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Dove v. Schurmeier

United States District Court, E.D. North Carolina, Western Division

September 24, 2019

ANTHONY DOVE, Plaintiff,
ROBERT SCHURMEIER, SBI Director; B.W. COLLIER, Former SBI Director; JOSH STEIN, NC Attorney General; and JOHN A. BYRD, North Carolina State Crime Lab Director, Defendants.



         This 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.


         Plaintiff 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.

         Prior 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 defendant.

         On 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.

         Defendants 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).


         As 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.

         On 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).[1]

         Plaintiff 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).

         In a 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.

         On July 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.).

         The Lenoir County Superior Court denied the motion, holding, in relevant part:

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. ยง 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 ...

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