Alexander, Richard L v. City of South Bend ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2535
RICHARD L. ALEXANDER,
Plaintiff-Appellant,
v.
CITY OF SOUTH BEND, SOUTH BEND POLICE
DEPARTMENT, DARRELL GUNN, individually and
as Chief of the South Bend Police Department, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 02 C 397—Christopher A. Nuechterlein, Magistrate Judge.
____________
ARGUED JANUARY 5, 2005—DECIDED JANUARY 3, 2006
____________
Before KANNE, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Wrongly convicted of attempted
rape and several other crimes, Richard Lee Alexander
(“Alexander”) was sentenced to seventy years in prison
but released after five when newly discovered DNA evi-
dence exonerated him. Shortly after his release, Alexander
sued the City of South Bend, Indiana, its police department,
its police chief, and several officers. Alexander alleged that
South Bend and its officers violated his constitutional rights
by conducting a flawed criminal investigation that led to his
wrongful conviction. See 42 U.S.C. §§ 1983, 1985, and 1986.
2 No. 04-2535
He accused the officers of conducting faulty photo arrays
and a suggestive lineup, destroying evidence, and conspir-
ing to arrest him on the basis of race, and South Bend of
failing to train and supervise its officers. The district court
granted summary judgment in favor of South Bend and its
officers on all counts. We affirm.
I. Background
The parties’ attorneys have not presented the factual
background of this case in a clear and well-organized way;
the district court characterized Alexander’s pleadings as
“poorly written, convoluted, and confusing,” and the same
is true of his appellate briefs. As best we can reconstruct it,
here is the story told most favorably for Alexander (which
is how we must view it on review of a summary judgment
against him). Geschke v. Air Force Ass’n, 425 F.3d 337, 342
(7th Cir. 2005).
In the spring and summer of 1996, a series of sexual
assaults occurred in the River Park neighborhood of
South Bend, Indiana. South Bend police interviewed victims
and witnesses, but because the attacks occurred at night, no
one had clearly seen the attacker’s face. Working with few
leads, the police department put together a task force to
investigate the rapes. Police did their best to create a
composite sketch of the suspect—a young, black male—and
officers were told the suspect may be traveling around the
River Park neighborhood on a bicycle.
In the early morning hours of July 24, 1996, Alexander
was riding his bicycle through the River Park neighborhood
when he was stopped by police because he met the general
description of the suspect. Alexander denied any connection
with the sexual assaults. The officers photographed Alexan-
der and his bicycle and, after Alexander refused to surren-
der a blood sample, let him go. The police later stopped at
least two other black males in the River Park neighborhood
No. 04-2535 3
(one of whom was riding a bicycle) in connection with the
assaults.
In the hope of having the perpetrator identified, the police
showed victims and witnesses several photo arrays. The
police asked at least three of the victims to look at either
Alexander’s photo or an array containing his photo; not one
identified him as her attacker. Even the one victim who had
been face-to-face with her attacker could not identify
him—she, too, had been attacked in the dark and her
attacker wore a hood.
Two witnesses, on the other hand, identified Alexander in
photo arrays, though with differing levels of certainty.
Sylvia Agnone had witnessed an attack in late May 1996
from her apartment. In early June an officer showed her
two photo arrays. Agnone picked out a man named Jeffrey
Garza, indicating that she was 70% sure he was the
perpetrator. After police stopped Alexander in River Park
in late July, they showed Agnone another photo array, this
one including Alexander’s picture. Agnone did not iden-
tify anyone. In August 1996 Agnone viewed a third photo
array, again including Alexander. This time she picked
Alexander and claimed to be sure that he was the attacker
because of his facial features, though she had never de-
scribed the attacker’s facial features to the police.
Police also asked Michael Ditsch, another witness and the
fiancé of one of the victims, if he could identify the attacker.
Ditsch was with his fiancée the night she was assaulted.
Ditsch had been approached from behind by the attacker.
He was frisked and forced to lie on the ground; his glasses
were knocked off in the commotion. Shortly after the attack,
Ditsch described the assailant to police: a dark-skinned
black male about 5'9" tall, long face, no beard or mustache,
wearing a hood. Later, when shown a 1991 mug shot of
Alexander, Ditsch identified him as the attacker.
