Joseph v. Gonzalez et al
MEMORANDUM AND ORDER: For the foregoing reasons, the Court dismisses the Complaint. 28 U.S.C. §§ 1915A; 1915(e)(2)(B). Whereas ordinarily the Court. would allow plaintiff an opportunity to amend his Complaint, see Cruz v. Gomez, 202 F.3d 593, 597-98 (2d Cir. 2000), it need not afford theopportunity here because amendment would be futile, see Ashmore v. Prus, 510 F. App'x 47, 49 (2d Cir. 2013). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any ap peal would not be taken in good faith, and the Court therefore denies in forma pauperis status for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court also is directed to close this case. Ordered by Judge Carol Bagley Amon on 11/17/2017. (Fwd for judgment) (Fernandez, Erica)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
5;0i WT EJUiU
20 2017 *;
ROGER JOSEPH,Prisoner Number 95A8729,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
ERIC GONZALEZ,D.A. Kings County;
ERIC SCHNEIDERMAN,Att. Gen. ofthe State
of New York; PHILIP SMALLMAN,Esq.
Defense Att. At Trial; JESSICA PRINCE,
A.D.A.; KAREN M. KALIKOW,Asso. App.
Counsel; M. MOORE,Detective,
AMON,United States District Judge:
On January 13,2017,PlaintiffRoger Joseph,currently incarcerated at Fishkill Correctional
Facility, brought this pro se action under 42 U.S.C. § 1983, challenging his 1995 state court
conviction. This is Plaintiffs third attempt at collaterally attacking the conviction. Plaintiff first
challenged the conviction by filing a petition for writ of habeas corpus in the United States District
Court for the Eastern District of New York on May 8, 2001. The Honorable David G. Trager,
United States District Judge,denied the habeas petition and closed the case,and the Second Circuit
denied a certificate of appealability. See Josenh v. Greiner. No. OI-CV-3154(DGT). On May 10,
2016, plaintiff filed a second writ of habeas corpus in this Court.
Joseph v. Kevser, No. 16-
CV-2409(CBA). On June 6,2016,the Court transferred the petition to the United States Court of
Appeals for the Second Circuit because it was second or successive, and three months later, the
Second Circuit denied Plaintiff leave to file it. See id.
Plaintiff may not proceed with this third attempt. Pursuant to 28 U.S.C. § 1915,the Court
grants Plaintiffs application to proceed in forma nauneris. For the reasons discussed below, the
Court dismisses the Complaint.
STANDARD OF REVIEW
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis action
where it is satisfied that the action "(i) is fi-ivolous or malicious;(ii) fails to state a claim on which
relief may he granted; or (iii) seeks monetary relief against a defendant who is immune firom such
relief." At the pleadings stage, the Court must assume the truth of all well-pleaded factual
allegations, but the Complaint must plead sufficient facts to "state a claim to reliefthat is plausible
on its face." Bell Atl. Corp. v. Twomblv.550 U.S. 544,570(2007). Under 28 U.S.C. § 1915A,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 ofa governmental entity." 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 to raise the strongest arguments it suggests.^Erickson v.
Pardus. 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191-93
(2d Cir. 2008).
Plaintiff brings this action in connection with his 1995 arrest and criminal conviction in
Kings County Supreme Court for murder in the second degree, criminal possession of a weapon
in the second degree, and criminal possession of a weapon in the third degree. (See D.E. # 1
("CompL") at 4, 30); People v. Joseph. 269 A.D.2d 407, 407 (2d. Dept. 2000). Plaintiff asserts
that he is filing a "Civil Rights Complaint" under § 1983 and that the Defendants engaged in a
"chain conspiracy to have Plaintiff convicted in Criminal Court." (Compl. at 1, 3.) He added that
he seeks "to have an evidentiary hearing and a trial in the Eastern District Federal Court,in [ojrder
to prove that he is actually [ijnnocent of the charges wherein he now stands convicted. And to
show that the Indictment is based upon false and perjurious [sic] testimony used therein to indict
Plaintiff in this matter." (Id at 5.) Plaintiff attaches numerous filings apparently related to the
trial and subsequent appeal.
Even under the most liberal construction,Plaintiffs claims cannot proceed as a § 1983 suit.
At the outset. Plaintiffs claims are clearly time-barred because the events giving rise to his claims
occurred in the 1990's and Plaintiff filed the instant action on January 13, 2017.'
Qkure. 488 U.S. 235,251 (1999)(stating that the statute oflimitations for a § 1983 action in New
York is three years); see also Milan v. Werthheimer. 808 P.3d. 961, 963-65 (2d Cir. 2015)(per
curiam) (affirming sua sponte dismissal of claims based on statute of limitations). Moreover,
Plaintiffs request for an evidentiary hearing and new jury trial in this Court, toward the goal of
having his conviction overturned and for him to be released from custody,is not a remedy that this
Court has the authority to grant in a § 1983 action. See Preiser v. Rodriguez, 411 U.S. 475,489,
499(1973)(recognizing that a petition for habeas corpus is the exclusive means for seeking the
relief of immediate release from prison and that such relief is not cognizable under § 1983).
For the foregoing reasons, the Court dismisses the Complaint. 28 U.S.C. §§ 1915A;
1915(e)(2)(B). Whereas ordinarily the Court would allow plaintiff an opportunity to amend his
Complaint, s^ Cruz v. Gomez. 202 F.3d 593, 597—98 (2d Cir. 2000), it need not afford the
'Under the "prison mailbox rule," a submission by an imprisoned pro se petitioner is deemed filed on the day it is
given to prison officials. See Walker v. Jastremski. 430 F.3d 560, 562(2nd Cir. 2005)(citing Houston v. Lack. 487
U.S. 266, 270(1988)).
opportunity here because amendment would be futile, see Ashmore v. Prus. 510 F. App'x 47,49
(2d Cir. 2013). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),that any appeal would not
be taken in good faith, and the Court therefore denies in forma pauperis status for the purpose of
an appeal. Connedee v. United States. 369 U.S. 438,444—45 (1962). The Clerk of Court also is
directed to close this case.
Dated: November(7 ,2017
Brooklyn, New York
s/Carol Bagley Amon
United States District\
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