Emmitt Grier, Jr. v. Superintendent Edward J. Klem

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.

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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

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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 Appellee-
Defendants 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 the1
District Court’s order and remand for further proceedings.
I.

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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 half-
hour 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.

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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

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Even though Pennsylvania’s Postconviction DNA Access2
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 court-
ordered 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

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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 D N A A ccess 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 Court3
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

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The Magistrate Judge also commented that the true4
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

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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

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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

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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

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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

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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

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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.

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