Dove v. Pesce et al

Filing 5

MEMORANDUM AND ORDER: The Court grants plaintiff's 2 request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and dismisses the complaint for failure to state a claim upon which relief may be granted. Plaintiff� 39;s request for injunctive relief is denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. SO ORDERED by Judge Allyne R. Ross, on 10/30/2013. C/mailed to pro se Plaintiff. (Latka-Mucha, Wieslawa)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

OCT 3 0 2013

BROOKLYN OFFICE

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DONALD M. DOVE,

MEMORANDUM AND ORDER
13 CV 5766 (ARR)

Plaintiff,
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NOT FOR ELECTRONIC
OR PRINT PUBLICAnON

HON. SUPREME COURT J. PESCE; :
DISTRICT ATTORNEY KINGS COUNTY,
CHARLES J. HYNES; ASSISTANCE [sic]
DISTRICT ATTORNEYS, LEONARD
JOBLOVE; THOMAS M. ROSS; ALLISON
AGEYEV A; POLICE OFFICER JOHN DOE,
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Defendants.

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ROSS, United States District Judge:
Plaintiff Donald M. Dove, currently incarcerated at Elmira Correctional Facility, brings
this pro se complaint pursuant to 42 U.S.C. § 1983. The Court grants plaintiffs request to
proceed in Jorma pauperis pursuant to 28 U.S.C. § 1915, and dismisses the complaint for failure
to state a claim upon which relief may' be granted:.'
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On or about April 17, 1986, plaintiff was convicted in Kings County of criminal
possession of a weapon in the third degree, and sentenced to a term of incarceration of three to
si)( years. Compl. at ~ IV; People v. Dove, 130 A.D.2d 587; 514 N.Y.S.2d 1015 (1987). On
January 14, 2010, plaintiff was convicted of ~~ault in the second degree in Broome County.
Compl. at ~ IV; People v. Dove, 86 A.D.3d 715; 926 N.Y.S.2d 758 (2011). Plaintiff alleges that
his Kings County conviction for criminal possession of a weapon in the third degree was
incorrectly used as a predicate to sentence him as a persistent felony offender following the
Broome County conviction. Plaintiff seeks monetary damages and an injunction e}(punging his
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conviction for criminal possession of a weapo9.in the third degree. Compl. at ~ V.

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Standard of Review
Under 28 U.S.C. § 1915A, a district court "shall review, before docketing, if feasible or,
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in any event, as soon as practicab~e after docketing, a complaint in a civil action in which a
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pnsoner seeks redress from a governmental entity or officer or employee of a governmental
entity." 28 U.S.C. § 1915A. Upon review, a district court shall dismiss a prisoner's complaint
sua sponte if the complaint is "frivolous, malicious, or fails to state a claim upon which relief
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may be granted; or seeks monetary relief from a'defendant who is immune from such relief." Id.;

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Liner v. Goord, 196 F.3d 132, l34 &

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(2d 9~. 1999)(noting that under the Prison Litigation
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Reform Act, sua sponte dismissal 'of frivoldu~pri'soner complaints is not only permitted but
mandatory); see also Tapia-Ortiz v. Winter, 185 F.3d 8, 11 (2d Cir. 1999).
Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of
"all nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum Co.,
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621 F.3d 111, 123 (2d Cir. 201O)'{Gitjng Ashcroftv. Igbal. 556 U.S. 662 (2009)). A complaint
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must plead sufficient facts to "state a claim to relief that is plausible on its face." Bell At!. Corp.
v. Twombly, 550 U.S. 544,570 (2007).
It is axiomatic that pro se complaints are held to less stringent standards than pleadings

drafted by attorneys, and the Court is required to read the plaintiffs pro se complaint liberally
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and interpret it raising the stronge$t trrgumen~ i~,suggests. Erickson v. Pardus, 551 U.S. 89, 94
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(2007); Hughes v. Rowe, 449 U.S. 5,9 (1980); Sealed Plaintiffv. Sealed Defendant #1,537 F.3d
185, 191-93 (2d Cir. 2008).
Discussion
In order to maintain a § 1983 action, plaintiff must allege two essential elements. First,
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"the conduct complained of must have beenctDn'lmitted by a person acting under color of state
law." Pitchell v. Callan, 13 F.3d 545,547 (2d Cir. 1994). Second, "the conduct complained of
must have deprived a person of rights, privileges or immunities secured by the Constitution or
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laws of the United States." Id. "Section 1983 itself creates no substantive rights; it provides only
a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13
F.3d 515,519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808,816 (1985)).
Heck v. Humphrey
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A state prisoner's § 1983 action is barred if success in that action would necessarily
demonstrate the invalidity of confinement or its duration. 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 wh9se~~awfulne~~ 'fould render a conviction or sentence
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invalid," a state prisoner suing unde~ § 1983h,itist prove that "the conviction or sentence has
been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal .
. . ,or called into question by a federal court's issuance ofa writ of habeas corpus." Heck v.
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Humphrey, 512 U.S. 477,486-81 (1994); see also Wilkinson v. Dotson. 544 U.S. 74, 81-82
(2005);

