Full opinion text
MEMORANDUM OPINION AND ORDER ALBRITTON, District Judge. This cause is now before the court on the Motions for Summary Judgment filed by Defendants Tom Tate (“Tate”), Larry Ikner (“Ikner”), Simon Benson (“Benson”), Mike Barnett (“Barnett”), Morris Thigpen (“Thigpen”), Tom Allen (“Allen”), Marian Shinbaum (“Shinbaum”), W.E. Johnson (“Johnson”), and Charlie Jones (“Jones”). For the reasons stated below, the court finds that the Motions for Summary Judgment are due to be GRANTED in part and DENIED in part. I. STATEMENT OF THE CASE Walter McMillian (“McMillian”) filed this suit in this court on June 4, 1993, against: Tate, Sheriff of Monroe County; Ikner, an investigator for the Monroe County District Attorney; Benson, an investigator for the Alabama Bureau of Investigation (“ABI”); Barnett, an investigator for the Alabama Department of Public Safety; Thigpen, Commissioner of the Alabama Department of Corrections; Allen, the Associate Commissioner for Program Services of the Alabama Department of Corrections; Shinbaum, Director of Classification for the Alabama Department of Corrections; Johnson, Warden of Holman Prison (and later the Institutional Coordinator for the Alabama Department of Corrections); Jones, Warden of Holman Prison (after Defendant Johnson’s tenure in such office); and Monroe County. The complaint alleges that McMillian was unlawfully arrested, prosecuted, convicted, imprisoned, and sentenced to death for a murder he did not commit. McMillian seeks damages for alleged violations of his rights under the United States Constitution pursuant to 42 U.S.C. § 1983. McMillian also seeks relief for violations of his rights under the Alabama Constitution. Finally, McMillian makes claims for relief under Alabama tort law. In 1993, Tate, Ikner, Benson, Barnett, and Monroe County filed Motions to Dismiss. On February 18, 1994, the court issued an order dismissing Monroe County from the case and dismissing all official capacity claims that had been brought against the individual Defendants. In the same order, the court dismissed many of the individual capacity claims against the individual Defendants who had filed motions to dismiss. The DISCUSSION section of this opinion will specify precisely which claims were dismissed on the Motions to Dismiss. Since the court issued its decision on the Motions to Dismiss, every Defendant remaining in the case has filed (either separately or jointly with other Defendants) a Motion for Summary Judgment. The court now decides the Motions for Summary Judgment. II. SUMMARY OF McMILLIAN’S ALLEGATIONS The following statement of facts is a summary of the allegations made by McMillian in his Complaint. McMillian’s allegations do not, of course, represent the factual findings of the court. These allegations are included in this opinion simply to provide the background necessary to place into context the matters in dispute. The court will analyze the evidence and resolve all matters in dispute which are capable of resolution by summary judgment in the DISCUSSION section of this opinion. On November 1, 1986, in the middle of the morning, a woman named Ronda Morrison was murdered in Monroeville, Alabama, inside a business establishment known as Jackson Cleaners. In June of 1987, Plaintiff Walter McMillian, a.k.a. Johnny D. McMillian, (“McMillian”) was arrested and eventually charged with Ronda Morrison’s murder. In August of 1988, McMillian was tried for the murder of Ronda Morrison. A jury convicted McMillian. In September of 1988, he was sentenced to death. Following his arrest in June of 1987, McMillian was held in the Monroe County jail. On July 29, 1987, McMillian was transferred to the custody of the Alabama Department of Corrections. As a result of the actions of Tate, Ikner, Benson, and the D.O.C. Defendants, McMillian was incarcerated on Death Row in Holman Prison. These Defendants put McMillian on Death Row as a pretrial detainee for the purpose of punishing and intimidating him. McMillian remained on Death Row until his trial approximately one year later. Tate, Ikner, and Benson were primarily responsible for the investigation of Ronda Morrison’s murder. McMillian would not have been prosecuted or convicted but for the fact that these Defendants suppressed a great deal of exculpatory evidence. Tate, Ikner, and Benson suppressed evidence related to the testimony of Ralph Myers (“Myers”) who was the key witness against McMillian at his trial for the Morrison murder. Myers testified falsely that he drove McMillian in McMillian’s truck to Jackson Cleaners on the morning of the murder, and that McMillian went inside the Cleaners while Myers waited in the parking lot. Myers further testified that he heard gunshots and went inside the Cleaners. According to his testimony, when Myers went inside the cleaners he saw Ronda Morrison dead and McMillian with a gun. Additionally, Tate, Ikner and Benson suppressed evidence indicating that Myers lied in his testimony. For example, on June 3, 1987, Myers was asked by Tate, Ikner, and Benson in a tape-recorded interview if McMillian had committed or ordered the murder of Ronda Morrison. Myers said that McMillian had nothing to do with the murder and offered to take a polygraph examination regarding this matter. From late May, 1987, until at least June 9, 1987, Myers repeatedly told Defendants during interrogations that McMillian was not involved in the murder. Prior to McMillian’s trial, Myers was sent to the Taylor Hardin medical facility for a psychiatric examination. While there, Myers told four hospital staff doctors that he was being pressured and threatened by law enforcement officials to frame an innocent man. Myers was referring to McMillian. On August 27,1987, a man named Isaac Dailey told Benson, in a tape-recorded statement, that Myers had said he was going to frame McMillian for still another murder. All of this exculpatory evidence was known to Tate, Ikner, and Benson. However, McMillian could not use the evidence to defend himself in his criminal trial because these Defendants withheld and suppressed the evidence. Furthermore, Tate, Ikner, and Benson pressured and threatened Myers in order to persuade him to give evidence implicating McMillian in the murder, evidence these Defendants knew, or should have known, was false. Among other things, these Defendants threatened Myers by telling him he would receive the electric chair if he did not implicate McMillian, but Myers would live if he did implicate McMillian. Also, these Defendants intimidated Myers by having him incarcerated on Death Row in 1987, even though Myers had not been convicted of capital murder or sentenced to death. All of this pressure and intimidation eventually caused Myers to implicate McMillian and to testify against McMillian. The only other witnesses at the trial who gave testimony indicating that McMillian committed the murder were Bill Hooks, Jr. (“Hooks”) and Joe Hightower (“Hightower”). Hooks testified falsely