Gianni v. New York State Police et al

Filing 79

MEMORANDUM-DECISION and ORDER - That defendants' 72 Motion for Summary Judgment is GRANTED. That Gianni's amended complaint (Dkt. No. 14) is DISMISSED. That the May 20, 2013 order of Magistrate Judge Christian F. Hummel (Dkt. No. 55) is AFFIRMED. That the Clerk close this case. Signed by Chief Judge Gary L. Sharpe on 3/3/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
SALVATORE F. GIANNI,
Plaintiff,

1:11-cv-498
(GLS/CFH)

v.
KEITH KOPP et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Salvatore F. Gianni
Pro Se
08-B-3671
Cayuga Correctional Facility
P.O. Box 1186
Moravia, NY 13118
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York Attorney General
The Capitol
Albany, NY 12224

CHARLES J. QUACKENBUSH
Assistant Attorney General

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Salvatore F. Gianni commenced this action against

Keith Kopp and Edward Foster, pursuant to 42 U.S.C. § 1983, alleging
malicious prosecution and Fourth and Fourteenth Amendment violations
for unlawful arrest and unlawful detention. (Am. Compl., Dkt. No. 14.)
Pending are defendants’ motion for summary judgment dismissing Gianni’s
complaint, (Dkt. No. 72), and Gianni’s appeal of Magistrate Judge Christian
F. Hummel’s May 20, 2013 order, (Dkt. No. 58), which denied Gianni’s
request to take the deposition of a non-party witness by written questions,
(Dkt. No. 55). For the reasons that follow, the motion for summary
judgment is granted, and Judge Hummel’s order is affirmed.
II. Background1
Gianni is currently incarcerated in New York State prison. (Defs.’
Statement of Material Facts (SMF) ¶ 1, Dkt. No. 72, Attach. 2.) The events
that led to Gianni’s current incarceration are the subject of this dispute. In
May 2008, Gianni was on probation for previous convictions of criminal
contempt. (Id. ¶ 3.) On the evening of May 3, 2008, Gianni arrived at the
residence of Leah Bella, his ex-wife, despite an order of protection issued
by Onondaga County Court that was in place at the time, which prohibited

1

Unless otherwise stated, the facts are undisputed.
2

Gianni from having any contact with Bella outside of certain court-approved
periods for child visitation. (Id. ¶¶ 5-6, 8; Dkt. No. 72, Attach. 4 at 2, 66.)
Gianni claims that, at that time, he also resided there, and that, when he
arrived at the residence, he discovered another man, Jason Michlovich, in
the residence with his ex-wife. (Pl.’s SMF ¶¶ 4, 8, Dkt. No. 78, Attach. 1.)
Gianni tried to force his way inside the apartment door, and when he was
unsuccessful, he broke a bedroom window and entered the apartment.
(Defs.’ SMF ¶ 11.) Michlovich then “applied pepper spray to [Gianni]’s
face, at which time Gianni left the apartment and drove away. (Id.) Bella
called 911, and Officer Kopp, a New York State Trooper, responded to the
911 call. (Id. ¶ 10.) At that point, Bella informed Officer Kopp of Gianni’s
conduct and of the order of protection. (Dkt. No. 72, Attach. 4 at 43.)
Later that same evening, Gianni was involved in an automobile
accident. (Defs.’ SMF ¶ 9.) The Town of Clay Police Department
responded to that accident, at which time Gianni was found to be
intoxicated and subsequently placed under arrest and brought to Salina
Town Justice Court. (Id.; Dkt. No. 72, Attach. 4 at 3-10, 22.) Gianni was
accused by felony complaint of driving while intoxicated and aggravated
unlicensed operation of a vehicle. (Dkt. No. 72, Attach. 4 at 30-31.) In the
3

