United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. ERIZZELL, CHIEF JUDGE.
matter comes before the court on the defendant City of
Tulsa's Motion for Summary Judgment [Doc. #175]. For the
reasons discussed below, the motion is granted.
September 12, 1994, Travis Wood, the three-month-old son of
Michelle Murphy, was found dead as a result of a stab wound
to the chest and incised wound to the neck. The Tulsa Police
Department, headed by then Chief Ron Palmer, oversaw the
investigation of infant Wood's murder. That same day,
Murphy made a statement to TPD detective Michael Cook.
September 15, 1994, Murphy was charged with murder in the
first degree in the District Court in and for Tulsa County.
Murphy was convicted of the charge in November of 1995 and
served twenty (20) years of a sentence of life without
parole. On May 30, 2014, Tulsa County District Court Judge
William Kellough vacated and set aside Murphy's
conviction and, on September 12, 2014, the charge against
Murphy was dismissed with prejudice.
now brings this case against the City of Tulsa pursuant to 42
U.S.C. § 1983, the federal civil rights
statute. Murphy seeks section 1983 relief on the
basis of two constitutional violations: (1) violation of
Murphy's Fifth Amendment right against
self-incrimination, and (2) violation of the Fourteenth
Amendment due process clause's right to a fair
trial. The City moves for summary judgment in its
Procedural History and Evidentiary Issues
considering the City's motion for summary judgment,
however, the court must first address four evidentiary issues
associated with Murphy's response.
support of its motion, the City offers eighty-three (83)
material facts to which it asserts there is no dispute. These
facts are divided into six categories: (1) “The Tulsa
Police Department's Murder Investigation, ” fact
nos. 1-28; (2) “Murphy's Confession And Probable
Cause, ” fact nos. 29-36; (3) “Murphy's
Confession was Given Knowingly and Voluntarily, ” fact
nos. 37-46; (4) “Causation and Waiver, ” fact
nos. 47-54; (5) “TPD Policies, Practices, Training, and
Supervision, ” fact nos. 55-71; and (6) “The
‘Earlier' Case - LaRoye Hunter, ” fact nos.
response to the motion includes over 1, 000 pages of
exhibits. The City subsequently moved to strike the exhibits
attached to Murphy's response, arguing that the exhibits
did not comply with Local Civil Rule 56.1. In an order dated
August 29, 2017, the court concluded that Murphy's
response failed to comply with LCvR 56.1(c) and Fed.R.Civ.P.
56(c)(1) for five separate reasons. First, the court
concluded that Murphy “frequently fail[ed] to
‘refer with particularity' to those portions of the
record upon which she relies, ” offering as an example
Murphy's collective response to the City's first
twenty-eight (28) statements of undisputed material facts. In
response to the City's first 28 facts, Murphy responded
with the statement “[t]he investigation was woefully
inadequate, not ‘thorough' or
‘constitutionally sound' as asserted . . .”
and cited to 140 of her own additional statements of
undisputed fact, seventeen pages of an expert report prepared
on her behalf by Dr. Michael D. Lyman, and twelve pages of
deposition testimony from the unnamed “scene
investigator.” Second, Murphy did not use a consistent
format for her references. Third, Murphy referenced missing
exhibits. Fourth, Murphy occasionally referred to multi-page
exhibits as a whole, without reference to page and line
numbers. Finally, for some of the exhibits containing
excerpts of testimony, Murphy did not identify the individual
whose testimony was presented. In order to correct these
identified deficiencies, the court granted Murphy additional
time to file an amended response that complied with LCvR
56.1(c) and Fed.R.Civ.p. 56(c)(1). See [Doc. #279].
to Local Civil Rule 56.1(c):
The response brief in opposition to a motion for summary
judgment (or partial summary judgment) shall begin with a
section which contains a concise statement of material facts
to which the party asserts genuine issues of fact exist.
