2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-12-2010

Grier v. Klem

Precedential or Non-Precedential: Precedential

Docket No. 06-3551

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-3551

 

EMMITT GRIER, JR.,

 

 Appellant

 v.

SUPERINTENDENT EDWARD J. KLEM;

ERIE COUNTY DISTRICT ATTORNEY;

COMMONWEALTH OF PENNSYLVANIA;

OFFICE OF THE PROTHONOTARY

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

(No. 05-cv-00005E)

District Judge: Honorable Maurice B. Cohill

 

Argued on December 16, 2009

Before: FISHER, HARDIMAN, and VAN ANTWERPEN,

Circuit Judges.
2

(Filed January 12, 2010)

Anderson T. Bailey, Esq.

Jones Day

500 Grant Street, Suite 4500

Pittsburgh, PA 15219

Counsel for Appellant

John D. Goetz, Esq.

Jones Day

500 Grant Street, Suite 4500

Pittsburgh, PA 15219

Counsel for Appellant

Charles T. Kotuby Jr., Esq. (Argued)

Jones Day

51 Louisiana Avenue N.W.

Washington D.C., 20001

Counsel for Appellant

Matthew J. McLaughlin, Esq. (Argued)

Assistant Solicitor for Erie County

246 West Tenth Street

Erie, PA 16501

Counsel for Erie District Attorney

Appellee
 Grier listed Edward J. Klem, Superintendent of SCI- 1

Mahoney, as a defendant in this action. On August 31, 2009,

Mr. Klem notified this Court he would not be participating in

this appeal. Plaintiff recognized in open court, and in the briefs,

that Mr. Klem cannot provide him the “relief [he] seeks.”

(Appellant’s Reply Br. 1 n.1.) Furthermore, Plaintiff consented

to Mr. Klem’s dismissal. There is no formal documentation,

however, confirming that Mr. Klem was dismissed from this

case. On remand, this Court recommends that Plaintiff file a

motion for voluntary dismissal of Mr. Klem under Fed. R. Civ.

P. 41(a), or that Mr. Klem move for an involuntary dismissal

under Fed. R. Civ. P. 41(b). 

3

 

OPINION OF THE COURT

 

VAN ANTWERPEN, Circuit Judge.

Appellant-Plaintiff Emmitt Grier, Jr. (“Grier”) appeals

from the District Court’s decision granting AppelleeDefendants Erie County District Attorney’s (“District

Attorney”) and Superintendent Edward Klem’s motion to

dismiss his § 1983 claim, determining it is barred by the Heck

rule. For the following reasons, this Court will vacate the 1

District Court’s order and remand for further proceedings. 

I.
4

Grier was convicted of two counts of rape, one count

of attempted rape, one count of burglary and three counts of

unlawful restraint. He received a sentence of twenty-eight

and-one-half to seventy-five years of imprisonment. The facts

underlying these charges are as follows. On June 30, 1998, a

perpetrator entered Ms. Loretta Hansbrew’s (“Ms.

Hansbrew”) home while she was sleeping, taped her eyes and

hands, and then raped her (the “June incident”). She never

saw her assailant’s face or recognized his muffled voice, but

she noticed that he was African-American. Five months later,

in November, Ms. Hansbrew was attacked again (the

“November incident”). A perpetrator had hidden in her van. 

He demanded she pull over while she was driving. Then, he

taped her eyes, bound her feet, and unsuccessfully attempted

to rape her. Again, Ms. Hansbrew did not see his face.

On August 31, 1999, Grier visited Ms. Hansbrew’s

home to request water for his radiator. He knew Ms.

Hansbrew because he was her daughter’s fiancé. During the

visit, Grier and Ms. Hansbrew had a sexual encounter (the

“August incident”). Ms. Hansbrew reported the incident to

the police, who took Grier into custody.

