United States District Court, W.D. Virginia, Roanoke Division
Terell Moore, Pro Se Plaintiff.
JAMES P. JONES, District Judge.
The plaintiff, a state prisoner proceeding pro se, has filed a civil rights action under 42 U.S.C. § 1983, contending that, after his conviction and appeals, local law enforcement officers violated his due process rights by destroying without notice certain biological evidence related to his criminal trial. The court filed the action on condition that the plaintiff consent to payment of the filing fee and demonstrate exhaustion of administrative remedies. Upon review of the record, I find that while the plaintiff has fulfilled these prefiling conditions, his lawsuit must be summarily dismissed without prejudice as legally frivolous.
Plaintiff Terell Moore was convicted by a jury in the Circuit Court for Tazewell County, Virginia, for the first degree murder of Brandi Hatfield, and the court sentenced him on June 27, 2005, to life in prison. Moore completed all of his state direct appeals on December 12, 2006, and unsuccessfully sought habeas corpus relief in state court.
Moore filed a timely petition for a writ of habeas corpus in this court in 2008, raising numerous claims. His petition was denied, and Moore's appeal was unsuccessful. Moore v. Johnson, No. 7:08CV00526, 2009 WL 2474101 at *1 (W.D. Va. Aug. 12, 2009), appeal dismissed, 372 F.Appx. 433 (4th Cir. 2010) (unpublished), cert. denied, 131 S.Ct. 915 (2011).
On March 9, 2011, Moore filed motions in the state trial court seeking to preserve all human biological evidence from his trial for additional scientific analysis. At a hearing on Moore's motions on January 31, 2012, Adam Crouse, an evidence custodian for the Tazewell County Sheriff's Office, testified that pursuant to an order of destruction by the sheriff dated April 13, 2009, Crouse had burned all such evidence the next day. (Compl. Ex. C, at 4.)
The deputy sheriff who sought the order stated on the written request for the order that Moore's case was closed. He requested permission to destroy the following items of evidence from Moore's trial: a brown envelope, a rug, and four boxes, including two sealed boxes. Crouse testified that he did not know what was inside the sealed evidence boxes, but had witnessed their destruction. The prosecutor verified that neither the state police nor the state crime laboratory had retained any items of evidence from Moore's trial. At the close of the hearing, the judge stated,
I will have to obviously rule that there is no evidence available to be tested, and has not been since, in fact, your client filed his motion before the Court so in effect I am denying, but it is based upon the fact that I have nothing to provide or to be tested at this time.
(Compl. Ex. C, at 8.)
In his present Complaint, Moore sues the sheriff and his deputies for destroying the evidence without prior notice and Tazewell County for failing to train these officials to protect inmates' procedural and substantive due process rights. With notice, Moore states, he would have alerted officials that his federal habeas proceedings had not yet concluded and would have requested preservation of all biological evidence for further testing. Moore seeks monetary and declaratory relief.
The court must dismiss any action filed by a prisoner against a governmental entity or officer if the court determines the action or claim is frivolous, malicious, or fails to state a claim on which relief may be granted. 28 U.S.C. § 1915A(b)(1). A "frivolous" claim is one that "lacks an arguable basis either in law or in fact, " because it is "based on an indisputably meritless legal theory" or based on "factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989) (interpreting "frivolous" in former version of 28 U.S.C. § 1915(d)).
To state a cause of action under §1983, "a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). If biological evidence from Moore's trial still existed, he could bring a due process claim under § 1983 asking to access the evidence for purposes of conducting scientific tests on the material with hopes of proving himself innocent. See Skinner v. Switzer, 131 S.Ct. 1289, 1296 (2011) (allowing § 1983 action claiming liberty interest in "utilizing ...