     Case: 12-20160       Document: 00512188573         Page: 1     Date Filed: 03/27/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 27, 2013
                                     No. 12-20160
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

WILLIAM HARRIS,

                                                  Plaintiff-Appellant

v.

PATRICIA LYKOS,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:12-CV-393


Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
       William Harris, Texas prisoner # 1122330, was convicted of murder and
unsuccessfully sought DNA testing under Chapter 64 of the Texas Code of
Criminal Procedure. He filed in the district court a pro se complaint under 42
U.S.C. § 1983 arguing that he was denied procedural due process when he was
denied DNA testing of certain crime scene evidence.
       The district court sua sponte dismissed Harris’s complaint under 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim. We review the dismissal of

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-20160     Document: 00512188573      Page: 2    Date Filed: 03/27/2013

                                  No. 12-20160

Harris’s complaint de novo “using the same standard applicable to dismissals
under Fed. R. Civ. P. 12(b)(6).” Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011).
“[D]istrict courts should not dismiss pro se complaints pursuant to Rule 12(b)(6)
without first providing the plaintiff an opportunity to amend, unless it is obvious
from the record that the plaintiff has pled his best case.” Id. at 503.
      To state a claim under § 1983, a plaintiff must allege that there was a
violation of a right secured by the Constitution or laws of the United States and
that the deprivation was committed by a person acting under the color of state
law. Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008).
While there is no freestanding right for a convicted defendant to obtain evidence
for post-conviction DNA testing, such a right may be created by state law.
District Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 67-
73 (2009). Texas has created such a right, which is found in Chapter 64 of the
Texas Code of Criminal Procedure. The constitutional right at issue in the
instant case is procedural due process – whether the defendant is
unconstitutionally denying Harris his right to post-conviction access to DNA
evidence. See Skinner v. Switzer, 131 S. Ct. 1289, 1293 (2011) (holding that a
post-conviction claim for access to evidence for DNA testing is properly brought
under § 1983); Garcia v. Castillo, 431 F. App’x 350, 352-53 (5th Cir. 2011)
(reviewing claim concerning denial of post-conviction access to DNA evidence
brought under § 1983). 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.
      The district court concluded that Harris failed to state a claim recognized
at law. Under Skinner, that conclusion is incorrect, and the district court should
have determined whether the postconviction relief procedures as applied in
Harris’s case were “fundamentally inadequate to vindicate the substantive
rights provided.” Osborne, 557 U.S. at 69. Because the district court erred in
dismissing sua sponte Harris’s § 1983 complaint seeking DNA testing for failure

                                         2
    Case: 12-20160    Document: 00512188573     Page: 3   Date Filed: 03/27/2013

                                 No. 12-20160

to state a claim without first giving him an opportunity to amend his complaint
to state his best case, the district court’s dismissal is VACATED and the case is
REMANDED for further proceedings. See Hale, 642 F.3d at 503-04.




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