Bryson v. Gonzales

FILED

United States Court of Appeals

Tenth Circuit

July 28, 2008

PUBLISH Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID JOHNS BRYSON,

Plaintiff-Appellee,

v. No. 07-6071

SAM GONZALES,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. NO. 05-CIV-1150-F)

Kenneth Jordan, Municipal Counselor (Richard C. Smith & Amanda B. Carpenter,

Assistant Municipal Counselors, with him on the briefs), Oklahoma City,

Oklahoma, for Defendant-Appellant.

Michael Salem, Salem Law Offices (Mark Barrett with him on the briefs),

Norman, Oklahoma, for Plaintiff-Appellee.

Before McCONNELL, TYMKOVICH and GORSUCH, Circuit Judges.

McCONNELL, Circuit Judge.

David Bryson was convicted of rape and spent 19 years in jail until

exonerated by DNA evidence. He then sued Oklahoma City and a number of

officials, including Police Chemist Joyce Gilchrist, District Attorney Robert

Macy, and former Oklahoma City Police Chief Sam Gonzales, alleging that they

falsely procured his original conviction and then prevented him from obtaining

access to DNA evidence that he believed would demonstrate his innocence. Mr.

Bryson’s lawsuit may ultimately demonstrate patently unconstitutional conduct by

several Oklahoma officials and raise novel issues about the constitutional right to

access DNA evidence. This interlocutory appeal, however, presents a narrow

sliver of that suit—whether the complaint states a claim against one defendant,

Mr. Gonzales, for denying Mr. Bryson access to post-conviction DNA evidence

for testing. We conclude that it does not.

I. BACKGROUND

At this stage of the litigation, the following is undisputed. In September

1982, a woman reported being raped in Oklahoma City, eventually fending off her

assailant by biting his penis. Not long after, David Bryson received treatment for

a wound to his penis. The wound somehow came to the attention of law

enforcement and although there were differences between the wounds and Mr.

Bryson had an alibi, he was deemed a suspect. In October, 1982, Mr. Bryson was

arrested for rape. He pled not guilty and went to trial.

Part of the evidence against him was a set of hairs found on or near the

victim. An Oklahoma police chemist, Joyce Gilchrist, testified that “she believed

each person’s hair was unique and that she could identify the unique

characteristics” of the hair, and that these hairs matched Mr. Bryson’s. App. 14.

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This evidence, however, was “bogus.” App. 24. Ms. Gilchrist has since been

subject to repeated reprimand by various professional investigations and the

Oklahoma Court of Criminal Appeals for similar misconduct in numerous cases.

See generally Pierce v. Gilchrist, 359 F.3d 1279, 1283–84 (10th Cir. 2004).

There was also semen in the victim’s body, although DNA testing was not an

option at the time. In February, 1983, a jury convicted Mr. Bryson of first-degree

rape (with a sentence of 75 years) as well as of kidnaping, anal sodomy, and two

counts of oral sodomy (each with a ten-year sentence running consecutively to his

rape sentence). The Oklahoma Court of Criminal Appeals affirmed the

convictions and sentences. Bryson v. State, 711 P.2d 932 (Okla. Crim. App.

1985).

From prison, Mr. Bryson continued to pursue his claims of innocence. In

June, 1988, defense counsel asked Ms. Gilchrist for access to DNA evidence from

the scene of the crime. (Principally, we believe, the hair and semen.) Ms.

Gilchrist responded that the evidence had been destroyed, although this was not

true. In late 1990, an investigator for Mr. Bryson discovered the lie, and learned

that the evidence was in fact in a safe at the office of the Oklahoma County Court

Clerk. Mr. Bryson’s lawyer went to the Oklahoma County District Attorney

Robert Macy to get access to the evidence but was again rebuffed.

Mr. Bryson then turned to the courts. In 1995, he filed a petition for a state

writ of mandamus to compel access to DNA evidence and a request for post-

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conviction relief. After several false starts and rejections—he was opposed by the

state throughout—he eventually prevailed on both. In 1997 the OCCA granted

him access to the DNA evidence. Testing showed that the DNA did not match

his, and in 1999 the OCCA ordered his release pending retrial. For four more

years the state contemplated prosecuting him again, but ultimately dropped the

charges in June, 2003.