meantime, after responding to the 911 call at Bella’s residence, Officer
Kopp learned that Gianni had been arrested and taken into custody; Officer
Kopp then went to Salina Town Court, where he filed charges of burglary
and criminal contempt. (Id. at 43-44, 48-49.) Gianni was arraigned on
both sets of charges, and held without bail. (Id. at 22, 32.)
At some point while he was in custody, Gianni claims that his father,
Anthony Gianni, contacted Sergeant Foster of the New York State Police,
to inform him that Officer Kopp allegedly mishandled the investigation into
the burglary and criminal contempt charges, and that exculpatory evidence
existed, and also to request that Sergeant Foster contact the District
Attorney to recommend dismissal of the charges. (Am. Compl. ¶ 4(f).)
On August 20 and 21, 2008, a violation of probation hearing was
conducted in connection with the May 3, 2008 incident and related arrests,
at which time Gianni was found to have violated two conditions of
probation. (Dkt. No. 72, Attach. 5 at 1; Dkt. No. 72, Attach. 8 at 33-34.)
He was then sentenced to a term of incarceration for those violations.
(Dkt. No. 72, Attach. 8 at 36-37.) Ultimately, on November 6, 2008, Gianni
pled guilty to aggravated unlicensed operation of a motor vehicle in the first
degree, see N.Y. Veh. & Traf. Law § 511(3), in satisfaction of the May 3,
4

2008 charges against him. (Dkt. No. 72, Attach. 4 at 1, 56; Dkt. No. 72,
Attach. 6.)
III. Standard of Review
A.

Appeal of a Magistrate’s Order
In deciding non-dispositive pretrial issues, magistrate judges in this

District are afforded the broadest discretion, and will be reversed only
when that discretion is abused. See Miller v. Loughren, 258 F. Supp. 2d
61, 61 (N.D.N.Y. 2003). This court may modify or set aside any portion of
the magistrate judge’s non-dispositive order only if it is found to be “clearly
erroneous or . . . contrary to law.” Fed. R. Civ. P. 72(a); see 28 U.S.C.
§ 636(b)(1)(A); Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525
(2d Cir. 1990).
B.

Summary Judgment
The standard of review pursuant to Fed. R. Civ. P. 56 is well

established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
5

A.

Magistrate Appeal
Pending is Gianni’s appeal of Judge Hummel’s order, (Dkt. No. 58),

which denied Gianni’s request to conduct a deposition on written questions
of his ex-wife, a non-party witness, (Dkt. No. 55). Judge Hummel denied
this request, as well as an earlier request of the same nature, (Dkt. No.
52), because of the active order of protection prohibiting contact between
Gianni and his ex-wife, (Dkt. No. 55 at 1).
Because Judge Hummel’s order was not an abuse of discretion,
clearly erroneous, or contrary to law, and further, because the request is
now moot given the dismissal of Gianni’s complaint, as discussed below,
Judge Hummel’s order is affirmed.
B.

Summary Judgment Motion
As a threshold matter, defendants argue that Gianni’s § 1983 claims

are jurisdictionally barred because Gianni’s action necessarily challenges
the validity and/or duration of his sentencing and confinement, and that
because he has not shown that he ever obtained a favorable termination
on the charges against him, he cannot maintain this § 1983 action. (Dkt.
No. 72, Attach. 1 at 5-10.) Specifically, and as the court pointed out in its
Memorandum-Decision and Order on an earlier motion to dismiss filed in
6

this case, “Heck v. Humphrey, 512 U.S. 477, 486-89 (1994) would bar this
suit should Gianni fail to demonstrate that the proceedings were terminated
in his favor or that his conviction was ‘reversed, expunged, invalidated, or
impugned by the grant of a writ of habeas corpus.’” (Dkt. No. 19 at 6 n.3.)
In response, Gianni appears to argue that Heck does not apply here
because he is not challenging the validity or duration of his sentence or
conviction, but instead is simply pointing out that his enhanced sentence
was “a mere byproduct” and a “consequence[]” of the allegedly false arrest
and malicious prosecution conducted by defendants. (Dkt. No. 78, Attach.
2 at 1-6.) Further, Gianni argues that he did obtain a “favorable
termination” of the criminal charges against him because the burglary and
criminal contempt charges were ultimately dropped. (Id.)
Generally, “when a prisoner is challenging ‘the very fact or duration of
his physical imprisonment, and the relief he seeks is a determination that
he is entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas corpus,’” and
therefore he cannot maintain a § 1983 action to challenge the fact or length
of his custody. Peralta v. Vasquez, 467 F.3d 98, 102 (2d Cir. 2006)
(quoting Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). Heck
7

