United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 07-1002/1166

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Theodore W. White, Jr., * 

* 

Appellee, * 

* Appeal from the United States

v. * District Court for the 

* Western District of Missouri.

Detective Richard McKinley, *

Individually and in his official * 

capacity; Tina McKinley, * 

* 

Appellants. *

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Submitted: October 19, 2007

Filed: February 26, 2008

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Before BYE, BOWMAN, and SMITH, Circuit Judges.

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SMITH, Circuit Judge.

Theodore White, Jr. brought this civil action following his prosecution,

conviction, re-prosecution, and eventual acquittal for the alleged molestation of his

adopted daughter. White sued his ex-wife, Tina McKinley, and the police officer who

investigated the molestation charges, Richard McKinley, who is also Tina's current

husband. White alleged a deprivation of constitutional rights and various common law

torts. The McKinleys moved the district court for summary judgment on all counts,

based, at least in part, on a qualified immunity defense, and both motions were denied
1

The Honorable Nanette K. Laughrey, United States District Judge for the

Western District of Missouri.

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in part and granted in part. The district court1

 denied Richard's motion as to (1) the 42

U.S.C. § 1983 conspiracy claim and (2) the 42 U.S.C. § 1983 claim based on

suppression of exculpatory evidence. Tina's motion was denied as to (1) the 42 U.S.C.

§ 1983 conspiracy claim, (2) false arrest claim, and (3) malicious prosecution claim.

Tina and Richard bring this interlocutory appeal arguing that the district court should

have granted their summary judgment motions in their entirety. We affirm. 

I. Background

The following facts are uncontested or viewed in the light most favorable to

White, the non-moving party. White married Tina in 1991. At the time, Tina had two

children, a boy and a girl, from a previous marriage. Consistent with Tina's wishes,

White agreed to adopt Tina's children, but Tina's first husband would not agree to

terminate his parental rights. Sometime later, Tina petitioned a state court for an order

of protection against her first husband, alleging that he had threatened to kill her and

White and had physically abused her during their marriage. In a later deposition, Tina

denied her first husband was ever violent with her. Likewise, White denies that he was

ever threatened by Tina's first husband. In 1995, Tina's first husband ended his

opposition to White's adoption and consented to terminate his parental rights. Tina

told a friend she obtained her first husband's consent by threatening to charge him

with child molestation. White adopted Tina's children in January 1996.

During his marriage to Tina, White was a CEO and major shareholder of a

company making an initial public offering (IPO) of its stock. White's portion of the

stock was worth approximately $400,000, and the IPO documents contained a

provision that specified that all of White's stock would be transferred to Tina if White

was ever convicted of a felony. Tina requested that White transfer half of the stock

into her name, but he refused. 
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Tina and White's marriage deteriorated in 1997, leading to White's eventual

expulsion from the home in September 1997. Tina and her children packed up White's

belongings and put them outside with a note asking that he take his things and leave.

When White came home he pounded his way through the door, which Tina had

barricaded, and went to his bedroom. Tina contacted the Lee's Summit Police

Department ("the police department") to report that her husband had broken through

the door and shoved her down. The police arrived and arrested White.

White and Tina separated in October 1997, and Tina filed for divorce one

month later. Thereafter, White and Tina temporarily reconciled and White moved

back in for the sake of the children. At that time, White was beginning a new business

with a potentially very profitable future. Tina worked for White's new company as a

receptionist. The relationship soured again after Tina was seen looking through

confidential payroll files. Afterwards, White limited Tina's access to the family's

finances. White also asked a business associate to pay the family's bills and to give

Tina a $1,500 per month allowance. 

Two weeks later, Tina called the police department to accuse White of

molesting her twelve year old daughter. Tina also filed for an order of protection and

requested $6,165 in monthly child support and maintenance. Due to the accusations,

White was forced to step down from his company and, when the divorce became final

in December 1999, the divorce court awarded Tina all of White's shares in his

previous company then valued at approximately $600,000.

Following the molestation accusation, an officer interviewed Tina's daughter

and wrote an initial report. After that, the investigation was assigned to the department

detective in charge of investigating sexual abuse allegations, defendant Richard

McKinley. On March 25, 1998, Richard advised Tina by phone of his role in the

investigation of her daughter's alleged molestation. Richard's case-file notes state that

this phone call was his first contact with Tina, but the parties dispute whether this was
2

The diary was mentioned in one of Richard's initial reports. In a police report

dated March 26, 1998, Richard wrote that "I asked [Tina's daughter] if she ever wrote

any of the details down in her diary. [Tina's daughter] said that she hadn't because her

mom knew where she kept her diary and didn't want her to find out that way."

