United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOE L. WEBSTER, Magistrate Judge.
This matter is before the Court on Defendant Leon Stanback's motion to dismiss for lack of subject-matter jurisdiction, lack of personal jurisdiction, insufficient service of process, and failure to state a claim. (Docket Entry 17.) The motion has been fully briefed and the matter is ripe for disposition. For the reasons that follow, it is recommended that Defendant's motion be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff James Earl Cooper began this action by filing a complaint pursuant to 42 U.S.C. § 1983 on July 15, 2013. The complaint alleges a violation of his United States constitutional right to due process resulting from Defendant's refusal to have "biological evidence" tested for DNA. (Compl. at 2, Docket Entry 2.) Cooper claims that Defendant has "custody and control of the biological evidence." (Id. )
Cooper has challenged Defendant's refusal to undertake DNA testing in state court. ( See Def.'s Mem. at 2, Docket Entry 18.) In 2012, Durham County Superior Court Judge Orlando Hudson denied Cooper's request for DNA testing, finding that Cooper had not shown that the state possessed untested evidence. (Docket Entry 18 at Exhibit 1.) Plaintiff now brings the present action, seeking an order requiring that physical evidence in the custody of Defendant be tested for DNA.
Defendant moves to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6). He further asserts that the statute of limitations presents a bar on Plaintiff's claim.
A. This Court Lacks Subject Matter Jurisdiction to Adjudicate this Matter
Defendant first argues that this Court lacks subject matter jurisdiction to adjudicate Plaintiffs claim. (Docket Entry 18 at 4-6.) Subject matter jurisdiction is both a Constitutional and statutory requirement which restricts federal judicial power to a limited set of cases and controversies. Thus, "no action of the parties can confer subject matter jurisdiction upon a federal court." Ins. Corp. of Ireland v. Compagnie des bauxites de Guinee, 456 U.S. 694, 702 (1982). When a defendant challenges subject matter jurisdiction, "the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredricksburg & Potomoc R.K Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The district court should grant the Rule 12(b)(1) motion to dismiss "only if the material jurisdictional facts are not in dispute and the moving parly is entitled to prevail as a matter of law." Id; see also Evans v. B.F. Perkins, Co., 166 F.3d 642, 647 (4th Cir. 1999).
Defendant contends that this Court lacks subject matter jurisdiction to entertain this claim pursuant to the Rooker-Feldman doctrine. (Def.'s Mem at 5-6, Docket Entry 18.) "Under the Rooker-Feldman doctrine, lower federal courts generally do not have jurisdiction to review state-court decisions; rather, jurisdiction to review such decisions lies exclusively with superior state courts and, ultimately, the United States Supreme Court." Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997). Plaintiff argues that he "is not using this action to make a collateral attack on the criminal court judgment, " but that the Supreme Court's decision in Skinner v. Swifter allows for subject matter jurisdiction to obtain testing of biological evidence under § 1983. (PL's Resp. at 4-5, Docket Entry 20 (citing Skinner v. Swifter, 131 S.Ct. 1289 (2011).) This argument misreads Skinner. Skinner holds that "a state-court decision is not reviewable by lower federal courts, but a statute or rule governing the decision may be challenged in a federal action." Skinner, 131 S.Ct. at 1298. While the outcome in Skinner allowed a prisoner to obtain testing of DNA, the plaintiff in that case challenged the validity of the underlying state statute. Id. Here, Plaintiff attacks the ruling of a North Carolina superior court denying him the DNA evidence, not the validity of the underlying state statute. He has previously sought an order from state court under N.C. GEN. STAT. § 15269 to obtain post-conviction testing. ( See Compl. at 6, Docket Entry 2.) Plaintiff's request for testing was denied by the Durham County Superior Court, and his subsequent petition for certiorari to the North Carolina Court of Appeals was also denied. (Id. ) Neither the complaint nor Plaintiffs brief purports to challenge the validity of the state statute. ( See Docket Entry 2 at 6-8; Docket Entry 20 at 5-6.) Moreover, it is clear that success on this claim would effectively nullify the order of the state court. Therefore, the reasoning of Skinner is inapposite here and this Court does not have subject matter jurisdiction to adjudicate this action. See Alvare^ v. Att'y Gen'l forFla., 679 F.3d 1257, 1264 (11th Cir. 2012) (finding no error in district court holding that Rooker-Feldman barred it from exercising subject matter jurisdiction, holding that "Alvarez's as-applied procedural due process challenge boils down to a claim that the state court judgment itself caused him constitutional injury by arbitrarily denying him access to the physical evidence he seeks under Florida's concededly constitutional procedures. 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 court wrongly decided the issues."); McKithen v. Brown, 626 F.3d 143, 154-55 (2d Cir. 2010) (holding that Rooker-Feldman barred the claim that "the state court incorrectly and unconstitutionally interpreted the [New York DNA] statute by not assuming exculpatory results, " and noting that [t]he proper vehicle for McKithen to challenge the state court's interpretation of [the statute] was an appeal to the New York Appellate Division."); In re Smith, 349 F.Appx. 12, 15 (6th Cir. 2009) ("[B]y complaining that the [Michigan] state trial court wrongfully denied him the DNA evidence because rejection of his petition was improper - but not complaining that the statute itself is flawed - Smith is 'complaining of an injury caused by the state court judgment and seeking review and rejection of that judgment, ' which is clearly barred by Rooker-Feldman." (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291 (2005)).
Out of an abundance of caution, in the event the Court finds it has subject matter jurisdiction, Defendant's other arguments for dismissal are discussed below.
B. Plaintiff Failed to Effectuate Proper Service of Defendant
Defendant argues that the complaint must be dismissed because of lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2), insufficient process, and insufficient service of process under Fed. R. Civ. P 12(b)(5). (Def.'s Mem. at 9, Docket Entry 18.) The undersigned agrees. "A motion under Rule 12(b)(5) is the appropriate means for challenging the manner or sufficiency of service of process. The plaintiff bears the burden of establishing that service of process has been accomplished in a manner that complies with Rule 4." Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F.Supp. 519, 576 (M.D. N.C. 1996) (emphasis and citations omitted). Where a plaintiff does not effectuate "valid service of process, the district court [is] without jurisdiction of the defendant...." Armco, Inc. v. Penrod-StaufferBldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir.1984).
Service of process on a state or local government official must be served "in the manner prescribed by that state's law for serving a summons or like process on such a defendant." Fed.R.Civ.P. 40(2)(B). In North Carolina, service on an agency or officer of the state is governed by North Carolina Rule of Civil Procedure 40(4). N.C. GEN. STAT. § 1A-1, Rule 40(4). The rule requires that process be served ...