Bryson v. Macy (611 F. Supp. 2d 1234, 2009)

AMENDED ORDER

STEPHEN P. FRIOT, District Judge.

Before the court are Defendant City of Oklahoma City’s Motion for Summary Judgment, filed January 8, 2009 (doc. no. 105), Defendant Robert H. Macy’s Motion for Summary Judgment, filed January 9, 2009 (doc. no. 107), and the Motion for Summary Judgment by Defendant, Joyce Gilchrist, filed January 9, 2009 (doc. no. 110). Upon due consideration of the parties’ submissions, the court makes its determination.

I. Background

Plaintiff, David Bryson, spent over 17 years in prison for crimes — kidnaping, rape and sodomy — that he did not commit. Plaintiff seeks damages under 42 U.S.C. § 1983 against defendants, City of Oklahoma City, Joyce Gilchrist, and Robert Macy, for malicious prosecution and for bad faith denial of post-conviction access to potentially exculpatory evidence. Both of these claims arise under the due process clause of the Fourteenth Amendment. Plaintiff also seeks damages under Oklahoma state tort law against defendants Joyce Gilchrist and Robert Macy. All defendants seek summary judgment as to plaintiffs § 1983 claims. Defendant, Joyce Gilchrist, seeks summary judgment as to plaintiffs state law claim.

II. Standard of Review

Under Rule 56(c), Fed.R.Civ.P., summary judgment shall be granted if the record shows that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” The moving party has the burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when “there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of a material fact exists, the evidence is to be taken in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). All reasonable inferences to be drawn from the undisputed facts are to be determined in a light most favorable to the non-movant. United States v. Agri Services, Inc., 81 F.3d 1002, 1005 (10th Cir. 1996). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials, demonstrating that there is a genuine issue for trial. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983).

III.Relevant Facts

The facts, undisputed or viewed in a light most favorable to plaintiff, are as follows.

A. Plaintiffs Conviction

On September 23, 1982, Theresa Taylor, a 23 year-old, was kidnapped in downtown Oklahoma City and driven to a remote location in the southeast part of town. During the drive, she was forced to perform an act of fellatio. Upon arrival at the remote location, Ms. Taylor was dragged out of the car into a muddy ravine. The assailant, who carried a knife, then raped and orally and anally sodomized Ms. Taylor. City’s Ex. 17, pp. 3-23; City’s Ex. 18, pp. 36-66.

Thereafter, the assailant ordered Ms. Taylor to perform another act of fellatio. When she felt the assailant becoming erect, Ms. Taylor “bit down very hard, and as hard [she] could” on his penis. She “felt blood come into [her] mouth.” City’s Ex. 18, p. 61, ll. 7-9. The assailant screamed and dropped the knife he was holding. Through clinched teeth, she ordered the assailant to his side and ordered him to put his hands underneath his side so they could not reach the knife. Id. at p. 61, ll. 10-19. She bit the assailant’s penis one more time and took off running. Id. at p. 62,ll. 2-5.

Ms. Taylor ran nude to the home of Air Force Major and Mrs. Kuritz. Mrs. Kuritz gave her a robe and Major Kuritz called the police. City’s Ex. 17, p. 27,ll.1-3; City’s Ex. 18, p. 64, ll. 2-10. Ms. Taylor was interviewed briefly by the police and taken by ambulance to Oklahoma Memorial Hospital, where she was examined by Dr. Suzanne Bergen. City’s Ex. 18, p. 64,ll. 11-24.

Detective Julie Smith was assigned to Ms. Taylor’s case. Detective Smith had Ms. Taylor assist a sketch artist in providing a drawing of the assailant. A radiogram was issued giving a description of the suspect, the clothing worn and information that the suspect had been bitten on the penis. City’s Ex. 18, p. 226, ll. 22-25; City’s Ex. 87; City’s Ex. 22.

On September 24, 1982, evidence collected from Ms. Taylor and the crime scene was submitted to the OCPD forensic laboratory. The evidence collected from Ms. Taylor included a vial of blood, oral washing, vaginal aspirate, saliva sample, two vaginal swabs (posterior fornix), two vaginal swabs (cervix), vaginal slide, two rectal canal swabs, rectal canal slide, scalp hairs, pubic hair combing, pulled pubic hairs, two swabs from bite area — right arm, fingernail scraping, leaves and grass taken from victim’s hair, one torn fingernail and one robe. The evidence from the crime scene included one torn brown skirt, one brown belt, one beige blouse, one white bra and a paper “bindle” containing hairs. City’s Ex. 29.

On September 27, 1982, Detective Smith requested the Oklahoma City Police Department (“OCPD”) forensic laboratory to analyze the evidence. Defendant, Joyce Gilchrist (“Gilchrist”), a forensic chemist for the OCPD, was assigned the case. The case number was “ST-82-336.” City’s Ex. 20; City’s Ex. 17, p. 103, ll. 9-10; City’s Ex. 29.

On the same day, Detective Smith requested a group of rape crisis volunteers to contact every medical facility in the metropolitan area and give a description of the suspect and a brief synopsis of the injuries that the suspect had sustained. City’s Ex. 22; City’s Ex. 18, p. 231, ll. 8-15.

On October 2, 1982, plaintiff, David Bryson (“Bryson”), called Dr. Patskowsky’s office to obtain a prescription for an infected penis. Because Dr. Patskowsky was not working that day, he was referred to Dr. Patskowsky’s partner, Dr. Tillinghast. Dr. Tillinghast spoke to Bryson and wrote him two prescriptions — one for a painkiller and one for an antibiotic. City’s Ex. 18, p. 353, 376-77; City’s Ex. 21.

Shortly thereafter, Dr. Tillinghast advised the rape crisis group of Bryson’s injury. The group then called Detective Smith and advised her of Bryson’s injury. City’s Ex. 22.

On October 5, 1982, Bryson, who was twenty-eight years old, was arrested for outstanding warrants for various traffic offenses and was held as a suspect in the rape of Ms. Taylor. City’s Ex. 24, pp. 9-11, 80-81; City’s Ex. 25; City’s Ex. 17, p. 54, ll. 7-11. His injured penis was photographed by OCPD officer Ed Johnson. City’s Ex. 18, pp. 272-276.

A photographic lineup was prepared by Detective Smith, which included a photograph of Bryson as photograph number 3. City’s Ex. 26. Ms. Taylor tapped a photograph below Bryson’s photograph and stated that the face was the right shape and the beard looked right but that he was not the man. She continued to look at the lineup and told Detective Smith that number 3 (Bryson) was the man. Bryson’s Ex. 90, p. 58,ll. 22-25, p. 59,ll.1-4.

On October 6, 1982, blood, saliva and hair evidence collected from Bryson was submitted to the OCPD forensic laboratory. City’s Ex. 29.

On October 8, 1982, an information was filed in Oklahoma County District Court, Case No. CF-82-5031, charging Bryson with kidnapping, first-degree rape, two counts of oral sodomy and anal sodomy.

