Opinion
8:02CV206
July 12, 2002
MEMORANDUM AND ORDER
This matter is before the court on plaintiff's motion for a preliminary injunction and an evidentiary hearing. Filing No. 17. A hearing was held on July 3, 2002. Evidence was offered and received and both sides argued their respective positions. I have reviewed the record, brief of the plaintiff, and the relevant case law. I conclude that the preliminary injunction should be granted.
Facts
The facts are fairly straightforward and have been stipulated to by the parties. Ex. F. The plaintiff was arrested in 1997 in Nebraska and charged with criminal mischief. He evidently shot some livestock and received a rather stiff sentence for his crime. Thereafter, he was paroled and was required to subject himself to drug and alcohol testing. During a five-year period of time, plaintiff contends that he tested negative for drugs and alcohol over 60 times. However, on January 7, 2002, seven months prior to the expiration of plaintiff's sentence, he tested positive for methamphetamine and alcohol. On that same day plaintiff went to an independent lab, Qwest Diagnostics, and was also tested. That test was negative for methamphetamine and for alcohol.
Thereafter, a parole hearing was conducted, and plaintiff's parole was revoked. Ex. C and D. Subsequently, the Ombudsman for the State of Nebraska was contacted. Pl. Ex. B. He suggested that plaintiff consider DNA testing with the expenses to be borne by the plaintiff. Plaintiff then contacted the State and requested DNA sampling. Plaintiff contended that the sample used by the State was not his and that certain discrepancies show this to be true. For example, the state consulting lab misdated the specimen, dating it 1-2-02 rather than 1-7-02. Second, the state consulting lab failed to note the prescription drugs used by the plaintiff at that time. Third, there was a discrepancy in the results used by the two labs on the same date. Plaintiff has offered to pay the full cost of the DNA testing and has found a lab in Kansas City that will perform the testing.
I held an earlier hearing in this case on May 16, 2002. At that time I denied the motion for temporary restraining order/preliminary injunction as the parties did not even know if a sample of the urine was available. Thereafter, it was discovered that the urine sample does still exist and it is in the possession of the State's contracting lab in South Haven, Mississippi. I have agreed to reconsider the issue.
Standard
The extraordinary remedy of a preliminary injunction should not be granted unless the movant has demonstrated: (1) the threat of irreparable harm; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties; (3) the probability that it will succeed on the merits; and (4) the public interest. Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113-14 (8th Cir. 1981) (en banc).
No single factor is determinative, although the failure to demonstrate the threat of irreparable harm is, by itself, a sufficient ground upon which to deny a preliminary injunction. See Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir. 1996); see also Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 738 (8th Cir. 1989) (en banc) (noting no single factor in itself is dispositive; however, a party moving for a preliminary injunction is required to show the threat of irreparable harm). The burden on a movant to demonstrate that a preliminary injunction is warranted is heavier when granting the preliminary injunction will in effect give the movant substantially the relief it would obtain after a trial on the merits. Calvin Klein Cosmetics Corp. v. Lenox Lab., 815 F.2d 500, 503 (8th Cir. 1987).
With regard to the first factor, plaintiff argues that he will be irreparably harmed, as he is now in prison for something he did not do. I agree. The wrongful loss of liberty is a serious harm. Defendant has vehemently argued that these fluids are not his.
With regard to the state of balance between the harm inflicted by granting or not granting the preliminary injunction, I find harm to both the parties in this case, but this factor weighs in favor of the defendant. The State is concerned that it will be flooded with requests for DNA testing. Further, the State argues that it must have finality in its administrative hearings. While I understand the need of the State to control the floodgates of litigation, it cannot override the rights of those it has or will have incarcerated. The defendant in this case has lost his liberty, one of the most serious deprivations we impose on citizens in our country. If the sample is not the plaintiff's, he will likely succeed on the merits or at least obtain a rehearing. If the sample is shown to be the plaintiff's, he will lose on the merits. Plaintiff argues that refusal to allow him to test the DNA is a denial of his due process rights. Pople v. Rokita, 316 Ill. App.3d 292, 736 N.E.2d 205 (2000); Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002). As further support, plaintiff points to a Nebraska statute that allows for DNA testing. DNA Testing Act, Neb. Rev. Stat. § 29-4116. Although this statute has been used in the context of determining identity in a sexual assault case, plaintiff argues that it is equally applicable in this case. However, a review of the statute shows that it was crafted for post-conviction cases. It does not directly address those cases dealing with parole violations, although it lends credence to plaintiff's argument that Nebraska supports DNA testing on identity issues.
