Kinney v. Shannon, Jr et al

Filing 8

Memorandum Opinion and Order: The court ORDERS that all claims and causes of action asserted by plaintiff, Roy Lee Kinney, against defendants, Joe Shannon, Jr., City, Hospital, and Members of the Prosecutorial Team, be, and are hereby, dismissed with prejudice pursuant to the authority of 28 U.S.C. § 1915A(b) (1). (Ordered by Judge John McBryde on 7/11/2014) (mpw)

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IN THE UNITED STATES DISTRICt COURt-· ~.·: ....:.~..........._ ..l
NORTHERN DISTRICT OF TE:xlAS
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FORT WORTH DIVISION I
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ROY LEE KINNEY,

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Plaintiff,

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vs.

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NO. 4:14-CV-285-A

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JOE SHANNON, JR., CRIMINAL
DISTRICT ATTORNEY FOR TARRANT
COUNTY ET AL.
I

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§
§
§
§

Defendants.

§

MEMORANDUM OPINION
and
ORDER
Plaintiff, Roy Lee Kinney, a prisoner in a facility with the
Texas Department of Criminal Justice, filed a pro se complaint
under 42 U.S.C.

§

1983, along with a document titled "Motion for

a Preliminary Injunction," ("Motion"), naming as defendants Joe
Shannon, Jr., Criminal District Attorney for Tarrant County; Fort
Worth Police Department Forensics Division; John Peter Smith
Hospital ("Hospital"); and, Members of the Prosecutorial Team. 1
Because Fort Worth Police Department Forensics Division is not an
entity capable of being sued, the court is substituting City of
Fort Worth ("City") as the proper defendant.
1

See Darby v.

"Members of Prosecutorial Team" ("Members") are not named as defendants on the form
complaint pursuant to 42 U.S.C. § 1983 filed by plaintiff, but appear only on the Motion for Preliminary
Injunction. To the extent that Members, or any of the defendants, do not have custody of the evidence
the subject of the complaint, they would likely not be proper defendants in this action. See Emerson v.
Thaler, 544 F. App'x 325, 328 n.2 (5th Cir. 2013) (per curiam). Nevertheless, because the court is
dismissing the complaint in its entirety, it need not resolve that issue.

Pasadena Police Dep•t, 939 F.2d 311, 313-14 (5th Cir. 1991).
Having now considered the complaint and the Motion, as well as
the applicable legal authorities, the court concludes that this
action should be dismissed in its entirety.
I.

The Complaint
The Motion alleged the following:
In August 1984, plaintiff was convicted of aggravated sexual
assault and sentenced to ninety-nine years imprisonment.

The

victim in plaintiff's criminal case was Kathy Nugent ("Nugent").
Nugent testified at plaintiff's criminal trial that after the
alleged assault she went to Hospital for an examination.

The

motion outlines the procedures the doctor was to have followed to
perform an exam following a sexual assault, as well as the steps
that would have been taken by City's police department to secure
biological specimens and other evidence obtained during the exam.
In 2001, the Texas legislature passed article 64 of the
Texas Code of Criminal Procedure, which provides for postconviction testing of DNA under certain circumstances.

On

February 1, 2002, pursuant to article 64, plaintiff sought postconviction DNA testing of any biological evidence in the State's
possession.

The court appointed counsel for plaintiff in 2005,

and counsel obtained an order from the trial court requiring
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custodians of records to search for DNA evidence and report their
findings.

Hospital provided an affidavit indicating it had no

responsive evidence.

Likewise, City's police department provided

two affidavits indicating that the "current disposition of the
evidence [was] unknown."

Mot., Ex. at 2, 4. 2

Plaintiff contends

that the trial court denied his article 64 motion on the grounds
that no evidence existed that was in a condition making DNA
testing possible.

Plaintiff appealed the trial court's denial of

his motion; the court of appeals affirmed, and the Texas Court of
Criminal Appeals refused the petition for review.
In the instant complaint and Motion, plaintiff alleged that
the defendants denied his right of access to the court, and
deprived him of his liberty interest in utilizing state
procedures in violation of the due process clause.
II.

Screening Under 28 U.S.C.

§

1915A

As a prisoner seeking redress from government officials,
plaintiff's motion is subject to preliminary screening under 28
U.S.C.

§

pauperis.

1915A, regardless of whether he is proceeding in forma
See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir.

2

The two affidavits indicating that the disposition of the evidence was unknown were signed in
2003 and 2009. A third police department affidavit, signed in 2002, stated that such evidence was never
in the department's possession.
3

1998).

Section 191SA(b) (1) provides for sua sponte dismissal if

the court finds that the complaint is either frivolous or fails
to state a claim upon which relief may be granted.

A claim is

frivolous if it "lacks an arguable basis either in law or in
fact."

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

A

complaint fails to state a claim upon which relief can be granted
when, assuming that all the allegations in the complaint are true
even if doubtful in fact, such allegations fail to raise a right
to relief above the speculative level.

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and
citations omitted) .
III.
Analysis
A.

Plaintiff Is Entitled to No Relief
To state a claim under

§

1983, plaintiff must allege a

violation of a constitutional right, committed by a person acting
under color of state law.

Sw. Bell Tel., LP v. City of Houston,

529 F.3d 257, 260 (5th Cir. 2008).

Although the Supreme Court

has recognized that "a postconviction claim for DNA testing is
properly pursued in a
U.S.

§

1983 action,"

Skinner v. Switzer,

, 131 S.Ct. 1289, 1293 (2011), the Court did not

establish standards for considering the merits of such a claim.
Emerson v. Thaler, 544 F. App'x 325, 328 (per curiam)
4

(citing

u.s.

