Height v. Olens et al

Filing 16

ORDERED that Plaintiff is to file a Second Amended Complaint within 30 days of the day this Order is served. ( Compliance due by 11/18/2016.) Signed by Magistrate Judge G. R. Smith on 10/18/16. (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 has filed a
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. 15
(amended complaint). Aside from these accusations, and despite the
Court's admonition in giving him leave to amend, plaintiffs Amended
Complaint remains heavy on conclusions and light on facts. The Court is

screening his Amended Complaint under 28 U.S.C. § 1915.1
I. ANALYSIS 2
Claims seeking post-conviction access to biological evidence for
DNA testing purposes may be brought as a § 1983 action. See Grciyson u.

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). As noted in the Court's order
allowing plaintiff leave to amend, his claims may proceed as a § 1983
action -- not as a habeas action. 3

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).
In his Second Amended Complaint, plaintiff does not need to offer any discussion
of whether his § 1983 claim is an unauthorized successive habeas motion. This is a
61

Though there is no hard litmus test for his claim, a plaintiff seeking
biological evidence under § 1983 must establish that denial of such access
"deprive[s] him of a federally protected right."

Grciyson, 460 F.3d at

1336. Liberally construed,' 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 has not,
however, alleged sufficient facts to meet his burden.
The Court will give him another chance to set forth facts sufficient
to survive preliminary review on his claim for access to biological
evidence. Through facts -- not conclusions -- Height must demonstrate
that his case presents: (1) extraordinary circumstances (given that the
evidence he seeks may no longer available); (2) that he was deprived of a
fair trial; (3) that evidence of his guilt was otherwise weak; (4) that it is
highly likely that the evidence he seeks would be exculpatory; and
(5) that the evidence was material to his guilt or punishment.

See

Bradley v. King, 556 F.3d 1225, 1229 (11th Cir. 2009). At a minimum,

§ 1983 action, not a habeas action, and therefore plaintiff does not need to worry
about being procedurally barred under 28 U.S.C. § 2254.
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

Height must provide the Court with enough facts to determine that he
meets both the Grayson and Bradley requirements set forth above.
To that end, plaintiff is ORDERED to file a Second 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 a prior version is permitted) since it will supersede
the originals.' Put another way, the prior pleadings will no longer serve
any function in this case once Height files his Second Amended
Complaint. For that matter, it must contain facts sufficient to support

each claim against each defendant. See Bell Att. Corp. v. Twombly, 550
U.S. 544 1 555 (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. Iqbai, 556

U.S. 662, 679 (2009) (the pleading standard "demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation II;]" the
complaint must contain "sufficient factual matter, accepted as true, to
See Malownev 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").

'state a claim to relief that is plausible on its face.") (quoting Twomb&y,
550 U.S. at 555, 570).
SO ORDERED, this 18th day of October, 2016.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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