Each fact in dispute shall be numbered, shall refer
with particularity to those portions of the record upon which
the opposing party relies and, if applicable, shall state the
number of the movant's facts that is disputed.
All material facts set forth in the statement of the material
facts of the movant shall be deemed admitted for the purpose
of summary judgment unless specifically controverted by the
statement of material facts of the opposing party.
LCvR 56.1(c) (emphasis added). The local rule is consistent
with statements of the Tenth Circuit interpreting
Fed.R.Civ.p. 56, and meant to further the purposes of Rule
56. The Tenth Circuit has stated that “on a motion for
summary judgment, ‘it is the responding party's
burden to ensure that the factual dispute is portrayed with
particularity, without . . . depending on the trial court to
conduct its own search of the record.'” Cross
v. Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004)
(quoting Downes v. Beach, 587 F.2d 469, 472 (10th
Cir. 1978)). This court “is not required to comb
through Plaintiffs' evidence to determine the bases for a
claim that a factual dispute exists.” Bootenhoff v.
Hormel Foods Corp., No. CIV-11-1368-D, 2014 WL 3810329,
at *2 n.3 (W.D. Okla. Aug. 1, 2014) (citing Mitchell v.
City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir.
2000)); see also Espinoza v. Coca-Cola
Enters., Inc., 167 F. App'x 743, 746 (10th Cir.
2006) (“[W]here the nonmovant failed to support his
case with adequate specificity, we will not fault the court
for not searching the record on its own to make his case for
him (nor will we take on that role of advocacy.”));
Boldridge v. Tyson Foods, Inc., No. 05-4055-SAC,
2007 WL 1299197, at *2 (D. Kan. May 2, 2007) (“It is
not this court's task to comb through Plaintiff's
submissions in an effort to link alleged facts to his
arguments or to construct Plaintiff's arguments for
him.”) (quoting Barcikowski v. Sun Microsystems,
Inc., 420 F.Supp.2d 1163, 1179 (D. Colo. 2006));
Lucas v. Office of Colo. State Pub. Def., No.
15-CV-00713-CBS, 2016 WL 9632933, at *5 (D. Colo. Aug. 25,
2016) (“The Court has no obligation to scour the record
in search of evidence to support any factual assertions, and
where inadequate record citations have been made, the court
has ignored them.”).
a change in Murphy's counsel, the court granted Murphy an
additional extension to file her amended response.
See [Doc. #335]. The amended response lists 197
additional material facts and again appends over 1, 000 pages
of exhibits which Murphy asserts preclude summary judgment.
However, the amended response fails to correct several of the
deficiencies previously identified by this court and, for the
four following reasons, the court is persuaded that portions
of Murphy's amended response do not comply with LCvR
56.1(c) and Fed.R.Civ.p. 56(c)(1).
Murphy again fails to “refer with particularity”
to those portions of the record on which she relies. By way
of example, Murphy did not correct all of the insufficiencies
specifically identified by this court in its August 29, 2017
order regarding Murphy's opposition to the City's
first twenty-eight undisputed material facts.
previously mentioned, City fact nos. 1-28 relate to TPD's
investigation of the murder of infant Wood. Murphy purports
to specifically dispute only eight (8) of these facts.
Rather, at the outset of Murphy's section stating the
material facts to which she asserts a genuine issue of fact
exists, Murphy again includes the following:
1-28. The investigation was woefully inadequate, not
“thorough” or “constitutionally
sound” as asserted on p. 31 citing these facts. See
Plaintiff Facts ## 15, 21, 22, 24-103 and 142-195. See
also, Plt. Ex. 178, Expert Report of Michael Lyman, pp.
107-124; Plt. Exh. 148, Transcript of Noordyke, p. 16, ll.
22-24, p. 23, ll. 1-3, p. 25, ll. 2-12, l. [sic] 26, ll. 2-6,
p. 27, ll. 7-12, p. 31, ll. 3-16, p. 40, ll. 2-7, p. 46, ll.
