Warren v. Fischl et al

Filing 5

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED, however the Complaint is sua sponte DISMISSED WITH PREJUDICE for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii). The Court certifies pursuant 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 any appeal. The Clerk of the Court is directed to mail a copy of this Order to Plaintiff and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 11/5/2015. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
GREGORY WARREN,
Plaintiff,

MEMORANDUM & ORDER
15-CV-2829(JS)(AKT)

-against-

ROBERT FISCHL; CAROLYN M. GENOVESI;
A.D.A. JOHN J. MCKENNA; A.D.A. JAMES
R. WATSON; A.D.A. ANDREA M. DIGREGORIO;
MARY BIUNNO; NASSAU COUNTY DISTRICT
ATTORNEY’S OFFICE; NASSAU COUNTY COURT
JUDGE MERYLE BERKOWITZ; ZELDA JONAS;
PAUL KOWTNA; NASSAU COUNTY COURT JUDGE
DAVID P. SULLIVAN; NASSAU COUNTY COURT
JUDGE ALLEN L. WINICK; NASSAU COUNTY
COURT JUDGE KAREN V. MURPHY; NASSAU
COUNTY COURT; DARIN POOLE, C.I. NO.
71-91; DET. LAURETTE KEMP, Sh. No. 737;
DET. ANTHONY SORRENTINO, Sh. No. 728;
DET. GEORGE LUDWIG, Sh. No. 701; DET.
SGT. HINCHMAN, Sh. No. Unknown; NASSAU
COUNTY POLICE DEPARTMENT; MATHEW MURASKIN,
NASSAU COUNTY LEGAL AID SOCIETY; and
NASSAU COUNTY, in their individual and
official capacities,
Defendants.
------------------------------------X
APPEARANCES
For Plaintiff:
Gregory Warren, pro se
1160 Teller Avenue
Bronx, NY 10456
For Defendants:

No appearances.

SEYBERT, District Judge:
On

May

12,

2015,

pro

se

plaintiff

Gregory

Warren

(“Plaintiff”) filed an in forma pauperis Complaint in this Court
pursuant to 42 U.S.C. § 1983 (“Section 1983”) and 18 U.S.C. § 1961
et seq. (“RICO”) against A.D.A. Robert Fischl (“A.D.A. Fischl”);
Carolyn M. Genovesi (“A.D.A. Genovesi”); A.D.A. John J. McKenna

(“A.D.A. McKenna”); A.D.A. James R. Watson (“A.D.A. Watson); A.D.A.
Andrea M. DiGregorio (“A.D.A. DiGregorio”); A.D.A. Mary Biunno
(“A.D.A. Biunno”); Nassau County District Attorney’s Office (“NCDA
Office”);

Nassau

County

Court

Judge

Meryle

Berkowitz

(“Judge

Berkowitz”); Hon. Zelda Jonas (“Judge Jonas”); Hon. Paul Kowtna
(“Judge Kowtna”); Nassau County Court Judge David P. Sullivan
(“Judge Sullivan”); Nassau County Court Judge Allen L. Winnick
(“Judge Winnick”); Nassau County Court Judge Karen V. Murphy
(“Judge Murphy”); Nassau County Court (“County Court”); Darin
Poole, C.I. No. 71-91 (“Poole”); Det. Laurette Kemp, Sh. No. 737
(“Det.

Kemp”);

Det.

Anthony

Sorrentino,

Sh.

No.

728

(“Det.

Sorrentino”); Det. George Ludwig, Sh. No. 701 (“Det. Ludwig”); Det.
Sgt. Hinchman, Sh. No. Unknown (“Det. Ludwig”); Nassau County
Police Department (“NCPD”); Mathew Muraskin (“Muraskin”); Nassau
County Legal Aid Society (“Legal Aid”); Nassau County (“the County”
and collectively, “Defendants”), accompanied by an application to
proceed in forma pauperis.

Plaintiff seeks to sue all of the

Defendants in their individual and official capacities.
Upon

review

of

the

declaration

in

support

of

the

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fee.

See 28 U.S.C. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.
However, for the reasons that follow, the Complaint is sua sponte
2

DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)
(ii)-(iii).
BACKGROUND1
Plaintiff’s Complaint seeks to challenge Plaintiff’s
September 23, 1992 arrest, and the manner in which Defendants
secured his grand jury indictment, conviction, and sentence.

The

gravamen of the Complaint is that Defendants knew or should have
known that perjured testimony was used to prosecute Plaintiff.
Thus,

Plaintiff

claims

that

his

Fourth,

Fifth,

Sixth,

and

Fourteenth Amendment rights were violated and further claims that
Defendants conspired to violate his rights under the Racketeer
Influenced and Corrupt Organizations Statute, 18 U.S.C. § 1961 et
seq. (“RICO”).

