James

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:23-cv-24467-KMM

THOMAS RAYNARD JAMES,

Plaintiff,

Vv.

DETECTIVE KEVIN CONLEY, et al.,

Defendants.

/

ORDER

THIS CAUSE came before the Court upon Defendants Detective Kevin Conley

(“Detective Conley”) and Detective Charles McCully’s (“Detective McCully”) (collectively,

“Defendants”) Motion for Summary Judgment (“Defendants’ Motion” or “Defs.’ Mot.”) (ECF

186) and Plaintiff Thomas Raynard James’s (“Plaintiff”) Motion for Summary Judgment on Count

I and Memorandum of Law in Support of Motion (“Plaintiff's Motion” or “Pltff.’s Mot.” and

together, the “Motions”) (ECF No. 188). Filed in connection with Defendants’ Motion were

Defendants’ accompanying Statement of Material Facts (“Defs.’ Stmt.”) (ECF No. 185), Plaintiffs

Response to Defendants’ Statement of Material Facts (“Pltff.’s Resp. Stmt”) (ECF No. 205),

Plaintiff's Response to Defendants’ Motion (‘Plaintiff’s Response” or “Pltff.’s Resp.”) (ECF No.

206), Defendants’ Reply in Support of their Motion (“Defendants’ Reply” or “Defs.’ Reply”) (ECF

No. 214), and Defendants’ Reply in Support of Their Statement of Material Facts (“Defs.’ Reply

Stmt.”) (ECF No. 211). Filed in connection with Plaintiff's Motion were Plaintiffs accompanying

Statement of Material Facts (“Pltff.’s Stmt.”) (ECF No. 187), Defendants’ Response to Plaintiff's

Statement of Material Facts (“Defs.’ Resp. Stmt.”) (ECF No. 203), Defendants’ Response to

Plaintiff’s Motion (“Defendants’ Response” or “Defs.’ Resp.”) (ECF No. 204), Plaintiff’s Reply

in Support of his Motion (“Plaintiff’s Reply” or “Pltff.’s Reply”) (ECF No. 210), and Plaintiff’s

Reply in Support of his Statement of Material Facts (“Pltff.’s Reply Stmt.”) (ECF No. 209). The

Motions are now ripe for review. As set forth below, Defendants’ Motion is GRANTED and

Plaintiff’s Motion is DENIED.

I. BACKGROUND

This case concerns the incarceration of Plaintiff after he was wrongly convicted of

murdering Francis McKinnon. (ECF No. 193). On January 17, 1990, Francis McKinnon was shot

and killed in his home in Coral Gables, Florida, during an armed robbery. Defs.’ Stmt. ¶ 1. That

night, two men burst into Mr. McKinnon’s home; one wore a hat or cap, but no mask, while the

other was masked. Pltff.’s Stmt. ¶¶ 1–2. The unmasked man was armed. Id. ¶ 3. He ordered

those in the living room and kitchen (a group that included Dorothy and John Walton, Ethra

McKinnon, Jasmine Byrd, Lance Jacques, and Robert Tamsie Smith), to get on the ground. Id.

Ms. Walton looked up at the unmasked man while he rummaged through her purse. Defs.’ Stmt.

¶ 28–29. At this point, Mr. McKinnon left his bedroom. Defs’ Stmt. ¶ 6. Mr. McKinnon was shot

and killed by one of the assailants,1 and both quickly fled the scene. Id.; Pltff.’s Stmt. ¶ 6.

Detective Conley, of the Metro-Dade Police Department (“MDPD”), was the lead

investigator on the murder investigation. Defs.’ Stmt. ¶ 9. He learned on the scene of the crime

that a possible suspect’s nickname was “Dog.” Id. ¶ 12. Detective Conley then told Detective

McCully, also of the MDPD, to conduct a canvass of the apartment complex where the shooting

had occurred. Id. ¶ 14. Detective McCully spoke to residents of the apartment complex, including

1Ethra McKinnon would go on to say the unmasked man is the one who shot Mr. McKinnon.

Pltff.’s Stmt. ¶ 8. Jasmine Byrd and Lance Jacques also stated the same. Pltff.’s Resp. Stmt. ¶ 31.

Ms. Walton heard one shot fired, but did not know who fired the shot. Defs.’ Stmt. ¶ 31.

Larry Miller. Id. ¶ 15. Larry Miller said he was approached by two men before the shooting. Id.

¶ 17; Pltff.’s Stmt. ¶ 13. He described one of the men as heavyset and wearing a white shirt, and

noted this man asked him for a cigarette. Defs.’ Stmt. ¶ 17; Pltff.’s Stmt. ¶ 13.

The night of the murder, Ethra McKinnon, Dorothy Walton, and John Walton went to the

MDPD and gave sworn statements. Defs.’ Stmt. ¶¶ 24–25. There, Ms. Walton described the

unmasked suspect as wearing “an off-white or beige white or beige sweater, with buttons down

the front and a collar,” noting that he was “black, approximately late twenties or early thirties, and

five-foot seven to five-foot eight,” and “maybe close to two hundred pounds, but not fat.” Id. ¶ 26

(internal quotations omitted). Detective Conley then showed each of the witnesses a photo lineup

that did not feature Plaintiff. Id. ¶ 32. Detective Conley testified at his deposition that none of the

witnesses made an identification using this array. Id. ¶ 35. But see Pltff.’s Resp. Stmt. ¶ 35

(disputing the testimony’s truthfulness based on Detective Conley’s fieldnotes).

Regina Ortiz, a resident of the apartment complex, told Detective McCully that her sister

said a man named “Thomas James” was involved in the murder. Defs.’ Stmt. ¶ 21. Two 911

callers also reported “Tommy James” was a murder suspect. Id. ¶ 22. One caller specified that

both assailants were “from the Grove.” Pltff.’s Stmt. ¶ 21. Plaintiff lived in or around Hialeah,

not Coconut Grove. Id. ¶ 31. Detective Conley then constructed new arrays, this time after

reviewing a report with individuals named “Thomas James” that matched the potential profile of

the assailants. Defs.’ Stmt. ¶¶ 39–40.2 The MDPD’s Records Bureau created the report. Pltff.’s

Stmt. ¶ 24. Plaintiff was one of the men in the report, as was a 17-year-old Thomas James from

the Grove. Id. ¶ 25. The latter was in jail on the night of the murder. Id. ¶ 27. Eventually,

2 The Court notes that Defendants name a different computerized printout in their statement of

facts than the one in Detective Conley’s file. Pltff.’s Resp. Stmt. ¶¶ 40–41; Defs.’ Reply at 15.

Detective Conley created two six-photo arrays, one including a photo of Vincent Williams, another

suspect in the case, and the other including a picture of Plaintiff. Defs.’ Stmt. ¶ 46, 48. Detective

Conley compiled each array himself, although Detective McCully was also present when the arrays

were presented to witnesses. Id. ¶ 51.