that he drove by Jackson Cleaners the morning of the murder and saw Myers and McMillian get into McMillian’s truck and drive away. Hightower testified falsely that he saw McMillian’s truck outside Jackson Cleaners on the morning of the murder. Tate, Ikner, and Benson withheld and suppressed evidence relating to both Hooks and Hightower that was exculpatory for McMillian. For example, as a result of his willingness to testify falsely against McMillian, pending criminal charges against Hooks were dropped, other pending charges against him were never prosecuted, he was relieved from paying several fines he owed as a result of prior convictions, he received money from Tate, and he was promised an additional reward of $5,000.00 which he received after the trial. In addition to Tate, Ikner and Benson knew of these arrangements and helped bring them about. As a result of his willingness to testify falsely against McMillian, Hightower was promised a reward of $2,000.00 or more, which he received after the trial. Tate, Ikner, and Benson knew of this arrangement and were involved in bringing it about. Both Hooks and Hightower, when testifying at trial about the truck they saw outside Jackson Cleaners, said the truck was a “low-rider” and low “to the ground.” However, Tate, Ikner, and Benson learned well in advance of the trial that McMillian’s truck had not been converted into a “low-rider” until several months after the murder. Tate, Ikner, and Benson procured Hooks’ false testimony in part by having Hooks look at McMillian’s truck at the Monroe County Jail after McMillian had been arrested so Hooks could later describe this truck as the one he saw outside Jackson Cleaners. Tate, Ikner, and Benson pressured, threatened, and intimidated Hooks and Hightower, as well as various other people, in an effort to persuade these people to give false evidence implicating McMillian in the murder. These Defendants also threatened potential witnesses in an effort to prevent them from coming forward with truthful testimony that would tend to exonerate McMillian. In addition to the foregoing, Tate, Ikner, Benson, and Barnett withheld and suppressed evidence exculpatory to McMillian that was obtained from a man named Miles Jackson. Jackson gave law enforcement officers a statement that was summarized in an Alabama Department of Public Safety report prepared by Barnett. In his statement, Jackson gave information regarding the timing of the murder that undermined the prosecution’s theory of how the murder occurred. This evidence was not disclosed to McMillian. Defendants suppressed additional exculpatory evidence. Barnett saw McMillian at his home around the time the murder was committed. Thus, Barnett could have testified to support McMillian’s alibi defense. However, Barnett suppressed this evidence. Tate, Ikner, and Benson also knew of this evidence, yet they suppressed it. More evidence was suppressed. Tate, Ikner, and Benson suppressed statements from various individuals who gave descriptions of potential suspects near the scene of the crime that did not match the description of McMillian. Some individuals also gave descriptions of vehicles near the crime scene that did not match the description of McMillian’s truck and contradicted the inculpatory testimony of Hooks and Hightower. The actual arrest of McMillian occurred in June of 1987. Tate, Ikner, and Benson instigated and planned the arrest of McMillian, and Tate carried out the arrest on June 7. The June 7 arrest was based upon an accusation that McMillian sodomized Myers in Conecuh County, Alabama. McMillian did not commit this crime. Defendants pressured Myers into concocting this phony charge so they could obtain custody of McMillian in order to construct evidence against him on the murder charge. However, these Defendants knew, or should have known, that the sodomy charge was false and that there was no factual basis or no probable cause for believing that McMillian committed such a crime. Tate, Ikner, and Benson caused an application for a Conecuh County arrest warrant for sodomy, and an affidavit in support of that application, to be submitted when they knew, or should have known, that the affidavit and application contained false information and were insufficient to establish probable cause and to support an arrest warrant. Moreover, these Defendants deliberately omitted crucial exculpatory information from the arrest warrant application and affidavit. These Defendants timed the arrest of MeMillian so they could pick him up while he was driving his truck, impound the truck, and take it to the Monroe County jail where Hooks looked at the truck so he could later describe it as the truck he saw outside Jackson Cleaners on the morning of the murder. Tate, Ikner, and Benson also instigated and carried out the subsequent arrest and prosecution of MeMillian for the murder of Ronda Morrison. This subsequent arrest occurred on June 8, 1987, while MeMillian was already in the Monroe County jail as a result of the arrest the previous day. These Defendants knew, or should have known, there was no probable cause for believing that McMillian committed the murder. These Defendants caused an application and an affidavit to be submitted for a Monroe County arrest warrant for the murder when they knew, or should have known, the application and affidavit contained false information and were insufficient to establish probable cause and to support an arrest warrant. Moreover, these Defendants omitted crucial exculpatory information from the application and affidavit that would have demonstrated a lack of probable cause. Some time after McMillian’s arrest on charges of murder, Tate testified before a grand jury in Monroe County in an effort to obtain an indictment against MeMillian for the Morrison murder. During that appearance, Tate gave testimony that he knew or should have known was false, and he deliberately omitted crucial facts that would have been exculpatory for MeMillian and would have prevented the indictment from being issued. As a result of Tate’s testimony, an indictment was issued against MeMillian. Racial discrimination was one of the motives of Tate, who is white, in instigating and effectuating the arrest and prosecution of MeMillian, who is African-American. While MeMillian was at the Monroe County jail following his June 7, 1987 arrest, Tate made racist remarks to him and used racial epithets. Tate, using racial epithets, told MeMillian he would like to take MeMillian out back and lynch him just like a African-American man who recently had been lynched by hanging in Mobile, Alabama. The prosecution of MeMillian for murder was instigated, effectuated, and maintained by Tate, Ikner, and Benson without probable cause, using evidence and testimony they knew, or should have known was false, and suppressing and withholding important exculpatory evidence. Even after MeMillian had been convicted and sentenced to death, Tate, Ikner, and Benson continued to