The State argues that due process only requires that the minimum standards, notice, representation and hearing, are met. Morissey v. Brewer, 408 U.S. 471, 489 (1972). The State further argues that plaintiff failed to appeal under Neb. Rev. Stat. § 84-917. I find this argument likewise to be without merit. First, I doubt § 84-917 applies to the findings of the parole review board. Second, even if it did, § 84-917argument likewise is without merit. Plaintiff did not appeal the finding of the parole board to this court. Instead, plaintiff has alleged a separate constitutional violation for failure of the State to supply his urine for DNA sampling.
A due process claim is cognizable only if there is a recognized liberty or property interest at stake. Carpenter Outdoor Advertising v. City of Fenton, 251 F.3d 686, 689-90 (8th Cir. 2001). Property interests are created by existing rules or understandings that stem from an independent source, such as state law. Stauch v. City of Columbia Heights, 212 F.3d 425, 429 (8th Cir. 2000). To establish a property interest, a plaintiff must show more than a unilateral expectation of it; he or she must show a legitimate claim of entitlement. Id. On the other hand, "[S]ubstantive due process prevents the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty." United States v. Salerno, 481 U.S. 739, 746 (1987) (citations omitted). Substantive due process is described as:
A substantive due process claim can be stated two different ways. One, substantive due process is violated when the state infringes "fundamental" liberty interests without narrowly tailoring that infringement to serve a compelling state interest. See Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998) (en banc). Two, substantive due process is offended when the state's actions either "shock the conscience" or "offend judicial notions of fairness . . . or . . . human dignity."Riley v. St. Louis County, 153 F.3d 627, 630 (8th Cir. 1998). Substantive due process prevents the government from participating in conduct that either shocks the conscience or interferes with the rights consistent with liberty. Singleton v. Cecil, 176 F.3d 419, 424 n. 7 (8th Cir. 1999). Substantive due process protects against arbitrary and oppressive government conduct. County of Sacremento v. Lewis, 523 U.S. 833 (1998).
The two cases cited by the plaintiff are not helpful to his case. In Harvey, the court concluded that it is the responsibility of the legislatures, both at the federal and state levels, to confer the rights to DNA testing, rather than have the federal court determine these issues as a matter of constitutional right. In Pople, the court was interpreting a statute which allowed post-conviction attempts to obtain evidence dealing with identity. These two cases both dealt with post-conviction cases wherein the petitioners were trying to prove their innocence through DNA testing. A review of Nebraska law shows that there is a comprehensive scheme that deals with DNA testing for post-conviction relief. Neb. Rev. Stat. § 29-4116 et seq. The statutes do not directly address the issue as presented in this case.
In the case before me, the plaintiff is asking for testing of his own DNA to prove that the urine sample in question is not his. There is no post-conviction remedy. It would seem that fundamental fairness requires that a person be allowed to have a sample of the evidence used against him, allegedly his own urine, to determine true identity. I conclude that the defendant is likely to win on the merits of his request.
The State also argues that plaintiff signed a waiver of confirmation form, Ex. A, p. 14, wherein he gave up his right for independent testing of the urine sample. However, defendant points out that he was presented with that form by a parole administrator who asked him to sign the form after a first preliminary hearing on January 18, 2002, at a time when he was represented by counsel. However, counsel was not included in the meeting or the signing of the waiver form. Consequently, I find this waiver argument to be without merit.
Looking at the interests of the public, the fourth and final test under Dataphase, those charged with crimes have an interest in showing their innocence. However, as argued by the government, the state has an interest in not being required to do DNA testing for every prisoner on every issue that arises. There must be a balance in this regard. In the case at hand, the plaintiff has presented clear evidence in his favor: the misidentified dates; his own negative lab test on the same day as the State's test; 60 previous UA tests that were negative; and the failure of the state lab to identify the drugs that were in the plaintiff's system. These factors provide a reasonable likelihood that the incorrect urine sample was used in this case. This decision, however, should not be construed to allow every prisoner who wants DNA testing to obtain it. I find that in this case the defendant has shown that there is a reasonable likelihood that a mistake has been made. I am going to allow the testing of the DNA in this case at the plaintiff's expense, provided there is enough of the sample to allow the State to do additional testing if necessary.
IT IS THEREFORE ORDERED:
1. Plaintiff's motion for a preliminary injunction, Filing No. 17, is hereby granted;
2. Counsel for both parties are hereby ordered to determine an appropriate protocol to have a portion of the urine sample DNA tested to determine if it belongs to the plaintiff;
3. Such DNA testing shall be done at the earliest convenience of the parties and the lab;
4. All expenses associated with the DNA testing shall be done at the expense of the plaintiff;
5. The government is hereby ordered to maintain the urine sample until such time as these issues are fully resolved.