United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on defendants’ motion for
summary judgment (DE 72). The issues raised have been fully
briefed and are ripe for adjudication. For the following
reasons, the motion is granted.
commenced this pro se prisoner civil rights action pursuant
to 42 U.S.C. § 1983, on May 3, 2016, seeking declaratory
and injunctive relief 1) ordering the North Carolina State
Bureau of Investigations to provide plaintiff with requested
ballistics evidence related to his state criminal case, which
concluded in October 2000, and 2) holding that N.C. Gen.
Stat. § 15A-1415(f) is unconstitutional and in violation
of plaintiff’s Fourteenth Amendment right to procedural
due process. Plaintiff seeks costs, but did not seek monetary
damages or a jury trial.
to the court’s initial review of his complaint,
plaintiff moved to amend his complaint, seeking to add
defendant John A. Byrd (“Byrd”), the director of
the North Carolina State Crime Laboratory, as a defendant and
to elaborate upon his original claims. On March 2, 2017, the
court allowed plaintiff’s claims to proceed as amended.
On March 13, 2017, defendant North Carolina Attorney General
Josh Stein (“Stein”) was substituted as a
March 19, 2018, the court issued an order addressing various
pending motions including: plaintiff’s second motion to
amend his complaint; defendants’ motions to dismiss for
lack of jurisdiction and for failure to state a claim;
plaintiff’s motions for default judgment, for
sanctions, and to compel discovery. The court granted in part
and denied in part defendants’ motions to dismiss,
dismissing plaintiff’s claims contesting the validity
of his state criminal conviction and his request for a copy
of the ballistics work conducted in his criminal case, but
denying defendants’ motions as to plaintiff’s
claim that the application of N.C. Gen. Stat. §
15A-1415(f) violates his Fourteenth Amendment rights. The
court also denied plaintiff’s motions to compel
discovery, for sanctions, and for default judgment; and
denied as futile plaintiff’s motion to amend his
complaint. A month later, the court denied plaintiff’s
motion to appoint counsel and a motion seeking damages.
filed the instant motion for summary judgment on January 7,
2019, relying upon a memorandum in support and a statement of
material facts referencing pleadings and documents in the
record, pleadings and discovery in prior cases, and
publically available information. Plaintiff responded in
opposition on February 5, 2019, relying upon record evidence
and attached documents including a partial transcript of
proceedings in No. 99-CRS-2586, State v. Dove; a
handwritten investigative statement, dated February 3, 1999;
a typewritten document entitled “Interview of Dennis
Simmons By Det. D.E. McLawhorn” dated February 3, 1999;
a typewritten investigative interview summary statement of
Dennis Simmons dated September 13, 2000; and a photocopy of a
purchase receipt dated January 26, 1999. (DE 77-1).
OF UNDISPUTED FACTS
pertinent to the instant claims, the undisputed facts,
comprising procedural history of plaintiff’s underlying
criminal conviction and post-conviction cases, may be
summarized as follows.
October 25, 2000, following a jury trial in Lenoir County
Superior Court, plaintiff was convicted of first degree
murder. See State v. Dove, No. COA01-1085, 153
N.C.App. 524, 570 S.E.2d 153, 2002 WL 31306667 *1 (2002).
Plaintiff was sentenced to life in prison without the
possibility of parole. (Id.). Plaintiff appealed
and, on October 15, 2002, the North Carolina Court of Appeals
found no error in plaintiff’s conviction or sentence.
See id. Plaintiff’s subsequent state-court
motions for appropriate relief were denied. (Pl.’s
Verified Mem. (DE 8) at 3).
filed a habeas petition in this court pursuant to 28 U.S.C.
§ 2254 in 2003. See Dove v. Boyette, No.
5:03-HC-583-FL. That petition was dismissed on summary
judgment, and the Fourth Circuit dismissed plaintiff’s
appeal. Dove v. Boyette, 133 Fed.Appx. 77, 78 (4th
Cir. 2005). As the court noted in a prior order, plaintiff
“has filed numerous actions, both in State and federal
court, seeking various forms of post-conviction relief. All
such requests for relief have been denied.” Dove v.
Jones, No. 5:16-CT-3183-D, 2017 WL 4112279, at *1 (E.D.
N.C. Mar. 23, 2017), appeal dismissed, 694 Fed.Appx.
180 (4th Cir. 2017).
prior civil-rights action in this court, plaintiff argued
that N.C. Gen. Stat. § 15A-1415(f) violates his
Fourteenth-Amendment rights because it provides
post-conviction discovery only for individuals represented by
counsel. See Dove v. Pate, No. 5:11-CT-3195-BO (E.D.
N.C. July 16, 2014) (DE 66). At summary judgement, after
finding plaintiff lacked standing to sue because he had not
previously sought discovery under N.C. Gen. Stat. §
15A-1415(f), the court dismissed the complaint without
prejudice to allow plaintiff to pursue this claim in the
appropriate state court. Id.
31, 2014, plaintiff moved the Lenoir County Superior Court
for discovery of documents from the State Bureau of
Investigation (“SBI”) that he alleged had not
been turned over at trial. (Pl.’s Verified Mem. (DE 8)
at 6). Plaintiff specifically sought SBI notes regarding
ballistic evidence and reiterated his argument that N.C. Gen.
Stat. § 15A-1415(f) is unconstitutional. (Id.).
Lenoir County Superior Court denied the motion, holding, in
Defendant is not entitled to post-conviction discovery based
upon the denial of post-conviction relief in his cases at
every level of both state and federal court. Despite N.C.
G.S. § 15A-1415(f) which provides for post-conviction
discovery; the denial of post-conviction discovery for
defendant would be denied either with an attorney or without
an attorney. There is ...