Height v. Olens et al

Filing 27

ORDER ADOPTING 19 Report and Recommendations of the Magistrate Judge as the opinion of the Court. Signed by Judge Lisa G. Wood on 7/11/2017. (ca)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

MARVIN LEE HEIGHT,
Plaintiff,
V.

CV416-032

SAM GLENS,e^aZ.
Defendants.

ORDER

After a careful, de novo review of the file, the Court concurs with

the Magistrate Judge's Report and Recommendation, to which objections
have been filed. Height's objection that the other evidence (the mask
and "untested DNA") demonstrates his actual innocence, and thus

surmounts the time-bar to his claims, is meritless. Docs. 25 & 26. As set
forth by the Magistrate Judge:

Height knew of the existence of the potentially exculpatory DNA
evidence at the latest by January 22, 2008, when he filed a state
habeas corpus petition in the Superior Court of Hancock County,
alleging (among other things) that his trial counsel had provided
ineffective assistance by faihng to conduct independent DNA
testing or move for post-conviction DNA testing of "several items
collected during the investigation of the crime." Height v.
McLaughlin, 2010 WL 4831577 (Oct. 26, 2010), adopted 2010 WL
4831221 (Nov. 22, 2010); see Height v. Fraizer, No. 08HC003

(Hancock Super. Ct. Feb. 12, 2009)(denjdng habeas petition on the
merits). Height did not file his § 1983 action until January 23,
2016 ~ almost exactly 8 years later to the day. See doc. 1
(signature-filed). Georgia's statute of limitations is two years.
Thigpen v. Bibb County, Ga., Sheriff's Dep't, 223 F.3d 1231, 1243
(11th Cir. 2000); O.C.G.A. § 9-3-33.^ Plaintiffs claim is timebarred.^

FN2. "Federal courts apply their forum state's statute of
limitations for personal injury actions to actions brought
pursuant to 42 U.S.C. § 1983." Uboh v, Reno, 141 F.3d 1000,
1002 (11th Cir. 1998). Federal law, however, determines
when the statute of limitations begins to run. Rozar v,
Mullis, 85 F.3d 556, 561 (11th Cir. 1996). Generally, "the
statute of limitations does not begin to run until the facts

which would support a cause of action are apparent or should
be apparent to a person with a reasonably prudent regard for
his rights." Id. at 561-62(internal marks omitted).
FN3. The "continuing violation" doctrine does not save
Height's untimely complaint, though he remains incarcerated

despite the alleged existence of exculpatory evidence. "The
critical distinction in the continuing violation analysis ... is
whether the plaintiffl ] complain[s] of the present
consequence of a one time violation, which does not extend
the limitations period, or the continuation of that violation
into the present, which does." Knight v. Columbus, Ga., 19
F.3d 579, 580-81 (11th Cir. 1994) (internal marks omitted).
Here, the defendants' alleged act (conspiring together to

suppress and/or refuse to analyze DNA evidence that "could"
have exonerated plaintiff) was a one-time act with continued
consequences, and the limitations period is thus not extended.

Doc. 19 at 4-5. Height's "actual innocence" argument doesn't change the
trigger-date for the statute of limitations - he's known about this claim
since 2008 and failed to come to this court until 2016. He's time-barred.

Accordingly, the Report and Recommendation of the Magistrate
Judge is ADOPTED as the opinion of the Court.

SO ORDERED,this
| day of J
LISA GdDBEY WOOD,JUDGE
VNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA