DiMartino v. Pulice et al

Filing 24

ORDER: For the reasons set forth in the attached order, Defendants' Motion to Dismiss (Doc. No. 15 ) is hereby GRANTED. This case is hereby dismissed with prejudice. The Clerk shall close this case. It is so ordered. Signed by Judge Alvin W. Thompson on 3/13/17. (Rafferty, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
-------------------------------x
TERRY J. DIMARTINO,
:
:
Plaintiff,
:
:
v.
:
:
ERIN PULICE, SARA HAMILTON,
:
UNITED STATES OF AMERICA
:
INTERNAL REVENUE SERVICE,
:
JOHN KOSKINEN, JASON M. SCHEFF,:
and ALVIN W. THOMPSON,
:
:
Defendants.
:
-------------------------------x

CRIM. NO. 3:16cv378(AWT)

ORDER DISMISSING CASE
For the reasons set forth below, Defendants’ Motion to
Dismiss (Doc. No. [15]) is hereby GRANTED.

This case is hereby

dismissed with prejudice.
On August 14, 2014, a grand jury returned an eight-count
indictment against Terry J. Dimartino, charging him with one
count of obstructing and impeding the due administration of the
Internal Revenue laws, in violation of 26 U.S.C. § 7212(a); two
counts of filing false tax returns, in violation of 26 U.S.C. §
7206(1); and five counts of willfully failing to file tax
returns, in violation of 26 U.S.C. § 7203.

See United States v.

DiMartino, No. 3:14-CR-175(AWT), Doc. No. 1.
On March 7, 2016, nine days before the trial in his
criminal case began, DiMartino filed this civil lawsuit against

Erin B. Pulice and Jason M. Scheff, the prosecutors in his
criminal case, and Sara Hamilton, one of the IRS case agents.
DiMartino sued all three defendants in their individual
capacities.

In the complaint, DiMartino alleges, in conclusory

fashion, that all three defendants committed “bodily injury by
assault and unlawful deprivation of property under color of
law.”

Compl. at 2.

He further alleges that the prosecutors and

the case agent have “aided and abetted in the loss of liberty,
and personal property and ha[ve] caused the alienation of
clients, both established and potential, which has diminished
[his] ability to earn a living.”

Compl. at 2.

He claims that

their unspecified “acts and actions have caused injury and great
mental anguish resulting in pain and suffering.”

Compl. at 2.

With respect to the IRS case agent, he claims that “she took
upon herself to draft the alleged evidence, upon which the
unlawful and illegal warrant issued by the court.”

Compl. at 2.

DiMartino has filed an amended complaint, but he makes no
reference to these three defendants in that amended complaint.
See Doc. No. 14.
On March 28, 2016, the jury returned its verdict and
DiMartino was found guilty on all eight counts of the
indictment.

See United States v. DiMartino, Doc. No. 233.

-2-

Prosecutors have absolute immunity from suits challenging
actions they take within the scope of their duties.

See

Cleavinger v. Saxner, 474 U.S. 193, 200 (1985); see also Hartman
v. Moore, 547 U.S. 250, 261-62 (2006) (noting that absolute
prosecutorial immunity protects federal prosecutors facing
Bivens actions); Imbler v. Pachtman, 424 U.S. 409, 427 (1976)
(prosecutorial activities that are intimately associated with
the judicial process are protected by absolute immunity).

This

immunity is not limited to activity taking place in the
courtroom.

Rather, it encompasses “all of their activities that

can fairly be characterized as closely associated with the
conduct of litigation or potential litigation[.]”
United States, 798 F.2d 565, 571-72 (2d Cir. 1986).

Barrett v.
With

respect to defendants Pulice and Scheff, it is clear from the
allegations in the complaint that plaintiff DiMartino is
challenging activities closely associated with their conduct in
connection with the criminal case against him.

Thus defendants

Pulice and Scheff are absolutely immune from suit.
Prosecutors acting in an investigative capacity and federal
agents are immune from civil suit for conduct that does not
violate clearly established constitutional or statutory rights.
See Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)).

In the context of a

motion to dismiss, “qualified immunity protects government
-3-

officials from liability for civil damages ‘unless a plaintiff
pleads facts showing (1) that the official violated a statutory
or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.’”

Wood v.

Moss, 134 S. Ct. 2056, 2066-67 (2014).
With respect to defendant Hamilton, DiMartino has not
alleged facts sufficient to state a claim for a violation of a
clearly established constitutional right, so she is protected
from this lawsuit by qualified immunity.

Moreover, even if

DiMartino’s complaint is construed to allege that Hamilton
violated his constitutional rights in the course of discharging
her duties, any such claim would be barred by the rule in Heck
v. Humphrey, 512 U.S. 477 (1994), because DiMartino’s conviction
in the criminal case has not been overturned or invalidated.
See Channer v. Mitchell, 43 F.3d 786, 788 (2d Cir. 1994)
(dismissing Section 1983 claims where petitioner claimed he was
unconstitutionally convicted as a result of police officers’
perjury and coercion of witnesses, because petitioner had failed
to establish that his conviction had been reversed); Kaminski v.
Hayes, No. 3:06-CV-1524-CFD, 2009 WL 3193621, at *6 (D. Conn.
Sept. 30, 2009) (finding Fourth Amendment claims challenging
search and seizure were barred by Heck where conviction had not
been overturned or invalidated); Fernandez v. Alexander, 419 F.
Supp. 2d 128, 133 (D. Conn. 2006) (granting defendants’ motions
-4-

to dismiss claims asserting lack of probable cause and
misleading statements in search warrant affidavits pursuant to
Heck because a ruling in plaintiff’s favor would necessarily
call into question the validation of his conviction).
Signed this 13th day of March, 2017, at Hartford, Connecticut.

___/s/ AWT___________________
Alvin W. Thompson
United States District Judge

-5-