Affixed to the back of each photo array was a set of “Photographic Identification General

Guidelines” (“Photo Array Guidelines”).3 Id. ¶ 52. It is disputed whether these guidelines were a

policy of the MDPD. Id. ¶ 54; Pltff.’s Resp. Stmt. ¶ 54. Detective Conley went to Ms. Walton’s

home and showed her both arrays. Defs.’ Stmt. ¶ 56. Detective Conley did not read her the

admonitions in the Photo Array Guidelines, but he testified that he asked her “Do you recognize

anyone?” Id. ¶¶ 57–58. Ms. Walton identified Plaintiff, signing and dating the back of his

photograph. Id. ¶¶ 59–60. She did not identify anyone in the other photo array. Id. ¶ 61. Neither

Ethra McKinnon nor John Walton selected Plaintiff’s photograph when shown the arrays. Id. ¶

62. Detective Conley also showed the photos to Regina Ortiz, who did not identify anyone in

Plaintiff’s array but did identify Vincent Williams as fleeing the scene with a gun. Id. ¶¶ 63–64.

Detective Conley took the photo array to Mr. Miller, who identified Plaintiff as being the man who

had asked him for a cigarette before the shooting. Id. ¶ 67. He then signed the back of the same

photograph that had already been signed by Ms. Walton. Id. ¶ 68. Mr. Miller later told Ms. Walton

that he had also identified Plaintiff’s picture in the array. Pltff.’s Stmt. ¶ 55.

3 In relevant part, the Photo Array Guidelines state the following: officers are to admonish

witnesses that the array “may or may not contain a picture of the person who committed the crime

now being investigated” and that they are not to “tell other witnesses that [they] have or have not

identified anyone”; witnesses who select a photo “should be questioned about the reasons that

particular photo resembles the suspect”; “[c]omments by a witness who is shown photographs in

a Photo Display Folder should be recorded as part of a Formal Statement”; and “[w]itnesses should

not be told that they have picked the ‘right’ or ‘wrong’ photo.” (ECF No. 187-24).

Detective Conley sought a warrant for Plaintiff’s arrest and submitted an affidavit

indicating that a witness inside Francis McKinnon’s apartment had identified Plaintiff as being the

shooter. Defs.’ Stmt. ¶ 73. His decision to seek a warrant was approved by an Assistant State

Attorney (“ASA”), and Plaintiff was arrested in connection with the murder on July 19, 1990. Id.

¶¶ 77–79. An ASA was assigned to the case and ultimately presented it to a grand jury, which

indicted Plaintiff on charges of first-degree murder, burglary, robbery, and aggravated assault. Id.

¶¶ 81, 91. Detective Conley was deposed by the ASA in 1990 and testified that he destroyed hand-

written notes he had taken during the investigation. Id. ¶ 187. Despite this testimony, the homicide

file contained Detective Conley’s notepad. Id. ¶ 188. The notepad included notes from the night

of the murder, when the initial photo array was shown to Dorothy Walton, John Walton, and Ethra

McKinnon. Id. It is disputed what portions of these notes said. See id. ¶¶ 188, 192–93 (explaining

that Plaintiff did not ask Detective Conley to read his notes from the homicide file); Pltff.’s Stmt.

¶¶ 17–18; Pltff’s Resp. Stmt. ¶ 193 (arguing that notes read “she photo line up maybe 1/ he can’t

ID / wife no ID” and that “she” refers to Ms. Walton).

Plaintiff’s first-degree murder trial began on January 8, 1991. Pltff.’s Stmt. ¶ 61. At trial,

Mr. Miller was unable to identify anyone, and his pretrial identification was introduced into

evidence instead. Id. ¶¶ 62–63. Ms. Walton identified Plaintiff at trial, and this identification and

her pretrial identification were both introduced into evidence. Id. ¶ 64. These identifications were

the only evidence of Plaintiff’s guilt introduced by the State at his trial. Id. ¶ 65. Plaintiff’s defense

counsel did not move to suppress the photographic identifications. Defs.’ Stmt. ¶ 149. Plaintiff

was convicted on all counts by a jury on January 11, 1991. (ECF No. 185-27) at 600. More than

thirty years later, Plaintiff’s conviction was vacated on April 27, 2022, after Ms. Walton recanted

her identification. Defs.’ Stmt. ¶¶ 172–84.

Plaintiff brought the instant action on November 23, 2023. See (ECF No. 1). Now,

Plaintiff seeks monetary damages pursuant to 42 U.S.C. § 1983. (ECF No. 193)4 (“FAC”) ¶ 16.

He brings suit for the following: (1) denial of fair criminal proceedings in violation of the due

process clause of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983, for the use of unduly

suggestive identification procedures to produce false identifications of Plaintiff that were

introduced at trial, against Detectives Conley and McCully in their individual capacities (“Count

I”); (2) federal malicious prosecution and seizure in violation of the Fourth Amendment, pursuant

to 42 U.S.C. § 1983, for institution of criminal charges without probable cause, against Detectives

Conley and McCully (“Count II”); (3) deprivation of liberty and denial of fair criminal process in

violation of the due process clause of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983,

for concealment of exculpatory and impeachment evidence (“Count III”); and (4) failure to

adequately train pursuant to 42 U.S.C. § 1983 and Monell v. Dep’t of Soc. Servs. of City of New

York, 436 U.S. 658 (1978), against Defendant Miami-Dade County (“Count IV”). Id. ¶¶ 220–366.

Count IV is not at issue here.

Now, Detectives Conley and McCully have moved for summary judgment as to Counts I,

II, and III, whereas Plaintiff has moved for partial summary judgment as to Count I. See Defs’

4 The Court is aware that both Parties moved for summary judgment before Plaintiff filed his Fifth

Amended Complaint on November 30, 2025. The Court could deny both Motions as moot for this

reason. Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1345 n.1 (11th Cir. 1999);

Santiago v. Jaguar Therapeutics, LLC, No. 17-CV-22749, 2019 WL 4731980, at *1 (S.D. Fla. Jan.

17, 2019). However, upon examination of the Fourth Amended Complaint, at (ECF No. 138), and

the Fifth Amended Complaint, at (ECF No. 193), the Court notes Plaintiff has not changed any of

the allegations as to these Defendants. Instead, the Fifth Amended Complaint’s changes all pertain

to Defendant Miami-Dade County, who has not moved for summary judgment here. Because the

allegations as to Detectives Conley and McCully are not changed in the Fifth Amended Complaint,

and in light of the Parties’ extensive briefing on the instant Motions, the Court declines to deny

these Motions as moot.

Mot.; Pltff.’s Mot. Both Motions center around questions of whether Defendants were entitled to

qualified immunity. See generally Defs’ Mot.; Pltff.’s Mot.