For relief, Plaintiff seeks to recover a monetary

damages award in excess of $1 billion.
PROCEDURAL HISTORY
Plaintiff

is

no

stranger

to

this

Court.

This

is

Plaintiff’s second attempt to litigate these claims in this Court
against many of the same Defendants.
et al., 96-CV-3387 (“Warren I”).2

See Warren v. A.D.A. Fischl,

In addition, Plaintiff filed an

1

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purpose of this Memorandum and
Order.
2

Plaintiff sued A.D.A. Robert Fischl, A.D.A. Carolyn M.
Genovesi, A.D.A. David P. Sullivan, D.A. Denis Dillon, District
Attorney’s Office of Nassau County, Darin Poole C.I. No. 71-91,
Det. Laurette Kemp Sh. No. 737, Det. Anthony Sorrentino Sh. No.
728, Det. George Ludwig Sh. No. 701, Det. Sgt. Hinchman Sh. No.
3

unsuccessful Petition for a Writ of Habeas Corpus challenging the
same conviction that is the subject of the present Complaint.
Warren v. Kelly, 99-CV-4226(ADS) (“Warren II”).

See

By Memorandum of

Decision and Order dated June 16, 2002, Judge Spatt denied the
Petition because it was time-barred.
Supp. 2d 6 (E.D.N.Y. 2002).

See Warren v. Kelly, 207 F.

Warren appealed and, by Order dated

March 25, 2003, the appeal was dismissed because it was untimely
filed.

(See Warren II at Docket Entry No. 20.)

On February 6,

2007, Warren filed another Petition for a Writ of Habeas Corpus
challenging this conviction.
(“Warren III”).

See Warren v. Payant, 07-CV-0540(JS)

By Order dated March 7, 2008, this Petition was

transferred to the Second Circuit Court of Appeals as a Successive
Petition and, by Mandate dated April 22, 2009, it was denied. (See

Unknown, Nassau County Police Department, the County of Nassau,
Meryl Berkowitz, Mathew Muraskin, the Legal Aid Society of Nassau
County, Thomas Gulotta, and Nassau County. By Memorandum and
Order dated January 9, 1999, District Judge Arthur D. Spatt
granted the Motion to Dismiss brought by the Legal Aid Society of
Nassau County, Mathew Muraskin, and Meryl Berkowitz. (See Warren
I Docket Entry 131; Warren v. Fischl, 33 F. Supp. 2d 171
(E.D.N.Y. 1999)). By Order dated September 26, 2000, District
Judge Charles R. Wolle, sitting by designation, granted the
remaining Defendants’ Motion for Summary Judgment dismissing the
balance of the complaint in its entirety. (See Warren I Docket
Entry 185.) Plaintiff appealed the Order granting summary
judgment and, by Mandate dated January 23, 2001, the appeal was
dismissed. (See Warren I Docket Entry 189.) Given Warren I,
many of Plaintiff’s claims in the instant case are barred by res
judicata and/or collateral estoppel. However, because
adjudication of Plaintiff’s claims is barred by Heck v. Humphrey,
512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), see
infra at 12-17, the Court need not reach this alternate basis for
dismissal.
4

Warren III at Docket Entries 15 and 16.)
Warren also filed an unsuccessful application for a Writ
of

Error

Corum

Nobis

seeking

to

vacate,

on

the

ground

of

ineffective assistance of counsel, the Appellate Division’s October
12, 1996 decision (People v. Warren, 232 A.D.3d 589, 648 N.Y.S.2d
670 (2d Dep’t 1996)) modifying Warren’s judgment of conviction
rendered on June 20, 1994 in the County Court, Nassau County.
People v. Warren, 23 A.D.3d 589, 804 N.Y.S.2d 263 (2d Dep’t 2005).
FACTS
As noted above, Plaintiff again seeks to challenge his
1992 arrest and the manner in which the District Attorney’s Office,
the individual assistant district attorneys, police officers, and
the

Nassau

County

Police

Department

indictment, conviction, and sentence.

secured

his

grand

jury

Plaintiff further seeks to

challenge the conduct of the state court judges who presided over
his underlying criminal proceedings, the Nassau County Court and
Court Clerk, as well as his criminal defense attorney and the
Nassau County Legal Aid Society.
More

specifically,

Plaintiff

alleges

that

he

was

unlawfully arrested on September 23, 1992 and that his premises
were unlawfully searched at the time of his arrest. (Compl. ¶¶ 2728.)3

Plaintiff claims, in conclusory fashion, that on October 28,

3

Plaintiff’s allegations have been reproduced here exactly as
they appear in the Complaint. Errors in spelling, punctuation,
and grammar have not been corrected or noted.
5

1992

“Poole,

Kemp,

Ludwig,

Fischl,

Watson

and

McKenna,

did

knowingly and willfully explicitly/tacitly agree amongst themselves
to fabricate Poole, Kemp, and Ludwig’s testimony . . . and evidence
and presented it to the Grand Jury (“GJ”) to unlawfully secure an
indictment to prosecute Plt on a false predicate . . . .”