expounded on this principle and held that even when a prisoner is seeking
money damages but not an earlier release from his sentence, if “the basis
for the damages claim necessarily demonstrates the invalidity of the
conviction [or sentence] . . . [the plaintiff] can be said to be attacking . . .
the fact or length of . . . confinement,” even if on its face the § 1983 action
seeks only monetary damages. 512 U.S. at 481-82 (internal quotation
marks omitted); see Peralta, 467 F.3d at 102. Therefore, in order to
maintain a § 1983 action on the basis that an underlying sentence or
conviction is constitutionally infirm, a plaintiff must first prove that the
underlying proceedings terminated in his favor. See Peralta, 467 F.3d at
102.
Gianni’s characterization of his claims is belied by his allegations in
this case. In his amended complaint, Gianni claims that the burglary and
criminal contempt charges brought against him by Officer Kopp “were used
against him” in subsequent proceedings leading to his current
incarceration, such that “the outcome of the disposition would have been
considerably more favorable for [Gianni] had he not been burdened with
the false charges.” (Am. Compl. ¶ 4(e).) “[A]lthough on its face it [seeks]
only monetary damages, ‘the basis for the damages claim necessarily
8

demonstrates the invalidity of the conviction,’” and therefore Gianni “‘can
be said to be attacking . . . the fact or length of . . . confinement.’” Peralta,
467 F.3d at 102 (quoting Heck, 512 U.S. at 481-82). Accordingly, Gianni
was required, as the court informed him at the motion to dismiss phase, to
demonstrate that the proceedings were terminated in his favor. Id.
As defendants have established, the charges against Gianni
stemming from his arrest on May 3, 2008, including the “DWI, Burglary 2nd
Degree and several related offenses,” were terminated via a “negotiated
disposition” in which Gianni pled guilty to aggravated unlicensed operation
of a vehicle on November 6, 2008. (Dkt. No. 72, Attach. 4 at 1, 56; Dkt.
No. 72, Attach. 6.) As courts have stated, a “guilty plea . . . in satisfaction
of all charges pending against [a plaintiff is] not a favorable termination as
to the charge that was dismissed.” Topolski v. Cottrell, No. 5:11-CV-1216,
2012 WL 3264927, at *6 (N.D.N.Y. Aug. 9, 2012) (citing Wims v. N.Y.C.
Police Dep’t, No. 10 Civ. 6128, 2011 WL 2946369, at *3 (S.D.N.Y. July 20,
2011)). “[W]hen a charge is dismissed as part of a plea bargain, the
dropped charge is not a favorable termination sufficient to support a [§
1983] claim,” therefore Gianni has not demonstrated that the proceedings
were terminated in his favor, and his action is barred by Heck. Id. (internal
9

quotation marks and citation omitted). Thus, defendants’ motion for
summary judgment is granted, and Gianni’s complaint is dismissed.2
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
72) is GRANTED; and it is further
ORDERED that Gianni’s amended complaint (Dkt. No. 14) is
DISMISSED; and it is further
ORDERED that the May 20, 2013 order of Magistrate Judge
Christian F. Hummel (Dkt. No. 55) is AFFIRMED; and it is further

2

The court notes Gianni’s pro se status and the liberal treatment
afforded pro se litigants in this Circuit. See Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006). Gianni has already
amended his complaint once, in response to a motion to dismiss filed by
defendants. (Dkt. No. 13.) Defendants requested that their motion to
dismiss be considered as against Gianni’s amended complaint, (Dkt. No.
15), which was granted, (Dkt. No. 16). Although Gianni has not requested
leave to further amend, at this late stage, after the close of discovery,
(Dkt. No. 62), the court would not be inclined to grant such a request.
Further, any opportunity to amend would be futile, as the problem with
Gianni’s claims is substantive, such that better pleading would not cure it.
See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Gonzalez v.
Penn. Bd. of Prob. & Parole, No. 3:13-2582, 2014 WL 65310, at *1 (M.D.
Pa. Jan. 8, 2014); Gotson v. Potter, No. 9:08-CV-478, 2009 WL 1161020,
at *4-5 (N.D.N.Y. Apr. 27, 2009).
10

ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
March 3, 2014
Albany, New York

11