PALMER v. ZAPPALA et al
MEMORANDUM OPINION AND ORDER granting 43 Defendant's Motion to Dismiss Amended Complaint for Lack of Jurisdiction and for Failure to State a Claim for the reasons, and only those reasons, set forth in this Court's Opinion. IT IS HEREBY OR DERED that Plaintiff's Amended Complaint (ECF No. 33) is DISMISSED and the Clerk is to mark this case CLOSED. Plaintiff has thirty (30) days in which to file a notice of appeal. Signed by Magistrate Judge Lisa Pupo Lenihan on August 14, 2017. (kcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DISTRICT ATTORNEY’S OFFICE
OF ALLEGHENY COUNTY,
Civil Action No. 16 – 567
Magistrate Judge Lisa Pupo Lenihan
ECF No. 43
This is a pro se civil rights action filed under 42 U.S.C. § 1983 by Jermaine Palmer
(“Plaintiff”) claiming that his rights to due process and access to the court have been violated and
seeking, among other things, an injunction granting him access to physical evidence in his state
court criminal case, which Plaintiff claims may exonerate him of his conviction if the evidence is
subjected to DNA testing. Plaintiff names as Defendant the District Attorney’s Office of
Allegheny County, which has denied his request for the evidence. Now pending before the
Court is a Motion to Dismiss Plaintiff’s Amended Complaint for Lack of Subject Matter
Jurisdiction and for Failure to State a Claim (ECF No. 43), to which Plaintiff has responded in
opposition (ECF Nos. 50, 51). The parties subsequently filed numerous replies and responses
thereto. (ECF Nos. 52, 54, 58, 60, 61.) For the reasons that follow the Motion will be granted.
Standard of Review
The United States Court of Appeals for the Third Circuit aptly summarized the standard
to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the
Federal Rules of Civil Procedure, a plaintiff must come forward
with “a short and plain statement of the claim showing that the
pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009), a claimant must state a “plausible” claim for
relief, and “[a] claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Although
“[f]actual allegations must be enough to raise a right to relief
above the speculative level,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007), a plaintiff “need only put forth allegations
that raise a reasonable expectation that discovery will reveal
evidence of the necessary element.” Fowler, 578 F.3d at 213
(quotation marks and citations omitted); see also Covington v. Int'l
Ass'n of Approved Basketball Officials, 710 F.3d 114, 117–18 (3d
Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
Also, when considering pro se pleadings, a court must employ less stringent standards
than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972).
When presented with a pro se complaint, the court should construe the complaint liberally and
draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v.
Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the
applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v.
Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep’t of Veteran Affairs, 165 F.3d
244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this
is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently
alleges deprivation of any right secured by the Constitution.”) (quoting Higgins, 293 F.3d at
688). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege
sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc.,
296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
Allegations and Relevant Facts of Public Record
Plaintiff’s Amended Complaint (ECF No. 33) alleges the following facts. On June 18,
1993, the body of Marcia Williams (“Ms. Williams” and “victim”) was found in a wooded area
in Allegheny County (“Allegheny County Murder”). Id., ¶ 18. On June 1, 1994, Plaintiff was
convicted in a non-jury trial of third degree murder in the death of Ms. Williams (“Allegheny
County Conviction”) and sentenced on July 25, 1994 to ten (10) to twenty (20) years of
imprisonment. 1 Id., ¶ 36.
Plaintiff’s criminal case is docketed at CP-02-CR-0009376-1993 in the Court of Common Pleas
of Allegheny County. The docket sheet for this case is a matter of public record and can be
found online at http://ujsportal.pacourts.us/. Review of the docket reveals the following relevant
The Pennsylvania Superior Court affirmed Plaintiff’s judgment of sentence on May 1, 1996, and
the Pennsylvania Supreme Court denied his petition for allowance of appeal on October 7, 1996.
On or about July 30, 1997, Plaintiff filed a pro se petition under Pennsylvania’s Post Conviction
Relief Act (“PCRA”). The trial court dismissed the petition on July 20, 1998 and Plaintiff did
Plaintiff filed a second PCRA petition on November 3, 2000, seeking a reinstatement of the right
to appeal the denial of his first PCRA petition. On January 25, 2002, the PCRA court granted
this petition and reinstated Plaintiff’s appellate rights as to his first PCRA petition. The Superior
Court then affirmed the dismissal of Plaintiff’s first PCRA petition on January 15, 2003. The
Pennsylvania Supreme Court denied his petition for allowance of appeal on May 29, 2003.
Plaintiff filed his first motion for postconviction DNA testing on January 20, 2005, which the
PCRA court denied on April 22, 2005. The Superior Court affirmed denial of the motion on
May 18, 2006. He did not file a petition for allowance of appeal.
Plaintiff filed another PCRA petition approximately on June 1, 2006, which the PCRA court
dismissed as time-barred on June 28, 2006, and the Superior Court affirmed dismissal on April
12, 2007. The Supreme Court denied a petition for allowance of appeal on August 7, 2007.
Plaintiff filed another PCRA petition, which the PCRA court dismissed as time-barred on
January 14, 2008, but the Superior Court reversed and remanded for a full hearing on November
5, 2008. Following the hearing, which occurred on May 24, 2010, the PCRA court dismissed the
petition on July 7, 2010. The Superior Court affirmed dismissal on March 21, 2011.
The prosecution’s key witness was Benjamin Williams, who had led investigators to
where Ms. Williams’ body was buried and had testified that Plaintiff told him he had strangled
Ms. Williams and then forced him at gunpoint to help bury Ms. Williams’ body. 2 Id., ¶ 37.
