Cunningham v. Dist. Attorney's Office for Escambia

• Citation: 592 F.3d 1237
• Decision Date: 06 January 2010
• Docket Number: No. 07-10808.,07-10808.
• Parties: Dewayne S. CUNNINGHAM, Plaintiff-Appellant, v. DISTRICT ATTORNEY'S OFFICE FOR ESCAMBIA COUNTY, Defendant, Stephen M. Billy, Town of Flomaton, A Municipal Corporation, Attorney General, Troy King, Chief of Police, Michael Lambert, Circuit Court Clerk, James Taylor, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

592 F.3d 1237

Dewayne S. CUNNINGHAM, Plaintiff-Appellant, v. DISTRICT ATTORNEY'S OFFICE FOR ESCAMBIA COUNTY, Defendant, Stephen M. Billy, Town of Flomaton, A Municipal Corporation, Attorney General, Troy King, Chief of Police, Michael Lambert, Circuit Court Clerk, James Taylor, Defendants-Appellees.

No. 07-10808.

United States Court of Appeals, Eleventh Circuit.

January 6, 2010.

Keith A. Findley, University of WI Law School, John David Myer, Ann M. Peacock, Matthew D. Lee, Foley & Lardner, LLP, Madison, WI, Arthur J. Madden, III, Madden & Soto, Mobile, AL, for Cunningham.

Jasper Beroujon Roberts, Jr., J. Clayton Crenshaw, AL Atty. Gen. Office, Montgomery, AL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before BLACK and CARNES, Circuit Judges, and RESTANI,^* Judge.

CARNES, Circuit Judge:

Dewayne S. Cunningham is an Alabama prisoner serving a life sentence after having been convicted in 1996 of rape in the first degree. A decade after he was convicted, eight years after his conviction became final at the end of the direct appeal process, and following more than half a dozen separate attacks on his conviction in state and federal court, Cunningham filed a 42 U.S.C. § 1983 lawsuit. This lawsuit, brought on Cunningham's behalf by the Wisconsin Innocence Project, seeks an order requiring Alabama authorities to send certain evidence to a forensic laboratory of Cunningham's choice for DNA testing. He hopes that the results will show that he is innocent.

The district court dismissed Cunningham's § 1983 complaint for failure to state a claim as to those defendants who had not filed an answer and granted judgment on the pleadings for those defendants who had filed an answer. This is Cunningham's appeal from that judgment.

I. Facts

The evidence presented at the 1996 trial in which Cunningham was convicted of rape provides critical context to his contention that he is factually innocent and affects the load-bearing capacity of that contention as a vehicle for the legal freight he would have it carry. The evidence, which we will set out in detail, establishes beyond a shadow of a doubt that Cunningham suffers from serious mental problems that resulted in his being confined in institutions for much of his life and that caused him to engage in some grossly inappropriate behavior. His sexual assault of a woman while he was confined in a mental institution in 1986 did not result in prosecution, but what he was accused of doing to another woman in 1995 while outside a mental institution resulted in a charge of rape in the first degree.

To that charge Cunningham pleaded not guilty and not guilty by reason of insanity. As a result of his dual plea, the trial was bifurcated. During the first stage the jury heard evidence on the question of whether Cunningham had committed the rape and returned a verdict finding that he had. Then, at the second stage of the trial, evidence about Cunningham's extensive history of mental health problems was presented in order for the jury to determine his mental state at the time of the rape. After hearing that evidence, the jury returned a second verdict rejecting Cunningham's plea of not guilty by reason of insanity. We will set out the facts more or less in the order they actually occurred.

A. Cunningham's Psychiatric History

In 1983, when he was thirteen, Cunningham was hospitalized for two months in Mesa Vista Hospital, a mental health institution in San Diego, after he had, according to a later report, "exposed himself, and was talking about cutting off his penis." (R2:210). While there, he was diagnosed as having chronic undifferentiated schizophrenia (id.), which involved "significant episodes of a breakdown in his thinking processes" and which prevented "think[ing] in a logical rational manner." (R12:752). An individual with that diagnosis has a "thinking and emotional state [that] does not correspond to reality," and he often does "not react to various life circumstances as a normal person would react." (Id.)

After Cunningham was discharged from Mesa Vista Hospital, he was transferred to MacLaren Hall, another facility, to await placement. (R2:211). While there Cunningham engaged in some bizarre behavior described in the records as follows: "[H]e removed his clothing, urinated on the floor, put his finger which was contaminated with urine into his mouth. He inserted the same finger into his anus, then took it out and put it in his mouth." (Id.). Dr. Terence W. Campbell, a forensic psychologist who testified on Cunningham's behalf at the trial, later noted in his report that someone who engages in that sort of behavior "quite obviously is a very disturbed individual." (Id.) Dr. Campbell testified that bizarre behavior of that type is very rare and that he could remember having observed only three or four episodes like it in his entire career and those were by "exceedingly disturbed, very psychotic inmates," most of whom were in a penitentiary. (R12:754).

