuit addressed similar le-

gal issues: Mr. Bryson was convicted based on false testimony from an Okla-

homa City Police Department forensic chemist and brought § 1983 claims

against Oklahoma City. 627 F.3d at 787. Mr. Bryson argued that Oklahoma

City had a custom of encouraging forensic chemists to manipulate evidence

to obtain convictions. /d. at 790. In support of his claim, Mr. Bryson pointed

to testimony that the forensic chemists would testify “in a way that is the

most incriminating” and other statements criticizing the trial testimony. /d.

The Tenth Circuit granted Oklahoma City’s motion for summary judgment

on the § 1983 Monell claim because, after taking all of the evidence in the light

most favorable to Mr. Bryson, it was “not persuaded the evidence [was] suf-

ficient to give rise to an inference of widespread City practice of fabricating

2 Mr. Atchison does not argue that any of these procedures or policies were used

against him directly but instead used against the witnesses that testified against him.

No. 21-cv-286

results and concealing evidence that was ‘so permanent and well settled as to

constitute a custom or usage with the force of law.’” Jd. at 791 (quoting City

of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)).

Mr. Atchison, like Mr. Bryson, has failed to provide evidence from

which a reasonable jury could conclude that the City’s policies caused the

specific constitutional violations at issue here. The City has presented several

legitimate reasons why an officer may have needed to conduct a pre-interview

in 1991. Dkt. 190 at 8. This type of policy, by itself, would not require or en-

courage officers to use the unrecorded portion of the interview to feed wit-

nesses false information or to threaten them. And there is no evidence that

officers routinely misused the policy to coerce statements or that the City

knew of or encouraged coercion similar to the events that took place in Mr.

Atchison’s case.

While officers were afforded discretion in how to conduct interviews,

the policy in force was “to comply with and follow federal and state law as

well as uphold the Constitution.” Dkt. 190 at 10. Officers were provided train-

ing on the negative effects of threatening witnesses or promising them leni-

ency. Dkt. 151-14 at 10-15. Further, officers were provided with information

on how Miranda applied to juveniles and the legal requirements for question-

ing juveniles. /d.; Dkt. 151-14 at 121-22. Neither policy identified by Mr.

Atchison required or encouraged officers to threaten witnesses with life in

prison or the death penalty in any situation. Further, there is no evidence that

the City knew of the alleged practice or endorsed it. Viewing the evidence in

the light most favorable to Mr. Atchison, he has failed to provide sufficient

evidence upon which a reasonable jury could determine that the City had a

policy or practice of fabricating evidence and threatening witnesses that was

“so permanent and well settled as to constitute a custom or usage with the

force of law.” Praprotnik, 485 U.S. at 127 (citation omitted).

No. 21-cv-286

2. FAILURE TO TRAIN

Mr. Atchison brings another Monell claim based on a theory that the

City failed to train its officers. Dkt. 176 at 30-36. The City’s failure to train or

supervise employees is an official policy or custom only when it “amounts to

deliberate indifference to the rights of persons with whom the police come

into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). To

establish a failure-to-train claim, Mr. Atchison must show: “(1) ‘the existence

of a [municipal] policy or custom involving deficient training’; (2) an injury

caused by the policy that is ‘obvious’ and ‘closely related’; and (3) that the

municipality adopted the ‘policy or custom with deliberate indifference’ to

the injury.” Valdez v. Macdonald, 66 F.4th 796, 816-17 (10th Cir. 2023) (citing

Lance v. Morris, 985 F.3d 787, 800 (10th Cir. 2021)). “A municipality’s culpa-

bility for a deprivation of rights is at its most tenuous where a claim turns on

a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citing Okla-

homa City v. Tuttle, 471 U.S. 808, 822-23 (1985)). Mr. Atchison argues that

the City had deficient or non-existent training on officers’ Brady obligation to

disclose exculpatory and impeachment evidence and how to conduct witness

interviews and interrogations. Dkt. 176 at 32.

