United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge.
Donnell Mosley, a Virginia inmate proceeding pro se,
commenced this civil rights action pursuant to 42 U.S.C.
§ 1983, naming Detective A. O. Kittrell of the Lynchburg
Police Department as the sole defendant. Plaintiff alleges
that Kittrell's false written statement caused Plaintiff
to be convicted and incarcerated in violation of the Equal
Protection and Due Process clauses of the Fourteenth
Amendment. Kittrell filed a motion to dismiss, to
which Plaintiff responded, making this matter ripe for
disposition. After reviewing the complaint, I grant the
motion to dismiss and dismiss the complaint without
argues that Kittrell's allegedly false statement was the
difference between a jury finding Plaintiff guilty of second
degree murder and finding him either innocent or guilty of a
lesser included offense. Plaintiff alleges that the false
statement destroyed any credible attempt for him to argue
self-defense. Plaintiff elaborates:
Several first responders had arrived while [Plaintiff] and
the victim were still present in the apartment. Officer Pavia
and Officer Ramirez were the first in the apartment. Officer
Ramirez took photos of the scene before medical personal
[sic] began moving or attending to the victim. These photos
clearly depict what was first observed by first responders
Each first responder gave to A. O. Kittrell a statement of
what they observed upon arrival. Both [Plaintiff] and victim
were present as they arrived. A. O. Kittrell arrived after
[Plaintiff] and victim had been removed. A. O. Kittrell never
saw the victim in the apartment. The first responders'
statements obviously match what the photos show.
In spite of the first responders' statements and the
photos, A. O. Kittrell proceeded to speculate as to what must
have occurred, contradicting first responders and photo
evidence. Detective A. O. Kittrell was the first to say,
"The victim was found by first responders lying on sofa,
covered by the brown blanket." Also saying, "The
victim had to be covered by the blanket when he was
shot." This alone destroyed the [Plaintiff]'s
self-defense claim. The jury could not possible find self
defense if they believed that the victim was helplessly lying
down wrapped in a blanket.
The prosecution relied upon this testimony and evidence, plus
that of Roy C. Davis, to secure [a] murder conviction.
explains that the Kittrell's alleged false statement was
incorporated into the official investigative record that was
used to secure the conviction. Plaintiff alleges that the
false statement was nothing more than Kittrell's
speculation. Plaintiff asks as relief that I order "a
retraction of the statement" and award
"compensation ... for cost" and punitive damages.
court records reveal that the Circuit Court of Lynchburg
entered Plaintiffs criminal judgment for murder on September
7, 2016, in Commonwealth v. Donnell, CR15000201-00.
The Court of Appeals of Virginia denied an appeal on May 12,
2017, in Donnell v. Commonwealth, No. CR1539-16-3,
and Plaintiffs motion for three-judge panel remains pending
with that court. Id., ; see Va. Sup. Ct. R. 5 A:15(a).
argues that this action is barred by Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994), which held that a
plaintiff may not recover damages via § 1983 for an
allegedly unconstitutional conviction without first having
obtained "favorable termination." Favorable
termination occurs when "the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus"
Id. at 487.
cannot prove favorable termination because he is still
convicted and incarcerated for the crime for which he seeks
monetary relief, and success would imply the invalidity of
his conviction. Plaintiff argues that he would not have been
convicted of second-degree murder had it not been
specifically for Kittrell's allegedly false statement.
Furthermore, Plaintiff acknowledges that what he seeks
"will represent a fair challenge to the Plaintiff at
having a fair trial in the State Court"; the alleged
false statement "was for the benefit of the
prosecutor"; and "[Kittrell's] statement may
indeed have been used in a state criminal case and a
conviction was gained." Moreover, a new trial would be
required if the allegedly false statement would have ...