The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER: 1) GRANTING MOTIONS TO DISMISS ON BEHALF OF DEFENDANTS EDMOND G. BROWN, SAN DIEGO POLICE DEPARTMENT AND DETECTIVE J. DREIS PURSUANT TO FED.R.CIV.P. 12(b)(6) [Doc. Nos. 10, 12] AND 2) GRANTING MOTION TO DISMISS COMPLAINT ON BEHALF OF DEFENDANT BONNIE DUMANIS PURSUANT TO FED.R.CIV.P.12(b)(6) [Doc. No. 13]
Nathan Kevin Turner ("Plaintiff") has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 seeking post-conviction access to biological evidence introduced against him during his 1982 trial for peeping, burglary, rape and robbery. Plaintiff claims California's Attorney General Edmond G. Brown, San Diego County District Attorney Bonnie Dumanis, the San Diego Police Department, its Crime Lab, and San Diego Police Detectives J. Dreis and A. Fragoso ("Defendants"), have violated his Fifth, Sixth, Eighth and Fourteenth Amendment rights by either refusing to provide him with access to, or "in bad faith" destroying, this physical evidence. Plaintiff asserts this evidence if now subject to DNA testing not available at the time of his trial twenty-six years ago, would "completely and irrefutably exonerate [him]." (Compl. ¶¶ 15-17, 91-97.)
II. Defendants' Motions to Dismiss
Defendants Brown, Dumanis, the San Diego Police Department and Detective J. Dries have filed three separate motions to dismiss Plaintiff's Complaint for failure to state a claim upon which § 1983 relief can be granted pursuant to FED.R.CIV.P. 12(b)(6) [Doc. Nos. 10, 12, 13].*fn1
First, Defendant Brown moves to dismiss on grounds that he may not be held liable based on a respondeat superior theory. Brown further argues Plaintiff's claims are untimely, precluded by the 'favorable termination' doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994), and barred by collateral estoppel. See P&As in Supp. of Def. Brown's Mot. to Dismiss (hereafter 'Brown MTD') at 3-8. Second, Defendants San Diego Police Department ("SDPD") and Detective J. Dreis move to dismiss on grounds that Plaintiff's Complaint fails to comply with FED.R.CIV. P. 8, the SDPD is not a 'person' subject to suit under § 1983, and Plaintiff has failed to allege any personal acts on the part of Detective Dreis which may support any constitutional violation. See P&As in Supp. of Defs. City of San Diego & J. Dreis' Mot. to Dismiss (hereafter "City MTD") at 3-8. Finally, Defendant Bonnie Dumanis acknowledges the Ninth Circuit has recognized a limited due process right to seek post-conviction access to biological evidence in a § 1983 action in Osborne v. District Attorney's Office, 521 F.3d 1118 (9th Cir. 2008), pet. for cert. granted, 129 S.Ct. 488 (U.S. Nov. 3, 2008) (No. 08-6). However, Dumanis nevertheless seeks dismissal on grounds that Plaintiff's Complaint seeks relief based on claims distinguishable from those recognized in Osborne. See P&As in Supp. of Def. Bonnie Dumanis' Mot. to Dismiss (hereafter "Dumanis MTD") at 5-6.
A. Standard of Review Pursuant to FED.R.CIV.P.12(b)(6)
A Rule 12(b)(6) dismissal may be based on either a "'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's complaint must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)). "Specific facts are not necessary; the statement need only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (internal quotation marks omitted).
Still, every complaint must, at a minimum, plead "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, __, 127 S.Ct. 1955, 1974 (2007); Weber v. Dept. of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). Facts which are alleged in the complaint are presumed true, and the court must construe them and draw all reasonable inferences from them in favor of the plaintiff. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).
In addition, factual allegations asserted by pro se petitioners, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519-20 (1972). Thus, where a plaintiff appears in propria persona in a civil rights case, the Court must construe the pleadings liberally and afford plaintiff any benefit of the doubt. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).
Nevertheless, and in spite of the deference the court is bound to pay to any factual allegations made, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Nor must the court "accept as true allegations that contradict matters properly subject to judicial notice or by exhibit" or those which are "merely conclusory," require "unwarranted deductions" or "unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), amended on other grounds, 275 F.3d 1187 (9th Cir. 2001); see also Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (court need not accept as true unreasonable inferences or conclusions of law cast in the form of factual allegations).