On October 15, 1982, evidence collected from Ms. Taylor’s flaneé, Daniel Kalina, was submitted to the OCPD forensic laboratory. City’s Ex. 29.

James Pearson (“Pearson”), an Oklahoma City attorney, was retained by Bryson’s father to represent Bryson in the criminal proceedings. Bryson’s Ex. 86, p. 17, ll. 4-25, p. 18, ll. 1-11. On November 10th and 18th, a preliminary hearing was conducted. The prosecution called Ms. Taylor and Detective Smith and rested. Pearson, on behalf of Bryson, moved to dismiss the case for lack of probable cause. The motion was overruled. City’s Ex. 17. During his presentation, Pearson called Gilchrist as one of his witnesses. Gilchrist testified that she had not completed her hair comparison analysis but had done some preliminary blood work. After Pearson completed his presentation, the trial court denied a renewed motion to dismiss and Bryson was bound over for trial. Id.

On January 10, 1983, a “pot pipe” was submitted to the OCPD forensic laboratory. City Ex. 29.

By January 28,1983, Gilchrist had finished her forensic work and had written her report. In her report she stated that “[o]ne (1) pubic hair taken from the torn brown skirt (Item # 18) is consistent in microscopic characteristics with the pubic hairs (Item #31) obtained from David John Bryson, and therefore could have come from Bryson.” She also stated that “[o]ne (1) scalp hair taken from the blouse (Item # 20) and three (3) scalp hairs from the crime scene (Item # 22) are consistent in microscopic characteristics with the scalp hairs (Item # 25) obtained from David John Bryson, and therefore, could have come from Bryson.” City Ex. 29, p. 4.

In the report, Gilchrist found that Bryson was a ABO blood type B and a secretor. She also found that Ms. Taylor was an ABO blood type O and a secretor. She concluded:

The majority of seminal stains encountered in case work are as a result of vaginal drainage and therefore will be a mixture of semen and vaginal secretion. When interpreting the results of grouping of these stains, it must be assumed that any blood groups which are consistent with the female did, in fact, originate from her. Since the rape exam was not done until several hours after the assault, two (2) possibilities must be taken into consideration: 1). That most or all of the seminal fluid may have been lost prior to the exam (even though sperm may be present), and 2). That the semen donor is a low level secretor in his seminal fluid.

The semen found in the vaginal aspirate and on the vaginal swaps contain only the H Substance. However, the B substance was detected by the more sensitive absorption-elution test. The B substance was also detected on the rectal swabs. The B and H substances were detected in semen stains from the robe. The H substance therefore, could have originated from the victim (Taylor) and the semen donor is therefore a B secretor. The semen could have originated from Bryson. In this case both Taylor and Bryson are the same PGM type (i.e.2-1), therefore, no conclusion as to the PGM type of the semen donor can be drawn.

* * * *

ABO grouping tests done on the blood and saliva samples obtained from Thomas and Katherine Kuritz show that Thomas is a B secretor and Katherine is an O secretor. Both Thomas and Katherine have the same PGM type (i.e. 2-1). Therefore, the semen stains on the robe could have originated from the Kuritz’s. However David Bryson can not be excluded as the semen donor.

City’s Ex. 29, pp. 3, 4 and 5.

On February 7,1983, the OCPD forensic laboratory released the evidence to Detective Smith for Barry Albert, the Assistant District Attorney handling Bryson’s case. City’s Ex. 32. Bryson’s trial commenced on that same date. City’s Ex. 18.

On the first day of trial, hair evidence was produced to Bryson’s expert, Max Courtney (“Courtney”), for examination. Courtney created a chart entitled “Pubic Hair Chart.” City’s Ex. 33. After the examination, Courtney communicated that he could not help Pearson. City’s Ex. 34, pp. 91-92. However, Bryson’s pubic hair contained characteristics which were not listed when Courtney charted the known pubic hair of Bryson. Bryson’s Ex. 52.

During the trial, Ms. Taylor testified and identified Bryson as the assailant. City’s Ex. 18, pp. 96-97. Marge White also testified and identified Bryson as the man whom she had observed hitchhiking on a road near the time and place of the sexual assaults and who had lunged at her vehicle when it approached him. Bryson’s Ex. 3, pp. 165-186. In addition, Gilchrist testified consistently with the statements and conclusions in her report. City’s Ex. 18, pp. 309-312. She testified that the donor of the semen was a B secretor. Id.

After the prosecution rested, Pearson demurred to the evidence and it was overruled. City’s Ex. 18, p. 352. Bryson testified that he received an injury to his penis after he requested his girlfriend to scrape her teeth on his penis in an up and down motion. Id. at 486. OCPD officer Ed Johnson had described Bryson’s injury during the prosecution’s case as “abraised” and “skinned.” City’s Ex. 18, p. 274, ll. 16-18, p. 276, ll. 19-24. Bryson’s doctor testified that Bryson’s injury was not comparable to the bite injury described by Ms. Taylor. City’s Ex. 18, pp. 358-362. Pearson presented evidence of an alibi for Bryson through several witnesses. According to the testimony, Bryson had been at his father’s home at 6:30 p.m. and then went directly to a driving school which started no later than 7:05 p.m. City’s Ex. 18, pp. 429-463, pp. 470-472, pp. 545-548.

Bryson’s trial ended on February 10, 1983 and Bryson was convicted of kidnapping, first-degree rape, two counts of oral sodomy with convictions on all five counts of the information. Bryson was sentenced on March 4, 1983 to a term of 75 years for the first-degree rape and to a term of 10 years each for the remaining counts of kidnapping, oral sodomy and anal sodomy. The 10-year sentences were ordered by the trial court to be run concurrently, but to be served consecutively with the 75 year sentence. City’s Ex. 27.

Bryson appealed his convictions. On September 30, 1983, the court reporter filed trial transcripts and “filed exhibits” with the court clerk. City’s Ex. 27. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the convictions on August 30, 1985. Macy’s Ex. 4. Gilchrist is not mentioned in the opinion. However, the opinion states that “[s]erological and hair analysis evidence also linked appellant to the crime.” Id. Judge Bussey of the OCCA, in a concurring opinion, described the evidence against Bryson as “overwhelming.” Id.

B. Denial of DNA Testing

In April of 1988, Pearson approached Gilchrist about the possibility of DNA testing on the forensic evidence in Bryson’s case. Bryson’s Ex. 86, pp. 140-142, City’s Ex. 47. She informed him that he would have to get approval of the District Attorney’s office. Bryson’s Ex. 86, p. 140, ll. 12-13. Pearson then talked with Barry Albert, the Assistant District Attorney who prosecuted Bryson’s case, and he informed Pearson that he would need to talk with Robert Macy (“Macy”), the District Attorney, or Pat Morgan, the First Assistant District Attorney. City’s Ex. 47. Pearson wrote a letter to Mr. Morgan and then talked with Macy personally. City’s Ex. 47, Bryson’s Ex. 86, p. 141, ll. 4-10. Pearson wanted the evidence tested by Life-codes. City’s Ex. 47. Macy agreed to the testing by Lifecodes and told Pearson to have Gilchrist ship the evidence. Bryson’s Ex. 86, p. 148, ll.15-20.