(Compl.

¶ 29.) Plaintiff claims that Fischl called Poole, Kemp, and Ludwig
to testify falsely at the grand jury proceeding and that they
falsely claimed to have purchased cocaine from Plaintiff on several
occasions. (Compl. ¶¶ 30-31.) According to Plaintiff, Ludwig also
falsely claimed to have observed Plaintiff in possession of, inter
alia, a “9 millimeter semi-automatic Taurus pistol” as well as
“packets of white powdery substance . . . cocaine.” (Compl. ¶ 31.)
Plaintiff alleges that the grand jury indicted him, but
asserts that the indictment was not signed by the foreman and was
thus invalid.

(Compl. ¶ 32.)

Plaintiff claims that, in March

1994, Jonas, Kowtna, Winick, Genovesi, Sullivan, Berkowitz, and
Ludwig agreed to “fabricate a search warrant for Plt’s premises to
conceal the fact that NCPD did not have said warrant when they
entered and searched Plt’s premises . . .” and “falsely indicating
same was issued on 09/22/92.”

(Compl. ¶¶ 35-36.)

Plaintiff next

claims that, in March 1994, Poole, Kemp, Sorrentino, Ludwig,
Genovesi, Sullivan, and Berkowitz “agree[d] amonst themselves to
doctor audio tapes adding Kemp’s voice to said tapes . . . for the
purpose of presenting them to, and misleading, the Trial Jury.”
6

(Compl.

¶

37.)

Plaintiff

also

alleges

that

Poole,

Kemp,

Sorrentino, Ludwig, Sullivan, Kowtna, and Berkowitz agreed amongst
themselves to introduce false witness testimony against Plaintiff
at trial. (Compl. ¶ 38.)

Plaintiff further claims that tape

recordings of Plaintiff’s telephone calls were “doctored” and used
against him at trial.

(Compl. ¶¶ 38-40.)

On April 21, 1994, a jury convicted Warren of Criminal
Possession of a Controlled Substance in the First Degree, three
counts of Criminal Sale of a Controlled Substance in the Third
Degree, six counts of Criminal Possession of a Controlled Substance
in the Third Degree, three counts of Criminal Possession of a
Controlled Substance in the Fourth Degree, and three counts of
Criminal Possession of a Weapon in the Third Degree.
207

F.

Supp.

2d

at

8.

Plaintiff

appealed

the

See Warren,
judgment

of

conviction claiming that the “trial court erred in refusing to
charge that the defendant must know the weight of the controlled
substance as an element of the crime of criminal possession of a
controlled substance in the first and fourth degrees.”

People v.

Warren, 232 A.D.2d 589, 648 N.Y.S.2d 670 (2d Dep’t 1996).

The

Appellate Division agreed, and ruled that “the People were required
to prove beyond a reasonable doubt that the defendant had knowledge
of both the possession of the substance and the weight.”
590.

Id. at

Accordingly, the Court reversed Warren’s convictions of

Criminal Possession of a Controlled Substance in the fourth degree
7

under counts three, six and nine of the indictment, Criminal
Possession of a Controlled Substance in the third degree under
count eleven on the indictment, and Criminal Possession of a
Controlled Substance in the first degree under count twelve of the
indictment, vacated the sentences imposed thereon, and remitted the
case for a new trial as to those counts.
Compl. ¶ 41.

The judgment of conviction on the remaining counts

was affirmed.

Warren, 232 A.D.2d at 589.

According
Plaintiff’s

Id. at 589-90; see also

court

to

the

Complaint,

assigned

defense

on

February

attorneys

4,

agreed

1997,

with

the

District Attorney, the Nassau County Police Department, Nassau
County, and the Nassau County Court that the remitted charges
against Plaintiff would be dismissed in an effort to prevent
Plaintiff

from

presenting

evidence

proving

the

his

Defs

“newly

founded

fabricated evidence . . . .”

and

discovered,
rested

(Compl. ¶ 43.)

suppressed

their

case

on

Plaintiff alleges

that in August 2000, several Defendants agreed that they would
present false evidence in Federal Court (presumably in Warren I)
including:
Plaintiff’s

(1)

that

home

there

prior

to

was
his

a

warrant

arrest;

(2)

for

the

that

search

none

of

of
the

Defendants colluded to prosecute Plaintiff illegally; (3) that none
of the Defendants were involved in a conspiracy to prosecute
Plaintiff; and (4) the fraudulent audio tapes presented in the
underlying criminal trial.