threaten and intimidate potential witnesses in an effort to prevent them from giving exculpatory evidence during post-trial proceedings. In November of 1988, a man named Darnell Houston (“Houston”) gave testimony in a hearing on a motion for new trial that contradicted the testimony of Hooks at McMillian’s trial. According to Houston, Hooks could not have seen McMillian’s truck outside Jackson Cleaners on the morning of the murder because Hooks was at work all day. In an effort to punish Houston for his testimony, and to discourage other exculpatory witnesses from coming forward, Tate engineered a prosecution and indictment of Houston for perjury. These perjury charges were later dismissed. In the years after the trial, a great deal of exculpatory evidence came to light. Myers recanted his testimony implicating McMillian. Hooks and Hightower also recanted their inculpatory testimony. Later, McMillian discovered the exculpatory evidence that had been suppressed. In February of 1993, the Alabama Court of Criminal Appeals reversed McMillian’s conviction because of the failure to disclose exculpatory evidence. In March of 1993, the State of Alabama dismissed the charges against MeMillian, and he was set free after nearly six years on Death Row for a crime he did not commit. A new investigation was commenced to determine the identity of the person who committed the murder for which MeMillian was wrongly arrested and convicted. These are the factual allegations which form the basis of McMillian’s claims. The court has examined all of the affidavits, depositions, transcripts, and other evidentiary submissions in support of and in opposition to the Motions for Summary Judgment. The relevant facts supported by these submissions will be discussed in the context of each count. III. SUMMARY JUDGMENT STANDARD Under Fed.R.Civ.P. 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. at 2553. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23, 106 S.Ct. at 2552-53. Once the moving party has met its burden, Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324, 106 S.Ct. at 2553. To avoid summary judgment, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). On the other hand, a court ruling on a motion for summary judgment must believe the evidence of the nonmovant and must draw all justifiable inferences from the evidence in the non-moving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See, Fed.R.Civ.P. 56(c). IV. DISCUSSION McMillian’s Amended Complaint (“Complaint”) contains twenty-seven counts. The first ten counts are brought pursuant to 42 U.S.C. § 1983, alleging deprivations of rights guaranteed by the United States Constitution. The remaining counts are brought pursuant to the Alabama Constitution and the statutory and common law of the State of Alabama. The court will address the counts in order. When the court refers generally to “Defendants” in the DISCUSSION section of this opinion, it is referring to the Defendants named in the count being discussed. A. McMILLIAN’S CLAIMS UNDER 42 U.S.C. § 1983 1. General Requirements for Claims under Section 1983 McMillian seeks relief pursuant to 42 U.S.C. § 1983. Section 1983 provides a private cause of action for persons whose rights under the federal constitution or laws have been violated under color of state law. See 42 U.S.C. § 1983. In order to establish a claim under Section 1983, McMillian must prove that the Defendants acted under the cloak of state authority when they took the alleged actions against McMillian and that the actions deprived McMillian of a right or rights secured by the Constitution or by federal law. Thus, Section 1983 is not a source of rights, rather it is a means of vindicating federal rights. Albright v. Oliver, — U.S.-,-, 114 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994). When a court begins to analyze a Section 1983 claim, it must first “identify the specific constitutional right allegedly infringed.” Id. Whether a constitutional violation has occurred can only be determined by applying the standards applicable to that particular constitutional provision. See, Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989). 2. Qualified Immunity Qualified immunity may be claimed by an individual defendant who is being sued personally for actions that he or she took while acting under color of state law. Ansley v. Heinrich, 925 F.2d 1339, 1344 (11th Cir. 1991). Qualified immunity is a question of law to be decided by the court prior to trial. Defendants claim the protection of qualified immunity on nearly every count in which MeMillian seeks to recover under 42 U.S.C. § 1983. Although the applicability of qualified immunity is discussed in greater detail in each count, the ubiquity of the defense justifies a preliminary discussion of the general principles of qualified immunity. Qualified immunity is designed to allow officials who are entitled to qualified immunity to avoid the expense and disruption of going to trial, and is not merely a defense to liability. Ansley, 925 F.2d at 1345. As the Eleventh Circuit recently explained, [tjhat qualified immunity protects government actors is the usual rule; only in exceptional eases will government actors have no shield against claims made against them in their individual capacities. Unless a government agent’s act is so obviously wrong, in the light of the pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit. Because qualified immunity shields government actors in all but the exceptional eases, courts should think long and hard before stripping defendants of immunity. Lassiter v. Alabama A & M Univ. Board of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994) (en banc) (citations omitted). The Supreme Court established a qualified immunity analysis which examines the objective reasonableness of the actions of the state official. Harlow v. Fitzgerald, 457 U.S. 800, 815-19, 102 S.Ct. 2727, 2736-39, 73 L.Ed.2d 396 (1982). Under this test, public officials performing discretionary functions which would objectively appear to be within the official’s authority have qualified immunity if their challenged conduct did not violate a clearly established constitutional right of which a reasonable person would have known, given the circumstances and information possessed by the official at the time of the conduct. Id. at 818, 102 S.Ct. at 2738. The objective-reasonableness test is a two part analysis. First, the defendant public official must prove that he was performing duties within the scope of his discretionary authority when the alleged violation occurred. Hutton v. Strickland, 919 F.2d 1531, 1537 (11th Cir.1990) (citations omitted). A government official may prove that he was acting within the scope of his authority by showing facts and circumstances that would indicate that his actions were part of his normal job duties and were taken in accordance with those duties. See, e.g., Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir.1988); Cronen v. Texas Dep’t of Human Services, 977 F.2d 934, 939 (5th Cir.1992) (“An official acts within his discretionary authority when he performs non-ministerial acts within the boundaries of his official capacity.”) Once the defendant proves that he was acting within his discretionary authority, the burden then shifts to the plaintiff to prove that the defendant did not act in good faith. Hutton, 919 F.2d at 1537. The plaintiff may meet this burden by establishing that “the defendant public official’s actions ‘violated clearly established constitutional law.’ ” Id. (citations omitted). The second prong of the objective-reasonableness test has two sub-parts. Id. at 1538. First, the court must find that the constitutional law in question was clearly established when the alleged violation occurred. Id. Second, the court must find that “there is a genuine issue of fact regarding the government official’s engaging in conduct violative of the clearly established law.” Id. “Clearly established” means that “[t]he contours of the [violated] right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of the pre-existing law the unlawfulness must be apparent. Id. (citations omitted). The Eleventh Circuit recently explained that [f]or the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that “what he is doing’ violates federal law. Qualified immunity is a doctrine that focuses on the actual, on the specific, on the details of concrete eases. Lassiter, 28 F.3d at 1149-50 (citations omitted). Accord, Barts v. Joyner, 865 F.2d 1187, 1190 (11th Cir.1989), cert. denied, 493 U.S. 831, 110 S.Ct. 101, 107 L.Ed.2d 65 (1989) (quoting Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985)) (“To defeat a qualified immunity defense, the plaintiff bears the burden of showing that the ‘legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, ... the law clearly proscribed the actions the defendant took.’”) The Eleventh Circuit has said that the “most common error” it encounters as a reviewing court occurs when courts “permit plaintiffs to discharge their burden by referring to general rules and to the violation of abstract ‘rights.’ ” Lassiter, 28 F.3d at 1150 (citations omitted). Clearly, it is the law of this circuit that [f]or qualified immunity to be surrendered, pre-existing law must dictate, that is truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances. Id. If the plaintiffs satisfy their initial burden and show that the rights that defendants’ conduct allegedly violated were clearly established at the time of defendants’ conduct, the court must then determine whether the plaintiffs have adduced evidence sufficient to create a genuine issue of fact as to whether defendants actually engaged in conduct that violated clearly established law. Rich, 841 F.2d at 1564. See also Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1503 (11th Cir.1990). In this undertaking, the court must draw all inferences of fact in favor of the plaintiff when the plaintiff is the party opposing the motion. Stewart, 908 F.2d at 1503. 3. McMillian’s Federal Claims a. Count One: McMillian’s Confinement on Death Row as a Pretrial Detainee The court finds that McMillian has produced sufficient evidence in support of Count One to survive Defendants’ motions for summary judgment. Thus, the Motions for Summary Judgment of the Defendants are due to be DENIED as they apply to Count One. In Count One, McMillian alleges that Tate, Ikner, Benson, and the D.O.C. Defendants conspired to violate McMillian’s rights under the Fourteenth Amendment to the United States Constitution by causing McMillian to be placed on Death Row while he was a pretrial detainee. First Amended Complaint ¶¶ 19 and 44. Defendants raise four grounds for summary judgment as to Count One: insufficient evidence of a conspiracy to violate McMillian’s Fourteenth Amendment rights, statute of limitations, qualified immunity, and quasi-judicial immunity. The court will address each of these grounds separately- i. Sufficiency Evidence of a Conspiracy The court finds that McMillian has produced sufficient evidence to raise a genuine issue of material fact regarding the existence of a conspiracy among Defendants to violate McMillian’s Fourteenth Amendment rights by incarcerating him on Death Row as a pretrial detainee. To support a claim for conspiracy under § 1983, McMillian must show (1) that his federal rights were violated, (2) that such violation occurred as the result of an agreement among the defendants to violate the plaintiffs federal rights, and (3) an actionable wrong. See, NAACP v. Hunt, 891 F.2d 1555, 1563 (11th Cir.1990); see also, Strength v. Hubert, 854 F.2d 421, 425 (11th Cir.1988). In the ease at bar, there is evidence to support all three elements of the conspiracy claim alleged in Count One. In the following pages, the court will summarize all the evidence supporting Count One. First, however, the court must set out more precisely the constitutional violation alleged in Count One. Under the Due Process Clause of the Fourteenth Amendment, “states may not punish pretrial detainees at all prior to their lawful conviction of a crime.” Hamm v. DeKalb County, 774 F.2d 1567, 1572 (11th Cir. 1985), cert. denied, 475 U.S. 1096, 106 S.Ct. 1492, 89 L.Ed.2d 894 (1986); see also, Bell v. Wolfish, 441 U.S. 520, 536, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979). In determining whether a particular disability or condition accompanying pretrial detention amounts to punishment in the constitutional sense, the Supreme Court has advised lower courts as follows: A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination will generally turn on whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to it. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. Bell, 441 U.S. at 538-39, 99 S.Ct. at 1873-74 (citations and internal quotation marks omitted). In the present case, there is no allegation that McMillian’s pretrial detention on Death Row was “arbitrary or purposeless." Instead, both sides advance a specific reason for McMillian’s detention on Death Row. McMillian alleges that he was placed on Death Row as a pretrial detainee for the specific purpose of punishing him. If McMillian’s allegation is true, his pretrial detention on Death Row was unconstitutional. Defendants allege that McMillian was placed on Death Row as a pretrial detainee for the specific purpose of keeping him secure from persons who had allegedly threatened him with harm. If Defendants are telling the truth, McMillian’s pretrial detention on Death Row was “reasonably related to a legitimate governmental objective,” and was permissible under the Constitution. Thus, the central issue involved in the conspiracy claim alleged in Count One is the nature of the understanding among those responsible for McMillian’s detention on Death Row: did they understand that he was on Death Row as punishment, or did they understand that he was on Death Row for his own security? The following review of the evidence reveals