Bembenek v. Donohoo

• Decision Date: 28 January 2005
• Docket Number: No. 04C0002.,04C0002.
• Citation: 355 F.Supp.2d 942
• Parties: Laurie BEMBENEK, Plaintiff, v. Robert DONOHOO, Monty Lutz, and Diane Hanson, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

355 F.Supp.2d 942

Laurie BEMBENEK, Plaintiff, v. Robert DONOHOO, Monty Lutz, and Diane Hanson, Defendants.

No. 04C0002.

United States District Court, E.D. Wisconsin.

January 28, 2005.

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Mary Woehrer, Milwaukee, WI, for Plaintiff.

Phillip Ferris, Corey Finkelmeyer, Madison, WI, for Defendants.

DECISION AND ORDER

ADELMAN, District Judge.

Plaintiff Laurie Bembenek brings this action for damages under 42 U.S.C. § 1983 alleging that Milwaukee County Deputy District Attorney Robert D. Donohoo, state crime lab firearms identification examiner Monty Lutz and micro-serology analyst Diane Hanson, in their individual capacities, violated her right to due process in connection with a homicide case in which she was the defendant.¹ Defendants move to dismiss arguing that plaintiff's claims are barred because: (1) her 1992 conviction of second-degree murder has not been invalidated; (2) defendants are absolutely immune from suit; and (3) the statute of limitations expired before plaintiff filed suit. Alternatively, defendants ask that plaintiff's action be stayed pending resolution of state court proceedings involving plaintiff.

I. PLAINTIFF'S ALLEGATIONS

Plaintiff's allegations are in some respects frustratingly unclear. However, taking her claims in the light most favorable to her, she appears to allege something along the following lines: in the early 1980s, the Milwaukee County District Attorney's office charged her with the first-degree murder of Christine Schultz. In March 1982, a jury found her guilty of the charge, and the court sentenced her to life in prison. Prior to trial, defendant Lutz supervised ballistics tests which indicated that the murder bullet was consistent with bullets test fired from the on-duty gun of the victim's ex-husband, police officer Elfred Schultz, a gun that at trial was not connected to plaintiff. Lutz also supervised the preparation of notes memorializing these exculpatory test results. However, neither Lutz nor anyone else made the ballistics evidence or the notes available to plaintiff's counsel. Moreover, at trial, Lutz made no mention of his exculpatory findings but, rather, testified to a ballistics match between the murder bullets and bullets from Elfred Schultz's off-duty gun, a gun that at trial was connected to plaintiff. In the mid-1980's Lutz destroyed the exculpatory ballistics evidence and did not notify plaintiff that he had done so.

At some point, defendant Donohoo became aware that Lutz had destroyed such evidence. Nevertheless, he misrepresented to plaintiff that the state possessed ballistics evidence that incriminated her.

Prior to trial, Hanson performed tests on specimens received from the victim's body. These specimens indicated that the victim had engaged in sexual intercourse shortly before her death. As a result, Hanson listed the murder as a homicide/sexual assault. However, in reporting her findings, Hanson did not disclose the evidence of the victim's recent sexual intercourse or that she had listed the case as a homicide/sexual assault. Hanson's failure to report the evidence relating to recent sexual conduct caused Dr. Elaine Samuels, the county medical examiner, to incriminate plaintiff in her testimony at plaintiff's preliminary hearing. Had Samuels known of Hanson's findings, she would have testified that the murderer was a male.

Sometime subsequent to her trial, plaintiff employed a private investigator, Ira Robins, to investigate the case. Robins's investigative efforts led five forensic pathologists to conclude that the gun introduced as the murder weapon at plaintiff's trial, Elfred Schultz's off-duty gun, was not the murder weapon. In 1991, based on the petition of Robins and the county medical examiner, a Milwaukee County Circuit Court judge commenced a John Doe proceeding to ascertain whether law enforcement officials or others committed crimes in connection with their handling of the investigation into Schultz's death. In 1992, the John Doe special prosecutor concluded that law enforcement officials made mistakes in handling the evidence used to convict plaintiff but did not commit a crime.

