Brown v. Miller

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

February 27, 2008

No. 06-30887 Charles R. Fulbruge III

Clerk

DENNIS PATRICK BROWN,

Plaintiff–Appellee,

v.

NACE JERRY MILLER, in his individual and official capacities,

Defendant–Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

Before DeMOSS, DENNIS, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Nace Jerry Miller (Miller) appeals the district court’s denial of his motion

to dismiss on the grounds of qualified immunity. We affirm in part, dismiss in

part, and remand for further proceedings.

I

Because this is an appeal from a denial of a motion to dismiss, these facts

are taken from the pleadings and are presented in the light most favorable to the

plaintiff. In 1984, Dennis Patrick Brown (Brown) was convicted of rape and

sentenced to life in prison. Twenty years later, DNA testing proved him

innocent, and he was released. He sued the city of Covington, Louisiana, and

No. 06-30887

several of its officers for their alleged misconduct in the investigation and

prosecution of his case.

Jane Doe,1 a white woman, was raped in her home in Covington,

Louisiana, in 1984. She provided her minipad and underwear to the police,

along with specimens from a rape examination, all of which were forwarded to

the Louisiana State Police Crime Laboratory. Ms. Doe also assisted the police

in creating a sketch of her attacker, though the sketch lacked identifiable

features because the attack had occurred in the dark and the attacker had worn

a baseball cap and mask. Later, Ms. Doe identified Brown as her attacker in a

line-up; he had been asked to volunteer for the line-up only as a “fill-in” and was

not represented by counsel. The police obtained samples of blood, hair, and

saliva, and fingerprinted Brown but did not arrest him.

The police investigator forwarded the physical samples to the Louisiana

State Crime lab, along with an annotation that Brown had been “identified via

line-up.” Brown alleges that this annotation violated department policy, and

that its purpose was to encourage the lab to confirm a genetic match and to

suppress any exculpatory results. Miller, the laboratory technician, performed

the “ABO test” on the samples, and then compared the antigens in Brown’s blood

with the antigens found in the mixture of blood and semen from the minipad and

underwear. This test revealed the presence of the H antigen in the mixture.

Both Jane Doe and Brown had blood type O and were secretors.2 Brown alleges

that at least three scenarios were consistent with these facts: (i) the rapist was

1

The victim’s name has been changed to protect her privacy.

2

A secretor is an individual whose blood antigens appear in his or her bodily fluids,

such as saliva and semen.

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No. 06-30887

a non-secretor of any blood type, and the H antigen from the minipad came from

Jane Doe’s own blood rather from the rapist’s semen, (ii) the rapist was a type

O secretor, or (iii) the majority of the blood–semen mixture consisted of the

victim’s own blood, and the characteristics of the semen were “masked” and did

not appear in the results. Brown alleges that at this point Miller either

intentionally and in bad faith failed to conduct additional, commonly used tests

(“Rh tests” and “enzyme tests”) that would have made the identification more

specific and accurate, and likely excluded Brown as the donor, or, in the

alternative, that Miller did conduct those tests, that those tests were

conclusively exculpatory, and that Miller concealed the exculpatory results.

Brown specifically alleges that these other tests were commonly used in the

same lab at the time, that Miller knew about and used those other tests in the

same year, that Miller was unable to draw conclusions in similar identification

cases without performing those more specific tests, and that Miller could have

performed those tests in Brown’s case. Miller argues that these facts support an

inference either that Miller actually did conduct the tests in this case or that he

knew he should have reported that his results were inconclusive without further

testing.

Shortly after the testing, Miller gave “verbal confirmation” of a positive

match to an investigating officer. Although the content of this conversation is

unknown, the officer immediately swore out an affidavit that Brown had been

“positively identified” by the blood test. Brown alleges that this verbal

confirmation was in violation of police procedure. Police officers arrested Brown,

and he was charged with the rape.

Miller later submitted a written report, which stated that the semen donor

either had blood type O or was a non-secretor. Brown alleges that this was a

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No. 06-30887

scientifically inaccurate conclusion to draw from the results, because it failed to

acknowledge possibility (iii) above—that the H antigen had come only from the

victim’s own blood and indicated nothing about the rapist. At trial, Miller

testified that he could conclude on the basis of his blood tests that Brown was

within the 46.5% of the male population who could have contributed the semen.

Brown alleges that this statement was inaccurate and misleading for the same

reasons his report was misleading.

Based on the blood results, the line-up identification, and what he alleges

was a false and coerced confession, Brown was convicted and sentenced to life

in prison. Brown alleges that all of the wrongful actions by Miller were done

intentionally and in bad faith, and that they were in furtherance of a conspiracy

with police officers to deny Brown his constitutional rights because of his race.

The minipad was re-tested in 2003 by the state of Louisiana and the

Innocence Project. This testing revealed that Brown could not have been the

donor of the semen. Brown was released, and the City of Covington declined to

re-prosecute.

Brown sued the City of Covington and several of its police officers and

Miller. The five claims against Miller, out of ten total in the initial complaint,

are the following:

Claim III: 42 U.S.C. § 1983 claim for depriving Brown of his

rights to a fair trial and due process of law;

Claim IV: 42 U.S.C. §§ 1983 & 1985(3) claims for conspiracy

to deprive Brown of his rights because of racial

animus;

Claim VII: State law claim for malicious prosecution;

Claim VIII: State law claim for intentional infliction of

emotional distress;

Claim X: State law claim for spoliation of evidence.

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No. 06-30887

The remaining claims were against other police officers and the City itself, who

are not parties to this interlocutory appeal. Miller filed a motion to dismiss,

arguing both that Brown had failed to state a claim and that Miller was entitled

to official immunity against Brown’s claims. The district court ordered Brown

to submit a reply brief in accordance with FED. R. CIV. P. 7(a) and our holding in

Schultea v. Wood3 to plead specific facts that would overcome Miller’s assertion

of qualified immunity. Brown complied. The district court then denied the

motion to dismiss, finding both that Brown had stated a claim and that Miller

was not entitled to qualified immunity on the basis of the pleadings and reply.

Miller timely appealed the denial of the qualified immunity defense.

II

We have appellate jurisdiction to review a district court’s order denying

a motion to dismiss on the basis of qualified immunity to the extent that it turns

on an issue of law.4 We review the district court’s denial of the qualified

immunity defense de novo, accepting all well-pleaded facts as true and viewing

them in the light most favorable to the plaintiff.5 In an interlocutory appeal of

a denial of qualified immunity, we have jurisdiction to consider only whether “a

certain course of conduct would, as a matter of law, be objectively unreasonable

in light of clearly established law.”6

A

3

See Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir. 1995) (en banc).

4

Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251 (5th Cir. 2005).

5

Id. at 252.

6

Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc).

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No. 06-30887

To prevail on a claim under 42 U.S.C. § 1983, “a plaintiff must first show

a violation of the Constitution or of federal law, and then show that the violation

was committed by someone acting under color of state law.”7 The qualified

immunity defense to such claims seeks to shield from liability government

officials performing discretionary functions “insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known.”8 Courts must evaluate claims of

qualified immunity in a two step process: first, a court must determine whether

the “facts alleged show the officer’s conduct violated a constitutional right”; if the

court finds a violation then it proceeds to the second step, which is to determine

whether “the right was clearly established . . . in light of the specific context of

the case.”9 “To be clearly established for purposes of qualified immunity, the

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”10 There need not be

“commanding precedent” that holds that the “very action in question” is

unlawful; the unlawfulness need only be “readily apparent from relevant

precedent in sufficiently similar situations.”11

7

Atteberry, 430 F.3d at 252-253.

8

Kinney, 367 F.3d at 349 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))

(internal quotation marks omitted).

9

Scott v. Harris, 127 S. Ct. 1769, 1774 (2007) (quoting Saucier v. Katz, 533 U.S. 194,

201 (2001)) (internal quotation marks omitted).

10

Atteberry, 430 F.3d at 256 (quoting Kinney, 367 F.3d at 349-50) (internal quotation

marks and alterations omitted).

11

Id. at 257 (internal quotation marks and citations omitted).

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No. 06-30887

Brown alleges two acts that he claims violated his rights. First, he alleges

that Miller overstated the results of the blood tests he conducted, effectively

fabricating evidence by overstating his results and putting forward misleading

scientific conclusions. Second, he alleges that Miller ran additional tests besides

those he reported (i.e., enzyme tests), that the results exculpated Brown, and

that Miller concealed, suppressed, or destroyed these results.

Brown alleges that Miller’s laboratory report “had no scientific basis [and]

grossly overstated the results of [the] laboratory results, and violated standard

procedures for analyzing blood–semen stains,” thus creating a “misleading and

materially inaccurate inculpatory serology report” when Miller knew he should

have reported that the results were inconclusive. A criminal defendant’s due

process rights are violated when the government obtains a conviction with

testimony that government agents know is false.12 In Geter v. Fortenberry, we

stated that “a police officer cannot avail himself of a qualified immunity defense

if he procures false identification by unlawful means . . . .”13 A false or

scientifically inaccurate report is equivalent to any other false evidence created

by investigators, such as a false police report; as we have stated, there is no

reason a government scientific expert “should enjoy immunity greater than that

of other investigators.”14 As the First Circuit held, “if any concept is

fundamental to our American system of justice, it is that those charged with

upholding the law are prohibited from deliberately fabricating evidence . . . .”15

12

See Napue v. Illinois, 360 U.S. 264, 269 (1959).

13

Geter v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988).

14

Keko v. Hingle, 318 F.3d 639, 644 (5th Cir. 2003).

