COOPER v. STANBACK, No. 1:2013cv00571 - Document 23 (M.D.N.C. 2015)

Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 4/15/2015; the Court finds that it lacks subject matter jurisdiction to adjudicate this matter. Accordingly, the undersigned RECOMMENDS that Defendant's second motion to dismiss (Docket Entry 17 ) be GRANTED. The undersigned further RECOMMENDS that Defendant's first motion to dismiss (Docket Entry 16 ) be DISMISSED AS MOOT. (Sheets, Jamie)

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COOPER v. STANBACK Doc. 23 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA J,\MES EARL COOPE,R, Plaintiff, \/ LE,ON STA.NBACK, Defendant. ) ) ) ) ) ) ) ) ) 1,:1,3CY571 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This mattet is before the Court on Defendant Leon Stanback's motion to dismiss fot Iack of subject-matter jurisdiction, lack of process, and failure to state a claim. (Docket petsonal judsdiction, insufficient service of F;nty 1,7.)1 The motion has been fully briefed and the matter is dpe for disposition. Fot the reasons that follow, it is tecommended that Defendant's motion be gtanted. I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff James Ead Cooper began this action by filing a complaint pursuant to 42 U.S.C. S 1983 on July 15, 201.3. The complaint alleges a violation constitutional right evidence" tested for has "custody and to due of his United States process resulting ftom Defendant's tefusal DNA. (Compl. at2,DocketBntty 2.) to have "biological Cooper claims that Defendant conttol of the biological evidence." (//.) t For ïeasons thatate unclear to the Coutt, Defendant filed two motions to dismiss on the same dny. (Docket Entries 1.6, 1,7.) The motions are almost identical, with a few minor variations, and Defendant filed only one memorandum in support theteof. (Docket Entry 18.) Accotdingly, the Court will address the motion to dismiss which was docketed second. @ocket Entry 17.) Dockets.Justia.com Cooper has challenged Defendant's tefusal to undettake DN testing in state court. (Jee Def.'s Mem. at 2, Docket Entry 18.) In 2012, Dutham County Supedot Coutt Judge Otlando Hudson denied Cooper's request for DN,{, testing, fìnding that Coopet had not shown that the state possessed untested evidence. (Docket E.,tty 18 at Exhibit 1.) Plaintiff now brings the present action, seeking an ordet requidng that physical evidence in the custody of Defendant be tested fot DN,{.. II. DISCUSSION Defendant moves to dismiss the Complaint under Fedetal Rules of Civil Ptocedure 1,2þ)(1), 1,2þ)(2),12(bX5), and 1,2þ)(6). He futher asserts that the statute of limitations presents abar on Plaintifls claim. A. This Court Lacks Subject Matter Jurisdiction to Adiudicate this Matter Defendant ftst atgues that this Court lacks subject matter jutisdiction to adjudicate Plaintifls claim. (Docket Entty 18 ^t 4-6.) Subject m^tter jutisdiction is both ^ Constitutional and statutory requirement which restricts federai ludicial powet to a limited set of cases and conttoversies. Thus, "no action of the parties can confet subject jurisdiction upon a federal coutt." In:. Corp. of lreland u. Comþagnie des Bauxite¡ matter de Cøiaee, 456 U.S. 694, 702 (1,982). \Vhen a defendant challenges subject matter jutisdiction, "the disttict court is to regard the pleadings' allegations as mete evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one fot summary judgment." Nchnond, Fredricksbørg dz Potom¿a RR Co. u. United States,945 F.2d765,768 (4th Ck. 1,991). The district court should gre;nt the Rule 12(bX1) 2 motion to dismiss "only if the material jurisdictional facts are not in dispute and the moving patty is entitled to ptevail as a matter of law" Id,; see also Euaa¡ u. B.F, Perkins, Co., 1.66 F.3d 642, 647 (4th C:r.. 1999). Defendant contends that this Coutt lacks subject matter jurisdiction to entettain this claim pursuant "under to the Rooker-Feldnan theProoker-Fe/dman doctrine, docttine. (Def.'s Mem at 5-6, Docket Entry 18.) lower fedetal courts genetally do not have jutisdiction to teview state-court decisions; rather, judsdiction to teview such decisions lies exclusively with superior state courts and, ultimately, the United States Supteme Coutt." Pþler 1,29 u. Moore, tr.3d728,731. (4th Cir. 1997). Plaintiff argues that he "is not using this action to make a collateral attack on the climinal court judgment," but that the Supreme Court's decision in Skinner u. Switryr allows under 5$ for subject matter judsdiction to obtain testing of biological evidence 1933. (Pl.'s lìesp. at4-5, Docket lintry 20 (citing |'kinneru..