Mr. Atchison has failed to provide evidence that the City failed to train

its officers, and that the deficiencies in its training would have been obvious

and closely related to his specific constitutional injuries. At the time of the

investigation, Detectives Jackson and Meek had been police officers for over

ten years. Dkt. 151-4 at 5.8 The detectives also testified that the proper inter-

view technique was to ask open-ended questions and that they knew not to

When they became police officers, they attended police academy training which

focused on criminal justice, state law, federal law, police procedures, constitutional law,

TPD’s policy manual, firearms, self-defense, active listening, communication, first aid,

driving, crime scene investigation, and accident investigation. Dkt. 151-16 at 3. The officers

also had extensive on-the-job training. Dkt. 171-9 at 11; Dkt. 171-17 at 46-47. The Supreme

Court decided Brady v. Maryland in 1963, which would have given police academies over

twenty years to incorporate Brady requirements into its general training for new officers and

on-the-job training by the time Mr. Atchison’s violations occurred.

No. 21-cv-286

provide the witness with any information he did not already know. Dkt. 171-9

at 13, 15, 44, 103; Dkt. 171-17 at 65. They also testified that they knew it was

important for the district attorney to receive everything from the investiga-

tion file. Dkt. 171-9 at 24, 122-23, 138. Although there was no written policy

or legal bulletin addressing the specific violations alleged here, the Court can-

not say, based on the record, that the officers did not receive training on these

issues—particularly given the detectives’ testimony that they understood

their obligations.

Further, Mr. Atchison does not present any evidence that specific,

written training regarding interview techniques or Brady obligations was uni-

versal across police departments in 1991. See, e.g., Bryson v. City of Oklahoma

City, 627 F.3d 784, 789 (10th Cir. 2010) (“[A]lthough ... most forensic labor-

atories began adopting better training and management practices in the 1970s

and 1980s, such practices were by no means universal in 1983, further mili-

tating against the conclusion that it was highly predictable or plainly obvious

in 1983 that the training and supervision practices employed by the City and

other jurisdictions would result in the violation of federal rights.”). It is not

obvious that additional training, as suggested by Mr. Atchison, would have

prevented these officers from feeding false information to witnesses and then

failing to disclose that information to the district attorney or defense counsel.

Given the evidence of the detectives on-the-job and academy training, Mr.

Atchison has failed to show that a written, formal policy on interrogation

techniques and Brady obligations was obviously necessary at the time to pre-

vent officers from providing false information to witnesses to coerce state-

ments and ignoring Brady obligations.

The third element requires Mr. Atchison to provide evidence that the

City acted with deliberate indifference to his alleged injuries. The Tenth Cir-

cuit recognizes that:

The deliberate indifference standard may be satisfied when the

municipality has actual or constructive notice that its action or

No. 21-cv-286

failure to act is substantially certain to result in a constitutional

violation, and it consciously or deliberately chooses to disre-

gard the risk of harm. In most instances, notice can be estab-

lished by proving the existence of a pattern of tortious conduct.

In a narrow range of circumstances, however, deliberate indif-

ference may be found absent a pattern of unconstitutional be-

havior if a violation of federal rights is a highly predictable or

plainly obvious consequence of a municipality’s action or inac-

tion, such as when a municipality fails to train an employee in

specific skills needed to handle recurring situations, thus pre-

senting an obvious potential for constitutional violations.

Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998) (internal quota-

tion marks and citations omitted).

Mr. Atchison has failed to provide sufficient evidence of a pattern of

tortious conduct as required to establish deliberate indifference. The only

prior instance Mr. Atchison points to occurred in 1989 when a judge sup-

pressed a statement made by eighteen-year-old LaRoye Hunter during an in-

terview with TPD. Dkt. 176 at 35-36. Mr. Hunter alleged that the officers

yelled at him and coerced him into confessing. Dkt. 171-39. Here, Mr.

