Thomas Lee Twillie v. District Attorney Bradley H. Foulk

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3316
___________
THOMAS LEE TWILLIE,
Appellant
v.
DISTRICT ATTORNEY BRADLEY H. FOULK; ERIE POLICE DEPARTMENT;
DETECTIVE THOMAS NELSON; CHIEF STEVE FRANKLIN
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. Civil No. 05-cv-00352)
District Judge: Honorable Maurice B. Cohill, Jr.
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1
December 1, 2009
Before: MCKEE, FUENTES AND NYGAARD, Circuit Judges
(Opinion filed: January 13, 2010)
_________
OPINION
_________
PER CURIAM
Thomas Twillie, a Pennsylvania state prisoner proceeding pro se, appeals an order
of the United States District Court for the Western District of Pennsylvania granting

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The complaint that Twillie pursued was his second amended complaint filed on May1
17, 2007.
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summary judgment in favor of the defendants in his civil rights action, and an order
denying his motion for reconsideration. We will affirm.
Twillie filed a complaint against Bradley Foulk, the District Attorney of Erie
County, Pennsylvania, Detective Thomas Nelson of the Erie Police Department, and
Steve Franklin, Chief of the Erie Police Department. Twillie alleged that he mailed an1
informal letter to District Attorney Foulk seeking access to evidence used seventeen years
earlier in his felony rape trial for purposes of DNA testing. Twillie was convicted of rape
in 1987. Twillie alleged that Foulk replied that he had no right to the DNA evidence. As
a result, Twillie filed a motion in state court seeking access to the evidence, but he was
unsuccessful at the trial court level and on appeal.
Twillie further alleged that he filed his present complaint in order to gain access to
the evidence and that it was only in these proceedings that Foulk revealed that the rape kit
had been destroyed. Twillie asserted that, by denying him access to the DNA evidence,
Foulk forced him to file costly and time-consuming motions in state and federal court and
made it impossible for him to challenge the legality of his confinement. Twillie claimed
that Foulk acted in bad faith and denied him his due process rights. Twillie further
claimed that Detective Nelson, acting under Chief Franklin’s supervision, violated his due
process rights by destroying the evidence, which they knew was potentially exculpatory.

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Twillie also asserted that the defendants discriminated against him and that Nelson2
falsely stated at the time of the crime that he and his co-defendant had confessed, causing
the rape charges to be filed against him and precluding a full range of testing of the
evidence. Twillie also brought a state claim of intentional infliction of emotional stress.
Twillie does not pursue these claims in this appeal.
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Twillie sought compensatory and punitive damages.2
The Magistrate Judge recommended that the District Court grant the defendants’
motions for summary judgment. The Magistrate Judge explained that Twillie’s claims
against Franklin were based on the incorrect premise that Franklin had ordered the
destruction of the evidence at issue, noting that Franklin had attested that he had no
involvement in Twillie’s prosecution or the maintenance of the evidence. Similarly, the
Magistrate Judge concluded that Nelson did not destroy the evidence, based on the
affidavit of Detective Patrick Howe, who attested that another detective had destroyed the
rape kit. The Magistrate Judge also concluded that Foulk was entitled to summary
judgment on Twillie’s claim that Foulk denied him access to the DNA evidence because
the evidence was destroyed long before Twillie’s request. The Magistrate Judge noted
that Foulk may have been negligent in failing to inform Twillie that the evidence had
been destroyed, but that such a failure did not rise to the level of a constitutional claim.
The District Court adopted the report and recommendation of the Magistrate Judge
with respect to Twillie’s claims against Foulk and Franklin. The District Court rejected
the Magistrate Judge’s recommendation as to Twillie’s claims against Nelson because
Twillie submitted with his objections to the Magistrate Judge’s report an affidavit from

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After the District Court issued its opinion, the defendants filed a supplemental3
affidavit by Detective Howe attesting that he had made an error in his earlier affidavit and
that Nelson had in fact authorized the destruction of the rape kit in 1993.
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Foulk, which stated that Foulk believed that Nelson had destroyed the rape kit.
Concluding that there was a genuine issue of material fact as to whether Nelson was
involved in the destruction of the evidence, the District Court recommitted the matter to
the Magistrate Judge.3
The Magistrate Judge then recommended that the District Court grant summary
judgment for Nelson on other grounds he had raised in his summary judgment motion.
The Magistrate Judge decided that a damages award on a claim that potentially
exculpatory evidence was improperly destroyed implicitly questioned the validity of
Twillie’s conviction and was barred by Heck v. Humphrey, 512 U.S. 477 (1994).
Alternatively, the Magistrate Judge concluded that Twillie’s claims arising from the
destruction of evidence were barred by the doctrine of qualified immunity. The District
Court adopted the Magistrate Judge’s report and recommendation. Twillie unsuccessfully
moved for reconsideration, and this appeal followed.
We need not resolve the difficult question of whether Twillie’s claims arising from
the destruction of evidence are barred by Heck, 512 U.S. 477, because, even assuming
that they are not so barred, there has been no due process violation in this case. The
United States Supreme Court recently addressed a state prisoner’s due process right to
post-conviction access to evidence for purposes of DNA testing. In District Attorney’s