4 No. 04-2535
Police arrested Alexander and made him participate in a
lineup with five other men. Several of the men in the lineup
did not match certain aspects of descriptions given by
witnesses. Besides that, there were some dissimilarities
among the men who stood in the lineup: all were black
males, but their heights, builds, and hairstyles were
somewhat different, and two wore different-colored shirts
from the rest. The lineup participants were asked to repeat
several phrases that the attacker had used. Nine of the
victims and witnesses viewed the lineup together; appar-
ently several identified Alexander, although his briefs are
not specific on this important point.
Alexander was charged with numerous crimes against
multiple victims, including one count of rape and two counts
of attempted rape. Before trial, the prosecutor dropped the
charges associated with the rape because DNA evidence
from the victim’s rape kit showed that Alexander had not
committed that crime. Although the test results excluding
Alexander were kept on file, the rape kit itself was de-
stroyed. Alexander’s first trial resulted in a hung jury; a
second jury acquitted him of some charges but convicted
him of attempted rape and other offenses associated with
the attacks on two of the victims. Alexander’s briefs do not
describe the pretrial proceedings or the trial. Alexander was
sentenced to seventy years in prison.
The attacks in River Park did not end with Alexander’s
arrest and conviction, and police continued to investigate
the crimes. Eventually new DNA evidence surfaced that
proved Alexander had not committed the attacks for which
he was convicted. In December 2001 the prosecutor for St.
Joseph County, Indiana, and the public defender’s office
filed a joint motion to vacate Alexander’s convictions. After
more than five years in prison for crimes he did not commit,
Alexander was released.
No. 04-2535 5
Not long after his release, Alexander sued the City of
South Bend and a number of its police officials for violation
of his constitutional rights under color of state law. See 42
U.S.C. § 1983. The district court granted summary judg-
ment for the defendants on all claims, and Alexander
appealed.
II. Discussion
Alexander argues that South Bend and its police officers,
in both their individual and official capacities, violated his
constitutional rights in essentially four ways: (1) through
investigative shortcomings, including faulty photo ar-
rays, flawed witness interviews, and a suggestive lineup; (2)
by destroying evidence; (3) by conspiring to arrest Alexan-
der because of his race; and (4) by failing to train and
supervise officers properly. With the exception of the fourth
argument, which is a Monell claim against the City of South
Bend alone, there is no need to distinguish between the
individual capacity claims and official capacity claims
against the various defendants because Alexander has
failed to identify a constitutional violation on the part of
any actor or produce the most basic evidentiary support for
his claims. For that reason, we refer to the defendants
collectively as “South Bend.”
Summary judgment standards are familiar. We review a
grant of summary judgment de novo, applying the
same methods as the district court. Sartor v. Spherion
Corp., 388 F.3d 275, 277 (7th Cir. 2004). We will affirm a
summary judgment when the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with any affidavits, show that there is no genuine issue of
material fact and the movant is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A “material fact” is one that might
affect the outcome of the suit, given the relevant substan-
6 No. 04-2535
tive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A “genuine issue” of material fact exists when a
reasonable juror could find that the evidence supports a
verdict for the nonmoving party. Id. We consider all facts
and draw all reasonable inferences in favor of Alexander,
the nonmoving party. Sartor, 388 F.3d at 278. But if South
Bend can show the absence of some fact that Alexander
would have to prove at trial, Alexander must come forward
with evidence (not merely allegations) to show that a
genuine issue exists. Id.; see also Celotex, 477 U.S. at 322-23(“In our view, the plain language of Rule 56(c) mandates the
entry of summary judgment . . . against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which the
party will bear the burden of proof at trial.”).
A. Investigative Flaws
The first of Alexander’s claims centers on a number of
alleged flaws in the criminal investigation that led to his
conviction. He contends that in their zeal to solve the
River Park sexual assaults, the task force officers improp-
erly interviewed witnesses and carelessly conducted
photographic and lineup identification procedures. The
implication is that South Bend’s sloppy identification
techniques suggested to victims and witnesses that Alexan-
der was the man who committed these crimes. The district
court held that Alexander failed to identify evidence of any
constitutional violation. The district court was correct.