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really Richard and Tina's first encounter. According to the children's nanny,

Richard—already an acquaintance of Tina's—came to Tina's home in plain clothes

after White's arrest in September 1997 and measured the damaged door. That incident

occurred long before the molestation allegations surfaced. 

Richard departed from his normal investigatory protocol in White's case.

Richard seldom initially spoke with the child at the center of an abuse investigation,

because that was normally the social worker's domain. White offered evidence that

Richard met with Tina's daughter before the child met with the assigned social worker.

During his interview with the alleged victim, Richard discussed the meaning of

different sexual terms and asked Tina's daughter about viewing pornographic videos

with her father. Richard took six pornographic videos from the house as evidence. 

Richard also reviewed Tina's daughter's diary. The diary contained no entries

related to the alleged sexual abuse, and Richard did not take the diary as evidence.2

White sought the diary in discovery but never received it. White knew of the diary's

existence because Tina had shown it to him when they were married. Tina had been

upset that her daughter had written that Tina was not an affectionate mother. White

had also read in the diary that Tina's daughter felt White was a good father and that

the girl wanted to spend more time bonding with White at the family's lake house.

When asked to produce the diary during White's first criminal trial, Tina told the

prosecutor that it was lost. Tina's daughter, however, testified in a deposition that Tina

had never asked her to look for it.

As part of the molestation investigation, Tina's daughter underwent a physical

exam. The exam showed no physical signs of the type of molestation that she claimed
3

The prosecutor during White's first trial, testified that a lead investigator is

always supposed to attempt to interview the suspect. This prosecutor testified that if

she had known Richard turned down an opportunity to interview White that would

have "raised an eyebrow" about the detective's work. Because Richard did not

interview White, he did not learn the names of the people White was with during the

alleged events.

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had occurred within the prior three weeks. The report did indicate that the girl's

description of abuse was consistent with other abuse cases. Richard later questioned

Tina at her home for two hours without the children present as part of the

investigation. Richard claimed he needed Tina to corroborate her daughter's account

of abuse since there was no physical evidence of abuse, no confession of the abuser,

and the allegations were being made within the context of a recently filed divorce—

a time when false abuse accusations are common. Richard learned that Tina had taken

notes about the abuse, and he took custody of those notes to corroborate her daughter's

accusations. Tina also told Richard about other suspicious behavior of White towards

her daughter that she had witnessed. Many of the incidents she discussed had not been

mentioned by her daughter during her interview with the social worker.

Richard did not mention White and Tina's pending divorce in any of his police

reports. He did not review any records or pleadings from the divorce proceedings even

though he knew that abuse allegations during divorce were a "red flag." Richard did

not interview White during his investigation despite White's attempts to make himself

available. Richard had testified in an unrelated case that it is standard procedure for

the lead investigator in a child molestation case to speak to the accused if they are

willing to talk.3

In April 1998, while investigating the allegations against White, Richard

developed strong romantic affection for Tina and asked her out. By that time, the

prosecutor had filed charges against White, but Richard remained the lead investigator

on the case. Tina and Richard began seeing each other in May, and the relationship
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became sexual. Richard told his police chief that he was having an affair with Tina in

June, and the chief urged him to stop the affair and to tell the prosecutor. Richard told

the prosecutor that he and Tina had met for a single date. He did not disclose that their

relationship was sexual or that he had any contact with Tina prior to the March 26th

interview with Tina's daughter. The prosecutor, believing only one date had occurred,

chose not to disclose Richard's relationship with Tina to the defense.

In the fall of 1998, the prosecutor first learned that Tina and Richard were

actually having an on-going romantic relationship, as opposed to just having gone on

one date, when they announced their engagement. Prior to Richard's January 1999

deposition, the prosecutor told Richard that he would need to answer questions about

the affair truthfully. The prosecutor said he would cough to signal to Richard when

he needed to disclose the affair in response to a question. Richard was asked if he had

any personal interest in the case, during a deposition, and he stated he did not. The

prosecutor did not signal him to say otherwise. Consequently, White never learned of

Richard and Tina's affair before his first criminal trial. 

A few months after White was convicted, Tina moved in with Richard. She then

married Richard in July 2000. At that time, White learned that Tina and Richard had

been having an affair at least during the trial and perhaps during the investigation.

White also learned that the prosecutor knew about this. White appealed his conviction,

and the Missouri Court of Appeals reversed, finding that the prosecutor violated his

duty to disclose exculpatory evidence. White's conviction was retried on the same

charges. During this second trial, Tina's son's testimony contradicted his mother's

version of events, and the jury deadlocked eleven to one in favor of acquittal. The

judge declared a mistrial.

