Geer v. Brown et al

Filing 6

MEMORANDUM AND ORDER: Plaintiffs complaint is dismissed for failure to state a claim upon which relief may be granted, 28 U.S.C. § 1915A(b)(1), and, as to Holder, because it seeks monetary relief from a defendant who has absolute judicial immun ity, id. § 1915A(b)(2). However, as stated above, Geer may file an amended complaint as to certain claims within thirty (30) days of this Order. If he fails to do so, the Court shall enter judgment as to those claims. The Court certifies pursuan t to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438,444-45 (1962). Ordered by Chief Judge Carol Bagley Amon on 6/30/2015. c/m to pro se Pltf (Fernandez, Erica)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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PAKENAUTH GEER,

NOT FOR PUBLICATION
MEMORANDUM & ORDER
14-CV-6172 (CBA)(LB)

Plaintiff,
-againstRICHARD BROWN, District Attorney;
JACK WARSA WSKY, Ass. Dis. Attorne(;
CATHERINE TABINSKY, C. Reporter,
Defendants.

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AMON, Chief United States District Judge:

Plaintiff Pakenauth Geer, currently incarcerated at Washington Correctional Facility, in
Comstock, New York, brings this prose complaint under 42 U.S.C. § 1983. Geer's request for
in forma pauperis status, pursuant to 28 U.S.C. § 1915, is granted for the limited purpose of this
Order. For the reasons set forth below, Geer's complaint is dismissed, but he is granted leave to
amend his complaint.
BACKGROUND
In this complaint, Geer makes many of the same allegations he made in a separate
lawsuit, which the Court dismissed on January 23, 2014. See Geer v. Pheffer, No. 14-cv-2829
(E.D.N.Y. Jan. 23, 2015), ECF No. 6. The overlapping allegations are as follows. First, he
alleges that Audrey Pheffer-identified as "chief clerk ... at Queens County Clerk's Office"violated unspecified rights under the United States Constitution by refusing to provide him with
copies of documents relating to his sentencing and imprisonment, pursuant to a Freedom of
Information Law ("FOIL") request. (Comp!. at 17, 19.) Second, Geer alleges that Jack
Warsawksy, an assistant district attorney, Richard Brown, the Queens County District Attorney,
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Geer also names "Audrey Pheffer" and "Kenneth Holder" as additional defendants in the body of his complaint.

and court reporter Catherine C. Tabinsky, conspired to falsify a transcript in his case. (Comp!. at
5-6.) That, Geer appears to allege, resulted in the extension of his sentence to seventeen years.
(Id.) Geer claims his original sentence, imposed on April 4, 2005, was to a "12 to 17 years split
bid, with (parole release within 5 five years)." (Id. at 6, 9.)
In the instant complaint, Geer makes additional claims as well. First, he alleges that "the
D.A."-although it is unclear whether he means Brown or Warsawsky-wrote a "false report"
on November 23, 2001. (Id. at 4.) He so surmises because although the D.A. wrote in his report
that "police recovered two machetes, a kitchen knife, pieces of wood with fiber, and a green shirt
with blood stains" from Geer's home, he "doesn't have any finger print, blood sample or any
DNA evidence from those items." (Id.) Second, he claims Brown somehow prevented him from
filing a motion of some unspecified sort "to any of the Courts in New York state." (Id. at 5.)
Geer does not elaborate on this allegation. (.hl) He mentions in a Jetter attached to his complaint
that "[t]he officers and the officials" are--by way of"bogus tickets and heavy penalties""prevent[ing] [Geer] from filing [his] legal documents to obtain" his original sentence, with its
"parole release within ... five years." (Comp!. at 8.) Third, he argues that Brown, Tabinsky, and
Judge Kenneth Holder somehow wrongfully denied Geer's motion to set aside his sentence
without a hearing. (Id. at 6.) Fourth, he appears to claim, based on a letter appended to his
complaint, that his mail is being interfered with, including letters sent in an effort to obtain a
manual on prose prison litigation. (Id. at 15.) Geer, as in the earlier complaint, seeks (I) release
from his allegedly illegal imprisonment and (2) money damages totaling $10 million. (Comp!. at
7.)