that the court cannot answer this question itself within the bounds set by the summary judgment standard. On July 27, 1987, McMillian had been arrested and incarcerated for his alleged sodomy of Myers and his alleged murder of Ronda Morrison. On that day, McMillian was being held at the Clarke County Jail but was transferred to the Conecuh County Jail in preparation for a hearing in the District Court of Conecuh County on the sodomy charge. Myers was also brought to Conecuh County, as he was to testify against MeMillian on the sodomy charge. The hearing was continued, and McMillian was transferred to Monroe County Jail “en route” (Tate Aff. p. 15) to Clarke County Jail. Myers remained at Conecuh County Jail. During the early morning hours of July 28, 1987, two armed men broke into the Conecuh County Jail and' went to the cell where Myers was being held. Three other inmates witnessed the break-in and signed written statements describing what they had seen. (Statements of Percy Vaughn, Douglas Montgomery, and John Alexander.) While these statements .certainly corroborate that a break-in occurred, none of the three witnesses claims to have heard the substance of the conversation that took place between Myers and the two armed men. Id. Only Myers was capable of telling law enforcement officials what the two armed men said. The Parties agree that Myers told law enforcement officials that the two armed men had threatened him. The Parties disagree about whether Myers told the law enforcement officers that the two armed men had threatened McMillian. Tate states in his affidavit that he “went to the Conecuh County Jail and listened as the investigation concerning the break-in was being conducted.” (Tate Aff. p. 15.) Tate further states that Myers said that McMillian was threatened. Id. Benson states in his affidavit that he investigated the break-in along with Ikner, the Conecuh County Sheriffs Department, and the FBI. (Benson Aff. p. 3.) Benson wrote a report on the incident which states that Myers indicated that the armed men had perhaps threatened MeMillian’s safety. Jimmy Lambert, a Conecuh County Sheriffs Deputy who assisted Benson and Ikner in the break-in investigation, states in an affidavit that Benson’s report is accurate. (“Jimmy” Lambert Aff. p. 1.) In another affidavit, Lambert states that Myers indicated that McMillian had been threatened. (“James” Lambert Aff. p. 1.) Thus, there is evidence that Myers did, indeed, tell those investigating the break-in that McMillian had been threatened by the armed men. In his affidavit, however, Myers testifies that he never told Tate, Ikner, or Benson that McMillian was threatened by the armed men who broke into Conecuh County Jail. (Myers Aff. 8/18/94 p. 2.) Thus, depending on who is telling the truth, Tate, Ikner and Benson may or may not have had a genuine concern for McMillian’s safety. If Tate, Ikner, and Benson are lying and they did not have a genuine concern for MeMillian’s safety, it would be reasonable to infer, given the other evidence discussed below, that they were involved in a conspiracy to have McMillian placed on Death Row as a pretrial detainee in order to. punish him. If Myers is telling the truth, Tate, Ikner and Benson must have lied to Theodore Pearson (“Pearson”), who was at that time the District Attorney for the 35th Judicial Circuit of the State of Alabama, consisting of Conecuh and Monroe Counties. Pearson states in his affidavit that he discussed the investigation of the break-in with Tate, Ikner and Benson. (Pearson Aff. p. 3.) Pearson also states in his affidavit that Tate, Ikner and Benson expressed to [Pearson] their concern for the safety and well-being of [McMillian] and Mr. Myers. Afterwards, we decided for their safety, it would be best to transfer them from the local county jails. Id. Pursuant to the agreement reached among Pearson, Tate, Ikner, and Benson, on July 29, 1987, Pearson filed two separate motions with the Circuit Court of Monroe County, Alabama, asking that McMillian and Myers be transferred to the custody of the Alabama Department of Corrections to ensure the safety of McMillian and Myers. (Pearson Aff. pp. 2-3; Transfer Motions.) On or about July 29, 1987, Judge Robert E.L. Key, Circuit Court of Monroe County, Alabama, granted both motions. (Transfer Orders.) Neither the motions to transfer nor the transfer orders mentioned Death Row or any other particular condition or place of confinement. The motions and orders merely concerned McMillian’s and Myers’ transfer to the custody of the Department of Corrections based on security considerations. In his deposition, McMillian testified that shortly before he was transferred from Monroe County Jail to the custody of the Depart ment of Corrections (“D.O.C.”), and at other times, Tate made a number of threatening and hateful remarks to McMillian. Some of those remarks were allegedly as follows: [Y]ou are a dead son of a bitch. You ain’t never going to get out of this. We got all of these charges against you. You ain’t never going to get out of it. You are a dead nigger and stuff like that____ [Tate] told me about the white women. He said he was going to stop us niggers from f ing these white women himself. He told me he was going to stop that. [W]e were going to jail, going to Holman Prison, [Tate] mentioned something, you have got some daughters, we ought to take them out — ought to take one of them out and kill her and throw her out beside the road and let the maggots eat her____ [Tate] said I ought to take you off and hang you like we done that nigger in Mobile, but we can’t stand that suit. (McMillian Depo. V.I pp. 295-301.) Tate categorically denies that he made any such remarks. (Tate Aff. pp. 18-19.) However, aecepting McMillian’s sworn deposition testimony as true, and viewing it in the light most favorable to McMillian, as the court must do for the purposes of these motions, such testimony helps to raise the inference that, by facilitating McMillian’s pretrial detention on Death Row, Tate was more interested in punishing McMillian than in keeping him safe and secure. Shortly after the transfer orders were entered, McMillian and Myers were transferred to Holman State Prison (“Holman”), a Department of Corrections facility in Atmore, Alabama. The D.O.C. Defendants received McMillian and Myers into D.O.C. custody despite the fact that Judge Key had no authority under Alabama law to order the transfers, Ex parte Thigpen, 513 So.2d 101 (Ala.Cr.App.1987), and despite the fact that it was against D.O.C. policy to house pretrial detainees. (Shinbaum Depo. p. 25.) McMillian and Myers were then placed on Death Row at Holman. At least two of the D.O.C. Defendants could not remember a single pretrial detainee, other than McMillian and Myers, that had been held on Death Row. (Thigpen Depo. at pp. 16-18; Johnson Depo. p. 41.) On July 7, 1987, shortly before McMillian and Myers were transferred to Holman and placed on Death Row, the Alabama Supreme Court