Micolo v. F.B.I. Special Agent #1 et al

Filing 14

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; granting 9 Motion for Leave to Proceed in forma pauperis. For the reasons set forth above, Plaintiff's applications to proceed in forma pauperis are GRANTED, h owever the Complaint is sua sponte DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be tak en 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 Memorandum and Order to the Plaintiff and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 4/9/2018. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
MARCUS ANTHONY MICOLO,
Plaintiff,
-against-

MEMORANDUM & ORDER
17-CV-5938(JS)(AKT)

F.B.I. SPECIAL AGENTS #1-3,
and F.B.I. SENIOR SUPERVISING
INVESTIGATOR #1,
Defendants.
---------------------------------X
APPEARANCES
For Plaintiff:
Marcus Anthony Micolo, pro se
03-A-3985
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929
For Defendants:

No appearance.

SEYBERT, District Judge:
On October 10, 2017, incarcerated pro se plaintiff Marcus
Anthony Micolo (“Plaintiff”) filed a Complaint in this Court
pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971),
which permits suits against federal employees for violations of
federal

constitutional

rights.

Plaintiff

sues

unidentified

individuals, all of whom are alleged to be F.B.I. agents and an FBI
investigator

(collectively,

“Defendants”).

Accompanying

the

Complaint is an application to proceed in forma pauperis. However,
Plaintiff did not file the required Prisoner Authorization Form
(“Form”).

Accordingly, by Notice of Deficiency dated October 17,

2017, Plaintiff was instructed to complete and return the enclosed

Form within fourteen (14) days in order for his Complaint to
proceed.

On October 27, 2017, Plaintiff timely complied with the

Notice of Deficiency and filed the completed Form together with
another application to proceed in forma pauperis.

(See Docket

Entries 9-10.)
Upon

review

of

the

declarations

in

support

of

the

applications 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 requests to proceed in forma pauperis are GRANTED.
However,

because

Plaintiff

seeks

to

challenge

his

underlying state court criminal conviction, his claims are barred
by Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 2372, 129
L. Ed. 2d 383 (1994).

Accordingly, Plaintiff’s claims are not

plausible and are thus DISMISSED pursuant to 28 U.S.C. §§ 1915(e)
(2)(B)(ii), 1915A(b)(1).
BACKGROUND1
Plaintiff’s Complaint seeks to challenge Plaintiff’s 2003
state court conviction of Robbery in the First Degree and of
Unauthorized Use of a Motor Vehicle in the First Degree.

1

(Compl.

All material allegations in the Complaint and are presumed to
be true for the purpose of this Memorandum and Order. Rogers v.
City of Troy, New York, 148 F.3d 52, 58 (2d Cir. 1998) (in
reviewing a pro se complaint for sua sponte dismissal, a court is
required to accept the material allegations in the complaint as
true).
2

at 1.)

Plaintiff alleges that his Complaint is a “Bivens Action”

against the Defendants who are alleged to have withheld evidence
from Plaintiff that Plaintiff claims would have been favorable to
him in the underlying state criminal case.

(Compl. at 1-3.)

According to the Complaint, Plaintiff admits that he “did
steal a car from a shopping center parking lot and subsequently
use[d] the same in the robbery of the Greenpoint Savings Bank . .
. .”

(Compl. ¶ 4.)

After Plaintiff was indicted, “he began

stating that he did rob the [bank] except that he never had his
hand in his pocket as was claimed by the bank tellers.”
¶ 14.)

(Compl.

Plaintiff claims that Defendants have video tape and

pictures taken from the video that would prove his claim that he
did not have his hand in his pocket.
Plaintiff

claims

that

the

First

(Compl. ¶ 17.)

Degree

Robbery

charge

Thus,
was

improperly brought against him and thus, he seeks to challenge that
conviction.

Plaintiff also seeks to recover a damages award in

total sum of $10 million to compensate him for the “[D]efendants
actions and/or inactions which resulted in him being charged,
tried, convicted, and sentenced to 25 years for a charge he is not
guilty of while [D]efendants knew, based on the evidence they had,
that [P]laintiff was not guilty of said charge.”

(Compl. at 4.)

DISCUSSION
I.

In Forma Pauperis Applications
Upon review of Plaintiff’s declaration in support of the
3

applications 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 requests to proceed in forma pauperis are 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
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
4

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.

Heck v. Humphrey Bars Plaintiff’s Bivens Claims
When a claim for damages calls into question the validity

of an underlying conviction, a district court must dismiss the
claim, unless the conviction has been invalidated.
at 487, 114 S. Ct. at 2372.

Heck, 512 U.S.

The petitioner in Heck was an inmate

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

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. Although Heck involved Section 1983 claims, it is well5

established that Bivens claims are analogous to Section 1983 claims
except that Section 1983 applies to state actors, rather than
federal actors.

Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995)

(“Because the two actions [Section 1983 and Bivens] share the same
‘practicalities of litigation’, federal courts have typically
incorporated § 1983 law into Bivens actions.” (collecting cases)
(citation omitted)).
Bivens actions.

Further, Heck’s bar has long applied to

Tavarez, 54 F.3d at 110 (“Given the similarity

between suits under § 1983 and Bivens, we conclude that Heck should
apply to Bivens actions as well.” (citing Stephenson v. Reno, 28
F.3d 26, 27 (5th Cir. 1994) (per curiam))).
Here, as is readily apparent and, affording the pro se
Complaint a liberal construction, Plaintiff does not allege that
his conviction has been invalidated.2

Because Plaintiff’s success

on his Bivens claims in this case would necessarily invalidate the
conviction, which is not alleged to have been reversed or vacated,

2

Indeed, Plaintiff has already filed three unsuccessful
petitions for habeas corpus with this Court. See Micolo v. State
of N.Y., 07-CV-0449(JS) (denying Section 2254 petition by
Memorandum and Order dated August 18, 2010, and denying
reconsideration by Order dated October 8, 2010, appeal to the
Second Circuit dismissed by Mandate dated October 17, 2011, and
denying motion to vacate the judgment of dismissal by Order dated
August 12, 2012); Micolo v. State of N.Y., 12-CV-5509 (JS)
(dismissing writ of habeas corpus pursuant to 28 U.S.C. § 2241 by
Order dated January 7, 2013, and denying reconsideration by Order
dated June 26, 2013); Micolo v. Capra, 12-CV-5795(JS)
(transferred to the Second Circuit as a successive 2254 petition
by Order dated January 4, 2013 and dismissed by Mandate dated
March 26, 2013).
6

such claims are not cognizable under Heck.

Thus, Heck’s bar

precludes the adjudication of Plaintiff’s Bivens claims, and the
Complaint is thus DISMISSED pursuant to 28 U.S.C. §§ 1915(e)
(2)(B)(ii); 1915A(b)(1).

To the extent that Plaintiff is also

asserting pendant state law claims for malicious prosecution and/or
negligence, the Court declines, in its discretion, to exercise
supplemental jurisdiction over those claims given the dismissal of
the federal claims.

See

28 U.S.C. § 1367(c)(3); United Mine

Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139,
16 L. Ed. 2d 218 (1966); Kolari v. N.Y.-Presbyterian Hosp., 455
F.3d 118, 122 (2d Cir. 2006).
IV.

Leave to Amend
Given

the

Second

Circuit’s

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 applications
to proceed in forma pauperis are GRANTED, however the Complaint is
sua sponte DISMISSED for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
7

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
Memorandum and Order to the Plaintiff and to mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: April
9 , 2018
Central Islip, New York

8