4-15, p. 52, ll. 4-8, p. 65, ll. 1-24, p. 69, ll. 3-8, p. 29,
[Doc. #338');">338');">338');">338, p. 1 (internal footnote omitted)]. Murphy
explains that “Fact ##” refers to Murphy's
additional material facts to which she asserts there is no
dispute. [Doc. #338');">338');">338');">338, p. 1 n.1].
unlike in her original response, Murphy identifies the scene
investigator as TPD officer Noordyke and includes specific
page and line references, Murphy again broadly refers to 135
of her own statements of additional undisputed material
facts-each of which references one or more exhibits-as well
as 17 pages of Dr. Lyman's expert report, and 13 pages of
Noordyke's testimony. Similarly, Murphy cites only her
own statements of additional undisputed material facts to
dispute the following undisputed material facts offered by
the City: 20, 23, 25, 27, 37, 38, and 67. As previously
discussed by this court, this practice requires the court to
first find the referenced statements of undisputed material
fact in a separate section of Murphy's response, look to
the exhibits referenced in that later section, and comb
through the record to find the relevant material in support
of Murphy's proposition. The court is not persuaded that
this burdensome procedure satisfies the particularity
requirement of LCvR 56.1(c).
Murphy fails to properly address many of the City's
assertions of undisputed material fact. Murphy purports to
dispute City fact nos. 22, 46, 52, 53, 56, 57, 63, 72, 73, and 80,
but includes only argument and no reference to any portion of
the evidentiary record upon which Murphy relies. It is well
established that “argument of counsel is not evidence,
and cannot provide a proper basis to deny summary
judgment.” Pinkerton v. Colo. Dep't of
Transp., 563 F.3d 1052, 1061 (10th Cir. 2009). See
also Bones v. Honeywell Int'l, Inc., 366 F.3d 869,
875 (10th Cir. 2004) (“To defeat a motion for summary
judgment, evidence, including testimony, must be based on
more than mere speculation, conjecture, or surmise.”).
although Murphy has remedied most of the deficiencies from
her prior brief with regard to missing exhibits, one
deficiency remains. In opposition to the City's
undisputed material fact no. 13, Murphy refers to Exhibit 15,
which was not provided to the court.
Murphy does not purport to specifically dispute fact nos.
1-10, 12, 14, 16-19, 21, 24, 26, 28, 31, 33-36, 40-45, 48-51,
54, 64-66, 69, 74-79, and 81-83.
extent that Murphy identifies a numbered material fact of the
City relative to which she cites with particularity to the
evidentiary record to demonstrate a dispute as required by
LCvR 56.1(c), the court will consider the issue for purposes
of the City's motion for summary judgment. The court will
not “seach through the record on plaintiff's
behalf, however, to compile the relevant facts.”
Stallings v. Werner Enters., 598 F.Supp.2d 1203,
1210 (D. Kan. 2009). To do so would require the court to comb
through the record, essentially charting Murphy's
arguments for her, in a manner not required by the Tenth
Circuit. Thus, the court concludes that Murphy fails to
properly address the following facts, and the court will
consider them undisputed for purposes of the City's
motion for summary judgment: 1-10, 12-14, 16-28, 31, 33-38,
40-46, 48-54, 56-57, 63-67, 69, and 72-83.
Summary Judgment Standard
to Federal Rule of Civil Procedure 56(a), “[t]he court
shall grant summary judgment 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.” A fact is
“material” if it “might affect the outcome
of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
is “genuine” “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. “Factual disputes that are
irrelevant or unnecessary will not be counted.”
Id. Further, the nonmoving party “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
considering a motion for summary judgment, “[t]he
evidence and reasonable inferences drawn from the evidence
are viewed in the light most favorable to the nonmoving
party.” Stover v. Martinez, 382 F.3d 1064,
1070 (10th Cir. 2004). “A ‘judge's
function' at summary judgment is not ‘to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for
trial.'” Tolan v. Cotton, 34 S.Ct. 1861');">134 S.Ct. 1861,
1866 (2014) (quoting Anderson, 477 U.S. at 249).