II. LEGAL STANDARD

A. Summary Judgment

Summary judgment is appropriate where there is “no genuine issue as to any material fact

[such] that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56). A genuine issue of material fact exists

when “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). “For factual issues to be considered

genuine, they must have a real basis in the record.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303

(11th Cir. 2009) (citation omitted). Speculation cannot create a genuine issue of material fact

sufficient to defeat a well-supported motion for summary judgment. See Cordoba v. Dillard’s,

Inc., 419 F.3d 1169, 1181 (11th Cir. 2005).

The moving party has the initial burden of showing the absence of a genuine issue as to

any material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). In assessing

whether the moving party has met this burden, a court must view the movant’s evidence and all

factual inferences arising from it in the light most favorable to the non-moving party. Denney v.

City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001). Once the moving party satisfies its initial

burden, the burden shifts to the non-moving party to present evidence showing a genuine issue of

material fact that precludes summary judgment. Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th

Cir. 2002); Fed. R. Civ. P. 56(e). “If reasonable minds could differ on the inferences arising from

undisputed facts, then a court should deny summary judgment.” Miranda v. B & B Cash Grocery

Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citation omitted). But if the record, taken as a

whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine

issue for trial, and summary judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) (citation omitted).

B. Qualified Immunity

Government officials sued in their individual capacities enjoy qualified immunity “where

their conduct ‘does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Quinette v. Reed, 806 F. App’x 696, 701 (11th Cir. 2020)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “An officer is entitled to qualified

immunity where his actions would be objectively reasonable to a reasonable officer in the same

situation.” Id. (citing Anderson v. Creighton, 483 U.S. 635, 638–41 (2002)).

For qualified immunity to apply, the government official must first show that he or she was

“acting within the scope of his or her discretionary authority.” Moore v. Pederson, 806 F.3d 1036,

1042 (11th Cir. 2015) (en banc). The term “discretionary authority” “include[s] all actions of a

governmental official that (1) were undertaken pursuant to the performance of his duties, and (2)

were within the scope of his authority.” Id. (alteration in original) (quoting Jordan v. Doe, 38 F.3d

1559, 1566 (11th Cir. 1994)).5 Once the government official establishes that they were acting

within the scope of their discretionary authority, the burden shifts to the plaintiff to demonstrate

that qualified immunity is not appropriate. Id. To satisfy this burden, the plaintiff must show that

(1) the facts demonstrate that the officer’s conduct violated a constitutional right, and (2) the right

was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S 223,

232 (2009). The Court may consider the two prongs in any order, but “an official is entitled to

5 Plaintiff concedes Defendants were acting within the scope of their official duties “at all relevant

times.” FAC ¶¶ 18–19.

qualified immunity if the plaintiff fails to establish either.” Piazza v. Jefferson Cnty., 923 F.3d

947, 951 (11th Cir. 2019).

III. DISCUSSION

Defendants argue that each of Counts I–III are barred by qualified immunity, because “the

Detectives did not violate any law that was clearly established in 1990.” Defs.’ Mot. at 10.6

Plaintiff argues that the undisputed material facts establish Defendants violated Plaintiff’s due

process rights and summary judgment should be granted as to Count I. See generally Pltff.’s Mot.

Plaintiff also argues that Defendants are not entitled to qualified immunity as to any of Counts I–

III. See generally id.; Pltff.’s Resp. Defendants’ objections to Plaintiff’s Motion are substantively

the same as their arguments in favor of Defendants’ Motion. See generally Defs.’ Resp. The Court

next addresses each Count in turn, and further details the Parties’ arguments as to each.

A. Count I

Count I concerns Plaintiff’s allegation that Defendants violated his rights to due process

under the Fourteenth Amendment by using unduly suggestive identification procedures. FAC ¶¶

220–37. “Determining whether an identification is so unreliable as to violate due process requires

us to answer two questions: (1) whether the original identification procedure was unduly

suggestive; and if so, (2) whether the procedure, given the totality of the circumstances, created a

substantial risk of misidentification at trial.” Marsden v. Moore, 847 F.2d 1536, 1545 (11th Cir.

1988).

6 Defendants also argue that, at minimum, the record clearly establishes Detective McCully was

“only minimally involved in the investigation, committed no constitutional violation of his own,

and owed no clearly established duty to stop [Detective] Conley from committing a violation.”

Defs.’ Mot. at 34. The Court need not address this argument in the alternative, as it resolves

summary judgment in Defendants’ favor in the first instance.

Defendants argue they are entitled to qualified immunity because Plaintiff inappropriately

attempts to reraise already-defeated claims for inadequate investigation; Defendants’ photo array

presentations were constitutional and did not violate a clearly established law at the time; photo

admonitions are like Miranda warnings, in that failing to provide them does not necessarily confer

a right to sue under § 1983; and Defendants are not the proximate cause of Plaintiff’s damages.

Defs.’ Mot. at 11–20. Plaintiff argues he is entitled to summary judgment on Count I, because

Defendants’ photo identification procedures were unduly suggestive (particularly in how the array

was constructed and in how it was presented); the identifications actually produced were

unreliable; and these identifications proximately caused Plaintiff’s wrongful conviction and 32-

year imprisonment. See Pltff.’s Mot. at 4–12.

Defendants’ Response to Plaintiff’s Motion contains substantively the same arguments as

Defendants’ Motion. Defs.’ Resp. Plaintiff’s Response to Defendants’ Motion is similarly based

largely in similar arguments as Plaintiff’s Motion, but also emphasizes that Defendants’

procedures violated his clearly established constitutional rights. Pltff.’s Resp. at 11. Because the

responses contain largely the same arguments as the Motions do, the Court will discuss them

together.

“The judges of the district courts and the courts of appeals should be permitted to exercise

their sound discretion in deciding which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the particular case at hand.” Pearson,

555 U.S. at 236. The Supreme Court has also “stressed that courts must not define clearly

established law at a high level of generality, since doing so avoids the crucial question whether the

official acted reasonably in the particular circumstances that he or she faced.” D.C. v. Wesby, 583

U.S. 48, 63–64 (2018) (internal quotations omitted). The question “whether the violative nature

of particular conduct is clearly established” must be answered “in light of the specific context of

the case, not as a broad general proposition.” Crocker v. Beatty, 995 F.3d 1232, 1241 (11th Cir.

2021) (cleaned up). The Court will therefore analyze each aspect of challenged conduct in turn.

It will first look at whether there was a “clearly established” constitutional right involving that

conduct, and then, if necessary, to whether the right was violated at all.7

i. The construction of the photo array

Plaintiff argues that the construction of the photo array at issue itself violated his due

process rights. His argument proceeds in two parts, and the Court will handle them separately.

