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Ricks v. Pauch

United States District Court, E.D. Michigan, Southern Division

May 30, 2018

DAVID PAUCH, in his individual capacity, DONALD STAWIASZ, in his individual capacity, and CITY OF DETROIT, a Municipal Corporation, Defendants.

          R. Steven Whalen, United States Magistrate Judge



         Plaintiff Desmond Ricks was released from prison in 2017 after serving 25 years on a wrongful conviction for murder. Mr. Ricks and his two adult daughters have filed this suit under 42 U.S.C. § 1983 against the City of Detroit and two City of Detroit police officers alleging violations of his constitutional rights based upon alleged fabrication and withholding of evidence. Defendants now move for partial judgment on the pleadings, arguing that a police officer's “Brady-derived”[1] obligation to disclose exculpatory evidence to a prosecutor was not clearly established in 1992 when Desmond Ricks was investigated, indicted, and tried and that even if the law was clearly established, Plaintiffs have failed to allege a plausible Brady-derived claim of withholding of evidence. The matter has been fully briefed and the Court held a hearing on March 14, 2018. For the reasons that follow, the Court DENIES the motion.


         According to the allegations of Plaintiffs' Complaint, which the Court must accept as true for purposes of resolving this motion for judgment on the pleadings, on March 3, 1992, at approximately 4:45 p.m., Gerry Bennett was shot to death in the parking lot of a Top Hat restaurant located at 16101 James Couzens, in the City of Detroit. (Compl. ¶ 8.) Plaintiff Desmond Ricks, a friend of Bennett, accompanied Bennett to the Top Hat restaurant in a red Ford Escort, driven by Bennett. Soon a yellow Chevrolet Monte Carlo pulled up next to the Escort and Bennett got out of the Escort and entered the restaurant with a light-skinned black man of medium height who got out of the back seat of the Monte Carlo. When the two men left the restaurant about five to ten minutes later, Ricks saw the light-skinned black man point a chrome handgun at Bennett and shoot him in the stomach. Ricks got out of the Escort to confront the man and saw the other man shoot Bennett in the head, then turn to shoot Ricks. (Id. ¶¶ 9-10.) Ricks turned and ran, shedding his winter coat to avoid being caught in bushes as he ran into an adjacent neighborhood. The coat was later found by Detroit Police Department (“DPD”) officers, with Ricks's visitor's pass to Hutzel Hospital in the jacket pocket, where his wife had just given birth to their daughter Desire'a. The coat also contained a phone book and a picture of his newborn baby. An eyewitness at the scene, Arlene Strong, who was working as a cashier at the Top Hat restaurant at the time of the shooting, gave a statement to police on the date of the murder. She stated that the shooter was an occupant of the yellow car, with a bright complexion and of medium height, and she described a big silver gun. Ricks is a 6'3" dark skinned black male. Mrs. Strong was the only eyewitness at the scene who provided a physical description of the shooter. She was described by officers as “one of the best witnesses.” (Id. ¶¶ 10-13.)

         On or about March 4, 1992, Defendant Stawiasz was assigned as the officer-in-charge (“OIC”) of the homicide investigation. On March 4, 1992, an autopsy was performed on Bennett and the medical examiner, Dr. Sawait Kanluen, retrieved one bullet from Bennet's brain and a second from Bennett's spine. On March 5, 1992, Detroit Police Officers and a federal ATF agent, none of whom are Defendants in this case, arrived at Ricks's mother's house at 16500 Hubbell Street in Detroit and arrested Ricks inside the home without an arrest warrant or consent to enter. Before Ricks left the house, it is alleged that his mother told the officers that her son didn't shoot anybody as he didn't own a gun. She revealed that she owned a gun and that her son had never fired her gun. Mrs. Ricks allowed officers to take her handgun, a Rossi .38 Special, 5-shot revolver, serial # D373334. (Id. ¶¶ 16-22.)