White was prosecuted a third time, and, while the third trial was pending, White

subpoenaed his adopted son as a defense witness. Before he could testify, however,

Richard called a crisis counselor to report that Tina's son had disclosed that White had
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molested him as well, and that the son was suicidal. The trial judge deemed Tina's son

unavailable to testify, but allowed the son's testimony from the second trial to be read

into record. The jury acquitted White on all counts after the third trial.

In the instant action against Richard and Tina, White's complaint alleged:

malicious prosecution; false arrest; common law negligence; use of unreliable and

fraudulent investigatory techniques and procurement of unreliable and fabricated

evidence under 42 U.S.C. § 1983; conspiracy under § 1983; and suppression of

exculpatory evidence under § 1983. Richard and Tina McKinley moved for summary

judgment on all counts. The district court denied Richard's motion as to the conspiracy

claim and the procedural due process claim and granted his motion in all other

respects. Tina's motion was denied as to the conspiracy, false arrest, and malicious

prosecution claims.

II. Discussion

In this interlocutory appeal, Richard argues that the district court erred in

denying summary judgment for White's procedural due process and conspiracy claims.

Tina also appeals, asserting that the district court erred in denying her summary

judgment motion for White's conspiracy, false arrest, and malicious prosecution

claims. 

A. Richard's Appeal

1. Subject Matter Jurisdiction

We first address our jurisdiction. White argues that we do not have subject

matter jurisdiction over this interlocutory appeal from a denial of summary judgment.

We disagree. Although Richard's appeal may resemble an attack on the sufficiency of

the evidence, the appeal also asks the purely legal question whether White has shown

the existence of a clearly established constitutional right.
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"A defendant, entitled to invoke a qualified immunity defense, may not appeal

a district court's summary judgment order insofar as that order determines whether or

not the pretrial record sets forth a genuine issue of fact for trial"; the appealable issue

is the purely legal one. Johnson v. Jones, 515 U.S. 304, 319–20 (1995). This court

does not have jurisdiction to consider an interlocutory summary-judgment

qualified-immunity appeal if "at the heart of th[e] argument is a dispute of fact." Pace

v. City of Des Moines, 201 F.3d 1050, 1053 (8th Cir. 2000). Even if a defendant

frames an issue in terms of qualified immunity, we should determine whether he is

simply arguing that the plaintiff offered insufficient evidence to create a material issue

of fact. Thomas v. Talley, 251 F.3d 743, 747 (8th Cir. 2001). Typically, the appealable

issue is whether the federal right allegedly infringed was "clearly established." Id. at

746–47 (internal citation and quotations omitted).

In addition to some evidentiary arguments, Richard's appeal mainly asks

whether he is entitled to qualified immunity for failing to seize a diary containing

potentially exculpatory evidence and for failing to disclose his intimate relationship

with the ex-wife of the accused who was also the mother of the alleged victim.

Richard argues that White possessed no clearly established federal constitutional right

infringed by Richard's failures. Given the limited nature of that question, we have

subject matter jurisdiction over his appeal. 

2. Procedural Due Process

Richard first argues that the district court erred in denying his motion for

summary judgment on the procedural due process claims based on denial of qualified

immunity. We review de novo the district court's denial of qualified immunity.

Clemmons v. Armontrout, 477 F.3d 962, 965 (8th Cir. 2007). 

"To determine whether an official is entitled to qualified immunity we engage

in a two-part analysis. The "threshold question" is whether, taking the facts in the light

most favorable to the injured party, the alleged facts demonstrate that the official's
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conduct violated a constitutional right." Id. If a violation could be made out on a

favorable view of the parties' alleged facts, the next step is to ask whether the right

was clearly established. Id. "To determine whether a right is clearly established we ask

whether it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted." Id. 

The party asserting immunity always has the burden to establish the relevant

predicate facts, and at the summary judgment stage, the nonmoving party is given the

benefit of all reasonable inferences. Pace, 201 F.3d at 1056. If there is a genuine

dispute concerning predicate facts material to the qualified immunity issue, the

defendant is not entitled to summary judgment. Id. The threshold question then is

whether, viewed in the light most favorable to White, the facts as alleged demonstrate

that Richard's conduct violated a constitutional right. 

The constitutional right implicated by the instant facts is explained in Brady v.