B. Plaintiff's Allegations
Plaintiff claims to have been "formally charged with fifty-five counts ranging from peeping, burglary, rape [and] robbery while armed with a deadly weapon," was represented by counsel at trial, convicted on March 22, 1982, and sentenced to a "very lengthy determinant state prison term" of 174 years and 4 months. (Compl. ¶¶ 15, 25.) Plaintiff alleges that during investigation and trial, "the biological evidence, that is, 'all' the semen samples taken directly from the victims['] multiple slides, e.g., vaginal smears, mouth smears and [a] tampon" were tested by the San Diego Police Department crime lab and revealed to be blood type "A" and "B." Plaintiff claims his blood type is "O." (Id. ¶¶ 17-19.) Plaintiff alleges that when this "became known to the prosecution, [he] was offered 75 years to plead to all counts," but he refused to plea because "he would be pleading guilty to crimes that he did not commit and did not believe in face of all the overwhelming physical that excluded [him], that he would be found guilty." (Id. ¶ 19.)
Plaintiff alleges his trial commenced on January 11, 1982. (Id. ¶ 22.) Throughout trial, Plaintiff claims he "maintained his innocence of any crimes of robbery, rape, burglary and peeping" against all 18 victims, claiming he "had absolutely nothing to do with these crimes."
(Id. ¶¶ 16, 23.) However, "in order for [the] prosecution to undermine th[e] explosive evidence that was completely in [his] favor," and "in order to get a conviction ... notwithstanding [his] innocence," Plaintiff claims prosecutors "introduced a false/alleged confession, and several inconclusive samples that did not match [his] DNA blood type." (Id. ¶ 20.) Plaintiff claims Defendant San Diego Police Detectives J. Dreis and A. Fragoso "were responsible for" the introduction of this evidence. (Id.) Plaintiff further claims he was "denied access to test and evaluate this evidence" at trial because his trial counsel "never employed the services of an expert witness or an investigator to confirm the prosecutor's findings," and the judge denied "all requests for funds to employ such services." (Id. ¶ 21.)
Plaintiff claims he was convicted on March 22, 1982, that his conviction was affirmed by the California Court of Appeal "on or about March 30, 1983." (Id. ¶ 24.) Plaintiff claims the issues raised in his direct appeal in California's Fourth District Court of Appeal, Case No. 13857 included challenges to the admissibility of a confession influenced by PCP use, incompetent counsel, the trial court's refusal to appoint new counsel, its failure to properly instruct an alternate juror and the imposition of an "unconstitutional" sentence. (Id. ¶ 26.) Plaintiff alleges his appeal was rejected as "meritless" and both his conviction and sentence were affirmed. (Id.)
Plaintiff also refers to a "direct appeal" which was "lost in August 26, 1983," and claims it is "unclear" whether he filed a petition for review with the California Supreme Court. (Id. ¶ 25.) He further alleges that "according a the federal case opinion," which may be either Plaintiff's initial habeas corpus petition filed on March 10, 1985, or his Ninth Circuit appeal in Turner v. Compoy, 827 F.2d 526 (9th Cir. 1987), the "State Supreme Court summarily denied a petition for review [of Plaintiff's direct appeal] without comment." (Id. ¶¶ 27-34.) Plaintiff alleges the filing and decision date, as well as the issues raised in his petition for review to the California Supreme Court, are "unknown." (Id. ¶ 27.)
From that time on, Plaintiff alleges to have had "litigation ongoing until the AEDPA [Anti-Terrorism and Effective Death Penalty Act] of 1996," including numerous state and federal petitions for writ of habeas corpus. (Id. ¶¶ 24, 28-40.) In at least one of these petitions, San Diego Superior Court Case No. HC14929, which was denied on May 19, 1997, Plaintiff claims to have raised eleven grounds for relief, including one challenge to the "introduction and use of DNA evidence." (Id. ¶ 38.) A writ of habeas corpus followed in the Fourth District Court of Appeal, Case No. D029361, which likewise raised a claim of "excluded exculpatory DNA evidence." However, on October 3, 1997, this petition was also denied because Plaintiff "did not present a prima facie case." (Id. ¶ 39.)
Plaintiff filed another state habeas corpus petition in San Diego Superior Court Case No. HC14929 (2d Petition) which he claims was denied on March 13, 1998, for "failing to provide justification for filing numerous habeas claims." (Id. ¶ 40.) Plaintiff claims this petition included a motion to introduce new DNA evidence. (Id.)
Sometime in 2000 or 2001, Plaintiff alleges to have contacted the Innocence Project at Cardoza School of Law and through them was able to obtain "all the destruction orders" for his case. (Id. ¶ 42.) Plaintiff admits an Order to destroy or release trial exhibits in his criminal case was issued by the San Diego Superior Court sometime in either February or August 1987. (Id. ¶¶ 25, 68.)
However, on December 4, 2002, Plaintiff alleges he filed a motion in San Diego Superior Court requesting the retention of biological material pursuant to California Penal Code § 1417.9, the performance of DNA testing, appointment of counsel and a new trial ...