scheduled the execution of Death Row prisoner Wayne Eugene Ritter for August 28, 1987, at Holman. (Ala.S.Ct. Order Setting Execution Date.) Ritter was, in fact, executed on that date in Holman’s electric chair. Thus, shortly after McMillian was placed on Death Row at Holman, he experienced, to some extent, the drama and the fear that a Death Row convict feels when a fellow inmate is executed. In his affidavit, Myers testifies that Tate, Ikner, and Benson came by to speak with him after Ritter’s execution. In the course of a discussion regarding the execution, Myers states that Tate, Ikner, and Benson said something to the effect that “I bet you [McMillian’s] ass is so tight you couldn’t get a safety pin (or a nail) in there.” (Myers Aff. 8/18/94 p. 1.) This evidence, taken as true, indicates that Tate, Ikner, and Benson were well aware that MeMillian’s presence on Death Row, especially at the time of Ritter’s execution, was probably causing MeMillian to suffer psychologically. While MeMillian remained on Death Row as a pretrial detainee until his conviction some thirteen months later, Myers remained on Death Row only about three months initially. In late October of 1987, Myers was transferred from Holman’s Death Row to the Monroe County Jail. Then, in February of 1988, Myers was transferred back to Holman’s Death Row. The Parties disagree about why Myers was transferred back and forth between Death Row and county jail. Defendants allege that Myers was held on Death Row out of concern for his security. Myers was taken off of Death Row in October of 1987 and transferred to Monroe County Jail, Defendants say, so that he could attend an arraignment hearing. At that time, George Elbrecht, Myers’ attorney, asked Judge Key to allow Myers to remain in the Monroe County Jail so that Myers would be closer to Elbrecht, who was having to meet with Myers frequently. Judge Key granted Elbreeht’s request, and Myers remained at Monroe County Jail. In February of 1988, just before McMillian’s criminal trial was scheduled to begin, Myers told Elbrecht that Myers was afraid to testify against MeMillian. Because Myers was afraid, McMillian’s trial was continued and Myers was placed back on Holman’s Death Row for protection. Myers stayed on Death Row until after McMillian’s trial. All of the allegations contained in this paragraph are supported by the affidavit of George Elbrecht. (Elbrecht Aff. pp. 1-3.) Elbrecht concludes his affidavit with these words: On both occasions that Mr. Myers was under the care and custody of the Department of Corrections as a pre-trial detainee, it was my firm belief, and it is my belief today, that he was incarcerated there for his own protection and out of concern for his safety. At no time did I ever believe, and do I believe at this date, that Mr. Myers or Mr. MeMillian, for that matter, were incarcerated at the Holman Correctional Facility as a means to punish them. (Elbrecht Aff. p. 3.) MeMillian disputes the allegations of the foregoing paragraph. MeMillian again offers the affidavit of Myers. In his affidavit, Myers describes the reasons for his transfers to and from Death Row as follows: After I gave another statement about Walter MeMillian, I was taken back to the Monroe County jail and I stayed there, as far as I can remember, until it was time to go to court on Walter McMillian’s trial. When I refused to testify against Walter MeMillian, I was placed back on Death Row. Again, when I was on Death Row, I felt like I had to do anything I could to get off Death Row. (Myers Aff. 8/18/94 p. 2.) Drawing all inferences in favor of MeMillian, as the court must do, Myers’ above statement supports two crucial points. First, the transferring of Myers to Monroe County Jail and back to Holman’s Death Row, apparently without any written court orders, shows that there must have been some communication and understanding between Monroe County law enforcement officials and the D.O.C. Defendants about why such transfers were taking place and ultimately why MeMillian and Myers were really being held on Death Row. Second, Myers’ statement indicates that Defendants were using Death Row as a means to punish, intimidate, and coerce Myers to testify against MeMillian. If Defendants were using Death Row to punish Myers, it is reasonable to infer that Death Row was also being used to punish MeMillian. Thus, to summarize the law and the evidence relevant to the merits of the conspiracy claim in Count One, the court first reiterates that McMillian has raised a general issue of material fact as to each of the three elements of a Section 1983 conspiracy claim: (1) a violation o£ his federal rights, (2) an agreement among the Defendants to violate such rights, and (3) an actionable wrong. First, McMillian has presented evidence that his Fourteenth Amendment right to Due Process was violated when he was placed on Death Row as a pretrial detainee for the alleged purpose of punishing him. It is undisputed that McMillian spent approximately thirteen months on Death Row prior to his trial. As for the Defendants’ intent to punish, there is evidence that Tate, Ikner and Benson lied about having concerns for McMillian’s security. There is evidence that Tate made threatening and hateful remarks to McMillian. There is evidence that Tate, Ikner, and Benson mentioned to Myers that McMillian must have been extremely frightened when Wayne Eugene Ritter was executed. There is evidence that Myers was transferred to and from Death Row depending on his willingness to testify against McMillian. There is also evidence that the D.O.C. Defendants placed McMillian on Death Row even though such placement was contrary to law, was contrary to D.O.C. policy, and was unprecedented. All of this evidence taken together raises an inference that McMillian was held on Death Row for the purpose of punishment. Second, McMillian has presented evidence, much of it described in the preceding paragraph, that, when taken together, raises an inference of an agreement among Defendants to use Death Row as a means of punishing McMillian. There is evidence that Tate, Ikner, and Benson did not like McMillian and enjoyed scaring and intimidating him. There is also evidence that it was unlawful and unprecedented for a pretrial detainee to be held on Death Row by the D.O.C. Defendants. Moreover, there is evidence of detention arrangements being made between Monroe County law enforcement officials and the D.O.C. Defendants without the benefit of written court orders. This evidence is enough to raise an inference of an agreement among the Defendants. Finally, for the conspiracy claim in Count One to satisfy the third and final element, it must be “actionable.” Perhaps, by the word “actionable” the Eleventh Circuit means there must be state action. State action is clearly satisfied in this case. Perhaps the Eleventh Circuit means the claim must not be barred by the statute of limitations and must not be subject to any immunities. As explained below, the court finds that Count One is not necessarily barred by the statute of limitations or by any immunities. Therefore, evidence submitted in support of Count One satisfies all the elements of a § 1983 conspiracy claim. ii. Statute of Limitations The court finds that there is a genuine issue of material fact as to whether Count One is barred by the statute of limitations. All Parties to this action agree that Section 1983 actions in Alabama are governed by a two-year statute of limitations. Lufkin v. McCallum, 956 F.2d 1104, 1106 (11th Cir.), cert. denied, — U.S.