Davison v. Reyes et al
MEMORANDUM AND ORDER, For the foregoing reasons, defts' 29 and 35 Motions to Dismiss are granted. The complaint is dismissed without prejudice for failure to state a claim. Pltff may re-file this suit only if his convictions are overturned on appeal or are otherwise invalidated as detailed above. The Clerk is directed to enter judgment in accordance with this Memorandum and Order and to close the case. (Ordered by Judge Eric N. Vitaliano on 3/14/2012) c/m Fwd. for Judgment. (Galeano, Sonia)
IN CLERK'S OFFICE
MEMORANDUM & ORDER
11-cv-167 (ENV) (LB)
VANESSA REYES, WILLIAM P. NOLAN,
DAVID KELLNER, and
VIT ALIANO, D.J.
Plaintiff Darnell Davison, proceeding prose, brings this action under 42 U.S.C. § 1983,
alleging violations of his constitutional rights before and during his criminal trial in Supreme Court,
Queens County. Davison's complaint asserts violations of the Due Process Clause of the Fourteenth
Amendment by the investigating police officer (Kellner), the assistant district attorney (DeGaetano),
and two court reporters (Reyes and Nolan). Plaintiff seeks both damages and various forms of
injunctive relief. Defendants now move to dismiss the complaint for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, defendants' motions are
granted in their entirety.
The following facts are drawn from Davison's complaint, documents incorporated by
reference, and related submissions he has made. 1 All reasonable inferences are construed in plaintiff's
While generally limited to the four comers of the complaint on a Rule 12(b)(6) motion, a court may
also consider "statements or documents incorporated by reference and documents on which the
complaint heavily relies." Singh v. Wells, 445 F. App'x 373,375 (2d Cir. 2011). The complaint is
premised on events alleged to have taken place over the course of plaintiffs criminal trial; the
undisputed facts surrounding plaintiffs trial are thus "incorporated by reference" into the complaint.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
favor. See Gorman v. Consol. Edison Coq>., 488 F.3d 586, 591-92 (2d Cir. 2007).
Davison was arrested on November 1, 2007 on suspicion of rape and other sexual misconduct.
He alleges that on that date and during the time leading up to his trial, defendants Kellner and
DeGaetano deliberately destroyed exculpatory evidence that would have "lead to [Davison's]
exoneration." According to plaintiff, not only did Kellner and DeGaetano destroy exculpatory
evidence, but they also conspired to alter trial transcripts for the purpose of convicting plaintiff and
preventing him from "winning a new trial on appeal." But, Davison avers, Kellner and DeGaetano
were not the only ones conspiring. He also alleges that two court reporters on duty during his trial,
Reyes and Nolan, intentionally altered the trial transcript-modifying sections of text and omitting
certain portions of the proceedings altogether. Furthermore, Nolan is alleged to have altered plaintiff's
sentencing report and sentencing transcripts.
On March 26,2009, Supreme Court entered judgment against Davison on a jury verdict,
convicting him of two counts of rape in the first degree, two counts of criminal sexual act in the first
degree, two counts of rape in the third degree, and one count of sexual abuse in the third degree. See
People v. Davison, 937 N.Y.S.2d 864, 864 (2d Dep't 2012). Davison claims the malice and injustice
visited upon him prior to and during his trial deprived him of due process, thereby causing "plaintiff to
sustain an unfair trial, illegal conviction, and deprivation of effective appellate review."
Plaintiff filed his complaint on February 7, 2011. One year later, on February 7, 2012, the
Appellate Division, Second Department affirmed the convictions.
STANDARD OF REVIEW
To withstand a motion to dismiss under Rule 12(b)(6), a complaint "must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."'
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Coq>. v.
!d.; see also Chambers v. Time Warner, lnc., 282 F. 3d 147, 152-53 (2d Cir. 2002).
Twombly. 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. For purposes of Rule 12(b)(6), while a
court must presume the truth of all factual allegations in the complaint, the court is not bound to accept
the truth of legal conclusions couched as factual allegations. Papasan v. Allain,478 U.S. 265, 286, 106
S. Ct. 2932 (1986). Indeed, it is the plaintiffs factual allegations that are the heart of his pleading, as
"a complaint need not pin plaintiffs claim for relief to a precise legal theory," nor does it need to
provide "an exposition of his legal argument." Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011).
Plaintiffs pleading must "give [the defendant] fair notice of what [plaintiffs] claims are and the
grounds upon which they rest." Swierkiewicz v. Sorema N.A., 534 U.S. 506,514, 122 S. Ct. 992
(2002). In analyzing well-pled facts, a court must draw all reasonable inferences in favor of the
plaintiff. See Gorman, 488 F.3d at 591-92.
These standards apply with special force where, as here, a plaintiff is proceeding prose. This
Court must apply a standard more flexible than that used to evaluate pleadings submitted by counsel.
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197 (2007). Davison's pleadings and brief must thus
be construed to "raise the strongest arguments they suggest." Bertin v. U.S., 478 F.3d 489, 491 (2d
Cir. 2007) (quoting Burgos v. Hopkins, 14 F.3d 787,790 (2d Cir. 1994)).
