United States District Court, D. Maryland
DERWIN POWERS, Also Known as Walter D. Powers, Plaintiff,
BODE TECHNOLOGY LAB, Defendant.
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.
Powers, a prisoner confined by the Maryland Division of
Correction and housed at the Maryland Correctional
Institution in Hagerstown ("MCIH",, seeks to compel
Virginia-based Bode Technology Lab ("Bode") to
"turn over case files . . . necessary
for the preparation of [his] Post-Conviction defense."
Compl. at 1, ECF No. 1. Accompanying the Complaint is
Powersss Motion for Leave to Proceed In Forma
Pauperis ("IFP Motion"), ECF NO.2.
initially filed his action against Bode in the United States
District Court for the Eastern District of Virginia. That
court declined to address Powersss IFP Motion and transferred
Powersss Complaint, which it construed as a civil rights
action pursuant to 42 U.S.C. 9 1983, to this District.
Because the record contains a financial affidavit filed by
Powers in state court that indicates that he is indigent, ECF
No. 2-1, the Court grants the IFP motion and permits Powers
to proceed in forma pauperis. For the reasons set
forth below, however, the case is dismissed.
19, 2013, Powers was charged in the Circuit Court of Maryland
for Howard County pursuant to an eight-count indictment
alleging that Powers committed armed robbery and related
crimes. State v. Powers, No. 13K13053423
(Howard Cty. Cir. Ct. 2014),
August 30, 2013, Powers's attorney filed a notice of
intention to introduce DNA evidence. On April 2, 2014, a jury
convicted Powers of armed robbery and two related firearms
offenses. On July 24, 2014, Powers was sentenced to a total
of 35 years of imprisonment. After Powers appealed, the Court
of Special Appeals of Maryland issued an unreported opinion
on July 31, 2015 dismissing his appeal. Powers v.
State, No. 1423, 2015 WL 5968859, at *1 (Md. Ct. Spec.
App. July 31, 2015). The Maryland Court of Appeals denied
Powers's petition for a writ of certiorari on November
23, 2015. Powers v. State, 126 A.3d 4 (Table) (Md.
Complaint, Powers seeks to compel a private testing
laboratory to provide him with reports for use in preparing a
petition for post-conviction relief pursuant to the Maryland
Uniform Post-Conviction Procedure Act, Md. Code Ann., Crim.
Proc. §§ 7-101 to -109 (West 2011). In cases filed
in forma pauperis, the Court "shall dismiss the
case at any time" if the court concludes that the action
fails to state a claim on which relief may be granted. 28
U.S.C. §1915(e)(2) (2012). Here, the Court finds that
Powers does not assert a cognizable claim in this Court.
does not identify the specific cause of action under which he
seeks an order for disclosure of the laboratory reports.
Although the Eastern District of Virginia interpreted
Powers's Motion as an action filed pursuant to 42 U.S.C.
§ 1983, that statute requires that: (1) the plaintiff
suffered a deprivation of "a right secured by the
Constitution and laws" of the United States; and (2) the
act or omission causing the deprivation was committed by a
person acting under color of law. West v. Atkins,
487 U.S. 42, 48 (1988). Thus, in order for Powers to
successfully assert a 9 1983 claim, the defendant he names
must have acted under color of state law. In this instance,
however, Bode is not a state entity or official. Under
certain circumstances, a private party could be considered a
state actor for purposes of a 9 1983 claim:
(1) when the state has coerced the private actor to commit an
act that would be unconstitutional if done by the state; (2)
when the state has sought to evade a clear constitutional
duty through delegation to a private actor; (3) when the
state has delegated a traditionally and exclusively public
function to a private actor; or (4) when the state has
committed an unconstitutional act in the course of enforcing
a right of a private citizen.
DeBauche v. Trani, 191 F.3d 499, 507 (4th Cir.
1999). Here, Powers has provided no indication that
Bode's testing activity was on behalf of a governmental
entity. As pleaded, therefore, the Complaint fails to state a
claim. See Andrews v. Fed. Home Loan Bank of
Atlanta, 998 F.2d 214, 217(4thCir.1993).
extent that Powers's action could be construed as a
petition seeking a writ of mandamus requiring Bode to take a
specific action, he also fails to state a claim. Federal
district courts have original jurisdiction of any action in
the nature of mandamus to "compel an officer or employee
of the United States or any agency thereof to perform a legal
obligation or duty owed to a petitioner. 28 U.S.C. 9 1361.
There is no allegation, or basis to assume, that Bode is a
federal official or acting on behalf of one.
Powers's Complaint arguably could be construed as having
been filed pursuant to a federal petition for a writ of
habeas corpus, 28 U.S.C. 92254, with the request for an order
requiring Bode to produce laboratory reports having been made
in furtherance of that action. Powers, however, acknowledges
that he is in the process of pursuing a state petition for
postconviction relief and that the records sought are for the
purpose of advancing that petition. Having failed to exhaust
state post-conviction remedies, Powers cannot file a federal
petition for a writ of habeas corpus. See 28 U.S.C.
9 2254(b), (c); Preiser v. Rodriguez, 411 U.S. 475,
489- 91 (1973). Because he has failed to state a federal
cause of action, Powers's complaint is dismissed.
request to secure laboratory reports that may support a state
petition for postconviction relief should instead be directed
to the state court in conjunction with that petition.
"Federal courts may upset a State's post-conviction
relief procedures only if they are fundamentally inadequate
to vindicate the substantive rights provided." Dist.
Attorney's Office for Third Judicial Dist. v.
Osborne, 557 U.S. 52, 67 (2009). Maryland has provided a
statutory entitlement to DNA evidence in certain instances
under Maryland's DNA post-conviction review statute.
See Md. Code Ann., Crim. Proc. § 8-201; Md.
Rule 4-40l(b). Because Maryland law provides a mechanism by
which Powers may petition to obtain DNA information, there is
no basis to seek federal intervention.
it is hereby ORDERED that:
1. Powers's Motion for Leave to Proceed In Forma
Pauperis, ECF ...