## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ Nos. 05-4140/06-1099

___________ Eric Clemmons, * * Appellee/Cross-Appellant, * * Appeals from the United States v. * District Court for the * Western District of Missouri. William Armontrout, Warden; * George Brooks; Alonzo Gross; * Arthur Dearixon; Thomas Steigerwald; * Donald Cline; Larry Henson, Deputy * Warden; Bill Rutledge; Robert Acree; * James Eberle; * * Cross-Appellees, * * Estate of George Brooks, * * Appellant/Cross-Appellee. *

___________ Submitted: November 17, 2006 Filed: February 12, 2007

___________ Before RILEY, HANSEN, and SMITH, Circuit Judges.

___________ SMITH, Circuit Judge.
Eric Clemmons, an inmateincarcerated at the Missouri State Penitentiary ("MSP"), sued MSP Investigator Geor ge Brooks, now deceased, Warden William1 In 1983, Clemmons was convicted of cap ital murder and assault and sentenced to life without the possibility of parole for 50 years.
-2- Armontrout, and Corrections Supervisor Alonzo Gross (collectively referred to as "appellants") under 42 U.S.C. § 1983. Clemmons alleged that appellants' intentional or reckless failure to disclose or inve stigate exculpatory leads or exonerating information deprived Clemmons of his liberty interest in a fair trial. Clemmons contends that their acts caused him to bewrongfully convicted for murder and placed on death row for 14 years. The district court granted summary judgment to Warden Armontrout and Captain Gross, concludi ng that neither of them was personally involved in the alleged deprivation of Cl emmons's constitutional rights, but denied Investigator Brooks qualified immunity. We reverse the district court's denial of qualified immunity to Investigator Brooks and affirm the district court's grant of summary judgment to Warden Armontrout and Captain Gross.

I. Background Clemmons is an inmate in the custody of the Missouri Department of Corrections. 1 While Clemmons was incarcerated at the MSP, someone stabbed fellow inmate Henry Johnson three times, leading to his death. When the assault occurred, Corrections Officer Thomas Steigerwald called for assistance, and Captain Gross responded to the call. Officer Steigerwald cl aimed to have witnessed the stabbing and identified Clemmons as the perpetrator. Officer Steigerwald and Captain Gross took Clemmons into custody. The officers noti ced bloodstains on Clemmons's sweatshirt and tennis shoes.

After taking Clemmons into custody, CaptainGross returned to the scene of the stabbing and ordered corrections officers to search for the assailant's weapon. No weapon, however, was ever located. Ther eafter, Captain Gross supervised a preliminary investigation into Johnson's st abbing until the MSP investigator arrived to conduct an investigation. In the m eantime, inmate Dwight Clark approached2 The "out-count" list sets forth the name s of inmates who have permission to be out of their cells. Douglas v. Clark , 993 F.2d 1549, 1993 WL 137718, at *3 (7th Cir. Apr. 30, 1993) (unpublished).
-3- Captain Gross and told him that he ha d witnessed two men assaulting Johnson. He described both assailants as be ing black, stated his belief that one of the inmates was Fred Bagby, and explained that he only knew the second inmate by sight.

Captain Gross never interviewed Fred Bagby or searched his cell; however, he did review the out-count list and conclude d that because Bagby was not on the outcount list 2 , Clark's statement was not credible. Headmitted, however, that there would have been more than one out-count list, meaning that Bagby could have been listed on another out-count list that he did not check. Additionally, he conceded that an inmate could be in the prison yard w ithout being listed on the out-count list.

After receiving and investigating Clark's statement, Captain Gross prepared an Inter-Office Communication ("IOC") memorandum to Investigator Brooks—the MSP investigator assigned to the murder inve stigation—which outlined Captain Gross's investigation and his conversation with Clark. In the IOC, Captain Gross noted his misgivings about Clark's statement, conclu ding that "[w]hen questioned in detail Clark did not make sense and furthe r investigation reflects that Clark's statement is untrue." Warden Armontrout, Deputy Warden Donald C line, Superintendent Robert Acree, and Major James Eberle were forwarded a copy of the IOC.