Summary judgment is appropriate only “where ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.” Stover, 382 F.3d at 1070
(quoting Fed.R.Civ.p. 56(c)).
Undisputed Material Facts
court finds the following facts regarding the investigation,
trial, conviction, and release of Murphy:
approximately 6:15 a.m., on Monday, September 12, 1994, EMSA
and officers from the Tulsa Police Department
(“TPD”) arrived on scene at Michelle Murphy's
apartment in response to a 911 call regarding the stabbing
death of a baby. Officer BK Smith and Officer Gary Neece were
among the first to arrive. They were directed to the back
door of the apartment, where Smith observed Murphy's
three-month old son, Travis Wood, dead, lying in a pool of
blood. [CSOMF at ¶ 1]. Smith and Neece entered
Murphy's apartment through the back door to search for
additional victims. They exited the apartment and set up a
perimeter to protect the crime scene. Smith then guarded the
back door of Murphy's apartment until he was relieved by
a day shift officer. [CSOMF at ¶ 2]. Ultimately, nine
uniformed TPD officers and four detectives, including Det.
Doug Noordyke, Scene Investigator, assisted in investigating
the homicide of Travis Wood. [CSOMF at ¶ 3].
officers immediately separated the witnesses. Murphy and her
neighbors, Christina Carter and Christona Lowther, were each
placed in separate patrol cars. [CSOMF at ¶ 4]. TPD
officers and detectives obtained written and recorded
statements from Carter, Lowther, and William Green. [CSOMF at
¶ 5]. TPD officers and detectives also interviewed
Murphy's other neighbors, James Fields, Kathy Evans,
Steve Mann, LaDonna Summer, William Lee, Kevin Washington,
Mike Jarnagan, Pat Jarnagan, and the security guard for the
apartment complex. They also interviewed the probation
officer of one of Murphy's acquaintances. [CSOMF at
¶ 6]. 911 calls had been made by Lee and Lowther. As
part of the investigation, TPD officers obtained copies of
these calls. [CSOMF at ¶ 8].
assigned the homicide investigation to Det. Corporal Mike
Cook, a 20-year TPD veteran and a 13-year homicide detective.
At the time, Cook had investigated hundreds of homicide
cases. [CSOMF at ¶ 7]. Allen also assigned Noordyke, a
13-year TPD veteran, as the crime scene investigator.
Noordyke's training included police academy training in
crime scene processing, evidence recovery, and
fingerprinting. He also attended specialized schools in blood
stain pattern analysis and latent print examinations and had
received training with senior SIU officers regarding crime
scene processing. At the time of the Murphy investigation,
Noordyke had processed hundreds of crime scenes. [CSOMF at
Noordyke arrived at the scene, it had been taped off and
preserved. His first duties were to document the scene with
video, photographs, sketches, and narrative report. He also
recovered physical evidence and processed the scene for
prints. [CSOMF at ¶ 10]. There were no signs of forced
entry into the apartment. [CSOMF at ¶ 11]. Noordyke
collected the sheet/drape that separated the kitchen from the
living room because it was stained with what appeared to be
blood. He also obtained samples from what appeared to be
blood on the outside of the front screen door and near the
body of the baby. [CSOMF at ¶ 12]. Noordyke recovered
seven knives from Murphy's apartment, including a 9-inch
dagger in the closet and a large knife with a 7 ¼-inch
blade found between the couch cushions. [CSOMF at ¶ 13].
