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Moore v. Harris

United States District Court, N.D. California

July 2, 2014

KENNETH LYNN MOORE, Plaintiff,
v.
KAMALA D. HARRIS, et al., Defendants.

ORDER OF DISMISSAL WITH PARTIAL LEAVE TO AMEND (Docket Nos. 3, 4)

THELTON E. HENDERSON, District Judge.

Plaintiff, an inmate at California State Prison - Solano, filed this pro se civil action under 42 U.S.C. § 1983, seeking the release and testing of potentially exculpatory biological evidence in the possession and control of officers of the State of California, Alameda County, and Santa Clara County. Plaintiff's request to proceed IFP will be granted in a separate order. His complaint is now before the Court for initial screening pursuant to 28 U.S.C. § 1915A.

I

Plaintiff is currently serving a life sentence imposed by the Alameda County Superior Court in 1980 after he and his brother, David Moore, were convicted of serious crimes arising from ten separate incidents that occurred in Northern California in August 1978. Among the offenses for which both Plaintiff and his brother were convicted was the rape of "Linda S." in a San Jose motel room on August 11, 1978. Although Plaintiff now admits to having committed one of the offenses for which he was tried and convicted, the theft of a pickup truck from a Los Altos, California auto dealership, he maintains that he is innocent of the remaining offenses, including the rape of Linda S.

Seeking to establish his innocence, Plaintiff brought a prior action in this court, Moore v. Lockyer, Case No. C 04-1952 MHP, seeking the release of DNA evidence collected by Santa Clara County during the course of the investigation into Linda S.'s rape. On September 23, 2005, this court dismissed the prior action under California's issue preclusion law, finding that the state court, in 2002, had already determined there was no reasonable probability that access to DNA evidence would have affected the outcome of Plaintiff's criminal proceedings. The Ninth Circuit Court of Appeals affirmed. Moore v. Brown, No. 06-15016, 2008 WL 4430338 (unpublished memorandum disposition).

Plaintiff states that he does not, by way of the instant action, attempt to re-litigate the claims in his earlier federal court action. Rather, Plaintiff states that the claims herein are based on events that occurred subsequent to the conclusion of his earlier action.

Specifically, Plaintiff alleges that in early 2012 he obtained pro bono counsel, Kelley Fleming. Ms. Fleming secured a verbal agreement with the Santa Clara County Crime Laboratory ("SCCCL") to test a DNA swab collected from Linda S. in 1978, following the rape. Plaintiff alleges the swab was tested in June 2012, revealing DNA from three individuals - two male, and one female. When compared against the DNA samples extracted from Plaintiff, he was eliminated as a contributor; however, so was the victim.

Plaintiff alleges that these findings "created a dilemma" for SCCCL and "sparked much debate between [Plaintiff's counsel] and SCCCL staff attorneys and lab technicians." Plaintiff further alleges that in the subsequent months, SCCCL refused to meet and confer with Plaintiff's counsel and "abruptly canceled any further meetings." According to the complaint, "defendants at SCCCL verbally admitted [] that they tested the wrong evidence." Plaintiff alleges that the only logical inference is that there has been "tampering" or "falsification/fabrication" of the DNA swab.

Plaintiff also refers to requests for appointment of counsel he made in Alameda County Superior Court in February 2013 and June 2013. Both were decided by Alameda County Superior Court Judge Larry J. Goodman, who also decided Plaintiff's 2002 state court action seeking access to DNA evidence, as mentioned above.

Plaintiff states that Judge Goodman approved his June 2013 request for counsel in state court. Plaintiff offers no further information on the status of any current state court proceedings. Plaintiff alleges that the DNA testing that was done was not properly done, that some evidence was lost or contaminated, and that other pieces of evidence should have been tested. Plaintiff claims that Defendants' failure to properly test and/or release the biological evidence in his criminal case violates his Fourteenth Amendment right to due process and equal protection. Plaintiff also alleges state law violations.

II

A

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted, " or "seeks monetary relief from a defendant who is immune from such relief." Id . § 1915A(b). Pleadings filed by pro se litigants, however, must be liberally construed. Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010); Balistreri v. Pacifica Police Dep't. , 901 F.2d 696, 699 (9th Cir. 1990).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under ...


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