     Case: 16-60116   Document: 00514051190     Page: 1   Date Filed: 06/27/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                 No. 16-60116                           FILED
                                                                    June 27, 2017
                                                                   Lyle W. Cayce
KENNEDY BREWER
                                                                        Clerk

             Plaintiff - Appellant

v.

STEVEN TIMOTHY HAYNE; MICHAEL H. WEST,

             Defendants – Appellees


Consolidated with No. 16-60342

LEVON BROOKS

             Plaintiff - Appellant

v.

STEVEN TIMOTHY HAYNE,

             Defendant - Appellee



                Appeals from the United States District Court
                   for the Southern District of Mississippi


Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
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                                  No. 16-60116
                              Cons. w/ No. 16-60342
         In 1992, Plaintiff Levon Brooks was convicted of the murder of three-
year-old Courtney Smith. In 1995, Plaintiff Kennedy Brewer was convicted of
the murder of three-year-old Christine Jackson. When one Justin Albert
Johnson later confessed to both crimes, the convictions of Brooks and Brewer
were vacated. Each then sued Dr. Steven Hayne and Dr. Michael West,
asserting claims under 42 U.S.C. § 1983, alleging that the forensic consultants
violated their constitutional rights under the Fourth and Fourteenth
Amendments when, as retained government experts, they provided
investigators with—and later testified to—baseless findings regarding bite
marks on the victims’ bodies; that they knew that the evidence was baseless or
at least acted with reckless disregard of that reality. The district court granted
summary judgment for both defendants in the Brewer case and for Dr. Hayne
in the Brooks case. The two cases have been consolidated here on appeal. We
affirm.
                                        I.
                                        A.
         On May 1, 1992, Gloria Jackson left her boyfriend Kennedy Brewer at
home in charge of her four children. Returning home at approximately 12:30
AM on May 3, she found the house dark, and Brewer refused to let her check
on her three-year-old daughter, Christine. The following morning, Jackson
realized that Christine was missing, and a search began. The police were
summoned. Scent hounds led investigators to Christine’s body floating in a
creek.
         Dr. Hayne, a private pathologist who performed autopsies for the State
of Mississippi, concluded that Christine had been raped and had died from
strangulation. Noticing what he suspected to be bite marks on the body, Dr.
Hayne requested the assistance of Dr. West, a dentist and forensic


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odontologist. At Brewer’s trial, Dr. West testified that he found nineteen
human bite marks on Christine’s body—all made with only the upper arch—
which he concluded belonged to Brewer.
       Brewer was indicted, convicted of capital murder, and sentenced to die
by lethal injection. The Mississippi Supreme Court affirmed the conviction. 1
Four years later that same court held that Brewer was entitled to an
evidentiary hearing regarding DNA evidence taken from semen found on
Christine’s body. That testing excluded Brewer as the source, and the trial
court vacated Brewer’s conviction.
       The DNA evidence was a match for Johnson, who confessed to the rape
and murder. Elements of Johnson’s confession were inconsistent with evidence
found in the investigation. 2 Nevertheless, on February 15, 2008, the State of
Mississippi declined to again prosecute Brewer.
       Just under a year later, Brewer brought this 42 U.S.C. § 1983 case
against Dr. Hayne and Dr. West, alleging that their false and misleading
reports caused his wrongful prosecution and conviction. Dr. Hayne and Dr.
West moved to dismiss. The district court held that the defendants enjoyed
absolute immunity for their testimony at trial and qualified immunity for the
pre-trial reports, and granted summary judgment on the grounds that the suit
was time barred. The district court granted a Rule 54(b) motion for final
judgment on all federal claims for both defendants. Brewer timely appealed. 3




       1  Brewer v. State, 725 So. 2d 106 (Miss. 1998).
       2  For example, Johnson confessed to killing Christine by throwing her in a creek, but
the autopsy had concluded that the cause of death was strangulation and that there was no
water or foreign material found in her lungs.
        3 Brewer’s state law claims, over which the district court accepted supplemental