Police investigators also collected various pieces of physical evidence based on Benjamin
Williams’ statements, including hair samples from Plaintiff, clothing and fingernail clippings
from the victim, an earring, the quilt used to wrap the victim’s body, and a carpet sample from
Plaintiff’s vehicle from which hair samples were collected. Id., ¶ 23. The evidence was
submitted to Criminalist Dorothy J. Menges of the Allegheny County Department of
Laboratories Forensic Science Section (“Crime Lab”) for microscopic hair analysis and serology
testing. Id. The Crime Lab Report indicated that none of the genetic material collected from the
evidence matched the specimens provided by Plaintiff. 3 Id., ¶ 24. Plaintiff did not introduce the
test results at his trial, nor did he list Menges as a potential witness because the prosecutor stated
that he did not intend to call her as a witness. Id., ¶¶ 25-26.
The technology for advanced DNA testing was not available at the time of Plaintiff’s
trial. Id., ¶ 85. Plaintiff filed his first motion for DNA testing pursuant to Pennsylvania’s
postconviction DNA testing statute, 42 Pa. C.S.A. § 9543.1 4 on January 20, 2005. Id., ¶ 4.
Plaintiff filed his second motion for postconviction DNA testing on June 13, 2013. The PCRA
court denied the motion on September 13, 2013. The Superior Court dismissed the appeal on
September 22, 2014.
There is no relation between Benjamin Williams and the victim.
Plaintiff believes that the victim’s fingernail clippings and clothing were submitted but not
examined by Menges. Id.
Under Section 9543.1, an individual convicted of a crime in Pennsylvania, who is serving a
term of imprisonment or awaiting execution because of a sentence of death, may file a motion
with the sentencing court to have forensic DNA testing conducted on specific evidence that is
Plaintiff sought DNA testing of the victim’s clothing, the quilt in which she was wrapped, the
carpet from his vehicle, and the items found in the vehicle at the time of his arrest, and he alleged
that the absence of his DNA on these items would make a prima facie case that demonstrated his
innocence. Id., ¶ 84. The PCRA court denied the petition on April 22, 2005, finding no
“reasonable probability” that DNA testing would produce exculpatory evidence. The court’s
order was affirmed on appeal by the Superior Court on May 18, 2006, with the court finding that
the absence of Plaintiff’s DNA on the items would not demonstrate a prima facie case of
innocence as required by Pennsylvania’s postconviction DNA testing statute, 42 Pa.C.S. §
9543.1(d)(2)(i). (ECF No. 33-1.)
Plaintiff filed a second motion for DNA testing on June 13, 2013, requesting DNA testing
for the victim’s fingernail clippings, earrings, clothing, hair follicles recovered from the vehicle,
and any and all linen recovered from the Sleepy Hollow motel. See Com. v. Palmer, No. 1640
WDA 2013, 2014 WL 10677160 (Pa. Super. Ct. Sept. 22, 2014). On September 13, 2013, the
PCRA court denied the motion concluding that there was no reasonable possibility that DNA
testing could prove his actual innocence and that exceptional circumstances did not warrant the
Commonwealth’s disclosure of the registration records for the Sleepy Hollow motel. (ECF No.
33-3.) On September 22, 2014, the Superior Court dismissed the appeal because Plaintiff had
already completed his twenty year sentence for third degree murder and therefore did not meet
the PCRA’s eligibility requirements for DNA testing. (ECF No. 33-4.)
Plaintiff also made two separate requests to the Allegheny County District Attorney’s
Office for access to the evidence in order to conduct DNA testing, once on December 10, 2004,
related to the investigation or prosecution of that individual which resulted in his or her
conviction. 42 Pa. C.S.A. § 9543.1(a).
and once on November 8, 2005. (ECF No. 33-25.) It is unknown when his first request was
denied, but his second request was denied on November 16, 2005. Id.
Plaintiff initiated this action by the filing a Motion for Leave to Proceed in forma
pauperis that is dated April 29, 2016. 5 (ECF No. 1.) After his request to proceed in forma
pauperis was granted, (ECF No. 2), and Plaintiff paid his initial partial filing fee, (ECF No. 5),
his Complaint was docket on May 24, 2016, (ECF No. 7). He subsequently filed an Amended
Complaint on August 23, 2016. (ECF No. 33.)
A. Access to Evidence for DNA Testing
Plaintiff states that he is seeking access to “all of the evidence listed in the Crime Lab
Report, as well as the photographs taken of the motel room and the crime scene where Ms.
Williams’s body was discovered.” (ECF No. 33, ¶ 56.) He also seeks “physical evidence
obtained from motel room #24 of the Sleepy Hollow motel and the results of any prior forensic
testing of the evidence not mentioned in the Crime Lab Report.” Id. As to Plaintiff’s claims
against Defendant stemming from the denial of access to this evidence for DNA testing,
Defendant maintains that this Court lacks subject matter jurisdiction to consider the claims, and,
to the extent that it does not, Plaintiff’s claims are time-barred, and, in the alternative, fail to state
a claim upon which relief may be granted. Each of these arguments will be addressed herein.
Plaintiff claims that the filing date for this action is February 8, 2016. Plaintiff is incorrect.
While Plaintiff dated his Complaint February 8, 2016, the earliest it was mailed to the Court was
April 29, 2016, the date on his Motion for Leave to Proceed in forma pauperis, and the date his
Inmate Account Statement was printed at his institution. These documents arrived in the same
package; therefore, Plaintiff could not have mailed his Complaint before April 29, 2016, and he
cannot make a credible allegation that the institution withheld his mail.
