HAIRSTON v. HENDERSON

Filing 15

MEMORANDUM OPINION and RECOMMENDATION, signed by MAG/JUDGE JOE L. WEBSTER on 11/13/2015. RECOMMENDED that the court GRANT the Defendant Henderson's Motion to dismiss (Docket Entry 11 ), or alternatively, dismiss this case sua sponte for lack of subject matter jurisdiction. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BERKLEY E. HAIRSTON,
Plaintiff,
V

DOUG HENDE,RSON,
Defendant.

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1,:1,4CY940

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This mattet comes befote the Court upon Defendant Doug Henderson's motion to
dismiss fot lack of petsonal judsdiction, insuffìcient sewice of ptocess

,

and a failure

to state

a

claim upon which relief can be granted. (Docket entry 11.) Plaintiff Berkley Hairsron opposes

the motion. (Docket E.rtry 14.) For the following reasons, it is recommended that the
gra;rft

I.

Cout

Defendant's motion to dismiss.

BACKGROUND
Plaintiff filed this action on November 16, 201,4

allegSng

a violation of Plaintiffs

constitutional due process rights tesulting ftom Defendant's refusal to have independent

DNA testing of biological evidence related to PlaintifPs state court conviction. (Complaint,
Docket F,nty

2.) In 2000 the Plaintiff

was convicted of two counts

of statutory rape, one

count of statutory sexual offense and one count of taking indecent libetties with a child. (Pl.'s
Reply at2,Docket Entry 1.4.)1 He was sentenced to a term of 21. to 26 years. (Id.)

Maintaining his innocence, Plaintiff alleges that he moved the state court fot DNA
testing and that his motion was denied on January 30,20L2. (Compl. at 6, Docket Entry 2.)
Subsequently, he petitioned the

Notth Carcltna Court of Appeals to issue a writ of certiorad,

but his petition was denied on April 25,2012. (Id.) Before this Coutt, Plaintiff claims "that
the DNA analyst that was tesponsible fot handing, ptepating and conducting

DNA testing"

was fotced to resign for "knowingly and willfully creatfing] false lab reports, concealfing] her

true fìndings, and mishandl[ing] DNA evidence in many cases." (Id. at 6-7.) He now seeks
injunctive telief from this Court compelling the independent DNA testing. (Id. at 5)

II.

DISCUSSION
Defendant contends that dismissal is appropriate pursuant to Federal Rules of Civil

Ptocedute 12þ)Q), 1 2(b) (5) and 1,2þ) (6).2

A.

Subiect Matter Jurisdiction
Defendant argues that the case is not propedy before this Coutt because Plaintiff "did

not exhaust all of his appeals, and he did not file a petition for wdt of habeas corpus." Def.'s
Br. at 3, Docket E.ttty 12.) Subject matter jurisdiction is both a Constitutional and statutory

1

The Coutt may take judicial notice of the Notth Catol)na Department of Public Safety website which
Plaintiffs 2000 convictions. Jea www.doc.state.nc.us ("Offender Public Information" search
for "Retldey E. Hairston" last pedormed on Nov. 10,2075); Fed. R. Evid. 201þ).
2
Defendant assetts judsdictional issues in his gtound for dismissal pursuant to 12þ)(6); thus the Court
wiJ' analyze this gtound under 12þ)(1) for lack of subject matter jurisdiction. In any event, the Coutt

teveals

may raise questions

of subject m^tter judsdiction

sua sþonte. Brickwood Conlractors, Inc. u. Datanet Eng'g

lnc.,369 F.3d 385, 390 (4th Cu.2004).

2

requirement which restricts federal judicial power

to a limited set of

cases and

controversies. Thus, "no action of the parties can confer subject matterjurisdiction upon
federal court." Iru:. Corþ. of Ireland u. Conpagnie

des Baøxites de Cairuee,

a

456 U.S. 694,702

(1982). When a defendant challenges subject matter jurisdiction, "the disttict coutt is to
rcgard the pleadings' allegations as mere evidence on the issue, and may considet evidence

outside the pleadings without converting the ptoceeding
judgment." Nchmond, Frederick:barg
C1r. 1,991).

ù

Potomm

RR

to one for

summa{y

Cr. u. United States,945 F.2d765,768 (4th

The district court should grant the Rule 12þX1) motion to dismiss "only

if the

matertal jurisdictional facts are not in dispute and the moving party is entitled to ptevail as a

m^tter of law." Id.;

see

also Euan¡ u.

B.F. Perþ.ins, C0.,1,66F.3d 642,647 (4th Cir. 1999).

Here, Defendant contends that it is outside the powers and duties of a United States

District Coutt to ovetrule a criminal state court decision in a civil law suit. Âccotding to the
Rooker-Feldrtan docttíne,

"lower fedetal coutts genetally do not have judsdiction to teview

state-court decisions; tather,jurisdiction to teview such decisions lies exclusively with supetiot
state coutts and, ultimately, the United States Supteme
731,

(4th Ck. 1997);

("[4

see

Court." Pþler u. Moore,129 F.3d728,

al¡o Brown dz Root, Inc. u. Breckenridge, 211

tr.3d 194, 198 (4th Cir. 2000)

patty losing in state court is barred ftom seeking what in substance would be appellate

review of the state judgment in a United States district court) based on the losing patty's claim
that the state judgment itself violates the loser's federal rights.") (intetnal quotations omitted).

The Rooker-Feldman docttine prevents a federal court from detetmining that a state court
judgment was erroneously entered ot taking action that would tendet a state court judgment

ineffectual. Jordahl

u.

