UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAWRENCE EUGENE DELL, #269764,

Plaintiff,

CASE NO. 2-15-CV-11211

v. HONORABLE NANCY G. EDMUNDS

MICHAEL K. O’HARE, et al.,

Defendants.

_________________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL

I. INTRODUCTION

Michigan prisoner Lawrence Eugene Dell (“Plaintiff”) has filed a pro se civil rights

complaint pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971). He seeks access to DNA evidence from

his state criminal proceedings, which involved the detonation of an explosive device that

injured his wife.1 He alleges a violation of his due process and equal protection rights. 

Plaintiff names two Detroit-based federal postal inspectors, Michael K. O’Hare and Martin

Anthony Darcy, and two Virginia-based postal service employees, forensic chemist Robert

B. Moberley and forensic latent print analyst Scott W. Peters, as the defendants in this

 1Plaintiff was convicted of use of explosives with intent to destroy causing injury to a

person and attempted murder in the St. Clair County Circuit Court and sentenced to

concurrent terms of life imprisonment and 40 to 80 years imprisonment in 1996. See

Offender Profile, Michigan Offender Tracking Information System (“OTIS”),

http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=269764. 

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action.2

 He sues them in their individual and official capacities. Plaintiff seeks injunctive

relief – namely a search for biological material from his criminal proceedings and release

and testing of that material and/or a hearing to determine its availability/unavailability. The

Court has granted Plaintiff leave to proceed without prepayment of the fees and costs for

this action. See 28 U.S.C. § 1915(a)(1).

II. DISCUSSION

Under the Prison Litigation Reform Act of 1996 (“PLRA”), the Court is required to

sua sponte dismiss an in forma pauperis complaint before service on a defendant if it

determines that the action is frivolous or malicious, fails to state a claim upon which relief

can be granted, or seeks monetary relief against a defendant who is immune from such

relief. See 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2)(B). The Court is similarly

required to dismiss a complaint seeking redress against government entities, officers, and

employees which it finds to be frivolous or malicious, fails to state a claim upon which relief

may be granted, or seeks monetary relief from a defendant who is immune from such relief. 

See 28 U.S.C. § 1915A. A complaint is frivolous if it lacks an arguable basis in law or in

fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325

(1989).

A pro se civil rights complaint is to be construed liberally. Haines v. Kerner, 404 U.S.

519, 520-21 (1972). Nonetheless, Federal Rule of Civil Procedure 8(a) requires that a

complaint set forth “a short and plain statement of the claim showing that the pleader is

entitled to relief,” as well as “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(2), (3). 

 2Because Plaintiff only sues federal defendants in his complaint, this case is

construed as a Bivens action.

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The purpose of this rule is to “give the defendant fair notice of what the claim is and the

grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted). While this notice pleading standard does not require “detailed” factual

allegations, it does require more than the bare assertion of legal conclusions. Twombly,

550 U.S. at 555. Rule 8 “demands more than an unadorned, the

defendant-unlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of

a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a

complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” 

Id. (quoting Twombly, 550 U.S. at 557).

To state a federal civil rights claim, a plaintiff must allege that: (1) he was deprived

of a right, privilege, or immunity secured by the federal Constitution or laws of the United

States; and (2) the deprivation was caused by a person acting under color of state or

federal law. Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Harris v. Circleville, 583

F.3d 356, 364 (6th Cir. 2009).

In this case, Plaintiff fails to state a claim upon which relief may be granted in his

complaint. Plaintiff raises several due process arguments in his complaint essentially

asserting that he has a post-conviction right to evidence from his state criminal proceedings

for DNA testing based upon a right to prove his innocence, the State’s duty to disclose

exculpatory evidence, and the State’s duty to gather, preserve, and test evidence. A

criminal defendant found guilty after a fair trial, however, does not have the same liberty

interests as a free person. District Attorney’s Office for the Third Judicial Dist. v. Osborne,

557 U.S. 52, 68 (2009). In Osborne, the United States Supreme Court specifically held that

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a state prisoner has no freestanding federal substantive due process right of

post-conviction access to evidence for DNA testing. Id. at 72; see also Skinner v. Switzer,

562 U.S. 521, 535 (2011) (citing Osborne). The Supreme Court further ruled that there is

no duty to disclose exculpatory evidence or to preserve evidence after trial. Osborne, 557

U.S. at 72-74. The Supreme Court instead indicated that a state prisoner may have a

procedural due process right regarding the proper application of a state-created right as to

such matters. In other words, a state prisoner could bring a federal action challenging the

adequacy of a state's procedures governing post-conviction access to evidence and the

testing (or retesting) of that evidence. Id. at 68-69. Thus, to the extent that Plaintiff asserts

that he has a substantive due process right of access to evidence for DNA testing, he is

mistaken and fails to state a claim upon which relief may be granted.

Plaintiff asserts that he is challenging the Michigan procedure for post-conviction

access to DNA testing and the state court’s interpretation of that statute in his complaint. 

Plaintiff, however, offers no specifics or factual allegations to support such an assertion. 

