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Turner v. Delaney

United States District Court, D. Kansas

July 2, 2015

Rodney Turner, Plaintiff,
v.
William

MEMORANDUM & ORDER

JOHN W. LUNGSTRUM, District Judge.

Plaintiffs filed a first amended consolidated complaint against defendant William Delaney, an agent for the Kansas Bureau of Investigation, alleging constitutional claims for malicious prosecution, false arrest and abuse of process under 42 U.S.C. § 1983 in connection with grand jury proceedings that resulted in the indictment of Mr. Turner and Mr. Conklin. Those indictments were ultimately dismissed by the Kansas Supreme Court. In addition, plaintiffs assert claims for supervisor liability under § 1983 against defendants Robert E. Blecha, the Director of the Kansas Bureau of Investigation, and Larry Thomas, the Assistant Director of the Kansas Bureau of Investigation. Finally, plaintiffs assert state law claims against Mr. Delaney for malicious prosecution, false arrest and abuse of process.

This matter is presently before the court on defendants' motion to dismiss the first amended consolidated complaint (doc. 36) under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). As will be explained, the court concludes that plaintiffs' consolidated complaint fails to state a claim for relief as to plaintiffs' § 1983 claims because those claims are barred by the doctrine of absolute immunity. In light of that decision, the court declines to address defendants' alternative arguments for dismissal of the § 1983 claims and declines to exercise supplemental jurisdiction over plaintiffs' state law claims. Thus, the court grants defendants' motion and dismisses these consolidated cases.[1]

Factual and Procedural Background

The following allegations are taken from plaintiffs' first amended consolidated complaint. Defendant William "Bill" Delaney, at all relevant times, has been employed as an agent with the Kansas Bureau of Investigation (KBI). As a KBI investigator, defendant Delaney's first "big case" involved the December 1987 murder of Charles W. "Chuck" Thompson. Mr. Thompson was an attorney in Kansas City, Kansas and was active in politics. At the time of his death, he was serving as the Democratic Chairman of the Wyandotte County Central Committee. The murder investigation was ultimately assigned to defendant Delaney. The investigation remains unsolved and defendant Delaney, more than twenty-five years later, continues to investigate the case. According to plaintiffs, the investigation of the Thompson murder has become a "part-time obsession" for defendant Delaney.

In the course of his investigation, including interviews of various individuals, defendant Delaney has persistently pressed his belief that plaintiff Rodney Turner and Marc Conklin had some knowledge of or involvement in the murder of Mr. Thompson. Plaintiff Rodney Turner is a resident of Kansas City, Kansas and is now a semi-retired Wyandotte County attorney who has been involved in Wyandotte County politics for many years. In addition, Mr. Turner, for more than thirty years, has provided legal services for the Board of Public Utilities (BPU) of Kansas City, Kansas. At the time of the Thompson murder, Mr. Turner was the County Counselor of Wyandotte County. Plaintiff Jill Conklin is Marc Conklin's widow. Mr. Conklin, who committed suicide in March 2009, was the former General Counsel and Chief Administrative Officer of BPU. Mr. Turner and Mr. Conklin consistently denied any involvement in or knowledge of the Thompson murder. Nonetheless, defendant Delaney, at all times, kept a "close eye" on matters involving Mr. Turner and/or Mr. Conklin.

In January 2008, one R.J. Reardon filed a citizen petition with the Wyandotte County District Court alleging instances of fraud and corruption by BPU officials. The citizen petition did not mention Mr. Turner or Mr. Conklin by name and it did not contain allegations specific to the roles played by Mr. Turner or Mr. Conklin within BPU. According to the complaint, the allegations made against BPU caught the attention of defendant Delaney because of Mr. Turner and Mr. Conklin's association with BPU and, in his mind, their association with the Thompson murder. Plaintiffs allege that defendant Delaney (who, by that time, had become the KBI's special agent in charge of the KBI's Overland Park, Kansas office which handled matters arising in Wyandotte County) and Wyandotte County District Attorney Jerome Gorman met with R.J. Reardon shortly after the filing of the citizen petition. Defendant Delaney and District Attorney Gorman had worked together on several cases in the past such that they were well acquainted by the time they met with Mr. Reardon.

On March 5, 2008, District Attorney Gorman and defendant Delaney convened a grand jury proceeding in Wyandotte County, Kansas to hear evidence and testimony regarding the citizen petition. Between March 5, 2008 and August 27, 2008, the grand jury met 17 times. Throughout this period, defendant Delaney "assisted and advised" District Attorney Gorman on all aspects of the grand jury proceeding. Plaintiffs allege that defendant Delaney influenced District Attorney Gorman to use the grand jury proceeding to target Mr. Turner and Mr. Conklin for purposes of questioning them about the Thompson murder and intimidating them into providing information that they supposedly had about the murder. According to plaintiffs, defendant Delaney believed that an indictment on the BPU allegations, or even the threat of an indictment, would cause Mr. Turner and/or Mr. Conklin to cooperate with him on the Thompson investigation. Despite the fact that the Thompson murder had no relationship to the BPU allegations or investigation, defendant Delaney asked about the Thompson murder whenever he conducted interviews outside the grand jury.