Pearson contacted Gilchrist and told her he “wanted to send everything that could be sent for DNA testing.” Bryson’s Ex. 86, pp. 140, 1. 25, p. 141, l. 1. Gilchrist responded that “it had been destroyed.” Id. at p. 141, ll. 2-3. Gilchrist wrote a note, dated June 6, 1988, referencing “ST-82-336,” which stated: “This evidence has been destroyed as per S.O.P. and therefore, we have nothing left with which to do DNA analysis on as requested by Def Atty Jim Pearson.” City’s Ex. 48. Pearson spent an afternoon looking for evidence in the court reporter’s storage area but did not find anything. City’s Ex. 34, pp. 143-147.

In December 1989, Marlene Cannon, a private investigator hired by Bryson’s father, found the forensic evidence from Bryson’s trial in the District Court clerk’s office and inventoried the evidence present. City’s Ex. 51. On December 4, 1989, Ms. Cannon obtained a court order allowing her access to .items 11 & 12 in the rape kit to “examine them.” City’s Ex. 27. Cannon advised Bryson’s father of the forensic evidence found and provided a list of the evidence by letter dated January 1, 1990. City’s Ex. 51.

In May 1991, Bryson’s new attorney, Jack Pointer, made a request of the Assistant District Attorney that Bryson be allowed access to the forensic evidence for DNA testing, and the request was denied. City’s Ex. 53, p. 27, l. 1-10; p. 85, ll. 6-15.

On January 17,1992, Jack Pointer wrote a letter to the court clerk requesting him to preserve all evidence in Bryson’s case. He advised that he would be filing in the near future a petition for post-conviction relief. City’s Ex. 55.

C. Post-Conviction Proceedings

On September 7, 1995, Bryson filed an application for post-conviction relief in the District Court. City’s Ex. 56. In the application, Bryson stated that the testimony of Gilchrist was a significant factor resulting in his conviction. He stated that the hair and blood evidence could be subjected to DNA testing which would conclusively prove that Bryson did not commit the acts for which he was convicted. He stated that he would be asking the court to allow an evidentiary hearing and to transport the samples to the DNA lab for analysis. Id. The Assistant District Attorney responded to the motion and argued that it should be denied. City’s Ex. 27; Complaint, ¶ 51. The District Court denied the application in an order filed November 20, 1995. City’s Ex. 57; City’s Ex. 27. Mr. Pointer failed to file a petition in error with the OCCA within the time provided by law and the appeal was dismissed. City’s Ex. 58.

When Mr. Pointer failed to respond to telephone calls, Bryson’s father consulted attorney Jack Fisher (“Fisher”). Fisher discovered that the appeal had been dismissed. In August, 1996, Bryson’s father retained Fisher to pursue obtaining the forensic evidence for DNA testing. City’s Ex. 59; Bryson’s Ex. 87, p. 6, ll. 20-22, p. 266, ll.11-12.

After being retained, Fisher called Gilchrist and she told him the evidence was on her window sill in her office and that she had been directed to destroy it. Fisher told Gilchrist not to destroy it that he wanted to test it. Bryson’s Ex. 87, p. 7, ll. 7-14. On August 28, 1996, Fisher sent Gilchrist a letter and requested that the evidence be preserved for future DNA testing. City’s Ex. 61. On September 6, 1996, Gilchrist wrote a note for “ST-82-336” which stated: “As per ADA S. Stensaas, I can ignore this request. The attorney must make any request through the DA’s office.” City’s Ex. 62. Fisher had a conversation with Assistant District Attorney, Susan Stensaas, about DNA testing and she told him that she “would go to jail before she would allow DNA testing.” Bryson’s Ex. 87, p. 285, ll.12-21.

On September 12, 1996, Fisher, on behalf of Bryson, filed an application with the District Court for access to the forensic evidence for DNA testing at Bryson’s expense. City’s Ex. 63.

On September 23,1996, Gilchrist made a handwritten list for “ST-82-336” of “Evidence Returned from DA’s storage to Serology.” City’s Ex. 64.

On October 2, 1996, a hearing was held on Bryson’s application for access to evidence for DNA testing. City’s Ex. 65. The District Court denied Bryson’s application on the basis of res judicata. The court, however, ordered that the forensic evidence be retained. City’s Ex. 67.

On October 10, 1996, Bryson filed a motion for an appeal out of time with the OCCA concerning the dismissed appeal of the District Court’s November 20, 1995 order denying post-conviction relief. The motion was granted. City’s Ex. 69.

On October 31,1996, Bryson filed a Petition for a Writ of Mandamus with the OCCA directing the District Court judge to allow Bryson access to the forensic evidence for DNA testing. City’s Ex. 70.

On March 4, 1997, the OCCA affirmed the District Court’s November 20, 1995 order denying post-conviction relief. The court concluded that “at this juncture,” petitioner had not established that he was entitled to post-conviction relief and the post-conviction appeal must fail. The court stated “[bjecause Petitioner’s application is based upon the results of DNA testing, and the testing has yet to be accomplished, a post-conviction appeal is premature.” City’s Ex. 70, p. 3. In that same order, the OCCA granted petitioner’s writ of mandamus. The OCCA ordered the forensic evidence to be preserved in its present state as previously ordered by the District Court and further stated: “This, however, does not prohibit testing by the Petitioner pursuant to an order of the District Court.” City’s Ex. 70, p. 6.

On March 18, 1997, Gilchrist made an inventory of the forensic evidence. City’s Ex. 71. On March 28, 1997, the District Court directed Gilchrist to ship the forensic evidence to Brian Wraxall (“Wraxall”), SERI’s chief forensic serologist.

The evidence was received by Wraxall on April 2, 1997. City’s Ex. 72. In a report dated April 22, 1997, Wraxall concluded that the “semen on both vaginal swabs ... could not have originated from David Bryson;” the “semen on the ‘Q 1’ area from the robe ... is consistent with the semen found on the vaginal swabs ...” and “[t]he semen could not have originated from David Bryson;” and the “semen on the Q2 area from the robe ... is different from the semen on Q1 ... and the vaginal swabs ...” and the “semen could not have originated from David Bryson.” City’s Ex. 73, p. 5. (emphasis in original)

On April 22, 1997, due to the statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996, Bryson filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, CIV-97-622-C, to preserve other constitutional claims resulting from his trial and conviction in 1983. City’s Ex. 60, p. 9. The case was later administratively closed by the court to allow exhaustion of state remedies. Case No. CIV-97-622-C, doc. no. 17.