|wit7er,131 S. Ct. 1,289 Q011).) This argument misreads Skinner. Skinner holds that"a state-court decision is not reviewable by lor.ver federal courts, but a statute or rule governing the decision may be challenged in a federal action." Skinner,131 allowed a pdsoner to obtain testing of S. Ct. at 1298. \)7hile the outcome in Skinner DN,\, the plaintiff in that case challenged the validity of the undetlying state statute. Id. Flete, Plaintiff attacks the ruling of a Notth Cato[na supedor court denying him the DN evidence, not the validity of the undedying state statute. He has pteviously sought an ordet from state court under N.C. GBN. S'r¡t. 269 to obtain posr-conviction testing. (See Compl. at 6, Docket Entry for testing for r.vas denied certiorari to the 2,) S 15,'\- Plainld:fFs request by the Durham County Supedor Coutt, and his subsequent petition Noth Carolina Coutt of ppeals was also denied. (Itf.) Neither complaint not PlaintifFs brief purports to challenge the validity J of the state statute. the (S.ee Docket Enuy 2 at 6-8; I)ocket Entry 20 at 5-6.) Moteovet, it is clear that success on this claim would effectively nulli$, the order .lkinner of the state court. 'l'hctefote, the teasoning of is inapposite here and this Coutt does not have subject fflatter jurisdiction to adjudicate this action . (finding no error See Aluareq u. Attlt Gen'l.fòr þ la., 679 F.3d 1257 , 1.264 (1,1th Cit. 201,2) in disttict court holding that l':oo,þ,er-þeldman batred it ftom exetcising subject matteÍ judsdiction, holding that "Alv^rez's as-applied procedutal due process challenge boils down to a claim that the state court judgment itself caused him constitutional injury by arbitratily denying him access to the physical evidence he seeks undet Florida's concededly constitutional procedutes. It is abundantly clear that success on this claim would effectir.ely nulli$' the state court's judgment and that the claim rvould succeed only to the extent that the stte court rvrongly decidcd the issues."); MtKithen u. Brown,626 F.3d 143, 154-55 (2d C:l:. 2010) (holding tbat Rooker-Iteldman batted the claim that "the state court incorrectly and unconstitutionally interpreted the N.- York DN,t] statute by not assuming exculpatory results," and noting that '[t]he proper vehicle for Mcl(then state court's intetpretation of fthe statutel was an appeal to challenge to the New York the Appellate Dir.ision."); In re .fmitlt,349 Ir. App'*. 12, 15 (6th Cir. 2009) ("lBly complaining that the þichigan] state trial court wtongfully denied him the DNA evidence because tejection of his petition r,vas improper 'complaining - of an injury but not complaining that the statute itself is flawed - Smith caused b)' the state court judgment and seeking tevier,v is and tejection of that judgment,' r.vhich is cleady barted by Rooker-F-eldman." (quoting Exxon Mobil Corp. u. |'aødi Basù Indøl Corþ.,544 U.S. 280,291. (2005). 4 Out of an abundance of caution, in the event the Court finds it has subject matter judsdiction, Defendant's other arguments for dismiss aI arc discussed below. B. Plaintiff Failed to Effectuate Proper Service of Defendant Defendant argues that the complaint must be dismissed because of lack of personal judsdiction under Fed. R. Civ. P. 12þ)Q), insufficient process, and insufficient service of process under Fed. R. Civ. P 12(bX5). (Def.'s Mem. at 9, Docket Entry 18.) The undersigned agrees. ",A. motion undet Rule 12þ)(5) is the apptoptiate means Fot challenging the manner or sufficiency of service of ptocess. The plaintiff beats the burden of establishing thatserviceof processhas been accomplished withRule 4." Plant Genetic 51s., I..