District Attorney Gorman subpoenaed both Mr. Turner and Mr. Conklin to appear before the grand jury. Through counsel, Mr. Turner and Mr. Conklin advised the district attorney that they would invoke their Fifth Amendment right not to answer questions and reminded the district attorney that it is "generally inappropriate to call a witness who had invoked his Fifth Amendment rights if he is the target of the investigation." District Attorney Gorman nonetheless called Mr. Turner and Mr. Conklin to the witness stand and proceeded to ask each more than 100 questions, forcing Mr. Turner and Mr. Conklin to invoke their Fifth Amendment right against self-incrimination over and over again. Plaintiffs allege that defendant Delaney "played an active role in encouraging District Attorney Gorman to disregard Turner's and Conklin's constitutional and statutory rights."

On August 27, 2008, the grand jury returned sealed indictments charging Mr. Turner and Mr. Conklin with two counts of theft in violation of K.S.A. § 21-3701 and fifty-five counts of presenting false claims in violation of K.S.A. § 21-3904. The indictments were based on the theory that Mr. Turner did not actually perform the legal services identified in the unitemized bills that were approved by Mr. Conklin. Mr. Turner and Mr. Conklin were arrested and the indictments were unsealed on October 3, 2008. Both Mr. Turner and Mr. Conklin were arraigned at that time and released on $25, 000 personal recognizance bonds.

In March 2009, Mr. Turner and Mr. Conklin jointly filed a motion to dismiss the indictments for grand jury abuse. Mr. Conklin committed suicide two weeks later. As a result of his death, the charges against Mr. Conklin were dropped and the case against him was dismissed. In August 2009, the Wyandotte County District Court granted Mr. Turner's motion to dismiss the indictment, finding that the State and defendant Delaney had undermined the grand jury process to the point of depriving Mr. Turner of his due process and Fifth Amendment rights. The State appealed the dismissal of the indictment to the Kansas Court of Appeals. While that appeal was pending, plaintiffs, in October and November 2010 respectively, filed their lawsuits in this court. The claims asserted in those initial complaints were made under § 1983 and were based solely on defendant Delaney's grand jury testimony. Plaintiffs alleged, for example, that defendant Delaney repeatedly discussed the Chuck Thompson murder in the grand jury's presence; suggested to the grand jury that plaintiffs were somehow involved in the Chuck Thompson murder; told the grand jury that he wanted to question plaintiffs about the murder; suggested to the grand jury that if plaintiffs were indicted on the BPU matter, it might force plaintiffs to cooperate on the murder investigation; told the grand jury that they should call Mr. Turner to testify; and, after Mr. Turner appeared and repeatedly invoked his Fifth Amendment rights, commented to the jury on Mr. Turner's silence by advising the jury that Mr. Turner should have shown proof of the work he was doing for BPU. The cases were consolidated in January 2011 for pretrial and discovery purposes.

In April 2011, the Kansas Court of Appeals issued its opinion reversing the district court's dismissal of the indictment. State v. Turner, 250 P.3d 286 (Kan.Ct.App. 2011). At that time, plaintiffs' cases in this court were stayed pending a decision from the Kansas Supreme Court on Mr. Turner's request for review. The Kansas Supreme Court granted the request for review and the stay was extended pending a merits decision from the Kansas Supreme Court. The stay was lifted in September 2014 after the Kansas Supreme Court issued its opinion reinstating the district court's dismissal of the indictment against Mr. Turner. State v. Turner, 333 P.3d 155, 171-72 (Kan. 2014). According to the Kansas Supreme Court, three errors warranted dismissal of the indictment: the District Attorney's violation of Mr. Turner's Fifth Amendment right by asking him numerous questions in front of the grand jury which required him to invoke the privilege; defendant Delaney's comments on Mr. Turner's silence in violation of his Fifth Amendment right against self-incrimination; and defendant Delaney's testimony concerning the Chuck Thompson murder. Id. at 170. As explained by the Court, defendant Delaney's suggestion to the grand jury that they needed to indict Mr. Turner on the false claims and theft charges in order to permit defendant Delaney to solve the murder case "substantially influenced the grand jury's decision to indict, if not compel[led] such a result." Id. at 171. The Kansas Supreme Court found that after disregarding unconstitutional or other improper grand jury testimony from defendant Delaney, the State's remaining evidence amounted to "equivocal nonproof testimony." Id. at 171-72.

While this case was stayed, the United States Supreme Court issued its opinion in Rehberg v. Paulk, 132 S.Ct. 1497 (2012), in which it held that a witness who testifies in a grand jury proceeding is entitled to absolute immunity from § 1983 claims based on his or her grand jury testimony. Understanding that Rehberg was fatal to their claims, plaintiffs filed a first amended consolidated complaint in November 2014 to remove any reliance on defendant Delaney's testimony and to expressly disclaim any reliance on defendant Delaney's testimony in support of ...


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