876 F2d 897 Tucker v. City of Tucson

876 F.2d 897

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Eugene W. TUCKER, Plaintiff-Appellant,
CITY OF TUCSON, et al., Defendants-Appellees.

No. 87-2736.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 5, 1988.
Decided June 9, 1989.*

Alfredo C. Marquez, District Judge, Presiding.

Before Wallace, Sneed and Poole, Circuit Judges.

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The appellant, Eugene W. Tucker, appeals a district court order dismissing his claim under 42 U.S.C. Sec. 1983 against the Tucson Police Department and certain of its employees.


Tucker claims that his constitutional rights were violated when employees of the Tucson Police Department destroyed allegedly exculpatory physical evidence gathered in connection with his arrest on August 8, 1984. He was convicted of first degree murder on August 19, 1985.


On March 6, 1986, Tucker sued the City of Tucson, the Tucson Police Department and Gerri Cady, a lab technician in the district court for violation of his civil rights. The complaint charged that Cady deprived Tucker of potentially exculpatory evidence when she destroyed three fingerprints lifted from a .38 Charter Arms Revolver after determining that they had no forensic value. The district court dismissed that complaint and this court affirmed for failure to state a claim in an unpublished memorandum disposition. Tucker v. City of Tucson, et al., No. 86-2183, September 15, 1987.


On September 17, 1987, Tucker filed a second complaint which is before us now, again alleging that the destruction of physical evidence violated his constitutional rights. In addition to the three original defendants, this suit names five new individuals as defendants: Gonzalez, Lowe, Schwartz, Heller and Tannert, all employees of the Tucson Police Department.


Tucker alleges that Gonzalez, Lowe, Schwartz and Heller each handled the gun before it was tested for fingerprints by Cady, thereby destroying potentially exculpatory evidence. Tannert allegedly received several items in connection with the case, including the gun, a shell case, a bullet, several .38 cartridges and a white T-shirt. According to Tucker, his constitutional rights were violated when Tannert failed to examine the T-shirt and the cartridges for exculpatory evidence. He further alleges that Tannert "caus[ed] the destruction of any physical evidence that was inside the weapon or the shell case, and the bullet" when he examined these items.


The district court dismissed this second complaint, holding that res judicata bars a relitigation of what is essentially the same claim. The doctrine of res judicata provides that "a final judgment on the merits bars further claims by parties or their privies based on the same cause of action." Montana v. United States, 440 U.S. 147, 153 (1979). Res judicata clearly bars Tucker's attempt to renew his claims against Cady based on her decision to destroy the fingerprints.

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However, to the extent that Tucker has raised new claims against new defendants, res judicata does not apply. Although the district court dismissed Tucker's second complaint on the grounds that res judicata barred all of his claims, we may affirm its decision on any basis supported by the record. Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir.1986).


In this case, as in the first, Tucker has failed to state a claim on which relief may be granted. In Arizona v. Youngblood, 109 S.Ct. 333 (1988), the Supreme Court recently clarified the government's constitutional duties regarding the preservation of physical evidence in connection with a criminal proceeding. It held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id. at 337. Moreover, it stated that "the police do not have a constitutional duty to perform any particular tests." Id. at 338.


Although Tucker asserts that the defendants conspired to deprive him of his constitutional rights, the facts alleged do not support his claim of bad faith on the part of the defendants. Gonzalez, Lowe, Schwartz and Heller each handled the gun as a part of their routine duties investigating a crime. Tucker makes no specific allegations that their examination and testing of the gun departed from normal procedures or that any resulting destruction of physical evidence was deliberate. At worst, their conduct was negligent.


Similarly, Tucker fails to allege facts sufficient to support a claim that Tannert acted in bad faith. While it is unclear how his examination of the inside of the weapon, the shell case and the bullet might have destroyed any physical evidence, his actions were clearly taken as part of a routine investigation and in good faith. Even assuming that the T-shirt and the cartridges might somehow have proven material to Tucker's case, Tannert had no constitutional duty to perform any particular tests. Tucker makes no allegation that the existence of these items was concealed from him or that he was denied access to them in preparing his defense.


Under the facts alleged by Tucker, no violation of his constitutional rights has occurred. Having failed to state a claim on which relief may be granted, Tucker's complaint was properly dismissed.


The order of the district court is AFFIRMED.


The panel unanimously finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Federal Rule of Appellate Procedure 34(a)


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3