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STANDARD OF REVIEW
Under the Prison Litigation Reform Act ("PLRA"), a district court "shall review, before
docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity." 28 U.S.C. § l 915A. Upon review, a district court shall dismiss a
prisoner's complaint sua sponte ifthe complaint is "frivolous, malicious, or fails to state a claim
upon which relief may be granted; or seeks monetary relief from a defendant who is immune
from such relief." Id.; Liner v. Goord, 196 F.3d 132, 134 & n.l (2d Cir. 1999) (noting that sua
sponte dismissal of frivolous prisoner complaints, pursuant to the PLRA, 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 well-pleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621F.3d111, 123 (2d Cir. 2010) (citing Ashcroft v. Igbal, 556 U.S. 662 (2009)).
A complaint must plead sufficient facts to "state a claim to relief that is plausible on its face."
Bell Atl. Com. 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 construe the plaintiffs pro se complaint liberally
and interpret it to raise the strongest arguments it fairly suggests. Erickson v. Pardus, 551 U.S.
89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980). Liberal construction is particularly
important when a prose litigant's pleadings allege civil rights violations. Sealed Plaintiffv.
Sealed Defendant#!, 537 F.3d 185, 191-93 (2d Cir. 2008). Finally, a prose complaint should
not be dismissed without granting a pro se plaintiff leave to amend "at least once when a liberal

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reading of the complaint gives any indication that a valid claim might be stated." Gomez v.
USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (internal quotation marks omitted).
DISCUSSION
I. Res Judicata

Geer's claims regarding his FOIL requests and the falsification of court transcripts are
barred by the doctrine of res judicata and therefore must be dismissed. The same is true of
Geer's request for release from his allegedly illegal imprisonment. A district court has the power
to dismiss prose complaints sua sponte on res judicata grounds. Salahuddin v. Jones, 992 F.2d
447, 449 (2d Cir. 1993); see also Rollock v. LaBarbera, 383 F. App'x 29, 30 (2d Cir. 2010)
(summary order) (affirming district court's sua sponte dismissal of complaint on res judicata
grounds). Res judicata bars subsequent litigation if: "(I) the previous action involved an
adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with
them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in
the prior action." Monahan v. N.Y.C. Dep't ofCorrs., 214 F.3d 275, 285 (2d Cir. 2000).
Here, the requirements of res judicata are met. First, a dismissal pursuant to§ 1915,
although not technically a dismissal on the merits, can "have a res judicata effect on
frivolousness determinations" when both the first and second complaint are pro se. Cieszkowska
v. Gray Line New York, 295 F.3d 204, 205-06 (2d Cir. 2002) (finding that second prose
complaint based on same facts was barred by res judicata where original pro se complaint was
dismissed for failure to state a claim under § 1915). The second and third requirements are
clearly met. Geer is the plaintiff in both cases, and he brings precisely the same claims in this
action that he asserted in the prior action. (Compare Docket Entry I with Geer v. Pheffer, No.
14-cv-2829 (E.D.N.Y. Apr. 28, 2014), ECF No. I.) Accordingly, the FOIL claim, the claim

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related to transcript-falsification, and Geer's request for release from what he claims is illegal
imprisonment are barred by the doctrine of res judicata. Accordingly, these claims are dismissed
for failure to state a claim on which relief may be granted. 28 U.S.C. § 1915A(b)(l).
II. The False Report Claim
Geer's false report allegation also fails to state a claim. The Court interprets that
allegation to constitute a§ 1983 falsified evidence claim. See Zahrey v. Coffey, 221F.3d342,
349 (2d Cir. 2000) (identifying, as the basis for a cognizable § 1983 claim, the due process right
"not to be deprived of liberty as a result of the fabrication of evidence by a government officer
acting in an investigating capacity"). That claim is barred by the Supreme Court's decisions in
Preiser v. Rodriguez and Heck v. Humphreys. In Preiser, the Supreme Court held that§ 1983 is
not a proper means for a state prisoner to "challeng[e] the very fact or duration of ... physical
imprisonment," as opposed to the conditions of his imprisonment. 411U.S.475, 499-500 (1973);
see also Poventud v. City ofNew York, 750 F.3d 121, 128 (2d Cir. 2014) (outlining Preiser
doctrine). For such challenges, the "sole federal remedy is a writ of habeas corpus." AbdulHakeem v. Koehler, 910 F.2d 66, 69 (2d Cir. 1990) (quoting Preiser, 411 U.S. at 500) (internal
quotation marks omitted). Subsequently, in Heck v. Humphrey, 512 U.S. 477 (1994), the
Supreme Court held further that a § 1983 suit for money damages grounded in an allegedly
unlawful criminal sentence must comply with what has come to be called the "favorable
termination" rule. See Foster v. Diop, No. 11-cv-4731, 2013 WL 1339408, at *7 (E.D.N.Y. Mar.
31, 2013) (citing Peralta v. Vasquez, 467 F.3d 98, JOO (2d Cir. 2006)). That rule states:
[I]n 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
§ 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance ofa writ of habeas corpus, 28
u.s.c. § 2254.