-, 113 S.Ct. 326, 121 L.Ed.2d 246 (1992). The Parties disagree about when McMillian’s claim under Count One accrued. The Eleventh Circuit has stated the rule for accrual of Section 1983 claims as follows: In Section 1983 eases, the statute of limitations does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights. Thus Section 1983 actions do not accrue until the plaintiff knows or has reason to know that he has been injured. Nor will a Section 1983 action accrue until the plaintiff is aware or should have been aware who has inflicted the injury. Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir.1987) (internal quotation marks and citations omitted). In the case at bar, McMillian was not aware of the facts necessary to support Count One, and therefore Count One did not accrue, until Myers contacted McMillian’s counsel and offered to cooperate with him. When McMillian heard all that Myers had to say, McMillian realized he might have a valid Section 1983 action for the time he spent on Death Row as a pretrial detainee. This is not to say that prior to Myers’ contact, McMillian did not suspect that his pretrial detention on Death Row was unlawful. McMillian did suspect, almost immediately, that his pretrial detention on Death Row was unlawful (McMillian Depo. Y. II pp. 343-345), and as explained above, such detention was, indeed, contrary to Alabama law and D.O.C. policy. This knowledge alone, however, was not enough to support the constitutional claim McMillian has now brought under Count One. To bring Count One, McMillian had to know that his pretrial detention on Death Row was the result of a conspiracy among particular state officials to punish him prematurely. Until Myers’ offered his cooperation to McMillian, McMillian and his lawyers did not have sufficient information to know about such conspiracy or who precisely was involved in it. Thus, Count One did not accrue until Myers began cooperating with McMillian and his legal team. While the court finds that the two-year limit did not begin to run until Myers made contact with McMillian’s counsel, the court is not able to determine the approximate date of such contact. In his deposition, J.L. Chestnut, Jr., who was one of McMillian’s lawyers at the criminal trial, describes how Myers called him from prison to tell him that he had testified falsely against McMillian at the trial and wanted to set things right. (Chestnut Depo. pp. 63-66.) Since Chestnut was no longer representing McMillian, Chestnut put Myers in touch with Bryan Stevenson who was then McMillian’s lawyer. Id. pp. 65-67. According to Chestnut, Stevenson met with Myers just a few days later, and Myers gave Stevenson much information which is now being used by McMillian to support many of his claims including Count One. Id. at 67. Chestnut states that all of this happened in 1989 or maybe a little later. Id. at 65. If Chestnut’s testimony is accurate, the two-year statute of limitations began to run in 1989, maybe 1990, and McMillian’s action, which was filed on June 4, 1993, is barred. However, in an affidavit executed on August 28, 1991, Myers refers to the same initial contact between himself and Chestnut that Chestnut describes. (Myers Aff. 8/28/91 p. 2.) According to Myers, he first contacted Chestnut in late July or early August of 1991. Id. If Myers’ affidavit is accurate, Count One is clearly not barred by the two-year statute of limitations. Because the affidavits of Chestnut and Myers are inconsistent with respect to the timing of Myers’ first contact with McMillian’s counsel, there is an issue of fact that must be decided at trial. Therefore, Defendants are not entitled to summary judgment on Count One based on the statute of limitations, and their Motions for Summary Judgment on that basis are due to be DENIED. McMillian makes additional arguments in an attempt to save Count One from the statute of limitations, but the court is not persuaded by any of them. First, McMillian argues that, under Heck v. Humphrey, — U.S.-, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), Count One did not accrue until his conviction was overturned in February of 1993. In Heck, the United States Supreme Court held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Id. at-, 114 S.Ct. at 2372 (footnote and citation omitted). Since a Section 1983 McMillian may not bring a § 1983 action to recover damages for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid” until such conviction or sentence is overturned, such an action would not accrue, and the statute of limitations would not begin to run, until the conviction or sentence was overturned. Thus, if Count One were a claim for harm caused by actions whose unlawfulness would render MeMillian’s conviction or sentence invalid, the statute of limitations would not bar Count One, because MeMillian’s conviction and sentence were not overturned until February of 1993. However, Count One is based on actions by Defendants that are totally unrelated to McMillian’s conviction and sentence, and therefore, Heck does not apply. McMillian attempts to squeeze Count One under the rule of Heck by arguing that McMillian’s pretrial detention on Death Row was a factor in his conviction because it undermined the preparation of his defense. However, McMillian is unable to offer any evidence that his defense was hurt by his pretrial detention on Death Row. McMillian also argues that his pretrial detention on Death Row contributed to his conviction by creating a stigma that made the jury more likely to convict him. However, McMillian offérs no evidence that any of the jurors knew or even could have known that McMillian was being held on Death Row. Thus, Count One is not saved from the statute of limitations by Heck. McMillian next argues that although the two-year statute of limitations applies generally to Section 1983 claims in Alabama, Tate and Thigpen can still be sued under Count One because they are subject to the special ten-year statute of limitations contained in § 6-2-33(3) of the Code of Alabama. However, the United States Supreme Court has held that one and only one statute of limitations applies to Section 1983 claims in each state. Owens v. Okure, 488 U.S. 235, 250, 109 S.Ct. 573, 582, 102 L.Ed.2d 594 (1989) (explaining that simplicity and predictability require the application of one statute of limitations to all Section 1983 actions in each state). In Alabama, that