Grier waived his Miranda rights upon arrest. He

offered to make a videotaped statement outside the presence

of counsel. In it, he admitted to having had a sexual

encounter with Ms. Hansbrew on August 31, 1999. A halfhour after the completion of the first interview, a detective

initiated a second videotaped interview where he asked Grier

about the June and November incidents. Grier confessed to

both of those crimes as well.
5

Following both the June and August incidents, medical

personnel used rape kits to gather biological evidence from

Ms. Hansbrew. The rape kits were sent to the Pennsylvania

State Police Laboratory to be compared to determine if the

same perpetrator had committed both crimes. The kits were

not analyzed, however, because Grier gave videotaped

statements confessing to these crimes. Police testified that a

state laboratory policy prevents the laboratory from analyzing

DNA evidence in cases where the identity of the defendant is

not in question due to a taped confession.

Grier later testified, and continues to contend, that he

did not commit the June and November crimes. He claims he

confessed to the crimes in error because he was extremely

emotional and confused. 

Grier’s defense attorneys never moved to suppress the

videotaped statements, and neither Grier nor the

Commonwealth had the DNA tested. Grier was initially

represented by public defender A.J. Adams (“Adams”).

Despite Grier’s requests, Adams did not move to suppress

Grier’s videotaped statements, concluding such a motion

would be baseless. Due to a personality conflict, Adams was

permitted to withdraw from Grier’s case in April 2000.

Grier contends his subsequent attorney, James

Pitonyak (“Pitonyak”), did not follow or convey his

instructions to have DNA testing done on both rape kits. 

Pitonyak, however, claims that he and Grier discussed, but

decided against, requesting DNA testing. The rape kits were

never subjected to DNA testing and the jury convicted Grier
 Even though Pennsylvania’s Postconviction DNA Access 2

Law went into effect between the time Grier filed his PCRA

petition and when the court issued its judgment, the court made

its determination without citing it. See 42 Pa. C.S. § 9543.1.

Therefore, Grier’s request for postconviction access to evidence

6

primarily based on eyewitness testimony offered by the

Commonwealth and Grier’s videotaped statements.

Grier filed a timely motion for acquittal or a new trial

maintaining his innocence and requesting DNA analysis,

which was denied. The Pennsylvania Superior Court affirmed

the denial, and the Pennsylvania Supreme Court denied

Grier’s petition for appeal. 

Grier filed a pro se motion for postconviction

collateral relief (“PCRA”) in which he claimed ineffective

assistance of counsel and that the prosecutor violated his

constitutional rights by misrepresenting the facts in the case. 

He alleged his counsel was ineffective for failing to request

DNA analysis and for not moving to suppress his videotaped

statements. Grier filed a supplemental brief through

appointed counsel, emphasizing that he was pursuing courtordered DNA testing. After oral argument and an evidentiary

hearing, Judge Domitrovich dismissed Grier’s PCRA petition

as “without merit.” (App. A126.) The court determined that

Grier was not entitled to postconviction DNA testing under

Pennsylvania precedent that precludes postconviction access

to DNA evidence when the conviction rests on voluntary

confessions. See Commonwealth v. Godshalk, 679 A.2d

1295, 1297 (Pa. 1995).2
has never been considered under this new statute. 

 Notably, the bar to postconviction DNA testing based on

a pre-charge confession has been applied to petitions filed under

Pennsylvania’s Postconviction DNA Access Law.

Commonwealth v. Young, 873 A.2d 720, 727 (Pa. Super. Ct.

2005). But, the Pennsylvania Supreme Court has granted an

appeal on the issue of whether a confession should bar a

petitioner’s access to postconviction DNA testing.

Commonwealth v. Wright, 951 A.2d 263 (Pa. 2008).

 Neither the Magistrate Judge nor the District Court 3

entertained Defendants’ arguments for dismissal based on res

judicata or collateral estoppel.

7

Grier alleges that he did not appeal the denial of his

first PCRA due to a miscommunication with counsel. His

appeal rights were reinstated after he informed the court of

this miscommunication. Then, the Pennsylvania Superior

Court affirmed the denial of his PCRA petition, and the

Pennsylvania Supreme Court denied his request for appeal. 