1.Subject Matter Jurisdiction
First, Defendant argues that this Court lacks subject matter jurisdiction over Plaintiff’s
claims pursuant to the Rooker-Feldman doctrine. 6 The Rooker-Feldman doctrine provides that
federal district courts lack subject matter jurisdiction to sit in direct review of state court
decisions. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). It
precludes a federal action if the relief requested in the federal action effectively would reverse
the state decision or void its ruling. FOCUS v. Allegheny County Court of Common Pleas, 75
F.3d 834, 840 (3d Cir. 1996). “[T]here are four requirements that must be met for the RookerFeldman doctrine to apply: (1) the federal plaintiff lost in state court; (2) the plaintiff
‘complain[s] of injuries caused by [the] state-court judgments’; (3) those judgments were
rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to
review and reject the state judgments.” Great W. Mining and Mineral Co. v. Fox Rothschild
LLP, 615 F.3d 159, 166 (3d Cir. 2010) (alterations in original) (quoting Exxon Mobil Corp., 544
U.S. at 284).
In response to Defendant’s argument Plaintiff cites to the United States Supreme Court’s
decision in Skinner v. Switzer, 131 S. Ct. 1289 (2011). In Skinner, a state prisoner filed a federal
civil rights action under § 1983, naming the district attorney as the defendant and alleging that
the defendant had custody of untested biological evidence Skinner wanted to have tested for
DNA purposes. The district court dismissed the complaint for failure to state a claim and
reasoned that Skinner needed to pursue any postconviction requests for DNA evidence in a
habeas corpus action. 2010 WL 273143 (N.D. Tex. Jan. 20, 2010). The United States Court of
This doctrine is predicated on the principles of comity and federalism and originated from two
Supreme Court opinions, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
Appeals for the Fifth Circuit affirmed. 363 F. App’x 302 (5th Cir. 2010). Reversing, the
Supreme Court concluded that Skinner’s complaint stated a cognizable claim for relief and that
he could proceed in a § 1983 action against the defendant where he challenged the
constitutionality of a state statute on its face. 131 S. Ct. at 1298. In so ruling, the Court
specifically addressed the applicability of the Rooker-Feldman doctrine and reiterated that “a
state-court decision is not reviewable by lower federal courts, but a statute or rule governing the
decision may be challenged in a federal action.” Id. Skinner did not challenge the adverse
decisions themselves; instead, he targeted as unconstitutional the Texas statute they
authoritatively construed. Id. Thus, the Supreme Court held that Rooker-Feldman did not
remove subject-matter jurisdiction over Skinner’s federal suit. Id.
Plaintiff argues that, like Skinner, he is not challenging the adverse decisions by the
Pennsylvania state courts, but rather Pennsylvania’s postconviction DNA testing statute “as
applied” to him. (ECF No. 33, ¶¶ 84-93.) The problem with Plaintiff’s argument, however, is
that he does not explain how, in denying his motions filed under the statute, the state courts
erroneously applied and interpreted Pennsylvania’s procedures. His “as applied” procedural due
process claim is nothing more than an attack on the state court’s correct application of
Pennsylvania’s postconviction DNA testing statute to the facts of his case, and notably, he does
not make a comprehensible independent challenge to the constitutionality of that statute or its
procedures for access to DNA testing. Thus, his claim is unlike the claim presented in Skinner,
where the Supreme Court held that the existence of a state court judgment interpreting or relying
upon a statute does not bar a federal court from entertaining an independent challenge to the
constitutionality of that statute. 131 S. Ct. at 1298. Therefore, with the exception of one
possible challenge that the Court has liberally construed from his complaint, and which will be
discussed infra, the Rooker-Feldman doctrine bars his attack on the state court’s judgment
denying him access to DNA testing. 7 Nevertheless, to the extent that this Court does have
subject matter jurisdiction, Plaintiff’s claims are discussed in more detail below.
2.Limitations Period for Actions under 42 U.S.C. § 1983
Defendant argues that Plaintiff’s claims are barred by the statute of limitations. In this
regard, Plaintiff seeks recovery against Defendant under 42 U.S.C. § 1983. The limitations
period for civil actions brought under 42 U.S.C. § 1983 is determined by state law. Under
Pennsylvania law, the applicable statute of limitations period for civil rights actions asserted
under 42 U.S.C. § 1983 is two years. See 42 Pa. C.S. § 5524. The date when a civil rights action
accrues (begins to run), however, is a matter of federal law. Wallace v. Kato, 549 U.S. 384, 388
(2007). A claim accrues when the plaintiff becomes aware, or should have become aware, of
both the fact and injury and its causal connection to the defendant. See Delaware State College
v. Ricks, 449 U.S. 250, 258 (1980) (it is the wrongful act that triggers the start of the statute of
limitations period); Keystone Ins. Co. v. Houghton, 863 F.2d 1125, 1127 (3d Cir. 1988) (a
federal cause of action accrues when the plaintiff is aware, or should be aware, of the existence
of and source of injury, not when the potential claimant knows or should know that the injury
constitutes a legal wrong).
Here, Plaintiff is asserting that his civil rights were violated by Pennsylvania’s
postconviction procedures in denying his PCRA petition for DNA testing. Almost every court
that has considered this issue has ruled that the statute of limitations on section 1983 claims
based on the denial of right to access modern DNA testing begins to run at the end of the state
Dismissal on the basis of Rooker-Feldman is recognized as a situation where amendment of the
plaintiff’s complaint would be futile. See Reisinger v. Luzerne County, 712 F.Supp.2d 332, 352
(M.D. Pa. 2010) (citing Watkins v. Proulx, 235 F. App’x 678, 679 (9th Cir. 2007)).
litigation in which an inmate unsuccessfully sought access to such testing. See, e.g., Van Povck
v. McCollurn, 646 F.3d 865 (11th Cir. 2011) (holding that statute of limitations on section 1983
claim based on denial of right to access modern DNA testing did not begin when such DNA
testing became widely available but only at the end of state litigation in which inmate
unsuccessfully sought access to such testing); Savory v. Lyons, 469 F.3d 667 (7th Cir. 2006)
(holding that state prisoner’s § 1983 claim seeking post-conviction access to physical evidence
for the purpose of DNA testing accrued, for limitations purposes, on the date that the state court
denied his request for DNA testing under state law; on that date, prisoner became aware of his
alleged injury); Mixon v. Sedita, 757 F.Supp.2d 229 (W.D.N.Y. 2010); Moore v. Lockyer, Civ.