On May 5, 1997, Bryson filed another application for post-conviction relief in the District Court alleging that the DNA evidence was “newly discovered evidence” and the results exonerated him. City’s Ex. 60, p. 10.

On May 9, 1997, Gilchrist had a conversation with Macy. She made handwritten notes of that conversation which states “@ this point, have no biological connection to Bryson.” City’s Ex. 74.

The prosecution was granted leave to perform another DNA analysis on the evidence in Bryson’s case. The evidence was sent to LabCorp. On September 3, 1997, serologist Meghan Clement issued a report concluding that Bryson was excluded as the semen donor. Bryson’s Ex. 77, p. 5-6; Bryson’s Ex. 55.

On November 3, 1997, three hair slides were sent to LabCorp for DNA testing at the request of Assistant District Attorney Pattye High and analyzed. Gilchrist’s Ex. 3, p. 440, ll. 16-19; City’s Ex. 75, Ex. 76. LabCorp was unable to obtain a sufficient amount of DNA to obtain PCR analysis of the hair. City’s Ex. 76.

On December 30, 1997, the District Court, without conducting an evidentiary hearing, denied Bryson’s application for post-conviction relief, concluding that the DNA evidence would not have changed the verdict of Bryson’s trial because of the overwhelming evidence of guilt. City’s Ex. 77.

Bryson appealed the decision to the OCCA and on February 9,1999, the OCCA entered an order remanding the application to the District Court for an evidentiary hearing.

An evidentiary hearing was held on March 18, 1999 and April 1, 1999. Gilchrist testified at the hearing on March 18th. Bryson’s Ex. 72. She testified that when she did her testing in 1982 and when she testified in court, she determined that the donor of the semen on the robe was type B (Q 1 and Q2) and that the donor of the semen on the vaginal swabs, both the cervix and the post fornix swabs, were a type B. Id. at p. 27, ll. 16-25, p. 28, l. 1. She also confirmed her testimony at trial that the person who committed the offense was a B secretor. Id., p. 31, ll. 3-6. She also testified that she was not able to exclude Bryson as a donor of the hairs. Id. at p. 38, ll. 16-25, p. 39, ll. 1-3. Testimony was also elicited that Ms. Taylor had sex at 6:15 a.m. the morning of the sexual assaults. Ms. Gilchrist testified that if it was not known who the person was with whom she had sex at 6:15 a.m. that the person could not be excluded from the DNA analysis by Wraxall and LabCorp. Id. at p. 37, ll. 9-25, p. 38, ll.1-L

On March 31, 1999, the District Court issued an order denying the application. City’s Ex. 79. The court found the evidence in the case, notwithstanding the DNA evidence, was overwhelming. The court stated:

... Brian Wraxall’s opinion is that Petitioner was not the donor on the semen found on the evidence presented for testing and that if there is no other explanation as to the source of the semen, then this Petitioner should be excluded as the assailant. There is other explanation here, that is, an act of sexual intercourse by the victim on the same morning.

... The evidence presented, coupled •with a scientific explanation of the absence of Petitioner’s semen and the presence of that of another, would have still led the jury at this Petitioner’s trial in 1983 to conclude that Petitioner was guilty as charged.

Id., pp. 11-12.

Bryson appealed again. On August 13, 1999, the OCCA reversed the District Court’s order denying petitioner post-conviction relief. The OCCA stated:

... we do not agree [with the district court’s] finding that there is “other explanation” of “an act of sexual intercourse by the victim on that same morning” as a basis for the denial of post-conviction relief.

.... As Petitioner asserts, “[t]he circumstances from the trial and post-conviction proceedings establish the 6:15 a.m. sex was with her fiancee.” There is nothing in the record to indicate any other sexual partner of the victim. And, DNA testing excludes the victim’s fiancee from being a semen donor.

... we find the DNA evidence does, in fact create a reasonable probability of changing the outcome of this trial. DNA testing by two separate entities conclusively eliminates Petitioner, as well as the victim’s fiancee. The evidence supports Petitioner’s argument that the rapist did ejaculate ...

* * * *

Therefore, finding sufficient evidence of material facts that requires vacation of Petitioner’s conviction in the interest of justice, we find it necessary to REVERSE the order of the District Court denying Petitioner post-conviction relief. Further, the Judgment and Sentence imposed against Petitioner in the District Court of Oklahoma County, Case No. CRF-82-5031, is hereby VACATED and SET ASIDE and Petitioner is hereby GRANTED a NEW TRIAL.

City’s Ex. 80, pp. 5, 6 and 8 (emphasis in original).

Bond for defendant was set at $200,000 and after a writ of habeas corpus to the OCCA, the amount of the bond was reduced to $100,000. On October 15 1999, Bryson was released from incarceration after posting the $100,000 bond. Bryson’s bond was later reduced to $40,000 by agreement of the parties. Macy’s Ex. 22, Macy’s Ex. 25, p. 17.

D. Bryson’s Case Dismissed

On August 27, 1999, United States Senior District Judge Ralph G. Thompson issued a memorandum opinion in Mitchell v. Ward, 150 F.Supp.2d 1194 (W.D.Okla. 1999), rev’d in part, Mitchell v. Gibson, 262 F.3d 1036 (10th Cir.2001), which was critical of Gilchrist’s testimony and conduct. Judge Thompson found Gilchrist’s trial testimony to be “without question, untrue” and to be “at least, misleading.” 150 F.Supp.2d at 1226-1229. In the opinion, Judge Thompson noted that Gilchrist had been criticized in other opinions of the Oklahoma Court of Criminal Appeals for her testimony and conduct, McCarty v. State, 765 P.2d 1215, 1217-19 (Okla.Crim. App.1988); Fox v. State, 779 P.2d 562, 571-72 (Okla.Crim.App.1989); Pierce v. State, 786 P.2d 1255, 1261 (Okla.Crim.App. 1990); Miller v. State, 809 P.2d 1317, 1319-20 (Okla.Crim.App.1991). Id. at 1229, n. 52. As a result of the opinion, Gilchrist’s supervisor, Byron Boshell (“Boshell”), was asked to conduct an investigation on the impact of the court rulings on the forensic laboratory. Bryson’s Ex. 13; Bryson’s Ex. 14, p. 12, ll.1-5.

Laura Schile (“Schile”) and Elaine Taylor, OCPD forensic chemists, were asked by Boshell to conduct an examination of the hairs in Bryson’s case. In their examination, they failed to find similarities between the crime scene hairs and those of Bryson. They made the recommendation that the Bryson hairs be thoroughly inspected by an outside analyst. Bryson’s Ex. 52; Bryson’s Ex. 41.

On August 30, 2000, Fisher inspected the forensic evidence and discovered some was missing. On September 19, 2000, he filed a motion for access to the remaining evidence for DNA testing. The Assistant District Attorney, Pattye High, advised Fisher that she had already told Gilchrist to send out the hair evidence. Gilchrist told Fisher she had not yet sent out the evidence because she had not received the message. On September 20, 2000, Fisher filed a request for an order to prevent DNA testing until a protocol could be established. This request was granted on September 21, 2000. Complaint filed in CIV-04-662-F, pp. 31-33 and City’s Ex. 53, pp. 18-19.

