Cabeza v. Thompson et al
MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis and DISMISSING the Complaint for failure to state a claim on which relief may be granted, pursuant to 28 U.S.C. § 1915A(b )(1 ). The court certifie s pursuant to 28 U.S.C. § l 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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). So Ordered by Judge Nicholas G. Garaufis on 3/18/2016. (c/m to pro se; fwd'd for jgm) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
16-CV-1079 (NGG) (LB)
KENNETH P. THOMPSON, District Attorney of
Kings County; MARK FELDMAN, Chief
Assistant to the District Attorney of Kings
County; CHARLES J. HYNES, former District
Attorney of Kings County; MICHAEL F.
VECCHIONE, former Assistant District Attorney
of Kings County; SEAN COURTNEY, Assistant
Attorney General of the State of New York;
VICTOR A. BARALL, Assistant District
Attorney of Kings County; LEONARD
JOBLOVE, Assistant District Attorney of Kings
County; SHULAMIT ROSENBLUM NEMEC,
former Assistant District Attorney of Kings
County; and JOHN O'MARA, Assistant District
Attorney of Kings County,
NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Robert Cabeza, who is currently incarcerated at the Sullivan Correctional
Facility, filed this prose action on February 29, 2016, requesting injunctive and declaratory
relief and monetary damages, pursuant to 42 U.S.C. §§ 1981, 1983, and 1985. (Comp!. (Dkt. 1).)
Plaintiff has also moved for leave to proceed in forma pauperis. (Mot. for Leave (Dkt. 2).) The
court GRANTS Plaintiffs motion to proceed in forma pauperis. For the following reasons,
however, the court DISMISSES the Complaint pursuant to 28 U.S.C. § 1915A(b)(l).
On April 14, 1993, Plaintiff, a foi:mer New York City police officer, was convicted
following a jury verdict of murder in the second degree, attempted murder in the second degree,
two counts of assault in the first degree, and two counts of robbery in the first degree. People v.
Cabeza, 634 N.Y.S. 2d 384 (App. Div. 1995). He is currently sentenced to a term of
imprisonment of thirty-three and one-third years to life. (Comp!. if 2.)
On March 27, 2012, Plaintiff filed a motion for a writ of error coram no bis. (Id.
if 25.) In brief, Plaintiff argued that appellate counsel was ineffective for failing to attack trial
counsel's competence. (Id. iii! 25-48.) Specifically, Plaintiff asserted that his trial counsel's
performance was deficient because trial counsel failed to seek dismissal of the indictment on the
ground that the evidence rested on impermissible hearsay. (Id.) On October 3, 2012, the state
appellate court denied Plaintiffs motion. People v. Cabeza, 951N.Y.S.2d 406, 407 (App.
On May 31, 2013, Plaintiff filed a New York Criminal Procedure Law § 440 motion
("§ 440 motion") and re-argued the same claims that he presented in his motion for a writ of
error coram nobis. (Comp!. iii! 49-66.) In addition, Plaintiff sought disclosure of the grand jury
minutes. (kl) By order dated February 28, 2013, Plaintiffs motion was denied in its entirety.
(See Decision (Comp!., Ex. K).)
On January 28, 2014, Plaintiff filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, which this court denied as time-barred on July 22, 2014. (See Order, Cabeza v.
Griffin, No. 14-CV-00733 (NGG) (LB) (Dkt. 6).) The United States Court of Appeals for the
Second Circuit dismissed Plaintiffs appeal by mandate dated December 9, 2014. (See Mandate
(Dkt. 9 in No. l 4-CV-00733).)
In the present action, Plaintiff alleges that the prosecution committed misconduct by
presenting legally insufficient evidence to the grand jury. Plaintiff seeks: (I) to have this court
vacate the denial of his § 440 motion; (2) a declaration that Defendants violated Plaintiffs rights
to equal protection and due process; (3) to have Defendants produce the grand jury minutes from
Plaintiffs underlying state criminal action; and (4) attorneys' fees and costs.
M if 97.)
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 employee ofa governmental entity." 28 U.S.C. § 1915A(a). Upon
review, a district court shall dismiss a prisoner 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.§ 1915A(b); Abbas v.
Dixon, 480 F.3d 636, 639 (2d Cir. 2007); see also Linerv. Goord, 196 F.3d 132, 134 n.l
(2d Cir. 1999) (noting that under the Prison Litigation Reform Act, sua sponte dismissal of
frivolous prisoner complaints is not only permitted but mandatory).
At the pleadings stage of the proceeding, the court must assume the truth of "all wellpleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum
Co., 621F.3d111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (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).
Finally, 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 and interpret it
as raising the strongest arguments it suggests. See Sealed Plaintiffv. Sealed Defendant #I, 537
F.3d 185, 191-93 (2d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hughes v.