(Compl. ¶¶ 44-48.)
8

Plaintiff also

claims that, in 2005 and 2011, false evidence was submitted by
several Defendants in opposition to Plaintiff’s C.P.L. §§ 440.10
and 440.46 motions.

(Compl. ¶¶ 49-51.)

As a result of the foregoing, Plaintiff alleges seven
causes

of

action.

First,

Plaintiff

claims

that

his

Fourth

Amendment Right to be free from unreasonable searches and seizures
was violated when, in 1992 and without a warrant, the police
searched his home and he was arrested. (Compl. ¶¶ 61-62.) Second,
Plaintiff alleges that his Fifth Amendment Right to testify in his
own behalf was violated when he was denied the opportunity to
testify during his trial in 1994.

(Compl. ¶¶ 63-64.)

Third,

Plaintiff alleges that he was denied the effective assistance of
counsel

in

violation

of

his

Sixth

Amendment

Right

when

his

attorneys conspired with law enforcement personnel to: (1) search
Plaintiff’s home and arrest him in 1992; (2) secure Plaintiff’s
indictment based on fabricated evidence in 1992; (3) prosecute
Plaintiff on false evidence and without jurisdiction in 1994; (4)
falsely incriminate Plaintiff in 1994; (5) deny Plaintiff the right
to testify on his own behalf in 1994; (6) deny Plaintiff the right
to present favorable and exculpatory evidence in 1994; (7) secure
Plaintiff’s conviction with fabricated evidence from 1994 through
2011;

(8)

fabricated

secure

and

evidence

maintain
from

1994

Plaintiff’s
through

imprisonment

2011;

(9)

with

suppress

exculpatory evidence from 1994 through 2011; and (10) destroy
9

exculpatory evidence from 1994 through 2011.

(Compl. ¶ 66.)

Plaintiff’s fourth, fifth and sixth causes of action allege that
his Fourteenth Amendment Due Process Rights were violated when, in
1994: (1)

he was prosecuted without “a valid grant of subject-

matter jurisdiction” (Compl. ¶¶ 67-68); (2) he was denied his right
to a fair trial (Compl. ¶¶ 69-70); and (3) he was prevented from
introducing

favorable

evidence

at

trial

(Compl.

¶¶

71-72).

Finally, Plaintiff’s seventh cause of action alleges that the
Defendants

violated

the

RICO

statute

unlawfully prosecute and imprison him.

when

they

conspired

(Compl. ¶¶ 73-74.)

to
For

relief, Plaintiff seeks to recover a damages award in excess of
$1 billion.
DISCUSSION
I.

In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of the

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fees.

See 28 U.S.C. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.
II.

Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to

dismiss an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune
10

from

such

1915A(b).

relief.

See

28

U.S.C.

§§

1915(e)(2)(B)(i)-(iii),

The Court is required to dismiss the action as soon as

it makes such a determination.

See id. § 1915A(b).

Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).

However, a complaint must plead sufficient

facts to “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations omitted).

The

plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”

Id. at 678; accord Wilson v.

Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011).

While

“‘detailed factual allegations’” are not required, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’”
at

Iqbal, 556 U.S.

678 (quoting Twombly, 550 U.S. at 555).

III.

Section 1983
Section 1983 provides that
[e]very person who, under color of any
statute, ordinance, regulation, custom, or
11

usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United
States . . . to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured . . . .
42 U.S.C. § 1983; accord Rehberg v. Paulk, --- U.S. ----, 132 S.
Ct. 1497, 1501–02, 182 L. Ed. 2d 593 (2012).
under

Section

1983,

a

plaintiff

must

To state a claim

“‘allege

that

(1)

the

challenged conduct was attributable at least in part to a person
who was acting under color of state law and (2) the conduct
deprived the plaintiff of a right guaranteed under the Constitution
of the United States.’”

Rae v. Cnty. of Suffolk, 693 F. Supp. 2d

217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53
(2d Cir. 1999)).

The applicable statute of limitations for a

Section 1983 action is governed by “the law of the state in which
the cause of action arose.”

Wallace v. Kato, 549 U.S. 384, 387,

127 S. Ct. 1091, 1094, 166 L. Ed. 2d 973 (2007).

In New York, the

general statute of limitations for personal injury claims is three
years.
A.

See N.Y. C.P.L.R. § 214(5).
Heck v. Humphrey Bars Plaintiff’s § 1983 Claims
When a claim for damages under § 1983 calls into question

the validity of an underlying conviction, a district court must
dismiss the claim, unless the conviction has been invalidated.
Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 2372, 129 L.
Ed. 2d 383 (1994).

The petitioner in Heck was an inmate with a

direct appeal from his conviction pending, who brought a § 1983
12

action for damages against state officials who, he claimed, acted
unconstitutionally in arresting and prosecuting him.

Drawing an

analogy to the tort of malicious prosecution, the Supreme Court
held that an inmate’s § 1983 claim for damages was unavailable
because he could not demonstrate that the underlying criminal
proceedings had terminated in his favor.

Id. at 486-87.

This

favorable termination requirement is similarly applicable to a
released prisoner, such as Plaintiff, seeking to bring a § 1983
action implying the invalidity of a conviction.

Id. at 490, n.10.

The Supreme Court in Heck enumerated four methods of demonstrating
that a conviction has been invalidated: (1) the conviction was
reversed on a direct appeal; (2) an executive order expunged the
conviction; (3) a habeas corpus petition was issued by a federal
court; or (4) an authorized state tribunal declared the conviction
invalid.

Id. at 486-87.
In this case, affording the pro se Complaint a liberal

construction, Plaintiff arguably relies only on the first of the
these methods to maintain that his conviction was invalidated.4
Although

Plaintiff’s

convictions

for

First

Degree

Criminal

Possession of a Controlled Substance (count twelve), and three
counts

of

Fourth

Degree

Criminal

4

Possession

Method three does not apply because
Plaintiff’s application for a writ of
v. Kelly, 207 F. Supp. 2d 6 (E.D.N.Y.
not alleged that methods two and four
13

of

a

Controlled

Judge Spatt denied
habeas corpus, see Warren
2002), and Plaintiff has
have any application here.

Substance (counts three, six, and nine) were reversed on appeal,
the Appellate Division affirmed the judgment of conviction and
sentence on the remaining twelve counts, namely six counts of Third
Degree Criminal Possession of a Controlled Substance (counts two,
five, eight, ten, eleven, and thirteen). See People v. Warren, 323
A.D.2d 589, 648 N.Y.S.2d 670 (2d Dept. 1996), leave to appeal
denied, People v. Warren, 90 N.Y.2d 865, 683 N.E.2d 1066, 661
N.Y.S.2d 192 (1997).
For purposes of deciding the applicability of Heck here,
the most informative cases are the Second Circuit’s recent decision
in Poventud v. City of New York, 750 F.3d 121 (2d Cir. 2014) (en
banc) and DiBlasio v. City of New York, 102 F.3d 654 (2d Cir.
1996).

In the first case, after trial, Poventud’s conviction on

attempted murder and related charges was vacated as a result of a
collateral attack in state court.

The state court found that the

investigating officers failed to disclose exculpatory evidence that
the key government witness and victim had mistakenly identified
Poventud’s brother as one of his assailants before the witness
eventually identified Poventud. Poventud, 750 F.3d at 125-26. The
case was remanded for a new trial; but, in order to secure his
immediate release from prison, Poventud pled guilty to a reduced
charge of attempted robbery, contradicting his prior alibi defense
that he was not present during the alleged attack on the victim.
Id. at 124, 126-27.
14

Thereafter, Poventud initiated a section 1983 action for
damages against the officials who conducted the original criminal
investigation, based on the Brady violations that tainted the first
trial.

The Second Circuit, reversing the district court dismissal

of Poventud’s civil rights action, found that Poventud’s later plea
to reduced charges did not warrant a Heck bar of his section 1983
action.

Explaining that a viable Brady claim does not require

proof of factual innocence, the Second Circuit concluded that
Poventud’s subsequent plea to a related, less serious offense was
not inconsistent or irreconcilable with his 1983 claim predicated
on the Brady violation in the first trial.

Id. at 134-35, 137-38.

The Second Circuit acknowledged, however, that Poventud’s civil
rights claim based on the Brady violation was inconsistent with his
conviction after the first trial; but that conviction was vacated,
eliminating any Heck problem relating to the first trial.

Id. at

134–35, 138.
DiBlasio involved a physician who, in 1986, was convicted
of the Criminal Sale of a Controlled Substance (cocaine) in the
first, second and third degrees, and Criminal Possession of a
Controlled Substance in the fourth degree.

Four years later,

following an unsuccessful appeal in the State courts, the United
States District Court for the Eastern District of New York granted
DiBlasio a writ of habeas corpus based on his claim that the
prosecution’s

failure

to

produce
15

or

identify

a

confidential

informant deprived him of a fair trial.
affirmed.

The Second Circuit

DiBlasio v. Keane, 932 F.2d 1038 (2d Cir. 1991).