At the request of the FBI, Oklahoma City and the OCPD, Douglas W. Deedrick (“Deedrick”), FBI supervisory special agent, conducted a review of eight cases handled by Gilchrist spanning the period of 1982 to 1991. On April 4, 2001, Deedrick issued a report on his review. One of the cases he reviewed was the Bryson case. Bryson’s Ex. 20. In the report, Deedrick stated:

In this case, Gilchrist identifies a pubic hair like the suspect’s known pubic hairs on the victim’s skirt and three (3) head hairs like the suspect’s known head hairs on/in items from the victim and scene.

The pubic hair had been mailed to LabCorp of America in November, 1997 and a portion of the hair was removed for testing. The remaining portion was examined by SSA Deedrick in the OCPD laboratory. The hair consists of the distal portion of a body hair of undetermined racial origin. This hair does not exhibit the same microscopic characteristics as the known pubic hairs of the suspect or victim.

The questioned head hairs identified with the suspect do not exhibit the same microscopic characteristics as the known head hairs from the suspect. It is noted that the known head hair samples from the victim and suspect are limited.

Bryson’s Ex. 20, p. 5. Although he conducted a review of eight cases, only five of those cases had prepared glass microscope slides that could be reexamined by Deedrick. In regard to these cases, Deedrick stated:

[A]ll five cases reviewed had either errors in identification or interpretation. Hairs that had been associated to suspects and/or victims were either too limited for meaningful comparison purposes or associated incorrectly. The incorrect associations could have been resolved if a confirmation policy existed, where another examiner would independently review the associations.

Id. at 20, p. 1. Deedrick also criticized Gilchrist’s trial testimony in the Bryson case, wherein Gilchrist testified: “I would think it would be impossible not to be able to distinguish hairs from two different individuals if that’s what you’re saying.” Deedrick stated that Gilchrist implies that the hams are “ ‘unique’ to an individual, and misrepresents the science of hair comparisons.” Id. at p. 5.

Prior to Deedrick’s report, Macy was advised by Chief of Police M.T. Berry by letter dated March 23, 2001 that the FBI had found that the hair evidence did not match in the Bryson case. City’s Ex. 83.

On August 21, 2001, an Oklahoma City Departmental Review Board convened to review evidence and facts concerning alleged violations by Gilchrist of Oklahoma City Personnel and Oklahoma City Department policies. The hearing lasted fourteen days consisting of eight days of testimony and six days of Board deliberations. On September 21, 2001, the Board issued a report wherein, it recommended that Gilchrist be terminated. Bryson’s Ex. 19. The Board found in part that Gilchrist engaged in casework analysis that was found to be flawed and improperly documented. Id. at 15-18. This included the Bryson case. The Board could find “little or no evidence that Joyce Gilchrist is able to properly conduct hair analysis.” Id. at p. 17.

On September 25, 2001, Gilchrist was terminated in part because of her work in Bryson’s criminal case. City’s Ex. 84.

In March of 2002, an agreement was reached between Bryson’s counsel and Assistant District Attorney, Richard Wintory, for the DNA testing of the remaining evidence, i.e. hair, bite swabbing, torn fingernail, pot pipe and hair root. The evidence was sent to Wraxall, who tested it in March 2003. In a report dated March 6, 2003, Wraxall determined that “[n]one of the evidence examined shows the presence of any DNA from David Bryson.” City’s Ex. 86, p. 8 (emphasis in original).

On May 16, 2003, Richard Wintory, on behalf of the State of Oklahoma, filed a Motion to Dismiss and Recall Warrant. The motion stated in part:

“[E]vidence developed by and through the advanced technology of DNA testing, which was not available to investigating agencies at the time of charging the defendant and through his first criminal trial and subsequent state appeals, establishes conclusively that Bryson is excluded as the sperm contributor and further DNA testing of all biological evidence collected in this case has failed to generate results that either confirm or deny Bryson is the perpetrator of the crimes charged herein. Therefore, the State of Oklahoma moves for dismissal of the charges against David Johns Bryson and recall of the arrest warrant based on evidence developed through DNA technology which raises a doubt of the defendant’s guilt which is reasonable.”

City’s Ex. 87, pp. 6-7.

On June 24, 2003, the District Court entered an order sustaining the motion and ordered the case “dismissed.” In the order, the court stated that it had found no authority to dismiss the case with prejudice as requested by defendant. The court ordered the arrest warrant cancelled, withdrawn and recalled and ordered defendant’s bond exonerated.

E. Gilchrist’s January 23, 1983 Report Challenged

Wraxall concludes that the January 23, 1983 report by Gilchrist is incomplete and misleading. Bryson’s Ex. 24. Initially, Wraxall found Katherine Kuritz to be a non secretor rather than a secretor as found by Gilchrist. He also found:

On 10-18-02 Ms. Gilchrist conducted the absorption inhibition test on [the vaginal aspirate, swabs and rectal swab] and found that no secreted B antigen, consistent with Mr. Bryson, was found. The notes indicate, however, that the positive control was not working correctly. The test was repeated the next day and again the positive control was not working correctly. These tests were not repeated even though a A/I test was conducted on 1-25-83 with correct positive controls. Therefore, based on the results, no conclusion should be drawn regarding the ABO & secretor status of the semen donor. However, assuming that the results on the evidence are correct, several inconsistencies in Ms. Gilchrist’s interpretation are apparent:

1)A review of Ms. Gilchrist’s notes regarding the P30 assay reveals that there was a high level of semen on the Cervical Swab sufficient for a B blood type to have been detected, if it existed. This strongly indicates that David Bryson was excluded as being a contributor of the semen found in the vagina of Theresa Taylor.

2) While there is predominantly H antigen on the Cervical Swab, consistent with the victim, there are indications of A antigen on the Vaginal Aspirate and Rectal Swab. The presence of A antigen is inconsistent with either Theresa Taylor or David Bryson. In light of the presence of A antigen on the Pipe this should have been explored further.

3) The absorption elution (A/E) test is more sensitive and is used for detecting small amounts of the ABO blood group substances which are found in non-secretors and also in dilute stains from secretors. The absorption elution test is prone to false positive results due to “wash reactions.” Ms. Gilchrist’s notes show only “ + ” and

scoring instead of the customary 1 to 4 scoring of agglutination intensity which she used in the absorption inhibition test. Her absorption elution test results show weak positive results for the B antigen on 3 of the 4 swabs and a “REPEAT” note appears on the bottom of the page of her notes. It does not appear that a repeat test was conducted. Even if the A/E test was correct the combined results of the P30, A/I and A/E on the Cervical Swab would indicate a B non-secretor which would exclude Mr. Bryson.

