Height v. Olens et al

Filing 14

ORDER denying 10 Motion to begin process and procedures. Plaintiff must file an Amended Complaint within 30 days of the day this Order is served. Signed by Magistrate Judge G. R. Smith on 9/14/16. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MARVIN LEE HEIGHT,
Plaintiff,
v.
Case No. CV416-032
SAM OLENS, et al.
Defendants.

ORDER
Proceeding pro se and in forma pauperis , Marvin Height brings this
civil rights action against the State of Georgia, the Georgia Innocence
Project, Warden Walter Berry, and Attorney General of the State of
Georgia Samuel Olens. He alleges the State and the Innocence Project
conspired together to deny him the right to present DNA evidence at his
motion for a new trial and that the defendants have worked in concert to
suppress DNA evidence which they know would exonerate him. Doc. 1.
Aside from these accusations, plaintiff’s Complaint is bereft of any
factual allegations whatsoever. The Court is screening his Complaint

under 28 U.S.C. § 1915. 1

I. ANALYSIS2
Claims seeking post-conviction access to biological evidence for
DNA testing purposes may be brought as a § 1983 action. See Grayson v.

King , 460 F.3d 1328, 1336 (11th Cir. 2006) (“under some extraordinary
circumstances, [plaintiffs] may be entitled to post-conviction access to
biological evidence for the purpose of performing DNA testing” under
§ 1983); Bradley v. Pryor , 305 F.3d 1287, 1290 (11th Cir. 2002) (actions
for access to biological evidence are properly brought as § 1983 claims,
rather than habeas corpus proceedings). Plaintiff’s claims may therefore
proceed as a § 1983 action.
Though there is no hard litmus test for his claim, a plaintiff seeking
biological evidence under § 1983 must establish that denial of such access

1

The purpose of early screening is to “identify cognizable claims” in a prisoner’s
complaint and to dismiss any claims that: (1) are frivolous; (2) are malicious; (3) fail
to state a claim upon which relief can be granted; or (4) seek monetary relief from a
defendant immune from such relief. 28 U.S.C. § 1915A. Therefore, the Court
examines Plaintiff’s Complaint to determine whether he has stated a claim for relief
under 42 U.S.C. § 1983.
2

Because the Court applies Fed. R. Civ. P. 12(b)(6) standards in screening a
complaint pursuant to § 1915A, Leal v. Ga. Dep’t of Corr ., 254 F.3d 1276, 1278-79
(11th Cir. 2001), allegations in the complaint are taken as true and construed in the
light most favorable to the plaintiff, Bumpus v. Watts , 448 F. App’x 3, 4 n.1 (11th Cir.
2011). Conclusory allegations, however, fail. Ashcroft v. Iqbal , 556 U.S. 662, 678
(2009) (discussing a Rule 12(b)(6) dismissal).

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“deprive[s] him of a federally protected right.”

Grayson , 460 F.3d at

1336. Liberally construed, 3 Height seeks to satisfy this requirement by
contending that denial of access constitutes a violation of his rights
under the due process clause of the Fourteenth Amendment. He must
demonstrate that his case presents extraordinary circumstances (given
that the evidence he seeks may no longer available), he was deprived of a
fair trial, evidence of his guilt was otherwise weak, it is highly likely that
the evidence he seeks would be exculpatory, and the evidence was
material to his guilt or punishment, see Bradley v. King , 556 F.3d 1225,
1229 (11th Cir. 2009). Height has failed to allege sufficient facts to meet
this burden.
Given that plaintiff is able to pursue a § 1983 claim, the Court will
give him a chance to amend his Complaint to set forth facts sufficient to
survive preliminary review on his claim for access to biological evidence.
At a minimum, Height must provide the Court with enough facts to
determine that he meets both the Grayson and Bradley requirements set
forth above.

3

See Gilbert v. Daniels , 624 F. App’x 716, 717 (11th Cir. 2015) (“We liberally
construe the pleadings of pro se parties. . . .”) (citing Campbell v. Air Jamaica Ltd. ,
760 F.3d 1165, 1168 (11th Cir. 2014)).

3

To that end, plaintiff is ORDERED to file an Amended Complaint
within 30 days of the day this Order is served or face a recommendation
of dismissal. It must be complete and stand on its own (no incorporation
of the prior Complaint is permitted) since it will supersede the original. 4
Put another way, the original pleading will no longer serve any function
in this case once Height files his Amended Complaint. For that matter,
it must contain facts sufficient to support each claim against each
defendant.

See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)

(complaints must contain facts “sufficient to raise a right to relief above
the speculative level”). Mere conclusions that defendants violated the
law are not enough. See Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009).
Accordingly, plaintiff’s “motion to begin process and procedures,”
doc. 10, is rendered moot and is DENIED . He must file his Amended
Complaint within 30 days of the date this Order is served.
Meanwhile, it is time for Height to pay his filing fee. His PLRA
paperwork reflects $177 in average monthly deposits and a $29.50
4

See Malowney v. Fed. Collection Deposit Grp , 193 F.3d 1342, 1345 n.1 (11th Cir.
1999) (“An amended complaint supersedes an original complaint”); Varnes v. Local
91, Glass Bottle Blowers Ass’n of U.S. & Canada , 674 F.2d 1365, 1370 n.6 (11th Cir.
1982) (“As a general rule, an amended complaint supersedes and replaces the original
complaint unless the amendment specifically refers to or adopts the earlier
pleading”).

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average monthly balance over the six month period prior to the date of
his Prison Account Statement. Doc. 13. He therefore owes a $ 35.00
initial partial filing fee. See 28 U.S.C. § 1915(b) (1) (requiring an initial
fee assessment “when funds exist,” under a specific 20 percent formula).
Plaintiff’s custodian (or designee) shall remit the $35.00 and shall set
aside 20 percent of all future deposits to his account, then forward those
funds to the Clerk each time the set aside amount reaches $10.00, until
the balance of the Court’s $350.00 filing fee has been paid in full.
Also, the Clerk is DIRECTED to send this Order to plaintiff’s
account custodian immediately, as this payment directive is
nondispositive within the meaning of Fed. R. Civ. P. 72(a), so no Rule
72(b) adoption is required. In the event he is transferred to another
institution, his present custodian shall forward a copy of this Order and
all financial information concerning payment of the filing fee and costs in
this case to plaintiff's new custodian. The balance due from plaintiff
shall be collected by the custodian at his next institution in accordance
with the terms of the payment directive portion of this Order.

SO ORDERED , this 14th day of September, 2016.
UM= STATES MAGISTRATE JUDGE
5OUTI-IEIJN DISTLUCT OF GEOR&IA

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