It is well-settled that conclusory allegations are insufficient to state a civil rights claim. See,

e.g., Crawford-El v. Britton, 523 U.S. 574, 588 (1998); Lanier v. Bryant, 332 F.3d 999, 1007

(6th Cir. 2003).3

 Moreover, the United States Court of Appeals for the Sixth Circuit has

 3Even if Plaintiff were to allege sufficient facts to challenge Michigan’s postconviction procedures, he fails to name proper defendants. It is well-settled that a

plaintiff must allege the personal involvement of a defendant to state a civil rights claim

under 42 U.S.C. § 1983 or Bivens. See Monell v. Department of Social Svs., 436 U.S.

658, 691-92 (1978) (Section 1983 liability cannot be based upon a theory of respondeat

superior or vicarious liability); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009)

(same); Taylor v. Michigan Dep't of Corrections, 69 F.3d 716, 727-28 (6th Cir. 1995)

(plaintiff must allege facts showing that the defendant participated, condoned,

encouraged, or knowingly acquiesced in misconduct). Plaintiff fails to do so. The

federal postal employees identified as the defendants are not responsible for the state’s

procedures or the application of those procedures in his post-conviction proceedings.

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ruled that such a challenge to Michigan's post-conviction procedures “is untenable because

Michigan's statutory scheme is more comprehensive that the state procedures sanctioned

by the Osborne court.” In re Smith, 349 F. App’x 12, 14 (6th Cir. 2009); see also Lamb v.

Wayne Co. Prosecutor, No. 2:09-CV-15003, *3 (E.D. Mich. Jan. 22, 2010) (citing Smith and

finding Michigan's post-conviction procedures sufficient to satisfy procedural due process). 

This Court agrees that Michigan provides sufficient post-conviction procedures to address

Plaintiff's concerns. See Mich. Ct. R. 6.500 et seq. (providing for post-conviction collateral

review); Mich. Comp. Laws § 770.16 (providing for post-conviction DNA testing). In fact,

Plaintiff admits that he sought relief under Mich. Comp. Laws § 770.16 in 2003 and 2009,

but the trial court denied his motions because the prosecutor had submitted an affidavit

stating that the requested material was no longer available due to the passage of time. 

Plaintiff does not allege any facts which show that the state procedure itself is

unconstitutional. He thus fails to state a procedural due process claim in his complaint. 

See, e.g., Vaughn v. Office of the Judge for the Third Circuit Ct., No. 14-CV-10458, 2015

WL 404254, *9 (Jan. 29, 2015) (adopting Magistrate Judge’s report and dismissing civil

rights complaint raising similar claims).

The essence of Plaintiff’s complaint is that the state trial court erred in denying his

post-conviction motion for DNA testing (in 2009) based upon the prosecutor’s affidavit

regarding the unavailability of the evidence without ordering the appropriate police agencies

to conduct a search for the evidence. To the extent that Plaintiff seeks to have this Court

reverse the state trial court’s decision, his claim is barred by the Rooker-Feldman doctrine

which precludes lower federal courts from reviewing state court decisions where the injury

complained of derives from the state court judgment. See District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 482 & n. 16 (1983); Rooker v. Fidelity Trust Co., 263

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U.S. 413, 415-16 (1923); see also Smith, 349 F. App’x at 15-16 (ruling that RookerFeldman barred prisoner’s claim challenging state trial court’s denial of DNA testing under

Mich. Comp. Laws § 770.16); Vaughn, 2015 WL 404254 at *7 n. 9. To the extent that

Plaintiff seeks an order for the discovery and release of biological evidence to be tested,

his claim is barred by res judicata given the state court’s determination that the requested

evidence is no longer available. See Vaughn, 2015 WL 404254 at *9-10 (discussing issue

at length and ruling that such claims were barred by res judicata). Plaintiff fails to state a

viable procedural due process claim in his complaint.

Lastly, Plaintiff alleges a violation of his equal protection rights in his complaint. 

Again, however, he fails to state a claim upon which relief can be granted. The linchpin of

an equal protection claim is that the government has treated people who are similarly

situated in a different manner. Bannum, Inc. v. City of Louisville, 958 F.2d 1354, 1359-60

(6th Cir. 1992). Plaintiff asserts, in conclusory fashion, that he is being denied equal

protection, but does not provide any factual support for his assertion. He fails to indicate

with any specificity how he has been treated differently from others who are similarly

situated. The fact that some prisoners may be having their convictions reviewed and/or

evidence retested does not mean that those prisoners are similarly situated to Plaintiff or

that Plaintiff is being treated unfairly. As noted, conclusory allegations are insufficient to

state a civil rights claim. Crawford-El, 523 U.S. at 588; Lanier, 332 F.3d at 1007. Prisoners

are not members of a protected class for equal protection purposes. Hampton v. Hobbs,

106 F.3d 1281, 1286 (6th Cir. 1997). Plaintiff fails to state an equal protection claim in his

complaint.

III. CONCLUSION

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Having reviewed the matter, the Court concludes that Plaintiff fails to state a claim

upon which relief may be granted in his complaint. Accordingly, the Court DISMISSES

WITH PREJUDICE the complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The

Court further concludes that an appeal from this order cannot be taken in good faith. See

28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445 (1962).

IT IS SO ORDERED.

s/ Nancy G. Edmunds 

NANCY G. EDMUNDS

UNITED STATES DISTRICT JUDGE

Dated: August 27, 2015

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