The

State retried DiBlasio, and he was convicted only on the charge of
unlawful possession.

Subsequently, DiBlasio brought a malicious

prosecution claim against the police officers pursuant to 42 U.S.C.
§ 1983.

The district court dismissed the complaint as time-barred

and for failure to state a claim.

DiBlasio appealed.

In examining DiBlasio’s malicious prosecution claim, the
Second Circuit began by outlining the four elements of a common law
tort for malicious prosecution: “(1) commencement or continuance of
a criminal proceeding, (2) lack of probable cause, (3) existence of
malice, and (4) termination in plaintiff’s favor.”
City of New York, 102 F.3d 654, 657 (2d Cir. 1996).

DiBlasio v.

Turning to the

question of favorable termination, the Circuit wrote: “Proceedings
are ‘terminated in favor of the accused’ only when their final
disposition is such as to indicate the accused is not guilty.” Id.
at 658.

Ultimately, the Second Circuit rejected DiBlasio’s claim

because his habeas did not demonstrate his innocence; hence, his
later retrial and conviction of the lesser crime of possession.
Upon careful analysis, the Court finds that Poventud is
distinguishable and does not save the instant civil rights action
from dismissal under Heck.

Plaintiff’s claims in this case are

predicated on the allegation that he was unlawfully arrested and
that Defendants secured his grand jury indictment, conviction, and
16

imprisonment in violation of his Constitutional rights.
Section

1983

claims

cannot

be

reconciled

with

Those

Plaintiff’s

conviction on the remaining twelve counts, namely six counts of
Third Degree Criminal Possession of a Controlled Substance (counts
two, five, eight, ten, eleven, and thirteen).

Because Plaintiff’s

success on his civil rights claims in this case would necessarily
invalidate the conviction on these counts, none of which have been
reversed or vacated, Plaintiff’s Section 1983 claims are not
cognizable under Heck.

Like in DiBlasio, Plaintiff’s conviction

was not vacated in its entirety.

Rather, Plaintiff’s conviction

was vacated on just four counts of the sixteen-count indictment.
Thus, because success on Plaintiff’s Section 1983 claims would
implicate the validity of the remaining convictions, Heck’s bar
precludes their adjudication.5

Accordingly, Plaintiff’s Section

1983 claims are not plausible and are thus DISMISSED pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).

See Peay v. Ajello, 470 F.3d 65, 68

(2d Cir. 2006) (“allegations of extensive conspiratorial misconduct
between defense counsel and the prosecution would render the
[plaintiff’s] convictions invalid if they were proved” and thus are
barred by Heck.); Whaley v. Lopez, 12–CV–2889, 2012 WL 3137900, at

5

Although Ҥ 1983 remains a possible remedy when there is no
other federal avenue to bring a claim”, Chillemi v. Town of
Southampton, 943 F. Supp. 2d 365, 375 (E.D.N.Y. 2013), Plaintiff
had the opportunity to--and did--seek habeas relief. See Warren,
207 F. Supp. 2d at *11 (denying petition for a writ of habeas
corpus brought under § 2254).
17

*7 (E.D.N.Y. July 30, 2012) (citing Kevilly v. New York, 410 F.
App’x 371, 374 (2d Cir. 2010) (prosecutorial misconduct claim is
barred because such conduct necessarily implies invalidity of the
conviction)).6
B.

Section 1983 Claims Against Judge Berkowitz7, Muraskin
and Legal Aid
Although Plaintiff’s claims seeking to impose Section

1983 liability on Judge Berkowitz, Muraskin, and Legal Aid are
barred by Heck, such claims are not plausible for the additional
reason that these Defendants are not state actors.

Section 1983

“constrains only state conduct, not the ‘acts of private persons or
entities.’”

Hooda v. Brookhaven Nat’l Lab., 659 F. Supp. 2d 382,

393 (E.D.N.Y. 2009) (quoting Rendell-Baker v. Kohn, 457 U.S. 830,
837, 102 S. Ct. 2764, 2769, 73 L. Ed. 2d 418 (1982)).

Accordingly,

“a litigant claiming that his constitutional rights have been
violated

must

first

establish

that

the

challenged

conduct

constitutes state action.” Flagg v. Yonkers Sav. & Loan Ass’n, 396
F.3d 178, 186 (2d Cir. 2005) (internal quotation marks and citation
omitted); Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012) (“A
6

Although statute of limitation is an affirmative defense, the
Court notes that most of the challenged conduct is alleged to
have occurred in the early 1990s with the most recent act
allegedly occurring in 2011 (Compl. ¶ 51), all well outside the
three-year statute of limitation.
7

The Court notes that the allegations against Judge Berkowitz
relate only to her conduct in 1994 when she was Plaintiff’s
criminal defense attorney and was employed by Legal Aid. (Comp.
at ¶ 11.)
18

plaintiff pressing a claim of violation of his constitutional
rights under § 1983 is [ ] required to show state action.”
(internal quotation marks and citation omitted)).

