Opinion
Civ. No. 06-3625 (RHK/AJB).
March 16, 2009
ORDER
This matter is before the Court pursuant to Plaintiff's letter request (attached) to file a Motion for Reconsideration or, in the alternative, for leave to amend. For the reasons that follow, the Court will deny the request.
This is a Section-1983 action in which Plaintiff alleges he was sexually assaulted by two jailers at the Hennepin County Adult Detention Center. After Plaintiff complained about the alleged assault, the Minnesota Bureau of Criminal Apprehension ("BCA") conducted an investigation. Two BCA agents collected physical evidence, including hair samples, and presented the results of their investigation to the Washington County Attorney, who declined to prosecute the alleged assailants. The BCA, however, recommended that Plaintiff be charged with submitting a false police report, because the investigation purportedly revealed that Plaintiff had fabricated the assault. Plaintiff was so charged on March 29, 2004, and stood trial over three weeks that summer. Although Plaintiff claims that the BCA destroyed exculpatory hair evidence leading up to the trial and committed other misconduct, he was ultimately acquitted.
The hair was destroyed in order to perform DNA analysis "to rule out [Plaintiff] as a source of the questioned hair." (Pl. 3/13/09 Letter at 2.)
Plaintiff then commenced the instant action against Hennepin County, the jailers who purportedly committed the assault, and the BCA agents who conducted the investigation, alleging deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, as well as various tort claims under state law. In response to Motions to Dismiss filed by Defendants, Plaintiff has amended his Complaint three times. Defendants moved to dismiss the Third Amended Complaint in mid-2007, arguing inter alia that Plaintiff had failed to adequately allege any constitutional violations. Of particular relevance here, Defendants argued that Plaintiff had failed to plead a viable constitutional claim regarding the alleged destruction of the exculpatory hair evidence. By Order dated August 3, 2007 (Doc. No. 122), the Court granted in part and denied in part Defendants' Motions and largely dismissed Plaintiffs' claims; the only claim remaining pending is Plaintiff's constitutional claim against the jailers for allegedly committing the assault.
Plaintiff now seeks leave to file a Motion for Reconsideration of the Court's August 3, 2007 Order or, in the alternative, to amend his Third Amended Complaint. According to Plaintiff, he received a forensic report in December 2008 indicating that a simple analysis under a microscope was sufficient to show that the hair in question did not belong to him. Although it is not clear precisely what Plaintiff would have this Court reconsider — or, alternatively, how he would like to amend his Third Amended Complaint — Plaintiff appears to suggest that this "newly discovered" evidence corroborates his (dismissed) claim against the BCA agents, because it shows that the hair in question was "unnecessarily" destroyed.
Plaintiff's instant request, however, ignores why the Court previously dismissed his constitutional claims against the BCA agents:
It is true that the [destruction of] evidence . . . may constitute a due-process violation when the evidence "is material either to guilt or innocence." [Brady v. Maryland, 373 U.S. 83, 87 (1963).] Evidence is material for Brady purposes, however, "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). Stated differently, a Brady violation requires a nondisclosure "so serious that there is a reasonable probability that the . . . evidence would have" changed the outcome of the criminal trial. Strickler v. Greene, 527 U.S. 263, 281 (1999).
Here, there cannot have been a Brady violation ipso facto, because Jenkins was acquitted of the charge against him. In other words, the result of the criminal case would not (and could not) have been different had the allegedly exculpatory evidence [not been destroyed].Jenkins v. County of Hennepin, Minn., Civ. No. 06-3625, 2007 WL 2287840, at *7 (D. Minn. Aug. 3, 2007). Plaintiff's "newly discovered" evidence in no way changes this result. Regardless whether the hair should (or should not) have been destroyed, Plaintiff cannot state a constitutional claim based on the destruction of the hair because he was acquitted of the criminal charge against him. See, e.g., Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999) (affirming dismissal of Section-1983 claim based on destruction of exculpatory evidence where defendant was acquitted in underlying criminal case); Lopez v. City of Chicago, No. 06 C 6252, 2007 WL 3171332, at *3-4 (N.D. Ill. Oct. 24, 2007). And, to the extent Plaintiff seeks to allege a conspiracy between the Defendants to destroy the hair evidence, such a claim necessarily fails — absent a viable constitutional claim, a conspiracy claim cannot lie. E.g., Cook v. Tadros, 312 F.3d 386, 388 (8th Cir. 2002) ("In the absence of a violation, there is no actionable conspiracy claim.").