statute of limitations extends two years. Lufkin v. McCallum, 956 F.2d at 1106. Thus, § 6-2-33(3) does not help McMillian to overcome the statute of limitations. Next, McMillian argues that the statute of limitations for Count One should be equitably tolled because a prisoner fighting a capital murder charge should not be required to timely bring a Section 1983 suit for damages. While this argument is appealing, the court is not prepared to apply such a broad rule without any supporting authority from the Eleventh Circuit or the Supreme Court. Finally, McMillian argues that Count One should be tolled by § 6-2-8(a) of the Alabama Code which tolls the running of the statute of limitations for persons “imprisoned on a criminal charge for any term less than for life.” This provision does not apply to Count One because McMillian was never imprisoned for a term of years. Before he was convicted, McMillian was imprisoned awaiting trial. After he was convicted, McMillian was imprisoned awaiting execution. Thus, by its terms, § 6-2-8(a) does not apply to MeMillian’s case. See, Whitson v. Baker, 463 So.2d 146, 150 (Ala.1985) (holding that tolling statute does not apply to pretrial detainees). The court holds, therefore, that the statute of limitations defense presents a jury question. That question is when did Myers first inform McMillian of the facts necessary to support the claim McMillian has brought under Count One. iii. Qualified Immunity The court finds that none of the Defendants is entitled to qualified immunity on Count One. “Qualified immunity protects government officials performing discretionary functions from civil trials (and the other burdens of litigation, including discovery) and from liability if their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.” Lassiter, 28 F.3d at 1149 (internal quotation marks and citations omitted). The focus of the qualified immunity issues in this case centers on the question: should the court consider the subjective intent of the Defendants with respect to their placement of McMillian on Death Row as a pretrial detainee? To resolve this issue the court starts with the Lassiter opinion. In Lassiter, the Eleventh Circuit states as follows: The subjective intent of government actor defendants plays no part in qualified immunity analysis---- Objective legal reasonableness is the touchstone. Id. at 1150 (citations omitted). McMillian argues that while the Eleventh Circuit is stating the general rule that qualified immunity analysis is limited to an objective inquiry, the court has to consider the defendants’ subjective intent in a claim such as Count One where an unlawful intent is an essential element of the underlying constitutional (or statutory) violation. Defendants, on the other hand, argue that the Eleventh Circuit has never recognized the exception to the objective reasonableness rule that McMillian suggests. The court finds that there can be, indeed there must be, an inquiry into the subjective intentions of the defendants in qualified immunity analysis where an essential element of the underlying constitutional violation is an unlawful intent. In the present case, McMillian alleges that Defendants placed him on Death Row as a pretrial detainee for the specific purpose of punishing him. To decide whether Defendants are entitled to qualified immunity for such conduct, the questions the court must ask are: (1) whether, at the time Defendants acted, it was clearly established that state officials could not, in accordance with the Constitution, place a pretrial detainee on Death Row for the purpose of punishing him; and (2) whether McMillian has adduced evidence sufficient to create a genuine issue of material fact as to whether Defendants actually engaged in conduct which violated clearly established law. In doing so, the court must consider the intent or the purpose of the placement on Death Row because such intent or purpose is an element of the alleged constitutional violation. As it turns out, it was clearly established in 1987, when McMillian was first put on Death Row, that state officials could not, in accordance with the Constitution, put a pretrial detainee on Death Row for the purpose of punishment. See, Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447; Hamm v. DeKalb County, 774 F.2d 1567. In fact, state officials could not impose any restrictions or conditions of confinement on pretrial detainees for the purpose of punishment. Id. The court has already found that there is an issue of fact with respect to an alleged conspiracy on the part of Defendants to place McMillian on Death Row as a pretrial detainee for the purpose of punishing him. Therefore, Defendants are not entitled to qualified immunity on Count One. iv. Quasi-Judicial Immunity Finally, the court finds that Tate is not entitled to quasi-judicial immunity. Tate raises this defense which provides law enforcement officials with absolute immunity for actions they take pursuant to facially valid court orders. See, Roland v. Phillips, 19 F.3d 552, 556 (11th Cir.1994). Tate argues that he is immune from suit for any actions he took pursuant to Judge Key’s order transferring McMillian to D.O.C. custody. While the court agrees that Tate is immune from suit for actions he took pursuant to Judge Key’s order, Tate is not being sued under Count One for actions he took pursuant to Judge Key’s order. He is being sued ultimately for incarcerating McMillian on Death Row as a pretrial detainee. Judge Key’s order did not mention Death Row at all; such order merely transferred McMillian to D.O.C. custody. Furthermore, McMillian contends that Judge Key’s order itself was issued as a result of the unlawful actions of Tate and the other Defendants. Tate’s alleged actions that resulted in McMillian’s placement on Death Row include lying to the District Attorney and agreeing with the D.O.C. Defendants to punish McMillian by placing him on Death Row. These actions, if indeed taken, were not taken pursuant to a court order. Therefore, Tate is not entitled to quasi-judicial immunity to Count One. For all of the foregoing reasons, the court finds that there are genuine issues of material fact that preclude summary judgment in favor of Defendants on Count One. Thus, the Motions for Summary Judgment on Count One are due to be DENIED, b. Count Two: Withholding and Suppressing Exculpatory Evidence The court finds that McMillian has produced sufficient evidence in support of Count Two to survive Defendants’ Motions for Summary Judgment. In Count Two, McMillian alleges that Tate, Ikner, Benson, and Barnett violated his rights under the Fourteenth Amendment to the United States Constitution by withholding and suppressing exculpatory evidence. First Amended Complaint ¶ 45. Defendants raise two grounds for summary judgment as to Count Two: qualified immunity and absolute prosecutorial immunity. The court will address each of these grounds separately, i. Qualified Immunity The court finds that qualified