Maryland: "the suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of prosecution." 373 U.S. 83,

87 (1963). The Supreme Court stated in California v. Trombetta, with respect to the

Due Process Clause of the Fourteenth Amendment: "We have long interpreted this

standard of fairness to require that criminal defendants be afforded a meaningful

opportunity to present a complete defense. To safeguard that right, the Court has

developed what might loosely be called the area of constitutionally guaranteed access

to evidence."467 U.S. 479, 485 (1984). 

The right Brady describes definitely applies to prosecutors and imposes upon

them an absolute disclosure duty. But, Brady's protections also extend to actions of

other law enforcement officers such as investigating officers. However, an

investigating officer's failure to preserve evidence potentially useful to the accused or

their failure to disclose such evidence does not constitute a denial of due process in
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the absence of bad faith. Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004).

"[T]he recovery of § 1983 damages requires proof that a law enforcement officer other

than the prosecutor intended to deprive the defendant of a fair trial." Id. Consequently,

to be viable, White's claim must allege bad faith to implicate a clearly established right

under Brady.

Upon review, we agree with the district court that the facts alleged here meet

the bad faith standard. Treating the facts as alleged to be true, a reasonable juror could

find Richard deprived White of a fair trial in bad faith by deliberately steering the

investigation to benefit his love interest, Tina. Richard deliberately withheld from

prosecutors the full extent of his relationship with Tina and failed to preserve the

alleged victim's diary which did not corroborate the molestation allegations. Failing

to preserve the diary deprived White of his right to a fair trial, in part, because he

could not testify about the diary without waiving his right not to testify. Whether

Richard's failure to disclose the full extent of his relationship with Tina and preserve

the diary were done in bad faith are disputed factual questions inappropriate for

summary judgment. 

Richard argues that the Brady-derived right alleged was not clearly established

and that there are no cases factually similar that would have put him on notice of

White's rights. However, we have held that "the absence of a factually similar case

does not guarantee government officials the shield of qualified immunity. . . . [t]he

key inquiry in deciding whether a right is clearly established is whether it would be

clear to a reasonable officer that his conduct was unlawful in the situation he

confronted." Moran v. Clark, 359 F.3d 1058, 1060–61 (8th Cir. 2004) (internal

citations and quotations omitted). We hold that no reasonable police officer in

Richard's shoes could have believed that he could deliberately misrepresent the nature

and length of his relationship with Tina, or that he could deliberately fail to preserve

a child victim's diary containing potentially exculpatory information. 
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Because Richard is asserting the qualified immunity defense, he has the burden

to establish the relevant predicate facts for its application. He has not done so. During

this review, we are limited to the facts as alleged by the plaintiff. Given these facts,

a reasonable juror could find that Richard deliberately misrepresented his relationship

with Tina and that he deliberately failed to preserve the diary in bad faith. Therefore,

we find no error in the district court's denial of qualified immunity for White's due

process claim. 

3. Conspiracy

Richard also appeals the denial of summary judgment on White's conspiracy

claim. White alleged Richard and Tina conspired to deprive him of his constitutional

rights. To prove a 42 U.S.C. § 1983 conspiracy claim, a plaintiff must show: (1) that

the defendant conspired with others to deprive him of constitutional rights; (2) that at

least one of the alleged co-conspirators engaged in an overt act in furtherance of the

conspiracy; and (3) that the overt act injured the plaintiff. Askew v. Millerd, 191 F.3d

953, 957 (8th Cir. 1999). The plaintiff is additionally required to prove a deprivation

of a constitutional right or privilege in order to prevail on a § 1983 civil conspiracy

claim. Id. 

Richard argues that the conspiracy claim fails because he did not violate any of

White's constitutional rights, and absent a constitutional violation, there is no 

actionable conspiracy claim. However, the district court found that because it denied

summary judgment on the procedural due process claim, the court could not grant

summary judgment on McKinley's conspiracy claim. We agree. The determination

that a constitutional violation could be proven on the due process claim also defeats

Richard's qualified immunity defense at this stage for the conspiracy claim.
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B. Tina's Appeal

Tina also filed an interlocutory appeal, arguing that the district court erred in

denying her summary judgment motion as to the conspiracy, false arrest and malicious

prosecution claims. 

1. False Arrest and Malicious Prosecution

As with Richard, we must first address our jurisdiction. White argues that we

do not have pendent jurisdiction to review the district court's ruling on White's false

arrest and malicious prosecution claims against Tina in this interlocutory appeal. This

time, we agree.

The interlocutory appeal for denial of qualified immunity is a vehicle with

limited capacity and cannot accommodate other interlocutory appellate arguments

unless they are "inextricably intertwined" with the defense of qualified immunity.

