United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
a Missouri state inmate, filed this civil rights action
pro se pursuant to 42 U.S.C. § 1983. Also
before the court is plaintiff's petition for an audit (DE
12) and motion for an audit (DE 15). The issues raised are
ripe for adjudication.
complaint is not a model of clarity. Plaintiff names the
American Society of Crime Laboratory Directors and attorney
John H. Watters (“Watters”) as defendants in this
action. Beginning with defendant Watters, Watters is not a
proper party because, as a private attorney, he is not a
state actor. See Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999) (stating that
“private conduct, no matter how discriminatory or
wrongful” is not actionable under § 1983);
Fleming v. Arbill, 42 F.3d 886, 890 (4th Cir. 1994)
(“Private lawyers do not act ‘under color of
state law' merely by making use of the state's court
system.”). Thus, plaintiff's action against Watters
is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
claim against the remaining defendant, the American Society
of Crime Laboratory Directors, is unclear. To the extent
plaintiff seeks to hold the American Society of Crime
Laboratory Directors liable for conspiring with an employee
of the Missouri forensic laboratory which conducted DNA
testing on materials used in plaintiff's criminal action,
plaintiff fails to state a claim. To state a civil conspiracy
claim, a plaintiff must plausibly allege “that the
[defendants] acted jointly in concert and that some overt act
was done in furtherance of the conspiracy that resulted in
[the] deprivation of a constitutional right.”
Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th
Cir. 1996). Conclusory allegations of a conspiracy do not
demonstrate the “meeting of the minds” element
and therefore fail to state a claim. See, e.g.,
Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995).
Here, plaintiff fails to plausibly allege a “meeting of
the minds” between any of the named defendants. Cf.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Thus,
plaintiff fails to state a claim for civil conspiracy.
extent plaintiff seeks an order compelling an audit of the
American Society of Crime Laboratory Directors, plaintiff
again fails to state a claim. “To state a claim under
[section] 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); see
Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180
(4th Cir. 2009). Plaintiff does not have a constitutional
right to initiate an audit of an agency. Thus, such claim is
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). For
the same reasons, plaintiff's motions seeking a court
order for an audit are DENIED.
plaintiff states in his complaint that he “has a
constitutional right to evidence that was introduced at his
trial, so he can have DNA testing conducted . . . .”
(Compl. p. 12). In an abundance of caution, the court
construes this claim as one pursuant to the United States
Supreme Court's decision in Skinner v. Switzer,
562 U.S. 521 (2011). (Compl. p. 12). Congress enacted 28
U.S.C. § 1391, which provides the statutory framework
for determining proper venue. Subsection (b) applies to
actions where jurisdiction is not premised solely on
diversity of citizenship. This subsection provides that such
actions may “be brought in (1) a judicial district in
which any defendant resides, if all defendants are residents
of the State in which the district is located, (2) a judicial
district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial
part of property that is the subject of the action is
situated, or (3) if there is no district in which an action
may otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to the
court's personal jurisdiction with respect to such
action.” 28 U.S.C. § 1391(b).
District of Missouri is the judicial district in which the
cause of action originally arose. Therefore, venue is proper
in that district. See 28 U.S.C. § 1391(b). The
court may transfer this case to the appropriate venue.
See 28 U.S.C. § 1406(a) (“The district
court of a district in which is filed a case laying venue in
the wrong division or district shall dismiss, or if it be in
the interest of justice, transfer such case to any district
or division in which it could have been brought.”).
Therefore, in the interest of justice, the court hereby
ORDERS the clerk of court to TRANSFER the remainder of
plaintiff's action to the United States District Court
for the Eastern District of Missouri, where venue is proper.
foregoing reasons, the court orders as follows:
1) Plaintiff's motions for an audit (DE 12, 15) are
2) Plaintiff's action against defendant Watters is
3) All claims, with the exception of plaintiff's
Switzer claim, are DISMISSED pursuant to 28 U.S.C.
4) The clerk is DIRECTED to transfer plaintiff s remaining
Switzer claim to the United States District Court
for the ...