Subsequent to the John Doe proceeding, plaintiff's then-attorney, Sheldon Zenner, entered into negotiations with Donohoo concerning plaintiff's case. As a condition of negotiating with Zenner, Donohoo insisted that Robins not be involved in the case and, as a result, Zenner fired Robins. In addition, although he knew that the state possessed no ballistics evidence connecting plaintiff to the crime, Donohoo continued to misrepresent to plaintiff that the state retained the ballistics evidence used to convict her, and that it placed the murder weapon, the off-duty gun of Elfred Schultz, in her hands.

In December 1992, pursuant to Zenner's negotiations with Donohoo, the Milwaukee County Circuit Court vacated plaintiff's first-degree murder conviction, and plaintiff pleaded no-contest to the second-degree murder of Schultz and was immediately released from prison. Plaintiff pleaded no-contest to the charge because defendants Lutz and Hanson failed to disclose exculpatory evidence and because Donohoo misrepresented that the state possessed incriminating ballistics evidence.

In 2002, pursuant to newly enacted Wis. Stat. § 974.07, plaintiff filed a motion in Milwaukee County Circuit Court seeking release of evidence for the purpose of DNA testing and exoneration of the Schultz murder. In January 2003, during a hearing on the motion, plaintiff learned that Lutz had destroyed the test-fired bullets creating the alleged ballistic match with the gun used to convict her and that as a result, Donohoo's representations to her that the state possessed ballistics evidence were false. Plaintiff also discovered that Hanson had found exculpatory evidence but not made it available. In May 2003, the state crime lab conducted a new ballistics examination and found no match between the bullets fired from the off-duty gun used to convict plaintiff and the bullet retrieved from the body of the victim.

As a result of defendants' failures to disclose, wrongful acts and misrepresentations, plaintiff suffered damages by being denied access to exculpatory evidence and wrongfully convicted of the Schultz murder.

II. MOTION TO DISMISS STANDARD

Defendants make a motion which they characterize as a motion to dismiss under Rule 12(b)(6). However, before filing the motion defendants filed an answer to plaintiff's complaint. Rule 12(b)(6) motions filed after an answer are construed as motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). See Warzon v. Drew, 60 F.3d 1234, 1237 (7th Cir.1995). However, like a Rule 12(b)(6) motion, a court may grant a motion under Rule 12(c) only if the plaintiff can prove no set of facts that would entitle her to relief. N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 453 (7th Cir.1998) (citing Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.1997)). The essence of the motion is not that the plaintiff has pleaded insufficient facts; it is that, even assuming all of her facts are accurate, she has no legal claim. Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999). In considering the motion, the court must assume that all facts alleged in the complaint are true, and construe those facts and all reasonable inferences flowing from them in the light most favorable to the plaintiff. Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1326 (7th Cir.1990). Attachments to the complaint become a part of the complaint, and the court may consider those documents in ruling on the motion. Witzke v. Femal, 376 F.3d 744, 749 (7th Cir.2004). Further, in resolving a motion challenging the sufficiency of a complaint, I am entitled to take judicial notice of matters in the public record. Palay v. United States, 349 F.3d 418, 425 n. 5 (7th Cir.2003).

III. DISCUSSION OF MOTION TO DISMISS

In order to prove a violation of § 1983, plaintiff must show that defendants deprived her of a federal constitutional right while acting under the color of state law. Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir.1996). In their motion, defendants do not argue that plaintiff's allegations, if true, do not constitute a violation of due process and do not dispute that they were acting under color of state law. However, as stated, they contend that plaintiff's claims are barred on other grounds. I now turn to their contentions.

A. Favorable Termination Requirement

Defendants argue that plaintiff's claims are barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because her 1992 second-degree murder conviction has not been invalidated. In Heck, a five member majority of the Supreme Court held that a § 1983 suit that would impugn a state conviction or sentence is not cognizable until the conviction or sentence has been invalidated.² The Court held:

in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.

Id. at 486-87, 114 S.Ct. 2364 (footnote omitted).

In footnote 10 of Heck, the majority opined that this "favorable termination" requirement applied even to § 1983 plaintiffs to whom other federal avenues for challenging their convictions, such as a petition for habeas corpus, were unavailable: "We think the principle barring collateral attacks — a longstanding and deeply rooted feature of both the common law and our own jurisprudence — is not rendered inapplicable by...