The gravamen of plaintiffs complaint is that defendants denied him due process, and those
constitutional violations resulted in both his wrongful conviction and effective denial of his right to
appeal. Plaintiffs complaint leaves no doubt as to this theory, which he amplifies in his opposition
papers: "The plaintiff was convicted due to the deliberate destruction and fabrication of evidence
before an indictment, and throughout all proceedings including trial because of crimes charged."
Precisely on point, the Supreme Court has made clear that "in order to recover damages for
allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid," a state prisoner suing under§ 1983 must
prove that "the conviction ... has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribWial ... , or called into question by a federal court's issuance of a writ of
habeas corpus." Heck v. Humphrey, 512 U.S. 477,486-87, 114 S. Ct. 2364 (1994). This limitation on
§ 1983 actions arises from their interplay with the federal habeas corpus statute, 28 U.S.C. § 2254.
"When a state prisoner is challenging the very fact or duration of his physical imprisonment, ... his
sole federal remedy is a writ of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct.
1827 (1973). Preiser, Heck, and their progeny mean one thing for a state prisoner, like Davison,
seeking relief Wider§ 1983:
a state prisoner's § 1983 action is barred (absent prior invalidation [of
the underlying conviction])---no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner's suit (state conduct
leading to conviction or internal prison proceedings )--if success in that
action would necessarily demonstrate the invalidity of confinement or its
Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S. Ct. 1242 (2005) (emphasis in original); see also
Edwards v. Balisok, 520 U.S. 641, 648, 117 S. Ct. 1548 (1997); Henry v. Purvis, Ill F. App'x 622,
623-24 (2d Cir. 2004); Amakerv. Weiner, 179 F.3d 48, 51-52 (2d Cir. 1999) (affirming dismissal of
§ 1983 claims under Heck and applying the principles of Heck to also bar claims under 42 U.S.C.
§§ 1981, 1985(3), and 1986).
Though plaintiff does not challenge his conviction outright, "his claims inherently rest on the
alleged unconstitutionality of defendants' investigation and prosecution of his criminal case." Rosato
v. New York Cnty. District Attorney's Office, eta!., No. 09 Civ. 3742,2009 WL 4790849, at *4
(S.D.N.Y. Dec. 14, 2009). Granting relief, therefore, "on any of plaintiffs claims would require
finding that defendants acted in violation of his fundamental due process rights, which would
necessarily impugn his conviction." Id.
Without doubt, that is the case here. Davison alleges that defendants Kellner and DeGaetano
altered and destroyed exculpatory evidence, which resulted in his wrongful conviction. He likewise
claims defendants Reyes and Nolan modified the transcript of his trial in such a manner as to deny him
the opportunity to overturn his conviction on appeal. With respect to the allegations against Kellner
and DeGaetano, these claims "sound under [Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194
(1963)] ... , and therefore do indeed call into question the validity of [Davison's] conviction.
Accordingly, [they are] barred by Heck." Amaker, 179 F.3d at 51.
The claims against the two court reporters are premised on the proposition that the deficiencies
in the trial transcripts were so great that "his constitutional rights on appeal were violated; that [too] is
a direct challenge to the validity of the conviction and the legality of plaintiff's confinement." Tedford
v. Hepting, 990 F.2d 745, 749 (3d Cir. 1993), cert. denied, 510 U.S. 920, 114 S. Ct. 317 (1993); Nash
v. Rabner, No. 06-cv-5540, 2007 WL 776750, at *4-5 (D.N.J. March 12, 2007); see also Pigott v.
Vega, 95 F.3d 1146 (1st Cir. 1996); Rodriguez v. Carhart. 73 F.3d 355 (1st Cir. 1996); St. Germain v.
Isenhower, 98 F. Supp. 2d 1366, 1370-71 (S.D. Fla. 2000) 2
Since Davison's conviction has not been invalidated in any way, and the essence of his
complaints against all defendants lies "within the core of habeas corpus," Preiser, 411 U.S. at 487, he
has no cause of action under§ 1983. His sole remedy for such complaints is under 28 U.S.C. § 2254.
See Heck, 512 U.S. at 489. The instant complaint, therefore, must be, and hereby is, dismissed without
prejudice to a timely re-filing should his convictions be set aside. See Amaker, 179 F.3d at 52. There
is no need to consider defendants' alternative grounds for dismissal. Id.
To the extent Davison seeks to bring a § 1983 claim against the court reporters premised on a
depravation of fair procedures, see Wilkinson, 544 U.S. at 79-80,82, it still would fail because New
York provides adequate post-deprivation procedures to redress alleged discrepancies in transcripts,~
Curro v. Watson, 884 F. Supp. 708,718 (E.D.N.Y. 1995), affd, 100 F.3d 942 (2d Cir. 1996); see also
Krebel v. New York City Dep't of Housing Preservation and Dev., 959 F.2d 395, 404 (2d Cir. 1992).
It is of no moment that plaintiff failed to avail himself of these procedures when he had the chance.
Curro, 884 F. Supp. at 717; Davison, 937 N.Y.S.2d at 865.
For the foregoing reasons, defendants' motions to dismiss are granted. The complaint is
dismissed without prejudice for failure to state a claim. Plaintiff may re-file this suit only if his
convictions are overturned on appeal or are otherwise invalidated as detailed above.
The Clerk is directed to enter judgment in accordance with this Memorandum and Order and to
close the case.
Dated: Brooklyn, New York
ERIC N. VITALIANO
United States District Judge
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