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Peralta, 467 F.3d at 102 (quoting Heck, 512 U.S. at 486-87). Heck applies to cases alleging
conviction on the basis of falsified evidence. See Amaker v. Weiner, 179 F.3d 48, 51 (2d Cir.
1999).
To the extent Geer seeks release from prison, he must file a federal habeas petition,
pursuant to 28 U.S.C. § 2254. 1 See Preiser, 411 U.S. at 499-500. As for money damages, for
Geer to succeed, he would have to demonstrate that the falsified evidence in the D .A.' s report
deprived him of his liberty, that is, resulted in his conviction and imprisonment. See Zahrey, 221
F.3d at 349. That would "necessarily imply the invalidity" of his conviction and sentence. See
Heck, 512 U.S. at 487. Geer has not put forth any allegations that demonstrate that his
conviction or sentence has already been invalidated in one of the ways set forth in Heck.
Therefore, Heck and Preiser bar Geer's claim, which must be dismissed for failure to state a
claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(l).
III. The Hearing Claim
Geer' s claim that various defendants wrongfully denied his motion to set aside his
sentence without a hearing is dismissed. First, like his false report claim, this claim cannot
support a prayer for relief from imprisonment. For that, Geer must rely on his habeas petition.
See Preiser, 411 U.S. at 499-500. As for money damages, Brown and Tabinsky could not have
"denied [Geer's] motion to set aside [his] sentence without any hearing." (Compl. at 6.) Only
Judge Holder could have done so. However, Judge Holder is absolutely immune from suit. See
Mireles v. Waco, 502 U.S. 9, 11 (1991) ("Like other forms of official immunity, judicial
immunity is an immunity from suit, not just from ultimate assessment of damages."). Neither of
the two circumstances that can override judicial immunity are present here. See id. at 11-12
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Geer has, in fact, done so. See Geer v. People of the State of New York, No. 14-cv-5216. This
order does not affect or make any representation as to the merit of plaintiffs habeas petition.

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(stating that judicial "immunity is overcome in only two sets of circumstances": (1) "liability for
nonjudicial actions" and (2) liability for "actions, though judicial in nature, taken in the complete
absence of all jurisdiction"). Accordingly, this claim must be dismissed in part for failure to
state a claim and in part because it seeks monetary relief from a defendant who is protected from
such a claim by absolute immunity. 28 U.S.C. §§ 1915A(b)(l)-(2).
IV. Brown and Access to the Courts
Geer's allegation that Brown has prevented him from filing motions in "any" New York
courts is dismissed for failure to state a claim. To maintain a § 1983 action, plaintiff must allege
that the conduct at issue: ( 1) was "committed by a person acting under color of state Jaw" and (2)
"deprived [plaintiff] ofrights, privileges, or immunities secured by the Constitution or Jaws of
the United States." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan,
13 F.3d 545, 547 (2d Cir. 1994)) (internal quotation marks omitted). The Court interprets Geer
to raise a First Amendment claim alleging denial of access to the courts. "To state a denial of
access claim, a plaintiff must plausibly allege that a defendant 'hindered his efforts' to pursue a
non-frivolous legal claim." Cancel v. Amakwe, 551 F. App'x 4, 6 (2d Cir. 2013) (quoting Lewis
v. Casey. 518 U.S. 343, 351 (1996)). Here, Geer has only asserted in conclusory fashion that
Brown blocked his access to the courts. Accordingly, his claim is dismissed for failure to state a
claim. 28 U.S.C. § 1915A(b)(l).
V. Prison Mail Claims
Lastly, Geer claims that unnamed officials are interfering with his prison mail.
Specifically, Geer alleges that "officers and the officials" are-by way of"bogus tickets and
heavy penalties"-"prevent[ing] [him] from filing [his] legal documents to obtain" his original
sentence, with its "parole release within ... five years." (Campi. at 8.) He also claims that the