Skinner,

, 131 S.Ct. at 1298-99, 1300).

However,

where a state has created a right to post-conviction DNA testing,
as Texas has through article 64, "the state provided procedures
must be adequate to protect the substantive rights provided."
Elam v. Lykos, 470 F. App'x 275, 276 (5th Cir. 2012)
(citing Skinner,

u.s.

(per curiam)

, 131 S.Ct. at 1293, and Dist.

Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S.
52, 67-69 (2009)).

Hence, the question here is whether the

defendants unconstitutionally denied plaintiff the right to postconviction testing of DNA evidence.

Harris v. Lykos,

No. 12-20160, 2013 WL 1223837, *1 (5th Cir. Mar. 27, 2013)
curiam)

(citing Skinner,

U.S.

(per

, 131 S. Ct. at 1293).

"Federal courts may upset a State's postconviction relief
procedures only if they are fundamentally inadequate to vindicate
the substantive rights provided."

Osborne, 557 U.S. at 69.

The post-conviction procedures at issue here are found in
article 64 of the Texas Code of Criminal Procedure.

Article 64

permits a convicted defendant to seek DNA testing of evidence
that was "secured in relation to the offense that is the basis of
the challenged conviction and was in possession of the state
during the trial of the offense."
64.01(b).

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Tex. Code Crim. Proc. art.

To obtain relief under article 64, a "convicted person" must
file a motion in the "convicting court" for "forensic DNA testing
of evidence containing biological material."

Id. at (a-1).

The

convicting court may not grant the motion unless it finds all of
the following: the evidence "still exists and is in a condition
making DNA testing possible;" the evidence has been protected
from tampering or alteration through an appropriate chain of
custody; and, identity "was or is" at issue in the case.
art. 64.03(a) (1) (A)-(B).

Id. at

Additionally, the moving defendant

bears the burden to establish by a preponderance of the evidence
that, inter alia, "the person would not have been convicted if
exculpatory results had been obtained through DNA testing."

Id.

at (a) (2) (A).
Plaintiff maintains that the convicting court denied his
motion because there was no evidence that existed in a condition
that made DNA testing possible, as set forth in the affidavits
submitted by Hospital and City's police department.

In the

instant action, plaintiff takes issue with those affidavits,
claiming that they are false and were fabricated to conceal the
whereabouts of the biological evidence.

Absent from the motion,

however, is anything other than plaintiff's speculation to
support his claim as to the affidavits' falsity.

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For example, plaintiff points to discrepancies between the
affidavit offered by City's police department in 2002, and the
ones offered in 2003 and 2009, noting that the 2002 affidavit
states the department was never in possession of the evidence,
while the subsequent affidavits indicate it was in the
department's possession but its disposition was unknown.
Attachments to the Motion, however, show that the State did not
rely on the 2002 affidavit in support of its response to
plaintiff's motion under article 64, and in any event, all of the
affidavits establish that City is unable now to locate the
evidence, if it ever was in the police department's possession.
Although plaintiff insists that the statements in the affidavits
are false or fabricated, nothing is provided in the Motion or
complaint to support that contention.
Even if the court were to accept the contention that the
affidavits are false, it would not change the outcome, as the
motion fails to address the other factors required to obtain
relief under art. 64.

For example, plaintiff does not allege

that "identity was or is" an issue in his criminal case, or that
he raised that issue in the convicting court.
Proc. art. 64.03(a) (1) (B).

Tex. Code Crim.

Nor does plaintiff allege or attempt

to establish that he would not have been convicted if DNA testing
had yielded exculpatory results, as the statute requires.
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Id. at

(a) (2) (A).

Again, plaintiff does not indicate that he ever

raised this issue in the convicting court.

Thus, to the extent

plaintiff failed to establish all of the things required by the
statute to obtain post-conviction DNA testing, he cannot complain
of the inadequacy of the State's procedures.
Summed up, plaintiff has failed to allege facts to show that
the procedures established by article 64 are "fundamentally
inadequate to vindicate the substantive rights provided."
Osborne, 557 U.S. at 69.
B.

Failure to Identify Relief Sought by the Motion
Plaintiff's Motion, filed along with his

§

1983 complaint,

is titled as one seeking a preliminary injunction.

The relief

sought by the complaint is for the court to grant the motion for
injunctive relief.

According to Black's Law Dictionary, 5th

Edition, an injunction is a 'prohibitive, equitable remedy
forbidding [a party] to do some act .

which he is

threatening, attempting to commit, or restraining him in the
continuance thereof, . . . "

Moore v. State Farm Mut. Auto Ins.

Co., 205 F. App'x. 218, 220-221 (5th Cir. 2006).

Hence, the

order granting injunctive relief must specify "the act or acts
restrainedorrequired."

Fed. R. Civ. P. 65(d)(1)(C).

Despite a diligent review of the Motion, the court cannot
reasonably ascertain the act or acts which plaintiff wishes the
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court to restrain or require.

Although plaintiff asks that the

court grant him injunctive relief, no indication is given in the
complaint or the Motion as to what such relief would entail.
Accordingly, the court is unable to grant any injunctive relief,
and the Motion is denied.
IV.
Order
Therefore,
The court ORDERS that all claims and causes of action
asserted by plaintiff, Roy Lee Kinney, against defendants, Joe
Shannon, Jr., City, Hospital, and Members of the Prosecutorial
Team, be, and are hereby, dismissed with prejudice pursuant to
the authority of 28

u.s.c.

§

1915A(b) (1).

SIGNED July 11, 2014.

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