eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2002-11

Vardas v. City of Dallas ( 2002 )


Menu:
 
  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10616
Summary Calendar
PETE VARDAS, JR.,
Plaintiff-Appellant,
versus
CITY OF DALLAS, TEXAS; DALLAS POLICE
PROPERTY ROOM; BRUCE ANTON, Attorney at Law,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-504
--------------------
November 21, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Pete Vardas, Jr., Texas prisoner # 486618, appeals from the
dismissal of his
    42 U.S.C. § 1983
     complaint as frivolous pursuant
to
    28 U.S.C. § 1915
    (e)(2).   Vardas is serving a fifteen-year
sentence imposed in 1988 after pleading guilty to robbery.    He
alleged in his complaint that in 2001 he moved pursuant to the
newly-enacted TEX. CODE CRIM. P. art. 64.01 for DNA testing but
learned that the evidence he sought to have tested (a knife) had
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-10616
-2-
been destroyed one year earlier.   Vardas alleged, and he argues
on appeal, that the destruction of evidence pursuant to a city
ordinance denied him his right to prove his innocence and
invalidated his sentence.   He also argues that his guilty plea
was involuntary, that he was not informed of his right to appeal
the denial of DNA testing, and that the district attorney failed
to comply with discovery.
Most of Vardas's claims implicate the validity of his
conviction and are not cognizable in a
    42 U.S.C. § 1983
    complaint.   See Heck v. Humphrey,
    512 U.S. 477
    , 486-87 (1994).
To the extent that Vardas has stated a cognizable claim, he has
not shown that his due process rights were violated by the
destruction of evidence twelve years after his conviction and one
year before the state statute permitting DNA testing was enacted.
See Arizona v. Youngblood,
    488 U.S. 51
    , 56 (1988).   Moreover,
neither the Dallas Police Department Property Room nor court-
appointed attorney Anton are capable of being sued in a
    42 U.S.C. § 1983
     action.   See Darby v. Pasadena Police Dep't,
    939 F.2d 311
    ,
313 (5th Cir. 1991); Polk County v. Dodson,
    454 U.S. 312
    , 324-25
(1981); see also Mills v. Criminal Dist. Court No. 3,
    837 F.2d 677
    , 679 (5th Cir. 1988).
Vardas argues that the district court erred by dismissing
his complaint without conducting a hearing or permitting him an
opportunity to amend.   Vardas has not shown that the district
court abused its discretion in dismissing the complaint.     See
No. 02-10616
-3-
Eason v. Thaler,
    14 F.3d 8
    , 9 (5th Cir. 1994); Wilson v.
Barrientos,
    926 F.2d 480
    , 483 n.4 (5th Cir. 1991).
Vardas has moved for leave to proceed in forma pauperis
("IFP") on appeal.    Because the district court has permitted
Vardas to proceed on appeal pursuant to
    28 U.S.C. § 1915
    (b)(2),
the motion is DENIED AS UNNECESSARY.    All other outstanding
motions are also DENIED.
AFFIRMED.    MOTION for IFP DENIED AS UNNECESSARY.   ALL OTHER
MOTIONS DENIED.