Wilson v. Strange et al (JOINT ASSIGN)

Filing 29

OPINION AND ORDER: Accordingly, it is ORDERED that: (1) The United States Magistrate Judge's recommendation (doc. no. 27 ) is adopted. (2) Defendants' Rule 12(b)(1) motion to dismiss (doc. no. 8 ) is granted in part, and denied in part , as stated above and explained in the magistrate judge's recommendation. (3) The claims in Counts I, II, III, and IV that invite the court to review state-court decisions are dismissed without prejudice. (4) Defendants' Rule 12(b)(6) motio n to dismiss (doc. no. 8 ) is denied as to plaintiff's claim in Count I that Alabama's DNA law is facially unconstitutional, and is granted as to her other claims. (5) With the exception of plaintiff's claim in Count I that Alabama� 39;s DNA law is facially unconstitutional, Counts I, II, III and IV are dismissed without prejudice. This case is not closed, and is referred back to the magistrate judge for further proceedings. Signed by Honorable Judge Myron H. Thompson on 10/17/2018. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
BETTY WILSON,

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Plaintiff,
v.
STEVEN T. MARSHALL,
Alabama Attorney General,
et al.,
Defendants.

CIVIL ACTION NO.
2:14cv1106-MHT
(WO)

OPINION AND ORDER
Pursuant to 42 U.S.C. § 1983, plaintiff, a state
prisoner serving a sentence for capital murder, filed
this

lawsuit

Alabama’s
denial

of

DNA
her

challenging
testing
efforts

the

statute
to

constitutionality
and

obtain

the

state

testing

of

court’s

under

that

statute, and seeking orders requiring preservation of
the evidence and allowing her to obtain independent DNA
testing of the evidence from the crime scene.

This

lawsuit is now before the court on the recommendation
of the United States Magistrate Judge that defendants’
Federal

Rule

of

Civil

Procedure

12(b)(1)

motion

to

dismiss

should

be

granted

as

to

plaintiff’s

claims

inviting the court to review state-court decisions, and
should be otherwise denied; and that defendants’ Rule
12(b)(6)

motion

to

dismiss

should

be

denied

as

her

claim in Count I that Alabama’s DNA law is facially
unconstitutional, and should be granted as to her other
claims.

There are no objections to the recommendation.

After an independent and de novo review of the record,
the

court

concludes

that

the

magistrate

judge’s

recommendation should be adopted.
***
Accordingly, it is ORDERED that:
(1) The

United

States

Magistrate

Judge's

recommendation (doc. no. 27) is adopted.
(2) Defendants’

Rule

12(b)(1)

motion

to

dismiss

(doc. no. 8) is granted in part, and denied in part, as
stated above and explained in the magistrate judge’s
recommendation.

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(3) The claims in Counts I, II, III, and IV that
invite the court to review state-court decisions are
dismissed without prejudice.
(4)

Defendants’

Rule

12(b)(6)

motion

to

dismiss

(doc. no. 8) is denied as to plaintiff’s claim in Count
I that Alabama’s DNA law is facially unconstitutional,
and is granted as to her other claims.
(5)
Count

With
I

the

that

unconstitutional,

exception
Alabama’s
Counts

I,

of

plaintiff’s

DNA
II,

law
III

is
and

claim

in

facially
IV

are

dismissed without prejudice.
This case is not closed, and is referred back to
the magistrate judge for further proceedings.
DONE, this the 17th day of October, 2018.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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