During the same month as that bizarre incident, hospital personnel at MacLaren Hall also had to restrain Cunningham because of his "loss of behavioral control." (R2:211). Cunningham made it so difficult for staff to apply the restraints, however, that his arm was broken in the struggle. (Id.)

Later that same year, Cunningham was admitted to Camarillo State Hospital in California at the age of fourteen,¹ and he remained there until he was eighteen or nineteen years old.² (See id. at 211-13). Records from that institution indicate that by age fourteen Cunningham had suffered a grand mal seizure and had been diagnosed as having an idiopathic seizure disorder. (Id. at 211). A year later, in September 1984, one doctor at Camarillo State Hospital diagnosed Cunningham, who was then fifteen years old, with "Schizophrenia, Undifferentiated." (Id. at 212). According to that doctor's psychiatric evaluation, Cunningham had "a history of short periods of psychotic decompensation in which he hears voices and behaves in an irrational manner. This is interspersed with episodes of very good behavior and a high level of performance." (Id. at 211-12). The report further noted that Cunningham seemed to do well while medicated but that he reported hearing voices at night when he was not taking his medication. (Id. at 212).

Dr. Campbell testified that these reports from Cunningham's early hospitalizations establish that "he experienced auditory hallucinations provoking irrational behavior." (Id.) Although Cunningham's psychotic behavior could be effectively controlled with medication at that time, Dr. Campbell noted that without "institutional influences, mentally ill people can indulge their own impulsiveness and poor judgment in the community in a manner that leads to serious problems." (Id.) According to him, Cunningham "responded in just this manner." (Id.)

Another psychiatrist who evaluated Cunningham during his lengthy stay at Camarillo State Hospital disagreed with the earlier schizophrenia diagnosis for a number of reasons, one of which was that he found Cunningham's story about hallucinations "not very convincing." (Id.) That psychiatrist nonetheless diagnosed Cunningham as psychotic ("Atypical Psychosis") and as having a "Conduct Disorder, Undersocialized, Aggressive." (Id.) Cunningham was just under sixteen years old at the time of that evaluation. As Dr. Campbell later noted at trial, all of the psychiatrists who treated Cunningham at this stage of his life agreed that he was psychotic, although there was some disagreement on the specific type of psychosis. (R12:765-66).

In 1986, when Cunningham was seventeen years old and still institutionalized at Camarillo State Hospital, he sexually assaulted a female music therapist who was interning at the institution. (R2:213). He physically attacked the intern, forced her to the ground, and ripped open the front of her blouse so he could fondle her breasts. (Id.) During the struggle, Cunningham told the intern that he had a knife in his back pocket and would kill her if she did not submit to him. (Id.) The intern escaped only after her screams brought another man to the area, causing Cunningham to run away. (Id.) Although Cunningham eventually acknowledged his involvement in the attack, he explained his behavior by claiming that he and a friend had taken some "acid" earlier, which caused him to hallucinate that voices were telling him that the intern was a mannequin that had stolen his mother's clothing. (Id.) The struggle, Cunningham explained, was merely his attempt to get the clothing back. (Id.) Cunningham's story did not explain why he had felt it necessary to fondle the breasts of the "mannequin," or to threaten it with a knife. Dr. Robert Defrancisco, the State's clinical psychologist, noted at trial that the fact that Cunningham ran when he heard someone coming indicated "he had some consciousness of what he was doing" when he assaulted the intern. (R13:847-48).

Dr. Campbell's report concluded that this incident "establishes that Mr. Cunningham has a history of sexual assaultiveness" that involves "psychotic decompensation." (R2:213). In his words, "[t]o belabor the obvious, [this] is indicative of a seriously disturbed individual." (Id.) Dr. Campbell further noted that using later diagnostic criteria, Cunningham's condition at the time he sexually assaulted the young intern "would have been diagnosed as a Substance-Induced Psychotic Disorder." (Id.)

When he was seventeen or eighteen years old, Cunningham "was declared a conservator" of the State of California "through the diagnosis of being gravely mentally ill or disabled." (Id. at 221). By the time he was nineteen years old, Cunningham had been admitted to Foothill Hospital, another California mental health institution. (See id. at 213). Two psychiatrists at that facility evaluated Cunningham's legal competency and responsibility. (Id.) They diagnosed him with...