No. 04-1952, 2005 WL 2334350, at *5-6 (N.D. Cal. Sept. 23, 2005). Some courts, however,
have found that the statute of limitations for such claims starts when the plaintiff receives a letter
from the District Attorney’s Office denying his request to access evidence for DNA testing. See
Wade v. Brady, 612 F.Supp.2d 90 (D. Mass. 2009); Derrickson v. Del. County Dist. Attorney’s
Office, No. 04-1569, 2006 WL 2135854, at *7 (E.D. Pa. July 26, 2006) (holding that the
plaintiff’ due process claim for denial of access accrued “when he received the letter denying
him access to the clothing evidence.”) Under either scenario, Plaintiff’s claims are untimely.
Using April 29, 2016 as the filing date for Plaintiff’s Complaint, see FN 5, Plaintiff
cannot impose liability against Defendant under 42 U.S.C. § 1983 based on events that occurred
prior to April 29, 2014. With respect to the denial of his first petition for DNA testing filed
pursuant to Pennsylvania’s postconviction DNA testing statute, the accrual date for any
challenge to the postconviction procedures in denying his petition would have been June 19,
2006, the last day Plaintiff had to file a petition for allowance of appeal with the Pennsylvania
Supreme Court after the Superior Court affirmed the lower court’s denial of his petition on May
18, 2006. Under this scenario, it is clear that Plaintiff’s claims in connection with the denial of
his first petition for access to DNA testing are untimely.
Moreover, Plaintiff’s claims would also be untimely even if the Court were to use the
date in which his first request for access to evidence was denied by the Allegheny County
District Attorney’s Office. Plaintiff made his first request on December 10, 2004, and while the
exact date it was denied is not apparent from the record, what is apparent is that his second
request was denied by the District Attorney’s Office on November 16, 2005. Making the
obvious assumption that this first request was denied before November 16, 2005, it is clear that
Plaintiff’s claims are still time-barred.
Plaintiff argues that his claims are not time-barred because the end of the state litigation
on his second petition pursuant to Pennsylvania’s postconviction DNA testing statute was not
until October 22, 2014, the last day he had to file a petition for allowance of appeal with the
Pennsylvania Superior Court after the Superior Court affirmed the lower court’s denial of his
petition on September 22, 2014. Adding two years from that date, September 22, 2016, his
claims would appear to be timely. However, at least one court has rejected the argument that a
plaintiff’s continuous denied requests for DNA testing gives rise to a “continuing violation.” See
Mixon v. Sedita, 757 F.Supp.2d 229, 231-32 (W.D.N.Y. 2010). That court stated that “it is not
enough for a plaintiff simply to allege that, having once been denied relief by the defendant –
allegedly in violation of his constitutional rights – he later approached the defendant again,
asking for the same relief, and was again rebuffed. If that were enough, the statute of limitations
in cases such as this one would be rendered meaningless, since the plaintiff could extend the
limitations period perpetually, by repeatedly asking for the same relief.” Id. at 231. The court
concluded that the plaintiff’s alleged series of discrete acts, the defendants repeated refusal to
order DNA testing, is not “the type of ongoing policy that would warrant the application of the
continuing-violation rule.” Id. at 232. Plaintiff at bar was clearly aware of the injury that forms
the basis for his claims by the end of the litigation on his first petition, if not sooner. The denial
of his second petition did not constitute a separate injury that would restart the statute of
limitations. Nevertheless, even if Plaintiff’s claims were timely, they are still subject to
dismissal for failure to state a claim.
3.Failure to State a Claim 8
To state a claim under 42 U.S.C. § 1983, a plaintiff must meet two threshold
requirements. He must allege: 1) that the alleged misconduct was committed by a person acting
under color of state law; and 2) that as a result, he was deprived of rights, privileges, or
immunities secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S.
42 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds,
Daniels v. Williams, 474 U.S. 327, 330-31 (1986).
In Skinner, the Supreme Court held that a convicted state prisoner may request via § 1983
the DNA testing of crime-scene evidence. 131 S. Ct. at 1298. The basis for such a request,
however, does not derive from any substantive due process right secured by the Constitution’s
Defendant’s first argument is that the District Attorney’s Office is not an entity that can be sued
under § 1983. However, previous cases analyzing DNA testing claims under § 1983 involve
actions against the custodians of the evidence. See Skinner, 131 S. Ct. at 1295 (stating that
Skinner named as the defendant “the District Attorney whose office prosecuted Skinner and has
custody of the evidence Skinner would like to have DNA tested”). Presumably, the Allegheny
County District Attorney’s Office is the custodian of the evidence Plaintiff seeks to have DNA
tested. Moreover, Pennsylvania’s postconviction DNA testing statute imposes a duty on the
Commonwealth to “take steps reasonably necessary to ensure that any remaining biological
material . . . is preserved pending the completion of the proceedings.” 42 Pa. C.S.A. § 9543.1.
Thus, the District Attorney appears to be the appropriate defendant. However, whether or not
Plaintiff should have named as the defendant Stephen A. Zappala, Jr., the District Attorney of
Allegheny County, or the Allegheny County District Attorney’s Office is a question this Court
elects to bypass at this time.