First, Plaintiff argues that the fillers in Plaintiff’s photo array did not resemble Ms. Walton’s

description of the assailants. Pltff.’s Mot. at 4–5. Defendants argue that binding authority at the

time Detective Conley constructed the photo array supports the constitutionality of the photo array

as constructed. Defs.’ Resp. at 10.

“The first step in assessing the constitutionality of [Defendants’] actions is to determine

the relevant facts.” Scott v. Harris, 550 U.S. 372, 378 (2007). Here, the undisputed facts show

that Ms. Walton described the suspect as a Black male in his late twenties to early thirties, who

was close to two hundred pounds, but “wasn’t fat.” (ECF No. 185-8) at 1–4; Defs.’ Stmt. ¶ 26;

Pltff.’s Resp. Stmt. ¶ 26. She also described him as wearing a white, off-white, or beige, button-

down sweater. Defs.’ Stmt. ¶ 26. Plaintiff argues that he was the only person in the array shown

to Ms. Walton and Mr. Miller that matched this description, and that Defendants violated his due

process rights by including fillers that did not match this description. Pltff.’s Mot. at 4–5.

7 Because the Court decides as to Count I based on the qualified immunity question, it does not

reach Defendants’ contentions regarding causation or arguing that failures to give proper

admonitions during a photo lineup do not give rise to § 1983 claims. See Defs.’ Mot. at 17–20.

Specifically, Plaintiff argues he was the only one in the array with a round face,8 the only one

wearing a white shirt, and “the heaviest looking person in the array.” Id. at 4. Defendants argue

“[t]here is simply nothing about Plaintiff’s photograph that makes it jump off the page as being

the only one consistent with Dorothy Walton’s description.” Defs.’ Reply at 8.

Plaintiff argues it was clearly established in 1990 that suggestive photo lineups violate a

suspect’s rights. Pltff.’s Reply at 18–19. A right is clearly established when it is “sufficiently

clear that every reasonable official would have understood that what he is doing violates that right.”

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotations omitted). “The usual way of

establishing that a constitutional violation was clearly established law is by pointing to a case, in

existence at the time, in which the Supreme Court or [the Eleventh Circuit] found a violation based

on materially similar facts.” Cantu v. City of Dothan, Ala., 974 F.3d 1217, 1232 (11th Cir. 2020).

However, “courts must not define clearly established law at a high level of generality.” Wesby,

583 U.S. at 63–64. Therefore, the relevant inquiry is whether it was clearly established in 1990

that photo arrays like the one Defendants arranged here are unlawful. In particular, the Court notes

that while controlling law in 1990 did not need to condemn this exact factual scenario, “[t]he

contours of the right must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Creighton, 483 U.S. at 640.

The Court finds that Defendants are entitled to qualified immunity for their construction of

the photo arrays. In 1990, it was clearly established that it is unconstitutionally heightening the

risk of misidentification to show a victim a photo array where one suspect is emphasized. Simmons

v. United States, 390 U.S. 377, 383 (1968); Foster v. California, 394 U.S. 440, 443 (1969)

8 Defendants argue that Ms. Walton never actually told Detective Conley “that the suspect had a

‘round face.’” Defs.’ Resp. at 7 n.2. Ms. Walton did, however, identify the suspect as having a

“round face,” according to a report from the night of the murder. (ECF No. 187-3) at 3.

(condemning lineup procedure where “[i]n effect, the police repeatedly said to the witness, ‘This

is the man’”). However, the Court finds that Defendants were not on notice that the particular

array they compiled here violated the constitution.9 Controlling precedent at the time found

significantly more suggestive photo spreads to be lawful. See, e.g., United States v. Ricks, 817

F.2d 692, 697 (11th Cir. 1987) (finding that a photo spread of males, all the same race, where only

suspect wore eyeglasses was not unlawful); Cikora v. Dugger, 840 F.2d 893, 897 (11th Cir. 1988);

Williams v. Weldon, 826 F.2d 1018, 1021 (11th Cir. 1987) (upholding pretrial identification where

suspect was only Black man in lineup). In Ricks, the crime at issue involved a bank robbery where

a suspect wore sunglasses, and then only one member of the photo array had eyeglasses on. See

817 F.2d at 698. The court still found this procedure to not be unlawfully suggestive, and found

that when the same witness identified the suspect again at trial four months later, “it is highly

unlikely that the witness’s selection of [the suspect] from the photo spread caused a mistaken

identification.” Id. Similarly, here, Plaintiff’s image in the photo array is the only one where the

suspect is visibly wearing a light-colored shirt. (ECF No. 187-24). However, Ms. Walton went

on to identify Plaintiff again at trial, Defs.’ Stmt. ¶ 134, making it “highly unlikely” that the photo

array’s construction is what caused her mistaken identification. See Ricks, 817 F.2d at 698.

In Cikora, the witnesses had described that the suspect was a white male with no facial

hair. 840 F.2d at 894. Yet, the court found the district court had not erred in finding that a photo

array that included at least three mug shots, three Hispanic men, and where all of the men had

facial hair, with the suspect’s being sparse, was not impermissibly suggestive. Id. Given the

controlling law in 1990, particularly Cikora and Ricks, the Court finds it was not “sufficiently clear

9 The Court presumes arguendo that some constitutional right has been violated when evaluating

the “clearly established” prong of qualified immunity.

that [Defendants] would understand that what [they are] doing violates” the law. Creighton, 483

U.S. at 640. Therefore, Defendants are not liable for their construction of the photo array, and are

entitled to qualified immunity.

Plaintiff next argues that Defendants’ inclusion of him in a photo array to begin with

violated his due process rights, because law enforcement had received a tip specifically indicating

the Tommy James involved with the murder was “from the Grove,” but they knew the Tommy

James from the Grove was in jail the night of the murder, so they “knew, or reasonably should

have known” that there was no Tommy James involved with the murder. Pltff.’s Mot. at 4; Pltff’s

Reply at 6–7. Defendants argue that, in as much as Plaintiff critiques them for using his photo in

the array at all, Plaintiff is repackaging a theory of liability for inadequate investigation that this

Court already considered and rejected at the motion to dismiss stage. Defs.’ Mot. at 12 (citing

(ECF No. 38) at 13–14).