{'.V. u. Ciba Seeds,933 (emphasis in ^ mafifler that complies F.Supp. 519,576 (Ì\4.D.N.C.1'996) and citations omitted). ìVhere a plaínttff does not "vahd service of ptocess, the district court [is] without jurisdiction ." Arrlt'z, Inc. u. Service of the effectuate defendaÍrt Penrod-Staffir Bldg. S1l, 1nc.,733 F.2d 1087, 1089 (4th Cir.1984). of process on a state ot local govetnment official must be manner prescribed by that state's law for setving a summons ot like served process "in the on such a defendant." Fed. R. Civ. P. 40X2XB). In North Catolina, service on n agency ot officet of the state is governed by Notth Catolina Rule of Civil Ptocedure 4O(4). N.C. GBN. St¡r. S 1A-1, Rule a$(a). The de requires that process be served personally ot by mail to the process agent appointed by the agency. N.C. GBN. Hete, Plaintiff failed to Sr¡r. S 1A-1, Rule a$(a)(a). effectuate proper service under Notth Catolina law. Defendant was an "agency of the state" for putposes of N.C. R. Civ. P. 4 because he was an "officer of the State government of the State of North Caroltna." N.C. GBN. S:r¡r. 5 S 1A-1, Rule a$(a)(d). The State of North Carobna provides for disttict attorneys thtoughout the state, which ate orgatized under the N.C. Administrative Office GBN. Sr¡r. S 7A., art.9;29. The process is the Office's Legal Counsel. Directory J¿¿ agerft of the Coutts. -1¿¿ N.C. fot the dministtat-ive Offìce of the Coutts North Carolina Department of Justice, Proæss Agenr (ast visited Mar. 1.3,2015), auailable athttp:/ /www.ncdoj.gov/bout-DOJ/LegaIPlaintiff did not serve the process Services/Legal-Resources/Ptocess-Agent-Directory.aspx. agent for the Administrative Office of the Courts, nor did he sewe the Notth Attorney General, deputy or assistant attorney general. J¿¿ Carcltna N.C. GBN. Sr¡r. $ 1A-1, Rule 4(lX4)G) (allowing service of the "the Attotney General ot to a deputy ot assistant attotney genetal" when a state agency fails to designate a process agent). Instead, Plaintiff sent a copy of the summorrs and complaint to Defendant by cenified mail to the Dutham County Judicial Building. (Jeø Return of Service, Docket Entry 1,2.) Thetefore, Plaintiff failed to effectuate proper service, and this Court is "without jurisdiction of the defendant." See Armcq Lnt.,733 F.2d at 1089. C. The Statute of Limitations Bars PlaintifPs Claim Defendant also atgues that Plaintiffs claim is barred by the statute of [mitations. (Def.'s Mem. at 3, Docket Entry 18.) The statute of limitations fot $ 1983 claims is detetmined by state personal injury laws. Owens u. Okare,488 U.S. 235,240-41 (1989). The North Caroltna sttute of limitations for personal injury is thtee years. N.C. GBN. Srar. 52(5); see, 0.!.t Nat'l Aduer. Co. u. Citr 0f Rakigh,947 $1- tr.2d 1158, 1161-62 (4th Cir. 1,991). The statute of limitations rurìs ftom the day that a plainttff knew ot should have known of the injury and who was responsible for the in1ury. Brook¡ u. Ciry of ll/inston-Salem,85 F.3d 178, 6 1,82 (4th Cir. 1996) (citing Nasim u. IWarden, Md. Hoa¡e of Correction, 64 F.3d 951, 955 (4th Cir. lees). Here, Plaintiffls claim is barred by the statute of limitations. Plaintiff claims that he "sought post-conviction DNA testing because neither the Defendant (the State), not Plainuffs trial counsel made any effot to have the biological evidence tested priot to Plaintiffs ctiminal ttial." (Compl. at 6, Docket Entry 2.) This allegation occutred "priot to Plaintiffs ctiminal on October 6,2008. ttíal." (See id.) Judgment in Plaintiffs case was enteted Def.'s Mem. at 3, Docket Enry 18.) Plaintiff did not file the (Jee complaint until neatly five yeats latet, on July 15, 201,3. Therefore, Plaintiff failed suggests the injury (See Compl., Docket Entry 2.) to file his action within the three year statute of limitations as required undet Notth Carolina law. Plaintiff atgues the statute of limitations clock in this m^tter did not start until Mar. 201.1., 7, the date that the Supreme Court decided Skinner. (Pl.'s Resp . at 4, Docket Entty 20.) Plaintiff fails