jurisdiction, remain in the district court. Dr. West has submitted no briefing to this Court.
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                                      B.
      Sometime in the evening of September 15, 1990, or early the following
morning, three-year-old Courtney Smith of Brooksville Mississippi went
missing. After a night-long search, her body was found floating in a pond.
Willie Willie, the Coroner and Medical Examiner of Noxubee County, asked
Dr. Hayne to perform an autopsy. Dr. Hayne concluded that Courtney had been
raped and that the cause of death had been freshwater drowning, finding
contusions on Courtney’s body, including one on the back of her right wrist that
he believed could have been a human bite mark. Dr. West was brought in for
an expert opinion, and he took dental impressions of a total of thirteen people,
including Johnson, who would later confess to the crime. As the alleged bite
mark consisted of only two imprints, Dr. West believed they were from an
upper arch, and were made by the perpetrator’s two front teeth. After
excluding the other twelve individuals, Dr. West concluded that Levon Brooks,
an ex-boyfriend of Courtney’s mother, had inflicted the marks. Brooks was
indicted, tried, convicted, and sentenced to life in prison. The Mississippi
Supreme Court denied Brooks’ direct appeals.
      While being interviewed about the death of Christine Jackson, Johnson
also confessed to the abduction, murder, and rape of Courtney Smith. On
February 20, 2008, a Mississippi Circuit Court vacated Brooks’ conviction, and
the state dismissed the case.
      On February 13, 2009, Brooks filed his 42 U.S.C. § 1983 suit against Dr.
Hayne and Dr. West, alleging that they had violated his right to due process
by providing testimony and reports about the alleged bite mark that were
either intentionally or recklessly fraudulent and which directly led to his
indictment and conviction. Dr. Hayne and Dr. West moved to dismiss. Brooks
amended his complaint. Dr. Hayne again moved to dismiss. Dr. West did not.


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       The district court granted summary judgment, dismissing all federal
claims against Dr. Hayne. The district court granted a Rule 54(b) motion for
final judgment on all federal claims for Dr. Hayne only. Brooks timely noticed
his appeal. 4 Dr. West is not a party to Brooks’ appeal.
                                              II.
       We review the district court’s grant of summary judgment de novo,
applying the same standard as the trial court. 5 Summary judgment is
appropriate where there is no genuine dispute of material fact and the movant
is entitled to judgment as a matter of law. 6 On summary judgment, a court
must view the evidence in the light most favorable to the non-movant and draw
all reasonable inferences in the non-movant’s favor. 7 To survive summary
judgment, the non-movant must supply evidence “such that a reasonable jury
could return a verdict for the nonmoving party.” 8
       “In resolving questions of qualified immunity at summary judgment,
courts engage in a two-pronged inquiry. The first asks whether the facts,
‘[t]aken in the light most favorable to the party asserting the injury . . . show
the officer’s conduct violated a [federal] right.’” 9 “The second prong of the
qualified-immunity analysis asks whether the right in question was ‘clearly
established’ at the time of the violation.” 10




       4 Brooks’ state law claims against Dr. Hayne, over which the district court accepted
supplemental jurisdiction, remain in the district court.
       5 Milton v. Tex. Dept. of Criminal Justice, 707 F.3d 570, 572 (5th Cir. 2013) (citing

Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 221 (5th Cir. 2011)).
       6 FED. R. CIV. P. 56(a).
       7 Scott v. Harris, 550 U.S. 372, 378 (2007) (citing U.S. v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam)).
       8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
       9 Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (quoting Saucier v. Katz, 533 U.S. 194,

201 (2001)).
       10 Tolan, 134 S. Ct. at 1866 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).


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                                            III.
                                             A.
       As an initial matter, Brewer argues that the district court erred in
holding his claim time barred; that the proper accrual date for his claim was
the date the prosecution dismissed the charges. This is a thorny question, one
which we decline to reach because our principles of immunity so plainly resolve
the controversy. For the purposes of this appeal, we can assume without
deciding that Brewer’s claims are timely.
                                             B.
       Plaintiffs argue the Defendants enjoy no qualified immunity. A
defendant may act under color of state law for the purposes of § 1983 without
receiving the related protections of qualified immunity. 11 At the same time,
“[t]he government’s need to attract talented individuals is not limited to full-
time public employees. Indeed, it is often when there is a particular need for
specialized knowledge or expertise that the government must look outside its
permanent work force to secure the services of private individuals.” 12 In
determining whether a private individual performing a government function
is entitled to qualified immunity, we consider whether the service performed
was of the type protected at common law at the time § 1983 was passed in 1871
and whether granting immunity in a given case is consistent with the policies
underlying § 1983. 13
       Plaintiffs point to McCullum v. Tepe, a Sixth Circuit case holding that a
part-time prison psychiatrist was not entitled to assert qualified immunity
because there was “no common-law tradition of immunity for a private doctor

       11See Richardson v. McKnight, 521 U.S. 399, 408-09 (1997). Richardson denied
immunity to private prison guards in, what the Court described as, a “narrow” context. Id. at
413.
     12 Filarsky v. Delia, 566 U.S. 377, 390 (2012).
     13 Id. at 384.