The Court agrees with Defendants that the crux of Plaintiff’s argument on this point “seems

to be that [Detective] Conley should have known that no one named Tommy James was involved

in the Francis McKinnon murder.” Defs.’ Resp. at 4. Plaintiff seeks to hold Defendants liable for

not following this exact line of reasoning: that the most important tip officers received is not all

of the ones referring to Tommy/Thomas James, but specifically the one referring to a Tommy

James from the Grove; that this tipster was referring specifically to the Tommy James that Plaintiff

is referring to; that because this Tommy James, who was from Coconut Grove, was in jail the night

of the murder, he did not commit the murder; and that, because he did not commit the murder, no

Thomas James was involved in the murder at all. While the Court finds this line of reasoning

questionable and circular, it need not comment on its veracity, or whether Defendants knew about

this other Thomas James, to find for Defendants here. That is because the Court finds Plaintiff is

attempting to hold Defendants liable for an inadequate investigation, where they did not connect

the dots that tipsters must have been mistaken in alleging Tommy/Thomas James was involved in

the murder, because the man the tipsters were alleging was connected was actually in jail. As the

Court found at the motion to dismiss stage, “the right to be free from an inadequate investigation

was not clearly established at the time Defendants conducted the allegedly inadequate

investigation in 1990.” (ECF No. 38) at 14; Aguirre v. Seminole Cnty., 158 F.4th 1276, 1309 (11th

Cir. 2025) (“That right [to an investigation that pursued all exculpatory leads, without any evidence

that officers actually harbored significant doubts] was not clearly established at the time of

Hemmert and Grossi's investigation in 2004.”). Accordingly, the Court finds Defendants are

entitled to qualified immunity on Plaintiff’s arguments related to the construction of the photo

array.

ii. The presentation of the photo array to the witnesses

Next, Plaintiff argues that Defendants’ failure to follow proper procedures while presenting

the photo lineup to Ms. Walton and Mr. Miller violated Plaintiff’s due process rights. Pltff.’s Mot.

at 5–9.

Here, the Court begins again with the relevant, undisputed facts. Scott, 550 U.S. at 378.

Defendants presented two six-photo arrays to witnesses, most notably including Ms. Walton and

Mr. Miller. Defs.’ Stmt. ¶¶ 56, 66. The photo arrays had Photo Array Guidelines affixed to their

backside. Id. ¶ 52. When showing Ms. Walton the arrays, Detective Conley did not read her

admonitions contained in the Photo Array Guidelines. Id. ¶ 57. Instead of instructing Ms. Walton

that the photo arrays may or may not contain a picture of the person being investigated, that she

should not tell others whether she identified anyone, and that she should give him the reasons why

she chose the photo she did, Detective Conley testified that he simply asked Ms. Walton, “Do you

recognize[] anyone?” Pltff.’s Stmt. ¶¶ 39–40. Ms. Walton then identified Plaintiff, and signed

and dated the back of his photograph in the array. Id. ¶¶ 42, 45. When showing the photo arrays

to Mr. Miller, Detective Conley again did not read him the same admonitions from the Photo Array

Guidelines. Id. ¶ 50. Instead, he presented Mr. Miller the lineup after asking, “[D]o you

recognize[] anyone?” Id. ¶ 51. Mr. Miller then identified Plaintiff in the photo lineup as the man

who had asked him for a cigarette on the night of the murder, and Mr. Miller signed the same

photograph that Ms. Walton had signed. Id. ¶¶ 52, 54. He later told Ms. Walton that he had picked

the same picture as her in the photo lineup. Id. ¶ 55. Detective Conley told Mr. Miller he had

made the right choice, but it is disputed if this happened right away or at some point in the near

future. Id. ¶ 53; Defs.’ Resp. Stmt. ¶ 53.

Plaintiff specifically argues that Detective Conley “did not provide the required

admonitions, did not tell the witnesses not to consult with each other, and did not record

contemporaneous comments and confidence level.” Pltff.’s Mot. at 6. Plaintiff’s expert argues

that these failures created a suggestive identification process. Id. at 7–8 (citations omitted).

Defendants argue that Plaintiff’s failure to cite controlling law showing the alleged constitutional

violation was clearly established as such in 1990 “is reason enough for the Court to deny his

request for summary judgment.” Defs.’ Resp. at 15–16. Defendants also assert they are entitled

to summary judgment, and they affirmatively argue there was no clearly established right in 1990

to a lineup procedure that followed departmental guidelines. Defs.’ Mot. at 17. Further,

Defendants assert the clearly established law at the time showed that lineup procedures far more

suggestive than the one at issue here were lawful. Id.; Defs.’ Resp. at 14–15.

The Court finds Defendants are entitled to qualified immunity for the manner in which

Defendants presented the photo arrays to Ms. Walton and Mr. Miller. As with Plaintiff’s

arguments regarding the construction of the photo array, his arguments regarding its presentation

are also foreclosed by the state of the law in 1990. For example, in Cikora, the officer presenting

a photo array to witnesses told them, “[o]ne of the[] [men in the pictures] is believed to be the

suspect.” 840 F.2d at 894. The Eleventh Circuit nevertheless upheld the identification two of the

witnesses made, finding the officer “did not direct the [witnesses’] attention to Cikora’s

photograph when he told them that one of the men pictured was the suspect.” Id. at 896–97.

Therefore, the controlling law at the time actually upheld a procedure where the officer was far

more suggestive than Detective Conley was. This is true regardless of when Detective Conley told

Mr. Miller he had made the right choice in selecting Plaintiff, as the Parties agree Detective Conley

did not tell Mr. Miller until after he had made his choice. Pltff.’s Stmt. ¶ 53; Defs.’ Resp. Stmt. ¶

53.

Existing case law put Defendants on notice that the sorts of procedures that are

unconstitutional are those that “made it all but inevitable that [witnesses] would identify” a certain

suspect, with no indication that telling a witness he was right after the fact would be

unconstitutional. See Foster, 394 U.S. at 443. As such, Defendants were not on notice that the

procedures they employed could constitute a constitutional violation.10 Accordingly, Defendants

are entitled to qualified immunity as to Count I.11

10 Plaintiff argues that the Court already rejected Defendants’ argument, finding that the right

against unduly suggestive identification procedures was already clearly established by 1990.

Pltff.’s Reply at 17 (citing (ECF No. 38) at 7). The Court notes that while this right was clearly

established on a general level, “courts must not define clearly established law at a high level of

generality.” Wesby, 583 U.S. at 63–64. “The contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing violates that right.” Creighton, 483

U.S. at 640. Therefore, Plaintiff’s Motion is denied, as he failed to point the Court to law that

would have served to put Defendants on notice to this right.

11 The Court also finds that Defendants’ failure to follow the Photo Array Guidelines, whether

mandated by the MDPD or not, does not in and of itself give rise to a constitutional violation.

Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir. 2002) (“Section 1983 does not create a remedy

B. Count II

Count II concerns Plaintiff’s claim that Defendants should be held liable for instituting

criminal charges without probable cause, thereby engaging in malicious prosecution and seizure

in violation of the Fourth Amendment. FAC ¶¶ 238–45. The Eleventh Circuit treats malicious

prosecution claims as requiring plaintiffs to prove both the common law elements of the tort and

a violation of the Fourth Amendment. Butler v. Smith, 85 F.4th 1102, 1111 (11th Cir. 2023). “[T]o

prove a Fourth Amendment malicious-prosecution claim in [the Eleventh] Circuit, a plaintiff must

establish four elements: (1) the plaintiff was seized under legal process; (2) the legal process

justifying the plaintiff's seizure was constitutionally infirm; (3) the suit or proceeding terminated

in the plaintiff’s favor; and (4) the seizure would not otherwise be justified without legal process.”