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Peralta v. Vasguez, 467 F.3d 98, 100 (2d Cir. 2006). The proper vehicle to
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request relief from illegal confinemenfis nqt § J983, but rather a habeas petition. See Ingram v.
Herrick, 475 F. App'x 793, 794 (2d Cir. 2012) (citing McKithen v. Brown. 481 F.3d 89, 102 (2d
Cir. 2007)). On the other hand, "if the district court determines that the plaintiff's action, even if
successful, will not demonstrate the invalidity of any outstanding criminal judgment against the
plaintiff, the action should be allowed to proceed." Heck. 512 U.S. at 487 (emphasis in original).
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Plaintiff was convicted of two separate offenses following state court trials in both Kings
and Broome counties. Plaintiff is still incarcerated for those convictions, and to date, he has been
unsuccessful in challenging his convictions. Here, plaintiff is directly challenging his underlying
convictions by arguing that (1) his first conviction for criminal possession of a weapon was based
on an illegal stop and frisk, and (2) his

senten~eof twenty
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years to life following his second

conviction for assault was in clear error. Compi. at ~ 5. If any of these matters were decided in

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plaintiffs favor, it would call into question the validity of his underlying convictions for which
he is currently serving time. Thus, in accordance, with Heck his § 1983 causes of action must be
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dismissed.

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Individual Defendants
Moreover, alternative bases exist to dismiss plaintiffs complaint as a matter oflaw.
Plaintiffs claim against Judge Pe~ce m~st be dismissed, as judges have absolute immunity for
acts performed in their judicial capacities. Mireles v. Waco, 502 U.S. 9, 11 (1991); Stump v.
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Sparkman, 435 U.S. 349, 356 (l978)~Dupree,vIBivona, No. 07-4599-cv, 2009 WL 82717, at *1
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(2d Cir. Jan. 14,2009). This absolute "judicial immunity is not overcome by allegations of bad
faith or malice," nor can a judge "be deprived of immunity because the action he took was in
error ... or was in excess of his authority." Mireles, 502 U.S. at 11, 13 (quoting Stump, 435
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U.S. at 356); see also McHenry v, Trager, No.1 OJCV 5242, 2008 WL 115391, at *1 (E.D.N.Y.
Jan. 10, 2008). Here, Judge Pesce's sentenciQ,g of plaintiff was clearly performed in his judicial
capacity in connection with the state criminal proceedings, and thus, plaintiff s claims are
foreclosed by absolute immunity ..
Further, to the extent plaintiff brings suit against Charles J. Hynes in his official capacity,
any such suit is barred by the Eleve~th Ame.ndm~\1t. As the Second Circuit has held, "[w ]hen
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prosecuting a criminal matter, district attorney in New York State, acting in a quasi-judicial
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capacity, represents the State not the county." Ying Jing Gan v. City ofN.Y .. 996 F.2d 522, 536
(2d Cir. 1993) (citation omitted). Accordingly, a district attorney faced with a suit for damages
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stemming from acts taken in "his official capacity ... is entitled to invoke the Eleventh
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Amendment immunity belonging to the state:'; Id. at 529 (citations omitted); accord McFadden v.
City ofN.Y .. No. 10-CV-1176, 2010 WL 1930268, at *1-2 (E.D.N.Y. May 11,2010)
(dismissing section 1983 claims against Queens County District Attorney). To the extent plaintiff

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seeks to bring suit against Hynes in his individual capacity, the complaint does not plead
sufficient facts showing his "personal involvement," Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.
2006), in the criminal prosecution of plaintiff.
In addition, "prosecutors ate :absolutely immune from liability under § 1983 for their
conduct in 'initiating a prosecution and in presenting the State's case,' ... insofar as that conduct
is 'intimately associated with the judicial phase of the criminal process.' " Burns v. Reed. 500
U.S. 478,486 (1991) (quoting Imbler v. Pachtmari. 424 U.S. 409, 430-31 (1976)); see also
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Shmueli v. City ofN.Y., 424 F.3d'231; 236~37. .( Cir. ,2005); Bankhead v. Chu No. 10-CV(2d
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510,2010 WL 935371, at *2 (E.D.N.Y. Mar. 11,2010) (dismissing claim for monetary damages
against the assistant district attorney in charge of plaintiffs criminal case, based on immunity).
Accordingly, to the extent that plaintiff seeks to bring a claim against Assistant District Attorneys
Joblove, Roos, and Ageyeva for their role in prosecuting his criminal action, they are protected
by absolute immunity.
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Finally, plaintiff fails to make any factual allegations against defendant John Doe officer.
Iqbal, 556 U.S. at 678 (the complaint must contain sufficient factual matter, accepted as true, to
state a claim that is plausible on its face).
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C6nc1usion
Accordingly, the comphlint isdismissed'fot failure to state a claim upon which relief may
be granted. 28 U.S.C. § 1915A. Plaintiffs request for injunctive relief is denied. The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and
therefore in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States,
369 U.S. 438, 444-45 (1962).
SO ORDERED.

/S/ Judge Allyne R. Ross
ALL YNE (. ROSS
United States District Judge
Dated: October 30,2013
Brooklyn, New York