Demoratic Partlt of Virginia,122tr.3d 1.92,202 (4th Ctr. 1,997) (citing Erast

J

u. Chìld and Yoath Servs.,108

such that the relief sought

F.3d 486, 491, (3d Cir.1997)). It is a natrowly tailoted docttine,

in federal court must

decree" for the doctrine to apply. Adkin¡

u.

seek

to "'revetse ot modiSr' the state court

Ramsfeld,464F.3d 456,464 (4th Cir. 2006) (quoting

Exxon MobilCorp. u. Saødi Basic Indas. Corþ.,544 U.S. 280,284 (2005).

Hete, Plaintiff seeks relief denied to him by the Nonh Carolina stâte courts. This is
nothing mote than an impermissible collateral attack on a cdminal judgment ftom the state

court. Plaintiff counters by arguing that his
Q011).

@1.'s

case

is similat to Skiøner u. Swìtqer,562U.S.

521,

Reply at 4, Docket Entry 14.) Howevet, this argument misteads Skinner. Skinner

holds that "a state-court decision is not reviewable by lower fedetal courts, but a statute or
rule governing the decision may be challenged in a federal action." Skinner,562 U.S. 522. The

plaintiff in that case challenged the validity of the underþing state statute. Id. Flere, Plaintiff
attacks the

ding of a Notth

Caroltna supetiot court denying him the DNA evidence, not the

validity of the underþing state statute. He has pteviously sought an otdet ftom state court
undet N.C. GeN.

Sr¡r.

S

15Â-269 to obtain post-conviction testing.

(See

Compl. at 6, Docket

E.ttty 2.) Plun:J:ffs tequest fot testing was denied, and his subsequent petition fot a writ of
tvrtiorari to the

North Carolina Court of Âppeals was also denied. (1/.) Neithet the complaint

not Plaintiff s bdef purports to challenge the validity of the stâte statute.

at

6-1"1,;

Docket Ent y 1.4 at 3-5.) Moreover,

(See

Docket Entry 2

it is clear that success on this claim

would

effectively nullify the ordet of the state court. Thetefore, the teasoning of Sþ.inneris inapposite
hete and this Coutt does not have subject matteÍ judsdiction to adjudicate this action.
Ndgewry u. Dauid,

No. 5:12-CT-3002-D,

201,3

See

WL 2488940, at x5 (E,.D.N.C. June 10, 201,3)

(unpublished) (finding that the plaintiff "does not allege that

4

Noth

Carolina's post-conviction

DNA

ot

statute is constitutionally inadequate eithet facially

as

applied," but rather "challenges

adverse state-court decisions.");Aluarequ. Att'1Cen'|f0rF|a.,679F.3d1,257,1263-64
201,2) (internal quotations, citations

Rooker-Feldrzanbaned

(11th Cit.

omitted) (fìnding no error in district court holding that

it ftom exercising

subject matteÍ judsdiction, holding that"Alvarez'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

physical evidence he seeks under Flodda's concededly constitutional ptocedures.

the

It

is

abundantly clear that success on this claim would effectively nullify the state court's judgment
and that the claim would succeed only to the extent that the state coutt wtongly decided the
issues.").

B. Personal Jurisdiction
Defendant also contends that the Cout lacks petsonal judsdiction as a result of
insufficient service of ptocess. "A motion under Rule 12þ)(5) is the appropdate means for
challenging the manner ot suffìciency of service of process. The plaintiff beats the burden
estabüshing that service of process has been accomplished
Rule

4."

Plant Genetic

omitted). \Øhere

a

Ðr., .òt V.

u. Ciba Seeds,933 Þ-. Supp.

1.087

in a mannet that complies with

5I9, 526 (À{.D.N.C . 1,996) (citations

plaintiff does not eFfectuate '.valid service of process, the district court

without judsdiction of the defendant . . . ." Arwn,Inc.

u.

of

[is]

Penrod-StaffirBldg. S1t, [nc.,733tr.2d

,1089 (4th Cir. 1984).
Service of process on a state ot local government official may be achieved by serving

its chief executive officer ot "in the manner ptescribed by that state's law for serving
summons ot like ptocess on such a defendant." Fed. R. Civ. P.

5

a

4OQ). In Notth Carohna,

service on an agency

or officer of the state is govetned by North Caroltna Rule of Civil

Procedure 40{1). N.C. GBN. STAT.
served petsonally or by mail

S

1A-1, Rule aO(4). The

requites that process be

to the process agent appointed by the agency or the ,A,ttotney

General of

Notth Carohna. Id. Here, Defendantwas

Coutthous

e.

(See

de

served in petson at the

Guilfotd County

Aff. of Service, Docket Entty 8.) Thus, Defendant was not ptopetly served

undet Notth Catolina law.3

III.

CONCLUSION

Fot all these reasons, IT IS RECOMMENDED that the coutt GRANT

the

Defendant Hendetson's Motion to dismiss (Docket Errtry 11), or alternatively, dismiss this
case Í/./a sponfe

fot lack of subject matter jurisdiction.

L
Stltce ltlngistr*e Jurlgg

November 13,2015
Durham, North Carolina

3 Because the Coutt recommends dismissal for lack of subject matter judsdiction, the Coutt need not

futthet address whether sewice of ptocess was sufficient undet fedetal law. See Rogers u. Henderson,
No. 1:14CV461.,201.5WL2194477,atx1.-2 (I\{.D.N.C. }t/.ay 11.,2015) (discussing service of ptocess
upon a state officet undet fedetal law).

6