With the nightmare finally over, Mr. Bryson began to seek redress. In

May, 2004, he filed an earlier version of this lawsuit in the United States District

Court for the Western District of Oklahoma. He voluntarily dismissed this suit in

October of that year and filed the current complaint in September, 2005. The

complaint alleges that Ms. Gilchrist and Mr. Macy committed a number of

constitutional torts under 42 U.S.C. § 1983 as well as torts under state law. It

also named as defendants two supervisors of Ms. Gilchrist, three Oklahoma City

police chiefs, and the city of Oklahoma City itself.

As police chief, Defendant-Appellant Sam Gonzales exercised authority

over the Oklahoma City Police Department Laboratory, and thus over Ms.

Gilchrist. He served as police chief from 1991 to 1997. Thus, he arrived after

Mr. Bryson’s prosecution and conviction, after Ms. Gilchrist lied about the

existence of the DNA evidence, and after Mr. Bryson’s counsel shifted his

attention to procuring the sample from the district attorney to the court. By the

time Mr. Gonzales became chief, the DNA evidence was physically located in a

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safe at the Oklahoma County Court. Eventually, the evidence migrated from

there back to the district attorney’s office and later to Ms. Gilchrist; the district

attorney “had access to and did in fact control” it throughout this time. App. 22.

The defendants all moved to dismiss, and the district court dismissed some

of the claims. In particular, the court dismissed several claims against Mr.

Gonzales, including a theory of “malicious prosecution” under the Due Process

Clause and the Fourth Amendment. (This was the theory at issue in Pierce, 359

F.3d at 1285–97.) The court reasoned that because the prosecution began and

ended in 1982–83, eight years before Mr. Gonzales became police chief, the

complaint had not alleged his involvement in the violation.

However, the district court denied the motion to dismiss a second claim:

that Mr. Gonzales had unconstitutionally prevented Mr. Bryson from obtaining

access to DNA evidence during his tenure as chief. Dealing with all of the police

chiefs and supervisors collectively, the court noted that the complaint alleged that

“Defendants” had been “led by [Mr.] Macy” to establish a policy prohibiting post-

conviction DNA testing in 1988, that Ms. Gilchrist’s actions “were condoned by

the Defendant supervisors” and that defendants “through their direct actions,

and/or through their policies and procedures and/or through their reckless and

improper supervision of Joyce Gilchrist acted with reckless disregard and

indifference to David Bryson’s constitutional rights in denying him access to

evidence which would prove his innocence.” App. 465. The court concluded that

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this was sufficient to establish supervisory liability for all of the police chiefs and

supervisors, apparently including the ones who did not arrive until after 1988.

The court also concluded that “[b]ecause the law in and after 1988 clearly

established a constitutional right to be free from bad faith denial of post-

conviction access to potentially exculpatory evidence,” none of these defendants

were entitled to qualified immunity. App. 465. Again, it did not deal with Mr.

Gonzales individually. Mr. Gonzales appealed this portion of the district court’s

order to this Court.

II. INTERLOCUTORY APPELLATE JURISDICTION

We confront this case on an interlocutory appeal from an order denying a

motion to dismiss for qualified immunity. Because many claims remain unsettled

below, final judgment has not been entered, but such motions are nonetheless

appealable because of the special nature of qualified immunity. Mitchell v.

Forsyth, 472 U.S. 511, 524–30 (1985). Perhaps sensing that the appealable issues

are close ones, both parties urge us to consider other unrelated issues and resolve

the case on those grounds instead. Mr. Gonzales asks us to hold that the statute

of limitations has run on Mr. Bryson’s claim against him. Mr. Bryson asks us to

hold that even if he has not stated a claim for unconstitutional withholding of

DNA evidence, he has stated a different claim, for malicious prosecution. We lack

jurisdiction to accept either invitation. We cannot consider a statute of

limitations defense on an interlocutory appeal for the separate defense of

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qualified immunity. Wilkins v. DeReyes, 528 F.3d 790, 796 (10th Cir. 2008). For

the same reason, we cannot consider a different claim as an alternative ground for

affirming the district court’s ruling on this issue—especially where, as here, the

relevant conduct, time frames, and possible damages arising from the alternative

claim are different. The chance for appellate review of those issues will come

when final judgment is entered. See Fed. R. Civ. P. 54(b). The only issues that

properly belong in an interlocutory appeal for qualified immunity are the

existence of a constitutional violation and whether it was clearly established at

the time of the defendant’s conduct. Saucier v. Katz, 533 U.S. 194 (2001),

requires us to consider those issues in that order. 1

There is one potential exception to these restrictions on our jurisdiction:

We have held that pendent appellate jurisdiction allows consideration of

otherwise nonappealable issues when they are “‘inextricably intertwined with the

appealable decision, or where review of the nonappealable decision is necessary

to ensure meaningful review of the appealable one.’” Wilkins, 528 F.3d at 796

(quoting Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995)); see

also Rendall-Speranza v. Nassim, 107 F.3d 913, 916–17 (D.C. Cir. 1997)

(exercising pendent appellate jurisdiction over statute of limitations defense). To

1

We note that the Supreme Court is currently considering whether to

overrule Saucier. See Pearson v. Callahan, 128 S. Ct. 1702 (Mar. 24, 2008),

granting cert. in Callahan v. Millard County, 494 F.3d 891 (10th Cir. 2007).

Until then, Saucier remains good law, and we do not decide how overruling it

might affect our interlocutory appellate jurisdiction.

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be sure, pendent appellate jurisdiction is hard to reconcile with the collateral

order doctrine, since appealability is premised on the ability to decide the

qualified immunity issue “in isolation from the remaining issues of the case.”

Mitchell, 472 U.S. at 529 n.10. Pendent appellate jurisdiction is therefore

disfavored in the qualified immunity context. See Swint v. Chambers County

Comm’n, 514 U.S. 35, 43–51 (1995) (disfavoring, though not foreclosing, such

jurisdiction); Fogarty v. Gallegos, 523 F.3d 1147, 1153–55 & n.7 (10th Cir. 2008)

(declining pendent appellate jurisdiction in qualified immunity appeal); but see

Moore, 57 F.3d at 929–31 (exercising pendent appellate jurisdiction through a

“narrow exception[] left open by Swint”). Even assuming that pendent appellate

jurisdiction is not forbidden, the issues offered by the parties here do not justify

it, because they are neither “inextricably intertwined” with the qualified immunity

issue nor necessary to “meaningfully review” it. Mr. Gonzales’s immunity

defense can be resolved without delving into the malicious prosecution or

timeliness issues.

III. SUFFICIENCY OF THE COMPLAINT

Before considering whether the constitutional right invoked by Mr. Bryson

was clearly established at the time of its alleged violation, we must decide

whether the actions alleged in the complaint are sufficient to state a claim of

constitutional violation against the appellant, Mr. Gonzales. Saucier, 533 U.S. at

201. We assume—although we do not decide—that under some circumstances

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there is a constitutional right of access to DNA evidence that might prove one’s

innocence. However, even if this is so, the complaint does not allege enough

facts for us to infer Mr. Gonzales’s involvement in any such violation. We first

explain the pleading standard, then explain why Mr. Bryson’s complaint falls

short.

A. Pleading Standard

To state a claim, a plaintiff’s complaint must “show[] that the pleader is

entitled to relief.” Fed. R. Civ. P. (8)(a)(2). This means that the plaintiff must

allege enough factual matter, taken as true, to make his “claim to relief . . .

plausible on its face.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974

(2007). This is not to say that the factual allegations must themselves be

plausible; after all, they are assumed to be true. It is just to say that relief must

follow from the facts alleged. Robbins v. Oklahoma ex rel. Dep’t of Human

Servs., 519 F.3d 1242, 1247 (10th Cir. 2008).

If a complaint explicitly alleges every fact necessary to win at trial, it has

necessarily satisfied this requirement. If it omits some necessary facts, however,

it may still suffice so long as the court can plausibly infer the necessary

unarticulated assumptions. But if the complaint is sufficiently devoid of facts

necessary to establish liability that it “encompass[es] a wide swath of conduct,

much of it innocent,” a court must conclude that “plaintiffs ‘have not nudged their

claims across the line from conceivable to plausible.’” Id. at 1247 (quoting

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Twombly, 127 S.Ct. at 1974). Plaintiffs thus omit important factual material at

their peril. While a complaint must be “short and plain,” it must also “show[]”

(not merely assert) that relief is appropriate if it is true. Fed. R. Civ. P. 8(a)(2).

Thus, “[d]espite the liberality of modern rules of pleading, a complaint still must

contain either direct or inferential allegations respecting all the material elements

necessary to sustain a recovery under some viable legal theory.” In re Plywood

Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. Unit A Sept. 1981); see generally

Charles B. Campbell, A “Plausible” Showing After Bell Atlantic Corp. v.

