Harris v. Clark et al

Filing 5

ORDER. ORDERED, that the 3 Report-Recommendation of Magistrate Judge Randolph F. Treece filed 10/4/2011 is ACCEPTED in its entirety for the reasons stated therein and it is further ORDERED that the complaint is dismissed pursuant to 28 U.S.C. 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted. Signed by Chief Judge Gary L. Sharpe on 1/27/2012. (Attachments: # 1 Report-Recommendation and Order) (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ROGER L. HARRIS,
Plaintiff,
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Civ. No. 1:11-CV-949
(MAD/RFT)

CHRISTINE CLARK; VINCENT VERSACI;
GUIDO LOYOLA; and CARL G. FALOTICO,
Defendants.
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RANDOLPH F. TREECE
United States Magistrate Judge
REPORT RECOMMENDATION and ORDER
The Clerk has sent to the Court for review a civil rights Complaint, pursuant to 42 U.S.C.
§ 1983, from pro se Plaintiff Roger Harris. Dkt. No. 1, Compl. Plaintiff has also filed a Motion to
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Proceed In Forma Pauperis. Dkt. No. 2.
II. DISCUSSION
A. In Forma Pauperis Application
Turning first to Plaintiff’s Motion to Proceed with this Action In Forma Pauperis, after
reviewing the entire file, the Court finds that Plaintiff may properly proceed with this matter in

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forma pauperis.
B. Plaintiff’s Complaint
Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to
proceed in forma pauperis, “the court shall dismiss the case at any time if the court determines that
. . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may
be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). Thus, it is a court’s responsibility to determine that a plaintiff may properly

maintain his complaint before permitting him to proceed with his action.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which “establishes a cause of action
for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws’
of the United States.” German v. Fed. Home Loan Mortgage Corp., 885 F. Supp. 537, 573
(S.D.N.Y. 1995) (quoting Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) & 42 U.S.C. §
1983); see also Myers v. Wollowitz, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (stating that
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Ҥ 1983 is the vehicle by which individuals may seek redress for alleged violations of their
constitutional rights”).
In his fifty-eight-page Complaint, Plaintiff recounts how it came to be that on or about
September 28, 2007, he was arrested in Schenectady County after being accused of assaulting an
individual.1 After a jury trial was held in March 2010, Plaintiff was found guilty of assault.
Plaintiff’s civil Complaint centers around the numerous constitutional violations he believes

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occurred in the events leading up and subsequent to that arrest. Plaintiff further claims that all
Defendants, and several non-parties, conspired and discriminated against him because of his race.
More specifically, Plaintiff claims that at various times during the criminal prosecution of the state
assault charge, Plaintiff’s due process rights were violated by the Defendants who presided over
different stages of the prosecution, namely Judge Christine Clark, Judge Vincent Versaci, Judge
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Guido Loyala, and by the Assistant District Attorney who opposed his motion to stay the sentence,
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Plaintiff filed two other civil actions relating to this arrest. First, on December 9, 2008, Plaintiff filed a civil
rights actions against, inter alia, various employees of the Schenectady County Sheriff’s Department, with whom he had
been employed as a correctional officer until he was terminated as a result of his September 2008 arrest. See Harris v.
Buffardi, et al., 1:08-CV-1322 (GLS/DRH). Then, on May 26, 2010, Plaintiff filed a second civil rights action against,
inter alia, various Schenectady County police officers and assistant district attorneys, complaining of certain conduct
leading up to and subsequent to his September 2008 arrest that he believed violated his constitutional rights. See Harris
v. District Atty. of County of Schenectady, et al., 1:10-CV-618 (GLS/DRH). In both cases, judgments were entered on
behalf of the Defendants after dispositive motions were filed. Currently pending in both cases are Plaintiff’s Motions
for Reconsideration.

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namely Carl G. Falotico. Amongst his multitude of claims of errors included in his Complaint
regarding the Judges’ various rulings on his requests are the following: 1) failure to invalidate and
dismiss the warrantless arrest; 2) failure to suppress evidence that he classified as false, fabricated,
and misleading; 3) failure to have exculpatory evidence turned over to him; and 4) failure to stay
and/or set aside his sentence. Plaintiff further claims that he was denied the effective assistance of
counsel and was deprived of a fair trial. According to the Complaint, as of the date this action was
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filed, Plaintiff still had motions pending in the state court regarding his challenges to his conviction
and/or sentence. In addition to monetary relief, Plaintiff seeks declaratory relief, which includes the
request that many of the Defendants’ judicial decisions entered in the state criminal case be declared
unconstitutional.
Plaintiff’s entire action suffers from a fatal flaw. His wholesale attack on the manner in
which his conviction and sentence were procured amount to a challenge of the lawfulness of his

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conviction and sentence and therefore is not cognizable under § 1983, or any other civil rights
statute, such as 42 U.S.C. § 1985 regarding civil actions for conspiracy. The Supreme Court has
held that

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in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, 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 of a writ of habeas corpus, 28 U.S.C. § 2254.
A claim for damages bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under § 1983.
Heck v. Humprhey, 512 U.S. 477, 486-87 (1994) (emphasis added).
It is clear from his Complaint that no decision has been rendered invalidating the very conviction
he now seeks to attack. In fact, as of the date his Complaint was filed, his state court challenges to

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that conviction and sentence were ongoing. Thus, Plaintiff’s civil action, whether under § 1983 or
§ 1985, is not cognizable absent proof that his sentence was reversed, expunged, declared invalid,
or called into question. Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) (holding that Heck also
applies to claims challenging a plaintiff’s conviction under §§ 1981, 1983, 1985, and 1986);
Fernandez v. Holzbach, 2007 WL 1467182, at *1 (D. Conn. May 15, 2007) (dismissing claims
against judge, prosecutor, detectives, witnesses, and other state officials for perjury and fabrication
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of evidence as precluded by plaintiff’s valid conviction); Duamutef v. Morris, 956 F. Supp. 1112,
1116-18 (S.D.N.Y. 1997) (dismissing claims for false arrest, malicious prosecution, perjury, First
Amendment retaliation, and § 1985 conspiracy—all of which formed the basis for plaintiff’s overall
claim that defendants conspired against him to frame him for a crime—as precluded by plaintiff’s
valid conviction). Thus, Plaintiff’s § 1983 action should be dismissed as the improper vehicle to
accomplish the relief being sought.

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III. CONCLUSION
Based on the above discussion, it is hereby
ORDERED, that Plaintiff’s In Forma Pauperis Application (Dkt. No. 1) is granted; and
it is further
RECOMMENDED, that the Complaint be dismissed pursuant to 28 U.S.C. §
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1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted; and it is further
ORDERED, that the Clerk serve a copy of this Report Recommendation and Order on
Plaintiff by regular mail.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written
objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.

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FAILURE TO OBJECT TO THIS REPORT WITHIN TEN (10) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y
of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R.
CIV. P. 72 & 6(e).
IT IS SO ORDERED.
Date: October 4, 2011
Albany, New York
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