On January 6, 2005, Grier filed this § 1983 claim

alleging the District Attorney and Mr. Klem denied his

procedural due process rights by refusing him access to the

rape kits for DNA testing. The case was referred to a United

States Magistrate Judge for recommendation. Grier moved

for summary judgment, and Defendants moved to dismiss the

action based on the failure to make out a cognizable § 1983

claim and on the principles of res judicata and collateral

estoppel.3

The United States Magistrate Judge determined that

Grier’s allegation “necessarily implicates . . . his state court

convictions.” (App. A6.) She noted that under Heck v.

Humphrey, a prisoner cannot bring a § 1983 claim if the

success of that claim would undermine the prisoner’s

conviction or sentence, unless that conviction or sentence has
 The Magistrate Judge also commented that the true 4

defendant in this case is Judge Domitrovich. It noted, however,

that a § 1983 claim against Judge Domitrovich would be

dismissed under principles of judicial immunity. We cannot

affirm the judgment below on this basis, however. The evidence

that Grier seeks is in the custody of the Erie County District

Attorney, and no showing has been made that he is not the

proper defendant.

8

already been called into question. 512 U.S. 477, 487 (1994). 

The Magistrate Judge recommended that Grier’s motion be

dismissed “as an improper attempt to collaterally attack

plaintiff’s state court criminal conviction.” (App. A5.) 4

Based on the Magistrate Judge’s recommendation, on June

29, 2006, the District Court granted Defendants’ motion to

dismiss and denied Grier’s request for summary judgment.

Grier filed a timely appeal. This Court stayed his

appeal pending the Supreme Court’s decision in District

Attorney’s Office for the Third Judicial District v. Osborne,

where the Supreme Court granted certiorari on, but did not

decide, the question of whether an incarcerated plaintiff was

barred from bringing a § 1983 claim to request access to

evidence for postconviction DNA analysis. 129 S. Ct. 2308,

2319 (2009).

II.

The District Court exercised subject matter jurisdiction

over Grier’s § 1983 claim pursuant to 28 U.S.C. § 1331 and §

1343. This Court has appellate jurisdiction pursuant to 28

U.S.C. § 1291. This Court exercises plenary review over a

district court’s grant of a motion to dismiss for failure to state

a claim. AT&T Corp. v. JMC Telecom, LLC, 470 F.3d 525,

530 (3d Cir. 2006). We do not inquire whether a plaintiff will

ultimately prevail when considering a motion to dismiss, only
9

whether the plaintiff is entitled to offer evidence to support

his or her claims. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.

1996).

III. 

This case requires this Court to consider the boundary

between two statutes that provide prisoners access to a federal

forum to bring claims of unconstitutional treatment at the

hands of state officials: the Civil Rights Act of 1871, 42

U.S.C. § 1983, and the federal habeas corpus statute, 28

U.S.C. § 2254. Section 1983 provides for a broad right of

action, allowing recovery for anyone suffering from “the

deprivation of any rights, privileges, or immunities secured by

the Constitution” by anyone acting under the color of state

law. 42 U.S.C. § 1983. By § 1983’s terms, all habeas corpus

actions could be brought as § 1983 claims; to prevent that, the

Supreme Court determined that the two provisions must be

read in harmony. See Preiser v. Rodriguez, 411 U.S. 475, 500

(1973). The Supreme Court created an “implicit exception”

to § 1983’s broad scope for actions that lie at the “core” of

habeas corpus, id. at 487, 489, which include any prisoner’s

claims that challenge the “validity of the fact or length of their

confinement,” id. at 490. 