Rowe, 449 U.S. 5, 9 (1980).
Plaintiff claims that his constitutional rights have been violated by Defendants' refusal to
turn over accurate grand jury minutes of Plaintiffs state criminal action, leading to his allegedly
unconstitutional conviction. (Comp!. at 19-28.) In order to bring a claim for unconstitutional
conviction or imprisonment, "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." Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); see also Foster v.
Diop. No. l l-CV-4731 (KAM) (JMA), 2013 WL 1339408, at *7 (E.D.N.Y. Mar. 31, 2013). The
district court in such cases "must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; ifit would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been
invalidated." Heck, 512 U.S. at 487.
Here, Plaintiff alleges that Defendants denied him access to exculpatory material.
(Comp!. at 19-28.) To the extent that this would imply the invalidity of Plaintiffs conviction,
Plaintiffs failure to demonstrate that his conviction has already been invalidated precludes this
claim under§ 1983. Heck, 512 U.S. at 487; McCollough v. Hale, No. 15-CV-691 (CBA)
(CLP), 2015 WL 7281643, at *3 (E.D.N.Y. Nov. 17, 2015).
Furthermore, even if judgment in Plaintiffs favor would not necessarily imply the
invalidity of his conviction or sentence, he can still only recover ifhe can show that the alleged
failure to turn over exculpatory evidence caused him actual, compensable injury other than his
conviction and imprisonment. Heck, 512 U.S. at 487 n.7. He has made no such allegations, and
none can be inferred from his exhibits or Complaint.
Finally, to the extent that Plaintiff seeks injunctive relief and to have this court vacate the
state court's denial of his§ 440 motion, his sole method of challenging his criminal conviction is
by the filing of a motion for a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973);
see also Poventud v. City ofNew York, 750 F.3d 121, 128 (2d Cir. 2014) (outlining Preiser
doctrine). As Plaintiffs motion for a writ of habeas corpus has already been denied by this
court, and his appeal was dismissed by the Second Circuit (see Mandate), he may not seek once
again to challenge his underlying state conviction.
Grand Jury Minutes
When an application is made to unseal the transcript of the minutes generated during a
state grand jury proceeding, the movant must demonstrate a compelling and particularized need
for the material before a court can grant the application. See Anilao v. Spota, 918 F.
Supp. 2d 157, 173 (E.D.N.Y. 2013); Palmer v. Estate of Stuart No. 02-CV-4076 (LTS)
(GWG), 2004 WL 2429806, at *2-3 (S.D.N.Y. Nov. 1, 2004); Douglas Oil Co. v. Petrol Stops
Nw .. 441U.S.211, 222-23 (1979).
"In a circumstance where a request is made to unseal a transcript of the minutes
generated during a grand jury proceeding(s), solely to rebut the presumption of probable cause
that attaches when a person is indicted on criminal charges, the particularized need standard has
not been met." Brown v. City of New York, No. 06-CV-2059 (LTS) (KNF), 2007 WL 415080,
at *2 (S.D.N.Y. Jan. 30, 2007) (citing Barnett v. Dillon, 890 F. Supp. 83, 87-88
(N.D.N.Y. 1995)). "Furthermore, where a request for information concerning the proceeding(s)
before a grand jury is not narrowly tailored but is simply a wholesale request for disclosure,
made in a civil action, the request, typically, should be denied." Brown, 2007 WL 415080,
at *1-2; see also In Matter of Grand Jury Minutes in United States v. Tam. No. 96-CV-2810
(ILG), 1997 WL 21369, at *3 (E.D.N.Y. Jan. 9, 1997).
Here, it appears that Plaintiff seeks the transcript of the grand jury proceedings in an
attempt to rebut the presumption of probable cause that attached when he was indicted, and
primarily to challenge his underlying state criminal proceedings. Such reasoning fails to meet
the particularized need standard. See Barone v. United States, No. 12-CV-4103 (LAK)
(MHD), 2015 WL 6736203, at *4 (S.D.N.Y. Oct. 29, 2015) (holding that a plaintiffs Bivens
claim of malicious prosecution cannot be used to justify the unsealing of grand jury materials);
Tum, 1997 WL 21369, at *4 (holding that to justify access to grand jury materials, the movant
must proffer facts "giving rise to a strong inference of misconduct"). Therefore, the court must
deny Plaintiffs request.
For the foregoing reasons, the Complaint is DISMISSED for failure to state a claim on
which relief may be granted, pursuant to 28 U.S.C. § 1915A(b)(1 ). The court certifies pursuant
to 28 U .S.C. § l 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. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
s/Nicholas G. Garaufis
ICHOLAS G. GARAU
nited States District Judge
Dated: Brooklyn, New York
March (f_, 2016
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