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working for a public institution.” 14 But Defendants here, though calling on
their medical training, were performing a role that more closely parallels
criminal investigation—“a core government activity” traditionally protected at
common law by immunity. 15 And while Defendants were not full-time
government investigators:
      The protections provided by the common law did not turn on
      whether someone we today would call a police officer worked for
      the government full-time or instead for both public and private
      employers. Rather, at common law, “[a] special constable, duly
      appointed according to law, ha[d] all the powers of a regular
      constable so far as may be necessary for the proper discharge of
      the special duties intrusted to him, and in the lawful discharge of
      those duties, [was] as fully protected as any other officer.” 16

      We are persuaded that Defendants, as consulting forensic experts, were
engaged in the criminal investigative functions of the state protected at
common law and are here entitled to assert qualified immunity.
                                         C.
      Qualified immunity is a complete defense, and Defendants are entitled
to summary judgment on the basis of qualified immunity unless Plaintiffs can
show triable issues as to whether Defendants violated a clearly established
right of which a reasonable officer would have been aware. 17 Plaintiffs argue
that the clearly established right at issue here is the due process right to be
free from fabricated evidence. We have previously held that “deliberate or
knowing creation of misleading and scientifically inaccurate [evidence]
amounts to a violation of a defendant’s due process rights,” and that reasonable



      14 693 F.3d 696, 702-04 (6th Cir. 2012).
      15 Filarsky, 599 U.S. at 386-88.
      16 Id. at 387-88 (citing W. MURFEE, A TREATISE ON THE LAW OF SHERIFFS AND OTHER

MINISTERIAL OFFICERS § 1121, p. 609 (1884)).
      17 Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008).


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officers know of this right. 18 The only question that remains is whether
Plaintiffs have provided competent summary judgment evidence sufficient to
raise a question of fact for trial as to whether Defendants violated that clearly
established right.
        As a baseline, we agree with the district court that merely presenting
forensic odontology evidence in the early 1990s was not unreasonable or
violative of due process. While that sort of evidence has been called into
question, 19 at the time of Plaintiffs’ trials, forensic odontology was widely
accepted. Plaintiffs are thus tasked with demonstrating not that the evidence
Defendants presented is no longer considered trustworthy, but rather that
Defendants intentionally created false evidence or intentionally produced
evidence that they knew to be scientifically inaccurate by the standards of the
day.
        Plaintiffs argue that deliberate falsehoods “can be, and usually must be,
proved from circumstantial evidence.” 20 Plaintiffs direct us to the following
circumstantial evidence, which they contend creates a question for trial as to
whether Defendants intentionally created false or scientifically inaccurate bite
mark evidence: (1) other expert opinions that have concluded that there was
“no scientific basis” for determining the contusions on the bodies were bite
marks and that “Dr. West knew or should have known that they were not bite
marks”; (2) other expert opinions that determined that finding nineteen bite
marks made only with the upper teeth “is unreasonable and unprecedented”;
(3) a previous case where an expert for the defense testified that he believed


        18Id. at 237; see also Castellano v. Fragozo, 352 F.3d 939, 955 (5th Cir. 2003) (en banc).
        19See, e.g., Radley Balko, The Latest from the World of Bite Mark Evidence, WASH.
POST: THE WATCH (Feb. 1, 2016), https://www.washingtonpost.com/news/the-
watch/wp/2016/02/01/the-latest-from-the-world-of-bite-mark-
evidence/?utm_term=.cbc786bc2cf0
       20 United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir. 1987).