In Heck v. Humphrey, the Supreme Court expanded the

circumstances in which a prisoner is barred from bringing a §

1983 claim. 512 U.S. 477 (1994). It held a prisoner does not

have a cognizable § 1983 claim, even if he or she does not

seek relief from the fact or duration of confinement, for

alleged unconstitutional conduct that would invalidate his or

her underlying sentence or conviction unless that conviction

has already been called into question. Id. at 486-87. The

Supreme Court thereby effectively barred prisoners from

collaterally attacking their underlying convictions, directly or
10

indirectly, through the § 1983 vehicle. To determine whether

a § 1983 claim should be dismissed as an impermissible

collateral attack on an underlying conviction,

“[A] district court must consider whether a judgment

in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence; if it would,

the complaint must be dismissed unless the plaintiff

can demonstrate that the conviction or sentence has

already been invalidated. But if the district court

determines that the plaintiff’s action, even if

successful, will not demonstrate the invalidity of any

outstanding criminal judgment against the plaintiff,

the action should be allowed to proceed, in the

absence of some other bar to the suit.”

Id. at 487. 

Defendants contend that the relief Grier seeks would

necessarily implicate or undermine the validity of his criminal

convictions. Previously, several appellate courts were split as

to whether a § 1983 claim to compel state officials to release

evidence for postconviction DNA testing is a claim seeking to

undermine a plaintiff’s conviction. Compare Kutzner v.

Montgomery County, 303 F.3d 339, 340 (5th Cir. 2002)

(holding that “no § 1983 claim exists for injunctive relief to

compel DNA testing”), Harvey v. Horan, 278 F.3d 370, 377

(4th Cir. 2002) (same), and Boyle v. Mayer, 46 Fed. App’x

340, 340 (6th Cir. 2002) (same), with Bradley v. Pryor, 305

F.3d 1287, 1290 (11th Cir. 2002) (holding that a § 1983 claim

requesting release of evidence for DNA testing is cognizable

because plaintiff only seeks access to evidence). These

opinions, however, were all entered prior to the Supreme

Court’s decision in Wilkinson v. Dotson. 544 U.S. 74 (2005). 

Following Dotson, the Supreme Court noted that the circuit
11

split faded away. See Osborne, 129 S. Ct. at 2318 (noting that

since Dotson, all courts to consider whether prisoners can use

§ 1983 claims to request access to biological evidence have

agreed).

In Dotson, the Supreme Court held that state prisoners

may bring § 1983 claims to request new parole hearings under

fairer procedures because seeking to invalidate state

procedures “will not ‘necessarily imply the invalidity of

[their] conviction[s] or sentence[s].’” Dotson, 544 U.S. at 82

(quoting Heck, 512 U.S. at 487). The Court acknowledged

that the plaintiffs “hope[d]” their § 1983 claims would “bring

about earlier release,” but the Court determined that hope was

not sufficient to bar a § 1983 claim if that hope could not be

realized without further proceedings. Id. at 78, 82. 

Courts have interpreted Dotson as rejecting the

argument offered by Defendants in this case – that Heck bars

any § 1983 claim that a plaintiff hopes will set the stage to

bring him or her speedier release from prison. McKithen v.

Brown, 481 F.3d 89, 102-03 (2d Cir. 2007); Savory v. Lyons,

469 F.3d 667, 672 (7th Cir. 2006); Osborne v. Dist.

Attorney’s Office for Third Judicial Dist., 423 F.3d 1050,

1054 (9th Cir. 2005), rev’d on other grounds, 129 S. Ct. 2308

(2009); cf. Georgevich v. Strauss, 772 F.2d 1078, 1087 (3d

Cir. 1985) (determining prior to Dotson that “the fact that

prisoner’s success in the litigation might increase the chance

for early release does not, in itself, transform the action into

one for habeas corpus”). Dotson indicated that the proper

inquiry to determine whether a prisoner’s § 1983 claim falls

into the habeas exception is whether his or her success would

necessarily require the prisoner’s release or a reduction in the

prisoner’s sentence. McKithen, 481 F.3d at 102 (citing

Dotson, 544 U.S. at 80). Thus, it is “irrelevant” that a

prisoner might, following success in a § 1983 suit, find
12

himself or herself in a better position to raise subsequent

challenges to his conviction or sentence. Id. 