The agent from the Medical Examiner's office arrived at
the scene, examined the victim and found a “stab wound
just below the neck and a deep large laceration across the
throat that was close to being a full decapitation of the
infant.” [CSOMF at ¶ 14]. In addition to obtaining
latent prints, video, and crime scene photographs, Noordyke
collected 25 separate pieces of evidence on September 12,
1994. [CSOMF at ¶ 15]. Throughout the course of its
investigation, TPD generated 232 pages of TRACIS documents.
The investigation included: securing the crime scene;
canvassing the area for potential witnesses; separating the
witnesses at the scene; obtaining witness statements;
documenting the crime scene with video, photographs and
diagrams; obtaining and processing evidence; obtaining DNA
evidence and evidence from the Medical Examiner's office;
having detectives re-visit the scene; and interviewing Murphy
and obtaining her tape-recorded confession. [CSOMF at ¶
Gary Otterstrom was assigned to sit with Murphy in his patrol
car until the detectives arrived. While Murphy was seated in
the passenger seat of the patrol car, she stepped out of the
vehicle several times to speak with neighbors and smoke
cigarettes. [CSOMF at ¶ 23]. Allen, the on-scene
supervisor, instructed Otterstrom to obtain a written search
waiver from Murphy so that she could give permission for the
officers to search her residence for evidence. At 7:17 a.m.,
September 12, 1994, Allen witnessed Otterstrom read Murphy
her Miranda warnings from a card and then observed
Murphy willingly sign a Consent to Search form for her
apartment. [CSOMF at ¶ 24].
arrived at the crime scene between 7:30 and 8:00 a.m. As the
detective assigned to the case, he was responsible for
interviewing the witnesses and putting together the reports.
[CSOMF at ¶ 16]. At approximately 8:40-8:45 a.m., Cook
went to the detective division to talk to Murphy. [CSOMF at
¶ 17]. Cook interviewed Harold Eugene Wood (Murphy's
common-law husband and infant Wood's father) and took a
tape-recorded statement of Murphy. [CSOMF at ¶ 18]. Cook
subsequently arrested Murphy. [CSOMF at ¶ 31]. After
obtaining Murphy's recorded statement, Cook interviewed
Murphy's neighbors, William Lee and LaDonna Summer.
[CSOMF at ¶ 19]. Cook also took a recorded statement of
Scottie Dale Ritchie, a close friend of Harold Eugene Wood,
and obtained copies of recorded conversations between Murphy
and Earl Peck while she was in jail after her arrest. [CSOMF
at ¶¶ 26 and 28]. Cook prepared a prosecution
report for the Tulsa County District Attorney's Office,
which identified each witness and summarized their testimony.
[CSOMF at ¶ 27].
and Noordyke returned to the scene two additional times.
First, they went back to Murphy's apartment at night, on
September 19, 1994, to see the field of view from the front
door and front window as well as from the back door and the
back window. They checked the view during the daylight hours
and returned after dark. They specifically wanted to see if
they could view where the body was on the floor, from outside
the back window, looking through the mini blinds as
fourteen-year old William Lee had described to police. This
line of sight was confirmed. [CSOMF at ¶ 20]. In March
of 1995, Cook and Noordyke were called back out to
Murphy's apartment because the maintenance supervisor
reported a possible break-in. The detectives discovered a box
from Murphy's closet had been overturned onto her bed and
a maroon-handled knife was next to overturned boxes on
Murphy's bed. [CSOMF at ¶ 21].
to 22 O.S. § 285, Murphy's preliminary hearing was
held on November 14 and 15, 1994 before the Honorable J.
Peter Messler. Private counsel represented Murphy. [CSOMF at
¶ 33]. At the preliminary hearing, the State presented
nine witnesses including William Lee and officers Smith and
Otterstrom. Cook did not testify and Murphy's taped
confession was not offered into evidence. [CSOMF at ¶
34]. At the end of the two-day preliminary hearing, Judge
Messler denied Murphy's demurrer; found probable cause
existed that first-degree murder had been committed; and
found probable cause existed that Murphy committed the crime.