There are 2 semen stains (labeled Q1 and Q2) on the Robe that are the result of vaginal discharge. The P30 assay on Q1 showed the same high level of semen as found on the Cervical Swab and again gave test results by A/I of only H antigen but no B antigen. Stain Q2 however contained a lower level of semen by P30 assay but by A-l gave test results of clear B and H antigens. This is strong evidence that there are probably 2 semen donors on the Robe. Again if Katherine Kuritz, the owner of the robe, is in fact a non-secretor, then she could not be a contributor to the Q1 semen stain. That would mean that stain Q1 came from Ms. Taylor and based on the P30 and A/I results, Mr. Bryson is excluded. The B antigen obtained by the A/E could have come from the background of the robe and therefore from Thomas Kuritz. Ms. Gilchrist failed to run a substrate or background control from the robe as she was taught in my laboratory at Serological Research Institute in California.

Wraxall then concluded:

Ms. Gilchrist’s conclusions as stated in her report of 1 — 28—[8]3 are badly written at best but in fact are totally misleading as follows:

1) The results from the vaginal aspirate, vaginal and rectal swabs together with both stains from the robe are combined by Ms. Gilchrist to conclude that the semen donor on all items is a B Secretor “and the semen could have originated from Bryson.” Of all the items and stains only one could be from a B Secretor (i.e. Q2 on the Robe) and that semen could have originated from Thomas Kuritz. That fact does not get reported until 2 paragraphs later and then in a discussion about PGM.

2) No mention is made of the different A/I results between the 2 stains on the robe. They are lumped together as “semen stains.”

3) Statements are made on 2 occasions in the conclusions that all four individuals (ie Ms. Taylor, Mr. Bryson and Mr. & Mrs. Kuritz) are all the same PGM type (2-1) and “therefore no conclusion as to the PGM type of the semen donor can be drawn.” This is wrong for 3 reasons:

a) The PGM types are all type 1, not 2-1, as the photograph of the results clearly shows.

b) The conclusion gives the impression that a PGM result was obtained when it was not, and

c) If a PGM test is completed on the evidence items and a type other than that of the four individuals is obtained, then Mr. Bryson would be excluded as the semen donor. It is a totally false premise that in sexual assault cases, conducting PGM tests where the victim and suspect are the same type will not give usable results. This presumes that the suspect is the semen donor.

In addition, Wraxall concludes that Gilchrist “should have seen that Mr. Bryson was excluded as the semen donor on the Cervical Swab and on the Q1 stain on the Robe.” Bryson’s Ex. 24.

Laura Schile concludes that “[n]one of the purported pubic hairs from the crime scene and/or from the victim and her clothing have the prominent characteristics of David Bryson’s pubic hair.” Bryson’s Ex. 52. Schile also concludes:

... Joyce Gilchrist, with even minimal competence, would have been able to determine in 1983 that David Bryson could be excluded as the source of the hairs obtained from the crime scene and from the victim.

... It would be obvious to any competent hair analyst — and for that matter to most or all lay persons — that David Bryson’s pubic hairs are markedly different from the hairs collected in Bryson’s case and identified as pubic hair from the crime scene and/or the victim.

Id.

F. Gilchrist’s Training and Supervision

In May, 1980, Gilchrist received a Bachelor of Science degree from Central State University in Edmond, Oklahoma. Gilchrist’s major was forensic science. City’s Ex. 1. Gilchrist’s official transcript shows a checkered academic career (which commenced in 1966) and a dismal academic record. Id.

From February through May of 1980, Gilchrist interned in the Oklahoma City Police Department forensic laboratory as a degree requirement. Gilchrist’s Ex. 1, p. 6, ll.1-25, p. 7, 1-2, p. 8, ll. 13-17; City’s Ex. 2. Gilchrist worked with and received training from Janice Davis. Gilchrist’s Ex. 1, p. 9, ll. 15-25, p. 10, ll. 1-2. On July 1, 1980, Gilchrist was employed by the City of Oklahoma City as a forensic chemist and assigned to the forensic laboratory. City’s Ex. 2. Gilchrist was assigned her first case on or about August 4, 1980. City’s Notice to the Court and Plaintiff (doc. no. 142).

From August 4 through August 22 of 1980, Gilchrist attended the Blood Stain Analysis System Course given by the Serological Research Institute (“SERI”), in Emeryville, California. City’s Ex. 5. From January 11 through January 23, 1981, Gilchrist attended the Basic Forensic Serology School given by the Federal Bureau of Investigation (“FBI”) at the FBI Academy in Quantico, Virginia. She attended the Introduction to Hairs and Fibers School at the FBI Academy from January 25, 1981 to February 6, 1981. During this course, Gilchrist was provided a 131-page manual entitled Technical and Legal Aspects of Forensic Serology: A Laboratory Manual. At the end of February 1981, Gilchrist returned to SERI to attend a Semen Analysis Course. This course lasted four days. Id.

In the 1980’s, many, if not most forensic laboratories, had training programs for serology and hair/fiber examiners that were typically one to two years in duration. Bryson’s Ex. 1, p. 18. The FBI hair course is an introductory course to allow one to proceed with on-the-job training to become fully qualified. This course does not fully qualify a scientist to work independently in hair analysis. Bryson’s Ex. 57, p. 7.

After Gilchrist was terminated, her office was inventoried. A pamphlet, a booklet and a training outline were found in the office which advised witnesses to tell the truth when providing courtroom testimony. City’s Exs. 13, 14 and 15. A January 1977 manual by the FBI entitled Microscopy of Hair was also found. City’s Ex. 12.

The OCPD forensic laboratory was commanded by commissioned police officers. Gilchrist’s Ex. 1, p. 32, ll. 21-24. These police officers did not have a scientific background or experience in forensic science. Id. at p. 33, 6-16. None of Gilchrist’s supervisors were qualified to know whether she conducted her tests correctly. Id. at p. 34, ll.10-15.

Richard DeLaughter (“DeLaughter”), a captain with the OCPD, supervised the forensic laboratory during 1982 and 1983, the period of the Bryson case. Bryson’s Ex. 5, p. 9, ll. 3-14, p. 12, ll. 2-11, p. 13, ll. 1-2. Mr. DeLaughter “had a couple of people in the lab that [he] depended on quite a bit for ... keeping [him] informed on what was going on in the lab or in the system.” Those individuals were Janice Davis and Janie Bates. “[T]hey kind of ran things.” Id. at p. 9, ll. 15-24. He relied upon them to “develop procedures and policies, to do whatever is necessary to operate a forensic laboratory.” Id. at p. 10. “They created policy that created peer review. So that cases could be crosschecked when done.” Id. at p. 11, ll. 21-22. DeLaughter, however, did not ever view a peer review. He relied upon Janice Davis and Janie Bates’ word that peer review was being conducted. Id. at p. 17, 11. 9-21. After Gilchrist’s training, none of her cases were reviewed by Janice Davis or anyone else. Gilchrist’s Ex. 1, p. 28, ll. 16-18.