Investigator Brooks never interviewe d Clark or Bagby as part of his investigation. After he comple ted his investigation, he fo rwarded his investigation file to Warden Armontrout, who then forwarde d the file to the Cole County Prosecuting Attorney's Office for review. The file fo rwarded to the prosecuting attorney did not contain the IOC detailing Clark's statem ents. The prosecuting attorney charged Clemmons with the murder of Johnson. Cle mmons was subsequently convicted of the murder in 1987 and sentenced to death. Clemmons exhausted his state appeals.3 At trial, Clemmons presented the testimony of three fellow inmates who identified Bagby as Johnson's killer; however , in each case, the witness had not come forward until Bagby had died. The prosecution impeached the testimony of Clemmons's witnesses by asserting that Ba gby was conveniently dead at the time that they came forward. Without knowledge of the IOC, Clemmons was unable to rehabilitate his witnesses. At the tim e Clark accused Bagby of Johnson's murder, Bagby was alive; therefore, Clark identif ying Bagby as the killer an hour after the murder would have supported the three in mates' testimony. In addition, Clemmons could have called Clark as a witness. Clemmons , 124 F.3d at 950–51.
-4- In 1997, Clemmons filed a writ of hab eas corpus, alleging that exculpatory evidence—the IOC—"was withheld from him prior to his trial in violation of Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)." Clemmons v. Delo , 124 F.3d 944, 947 (8th Cir. 1997). We gr anted Clemmons the writ, concluding that "[w]hether framed as an ineffectiv e assistance of counsel claim or as a Brady claim, Clemmons's claim undeniably states a constitutional violation." Id . at 949. "We [could not] say with confidence that the ju ry would have reached the same verdict when presented with an eyewitness [Clark] who accused a different inmate [Bagby] of the crime within an hour of the murder , the very same inma te that three other witnesses had also accused of the crime." 3 Id . at 951.

The State of Missouri then retried Cle mmons, and, on February 18, 2000, a jury acquitted him of the murder of Johnson. Approximately three years later, Clemmons filed the instant lawsuit under 42 U.S.C. § 1983, alleging that he was deprived of his liberty interest in a fair tria l due to appellants' intentional or reckless failure to disclose or investigate exculpatory leads or exonerating information.

II. Discussion The Estate of Investigator Brooks appeal s, arguing that the district court erred in denying Investigator Brooks qualified i mmunity because Clemmons failed to show that Brooks intentionally or recklessly failed to investigate leads or produce exculpatory information in violation of Clemmons's due process rights. Clemmons-5- cross-appeals, asserting that the districtcourt erred in granting summary judgment to Warden Armontrout and Captain Gross b ecause a genuine issue of material fact remains as to their "personal involvement" in the investigation of Johnson's murder.

A. Qualified Immunity We review de novo the district court's denial of qualified immunity to Investigator Brooks. McClendon v. Story County Sheriff's Office , 403 F.3d 510, 515 (8th Cir. 2005).

To determine whether an official is entitled to qualified immunity, we engage in a two-part analysis. The "threshold questi on" is whether, taking the facts in the light most favorable to the injured party, the a lleged facts demonstrate that the official's conduct violated a constitutional right. Saucier v. Katz , 533 U.S. 194, 201 (2001). "To establish a substantive due process violation, plaintiffs must show that the behavior of the [official] was so egregious, so outrageous , that it may fairly be said to shock the contemporary conscience," Terrell v. Larson , 396 F.3d 975, 978 (8th Cir. 2005) (quotations and citation omitted), and th at the conduct "violated one or more fundamental rights." Moore v. Briggs , 381 F.3d 771, 773 (8th Cir. 2004). If we conclude that the alleged f acts do not establish the violation of a constitutional right, then we need not address the second inquiry. Id

.
"On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential st ep is to ask whethe r the right was clearly established." Saucier , 533 U.S. at 201. To determine whether a right is "clearly established," we ask "whether it would be cl ear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id . at 202.

As to the threshold inquiry, the Supreme Court has held that "suppression by the prosecution of evidence favorable to an accuse d upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the-6- good faith or bad faith of the prosecution." Brady v. Maryland , 373 U.S. 83, 87 (1963) (emphasis added). We recognized this constitu tional violation in our previous decision granting Clemmons habeas relief for the pr osecution's failure to divulge the IOC. See Clemmons , 124 F.3d at 949.

We have, however, also reco gnized that while "[t]he Bradydoctrine imposes an absolute duty on the prosecutor to produce all materially favorable evidence in the State's possession," the Court "has neve r imposed this absolute duty on law enforcement officials othe r than the prosecutor." Villasana v. Wilhoit , 368 F.3d 976, 979 (8th Cir. 2004). The "Due Process Clau se is simply not implicated by a negligent
act of an official causing unintended loss of or injury to life, liberty, or property." Daniels v. Williams , 474 U.S. 327, 328 (1986) (emphasis added) (overruling Parratt v. Taylor , 451 U.S. 527 (1981), "to the extent that it states that mere lack of due care by a state official may 'depri ve' an individual of life, liberty, or property under the Fourteenth Amendment"). "[I]t would be impermissible to hold the police liable for due process violations under § 1983 where they have acted in good faith." Jean v. Collins , 221 F.3d 656, 660 (4th Cir. 2000). "Indeed, negligent conduct cannot by definition establish the 'affirmative abus e of power' necessary to constitute a due process deprivation." Id . Therefore, where no evidence exists that the investigator acted in bad faith or "engage d in a conscious effort to suppress exculpatory evidence," the accused's due process right s have not been violated. Villasana , 368 F.3d at 980 (internal quotations and citation omitted).