Twombly, 9 Nev. L.J. (forthcoming 2008). This is the compromise enacted by

Rule 8’s notice pleading. Technical fact pleading is not required, but the

complaint must still provide enough factual allegations for a court to infer

potential victory.

This pleading requirement serves two purposes. First, it ensures that

defendants know “the actual grounds of the claim against them,” and can

therefore prepare a defense. Robbins, 519 F.3d at 1248. Second, it “avoid[s]

ginning up the costly machinery associated with our civil discovery regime on the

basis of ‘a largely groundless claim.’” Pace v. Swerdlow, 519 F.3d 1067, 1076

(10th Cir. 2008) (Gorsuch, J., dissenting) (quoting Twombly, 127 S.Ct. at 1966).

The latter concern is especially pertinent in qualified immunity cases, where the

very purpose of interlocutory appeal is “to spare [official defendants] from the

ordeal of discovery if the complaint fails to allege a constitutional violation or if

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the alleged violation was not clearly established.” Robbins, 519 F.3d at 1248-49.

Often these two purposes will be related: a complaint that omits too many crucial

facts can both fail to notify defendants how to prepare a defense and waste time

and money on fruitless discovery for a losing claim. Id. at 1248.

As we will explain, Mr. Bryson’s complaint does not allege sufficient

participation in the alleged wrongs, and so fails to state a claim against Chief

Gonzales.

B. Allegations Involving Mr. Gonzales

At issue here is Mr. Bryson’s assertion of a constitutional right “to gain

access to evidence used in his conviction,” which if subjected to DNA testing

“can definitively establish his actual innocence.” Aplee’s Br. at 1. The existence

and contour of this right have split the Courts of Appeals at least three ways. The

Fourth Circuit has held that such claims can never be brought under § 1983,

because they would undermine the finality of criminal judgments and intrude on

the legislative process of creating the proper process for post-conviction DNA

testing. Harvey v. Horan, 278 F.3d 370, 374–77 (4th Cir. 2002). The Ninth

Circuit has disagreed, holding that such claims are an extension of the disclosure

requirement of Brady v. Maryland, 373 U.S. 83 (1963) “as a post-conviction

right.” Osborne v. Dist. Attorney’s Office, 521 F.3d 1118, 1128 (9th Cir. 2008)

(citing Thomas v. Goldsmith, 979 F.2d 746, 749–50 (9th Cir. 1992)). The

Eleventh Circuit has taken a middle course, rejecting a constitutional claim by a

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plaintiff who had not consistently maintained his actual innocence, but “not

foreclos[ing] the possibility that a § 1983 plaintiff could, under some

extraordinary circumstances, be entitled to post-conviction access to biological

evidence for the purpose of performing DNA testing.” Grayson v. King, 460 F.3d

1328, 1339 (11th Cir. 2006); id. at 1340–43 (applying Mathews v. Eldridge, 424

U.S. 319 (1976)); see also Wade v. Brady, 460 F. Supp. 2d 226, 246–49 (D. Mass.

2006) (Gertner, J.); McKithen v. Brown, No. 02-1670, 2008 WL 2791852, *44

(E.D.N.Y. July 21, 2008); Harvey v. Horan, 285 F.3d 298, 315–18 & n.6 (4th Cir.

2002) (Luttig, J., respecting the denial of rehearing en banc) (all recognizing a

procedural due process right to post-conviction access to DNA evidence under

certain circumstances).

We need not resolve this controversy and do not decide whether the Due

Process Clause protects such a right. Whatever the contours of the right to obtain

access to DNA evidence, assuming it exists, the complaint fails to allege Mr.

Gonzales’s participation in the violation of the right. The complaint contains no

allegation that Mr. Gonzales ever refused a request for DNA evidence, nor an

allegation that he was sufficiently involved in Mr. Macy’s and Ms. Gilchrist’s

actions to justify liability for their misdeeds. Nor is there any factual allegation

from which we can plausibly infer these actions.

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The complaint mentions Mr. Gonzales only three times 2—once in

connection with a § 1983 violation not appealed here, and twice in connection

with this claim. According to the complaint:

Defendant Sam Gonzales was Oklahoma City Police Chief from 1991

until 1997 and during his tenure was responsible for development and

enforcement of administrative policies related to the Oklahoma City

Police Laboratory and was responsible for the supervision and

training of Joyce Gilchrist. He is sued individually and in his

official capacity.