DeLaughter gave annual performance evaluations for Gilchrist in 1982 and 1983. Bryson’s Ex. 5, p. 24, ll. 15-25; p. 25. ll. 16; p. 27, ll.16-19, p. 39, ll. 8-11. Although DeLaughter rated her “fully competent” on most skills evaluated, he did not independently verify or analyze the skills that were evaluated. Id. at p. 30, 1. 25; p. 31, ll. 1-3; p. 32, ll. 8-11; p. 40, ll. 16-19.

DeLaughter did not have a policy of attending trials to hear the testimony of the forensic chemists to make sure they were testifying truthfully or credibly. Bryson’s Ex. 5, p. 23, ll. 11-15. He could not recall ever sitting through the testimony of Gilchrist. Id. at ll.16-18.

There was no lab policy and procedure manual for the forensic laboratory in 1982. Ex. 70, p. 25, ll.13-23.

G. Additional Involvement of Robert Macy

Macy started his career as District Attorney in June 1980. Bryson’s Ex. 44, p. 6, ll.13-15; p. 34,1. 23. It ended in March 2001. Id. at ll.16-18.

Prior to 1986, Macy did not have a policy about informing the defense of forensic evidence that could be useful to the defense. Bryson’s Ex. 44, p. 46, ll. 22-25; p. 47, ll. 3-4. The formal training provided to Assistant District Attorneys for Oklahoma County did not include the fair and proper use of forensic evidence. Bryson’s Ex. 50, p. 9, ll. 14-17; p. ll, 11. 19-25. There was no in-house training regarding the use of forensic evidence. Bryson’s Ex. 50, p. 14, ll. 12-25, p. 15, ll. 16. The training should have included the use of and evaluation of forensic evidence and the use and preparation of expert witnesses. Bryson’s Ex. 42.

The prosecutors in Macy’s office had no formal, established standards regarding the use and application of their prosecutorial powers, including the requirement that they provide, without request, all material which might tend to exonerate a defendant or lead to a lesser punishment. Bryson’s Ex. 42.

From mid-1970 until mid-1980’s, Janie Bates worked for the OCPD forensic laboratory and during much of that time was a senior forensic chemist. According to Ms. Bates, who had duties regarding the budget, the District Attorney’s office funded a position in the OCPD forensic laboratory. To the best of her recollection, that position was filled by Gilchrist. Ms. Bates is not sure of the exact dates the position was funded but it would have been during the 1980’s. Bryson’s Ex. 88.

During his deposition, Macy testified:

Q. (By Mr. Barrett [plaintiffs counsel] ) Mr. Macy, there’s been testimony in this case that your office paid for a part of the operation of the Oklahoma City Police Department forensic laboratory. Assuming that to be true, do you believe that would carry with it an obligation to make sure that money would be well spent?

A. I recall seeing somewhere since this lawsuit has been involved some kind of written agreement between the Oklahoma City Police Department and I assume it was my office, but—

Q. You would not want to make that expenditure unless you considered that money to be well spent, would you?

A. That’s right.

Q. I certainly don’t want to stop you from making an answer, but, Mr. Macy, do you believe that spending that money on the laboratory would carry with it an obligation to make sure that that money was well spent?

* * H*

A. There would be a responsibility to see to it the money was well spent. Q. And to assure the money was well spent, did you undertake any investigations of the quality of their scientific work apart from what you observed in the courtrooms?

A. I don’t know of any independent review of the work.

Bryson’s Ex. 44, Volume IV, p. 228, 1-25, p. 229, ll.1-10.

On January 17, 1987, a forensic chemist, John Wilson, filed a complaint with a forensic association, Southwestern Association of Forensic Scientists, of which he and Gilchrist were members. City’s Ex. 43. This complaint involved Gilchrist’s actions and testimony in several cases. He had initially become aware of “a serious situation existing in the forensic community” in 1985. Id. On November 9, 1987, Gilchrist was sent the association’s findings, which stated: “The Board of Directors of this Association has concluded that while a violation of the letter of our Code of Ethics has occurred, this is not a violation of the spirit of our Code, and was made without malice or intent. We therefore do not recommend expulsion of Ms. Gilchrist; neither do we censure nor discipline her.” City’s Ex. 44. Walt Wilhelm, OCPD Deputy Chief, advised Police Chief, Robert Wilder, about the decision and they consulted with Macy. Bryson’s Ex. 75, p. 20, ll. 18-20. Macy convinced Wilhelm that Gilchrist was acting within professional boundaries. Id. at p. 24, 5-7. Macy had a lot of sway regarding Gilchrist by virtue of his position. Id. at p. 24, ll. 23-25. Macy publicly defended Gilchrist concerning the criticism. He said that she was “ ‘one (chemist) who is willing to give an opinion (about test results).’ ” He also said that “[part of] the problem I’ve had with forensic experts is that they’re too cautious.” Bryson’s Ex. 84, second Tulsa Tribune article.

After the OCCA granted Bryson post-conviction relief, Macy stated in a television interview that he intended to try Bryson and convict him on the same evidence. City’s Ex. 94.

IV. Discussion

A. Statute of Limitations

In their papers, the City and Macy contend that plaintiffs § 1983 claims for malicious prosecution and bad faith denial of post-conviction access to potentially exculpatory evidence are time-barred. The statute of limitations for a § 1983 claim is the same as the statute of limitations for a personal injury action in the state in which the claim arose. Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). In Oklahoma, the limitations period for a personal injury action is two years. 12 O.S. § 95(A)(3). Although state law provides the statute of limitations to be applied, federal law governs when the limitations period begins to run. Wallace, 549 U.S. at 388, 127 S.Ct. 1091. Accrual of a § 1983 claim occurs when the plaintiff has a complete and present cause of action, that is, where the plaintiff can file and obtain relief. Id. at 389, 127 S.Ct. 1091.

The parties also challenged the timeliness of the § 1983 claims at the motion to dismiss stage, which the court rejected. Citing Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the court concluded that the claims did not accrue until the charges against Bryson were dismissed on June 24, 2003, because success on both claims, as pled by plaintiff, would have necessarily implied that his conviction was wrongful. The original action was filed within the two-year limitations period. Although the original action was dismissed without prejudice and the present action was not filed until after the two-year statute of limitations period had expired, the court concluded that by operation of Oklahoma savings statute, 12 O.S. 2001 § 100, plaintiffs claims were timely filed.

In the present motions, the City and Macy assert that the limitations period for the malicious prosecution claim commenced on August 13, 1999 when Bryson’s conviction was reversed. They contend that, as of August 13, 1999, there was no outstanding criminal judgment and that Heck consequently would not apply. They maintain that the Tenth Circuit, in Smith v. Gonzales, 222 F.3d 1220 (10th Cir.2000), concluded that the statute of limitations on a plaintiffs “wrongful conviction” claim began when the plaintiffs conviction was reversed despite the existence of renewed prosecution on those charges. Furthermore, the City argues that although charges were still pending against Bryson after August 13, 1999, the Supreme Court concluded in Wallace v. Kato that Heck would not apply to a § 1983 claim brought before a conviction, i.e., to pending charges.