In light of Dotson, all three appellate courts that have

considered the question have held that a plaintiff can use the §

1983 vehicle to request the release of evidence for

postconviction DNA analysis. McKithen, 481 F.3d at 103;

Savory, 469 F.3d at 672; Dist. Attorney’s Office for Third

Judicial Dist., 423 F.3d at 1054-55. They reason that Heck

does not bar requests for DNA analysis because, even if a

plaintiff prevails, he or she merely gains access to evidence,

and having access to evidence does not necessarily invalidate

the prisoner’s conviction. McKithen, 481 F.3d at 102-03;

Savory, 469 F.3d at 672. At best, a plaintiff may be able to

use the results of the DNA analysis in future proceedings,

which is not prohibited under Heck. McKithen, 481 F.3d at

103; Savory, 469 F.3d at 672. We find this reasoning

persuasive.

The Supreme Court never determined whether a

prisoner could use a § 1983 claim to gain postconviction

access to evidence for DNA testing, but it assumed the Ninth

Circuit correctly found that Heck did not bar such a claim. 

Osborne, 129 S. Ct. at 2319. Notably, four of the Justices

endorsed the Ninth Circuit’s determination that a prisoner

could use a § 1983 claim in this manner. Id. at 2331 n.1

(Stevens, J., dissenting). Similarly, this Court has not issued a

binding opinion regarding whether a plaintiff may avail him

or herself of the § 1983 vehicle, rather than a habeas corpus

proceeding, to request access to evidence for postconviction

DNA analysis. 

In light of Osborne and Dotson, we agree with our

sister courts and hold that in the narrow circumstance where a

prisoner files a § 1983 claim to request access to evidence for
13

DNA testing, that claim is not barred by the principles

outlined in Heck. Even if Grier does prevail on this § 1983

claim, he will merely gain access to biological evidence,

which in and of itself cannot invalidate or undermine his

convictions. 

There is no substantive due process right to access

DNA evidence, Osborne, 129 S. Ct. at 2322, and procedural

due process does not require that a district attorney disclose

all potentially exculpatory evidence for postconviction relief

to a prisoner, id. at 2319-20. Therefore, by deciding Grier’s §

1983 claim is not barred, we have not determined whether his

due process rights have been violated. The District Court did

not address this issue. 

Grier requests this Court remand this case to the

District Court to determine whether Grier’s procedural due

process rights were violated; but, the Erie District Attorney

suggests such a remand is “pointless.” (Appellee’s Br. 16.) 

The Erie District Attorney explains that remand is pointless

because there is no state or federal authority which would

afford Grier a due process right to obtain postconviction DNA

testing. Whether Grier will successfully demonstrate that his

due process rights have been violated in a subsequent

proceeding is beyond the scope of this appeal and is beside

the point. See Nami, 82 F.3d at 65 (noting that when

considering a motion to dismiss, this Court does “not inquire

whether the plaintiffs will ultimately prevail”). 

In Osborne, the Supreme Court held that constitutional

claims like Grier’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. Osborne, 129 S. Ct. at 2320. The Court
14

thus envisioned a plaintiff like Grier, who availed himself of

state procedures without success and claims a due process

violation precisely because of that failure. Therefore, as

instructed by the Supreme Court in Osborne, id., we will

remand this case to the District Court to determine whether

Grier’s procedural due process rights, when considered within

the framework of Pennsylvania’s procedures for

postconviction relief, were violated.

IV.

We re-emphasize that our holding in this case is

narrow and we decide only that a party can use a § 1983 claim

to request access to evidence for postconviction DNA testing. 

We do not decide that the denial of access necessarily violates

a prisoner’s due process rights or that a defendant can use a §

1983 claim to request postconviction access to evidence for

other reasons. For the foregoing reasons, we vacate the

District Court’s decision determining that Heck bars a § 1983

claim requesting access to evidence for postconviction DNA

testing. We remand for further proceedings to determine

whether, based on Osborne, Grier’s procedural due process

rights were violated.