Eagle v. Morgan, 88 F.3d 620, 628 (8th Cir. 1996). When a ruling on the merits

resolves the non-government individual's pendent claims, that individual's appeal is

"inextricably intertwined" with the officer's qualified immunity. Id. An interlocutory

appeal is not inextricably intertwined with the question of qualified immunity if the

resolution of the two issues requires entirely different analysis. Veneklase v. City of

Fargo, 78 F.3d 1264, 1270 (8th Cir. 1996). White's false arrest and malicious

prosecution claims against Tina would be inextricably intertwined with Richard's

interlocutory appeal if our ruling on the merits of Richard's qualified immunity appeal

resolved all of the remaining issues presented by Tina's pendent appeal. 

Our ruling on Richard's qualified immunity, however, does not resolve White's

claims against Tina. For Tina to be found guilty of maliciously causing false

prosecution, White must prove (1) the commencement of a prosecution against the

plaintiff; (2) its legal causation or instigation by the defendant; (3) its termination in

favor of the plaintiff; (4) want of probable cause by the prosecution; (5) defendant's

conduct was actuated by malice; and (6) plaintiff was damaged. Duvall v. Lawrence,
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86 S.W.3d 74, 84 (Mo. App. 2002). To be found guilty under a theory of false arrest,

the evidence must show White was confined against his will and without legal

justification. Rankin v. Venator Group Retail, Inc., 93 S.W.3d 814, 819 (Mo. App.

2002). Tina may be liable for false arrest even if she did not actually confine White,

if she provided information that formed the basis of the false arrest. Id. These issues

would not be resolved in Tina's favor on the basis of our merits ruling on Richard's

qualified immunity appeal. The facts and legal arguments related to Richard's

qualified immunity and Tina's false imprisonment and malicious prosecution claims

are not inextricably intertwined. Consequently, we do not have jurisdiction to hear

Tina's appeal regarding the false arrest and malicious prosecution claims.

2. Conspiracy

We do, however, have jurisdiction over Tina's appeal of the denial of summary

judgment as it relates to the 42 U.S.C. § 1983 conspiracy claim. Although § 1983 can

only be used to remedy deprivation of rights done under the color of law, a private

actor can be liable "under § 1983 for conspiring with state officials to violate a private

citizen's right[s]. . . . " Dossett v. First State Bank, 399 F.3d 940, 950 (8th Cir. 2005).

The key inquiry is whether the private party was a willful participant in the corrupt

conspiracy. DuBose v. Kelly, 187 F.3d 999, 1003 (8th Cir. 1999). 

For a claim of conspiracy under Section 1983, the plaintiff need not show that

each participant knew "the exact limits of the illegal plan. . . ," but the plaintiff must

show evidence sufficient to support the conclusion that the defendants reached an

agreement to deprive the plaintiff of constitutionally guaranteed rights. Larson by

Larson v. Miller, 76 F.3d 1446, 1458 (8th Cir. 1996). "The question of the existence

of a conspiracy to deprive the plaintiffs of their constitutional rights should not be

taken from the jury if there is a possibility the jury could infer from the circumstances

a 'meeting of the minds' or understanding among the conspirators to achieve the

conspiracy's aims." Id. Because "the elements of a conspiracy are rarely established

through means other than circumstantial evidence, and summary judgment is only
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warranted when the evidence is so one-sided as to leave no room for any reasonable

difference of opinion as to how the case should be decided. The court must be

convinced that the evidence presented is insufficient to support any reasonable

inference of a conspiracy." Westborough Mall, Inc. v. City of Cape Girardeau, 693

F.2d 733, 743 (8th Cir. 1982). 

Tina argues that the district court erred in denying her motion for summary

judgment on this conspiracy claim because the facts that the court relied on are not

sufficient to support a conspiracy claim. We disagree. Viewing the facts in a light

most favorable to White, a reasonable juror could find that Tina and Richard reached

a meeting of the minds to withhold exculpatory evidence from prosecutors and White.

White offers evidence that Tina and Richard were romantically involved shortly after

White was accused, and there is also evidence that Tina and Richard knew each other

before the abuse allegations even surfaced. Some evidence suggests that Richard

reviewed and returned the potentially exculpatory diary to Tina and that the diary then

disappeared. There is also evidence that Tina stood to gain financially from White's

conviction. Because the elements of conspiracy are rarely established through means

other than circumstantial evidence, and here there is sufficient evidence to support a

reasonable inference of conspiracy, summary judgment was not appropriate. 

III. Conclusion

For the foregoing reasons, the judgment of the district court is affirmed.

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