App. 18–19. And:

Defendants Gilchrist, Campbell, Wilhelm, Wilder, McBride,

Gonzales, and Oklahoma City, in derogation of their duties to

establish fair and constitutional administrative policies, and in

disregard of Mr. Bryson’s constitutional rights, allowed Mr. Macy to

exercise control over evidence and influence administrative policy

decisions concerning the testing, storage, disposal, and destruction of

evidence. Once such deference to Mr. Macy was established, no

Defendant took material action to correct or modify Mr. Macy’s

influence over police policy.

App. 20. Even drawing all plausible inferences in Mr. Bryson’s favor, these

allegations are not enough.

2

In urging us to rule in their favor on this appeal, both sides repeatedly

refer to facts outside of the complaint—in particular facts alleged in a document

called the “Fischer Complaint.” See App. 67–112. This complaint is not

operative: it was filed in May, 2004, then withdrawn that October. Only facts

alleged in the operative complaint are assumed to be true at this stage of the

litigation; facts alleged only in other suits or in inoperative complaints cannot be

used by either side in resolving a motion to dismiss unless they have been

incorporated into the operative complaint. See Procter & Gamble Co. v. Haugen,

317 F.3d 1121, 1129 n.4 (10th Cir. 2003); MacArthur v. San Juan County, 309

F.3d 1216, 1221 (10th Cir. 2002).

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First, we consider Mr. Gonzales’s own conduct. He did not become police

chief until 1991. This was eight years after Mr. Bryson was convicted, three

years after Ms. Gilchrist (falsely) claimed that the evidence he requested had been

destroyed, and one year after Mr. Bryson discovered the lie and was again

rebuffed by Mr. Macy. So far as the complaint tells us, Mr. Gonzales had nothing

to do with any of these actions, which appear to be the gravamen of Mr. Bryson’s

claim that his due process rights were violated.

The year prior to Mr. Gonzales’s arrival in 1991, the complaint alleges that

the evidence was in the custody of the court clerk and that Mr. Bryson sought

access to the DNA evidence through the district attorney, who (as discussed

below) is not under Mr. Gonzales’s supervision. The complaint does not allege

that Mr. Bryson asked the Oklahoma City Police Department for access to the

evidence any time after Mr. Gonzales’s arrival. Indeed, the complaint does not

allege any relevant acts by the plaintiff or any defendant between 1990 and 1995,

when Mr. Bryson’s attorney filed a petition in state court for a writ of mandamus

to compel access to the evidence, along with a request for post-conviction relief.

App. 22; 360. The matter remained under adjudication in state court until

approximately the time of Mr. Gonzales’s departure in 1997. The complaint

contains no allegation of resistance—by Mr. Gonzales or anyone else—to the

court’s process or eventual order to grant Mr. Bryson access to the evidence.

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This is not enough to support a constitutional claim against this defendant.

If Mr. Gonzales or his department was never asked to give Mr. Bryson access to

the DNA evidence during his tenure in office, he could not have

unconstitutionally refused it. Once the state judicial process was in motion, Mr.

Gonzales was not required to turn over the evidence before the court made a

ruling. We do not mean to fault Mr. Bryson for turning to the judicial system to

vindicate his claims; this was likely a wise course given the recalcitrance he

faced. But Mr. Gonzales cannot be held individually liable for the consequences

of Ms. Gilchrist’s and Mr. Macy’s recalcitrance from 1982 to 1990.

Second, the complaint alleges that Mr. Gonzales “was responsible for the

supervision and training of Joyce Gilchrist.” App. 19. Mr. Bryson contends that

even without alleging Mr. Gonzales’s personal malfeasance, this is enough to

hold him liable for Ms. Gilchrist’s unconstitutional acts “as her supervisor.”

Aplee.’s Br. 25. This was the theory relied on by the district court. But

supervisory liability is “not . . . a theory of respondeat superior.” Worrell v.

Henry, 219 F.3d 1197, 1214 (10th Cir. 2000). Supervisors are not strictly liable

for the torts of their underlings; instead, they are liable only when they

“personally participated in the alleged violation.” Jenkins v. Wood, 81 F.3d 988,

994 (10th Cir. 1996). “[J]ust as with any individual defendant, the plaintiff must

establish ‘a deliberate, intentional act by the supervisor to violate constitutional

rights.’” Id. at 994–95 (quoting Woodward v. City of Worland, 977 F.2d 1392,

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1399 (10th Cir. 1992)). That is why we require evidence of an “affirmative link”

between a supervisor’s conduct and the constitutional violation before liability

can attach. Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008).