Fourteenth Amendment. See id. at 1299. Instead, the request must be premised on the violation
of a prisoner’s procedural due process rights. 9
In Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308 (2009), the
Supreme Court made clear that there is no substantive due process right to DNA evidence and
procedural due process does not require that a district attorney disclose all potentially
exculpatory evidence for postconviction relief to a prisoner. Id. at 2322, 2319-20. In Osborne,
the Supreme Court held that constitutional claims like Plaintiff’s “must be analyzed ‘within the
framework of the State’s procedures for postconviction relief’ and that only when those
procedures are determined fundamentally unfair or constitutionally inadequate will a federal
action under § 1983 lie.” Grier, 591 F.3d at 679 (quoting Osborne, 129 S. Ct. at 2320); see also
Skinner, 131 S. Ct. at 1293 (noting that Osborne “left slim room for the prisoner to show that the
governing state law denies him procedural due process”).
In order to obtain relief under the Due Process Clause for denial of access to evidence for
purposes of DNA testing, Plaintiff must show a violation of his procedural due process rights
because there is no substantive due process right to DNA evidence. To establish a procedural
due process violation, a person must first demonstrate that he or she has been deprived of a
constitutionally protected liberty or property interest. Daniels v. Williams, 474 U.S. 327, 339
(1986); Renchenski v. Williams, 622 F.3d 315, 325 (3d Cir. 2010). Only upon a finding that a
Notwithstanding the fact that Plaintiff’s claim is barred for lack of subject matter jurisdiction, a
plaintiff’s claim seeking access to evidence for DNA testing is not barred by Heck v. Humphrey,
512 U.S. 477 (1994), wherein the United States Supreme Court held that where success in a
prisoner’s section 1983 damages action would implicitly question the validity of conviction or
duration of sentence, the litigant must first achieve favorable termination of his available state, or
federal habeas, opportunities to challenge the underlying conviction or sentence. This is because
“even if [the plaintiff] does prevail on his § 1983 claim, he will merely gain access to biological
evidence, which in and of itself cannot invalidate or undermine his convictions.” Grier v. Klem,
591 F.3d 672, 678 (3d Cir. 2010).
protected interest is asserted does a court consider the constitutional sufficiency of the
procedures associated with the interest. If a liberty or property interest is found, the next step in
the due process inquiry is to determine what process is due. Due process is not a technical
conception with a fixed content unrelated to time, place and circumstance. Gilbert v. Homar,
520 U.S. 924, 930 (1997). Rather, “due process is flexible and calls for such procedural
protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
In Osborne, the Supreme Court recognized that a prisoner may retain a state-created
liberty interest in demonstrating his innocence with new evidence under state law. Thus,
Plaintiff has an analogous state-created liberty interest in demonstrating his innocence in the
context of postconviction proceedings with appropriate evidence. The question, however, is
whether, as applied to him, the State procedures for postconviction DNA testing violated
Plaintiff’s procedural due process rights.
The Osborne Court stated that “the question is whether consideration of [the plaintiff’s]
claim within the framework of the State’s procedures for postconviction relief offends some
principle of justice so rooted in the traditions and conscience of our people as to be ranked as
fundamental, or transgresses any recognized principle of fundamental fairness in operation.
Federal courts may upset a State’s postconviction relief procedures only if they are
fundamentally inadequate to vindicate the substantive rights provided.” Osborne, 557 U.S. at 69
(internal quotations and citations omitted). The Osborne Court made clear that it is the plaintiff’s
burden to demonstrate the inadequacy of the state-law procedures available to him in state
postconviction relief. Id. at 71.
Pennsylvania’s DNA testing procedures are governed by statute at 42 Pa. C.S.A. §
9543.1. The statute sets forth several threshold requirements to obtain DNA testing: (1) the
evidence specified must be available for testing on the date of the motion; (2) if the evidence was
discovered prior to the applicant’s conviction, it was not already DNA tested because (a)
technology for testing did not exist at the time of the applicant’s trial; (b) the applicant’s counsel
did not request testing in a case that went to verdict before January 1, 1995; or (c) counsel sought
funds from the court to pay for the testing because his client was indigent, and the court refused
the request despite the client’s indigency. 42 Pa. C.S.A. § 943.1(a)(2). Additionally, under
section 9543.1(c)(3), the petitioner is required to present a prima facie case that the requested
DNA testing, assuming it gives exculpatory results, would establish the petitioner’s actual
innocence of the crime. Under section 9543.1(d)(2), the court is directed not to order the testing
if it determines, after review of the trial record, that there is no reasonable possibility that the
testing would produce exculpatory evidence to establish petitioner’s actual innocence. From the
clear words and plain meaning of these provisions, there can be no mistake that the burden lies
with the petitioner to make a prima facie case that favorable results from the requested DNA
testing would establish his innocence. See Commonwealth v. Williams, 35 A.3d 44, 50 (Pa.
Super. 2011); Commonwealth v. Smith, 889 A.2d 582, 584 (Pa. Super. 2005), appeal denied,
588 Pa. 769, 905 A.2d 500 (2006).
First, Plaintiff has not shown that the Pennsylvania postconviction DNA testing
procedures as discussed above are facially invalid as they contain similar requirements and
limitations imposed by other DNA testing statutes, including the postconviction statute upheld in
Osborne. See Osborne, 557 U.S. at 69-70. It may be, however, that Plaintiff is arguing that
Pennsylvania’s postconviction DNA testing statute violates due process because it is only
available to those defendants who are still serving their sentences for the conviction of which
they are seeking DNA testing. 10 It appears he claims that the statute prohibits him from
demonstrating his innocence for a conviction that, while he may no longer be serving a sentence,
was used to enhance his Philadelphia County sentence to life. He claims that his life sentence for
the Philadelphia County conviction could not have been imposed without the Allegheny County
conviction, and, therefore, he still has a state-created liberty interest in demonstrating his
innocence with access to DNA testing. 11 Plaintiff is incorrect.