Finally, Plaintiff also argues that the Court should reconsider its dismissal Order because it improperly "held [Plaintiff] to a summary judgment standard" when ruling on the Motions to Dismiss. (Pl. 3/12/09 Letter at 2.) This argument is egregiously untimely. A motion for reconsideration is the "functional equivalent" of a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e). COMSAT Corp. v. St. Paul Fire Marine Ins. Co., 246 F.3d 1101, 1105 (8th Cir. 2001) (citation omitted). Such motions must be filed within 10 days after entry of the challenged order (or, in the case of a judgment, within 10 days of the entry of judgment). Fed.R.Civ.P. 59(e). Here, Plaintiff could have raised this argument more than eighteen months ago, when the Court ruled on the Motions to Dismiss. Plaintiff offers no explanation for his dilatoriness, and the Court perceives none.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS ORDERED that Plaintiff's request to file a Motion for Reconsideration or, in the alternative, for leave to amend is DENIED in its entirety.
EXHIBIT 1-A MINNESOTA DEPARTMENT OF PUBLIC SAFETY Bureau of Criminal Apprehension Forensic Science Laboratory — St. Paul 1430 Maryland Avenue East St. Paul, MN 55106 TEL: (651) 793-2900 TTY: (651) 282-6555 FAX: (651) 793-2901 An ASCLD/LAB Accredited Laboratory Lab No. S03-09549 REPORT ON THE EXAMINATION OF PHYSICAL EVIDENCE Mito-DNA 07/31/2008 Laboratory Number: Requesting Agency: Section Reporting: Agency Case Number: Case Type: County: To: BCA St. Paul 1430 Maryland Avenue East Report No. 6 St. Paul, MN 55106 Attention: Brian Blanch S03-09549 BCA St. Paul Mito-DNA 2003404 Criminal Sexual Conduct Hennepin Principals: Philander Dermont Jenkins; Michael Cuscaden; Trent JovanovichDescription of Submitted Evidence: Item Type and Packaging Description/Source
2 One brown paper bag containing evidence classified as Philander Dermont Jenkins underwear 2-6 One manila envelope containing evidence classified as Hair collected from Item 2 hairs from Item 2-7 One manila envelope containing evidence classified as Hair fragments from Item 2 hairs from Item 5 One manila envelope containing evidence classified as Philander Dermont Jenkins oral swabs 6 sexual assault evidence kit Michael Cuscaden 7 sexual assault evidence kit Trent Jovanovich Results of Laboratory Examination:Mitochondrial DNA (mtDNA) sequencing results were obtained from the unknown hair fragments (Items 2-7a through 2-7e) collected from Item 2. MtDNA sequencing results were also obtained from the known samples from Philander Dermont Jenkins (Item 5), Michael Cuscaden (Item 6A) and Trent Jovanovich (Item 7A). MtDNA testing was previously performed at Bode Technology (Lorton, VA) on the unknown hair fragment (Item 2-6, Bode Item # 2M08-006-01) collected from Item 2.
All sequence data generated is contained within the control region of the human mtDNA.
The mtDNA sequences obtained from Item 2-6 (Bode Item #2M08-006-01) and Item 6A are the same. Therefore, Michael Cuscaden cannot be excluded as being a possible source of Item 2-6.
The mtDNA sequence obtained from Item 2-6 has been observed in the population groups as follows: Population group Observations Database size Upper Limit Frequency % African American Caucasian Hispanic
The above search results encompass the three major population groups. Additional population group data is available upon request.
The mtDNA sequences obtained from Items 2-6, 5 and 7A are all different. Therefore, Philander Dermont Jenkins and Trent Jovanovich are excluded as being the source of Item 2-6.
Items 2-7a through 2-7e cannot be excluded from originating from the same source.