Gervin v. Florence, 139 F.4th 1236, 1248 (11th Cir. 2025); Laskar v. Hurd, 972 F.3d 1278, 1284

(11th Cir. 2020) (explaining plaintiffs must show officials instituted criminal process “with malice

and without probable cause” (emphasis added)). In the qualified immunity context, courts in the

Eleventh Circuit are instructed to “review for ‘arguable’ probable cause,” which is a lower standard

than probable cause and “asks whether a reasonable officer[] in the same circumstances and

possessing the same knowledge as the Defendant[] could have believed that probable cause

existed.” Aguirre, 158 F.4th at 1301 (alterations in original) (quoting Butler, 85 F.4th at 1116).

In analyzing Count II, the Court begins again with the relevant, undisputed facts. Scott,

550 U.S. at 378. On June 13, 1990, Detective Conley met with ASA Kathleen Hoague, who

for every wrong committed under the color of state law, but only for those that deprive a plaintiff

of a federal right.”); see also Davis v. Scherer, 468 U.S. 183, 194 (1984) (“Officials sued for

constitutional violations do not lose their qualified immunity merely because their conduct violates

some statutory or administrative provision.”); Knight through Kerr v. Miami-Dade Cnty., 856 F.3d

795, 813 (11th Cir. 2017) (“[M]any police departments have internal procedures that are more

restrictive of conduct than what is otherwise permitted under state and federal law.”).

approved his decision to seek a warrant based on the information he provided within his affidavit.

Pltff.’s Resp. Stmt. ¶ 77. In his affidavit, Detective Conley shared that a witness “inside the

apartment” when the shooting occurred identified Plaintiff as the murderer. (ECF No. 185-14) at

2. He also indicated that a witness observed Plaintiff “standing in the hallway near the victim’s

apartment” shortly before the assailants entered Francis McKinnon’s apartment and killed him.

Id. Plaintiff was arrested on July 19, 1990. Defs.’ Stmt. ¶ 79. Another ASA, Rose Marie

Antonacci-Pollock was assigned to the case and prepared to present the case to a grand jury. Id. ¶

81. In the process of preparing to present the case, she conducted sworn interviews with Ms.

Walton and Detective Conley. Id. ¶¶ 83–86. Detective Conley told ASA Antonacci-Pollock about

anonymous tips referring to “Dog” and “Thomas James” as suspects. Id. ¶ 84. By the time ASA

Antonacci-Pollock presented her case to the grand jury, she would have “had some … background

information about what happened.” Id. ¶ 90. The grand jury indicted Plaintiff on charges of first-

degree murder, burglary, robbery, and aggravated assault Id. ¶ 91.

Defendants argue they are entitled to qualified immunity as to Count II because the arrest

warrant and subsequent grand jury indictment establish that there was probable cause for Plaintiff’s

arrest and, at the very least, arguable probable cause supported Plaintiff’s seizure. Defs.’ Mot. at

20–26. Plaintiff argues that Detective Conley omitted information from his affidavit in support of

Plaintiff’s arrest warrant, and that this information “undermined the trustworthiness of Dorothy

Walton’s identification,” leaving “a dispute for the jury on whether there was probable cause to

pursue charges against [Plaintiff].” Pltff.’s Resp. at 16–19. Plaintiff further argues that the

question of whether these omissions were reckless is for the jury. Id. at 20–21. Finally, Plaintiff

argues that the indictment does not protect Defendants from liability because Detective Conley

“recklessly concealed material exculpatory evidence from the State’s Attorney who, even in the

absence of such exculpatory evidence, believed the case against [Plaintiff] was very weak.” Id. at

22.

Defendants are entitled to qualified immunity as to Count II, because there was at least

arguable probable cause that justified arresting Plaintiff. This is true even when curing Detective

Conley’s affidavit of alleged misstatements and omissions. See Aguirre, 158 F.4th at 1305

(evaluating qualified immunity arguments after curing affidavit of alleged misstatements and

omissions). Plaintiff argues that the following details were each omitted from Detective Conley’s

affidavit that led to the issuance of an arrest warrant: (1) Ms. Walton was less likely to accurately

identify the shooter given the circumstances; (2) witnesses consistently identified the shooter as

being a Black man wearing a hat and white T-shirt, which matched other witnesses’ description of

Vincent Williams; (3) Ms. Walton and her husband had each previously identified another person;

and (4) Vincent Williams had multiple arrests and convictions for armed robberies prior to the

murder, whereas Plaintiff did not. Pltff.’s Resp. at 16–17.

When considering this information as true, the Court still finds there was at least arguable

probable cause to arrest Plaintiff. As for the evidence pointing to Vincent Williams, or even the

Tommy James from the Grove, “the suggestion of an alternative suspect does not, on its own,

vitiate probable cause.” Aguirre, 158 F.4th at 1307–08 (noting “probable cause can exist for

multiple suspects simultaneously”). This is especially true in this case, where the crime involved

two assailants. Further, even when accounting for Plaintiff’s argument that Ms. Walton’s

identification was less likely to be accurate given the circumstances,12 a reasonable officer could

still take a suspect identification from an eyewitness as establishing probable cause that Plaintiff

12 Plaintiff details these circumstances, including Ms. Walton’s “heightened stress,” her “focus on

her purse while it was being rifled by the person holding the gun,” and “the sudden disappearance

of both perpetrators.” Pltff.’s Resp. Stmt. ¶¶ 224–30.

was the shooter. See Scott v. City of Miami, 139 F.4th 1267, 1274 (11th Cir. 2025) (“In general,

reliance upon eyewitness testimony, including that of a victim of a crime, is sufficient to establish

probable cause.”); see also Aguirre, 158 F.4th at 1301. In as much as Plaintiff argues these

circumstances must be evaluated by a jury, the Court finds that probable cause is “a pure question

of law.” Swint v. City of Wadley, Ala., 51 F.3d 988, 996 (11th Cir. 1995); Aguirre, 151 F.4th at

1292. Further, a reasonable officer could also still lend enough credence to Ms. Walton’s

identification, even if she had previously identified someone else,13 to believe probable cause

existed. See Mills v. Town of Davie, 48 F. Supp. 2d 1378, 1380–81 (S.D. Fla. 1999). Therefore,

there was at least arguable probable cause justifying the seizure of Plaintiff.

Therefore, the Court finds Defendants are entitled to qualified immunity as to Count II.14

C. Count III

Count III concerns Plaintiff’s allegation that Defendants deprived him of liberty and denied

him fair criminal process in violation of the due process clause of the Fourteenth Amendment by

concealing exculpatory and impeachment evidence. FAC ¶¶ 246–86. Defendants in criminal

cases or habeas proceedings establish violations for nondisclosure under Brady v. Maryland, 373

U.S. 83 (1963), by showing “favorable evidence material to [their cases] was not disclosed to the

defense.” Porter v. White, 483 F.3d 1294, 1305 (11th Cir. 2007); United States v. Bagley, 473

U.S. 667, 682 (1985) (explaining evidence is material where there is “reasonable probability that,

13 Defendants do not concede this is true. Defs.’ Mot. at 27–28. This is not a “material” fact for

summary judgment purposes, as its truth does not impact the outcome. Anderson, 477 U.S. at 248.

14 Because there was arguable probable cause supporting Plaintiff’s seizure even when omitting

all alleged misstatements, the Court does not reach whether Defendants’ misstatements were

intentional or reckless. Paez v. Mulvey, 915 F.3d 1276, 1287 (11th Cir. 2019). The Court also

does not reach whether the grand jury indictment and arrest warrant are sufficient to establish

probable cause. When courts find there was arguable probable cause for an arrest, defendants are

entitled to qualified immunity as to malicious prosecution claims. Aguirre, 158 F.4th at 1308.

had the evidence been disclosed to the defense, the result of the proceeding would have been

different”). Brady duties are “imposed on the prosecutor,” but law enforcement officials have a

“correlative duty . . . to turn over exculpatory evidence to the prosecution.” Porter, 483 F.3d at

1306. In § 1983 actions like this one, plaintiffs must also show something more than negligence

on the part of the defendants, as “a negligent act or omission cannot provide a basis for liability in

a § 1983 action.” Id. at 1308.

In analyzing Count III, the Court begins again with the relevant, undisputed facts. Scott,

550 U.S. at 378. Shortly after the shooting, Defendants learned that a man known as “Dog” was

seen running behind a building. Pltff.’s Stmt. ¶ 20. They also received information that suggested

a man named “Thomas James” or “Tommy James” was a suspect. Id. ¶¶ 21–22. One 911 caller

said that the assailants were Vincent “Dog” Williams and Tommy James “from the Grove.” Pltff.’s

Resp. Stmt. ¶ 22. Ethra McKinnon, Dorothy Walton, and John Walton were each shown a photo

array the night of the murder. Defs.’ Stmt. ¶¶ 24, 32. Detective Conley reported none of the

witnesses were able to make an identification when shown this array on the night of the murder,

which featured fillers and a man known as “Dog,” although he was not Vincent Williams, the

“Dog” that was later considered a suspect in the case. Id. ¶¶ 33–35. Detective Conley testified

that he destroyed fieldnotes he had taken during this process, but had included anything pertinent

that could be found in the notes in his report. Id. ¶¶ 186–88. However, Detective Conley’s

homicide file actually included fieldnotes from that night. Id. ¶ 188; Pltff.’s Resp. Stmt. ¶ 188.

When Detective Conley compiled the subsequent photo array that included Plaintiff, he did so

using reports created by the MDPD records department of all potentially relevant local men named

Thomas James. Defs.’ Stmt. ¶¶ 42–43. One of these reports included Plaintiff, as well as Tommy

James from the Grove; however, the latter was in jail the night of the murder. Pltff.’s Stmt. ¶¶ 24–

27.

Defendants argue they are entitled to qualified immunity as to Count III because Detective

Conley’s field notes would be inadmissible at trial and it is impermissibly speculative to try to

make sense of his handwriting and shortform; failing to locate and interview another suspect did

not constitute the withholding of exculpatory evidence; and, in any case, there is no indication that

any evidence was intentionally withheld. Defs.’ Mot. at 26–34. Plaintiff argues that Defendants

are not owed qualified immunity, because they did not provide the prosecution with the following

exculpatory evidence: Detective Conley’s handwritten notes, which include notes about the photo

array shown to witnesses the night of the murder; evidence that Tommy James from the Grove

was in jail at the time of the murder; information regarding the whereabouts of Vincent Williams;

and information regarding Vincent Williams’ criminal history. Pltff.’s Resp. at 23–32. Plaintiff

further argues that if this evidence had been revealed, there is a reasonable probability that “its

disclosure would have produced a different result.” Id. at 32–34. Finally, Plaintiff argues

Defendants’ conduct was at least grossly negligent or reckless, and that this is enough to meet the

Eleventh Circuit’s standard for liability in such cases. Id. at 34–36.

The Court will address each piece of potential exculpatory/impeachment evidence. The

Court finds that Defendants did not have exculpatory evidence regarding the other Tommy James,

and finds that whatever evidence they might have had was not withheld. Plaintiff argues that

Defendants knew and concealed the Tommy/Thomas James that tipsters referred to was a specific

Tommy James from the Grove, and that this Tommy James was in jail. Pltff.’s Resp. at 24–27.

As explained above, the Court does not find Plaintiff’s attenuated argumentation regarding the

other Tommy James to be compelling. The Court agrees with Defendants that the record evidence

supports only that Detective Conley “knew one of the suspect’s names was rumored to be ‘Thomas

James,’ which is Plaintiff’s name.” Defs.’ Reply at 16. The Court also agrees with Defendants

that there is no evidence Defendants had reason to believe that the Tommy James in jail was the

one “most likely to have been Vincent Williams’ accomplice.” Defs.’ Mot. at 31. Plaintiff argues

that Defendants were on notice that the Tommy James tipsters referred to was from the Grove,

based on an anonymous tip to the Coral Gables Police Department communications desk. Pltff.’s

Resp. at 26. However, Defendants correctly note that the prosecutor and defense attorney in

Plaintiff’s original case were both aware of this anonymous call and its contents. Defs.’ Reply at

16–18. Therefore, the evidence regarding the other Tommy James, who was from the Grove, is

not exculpatory and also was not withheld, as Defendants meet their legal duty if they provide

exculpatory evidence to the prosecutor. See Polk v. Nugent, 554 F. App’x 795, 799 (11th Cir.

2014); Porter, 483 F.3d at 1306.

The Court finds that the evidence regarding Vincent Williams’ whereabouts and his

criminal history do not give rise to Brady violations. As for the evidence regarding Vincent

Williams’ various prior convictions, Plaintiff argues that if such evidence had been made available

to the jury, it could reasonably conclude he was responsible for killing Francis McKinnon. Pltff.’s

Resp. at 32. The Court finds, however, that evidence of Vincent Williams’ criminal history was a

matter of public record and therefore, not Brady material. See United States v. Barroso, 719 F.

App’x 936, 941 (11th Cir. 2018). Next, Plaintiff argues that Detective Conley was withholding

information from the prosecutor when he said he “had been unable to find” Williams, as Williams

was in and out of custody throughout 1990, including being arrested by the MDPD itself. See

Pltff.’s Resp. at 31. This too, however, is premised upon information of public record, which

Defendants did not have a duty to disclose. See Barroso, 719 F. App’x at 941. In as much as

Plaintiff argues that Detective Conley was intentionally attempting to conceal this evidence, the

Court finds there is no evidence he attempted to conceal Williams’ whereabouts. See Polk, 554 F.

App’x at 799; see also Celotex, 477 U.S. at 325 (explaining that moving party at summary

judgment meets its burden by showing “there is an absence of evidence to support the nonmoving

party’s case”). Therefore, the Court finds the information regarding Vincent Williams did not give

rise to potential Brady violations.

This leaves only Detective Conley’s fieldnotes for the Court to consider. The Court finds

a reasonable officer would not have considered the information regarding the photo array shown

on the night of the murder to be material. McMillian v. Johnson, 88 F.3d 1554, 1569 (11th Cir.

1996) (“For if a reasonable officer would not know that the exculpatory and impeachment evidence

was material, he would not know that ‘what he is doing’ violates federal law.” (citation omitted)).

Even accepting Plaintiff’s interpretation of Detective Conley’s fieldnotes as true, that would

indicate that Ms. Walton had said “maybe 1” when shown a photo array the night of the murder.

Pltff.’s Resp. at 27. A reasonable officer would not necessarily consider this to be material.

The Court finds the reasoning in Fappiano v. City of New York, as invoked by Defendants,

Defs.’ Reply at 19, to be instructive here. See generally No. 01-CV-2476, 2015 WL 94190

(E.D.N.Y. Jan. 7, 2015). In Fappiano, the court found no Brady violation where officers had not

disclosed to prosecutors that, on the night of the crime, the victim said someone other than the

criminal defendant resembled her attacker in a lineup that did not include that criminal defendant.

Id. at *15. The court explained that, because there was no clear identification of another person,

the victim’s statement “had no exculpatory value for the defense.” Id. (collecting cases). The

court also explained the eventual strength of the victim’s in-court identification rendered this

evidence immaterial even as impeachment evidence, where the victim said in court that she was

“absolutely positive” the criminal defendant was the suspect, and where she testified she would

“never” forget his face. Id. at *16.

Similarly here, Ms. Walton’s apparent statement was that someone other than Plaintiff was

“maybe” the suspect in question. Pltff.’s Resp. at 27. This identification, like the one in Fappiano,

happened on the night of the crime in question, and would “at best, impeach[] her recollection of

the minute details of the early investigation.” 2015 WL 94190, at *16. Further, although

ultimately retracted years later, Ms. Walton’s in-court identification was extremely strong, as she

said: “I’m positive of it. I will never forget his face. I will never forget his eyes.” (ECF No.185-

27) at 310. Thus, the Court finds that notes regarding Ms. Walton’s tentative identification of

someone other than Plaintiff on the night of the murder are not material,15 as they have no

exculpatory and “minimal impeachment value.”16 Fappiano, 2015 WL 94190, at *16.

Further, in 1990, it was only clearly established law that officers could not intentionally

withhold material evidence from prosecutors. Porter, 483 F.3d at 1304 n.5, 1306 (explaining that

caselaw even as late as 2007 only told officers they “had a duty not to intentionally withhold

exculpatory evidence from the prosecution”). Detective Conley testified at the time that he had

15 The Court is aware that the materiality of withheld exculpatory or impeachment evidence is to

be considered cumulatively for the purposes of Brady. Kyles v. Whitley, 514 U.S. 419, 421 (1995).

However, the Court has already held the other allegedly withheld evidence does not violate Brady

for reasons other than its material effect, so they need not be considered for materiality purposes.

16 In as much as Plaintiff argues that Detective Conley could have himself had his testimony

impeached using these notes, the Court finds that argument unavailing. See May v. Hoke, 711 F.

Supp. 703, 712 (E.D.N.Y. 1988), aff’d, 875 F.2d 857 (2d Cir. 1989) (finding no reasonable

probability that collateral impeachment of an investigating police officer would have changed the

verdict); see also Pltff.’s Stmt. ¶ 65 (“The only evidence of guilt introduced by the State at

[Plaintiff’s] trial was Dorothy Walton’s pretrial and in-court identification of [Plaintiff] and Larry

Miller’s pretrial identification of a photo of [Plaintiff].”). The Court also rejects Plaintiff’s

arguments regarding Detective Conley’s notes about Mr. Walton, as the record indicates Plaintiff’s

attorney at his criminal trial was aware Mr. Walton had tentatively identified someone other than

Plaintiff when shown his photo array. See Pltff.’s Reply at 20 n.9.

destroyed his fieldnotes. Defs.’ Stmt. ¶ 187. The Court finds that, given that he had every

opportunity to do just that and conceal the information therein, Detective Conley’s misstatement

was negligent and his actions “do[] not support a finding of bad faith.” See Mitchell v. Goldsmith,

878 F.2d 319, 322–23 (9th Cir. 1989). The Court also finds that Plaintiff has failed to meet his

burden of providing evidence that Detective Conley acted intentionally by not turning over his

handwritten fieldnotes. See Celotex, 477 U.S. at 325.

Therefore, the Court finds Defendants are entitled to qualified immunity as to Count III.

IV. CONCLUSION

Accordingly, UPON CONSIDERATION of the Motions, the pertinent portions of the

record, and being otherwise fully advised in the premises, it is hereby ORDERED AND

ADJUDGED as follows:

1. Plaintiff’s Motion for Partial Summary Judgment (ECF No. 188) is DENIED.

2. Defendants’ Motion for Summary Judgment (ECF No. 186) is GRANTED.

3. Defendants Detective Kevin Conley and Detective Charles McCully are hereby

TERMINATED from this case.

4. The stay is hereby LIFTED.

5. The final pretrial conference, calendar call, and trial are continued as follows:

trial is now scheduled for April 20, 2026; the calendar call is now scheduled for

April 16, 2026; and the final pretrial conference is now scheduled for April 7,

2026.

6. Plaintiff and Defendant Miami-Dade County are DIRECTED to file a joint

status report on or before February 10, 2026, indicating each of the following:

whether they intend to proceed with this matter; what the impact of the stay was

on Defendant Miami-Dade County’s deadline to respond to Plaintiff’s Fifth

Amended Complaint; what matters are left to resolve after this Order; whether

the Parties believe further discovery is required; and whether they intend to

engage in further motion practice.

DONE AND ORDERED in Chambers at Miami, Florida, this 3rd__ day of February 2026.

< MICHAEL MOORE

UNITED STATES DISTRICT JUDGE

cc: All counsel of record

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