While this type of challenge to the constitutionality of Pennsylvania’s postconviction
DNA testing statute is certainly cognizable in a § 1983 action, the Pennsylvania Supreme Court
has rejected this very challenge. The issue of whether a defendant retains a liberty interest in
collateral review after he is no longer subject to the challenged sentence was directly addressed
by the Pennsylvania Supreme Court in Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013). The
Petitioners in Pennsylvania must be currently serving a sentence of imprisonment, probation or
parole for the conviction at issue to be eligible for PCRA relief, see 42 Pa. C.S.A. §
9543(a)(1)(i), and “[a] motion for DNA testing, while separate and distinct from claims pursuant
to other sections of the PCRA, nonetheless constitutes a postconviction petition under the
PCRA.” Commonwealth v. Williams, 909 A.2d 383, 384 n.1 (Pa. Super. 2006). “As soon as his
sentence is completed, the petitioner becomes ineligible for relief, regardless of whether he was
serving his sentence when he filed the petition.” Commonwealth v. Williams, 977 A.2d 1174,
1176 (Pa. Super. 2009) (quoting Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006)).
As Plaintiff argues that he has a state-created liberty interest in demonstrating his innocence, he
is presumably aware that there is no federal constitutional right to direct appeal and
postconviction proceedings in state court. See Lackawanna County Dist. Att’y v. Coss, 532 U.S.
394, 402 (2001) (noting that “each State has created mechanisms for both direct appeal and state
post-conviction review, even though there is no constitutional mandate that they do so” (internal
citations omitted)). Therefore, individuals who are serving a state sentence have no liberty
interest in and therefore no due process right to collateral review of that sentence unless such a
liberty interest arises from the laws of that State. As such, any liberty interest a plaintiff may
have in collaterally challenging his sentence after it has expired must be state-created, and, as
determined by the state legislature, individuals in Pennsylvania do not have a liberty interest in
collateral review when their liberty is no longer burdened by a state sentence. Commonwealth v.
Turner, 80 A.3d 754 (Pa. 2013) (holding that this “legislative enactment [does not run] afoul of
due process, as due process does not afford relief absent a protected liberty interest.”) (citing
Coleman v. Thompson, 501 U.S. 722, 755 (1991)).
Turner court held that “due process does not require the legislature to continue to provide
collateral review when the offender is no longer serving a sentence.” Id. at 765. It noted that
“the legislature was free to extend a statutory right of collateral review to individuals like
Petitioner who had completed their sentence and, had they done so, they would be
constitutionally obligated to ensure that those rights were impacted only in accord with due
process. . . . However, the legislature did not do so. Rather, the General Assembly, through the
PCRA, excluded from collateral review those individuals who were no longer subject to a state
sentence, thereby limiting the statutory right of collateral review to those whose liberty was
constrained.” Id. (citations omitted). Following Turner, Pennsylvania courts have routinely
rejected facial and “as applied” challenges to the constitutionality of Section 9543(a)(1)(i). See,
e.g., Commonwealth v. Volk, 138 A.3d 659 (Pa. Super. 2016) (rejecting petitioner’s facial and
“as applied” challenge to the constitutionality of Section 9543(a)(1)(i), relying on Turner’s
holding that the statutory eligibility requirement of Section 9543(a)(1)(i) is consistent with the
due process prerequisite of protected liberty interest; absent valid liberty interest, challenge to
both procedural and substantive due process must fail); Commonwealth v. Safarowicz, 2015 WL
6437600 (Pa. Super. Jan. 28, 2015). Because Petitioner is no longer burdened by his Allegheny
County sentence, he no longer has a due process right to collateral review of that sentence,
including seeking access to evidence for DNA testing.
The Court will address one last argument Plaintiff appears to make. He argues that
Pennsylvania’s postconviction DNA testing statute is fundamentally unfair because it bars him
from access to evidence “on the sole ground that testimony (now, known to be false) from
Williams who alleged that Plaintiff admitted to him that he committed the crime.” (ECF No. 51,
p.6.) However, Plaintiff is incorrect in his assertion that his motion for DNA testing was denied
solely based on Benjamin Williams’ testimony that Plaintiff admitted he killed the victim. The
judge set forth three reasons why he believed there was no “reasonable probability” that DNA
testing would produce exculpatory evidence and only one of those reasons included Williams’
testimony. Moreover, in support of his conclusion that the evidence against Plaintiff was
overwhelming, the judge cited to Williams’ testimony about helping Plaintiff bury the body and
not Williams’ testimony about Plaintiff confessing to the crime. See Commonwealth v. Palmer,
No. CC9309376 (Opinion of O’Toole, J. Oct. 11, 2005). Therefore, Plaintiff’s argument is
belied by the record.
B. Access to Court
Plaintiff’s second claim is based on the allegation that the prosecution withheld evidence
of a “deal” for leniency between the United States Attorney and witness Benjamin Williams that
would have undermined Williams’ credibility at trial. Plaintiff maintains that the
Commonwealth concealed evidence of the agreement until after he finished serving his sentence
and this wrongful conduct prevented him from challenging his conviction based on the
prosecution’s withholding evidence of the deal. (ECF No. 33, ¶ 100.)
The Constitution guarantees prisoners a “right of access to the courts.” Lewis v. Casey,
518 U.S. 343, 350 (1996) (emphasis omitted). Where, as here, the prisoner asserts that the
defendants’ actions have inhibited his opportunity to present a past legal claim, he must show (1)
he suffered an actual injury – that is, that he lost a chance to pursue a “nonfrivolous” or
“arguable” underlying claim; and (2) he has no other “remedy that may be awarded as
recompense” for the lost claim other than in the present denial of access suit. Christopher v.
Harbury, 536 U.S. 403, 415 (2005); see also Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008).
“To that end, prisoners must satisfy certain pleading requirements. The complaint must describe
the underlying arguable claim well enough to show that it is ‘more than mere hope,’ and it must
describe the ‘lost remedy.’” Monroe, 536 F.3d at 205-06 (quoting Christopher, 536 U.S. at 41617).