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"business officer" returned his legal mail noting that letters sent to the Search Department at the
Queens County Clerk's Office are not considered "legal mail." (Id. at 15.) Lastly, he claims that
the "Albany postal service" returned letters he mailed seeking a manual on pro se prison
litigation. (IQ)
"Interference with legal mail implicates a prison inmate's rights to access to the courts
and free speech as guaranteed by the First and Fourteenth Amendments to the U.S.
Constitution." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). "Restrictions on prisoners'
mail are justified only if they further one or more of the substantial governmental interests of
security, order, and rehabilitation ... and must be no greater than is necessary or essential to the
protection of the particular governmental interest involved." Id. (internal quotation marks
omitted). However, to state a claim for denial of access to the courts "a plaintiff must
demonstrate that a defendant caused 'actual injury' ... , i.e., took or was responsible for actions
that 'hindered [a plaintiffs] efforts to pursue a legal claim."' Monsky v. Moraghan, 127 F.3d
243, 247 (2d Cir. 1997) (quoting Lewis, 518 U.S. at 351-52). Furthermore, "a plaintiff must
allege not only that the defendant's alleged conduct was deliberate and malicious .... "Cancel v.
Goord, No. OO-cv-2042, 2001 WL 303713, at *4 (S.D.N.Y. Mar. 29, 2001). "[T]he inmate must
show that prison officials regularly and unjustifiably interfered with the incoming legal mail."
Davis, 320 F.3d at 351 (internal quotation marks omitted).
Here, Geer's claim regarding the "business officer" fails to state a claim. The facts
alleged in Geer's complaint state only that the officer alerted Geer to the fact that letters sent to
the Queens County Clerk's Office Search Department do not constitute "legal mail." That is a
correct statement of the definition of"legal mail." See Guillory v. Ellis, No. I 1-cv-600, 2014
WL 4365274, at *15 n.17 (N.D.N.Y. Aug. 29, 2014) (defining legal mail "as correspondence

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with attorneys, legal representatives, and legal services organizations"). Second, the mere fact
that the post office in Albany has returned Geer' s mail does not so much as raise an inference of
any wrongdoing. For example, it is not clear that Geer has included the required postage. Third,
Geer does not explain how the "bogus tickets and heavy penalties" he mentions prevent him
from filing legal documents. (Comp!. at 8.) It is conceivable a claim might arise from the use of
some system of arbitrary fines to deter or prevent the transmission of mail from prison.
However, on the facts as pleaded, Geer does not make that claim, let alone provide facts
sufficient to make a claim of that nature plausible. Accordingly, that claim, too, must be
dismissed for failure to state a claim. 28 U.S.C. § 1915A(b)(l).

VI. Leave to Amend
Although the Court dismisses Geer's complaint in full, it grants him leave to amend his
prison mail interference and denial of access to the courts claims-and only those claims. In the
case of his other claims, the Court need not afford Geer an opportunity to amend his complaint
because, for the reasons stated above, "the court can rule out any possibility ... that an amended
complaint [on those claims] would succeed in stating a claim." Gomez, 171 F.3d at 796. With
respect to the claims Geer has permission to re-plead, he must, in amending his complaint, cure
the errors identified in the foregoing discussion. Should Geer choose to file an amended
complaint, he must do so within thirty (30) days of this Order. He is advised that an amended
complaint replaces the complaint currently pending before the Court in its entirety and therefore
must include all of his claims and factual allegations against all of the defendants against whom
he wishes to proceed. He should also be sure to include all defendants at the top of his
complaint. The amended complaint must be captioned "First Amended Complaint" and bear the
same docket number as this Order.

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CONCLUSION

Plaintiffs complaint is dismissed for failure to state a claim upon which relief may be
granted, 28 U.S.C. § 1915A(b)(I), and, as to Holder, because it seeks monetary relief from a
defendant who has absolute judicial immunity, id.§ 1915A(b)(2). However, as stated above,
Geer may file an amended complaint as to certain claims within thirty (30) days of this Order. If
he fails to do so, the Court shall enter judgment as to those claims. The Court certifies pursuant
to 28 U.S.C. § I 915(a)(3) that any appeal from this order would not be taken in good faith and
therefore in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United
States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

Dated: Brooklyn, New York
June 3 0
, 2015

s/Carol Bagley Amon
I
- Carol Bagley ~
Chief United States District Judge

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