Tolliver v. City of Syracuse et al

Filing 10

MEMORANDUM-DECISION and ORDER - That Magistrate Judge Therese Wiley Danck's February 16, 2016 Report and Recommendation (Dkt. No. 8) is ADOPTED in its entirety. That Tolliver's complaint (Dkt. No. 1) is DISMISSED. That the Clerk close this case, in accordance with the Memorandum-Decision and Order issued by Senior District Judge Gary L. Sharpe on August 30, 2016. Signed by Senior Judge Gary L. Sharpe on 8/30/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ERIC TOLLIVER,

Plaintiff,

5:16-cv-99
(GLS/TWD)

v.
CITY OF SYRACUSE et al.
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Eric Tolliver
Pro Se
94-B-1563
Sullivan Correctional Facility
Box 116
Fallsburg, NY 12733
Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Eric Tolliver commenced this action against the City of
Syracuse, Onondaga County District Attorney (DA) William J. Fitzpatrick,
Onondaga County Assistant District Attorneys (ADAs) Michael A. Price,
Christopher Dougherty, and Victoria M. White, and Onondaga County DA

Freedom of Information Law (FOIL) Officer Donna Hamilton pursuant to 42
U.S.C. § 1983. (Compl., Dkt. No. 1.) Tolliver’s complaint alleges: (1) the
City of Syracuse showed deliberate indifference in failing to train and
supervise its employees regarding their Brady-Giglio obligation and to not
use or evoke perjured testimony to secure a conviction; (2) the Onondaga
County DA and ADAs did not fulfill their Brady-Giglio obligation and elicited
or allowed perjured testimony to be elicited from the two main witnesses in
Tolliver’s murder trial; and (3) the Onondaga County DA FOIL Officer
knowingly and intentionally withheld Brady-Giglio materials. (Id. at 3-8.)
Tolliver seeks declaratory and injunctive relief, as well as damages in an
unnamed amount. (Id. at 1, 9.)
In a Report-Recommendation and Order (R&R) dated February 16,
2016, Magistrate Judge Thérèse Wiley Dancks, upon initial review of
Tolliver’s complaint pursuant to 28 U.S.C. §§ 1915(e) and 1915A,
recommended that all claims within Tolliver’s complaint be dismissed with
prejudice. (Dkt. No. 8.) Pending are Tolliver’s objections to the R&R.
(Dkt. No. 9.) For the reasons that follow, the R&R is adopted in its entirety.
II. Background
In 1994, following a jury trial in Onondaga County Court, Tolliver was
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convicted of murder in the second degree and criminal possession of a
weapon in the second degree in connection with the shooting death of
Marshall Solomon, and sentenced to an indeterminate term of twenty-five
years to life. Tolliver v. Greiner, No. 902CV0570570LEKRFT, 2005 WL
2179298, at *1 (N.D.N.Y. Sept. 8, 2005). Tolliver’s conviction and
sentences were affirmed by the Appellate Division, Fourth Department.
See People v. Tolliver, 267 A.D.2d 1007 (4th Dep’t 1999.) The New York
Court of Appeals denied Tolliver’s application for leave to appeal. See
People v. Tolliver, 94 N.Y.2d 908 (2000). Tolliver is presently a prison
inmate in the custody of the New York State Department of Corrections
and Community Supervision. (Compl. at 2.)
Tolliver’s Complaint involves conduct that occurred before he was
convicted and centers around two main witnesses who testified at his trial.
(Id. at 3-7.) Tolliver alleges DA Fitzpatrick and ADAs Price and Dougherty
engaged in issuing a fake fugitive warrant to produce a witness and then
coerced the witness to testify against Tolliver in exchange for dismissal of
a murder charge, struck a deal with a DA’s Office in Colorado in exchange
for another witness’ testimony, elicited perjured testimony from both
witnesses that no deal was struck, and failed to fulfill their Brady-Giglio
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obligations in regard to notifying Tolliver of any deals made. (Id.) Tolliver
also alleges ADA White falsely swore in a 2013 affirmation in opposition to
Tolliver’s CPL § 440.10 motion that no deal was made between the
Onondaga County DA Office and the two main witnesses at trial, and, as a
result, withheld Brady-Giglio materials from Tolliver. (Id. at 7-8.) Finally,
Tolliver alleges Hamilton, a Paralegal and Records Access Officer,
knowingly and intentionally withheld Brady-Giglio materials from Tolliver,
his wife, and his attorneys when, in response to FOIL requests made by
Tolliver, his wife, and his attorneys, she failed to turn over documents
demonstrating the existence of deals made with a witness in exchange for
testimony. (Id. at 8.)
III. Standard of Review
Before entering final judgment, this court reviews report and
recommendation orders in cases it has referred to a magistrate judge. If a
party properly objects to a specific element of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006).
In those cases where no party has filed an objection, only vague or general
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objections are made, or a party resubmits the same papers and arguments
already considered by the magistrate judge, this court reviews the findings
and recommendations of the magistrate judge for clear error. See id. at *45.
IV. Discussion
In the R&R, Judge Dancks recommends dismissal of all of Tolliver’s
claims with prejudice. Judge Dancks recommends dismissal of Tolliver’s
claim against the City of Syracuse with prejudice because Tolliver failed to
allege any facts plausibly showing that the City had any involvement in the
acts outlined in his Complaint or that the City had any authority to become
involved and therefore Tolliver’s claim against the City is frivolous. (Dkt.
No. 8 at 8.) Judge Dancks recommends dismissal with prejudice of
Tolliver’s claim against Hamilton because Tolliver has failed to state a 42
U.S.C. § 1983 claim for violation of his Constitutional rights with regard to
Hamilton’s response to FOIL requests. (Id. at 9-10.) Finally, Judge
Dancks recommends dismissal of the claims against DA Fitzpatrick and
ADAs Price, Dougherty, and White pursuant to the doctrine of prosecutorial
immunity. (Id. at 8-9.) In the alternative, Judge Dancks recommends
dismissal notwithstanding absolute immunity because Tolliver’s claims are
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barred by the doctrine outlined in Heck v. Humphrey, 512 U.S. 477 (1994).
(Id. at 8 at 10-11.) Tolliver objects to the R&R on the singular basis that
Judge Dancks erred in her analysis of Heck v. Humphrey. (Dk. No. 9 at 23.)1 Because Tolliver fails to object to the R&R’s decision on the first three
grounds, the court has reviewed the R&R for clear error only and has found
none. The R&R is therefore adopted in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Thérèse Wiley Dancks’s February
16, 2016 Report and Recommendation (Dkt. No. 8) is ADOPTED in its
entirety; and it is further
ORDERED that Tolliver’s complaint (Dkt. No. 1) is DISMISSED; and
it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Memorandum1

In Heck, the Supreme Court held that a state prisoner’s claim for damages under 42
U.S.C. § 1983 is precluded if “a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence” absent proof that the inmate has already secured
invalidation of that conviction or sentence. Heck, 512 U.S. at 487. Tolliver argues that his
potential success in this action would not demonstrate the invalidity of his conviction or duration
of his sentence in proceedings relating to his current § 1983 claims and therefore his claims are
not barred by Heck. (Dk. No. 9 at 4.) His assertion is simply erroneous. See Amaker v.
Weiner, 179 F.3d 48, 51 (2d Cir. 1999).

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Decision and Order to the parties.
IT IS SO ORDERED.
August 30, 2016
Albany, New York

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