United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER SENIOR JUDGE
statistically closed civil rights action, plaintiff Billy
Donnell Heath (“Heath”) moves under Fed.R.Civ.P.
60(b)(6) for reconsideration of the court's dismissal of
Heath's amended complaint. For the reasons that follow,
the court denies the motion.
facts of this case are set forth in prior opinions of the
court and need not be repeated at length. See, e.g.,
Heath v. Thomas (Heath II), 2009 WL 1979357 (N.D. Tex.
July 9, 2009) (Fitzwater, C.J.); Heath v. Thomas (Heath
I), 2007 WL 2229056 (N.D. Tex. July 31, 2007)
(Fitzwater, J.) (adopting findings and recommendation of the
United States Magistrate Judge). Heath was convicted on two
counts of burglary of a habitation and two counts of sexual
assault. After the alleged offenses were committed, both
victims were taken to a local hospital where they were
examined by a physician. Under a court order, Heath was
compelled to give hair, blood, and saliva samples. At his
trial, a physician testified that one of the victims had not
been raped because her vagina had not been penetrated. Tests
revealed that the other victim had been sexually assaulted.
Despite repeated requests, Heath was never provided a copy of
the hospital records or rape kits pertaining to the victims.
Heath filed this lawsuit against the state prosecutor, the
trial judge, the court clerk, two police detectives, and his
former attorney, alleging civil rights violations remediable
under 42 U.S.C. § 1983. Upon referrals to and
recommendations from the magistrate judge, the court
dismissed Heath's claims in part, but allowed Heath to
prosecute a § 1983 claim to the extent it was
“based on defendants' present failure (not
pre-conviction failure) to produce records of exculpatory
evidence that would exonerate him.” Jan. 12, 2000
Order. In light of this order, the magistrate judge
instructed the clerk of court to issue process to all
defendants, and the case proceeded on Heath's due process
claim. See Mag. J. Jan. 21, 2000 Order.
state prosecutor, the trial judge, the court clerk, and two
police detectives timely filed answers to Heath's
complaint. Heath's former attorney, Teresa Hawthorne,
Esquire (“Hawthorne”), failed to answer or
otherwise appear. After rejecting a second recommendation for
the summary dismissal of Heath's due process claim, the
court ordered Heath to file an amended complaint in an
attempt to plead a claim that was not barred by Heck v.
Humphrey, 512 U.S. 477 (1994). See Sept. 1,
2000 Order. After Heath filed an amended complaint,
defendants moved to dismiss under Rule 12(b)(6). The court
granted the motions, noting that Heath had not cited any case
law or statute supporting his right to the post-conviction
production of exculpatory evidence, and that his other
constitutional claims were Heck-barred. See
Jan. 29, 2001 Mem. Op. & Order. The court issued a Rule
54(b) final judgment dismissing all claims against all
defendants except Hawthorne. The judgment was affirmed on
appeal. Heath v. Thomas, 34 Fed.Appx. 962 (5th Cir.
2002) (per curiam).
2001, Heath has twice-in 2007 and in 2009-unsuccessfully
challenged the Rule 54(b) final judgment under Rule 60(b).
See Heath II, 2009 WL 1979357, at *1-3; Heath
I, 2007 WL 2229056, at *1. Heath now returns to this
court with a third Rule 60(b) motion.
Rule 60(b), a district court may grant relief from a final
judgment for (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence; (3) fraud,
misrepresentation, or other misconduct of an adverse party;
(4) a void judgment; or (5) a judgment that has been reversed
or otherwise vacated. Rule 60(b)(1)-(5). The court may also
set aside a judgment for “any other reason that
justifies relief.” Rule 60(b)(6). Relief under this
“catch-all” provision is available, however,
“only if extraordinary circumstances are
present.” Hess v. Cockrell, 281 F.3d 212, 216
(5th Cir. 2002) (quoting Batts v. Tow-Motor Forklift
Co., 66 F.3d 743, 747 (5th Cir. 1995)). The burden of
establishing at least one of the Rule 60(b) requirements is
on the movant, and a determination of whether that burden has
been met rests within the discretion of the court.
Lavespere v. Niagara Mach. & Tool Works, Inc.,
910 F.2d 167, 173 (5th Cir. 1990), abrogated on other
grounds by Little v. Liquid Air Corp., 37 F.3d 1069,
1075 n.14 (5th Cir. 1994) (en banc) (per curiam).
instant motion-as in the 2009 motion for
reconsideration-Heath relies on cases from outside the Fifth
Circuit to support his Rule 60(b)(6) motion: Osborne v.
District Attorney's Office for Third Judicial
District, 521 F.3d 1118 (9th Cir. 2008), rev'd
and remanded, 557 U.S. 52 (2009),  and Phelps v.
Alameida, 569 F.3d 1120 (9th Cir. 2009). In 2009 Heath
argued that the court should not have deemed his claims
Heck-barred because the Ninth Circuit has held that
Heck does not preclude a § 1983 action seeking
to compel a state to release biological evidence of DNA
testing. See Heath II, 2009 WL 1979357, at *3. Heath
now maintains that the court erred in determining that his
claims are Heck-barred “because the district
court incorrectly applied a per se rule to reject Heath's
Amended Complaint . . . rather than evaluating the specific
circumstances of Heath's case.” P. Mot. 3.
time since the court's 2009 decision, there has been an
intervening change in the law that is binding upon this
court. In Skinner v. Switzer, 562 U.S. 521 (2011),
the Supreme Court of the United States abrogated a case that
this court had relied on in denying Heath's 2009 Rule
60(b) motion: Kutzner v. Montgomery County, 303 F.3d
339 (5th Cir. 2002). In Skinner the Court recognized
that “a postconviction claim for DNA testing is
properly pursued in a § 1983 action.”
Skinner, 562 U.S. at 525. This recognition-unlike
the Ninth Circuit's pronouncement in
Osborne-abrogated Fifth Circuit precedent that had
required that such a claim be pursued in a habeas corpus
action. But even assuming that Heath had cited
Skinner, the case does not alone constitute
“case law supporting [Heath's] right to
post-conviction production of exculpatory evidence and
records.” P. Mot. 2.
Skinner does not stand for the proposition that
parties are automatically entitled to post-conviction
production of exculpatory evidence and records. In fact,
Skinner explicitly states that it does not alter the
rule that Brady claims are outside the province of
§ 1983-those claims must still be pursued in a habeas
corpus action. See Skinner, 562 U.S. at 536-37
(“Nor do we see any cause for concern that today's
ruling will spill over to claims relying on
Brady[.]”). Moreover, this court did not
summarily grant defendants' motion to dismiss simply
because it was a post-conviction claim for exculpatory
evidence pursued in a § 1983 action. Rather, the court
explained that “Texas state law limits the release of
such records” and that Heath did not “provide the
court with any legal authority for the viability of a right
to the post-conviction production of exculpatory
evidence.” Jan. 29, 2001 Mem. Op. & Order.
Heath's instant ...