Likewise, "[n]egligent failure to inve stigate other leads or suspects does not violate due process." Wilson v. Lawrence County, Mo. , 260 F.3d 946, 955 (8th Cir. 2001) (citing Daniels , 474 U.S. at 334). Even allegati ons of gross negligence fail to establish a constitutional violation. Id . "[O]nly reckless or intentional failure to investigate other leads offends a defendant's due process rights." Id . (emphasis added).-7- We hold that, under the first prong of Saucier , Investigator Brooks did not violate Clemmons's constitutional rights, as Clemmons adduced no evidence that Brooks acted intentionally, recklessly, or in bad faith when he failed to disclose the IOC to the prosecutor and failed to inves tigate Clark's statement that Bagby murdered Johnson. While Clemmons argues that hedemonstrated recklessness by providing evidence that Investigator Brooks received th e IOC, failed to inte rview Clark, failed to interview other eyewitnesses, and failed to include the IO C to the prosecutor, he has offered no explanation for why these acti ons constitute recklessness as opposed to mere negligence. "[C]onclusory allegations will not suffice." Jean , 221 F.3d at 662.

As a matter of law, we conclude thatthe undisputed facts establish that Investigator Brooks's actions were not in tentional or reckless. Mere negligence on Brooks's part by failing to disclose the IOC orinvestigating another lead is insufficient to deny him qualified immunity. First, CaptainGross stated in th e IOC that "Clark's statement was not credible." Brooks may have erroneously relied on Gross's credibility assessment or b een less than thorough, but, without more, his actions cannot be deemed "reckless." Investigator Brooks had the eyewitness statement of Officer Steigerwald identifying Clemmons as the perpetrator. Second, as in Villasana , Clemmons has produced no evidence that Brooks consciously sought to suppress exculpatory evidence by failing to disclo se the IOC to the prosecutor. Third, Clemmons has not alleged that Investig ator Brooks unlawfully coerced others to suppress the exculpatory evidence or re frain from investigating other leads. See Wilson , 260 F.3d at 955 (agreeing withthe district court's c onclusion that "[i]f [the plaintiff's] allegations about unlawful coer cion are proved true, a reasonable factfinder could determine that Defendants recklessl y or intentionally chose to force [the plaintiff] to confess instead of attempting to solve the murder through reliable but time consuming investigatory tec hniques designed to confirm th eir suspicions") (quotations and citation omitted).

Therefore, we hold that Investigator Brooks is entitled to qualified immunity.-8- B. Personal Involvement As to Clemmons's cross-appeal, we revi ew de novo the district court's grant of summary judgment to Warden Armontrout and Gross. Freeman v. Ace Tel. Ass'n , 467 F.3d 695, 697 (8th Cir. 2006).

"Liability under section 1983 requires a cau sal link to, and direct responsibility for, the deprivation of rights. To establish personal liability of the supervisory defendants, [the plaintiff] must allege specific facts of personal involvement in, or direct responsibility for, a deprivation of his constitutional rights." Mayorga v. Missouri , 442 F.3d 1128, 1132 (8th Cir. 2006) (i nternal quotations and citations omitted). A plaintiff fails to meet this bur den where no evidence is presented that the officials caused the suppression of exculp atory evidence "or that [the officials] participated in the investigation inanything other than a limited manner." Fleming v. Greater St. Louis Area Major Case Squad , 48 F.3d 1223, 1995 WL 57457, at *2 (8th Cir. Feb. 14, 1995) (unpublished). "[A] ward en's general responsibility for supervising the operations of a prison is insufficien t to establish personal involvement." Ouzts v. Cummins , 825 F.2d 1276, 1277 (8th Cir. 1987).

Captain Gross's investigation of Johnson' s murder was brief and limited, as he only supervised a preliminary investigation into the stabbing incident until Investigator Brooks arrived to take over the investigation. Once Investigator Brooks took over the investigation, Captain Gross had nothing further to do with it. In addition, the undisputed facts show that Cap tain Gross forwarded the information that he received from Clark to Investigator Brooks via the IOC.

As to Warden Armontrout, his general supervisory duties are also insufficient to establish his personal involvement in th e investigation. Clemmons has produced no evidence indicating that Warden Armontr out was ever directly involved in the investigation of Johnson's murder. Furthe rmore, although Warden Armontrout did receive a copy of the IOC, it was Investig ator Brooks, not Warden Armontrout, who-9- was responsible for putting the packet of investigatory materials together for the prosecutor.
Because the undisputed facts establis h that Captain Gross and Warden Armontrout had only minimal personal involve ment in the investigation, we hold that a reasonable jury could not return a verd ict in Clemmons's favor. Therefore, the district court properly granted summary j udgment to Warden Armontrout and Captain Gross.

III. Conclusion Accordingly, we reverse the district court's denial of qualified immunity to Investigator Brooks and affirm the district court's grant of summary judgment to Warden Armontrout and Captain Gross.

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