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that there was no bite mark present until Dr. West, in an effort to match a
mold of the accused’s teeth to the supposed mark, pressed the mold into the
flesh; (4) the “extraordinary frequency” with which Defendants found bite
mark evidence—over one hundred times and in every so-called “rape overkill”
case; (5) Defendants’ failure to produce any other experts who agreed with their
conclusions; and (6) the allegedly “checkered” professional histories of
Defendants. Finally, while Plaintiffs argue that they are not required to
provide a motive, they contend that a reasonable jury could find that
Defendants were incentivized to fabricate evidence by the inherent pressures
forensic analysts face from the State. 21
       Plaintiffs have made a compelling showing that Defendants were
negligent in their forensic analysis, but negligence alone will not defeat
qualified immunity. 22 Viewed in the most favorable light, Plaintiffs’ evidence
is not suggestive of an intent to fabricate. 23 The disagreement voiced by
Plaintiffs’ experts is evidence that Defendants were mistaken in their
conclusions or methodologies, but no more. Likewise, the evidence of the
“extraordinary frequency” with which Defendants found bite mark evidence
certainly undermines the reliability of the forensic odontology techniques they
employed—and perhaps the field in general—but does not lead to an inference



       21  See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 318 (2009).
       22  See Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995) (holding “that
the negligent act of a state official which results in unintended harm to life, liberty, or
property, does not implicate the Due Process Clause”); see also Mendenhall v. Riser, 213 F.3d
226, 230 (5th Cir. 2000) (holding that “the qualified immunity standard gives ample room for
mistaken judgments protecting all but the plainly incompetent or those who knowingly
violate the law”).
        23 Plaintiffs also argue that, per a Tenth Circuit case, Pierce v. Gilchrist, recklessness

is sufficient to defeat qualified immunity under § 1983. 359 F.3d 1279, 1299 (10th Cir. 2004).
Because we find that the evidence Plaintiffs have provided does not indicate Defendants were
more than grossly negligent, we do not reach the question of whether recklessness in
producing scientific evidence is sufficient to defeat qualified immunity.
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of intentional fabrication. 24 The allegation of a previously false bite mark by
Dr. West—whether created intentionally or accidentally—gives pause. Yet the
inference Plaintiffs ask us to draw from that evidence is one generally not
permitted under the federal rules. 25 The same is true of the evidence regarding
Defendants’ professional histories—propensity evidence will not sustain an
inference that the Defendants intentionally fabricated evidence here.
       As to Dr. Hayne specifically, Brewer additionally argues that Dr. Hayne
either deliberately failed to perform biopsy examinations of the alleged bite
marks on Christine Jackson’s body or did perform those biopsies and concealed
the results. According to Brewer, Dr. Hayne did so because an absence of
hemorrhage in the tissues would indicate that the bite marks were made post-
mortem and thus could not have been made by human teeth. Brewer argues
that Dr. Hayne might hesitate to biopsy bite marks after the Brooks case,
where the biopsies contained no hemorrhaging. 26 Brewer also points to
Christine Jackson’s autopsy report, which contained a diagram indicting that
biopsies were taken of the alleged bite marks, as evidence that Dr. Hayne
deliberately hid exculpatory evidence. 27
       Absent some additional evidence, the autopsy form and the result of the
biopsy in the Brooks case are not sufficient to raise a reasonable inference that


       24 This is especially true given the lack of any evidence in the record as to what a
“normal” frequency of bite mark cases would be and given other arguments by Plaintiffs
regarding the high volume of autopsies Dr. Hayne performed.
       25 Rule 404 does not allow a party to introduce evidence of a person’s character or

character trait in order to show conformance with that character or character trait on a given
occasion. FED. R. EVID. 404. Rule 404(b)(2) includes an exception to the propensity evidence
ban to demonstrate knowledge or lack of mistake, but the inference that Dr. West committed
the bad act in this case because he committed a bad act in the past is not permitted.
       26 Because the autopsy of Courtney Smith showed that she had died by drowning, Dr.

Hayne testified that, had the mark occurred after death, it would have to have been caused
by something in the pond.
       27 Dr. Hayne later claimed that he did not recall taking any biopsies of the bite marks

on Christine Jackson and, in any event, that he did not examine any bite mark biopsy tissues.
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Dr. Hayne either deliberately failed to perform biopsies or withheld
exculpatory evidence. At most, Plaintiffs have presented evidence that Dr.
Hayne was negligent in failing to perform the biopsies or in failing to examine
biopsied tissues. Ultimately, we think that true of all the evidence in the
record: viewed in its entirety and in the light most favorable to Plaintiffs, the
record tends to show that Defendants were negligent—perhaps grossly so—but
no more.
      Plaintiffs have failed to raise a genuine issue of fact as to whether
Defendants violated their right to due process by intentionally creating false
or misleading scientific evidence. Defendants were entitled to summary
judgment under the defense of qualified immunity. We affirm.




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