Furthermore, a plaintiff must demonstrate intent on the part of the defendants. The Third
Circuit has explained a denial of access claim is available where state officials
“wrongfully and intentionally conceal information crucial to a person’s ability to
obtain redress through the courts, and so for the purpose of frustrating that right,
and that concealment, and the delay engendered by it substantially reduce the
likelihood of one’s obtaining the relief to which one is otherwise entitled.”
Gibson v. Superintendent of N.J. Dep’t of Law & Pub. Safety – Div. of State Police, 411 F.3d
427, 445 (3d Cir. 2005), overruled on other grounds by Dique v. N.J. State Police, 603 F.3d 181
(3d Cir. 2010), (quoting Swekel v. City of River Rouge, 119 F.3d 1259, 1262-63 (6th Cir. 997)
(emphasis contained within).
So then, in order to support his access to courts claim, Plaintiff is required to demonstrate
that he has lost the opportunity to pursue a nonfrivolous or arguable underlying legal claim, that
there is no other remedy available to him, and that Defendant had the requisite intent to deny his
constitutional right of access to courts.
In his Amended Complaint, Plaintiff describes his underlying nonfrivolous claim(s) that
he was unable to pursue as follows: he was denied his right to a fair trial because the prosecution
knowingly elicited false testimony from Benjamin Williams to bolster his credibility, failed to
correct testimony it knew to be false, and failed to disclose that Benjamin Williams was
testifying against Plaintiff pursuant to an agreement all in violation of Brady v. Maryland, 373
U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and Napue v. Illinois, 360 U.S. 264
For his lost opportunity to challenge his conviction based on the prosecution’s
misconduct in failing to disclose evidence of the alleged deal for leniency made between federal
authorities and Benjamin Williams, Plaintiff’s claim is barred by Heck v. Humphrey, 512 U.S.
477 (1994), so long as success on this claim would necessarily demonstrate the invalidity of his
conviction. In Heck, the Supreme Court held that where success in a § 1983 action would
implicitly call into question the validity of conviction or duration of sentence, the plaintiff must
first achieve favorable termination of his available state or federal habeas remedies to challenge
the underlying conviction or sentence. Considering Heck and summarizing the interplay
between habeas and § 1983 claims, the Supreme Court explained that,
a state prisoner’s § 1983 action is barred (absent prior invalidation) – no matter
the relief sought (damages or equitable relief), no matter the target of the
prisoner’s suit (state conduct leading to conviction or internal prison proceedings)
– if success in that action would necessarily demonstrate the invalidity of the
confinement or its duration.
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in original). Thus, the threshold
question now becomes whether success on Plaintiff’s access to courts claim would “necessarily
demonstrate” the invalidity of his conviction. 12 Clearly, it would because to be successful on his
access to courts claim he would have to demonstrate that his Brady, Giglio, and Napue violation
claims are “nonfrivolous” or “arguable” in nature and to do so would call into question the
validity of his conviction. See Amaker v. Weiner, 179 F.3d 48, 51 (2d Cir. 1999) (holding that
Brady claims implicate the validity of the resulting conviction and are thus barred by Heck)
In addressing alleged Brady violations in the context of Heck, the Supreme Court has
Furthermore, the Third Circuit, unlike other Circuits, has held that Heck’s favorable
termination rule applies even when the plaintiff is no longer in custody and cannot pursue habeas
relief. See Gilles v. Davis, 427 F.3d 197, 209-11 (3d Cir. 2005).
Unlike DNA testing, which may yield exculpatory, incriminating, or inconclusive
results, a Brady claim, when successful postconviction, necessarily yields
evidence undermining a conviction: Brady evidence is, by definition, always
favorable to the defendant and material to his guilt or punishment. See Strickler,
527 U.S., at 296, 119 S.Ct. 1936. And parties asserting Brady violations
postconviction generally do seek a judgment qualifying them for “immediate or
speedier release” from imprisonment. See Dotson, 544 U.S., at 82, 125 S.Ct.
1242. Accordingly, Brady claims have ranked within the traditional core of
habeas corpus and outside the province of § 1983. See Heck, 512 U.S., at 479,
490, 114 S.Ct. 2364 (claim that prosecutors and an investigator had “‘knowingly
destroyed’ evidence ‘which was exculpatory in nature and could have proved
[petitioner’s] innocence’ ” cannot be maintained under § 1983); Amaker v.
Weiner, 179 F.3d 48, 51 (C.A.2 1999) (“claim [that] sounds under Brady v.
Maryland ... does indeed call into question the validity of [the] conviction”); Beck
v. Muskogee Police Dept., 195 F.3d 553, 560 (C.A.10 1999) (same).
Skinner v. Switzer, 562 U.S. 521, 536-37 (2011).
Plaintiff’s allegation that the Commonwealth suborned perjury from Benjamin Williams
by having him testify that he had received no promises in exchange for his testimony, when, in
fact, in 1993, the United States Attorney had promised Williams leniency in sentencing for a
federal crime in exchange for Williams’ testimony against Plaintiff would necessarily imply the
invalidity of Plaintiff’s conviction. Indeed, the remedy for such violations is vacatur of the
judgment of conviction and a new trial. Heck therefore applies with respect to his access to
courts claim. See, e.g., Burd v.Sessler, 702 F.3d 429, 434-35 (7th Cir. 2012) (holding Heck
barred the plaintiff’s § 1983 access to courts claim seeking money damages for prison officials’
interference with his ability to challenge his state court conviction); Hoard v. Reddy, 175 F.3d
531, 534 (7th Cir.1999) (“where the prisoner is complaining about being hindered in his efforts
to get his conviction set aside, the hindrance is of no consequence if the conviction was valid,
and so he cannot get damages until the conviction is invalidated.”); Nance v. Vieregge, 147 F.3d
589 (7th Cir. 1998) (“[t]he holding of Lewis that a claim based on deprivation of access to the
courts requires proof of concrete injury, combined with the holding of Heck, means that a
prisoner . . . must have the judgement annulled before damages are available”). Accordingly,
this claim will be dismissed without prejudice. See Curry v. Yachera, 835 F.3d 373, 379 (3d Cir.
