Height v. Olens et al

Filing 9

ORDER vacating 3 Report and Recommendations. The Court will address the merits of Height's claim in a separate order. Signed by Magistrate Judge G. R. Smith on 3/15/16. (wwp)

U.

D

UNITED STATES DISTRICT COURT

4AR 15 PM 3: 55
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

SO, D1SA.
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MARVIN LEE HEIGHT,
Plaintiff,
V.

Case No. CV416-032
SAM OLENS et al.,
Defendants.

ORDER
After the Court recommended dismissing his 42 U.S.C. § 1983
Complaint as an unauthorized second or successive 28 U.S.C. § 2254
petition (doe. 3), Marvin Height objected, pointing out that claims like
his' are actionable under § 1983. Doc. 8 at 4 (citing Grayson v. King, 460
F.3d 1328 (11th Cit. 2006). He's right. "[C]laims seeking postconviction access to biological evidence for DNA testing purposes may be
brought as a § 1983 action."

Grayson, 460 F.3d at 1336. The Court

therefore VACATES its previous recommendation. Doe. 3. It will
address the merits of Height's claim in a separate order.
' Height seeks to have DNA comparison testing performed. Doe. 8 at 2. That, he
says, will "exclude him as the perpetrator of th[e] heinous crime" (murder) for which
he stands convicted. Id.

llx
SO ORDERED, this L3day of March, 2016.

<0~9;vu~-

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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