         On March 6, 1992, one day after Ricks was arrested, Stawiasz requested that firearms testing be conducted on the Rossi handgun taken from Ricks' home, to compare bullets to the slugs removed from Gerry Bennett's body. Stawiasz brought the handgun to Defendant Pauch, a firearm and tool-mark expert in the DPD crime lab. Pauch had previously received the slugs from the victim's body. Pauch and Stawiasz were both sworn Detroit police officers. Pauch, with Stawiasz present, test-fired bullets from the Rossi handgun and compared them to the bullets removed from Bennett's body. Bullets and guns are classified by the number of lands and grooves of a gun and the direction of twist (right-hand or left-hand) of the barrel. By examining the lands and grooves and the direction of twist of a firearm or bullet, these “class characteristics” can help to determine whether a certain bullet was fired from a certain gun. (Id. ¶¶ 28-36.)

         Pauch's report noted that the Rossi .38 (Ricks's mother's gun) was classified as a “6-R”, which means that the barrel of the Rossi gun would cut six grooves (and corresponding lands) into the surface of a bullet, while the “R” designation signifies a right-hand rotation. Pauch's examination revealed that one of the two slugs removed from Bennett's body, bullet #2 from the spine (Evidence Tag #923410), clearly was a “5-R” classification, meaning that it had five lands and grooves with a right-hand twist. Bullet #1, which was removed from Bennett's skull (Evidence Tag #923409), was too badly deformed to make any type of class identification. Pauch knew that a the “5-R” bullet recovered from Bennett's body could not have been fired from the “6-R” Rossi. (Id. ¶¶ 37-41.)

         Knowing that the bullets recovered from Bennett's body did not match the Rossi, the alleged murder weapon, Pauch and Stawiasz conspired and agreed to commit the overt act of falsifying the firearms identification test results to indicate a “Positive ID” (match) between the “evidence” bullets (those test-fired from the Rossi gun) and the Rossi gun removed from Ricks's home. This fabricated report was the only evidence linking Ricks to the murder of Gary Bennett, as there was no physical evidence or eyewitness identification linking Ricks to the murder. (Id. ¶¶ 42-43.) A “6-R” gun cannot make a “5-R” identification in a bullet. (Id. ¶ 49.)

         Neither of the slugs removed from Bennett's body, nor photographs of the slugs, were provided to the prosecutor on Ricks' case. (Id. ¶¶ 51-52.) Neither Pauch nor Stawiasz told the prosecutor that the slugs from the victim's body did not match the Rossi revolver retrieved from Ricks's mother's house. The true test results would have provided both exculpatory and impeachment evidence material to Ricks's case. (Id. ¶ 57-59.)

         On March 6, 1992, the day after his arrest, Ricks was interviewed by Stawiasz and Investigator Richard Ivy. Ricks explained what occurred at the Top Hat restaurant and stated that he did not shoot Gerry Bennett, to which Stawiasz stated: “We know you didn't; but you know who did, and you'll be the one going to prison if you don't tell us.” Ricks then refused to speak further with Stawiasz. Later that morning, Ricks was informed that the bullets from the victim's body matched the Rossi .38 taken from his mother's bedroom. (Id. ¶¶ 60-61.)

         On July 15, 1992, the trial court ordered the physical evidence, including the slugs removed from Bennett's body and the handgun, to be examined by retired Michigan State Police evidence technician David Townshend. The examination was originally scheduled to take place at the DPD lab but was later ordered by the trial court to take place at Townshend's lab in Mason, Michigan. Stawiasz switched the slugs taken from Bennett's body with the test-fired bullets from the Rossi and marked the test-fired bullets as Evidence Tags 923409 and 923410, and transported them to Townshend's office for testing on August 16, 1992. (Id. ¶¶ 65-67.)

