Portee et al v. County of Santa Clara et al

Filing 37

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Signed by Judge Richard Seeborg on 9/12/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 9/13/2011)

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*E-Filed 9/13/11*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

United States District Court
For the Northern District of California

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ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

Plaintiff,

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No. C 08-3566 RS (PR)

DAVID B. PORTEE,

v.
J. ALVARADO, et al.,
Defendants.
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INTRODUCTION
This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state

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prisoner. For the reasons stated herein, defendants’ motion for summary judgment is

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GRANTED as to all claims against all defendants.

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BACKGROUND

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The undisputed facts are as follows. In 1982, plaintiff was convicted in state court on

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multiple counts, including robbery, kidnapping, and rape, and was sentenced to 22 years and

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eight months, to be served concurrently with two life terms. After the state appellate court

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affirmed the convictions, plaintiff filed a motion to preserve the evidence in his case. In

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1986, the state superior court granted the motion.

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In 2004, petitioner attempted to have a piece of the evidence (a semen stain on a white

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No. C 08-3566 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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slip worn by one of the victims) tested for DNA identification purposes. In 2007, the San

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Jose Police Department informed plaintiff that all evidence pertaining to his case had been

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destroyed. Defendants assert that the evidence was destroyed in 1991, approximately ten

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years after plaintiff’s arrest. In the instant matter, plaintiff claims that the destruction of this

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evidence violated his rights (1) under the state court’s preservation order; and (2) the Due

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Process Clause. Plaintiff also claims that (3) defendants’ actions constituted negligence.

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DISCUSSION
I.

Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits

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United States District Court
For the Northern District of California

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demonstrate that there is “no genuine dispute as to any material fact and that the moving

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party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are

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those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a

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reasonable jury to return a verdict for the nonmoving party. Id.

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The party moving for summary judgment bears the initial burden of identifying those

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portions of the pleadings, discovery and affidavits which demonstrate the absence of a

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genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an

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issue for which the non-moving party will have the burden of proof at trial, as is the case

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here, the moving party need only point out “that there is an absence of evidence to support

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the nonmoving party’s case.” Id. at 325.

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Once the moving party meets its initial burden, the nonmoving party must go beyond

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the pleadings and, by its own affidavits or discovery, show that a material fact is genuinely

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disputed. Fed. R. Civ. P. 56(c). The court is only concerned with disputes over material

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facts and “factual disputes that are irrelevant or unnecessary will not be counted.” Anderson,

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477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine issue

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of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party

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has the burden of identifying, with reasonable particularity, the evidence that precludes

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No. C 08-3566 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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summary judgment. Id. If the nonmoving party fails to make this showing, “the moving

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party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323.

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II.

Claims

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A.

Alleged Violation of State Superior Court Order

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Plaintiff’s claim, insofar as it is based on an alleged violation of the state superior
court order, fails. Section 1983 provides a cause of action only for deprivations of federal

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constitutional or statutory rights. Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990)

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(quoting 42 U.S.C. § 1983). Court orders do not establish rights actionable under § 1983.

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See Middlesex County Sewerage Authority v. National Sea Clammers Assoc., 453 U.S. 1, 20

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United States District Court
For the Northern District of California

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(1981). There are other remedial devices, such as contempt proceedings, available to ensure

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enforcement of court orders. Green v. McKaskle, 788 F.2d 1116, 1123 (5th Cir. 1986).

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Because the state superior court order cannot serve as the basis for § 1983 liability,

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defendants’ motion for summary judgment is GRANTED.

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B.

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Plaintiff also claims that defendants violated his right to due process by destroying

Due Process

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evidence. The government has a duty under due process to preserve material evidence, i.e.,

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evidence whose exculpatory value was apparent before it was destroyed and that is of such a

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nature that the defendant cannot obtain comparable evidence by other reasonably available

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means. See California v. Trombetta, 467 U.S. 479, 489 (1984); Grisby v. Blodgett, 130 F.3d

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365, 371 (9th Cir. 1997). The exculpatory value of the evidence must be “apparent”; the

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possibility that evidence could have exculpated a defendant if preserved and tested is

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insufficient to satisfy the standard of constitutional materiality in Trombetta. Arizona v.

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Youngblood, 488 U.S. 51, 56 n.* (1988). In addition, a petitioner must show bad faith on the

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part of the police in destroying the evidence. “Unless a criminal defendant can show bad

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faith on the part of the police, failure to preserve potentially useful evidence does not

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constitute a denial of due process of law.” Id. at 58 (1988). “The presence or absence of bad

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faith by the police for purposes of the Due Process Clause must necessarily turn on the

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No. C 08-3566 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.

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police’s knowledge of the exculpatory value of the evidence at the time it was lost or

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destroyed.” Id. at 56 n.* (citations removed).

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Plaintiff has not shown that his due process rights were violated. First, he not shown

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that the untested semen sample had exculpatory value apparent before it was destroyed. As it

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was untested, there was no exculpatory value apparent prior to the destruction. Second, even

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if DNA testing showed that the semen sample was not plaintiff’s, he has not alleged any facts

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or presented any evidence of an exculpatory nature. Viewing the evidence in a light most

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favorable to plaintiff, it may have shown at most that the slip came into contact with semen

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not originating from plaintiff. He has not shown how this overcomes, or even challenges, the

United States District Court
For the Northern District of California

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evidence supportive of his guilt that was presented at trial, or raises the possibility that the

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outcome of the proceeding would have been different, U.S. v. Bailey, 473 U.S. 667, 682

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(1985). Third, plaintiff has not alleged, raised an inference, nor made any showing that

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defendants acted in bad faith, i.e., that they knew of the exculpatory value of the evidence

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and destroyed it all the same. Accordingly, defendants’ motion for summary judgment as to

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this claim is GRANTED.

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C.

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Negligence is a state tort, not the basis for a § 1983 claim. The Court declines to

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exercise supplemental jurisdiction over this claim because the federal claims have been

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resolved. Furthermore, negligence is insufficient to show bad faith, and therefore cannot

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constitute a due process violation. See Grisby, 130 F.3d at 371.

Negligence

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CONCLUSION

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Defendants’ motion for summary judgment (Docket No. 33) is GRANTED. The

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Clerk shall enter judgment in favor of defendants as to all claims, terminate Docket No. 33,

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and close the file.

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IT IS SO ORDERED.

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DATED: September 12, 2011
RICHARD SEEBORG
United States District Judge

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No. C 08-3566 RS (PR)
ORDER GRANTING MOT. FOR SUMM. J.