Indeed, “the

under-color-of-state-law element of § 1983 excludes from its reach
merely private conduct, no matter how discriminatory or wrongful.”
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct.
977, 985, 143 L. Ed. 2d 130 (1999) (internal quotation marks and
citation omitted).
Private actors, such as Berkowitz, Muraskin, and Legal
Aid, may be considered to be acting under the color of state law
for purposes of § 1983 if the private actor was a “‘willful
participant in joint activity with the State or its agents.’”
Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002)
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct.
1598, 1606, 26 L. Ed. 2d 142 (1970)).

Section 1983 liability may

also extend to a private party who conspires with a state actor to
violate a plaintiff’s constitutional rights. Ciambriello, 292 F.3d
at 323-24.

In order to state a Section 1983 conspiracy claim, a

plaintiff must allege: “(1) an agreement between a state actor and
a

private

party;

(2)

to

act

in

concert

to

inflict

an

unconstitutional injury; and (3) an overt act done in furtherance
of that goal causing damages.”

Id. at 324-25 (citing Pangburn v.

Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)).

Indeed, “[a] merely

conclusory allegation that a private entity acted in concert with
19

a state actor does not suffice to state a § 1983 claim against the
private entity.”

Ciambriello, 292 F.3d at 324 (internal quotation

marks omitted).
Here, Plaintiff alleges that Muraskin and/or Legal Aid
are liable for his claimed Constitutional deprivations simply
because Muraskin was Berkowitz’s supervisor and Legal Aid was her
employer.

Attorneys, whether with the Legal Aid Society, court-

appointed, or privately retained, are generally not state actors
for purposes of Section 1983.

See, e.g., Polk County v. Dodson,

454 U.S. 312, 325, 102 S. Ct. 445, 453, 70 L. Ed. 2d 509 (1981);
see also Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997)
(“[I]t

is

well-established

that

court-appointed

attorneys

performing a lawyer’s traditional functions as counsel to [a]
defendant [in a criminal proceeding] do not act ‘under color of
state law’ and therefore are not subject to suit under 42 U.S.C. §
1983”); there is no respondent superior liability under Section
1983.

Iqbal, 556 U.S. at 676 (“[b]ecause vicarious liability is

inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”).

A complaint

based upon a violation under Section 1983 that does not allege the
personal involvement of a defendant fails as a matter of law.
Johnson v. Barney, 360 F. App’x 199, 201 (2d Cir. 2010).

See

Thus,

Plaintiff has not alleged a plausible Section 1983 claim against
20

Muraskin or Legal Aid and such claims are DISMISSED WITH PREJUDICE
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii).
Additionally, Plaintiff has not sufficiently alleged that
Berkowitz acted jointly with a state actor or conspired with a
state actor to deprive Plaintiff of some constitutional right.
Although Plaintiff suggests that his Legal Aid attorney, Berkowitz,
conspired

with

a

state

court

judge

to

pursue

his

illegal

prosecution, his merely conclusory allegations with no supporting
factual averments are insufficient to state a conspiracy. Thus, in
the absence of any state action, Plaintiff’s Section 1983 claim
against

Berkowitz

is

not

plausible

Ciambriello, 292 F.3d at 325.

as

a

matter

of

law.

Moreover, though far from clear, to

the extent Plaintiff seeks to assert a cause of action against
Berkowitz based on the ineffective assistance of counsel, “an
ineffectiveness [claim is not actionable] in a proceeding brought
under § 1983.”
2004).
Berkowitz

Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir.

Accordingly,
is

DISMISSED

Plaintiff’s
WITH

Section

PREJUDICE

1983

pursuant

claim
to

28

against
U.S.C.

§ 1915(e)(2)(B)(ii).
IV.

Plaintiff’s RICO Claims
A.

Judge Jonas, Judge Kowtna, Judge Sullivan, and
Judge Winnick are Immune From Such Claims
Plaintiff’s remaining claims against Judges Jonas,

Kowtna, Sullivan, and Winnick are subject to dismissal because
these Defendants, all of whom are judges employed by the state
21

court, are absolutely immune from suit.

It is well-established

that judges “generally have absolute immunity” from suit for
judicial acts performed in their judicial capacities.

Bliven v.

Hunt, 579 F.3d 204, 209 (2d Cir. 2009) (citing Mireles v. Waco, 502
U.S. 9, 11, 112 S. Ct. 286, 287, 116 L. Ed. 2d 9 (1991)).