to articulate the reason his injury did not materiahze until the date that Skinner was decided. Skinner metely held that a post-conviction claim pursued in a section 1983 action; it did not tecognize fot DN,{. testing may be any new constitutional dght, and in fact most courts had akeady concluded that such an action could be btought under section 1983. Thetefote, Skiruner does not serve as a trigget for a new limitations period. Even if Plaintiff raised an equitable tolling argument, which he does not, such an argument would fail. To quali$' for equitable tolling, a petitioner must show "(1) that he has been pursuing his dghts ditgently, and Q) that some extraordinary circumstance stood in his way and ptevented timely filing." Holland u. Florida, 560 U.S. 631, 649 (2010) (intetnal 7 quotation and citation omitted). North Carolina law has allowed for motions fot postconviction DN,\ testing since at least 2001. 2001 N.C. Sess. Laws 2001,-282. been "pursuing his rights diligently," he would have fìled a motion after the entty of judgment. See Holland,560 U.S. If Plaintiff had fot testing immediately ^t649. For the foregoing reasons, the undersigned finds that the statute of limitations has run and this claim is therefore bared. D. Plaintiff Fails to State a Claim under 42 U.S.C. S 1983 Defendant also argues that dismissal is approptiate pursuant to Fedetal Rule of Civil Procedure 12þ)(6). (Def.'s Mem. at6-9, Docket Entty 1S.) A motion to dismiss under Rule 12(bX6) tests the suffìciency of the complaint. Edwards u. Citl of Goldsboro, 178 F'.3d 231,243 (4th Cir. 1999). A complaint that does not "contain sufûcient facttal matter, accepted true, to 'state a claim to telief that is plausible on its face"' must be dismissed. A:broft Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic u. Twonbþ, 550 U.S. 544, (2007)). ",\ u. 570 claim has facial plausibility when the plaintiff pleads fact:ual content that allows the court to draw the teasonable infetence that the defendant is liable fot t." the F .3d 7 54, 7 68 (4th Cir. ("On a Rule 12þ)(6) motion, a complaint must be dismissed if it does not allege misconduc 201,1) as enough facts Id.; to see also Simmont' state a claim dy United Mortg. dv to relief that l-.oan Inuest., is plaa:ible 634 on its face.") (emphasis in otiginal) (internal citation and quotation marks omitted). The "court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint," but does not consider "legal conclusions, elements of a cause of action, . . . bate assettions devoid of 8 facnal enhancementfr] unwattanted infetences, unteasonable conclusions, ot Ltd. F.3d 250,255 (4th Cit. 2009) atguments." Neruet Cheurolet, (citations omitted). In other wotds, the standard requires a plarnttff to articulate facts that, u. Consamerffiirlcory Lnc.,591 when accepted as true, demonstrate the plaintiff has stated a claim that makes it plausible he is entitled to relief. Frøncis u. Gìatvmelli,588 F.3d 1.86,193 (4th Cir. 2009) (quoting lqbal,556 U.S. at 678, and Twombþ,550 U.S. at 557). Though not articulately stated, Plaintiff assetts that his claim is based on a denial of procedural due process. To establish a ptocedural due process violation, a person must first demonstrate that he has been deprived of a constitutionally-ptotected property ot libety interest. Only if such a protected interest is asserted does a coutt considet the constitutional suffìciency of the procedures associated with such interest. If a liberty ot property intetest is found, the next step in the due process inquiry is to determine what process is due. Due process "is not a technical conception with a fixed content untelated to time, place and circumstances." Gilbert u. Homar,520 U.S. 924,930 (1,997). Rathet, "due ptocess is flexible and calls for such procedural ptotections as the parlculat situation demands." Morissel u. Brewer, 408 U.S. 41 1., 481, (1,97 2). Hete, Plaintiff argues that his due ptocess rights wete violated because the State of North Caroltna "ftefuses] to provide DNA testing of the evidence collected during its investigation." (Compl. at 3, Docket Entty 2.) North Caroltna law allows a defendant to move for testing of DNA evidence after conviction if the biological evidence (1) Is matedal to the defendant's defense. Ø Is related to the investigation or ptosecution that tesulted in judgment. 