Opinion
No. 3-02-CV-0504-D
April 15, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a civil rights action brought under 42 U.S.C. § 1983. Plaintiff Pete Vardas, Jr. is an inmate in the Texas prison system. Defendants are: (1) the City of Dallas; (2) the Dallas Police Property Room; and (3) Bruce Anton.
Plaintiff tendered an application for leave to proceed in forma pauperis and a standard complaint form used by prisoners in filing civil rights actions. The information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case. The Court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Upon further review, the Court determines that this action is frivolous and should be summarily dismissed under 28 U.S.C. § 1915(e)(2).
II.
In June 1988, plaintiff pled guilty to robbery and was sentenced to life imprisonment. More than 12 years later, he requested DNA testing of the physical evidence in his case under a newly enacted Texas statute. His motion was denied because the evidence at issue, a knife, had been destroyed by the Dallas Police Department on April 21, 2000 — nearly a year before the statute was enacted. Plaintiff now contends that the destruction of this evidence violated his constitutional rights and invalidates his conviction. He further maintains that his former attorney failed to protect his right to DNA testing. By this suit, plaintiff seeks damages totaling $25 million.
A.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 109 S.Ct. at 1831. A claim may be deemed to lack an arguable basis in fact only if it is based upon factual allegations that are clearly fanciful or delusional in nature. Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
B.
Article 64.01 of the Texas Code of Criminal Procedure, effective as of April 5, 2001, provides:
(a) A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological materials. The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion.
(b) The motion may request forensic DNA only of evidence described in Subsection (a) that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense, but:
(1) was not previously subjected to DNA testing:
(A) because DNA testing was:
(i) not available; or
(ii) available, but not technologically capable of providing probative results; or
(B) through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing; or
(2) although previously subjected to DNA testing, can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test.
TEX. CODE CRIM. PROC. ANN. art. 64.01 (Vernon Supp. 2002). A convicting court may order forensic DNA testing if: (1) the evidence still exists; (2) identity was or is an issue in the case; and (3) "the convicted person establishes by a preponderance of the evidence that a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing." Id. art. 64.03(a). This, in turn, requires the convicted person to demonstrate that "a reasonable probability exists that exculpatory DNA tests will prove I his] innocence." Kutzner v. State, ___ S.W.3d ___, 2002 WL 532423 at *7 (Tex.Crim.App. Apr. 10, 2002).
C.
Plaintiff was charged with the robbery of Tony Jimenez. According to the police, plaintiff "entered Jiminez's business after closing hours, held a knife to his throat, took his wallet, and ran out the door." (Plf. Compl., Attch. at 1). A blood-stained kitchen knife was the only piece of physical evidence recovered from the crime scene. This knife was destroyed by the Dallas Police Department on April 21, 2000 pursuant to a city ordinance that authorized the destruction of such evidence. Plaintiff now contends that the destruction of the knife, without prior notice, deprived him of the opportunity to prove his innocence. According to plaintiff's theory of the case, Jiminez actually assaulted him with the knife and the blood stains would "likely have established the identity of plaintiff for establishing a crucial element of the offense." ( Id., Attch. at 2).
Assuming arguendo that plaintiff has a due process right to the preservation of evidence for post-conviction DNA testing, he still has failed to state a cognizable civil rights claim. First, plaintiff pled guilty to the robbery. This fact alone makes it difficult, if not impossible, for him to demonstrate that a "reasonable probability exists that exculpatory DNA tests will prove [his] innocence." See Kutzner, 2002 WL 532423 at *7. Second, there is no question that plaintiff was the perpetrator of the offense. As a result, identity is not an issue in the case. Finally, the evidence was destroyed nearly a year before the DNA testing statute was enacted. See TEX. CODE CRIM. PROC. ANN. art. 64.01, et seq. (Vernon Supp. 2002) (effective Apr. 5, 2001). Under these circumstances, it is difficult to envision how plaintiff has a due process right to the preservation of the knife used in the robbery. The Court therefore concludes that plaintiff has failed to state a cognizable claim for relief under 42 U.S.C. § 1983.
It is not clear that the mere availablity of post-conviction DNA testing gives rise to a constitutional obligation on the part of the state to preserve evidence for such testing. Even prior to trial, the duty to preserve evidence is not absolute. Rather, this duty is limited to evidence that "possess[es] an exculpatory value that was apparent before the evidence was destroyed." California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984). See also United States v. Webster, 750 F.2d 307, 333 (5th Cir. 1984), cert. denied, 105 S.Ct. 2340 (1985) (mere possibility that evidence might aid defense not sufficient). Moreover, the failure to preserve potentially useful evidence does not constitute a denial of due process absent a showing of bad faith on the part of the police. See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988).
Nor can plaintiff sue two of the three defendants named in his complaint. The Dallas Police Department Property Room is not a legal entity subject to suit. See, e.g. Paredes v. City of Odessa, 128 F. Supp.2d 1009, 1014 (W.D. Tex. 2000) (city police department not separate legal entity). Bruce Anton, plaintiffs former attorney, is not a "state actor" and cannot be sued for civil rights violations under 42 U.S.C. § 1983. See Polk County v. Dodson, 454 U.S. 312, 324-25, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981).