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Office v. Osborne, 129 S. Ct. 2308 (2009), the Supreme Court stated that a criminal
defendant proved guilty after a fair trial does not have the same liberty interests as a free
man and that a state has more flexibility in deciding post-conviction relief procedures. Id.
at 2320. The prisoner in Osborne had not tried to obtain in state court the DNA testing he
sought via his federal lawsuit, and the Supreme Court stated that he thus could not
complain that the procedures, which were adequate on their face, did not work in practice.
Id. at 2321. The Supreme Court also rejected the prisoner’s argument that he had a
substantive due process right to the state’s evidence so that he could apply new DNA-
testing technology that might prove him innocent. Id. at 2322. The Supreme Court noted
that establishing such a right would force the Court to act as policymakers, requiring it to
decide related issues such as the obligation to preserve forensic evidence that might later
be tested. Id. at 2323.
Twillie argues in his brief that his procedural due process rights have been violated
and asserts that the principles of Brady v. Maryland, 373 U.S. 83 (1963), which require
disclosure of material exculpatory evidence to a defendant before trial, apply here. The
Supreme Court, however, rejected such a conclusion in Osborne. Osborne, 129 S. Ct. at
2319-20.
Twillie does not challenge the constitutionality of Pennsylvania’s requirements for
obtaining post-conviction DNA testing under 42 Pa. Cons. Stat. § 9543.1(c)(3). Rather,
he contends that the state courts failed to consider, as required by the statute, whether his

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The statute requires an applicant to:4
(c) present a prima facie case demonstrating that the:
(i) identity of or the participation in the crime by the perpetrator was at issue
in the proceedings that resulted in the applicant’s conviction and sentencing; and
(ii) DNA testing of the specific evidence, assuming exculpatory results,
would establish:
(A) the applicant’s actual innocence of the offense for which the
applicant was convicted[.]
42 Pa. Cons. Stat. § 9543.1(c)(3).
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“participation” in the crime was at issue at trial. Assuming this argument is properly4
before us, it is without merit. The record reflects that, in affirming the denial of DNA
testing, the Pennsylvania Superior Court stated that Twillie did not show that his identity
was at issue at trial and that his defense at trial was that the victim had consented to
sexual intercourse. Moreover, the Superior Court explained that Twillie did not raise
during trial a defense of mistaken identity “or deny the fact that he had a sexual encounter
with the victim.” 4/4/05 Pa. Superior Court Decision at 6. Thus, contrary to Twillie’s
argument, the Superior Court did address his participation in the crime.
To the extent Twillie claims a violation of his substantive due process rights, it
follows from Osborne that, if there is no substantive due process right to access state
evidence for purposes of post-conviction DNA testing, there is no violation of substantive
due process rights where a prisoner seeks access to state evidence for purposes of post-
conviction DNA testing and learns that the evidence has been destroyed. We thus
conclude that the District Court did not err in granting summary judgment for Appellees

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Based on our conclusion that Appellees Nelson and Franklin are entitled to summary5
judgment for these reasons, we need not address the District Court’s conclusions that the
doctrine of qualified immunity applies and that Franklin was not involved in the
maintenance of the evidence at issue. It is also unnecessary to address Twillie’s
contention that the Appellees failed to serve him the affidavits filed in District Court.
Because Twillie does not have a viable due process claim, we reject Twillie’s argument
that the District Court erred in refusing to allow him to conduct discovery regarding the
circumstances of the destruction of evidence or to explore whether the evidence was in
fact destroyed.
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Nelson and Franklin, albeit on different grounds. See Tse v. Ventana Medical Systems,
Inc., 297 F.3d 210, 224 (3d Cir. 2002) (noting appellate court may affirm a decision on a
ground other than that relied on by the district court).5
We also agree with the District Court’s conclusion that Appellee Foulk’s denial of
Twillie’s request for access to the evidence did not violate his due process rights. Finally,
the District Court did not abuse its discretion in denying Twillie’s motion for
reconsideration.
Accordingly, we will affirm the orders of the District Court. Appellees’ motion
for leave to file supplemental appendix, which may be construed as a motion to expand
the record, is denied.

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