The Constitution does not require that police lineups,
photo arrays, and witness interviews meet a particular
standard of quality. See Hensley v. Carey, 818 F.2d 646, 648,
650 (7th Cir. 1987). It does, however, guarantee the right to
a fair trial—in this context, via the due process clause of the
Fourteenth Amendment—and that right is violated if
unduly suggestive identification techniques are allowed to
No. 04-2535 7
taint the trial. See Manson v. Brathwaite, 432 U.S. 98, 113
& n.13 (1977) (“Unlike a warrantless search, a suggestive
preindictment identification does not in itself intrude upon
a constitutionally protected interest.”); Hensley, 818 F.2d at
648. The Brathwaite standard for evaluating the admissibil-
ity of identification evidence focuses on whether the identifi-
cation procedure was unduly suggestive and whether the
resulting identification is reliable. Brathwaite, 432 U.S. at
113-14. Both suggestiveness and reliability are evaluated by
reference to the totality of the circumstances. Id.Grounded in due process, the constitutional interest
implicated in challenges to police identification procedures
is evidentiary in nature. Id. at 113 n.14; Hensley, 818 F.2d
at 648. Thus, we recognized in Hensley that the Brathwaite
rule regarding unduly suggestive identification proce-
dures “is a prophylactic rule designed to protect a core right,
that is the right to a fair trial, and it is only the violation of
that core right and not the prophylactic rule that should be
actionable under § 1983.” Hensley, 818 F.2d at 649. Accord-
ingly, South Bend cannot be liable under § 1983 unless
Alexander shows how the flaws in South Bend’s identifica-
tion techniques made his trial unfair. See id. (“Hensley has
no claim under § 1983 arising out of his participation in an
unduly suggestive lineup since he was not deprived of his
right to a fair trial.”).
But Alexander has told us almost nothing about his trial.
He has only very generally asserted that some of the
witnesses who viewed the photo arrays and lineup testified.
This is insufficient to forestall summary judgment.
Hensley’s point is this: flawed identification procedures
are not themselves constitutional violations; plaintiffs must
show how those flawed procedures compromised the
constitutional right to a fair trial. What identification
evidence was actually admitted at trial? What did the
victims, eyewitnesses, and police officers say? Were they
cross-examined? Were the circumstances surrounding the
8 No. 04-2535
identification and the police procedures put before the jury?
What exhibits were admitted on this issue? Was
any objection or motion to suppress the identification
evidence made? What other evidence tended to link the
defendant to the crime? Each of these factors—the list is
illustrative, not exhaustive—have a bearing on whether
a fair trial was had.
In Hensley there was never a trial—charges were brought
against Hensley following an allegedly suggestive lineup
but were dropped before trial. Id. at 647. The due process
right was therefore not implicated, and we affirmed a
summary judgment dismissing Hensley’s claim. Here, of
course, there was a trial, but that distinction alone is not
enough to carry Alexander’s burden. A plaintiff with this
kind of claim must demonstrate, by reference to the
Brathwaite standard, that unduly suggestive identification
procedures led to an unreliable identification that under-
mined the fairness of his trial. Hensley could not do it
because he was never tried; Alexander has not done it (even
if he could have). Simply saying that a witness was shown
a suggestive photo array or lineup and later testified is not
enough. That Alexander was later exonerated does not,
without more, make his case that a due process violation
has occurred.
Alexander has come up short because he has not made
any effort to describe how the police identification proce-
dures tainted his trial. He has not identified or prod-
uced the relevant portions of the trial transcript or even
described the pertinent trial testimony or evidence. He
has recited a litany of poor investigative practices, but
his argument is scattershot and does not direct us to
anything that occurred during the pretrial or trial proceed-
ings in the prosecution against him. Photos of the lineup
and photo array are in the record, but without the corre-
sponding trial testimony from the police, victims, and
No. 04-2535 9
eyewitnesses, we cannot conduct the appropriate legal
analysis.
It is telling that Alexander did not move to suppress
or otherwise object to the introduction of the identifica-
tion evidence on grounds of unconstitutional suggestive-
ness. Without the trial record we cannot determine whether
such a motion, had it been made, would or should have been
granted. The photos of the lineup and photo array do not
depict identification procedures so obviously suggestive and
unreliable as to establish, by themselves, a constitutional
violation. For its part, South Bend notes that the victims
and eyewitnesses were extensively cross-examined. Alexan-
der’s is a sympathetic case, but we cannot connect the dots
for him. That he must do on his own. Estate of Moreland v.
Dieter, 395 F.3d 747, 759 (7th Cir. 2005) (“We will not scour
a record to locate evidence supporting a party’s legal argu-
ment.”).
B. Destruction of Evidence
Alexander also maintains that South Bend violated his
constitutional rights by destroying evidence. Before his trial
began, a DNA analysis of samples in a rape kit excluded
Alexander as the assailant in the attack on one of the River
Park rape victims. After receiving the results of the DNA
analysis, South Bend threw out the rape kit and the
prosecutor dropped those charges. Alexander contends that
his right to the preservation of evidence was violated when
South Bend destroyed the rape kit. The argument is a
curious one, both because the charges against Alexander on
that attack were dismissed and because the results of the
DNA tests were preserved. It is unclear how Alexander
could have suffered an injury by the destruction of evidence
related to a crime for which he was not tried, particularly
when the results of tests on the evidence, which are all that
is probative, prove his innocence. Although the destruction
10 No. 04-2535
of the rape kit caused a delay in his trial, he remained
in pretrial custody on the other charges against him and
suffered no independent harm as a result of the delay.
C. Conspiracy
Alexander’s conspiracy claim—that South Bend arrested
him because he is black—fails for complete lack of evi-
dentiary support. In order to establish a civil conspiracy
under § 1985, Alexander must show that an actual con-
spiracy existed (in other words, that people agreed to injure
him), that its purpose was to deprive Alexander of his
constitutional rights, that an act was committed in further-
ance of the conspiracy, and that he was injured. See Green
v. Benden, 281 F.3d 661, 665 (7th Cir. 2002). Alexander
must also show a racial animus driving the conspiracy. Id.A conspiratorial agreement may be established by circum-
stantial evidence, but only if a reasonable jury could
conclude that the conspirators had, in fact, reached an
understanding that they sought to injure Alexander. Id.Alexander points out that the police picked up at least
three black men in connection with these attacks, that
the officers made phone calls to one another (sometimes
even when one officer was off duty), and that the lineups
and photo arrays were suggestive. He also notes that the
police did no surveillance of his residence. It is true that the
police stopped and investigated Alexander because he is
black, but this was not because of any racial animus.
Instead, the description of the attacker was one of a black
male. The police stopped Alexander because he fit the
general description of the black male they were looking
for. There is no evidence that South Bend was seeking black
males of a certain description for discriminatory reasons
rather than legitimate ones. The phone calls among officers
are nothing more than evidence that the officers remained
in contact as they investigated the crimes; without more, to
No. 04-2535 11
conclude that such phone calls establish a conspiracy is the
purest of conjecture. See Goetzke v. Ferro Corp., 280 F.3d
766, 778 (7th Cir. 2002) (noting that evidence of phone calls
between alleged conspirators, standing alone, is indicative
only of the fact that the individuals stayed in touch).
Alexander has failed to point to any evidence that suggests
a conspiracy was afoot or that anyone was motivated by
racial animus.
D. Monell Claim
Finally, Alexander argues that the City of South Bend
is liable because it has a policy or custom of inadequately
training and supervising its police officers, see Monell
v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690-
91 (1978), which led to improper identification proce-
dures, destruction of evidence, and racial conspiracies. This
argument need not detain us long. South Bend cannot
be liable under Monell unless it violated a constitutional
guarantee. Contreras v. City of Chicago, 119 F.3d 1286,
1294 (7th Cir. 1997). We have concluded that Alexander has
not created a triable issue on whether a constitu-
tional violation occurred.
Even if Alexander had shown a constitutional violation,
Monell requires him to show that South Bend adopted a
policy or had a custom of poor training or inadequate
supervision. Monell, 436 U.S. at 694. Alternatively, Alexan-
der could show that South Bend’s failure to train
or supervise its officers amounted to deliberate indifference
to the rights of people with whom the police came in
contact. City of Canton v. Harris, 489 U.S. 378, 388-89
(1989). Alexander has cited no evidence of a custom or
policy or of deliberate indifference. The sum total of Alexan-
der’s accusations is that South Bend’s police manual had no
information on how to conduct proper witness interviews,
photo arrays, or lineups, and that South Bend made several
12 No. 04-2535
errors handling his case. Allegations about what is not in
the manual hardly establish that South Bend adopted a
policy or had a custom of suggestive interviews, photo
arrays, or lineups, or that it was indifferent to people’s
rights. In addition, the shortcomings in this investigation
are not indicative of a custom or policy; rather, they are
indicative of one flawed investigation. Alexander cites to no
other suggestive lineups or photo arrays, no other conspira-
cies against blacks, and no other incidents of destroyed
evidence. Alexander’s Monell claim fails for a complete
absence of evidentiary support.
For the foregoing reasons, the decision of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-3-06