Stocking v. Pulvirenti et al

Filing 12

ORDER. As set forth herein, defendants motion to dismiss 11 is GRANTED. The Clerk is directed to enter judgment and close this case. Signed by Judge Michael P. Shea on 6/29/15. (Bradley, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

GARY W. STOCKING,
Plaintiff,
v.
GINO PULVIRENTI, et al.,
Defendants.

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CASE NO. 3:14-cv-1772 (MPS)

JUNE 29, 2015

RULING ON DEFENDANTS’ MOTION TO DISMISS [Doc. #11]
The plaintiff, Gary W. Stocking, currently incarcerated at the Cheshire Correctional
Institution in Cheshire, Connecticut, commenced this action by complaint filed in state court.
The defendants, Middletown Police Officers Gino Pulvirenti, William Mudano and Vincent
Massotta, removed the case to federal court. The defendants now have filed a motion to dismiss
the case. The plaintiff has not opposed the motion. For the reasons that follow, the defendants’
motion is granted.
I. Standard of Review
When considering a motion to dismiss filed pursuant to Rule 12(b)(6), Fed. R. Civ. P.,
the court accepts as true all factual allegations in the complaint and draws inferences from these
allegations in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236
(1974); Flores v. Southern Peru Copper Corp., 343 F.3d 140, 143 (2d Cir. 2003). The court
considers not whether the plaintiff ultimately will prevail, but whether he has stated a claim upon
which relief may be granted so that he should be entitled to offer evidence to support his claim.
See York v. Association of Bar of City of New York, 286 F.3d 122, 125 (2d Cir.), cert. denied,
537 U.S. 1089 (2002).

In reviewing the complaint in response to a motion to dismiss, the court applies “a
‘plausibility standard,’ which is guided by two working principles.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). First, the requirement that the court accept as true the allegations in the
complaint “‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.’” Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Second, to survive a motion to
dismiss, the complaint must state a plausible claim for relief. Determining whether the
complaint states a plausible claim for relief is “‘a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.’” Id. (quoting Iqbal, 556
U.S. at 679). Even under this standard, however, the court liberally construes a pro se complaint.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Boykin v. KeyCorp, 521 F.3d 202,
213-14, 216 (2d Cir. 2008).
II.

Facts
On April 24, 2008, the defendants responded to a father-son domestic call at the

plaintiff’s residence. When the police arrived, the plaintiff’s mother and step-father went outside
to speak with them. The plaintiff remained in the residence. Shortly thereafter, a police officer
telephoned the plaintiff and asked if anyone else was in the residence. The plaintiff said there
was no one else present. The officer also asked the plaintiff if he had any firearms. The plaintiff
said that he owned guns and had a hunting license and certification by the Department of
Environmental Protection. The officer told the plaintiff that he needed to come out of the house
and leave his guns behind. The plaintiff was reluctant to comply because he feared being hurt by
the police officers. After receiving assurances that he would not be harmed, the plaintiff locked
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his bedroom door and left the house, locking the back door. The plaintiff was arrested outside
the residence. The defendants then used the plaintiff’s keys to enter the home to conduct a
protective sweep of the residence. Neither the plaintiff nor his parents consented to this search.
III.

Discussion
The defendants move to dismiss the complaint on the grounds that the claims are barred

by the prior pending action doctrine, the claims are untimely, the claim lacks merit, and the
claims are barred by the doctrine of res judicata.
A.

Prior Pending Action

The prior pending action doctrine permits a district court to dismiss a suit that is
duplicative of another federal suit as part of its general power to administer its docket. Curtis v.
Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000). A party has no right to maintain two lawsuits
against the same parties in the same court at the same time. Id. at 135.
The complaint in this case repeats the claims included in Stocking v. Middletown Police
Dept., No. 3:11-cv-587(MPS). That case, although closed in April 2015, was pending in
November 2014, when this case was removed from state court. Thus, the defendants argue that
the prior pending action doctrine authorizes the dismissal of this case.
Although the two cases were pending at the same time, the defendants did not raise this
issue until after the first case had been dismissed. Thus, there are not now two pending actions
in this court. The defendants provide no authority invoking the prior pending action doctrine
after the first case has been dismissed. Indeed, the defendants cite cases directing the court to
give priority to the first filed case and to consider all claims in that case. See Defs.’ Mem., Doc.
#11-1, at 4 (quoting Motion Picture Lab. Technicians Local 780 v. McGregor & Werner, Inc.,
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804 F.2d 16, 19 (2d Cir. 1986)). The Court concludes that the case is better resolved under the
doctrine of res judicata.
B.

Res Judicata

The doctrine of res judicata bars a party from litigating a claim more than once. Under
the doctrine, a final judgment on the merits of an action precludes the parties from relitigating
claims that were or could have been raised in that action. See Allen v. McCurry, 449 U.S. 90, 94
(1980).
In the amended complaint in Stocking v. Middletown Police Dept., No. 3:11-cv587(MPS), the plaintiff names the same three police officers as defendants and challenges the
same protective sweep of his residence. The Court granted summary judgment in favor of the
defendants in the prior action on the ground that all claims were barred by the Supreme Court’s
holding in Heck v. Humphrey, 512 U.S. 477 (1994). See 3:11cv587(MPS) (Ruling on
Defendants’ Motion for Summary Judgment [Doc. #58] and Plaintiff’s Cross-Motion for
Summary Judgment [Doc. #62], Doc. #68, at 5-7). Judgment entered on April 28, 2015, and the
plaintiff did not appeal.
A dismissal under Heck has been held to be a final judgment on the merits. See Morrison
v. Myers, No. 7:14-CV-85, 2015 WL 72129, at * (E.D.N.C. Jan. 6, 2015) (holding that a
dismissal under Heck is a judgment on the merits); see also Fed. R. Civ. P. 41(b) (any dismissal,
except for lack of jurisdiction, improper venue or failure to join a party under Rule 19, “operates
as an adjudication on the merits”). As a final judgment on the merits has been entered on the
claims asserted in this case, the action is barred by res judicata. The defendants’ motion is
granted on this ground.
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C.

Merits of the Claim

Finally, even if the claims were not barred under the doctrine of res judicata, the case
should be dismissed.
The Supreme Court has held that, if a determination favorable to the plaintiff in a section
1983 action “would necessarily imply the invalidity of his conviction or sentence,” the plaintiff
must prove that the conviction or sentence has been reversed on direct appeal or declared invalid
before he can recover damages under section 1983. Heck, 512 U.S. at 486-87. The Court
determined in the prior case that the evidence obtained from the protective sweep was the sole
evidence supporting his conviction. Therefore, a determination in the plaintiff’s favor would call
into question the validity of his conviction. The Court granted the defendants motion for
summary judgment in the prior case because the plaintiff presented no evidence to show that his
conviction has been set aside or declared invalid. See 3:11cv587(MPS) (Doc. #68, at 6-7).
In this complaint, the plaintiff presents no evidence to alter those determinations. Thus,
the case also is also dismissed for the reasons stated in the prior ruling.
IV.

Conclusion
The defendants’ motion to dismiss [Doc. # 11] is GRANTED. The Clerk is directed to

enter judgment and close this case.
SO ORDERED this 29th day of June 2015 at Hartford, Connecticut.

/s/
Michael P. Shea
United States District Judge

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