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 (internal quotation marks

and citation omitted (ellipsis in original)).
Rather,
instances.

judicial

immunity

is

overcome

in

only

two

The first is “liability for nonjudicial actions, i.e.,

actions not taken in the judge’s judicial capacity.”
F.3d at 209 (quoting Mireles, 502 U.S. at 11).

Bliven, 579

The second is

liability arising from actions taken “‘in the complete absence of
all jurisdiction.’” Basile v. Connolly, 538 F. App’x 5, 7 (2d Cir.
2013) (emphasis in the original) (quoting Mireles, 502 U.S. at 1112).

Here, nothing in Plaintiff’s Complaint suggests that either

exception applies to overcome absolute judicial immunity. Although
Plaintiff complains that the judges acted without jurisdiction,
such allegation is belied by the fact that he was tried and
convicted in the state court, and such conviction was, in large
part, affirmed on appeal.

See People v. Warren, 323 A.D.2d 589,

648 N.Y.S.2d 670 (2d Dept. 1996), leave to appeal denied, People v.
22

Warren, 90 N.Y.2d 865, 683 N.E.2d 1066, 661 N.Y.S.2d 192 (1997).
There can be no doubt that state court prosecution for violations
of state law relating to drug possession and weapon possession is
the very kind of case over which state courts have jurisdiction.
Accordingly, Plaintiff’s claims against Judges Jonas, Kowtna,
Sullivan, and Winnick are not plausible as a matter of law and are
thus DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)
(B)(ii)-(iii).
B.

Plaintiff has not Adequately Alleged RICO Claims Against
the Remaining Defendants
Plaintiff also alleges that Defendants have violated his

rights

under

RICO.

RICO

makes

it

a

crime

to

conduct

“an

enterprise’s affairs through a pattern of racketeering activity.”
18 U.S.C. § 1962(c). “18 U.S.C. § 1964(c) provides a private right
of action for ‘[a]ny person injured in his business or property by
reason of a violation of Section 1962.’”

Goldfine v. Schienzia,

118 F. Supp. 2d 392, 399 (S.D.N.Y. 2000), quoting 18 U.S.C. §
1964(c) (emphasis omitted). The statute of limitations for a civil
RICO claim under 18 U.S.C. § 1964(c) is four years.

Frankel v.

Cole, 313 F. App’x 418, 419 (2d Cir. 2009) (citing Agency Holding
Corp. v. Malley–Duff & Assocs., 483 U.S. 143, 156, 107 S. Ct. 2759,
2767, 97 L. Ed. 2d 121 (1987)).

The statute of limitations

“‘begins to run when the plaintiff discovers or should have
discovered the RICO injury.’”

Frankel, 313 F. App’x at 419

(quoting In re Merrill Lynch, Ltd. P’Ships Litig., 154 F.3d 56, 58
23

(2d Cir. 1998) (per curiam)).
Here, given that Plaintiff was convicted in 1994, his
alleged RICO injury occurred well outside the four-year statutory
period. Even accepting Plaintiff’s allegation that the most recent
action undertaken as part of the conspiracy occurred on April 21,
2011 (Compl. ¶ 51), it too is outside the statutory period given
Plaintiff’s filing of this Complaint on May 12, 2015.

Thus,

Plaintiff’s RICO claims are clearly time-barred.
Moreover, Plaintiff’s RICO claims are not plausible
because

wholly

allegations

absent

that

any

from
of

the

the

Complaint

Defendants

are

any

received

factual

money

from

racketeering activities, had an interest in an enterprise engaged
in racketeering, or conspired to violate Section 1962.

Plaintiff

does not allege any facts which would support an inference that
Defendants were engaged in racketeering activity or involved in an
enterprise which affects interstate or foreign commerce.
even

construing

Plaintiff’s

Complaint

liberally,

factual or legal basis for a RICO claim.

there

Thus,
is

no

In the absence of any

such allegations, together with the unexplained twenty-year delay
in bringing such claims, Plaintiff’s RICO claims are not plausible
and are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)
(2)(B)(ii).
IV.

Leave to Amend
Given

the

Second

Circuit’s
24

guidance

that

a

pro

se

complaint should not be dismissed without leave to amend unless
amendment would be futile, Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000), the Court has carefully considered whether leave to
amend is warranted here. Because the defects in Plaintiff’s claims
are substantive and would not be cured if afforded an opportunity
to amend, leave to amend the Complaint is DENIED.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, however the Complaint is
sua sponte DISMISSED WITH PREJUDICE for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii).
The Court certifies pursuant 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
any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45,

82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of this
Order to Plaintiff and to mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERTS
Joanna Seybert, U.S.D.J.
Dated:

November
5 , 2015
Central Islip, New York
25