He bound Murphy over for trial for first-degree murder.
[CSOMF at ¶ 35].
separate proceeding before the trial, on November 9, 1995,
Judge E.R. (Ned) Turnbull conducted a Jackson v.
Denno hearing to determine whether Murphy's
statement was voluntary. Murphy was represented by counsel at
this hearing. [CSOMF at ¶ 37]. At the Jackson v.
Denno hearing, Cook testified regarding Murphy's
statement. The notification of rights waiver was admitted
without objection as State's exhibit 1. [CSOMF at ¶
38]. Cook testified that he did not coerce Murphy in any way
with any kind of punishment or promise; he did not threaten
her in any way, with either physical force or mental
intimidation; and he did not promise anything to get her to
talk. Cook also described the manner in which he read Murphy
her Miranda rights and obtained the rights
waiver. [CSOMF at ¶ 39]. Murphy testified
that Cook never hit her and never used any kind of physical
force against her; she never told Cook she needed to see a
physician; and that she understood her rights and waived them
by signing and initialing the waiver of rights. [CSOMF at
¶ 40]. At the conclusion of the Jackson v.
Denno hearing, Judge Turnbull found that the State had
shown by a preponderance of the evidence that Murphy's
statement to Cook was voluntary and that Murphy was properly
read her rights. Thus, Judge Turnbull overruled Murphy's
motion to suppress her statements. [Doc. #175-32, p. 63:1-6].
Murphy's criminal trial, which began on November 16,
1995, Murphy's taped statement to Cook was played for the
jury, copies of the transcript of the statement were given to
the jurors, and the statement was admitted into evidence.
[CSOMF at ¶ 41]. Jury Instruction No. 16 given by the
trial court defined “voluntary confession” and
A “voluntary confession” is a statement, freely
and knowingly made by a person who is not under arrest or in
custody, to a police officer or any other person which admits
facts that tend to establish the commission of an offense.
Such confession is freely and knowingly made when the person
voluntarily states his involvement with the alleged crime or
reveals details of it, without threats, pressure, coercion,
or duress from any police officer or police agent.
The state has offered evidence that a confession was made by
the defendant to Michael Cook on September 12, 1994
[sic] if you find that the defendant made the
alleged confession, and made it freely and voluntarily, you
may take it into consideration with all the other facts in
evidence and give it whatever weight and credit you find it
deserves. However, if you find that the confession was
induced by coercion or by a promise of immunity or a lesser
punishment than might otherwise be inflicted, or that the
confession was made under threat of violence or force, you
should disregard the confession in arriving at your verdict.
[Doc. #175-34, p. 2].
November of 1995, the jury convicted Murphy of first-degree
murder and sentenced her to life without parole. With
separate appellate counsel, Murphy appealed her conviction to
the Oklahoma Court of Criminal Appeals, and the court found
no error in Murphy's conviction. [CSOMF at ¶¶
45-46; Doc. #175-35]. On September 5, 2013, Murphy filed an
Application for Post-Conviction Relief. [CSOMF at ¶ 47;
Doc. #97-21]. On May 29, 2014, then-Tulsa County District
Attorney Tim Harris filed a motion to confess the application
for post-conviction relief. [CSOMF at ¶ 49; Doc.
#175-1]. On May 30, 2014, Tulsa County District Judge William
C. Kellough vacated Murphy's judgment and sentence.
[CSOMF at ¶ 50; Doc. #175-36]. After vacating
Murphy's conviction, Judge Kellough retained jurisdiction
to re-try Murphy. Judge Kellough set an appearance bond and
ordered her to reappear on June 24, 2014 at 9:00 a.m. for a
status conference. [CSOMF at ¶ 51; Doc. #175-36]. Rather
than retry Murphy, the State of Oklahoma filed a Motion to
Dismiss the case with prejudice. [CSOMF at ¶ 51; Doc.
court finds the following facts regarding the Tulsa Police