2016) (dismissal of case based on Heck is without prejudice); Amaker v. Weiner, 179 F.3d 48,
52 (2d Cir. 1999).
On a final note, it is questionable whether Heck’s favorable termination rule bars a
plaintiff’s claim for injunctive or declaratory relief. See Edwards v. Balisok, 520 U.S. 641, 64849 (1997) (“[R]espondent’s claim for declaratory relief and money damages, based on
allegations of deceit and bias on the part of the decisionmaker that necessarily imply the
invalidity of the punishment imposed, is not cognizable under § 1983 . . . .” but respondent’s
“request for prospective relief will not ‘necessarily imply’ the invalidity of a previous loss of
good-time credits, and so may properly be brought under § 1983.”); Huftile v. Miccio-Fonseca,
410 F.3d 1136, 1141 (9th Cir. 2005) (finding the plaintiff’s claims for damages and declaratory
relief barred by Heck, but his claim for injunctive relief was not); Hoard v. Reddy, 175 F.3d 531,
533 (7th Cir. 1999) (noting that an inmate could use 42 U.S.C. § 1983 to seek an injunction in
order to clear his block access to the court); Fritz v. Colorado, 223 F.Supp.2d 1197, 1202 (D. Co.
2002) (concluding that Heck did not apply directly to bar the plaintiff’s claims for declaratory
and injunctive relief); Bell v. City of Boise, 993 F.Supp.2d 1237, 1244-45 (D. Id. 2014) (noting
that “[i]n most instances, the holding of Heck will bar § 1983 claims for injunctive and
declaratory relief . . . . However, Heck does not necessarily preclude all claims under the
Declaratory Judgment Act.”) (internal citations omitted). But see Miller v. Harris County, Texas,
396 F. App’x 77, 78 (5th Cir. 2010) (plaintiff’s claims for declaratory and injunctive relief were
properly dismissed under Heck because they “call into question the validity of the deferred
adjudication order and order adjudicating his guilt”); Clarke v. Stalder, 154 F.3d 186, 190-91
(5th Cir.1998) (en banc) (plaintiff’s declaratory relief request is barred because it is “so
intertwined with his requests for restoration of lost good-time credits and damages that resolution
of the issues . . . would, in effect, if favorable, automatically entitle [plaintiff] to reinstatement of
his lost-good time credits.”); Sheldon v. Hundley, 83 F.3d 231, 234 (8th Cir. 1996) (same);
Coleman v. United States District Court District of New Mexico, 2016 WL 8924939, at *1
(D.N.M. Mar. 30, 2016) (“The Heck doctrine also applies without respect to whether the relief
sought is in the form of damages or equitable declaratory or injunctive relief.”); Branthoover v.
Burbach, 2010 WL 3341197, at *2 (D. Col. Aug. 23, 2010) (finding that the plaintiff’s request
for declaratory relief was also barred by Heck because a declaration that the defendants violated
the plaintiff’s constitutional rights would necessarily imply the invalidity of her state court
convictions.). As previously stated in this Opinion, the Supreme Court has said that “a state
prisoner’s § 1983 action is barred (absent prior invalidation) – no matter the relief sought
(damages or equitable relief), no matter the target or the prisoner’s suit (state conduct leading to
conviction or internal prison proceedings) – if success in that action would necessarily
demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 81-82
(emphasis in original).
Presumably, Plaintiff is aware that Heck bars his claims for damages because he states
many times throughout his briefs that he is seeking declaratory and injunctive relief. While he
does not specify the nature of the injunctive relief he requests, he does state that he is seeking a
declaration that Defendant hindered his access to post-conviction remedies in his Allegheny
County case so that he may in turn challenge his Philadelphia County sentence. However, such a
declaration would be declaring that due process violations occurred in his Allegheny County
case, which would impugn the validity of his Allegheny County conviction. This declaratory
relief necessarily implies the invalidity of his Allegheny County conviction and is therefore
barred by Heck. 13
For the reasons set forth above, the Court will grant the Defendant’s Motion as follows.
The Court will dismiss for lack of subject matter jurisdiction Plaintiff’s claims in connection
with his denial of access to evidence for DNA testing. In the alternative, the Court will dismiss
those claims as time-barred and for failure to state a claim. With respect to his access to courts
claim, the Court will dismiss those claims without prejudice pursuant to Heck. An appropriate
Dated: August 14, 2017.
Lisa Pupo Lenihan
United States Magistrate Judge
Defendant has set forth more reasons for dismissal; however, there is no need for the Court to
rule on the balance of Defendant’s arguments.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DISTRICT ATTORNEY’S OFFICE
OF ALLEGHENY COUNTY,
Civil Action No. 16 – 567
Magistrate Judge Lisa Pupo Lenihan
AND NOW, this 14th day of August, 2017, for the reasons stated in this Court’s
Memorandum Opinion filed contemporaneously herewith,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss Amended
Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim (ECF
No. 43) is GRANTED for the reasons, and only those reasons, set forth in this Court’s
IT IS HEREBY ORDERED that Plaintiff’s Amended Complaint (ECF No. 33)
is DISMISSED and the Clerk is directed to mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
Lisa Pupo Lenihan
United States Magistrate Judge
cc: Jermain Palmer
1600 Walters Mill Road.
Somerset, PA 15510
(Via First Class Mail)
Counsel for Defendants
(Via CM/ECF Electronic Mail)
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