Here, the complaint contains no allegation of Mr. Gonzales’s personal

participation in Ms. Gilchrist’s torts, and therefore no such link. Ms. Gilchrist’s

alleged misconduct—principally, her lie to the defense that the DNA evidence

had been destroyed—occurred before Mr. Gonzales arrived. There is no

allegation that Ms. Gilchrist committed any misfeasance on his watch that he

should have prevented by proper supervision. 3 Absent any such allegations of

personal involvement, Mr. Gonzales does not answer for Ms. Gilchrist’s torts.

We do not mean to overstate Mr. Bryson’s burden—“[h]eightened pleading is not

required in § 1983 cases,” Fogarty, 523 F.3d at 1164—but the complaint does not

contain “enough factual matter (taken as true) to suggest that [Mr. Bryson] is

entitled to relief” from Mr. Gonzales. Robbins, 519 F.3d at 1247 (internal

quotation marks omitted).

Third, the complaint alleged that Mr. Gonzales, among others, “allowed

[the district attorney, defendant Robert Macy] to exercise control over evidence

3

An amendment to the complaint alleges that in August, 1996, Mr.

Bryson’s attorney “wrote a letter to Joyce Gilchrist asking her to preserve the

serology evidence in Mr. Bryson’s case. The letter stated ‘we intend to have

these items submitted for DNA testing in the near future.’ Defendant Macy, again

through Sandra Elliott, told Ms. Gilchrist that Ms. Gilchrist could ignore” the

request. But Ms. Gilchrist apparently did not ignore the request to preserve the

evidence, and instead preserved it.

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and influence administrative policy decisions concerning the testing, storage,

disposal, and destruction of evidence.” App. 20. It should be noted, first, that as

an independent elected official the district attorney is not under the supervision of

the chief of police. Mr. Macy, who is a defendant, may well have violated Mr.

Bryson’s rights, see McKithen, 2008 WL 2791852, at *17-*19 (holding that the

duty to provide post-conviction access to DNA access pertains to the prosecutor),

but Mr. Macy’s actions are not attributable to Mr. Gonzales. It is

unsurprising—and certainly not unconstitutional—that the district attorney would

have some “influence” over decisions of a legal nature, such as retention of

evidence. As to “control” over the evidence, the complaint alleges that during

Mr. Gonzales’s tenure as police chief, physical custody of Mr. Bryson’s DNA

evidence shifted from the county court, to the district attorney, to Ms. Gilchrist,

and thus for some period of time Mr. Macy exercised control over it. But we

have searched Mr. Bryson’s briefs in vain for any explanation why this would

have been a constitutional violation on Mr. Gonzales’s part. The evidence was

not destroyed. Mr. Gonzales did not refuse any request to release it. There is no

allegation that Mr.Gonzales did anything other than allow the judicial process to

run its course—a process in which Mr. Macy represented the interests of the state

in court.

Finally, there are also some conclusory allegations that simply name the

“Defendants” generically—such as that “Defendants, through resort to unreliable

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evidence, and sometimes fraudulent and/or grossly reckless techniques, took a

twenty-year chunk out of the heart of David Bryson’s lifetime on earth.” App.

13. But none of these allegations are helpful in figuring out what facts Mr.

Bryson means to allege about Mr. Gonzales’s conduct: “In § 1983 cases,

defendants often include the government agency and a number of government

actors sued in their individual capacities. Therefore it is particularly important in

such circumstances that the complaint make clear exactly who is alleged to have

done what to whom, to provide each individual with fair notice as to the basis of

the claims against him or her, as distinguished from collective allegations against

the state.” Robbins, 519 F.3d at 1249–50 (emphasis in original). They do not help

Mr. Bryson state a claim.

IV. CONCLUSION

Mr. Bryson may have many valid claims against many people. However

this claim against Mr. Gonzales—as it is currently pled—is not one of them. We

REVERSE the district court’s decision denying Mr. Gonzales’s motion to dismiss

the claim that he unlawfully denied Mr. Bryson access to DNA evidence. As in

Robbins, 519 F.3d at 1253–54, we REMAND with orders to dismiss this portion

of the claim without prejudice.

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