15

Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004).

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No. 06-30887

And, as that court explained, the right of criminal defendants to be free from

false or fabricated evidence was well settled by 1959 or earlier.16 On facts

similar to those in this case, the Tenth Circuit concluded that the laboratory

technician was not entitled to qualified immunity for the allegedly false reports

made in 1986.17 We therefore hold that the deliberate or knowing creation of a

misleading and scientifically inaccurate serology report amounts to a violation

of a defendant’s due process rights, and that a reasonable laboratory technician

in 1984 would have understood that those actions violated those rights. The

district court did not err in denying qualified immunity on this theory.

Brown also alleges that Miller concealed, suppressed, or destroyed lab

results that were conclusively exculpatory with respect to Brown. The Supreme

Court held in Brady v. Maryland that a criminal prosecutor’s failure to disclose

exculpatory evidence to a criminal defendant violates a defendant’s right to a

fair trial.18 A police officer’s deliberate concealment of exculpatory evidence

violates this same right, and can give rise to liability under § 1983.19 By 1967,

a public official’s concealment of exculpatory evidence was a constitutional

violation in this circuit.20 Therefore, the law was sufficiently clear in 1984 that

a state crime lab technician would have known that suppression of exculpatory

16

See id. at 45 (citing Napue, 360 U.S. at 269).

17

Pierce v. Gilchrist, 359 F.3d 1279, 1298-1300 (10th Cir. 2004).

18

See Brady v. Maryland, 373 U.S. 83, 86-87 (1963).

19

See Geter v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988).

20

See Burge v. Parish of St. Tammany, 187 F.3d 452, 480 n.11 (5th Cir. 1999) (citing

Luna v. Beto, 391 F.2d 329, 332 (5th Cir. 1967)) (holding that “concealing exculpatory evidence

by police officers” was a constitutional violation in this circuit by 1967).

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No. 06-30887

blood test results would violate a defendant’s rights. Miller does not argue

otherwise. We therefore hold that the district court did not err in denying the

qualified immunity defense on this theory.

B

Section 1985(3) prohibits persons from conspiring “for the purpose of

depriving, either directly or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities under the

laws . . . .”21 Brown alleged in his complaint and reply that Miller overstated

results and concealed exculpatory results in furtherance of a conspiracy with the

other investigating police officers in order to arrest and convict Brown because

of his race. In his reply brief, Brown alleged specific facts that would either

directly or inferentially support his claims, including: the rape victim was white

and Brown is black; that a police officer wrote to Miller that the suspect was a

“young Black Male” and had been identified via line-up; that Miller created a

false and misleading lab report positively identifying Brown as the rapist; that

Miller suppressed exculpatory test results; and that Miller and the other officers

were motivated by racial animus against Brown.

On appeal, Miller argues only that Brown failed to sufficiently plead a

§ 1985 cause of action. He never argues that he is entitled to qualified immunity

even if the allegations, including conspiracy and racial animus, are true. Miller’s

argument about the § 1985 claim is therefore merely an attack on the district

court’s denial of his motion to dismiss for failure to state a claim. In this

interlocutory appeal, we have jurisdiction only to consider the question whether

Miller is entitled to qualified immunity as a matter of law. We do not have

21

42 U.S.C. § 1985(3).

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No. 06-30887

jurisdiction to review the simple denial of a motion to dismiss for failure to state

a claim.22 We therefore dismiss this portion of Miller’s appeal.

C

Finally, we will address Brown’s state law claims. Our jurisdiction to

review denials of motions to dismiss on the basis of qualified immunity is

procedural, and derives from 28 U.S.C. § 1291 rather than from substantive

federal law.23 Because federal courts use federal procedure even when applying

state law, we give interlocutory review to denials of motions to dismiss state law

claims on the basis of qualified immunity, regardless of whether state courts,

applying their own procedure, would do the same.24 In evaluating a motion to

dismiss a state claim on the grounds of qualified immunity, federal courts must

apply the state’s substantive law of qualified immunity.25 But Miller has not

argued that he has qualified immunity against the state law claims under the

Louisiana law of qualified immunity. He argues only the federal law of qualified

immunity in his motions to dismiss before the district court and in his appellate

briefs. Accordingly, he has waived any assignments of error regarding the denial

of his motion to dismiss the state law claims on the basis of qualified immunity.

* * *

For these reasons, we AFFIRM IN PART, DISMISS IN PART, and

REMAND for further proceedings.

22

See Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251-52 (5th Cir. 2005).

23

See Johnson v. Fankell, 520 U.S. 911, 921 (1997) (holding that state courts need not

provide interlocutory review of denials of motions to dismiss on the basis of qualified immunity,

even for federal claims).

24

Sorey v. Kellett, 849 F.2d 960, 961-63 (5th Cir. 1988).

25

Id.

10