Atchison claims that detectives provided false evidence to witnesses and then

coerced false statements to be used at trial. Mr. Hunter’s prior allegation that

his statement was coerced, not that it was false, would not have put the City

on notice that officers were fabricating evidence or ignoring their Brady obli-

gations. See, e.g., Connick, 563 U.S. at 63 (holding that incidents that are not

sufficiently like the violation at issue could not have put the defendant “on

notice that specific training was necessary to avoid this constitutional viola-

tion”). And even if Mr. Hunter’s allegations were sufficiently similar to Mr.

Atchison’s, the Tenth Circuit has held that “[o]ne prior incident, even if it

was a constitutional violation sufficiently similar to put officials on notice of

a problem, does not describe a pattern of violations.” Coffey v. McKinley Cty.,

504 F. App’x 715, 719 (10th Cir. 2012).

No. 21-cv-286

Without a pattern of tortious conduct, Mr. Atchison must instead

show that “the need for more or different training [was] 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 in-

different to the need.” Harris, 489 U.S. at 390. As discussed, both detectives

received training and understood proper interrogation techniques and their

Brady obligations. Mr. Atchison gives no reason why it would be highly pre-

dictable or plainly obvious to the City that additional training would be nec-

essary to prevent these detectives from giving witnesses false information,

coercing false statements, or failing to turn over exculpatory evidence. See,

e.g., Bryson, 627 F.3d at 789 (“We are not persuaded ... that it was highly pre-

dictable or plainly obvious that a forensic chemist would decide to falsify test

reports and conceal evidence if she received only nine months of on-the-job

training ....”). Because Mr. Atchison has failed to provide sufficient evidence

from which a reasonable jury could determine that the City had a custom or

policy that caused his constitutional violations, the City’s motion for sum-

mary judgment is granted.

IV

Mr. Atchison also brought claims under Oklahoma law. He alleges that

the officers intentionally inflicted emotional distress, maliciously pursued his

prosecution, and acted together in a civil conspiracy. Dkt. 57 at 23-26. He also

claims that the City is responsible for the officers’ actions under theories of

respondeat superior liability and indemnification. /d. The officers argue, and

Mr. Atchison concedes, that these claims are barred by the Oklahoma Gov-

ernmental Tort Claims Act. Dkt. 148 at 21; 149 at 25; 150 at 26; 151 at 24-26;

170 at 34 n.10; 172 at 36 n.9; 175 at 21n.7. Accordingly, Defendants’ motions

for summary judgment on the state law claims are granted.

The Defendants also seek summary judgment on Mr. Atchison’s re-

quest for punitive damages. Dkt. 148 at 25-26; Dkt. 149 at 29; Dkt. 150 at 30.

No. 21-cv-286

Under § 1983, punitive damages may be awarded if “the defendant’s conduct

is shown to be motivated by evil motive or intent, or when it involves reckless

or callous indifference to the federally protected rights of others.” Smith ».

Wade, 461 U.S. 30, 56 (1983). Mr. Atchison concedes that his request for pu-

nitive damages pertains only to the officers. Dkt. 176 at 36 n.12. The City’s

motion for summary judgment on the punitive damages claim is granted. Be-

cause there is no remaining § 1983 claim against Officer Wilson, his motion

for summary judgment is granted. As for Detective Jackson and Detective

Meek, intent is a matter best determined by a jury; it cannot be determined

on a motion for summary judgment. Accordingly, the detectives’ motions for

summary judgment on the punitive damages claims are denied.

VI

Officer Wilson and the City’s motions for summary judgment [Dkts.

148, 151] are granted. Detective Jackson and Detective Meek’s motions for

summary judgment [Dkt. 149, 150] are granted on Mr. Atchison’s failure to

intervene, conspiracy, and state law claims; they are denied on Mr. Atchison’s

§1983 claims based on fabrication of evidence, Brady violations, and mali-

cious prosecution. The parties’ pending motions to exclude expert opinions

[Dkts. 141, 145] are denied without prejudice; the parties have thirty days

from the issuance of this order to amend their expert reports consistent with

these rulings, and the parties will then have thirty days to refile any necessary

motions to exclude.

DATED this 25th day of August 2025.

eit Rn

JOHN D. RUSSELL

United States District Judge