         Townshend was concerned that the two bullets he was given to examine were “too pristine” to have been recovered from the victim's body but when he questioned Stawiasz on this Stawiasz assured Townshend that the bullets provided to him were in fact from the victim's body. Relying on Stawiasz's integrity and ethics, Townshend conducted the test and concluded that the bullets represented by Stawiasz to have come from the victim's body matched the Rossi revolver. The firearms identification evidence was the centerpiece of the State's case against Ricks and the prosecutor stressed this evidence in his closing argument and during the trial and vouched for the credibility of Pauch's testimony at trial that the match between the bullets and the Rossi were certain. (Id. ¶¶ 71-73.)

         A jury convicted Ricks of second-degree murder and felony firearm on September 23, 1992. After 25 years of incarceration, testing by the Michigan Police Department Crime Lab in 2017 demonstrated that the bullets from Gerry Bennett's body did not match the alleged murder weapon taken from Ricks' home. On May 26, 2017, Ricks was released from prison on the Order of Wayne County Circuit Court Judge Richard Skutt, having spent 25 years, 2 months, and 22 days in prison. On June 1, 2017, the Wayne County Prosecutor's Office dismissed the charges against Ricks.

         Plaintiffs further allege that the City of Detroit, by and through its final policymakers, had a custom and policy to authorize, condone, tolerate, and approve unconstitutional conduct by its officers, including (1) conducting inadequate investigations into serious felony cases to expeditiously close cases, (2) knowingly and deliberately fabricating evidence in order to manufacture probable cause and/or strengthen a case for conviction; and (3) knowingly and deliberately choosing not to conduct formal tests and identification procedures in order to avoid obtaining evidence that would contradict evidence against their target suspect. (Id. ¶¶ 80-84.)


         “Motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) are analyzed under the same de novo standard as motions to dismiss pursuant to Rule 12(b)(6).” Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008) (citing Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 697 (6th Cir. 2005)). “[T]he legal standards for adjudicating Rule 12(b)(6) and Rule 12(c) motions are the same . . . .” Lindsay v. Yates, 498 F.3d 434, 437 n. 5 (6th Cir. 2007). The Sixth Circuit has defined the pleading requirements necessary to withstand a challenge under Rule 12(c):

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court explained that “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... Factual allegations must be enough to raise a right to relief above the speculative level....” Id. at 1964-65 (internal citations omitted). In Erickson v. Pardus, 550 U.S. ___, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), decided two weeks after Twombly, however, the Supreme Court affirmed that “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.' Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Id. at 2200 (quoting Twombly, 127 S.Ct. at 1964). The opinion in Erickson reiterated that “when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Id. (citing Twombly, 127 S.Ct. at 1965). We read the Twombly and Erickson decisions in conjunction with one another when reviewing a district court's decision to grant a motion to dismiss for failure to state a claim or a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12. Sensations, Inc., 526 F.3d at 295-96 (footnote omitted).

Tucker v. Middleburg-Legacy Place, LLC, 539 F.3d 545, 550 (6th Cir. 2008) (quoting Sensations, 526 F.3d at 295 (6th Cir. 2008)).

         When reviewing a motion to dismiss under Rule 12(b)(6), and therefore under Rule 12(c), a court must “‘construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.'” Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting Directv Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). The court “need not accept as true a legal conclusion couched as a factual allegation, or an unwarranted factual inference.” Handy-Clay, 695 F.3d at 539 (internal quotation marks and citations omitted). See also Eidson v. State of Tenn. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007) (“Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice.”).

         In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that “a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . . .” Id. at 555 (internal quotation marks and citations omitted) (alteration in original). “To state a valid claim, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain recovery under some viable legal theory.” LULAC v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007).

         The Supreme Court clarified the concept of “plausibilty” in Ashcroft v. Iqbal, 556 U.S. 662 (2009), explaining that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.” Thus, “[t]o survive a motion to dismiss, a litigant must allege enough facts to make it plausible that the defendant bears legal liability. The facts cannot make it merely possible that the defendant is liable; they must make it plausible. Bare assertions of legal liability absent some ...

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