The court, upon further consideration, again determines that Bryson’s malicious prosecution claim is timely. The court, however, reaches this determination for a different reason. As stated by the Supreme Court in Wallace v. Kato, accrual of a § 1983 claim occurs when the plaintiff has a complete and present action. In other words, the claim accrues when the plaintiff can file and obtain relief. Id. at 389, 127 S.Ct. 1091. According to the Tenth Circuit, “a due process claim for malicious prosecution arises only once ‘the original action,’ whatever form it has taken, has ‘been terminated in favor of plaintiff.’ ” Mondragon v. Thompson, 519 F.3d 1078, 1083 (10th Cir.2008). Therefore, “[b]ecause the statute of limitations does not start running before the elements of a claim are satisfied, the statute of limitations for [the due process claim for malicious prosecution] cannot start until the plaintiff has achieved a favorable result in the original action.” Id.

In the case at bar, the original action did not terminate in favor of plaintiff until June 24, 2003. Until that date, plaintiff could not sue for malicious prosecution under § 1983 and obtain relief. Although the original conviction was vacated and set aside on August 13, 1999, a new trial was granted and the original action continued. No new charging paper was filed. All pleadings were filed in the original action, CRF82-5031. Indeed, the dismissal order was filed in CRF-82-5031. The court therefore concludes that plaintiffs § 1983 malicious prosecution claim did not accrue until the original action was terminated in favor of plaintiff with the dismissal of the action on June 24, 2003.

Because the court concludes that the § 1983 malicious prosecution claim accrued on June 24, 2003, the court concludes that the claim is timely under the applicable two-year statute of limitations and the savings provision.

The court now turns to the challenge as to the timeliness of plaintiffs claim of bad faith denial of post-conviction access to potentially exculpatory evidence. In its papers, the City has proposed various accrual dates for the claim: (1) 1988, when Gilchrist advised' Pearson that the forensic evidence was destroyed; (2) 1990, when the evidence was found, examined and reported by Cannon to be in existence; and (3) 1997, when the evidence was subjected to DNA testing. The City contends that with any of these proposed dates, the applicable two-year statute of limitations has long since expired. If the accrual date was deferred under Heck, the City also proposes that the accrual date commenced on August 13, 1999, when the conviction was vacated and set aside by OCCA. At that point, according to the City, there was no conviction to be impugned by a § 1983 action and Heck does not apply to pending charges as concluded by the Supreme Court in Wallace.

In his response, Bryson does not address the timeliness of the plaintiffs claim of bad faith denial of post-conviction access to potentially exculpatory evidence. He addresses only the timeliness of the malicious prosecution claim. The court, in its discretion, deems the statute of limitations issue confessed pursuant to LCvR 7.1(g). Although the issue is confessed, the court has again considered the timeliness of the claim. The court, upon further consideration, concludes that the claim is time-barred. Even if Heck deferred the accrual of the claim while Bryson’s conviction was outstanding, the court concludes that upon vacation of the conviction, Bryson could proceed with his § 1983 claim. At that point, Bryson not only had access to the evidence previously denied but also was able to use that evidence in the retrial of the charges against him. A § 1983 claim by Bryson seeking damages for the bad faith denial of post-conviction access to potentially exculpatory evidence would not have necessarily implied the invalidity of any conviction, past or anticipated. The court therefore concludes that the limitations period applicable to plaintiffs claim of bad faith denial of post-conviction access to potentially exculpatory evidence would have expired in 2001. Because plaintiffs original action was not filed until 2004, the court concludes that the claim is time-barred.

Although the City and Macy challenged the timeliness of plaintiffs claim of bad faith denial of post-conviction access to potentially exculpatory evidence, Gilchrist has not. At the motion to dismiss stage, Gilchrist also failed to challenge the timeliness of the claim. See, doc. no. 47, p. 15, n. 4. Gilchrist’s answer does not affirmatively set forth a statute of limitations defense. See, doc. no. 55, pp. 10-11. The court therefore concludes that this claim remains viable as to Gilchrist. Gilchrist has challenged the merits of the claim in her summary judgment papers. Those matters will be addressed below.

B. Claim Against Gilchrist for Malicious Prosecution Under § 1983

Gilchrist contends that she is entitled to summary judgment on plaintiffs § 1983 claim for malicious prosecution because she is shielded from liability under the doctrines of absolute and qualified immunity. Gilchrist contends that she is absolutely immune from liability for her trial testimony. In addition, she asserts that she is entitled to qualified immunity for her non-testimonial conduct because plaintiff cannot show a constitutional violation. According to Gilchrist, plaintiff cannot establish an absence of probable cause for his continued confinement or that she acted with malice, both essential elements of a malicious prosecution claim under § 1983.

Initially, the court need not address Gilchrist’s absolute immunity argument. Plaintiff, in response, represents that he does not seek damages against Gilchrist for her trial testimony. He only seeks damages for her conduct out of court. Plaintiff may seek admission of the trial testimony to illuminate her out-of-court activities, but that it is an issue to be addressed in a motion in limine or at trial.

When a defendant asserts qualified immunity at the summary judgment stage, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established. Martinez v. Beggs, 563 F.3d 1082, 1088, 2009 WL 1058058 *4 (10th Cir.2009). The court has the discretion to determine “ ‘which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.’ ” Id. (quoting Pearson v. Callahan, — U.S.-, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009)). In this case, because the court has previously determined at the motion to dismiss stage that the “unconstitutionality of Gilchrist’s alleged actions was apparent in 1982,” see, doc. no. 47, p. 8, and the court’s view has not changed, the court need not again address whether the constitutional right at issue was clearly established. The court therefore addresses whether plaintiff has presented facts sufficient to show that a constitutional violation occurred.

Gilchrist is correct that an essential element of the constitutional tort of malicious prosecution under § 1983 is the absence of probable cause to support plaintiffs prosecution or continued confinement. Pierce v. Gilchrist, 359 F.3d 1279, 1294 (10th Cir.2004). The mere fact that DNA evidence conclusively exonerated plaintiff is insufficient to support the malicious prosecution claim. Id. Plaintiff bears the “heavy burden of showing that Ms. Gilchrist’s falsification of inculpatory evidence or suppression of exculpatory evidence was necessary to a finding of probable cause.” Id. at 1295.

In determining the existence of probable cause, the false information proffered must be set aside and the exculpatory evidence omitted must be included. Pierce, 359 F.3d at 1293, 1295. Applying these principles, the court concludes that the evidence of exculpatory facts presented by plaintiff vitiates probable cause for the prosecution or continued confinement. Although the victim and a witness identified Bryson and Bryson had an injury to his penis, the court, as a matter of law, finds that the evidence would not be sufficient to su