9 (3) Meets eithet of the following conditions: (a) It was not DNA tested pteviously þ) It was tested pteviously, but the tequested DNrq. test would provide tesults that ^re significantly mote accvra;te and ptobative of the identity of the perpetrator or accomplice or have re soflable probability of conttadicting ptiot ^ fesults. test N.C. GBN. STAT. S 15,\-269(a). After determining that subsection (a) has been met, the state tdal court must grant the motion if there is "a reasonable ptobability the verdict would have been more favotable to the defendant" and the defendant has swotn to his ot her innocence. N.C. GBN. SrAr. S 15A.-269(b). Plaintiff received corÍect process undet Notth Cadt¡a law. Under N.C. GBN. S 15,\-269(uX3), Sf¡f. Plaintiff had to establish either that biological evidence was not previously tested, or that it was tested but new testing would be significantly more ^ccur^te. The North Catolina state coutt denied Plaintifls motion fot testing because Plaintiff failed to show that the State was in possession of evidence that had not akeady been tested. (Otdet Denying DNA Testing, Docket Ent y 1S-1.) The state court's denial implicitly rests on a finding that Plaintiff had not met the requitements of N.C. GeN. Sr¡r. S 154-269(rX3Xr). (See id.) Plaintiff does not allege that additronal testing is warranted because such futthet testing would be significantly more ^ccùtate. Because the state court found that Plaintiff had not established that biological evidence v/as not pteviously tested, and because Plaintiff does not rgue that his motion qualified for testing undet process under Notth Catoltna state law. 10 S 15-,A.-269(uX3)þ), Plaintiff teceived cottect This, however, does not end the Court's inquiry. The Coutt must also fìnd that the process ptovided by clause North Carohna statute was itself constitutional under the Due Ptocess of the 14th Amendment. Plaintiff has a innocence with new evidence undet state law. Dist. u. Osbome,557 U.S. 52, 68 Q009). telating to post conviction See libety interest in demonsuating his District Attomel's Offiæ "In otdet to state a ptocedural DNA testing, plaintiff must þr the Third Judicial due process claim assert facts sufficient to show that [the state's] statute and post-conviction process ate 'inadequate to vindicate the substantive dghts ptovided."' Creaslt 1.044426, u. Malor of Citlt of Baltinore, Civil Action No. JFM-11-1870, 201,2WL ú *2 (D. Md. Mar. 26, 201.2) (quoting Osbome, 557 U.S. ^t 69). Thete is no substantive due process dght to DNA testing. Osborne,557 U.S. at72. Here, Plaintiff has not alleged facts to establish that N.C. GBN. Srar. $ 15,\-269 ot the post-conviction ptocess wete inadequate to vindicate the substantive trghts provided. He does not allege that the North Carolina post-conviction DNA statute is constitutionally inadequate, eithet facially or as applied. Rather, he assetts that the motion he made fot DNA testing was wrongfully denied and that the criminal "deprived þm] of his liberty interest in utilizing chatges against him have the state court ptocedutes to obtain tevetsal of his conviction andf or to obtain a pardon or teduction of his sentence." (Compl. at 8, Docket Entry 2.) His conclusory allegations regatding the sttength (ot weakness) of the State's case against him are not sufficient to state a claim fot a ptocedutal due process claim. III. CONCLUSION Fot the reasons stated above, the Court finds that it lacks subject matter jutisdiction to adjudicate this matteÍ. Accordingly, the undersigned RECOMMENDS that Defendant's 1,1, second motion to dismiss (Docket Entry 17) be GRANTED. The undersigned futher RECOMMENDS that Defendant's first motion to dismiss (Docket E.rtty 16) DISMISSED AS MOOT. Stnter MngimnæJudgr Durham, April Noth Caroltna 1,5,201.5 12 be

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