The mtDNA sequence obtained from Items 2-7a through 2-7e, and the mtDNA sequences obtained from Items 5, 6A and 7A are different. Therefore, Philander Dermont Jenkins, Michael Cuscaden and Trent Jovanovich are excluded as being the source of Items 2-7a through 2-7e.
I hereby certify that the above report is true and accurate.
____________________
Mohamed Sedqi, Ph.D.
Forensic Scientist 3
PLEASE NOTE: Mitochondrial DNA is maternally inherited. Therefore, individuals that share a maternal lineage will typically have the same mitochondrial DNA type.
Disposition of Evidence:
Evidence will be returned by delivery service.
Portions of pertinent evidence items have been removed and are being stored at the BCA Laboratory.
Distribution: BCA St. Paul — 2
EXHIBIT 1-B MINNESOTA DEPARTMENT OF PUBLIC SAFETY Bureau of Criminal Apprehension Forensic Science Laboratory — St. Paul 1430 Maryland Avenue East St. Paul, MN 55106 TEL: (651) 793-2900 TTY: (651) 282-6555 FAX: (651) 793-2901 Lab No. S03-09549 REPORT ON THE EXAMINATION OF PHYSICAL EVIDENCE Trace 01/24/2008 Laboratory Number: Requesting Agency: Section Reporting: Agency Case Number: Case Type: County: To: BCA St. Paul 1430 Maryland Avenue East Report No. 5 St. Paul, MN 55106 Attention: Brian Blanch S03-09549 BCA St. Paul Trace 2003404 Criminal Sexual Conduct Hennepin Principals: Philander Dermont Jenkins; Michael Cusenden; Trent JovanovichDescription of Submitted Evidence: Item Type and Packaging Description/Source
2-6 One manila envelope containing evidence classified as Hair collected from Item 2 hairs from Item 2-7 One manila envelope containing evidence classified as Hair fragments from Item 2 hairs from Item 6 sexual assault evidence kit Michael Cuscaden 7 sexual assault evidence kit Trent Jovanovich 9 One white envelope containing evidence classified as Philander Dermont Jenkins pulled pubic hairs Results of Laboratory Examination:Item 2-6 (said to be hair collected from Item 2) contained one Caucasian pubic hair that contained microscopic similarities and differences to the Item 6 combed public hairs (said to be from Michael Cuscaden). Therefore, no conclusion can be reached as to the source of this hair based on the Item 6 sample. This result may be affected by the small number of hairs in the Item 6 sample. This hair is suitable for mitochondrial DNA analysis.
The Item 2-6 hair is microscopically different from Item 7 (said to be combed pubic hairs from Trent Jovanovich). Therefore, these hairs can be excluded as coming from a common source based on the Item 7 sample.
The Item 2-6 Caucasian hair is microscopically different from the Item 9 known Negroid pubic hairs (said to be from Philander Dermont Jenkins). Therefore, these hairs can be excluded as coming from a common source based on the Item 9 sample.
Item 2-7 (said to be hairs collected from Item 2) contained three Negroid pubic hairs that are microscopically similar to Item 9. Therefore, these hairs could have originated from a common source. These hairs are suitable for mitochondrial DNA analysis.
Item 2-7 also contained two Negroid pubic hairs that contained microscopic similarities and differences to Item 9. Therefore no conclusion can be reached as to the source of these hairs based on the Item 9 sample. These hairs are suitable for mitochondrial DNA analysis.
The Item 2-7 hairs were microscopically dissimilar to the Item 6 and Item 7 samples. Therefore, these hairs can be excluded as coming from a common source based on these samples.
Combed pubic hair samples may be used as a known sample in absence of a pulled pubic hair sample. However, it must be noted that combed samples may contain hairs not belonging to the sample donor. Further comparisons can be done on the questioned hairs upon the collection of adequate known samples which contain 25 pulled pubic hairs.
The comparison of the microscopic characteristics in hairs does not constitute a basis for absolute personal identification. The probative value of hair comparisons may be affected by the results of mtDNA analysis.
I hereby certify that the above report is true and accurate.
__________________
Katherine Igowsky
Forensic Scientist
Disposition of Evidence:
Evidence will be held in the lab pending analysis.
Distribution: BCA St. Paul — 1