Burdick v. Town of Schroeppel et al

Filing 17

ORDER adopting Report and Recommendations re 13 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Dancks' January 31, 2017 Order and Report-Recommendation (Dkt. No. 13) is ADOPTED to the extent consistent with this Order; and the Court further ORDERS that Plaintiff's amended complaint (Dkt. No. 9) is DISMISSED without leave to amend as barred under Heck v. Humphrey, 512 U.S. 477 (1994); and the Court further ORDERS that Plaintiff's 42 U.S.C.  7; 1983 claims against Justice Nazarian, Judge Todd, Lanza, Oswego County, and the Town of Schroeppel are DISMISSED with prejudice, with the exception of Plaintiff's Sixth Amendment right to a speedy trial claim, which is DISMISSED without pr ejudice; and the Court further ORDERS that Plaintiff's 18 U.S.C. §§ 241 and 242 claims against Defendants are DISMISSED with prejudice; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants 9; favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 4/6/17. (Copy served via regular and certified mail)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
STEVEN D. BURDICK,
Plaintiff,
vs.

5:16-cv-01393
(MAD/TWD)

TOWN OF SCHROEPPEL; ARMEN J.
NAZARAIN, Schroeppel Town Justice;
SALVATORE LANZA, Esq.; DONALD TODD,
Oswego County Court Judge; JAMES G.
CLOONAN, Oswego County Commissioner of
Jurors; and OSWEGO COUNTY NEW YORK,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

STEVEN D. BURDICK
4102 State Route 3
Fulton, New York 13069
Plaintiff, pro se
Mae A. D'Agostino, U.S. District Judge:
ORDER
On November 21, 2016, Plaintiff Steven D. Burdick filed his original 42 U.S.C. § 1983
civil rights complaint against Defendants Town of Schroeppel, Armen J. Nazarian1 ("Justice
Nazarian"), Salvatore Lanza, Esq. ("Lanza"), Donald Todd ("Judge Todd"), James G. Cloonan
("Cloonan"), and Oswego County. See Dkt. No. 1. That same day, Plaintiff also filed a motion
for leave to proceed in forma pauperis ("IFP"). See Dkt. No. 2. Following a series of extensions,

As Magistrate Judge Dancks noted, Plaintiff has transposed two letters of this Defendant's
surname. See Dkt. No. 13 at 4 n.2; see also Dkt. No. 12-1 at 1. The Court will use the correct
spelling, "Nazarian" and refer to this Defendant as "Justice Nazarian" throughout this Order.
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Plaintiff filed an amended complaint on January 18, 2017, see Dkt. No. 9, and additional exhibits
in support of the amended complaint on January 25, 2017, see Dkt. No. 12.
On January 31, 2017, Magistrate Judge Dancks issued an Order and ReportRecommendation which granted Plaintiff's IFP application and recommended that the Court (1)
dismiss Plaintiff's amended complaint without leave to amend, see Dkt. No. 13 at 17; (2) dismiss
Plaintiff's 42 U.S.C. § 1983 claims against Justice Nazarian, Judge Todd, Lanza, Oswego County
and the Town of Schroeppel with prejudice, see id.; (3) and refrain from exercising supplemental
jurisdiction over Plaintiff's state law claims, see id. On February 17, 2017, Plaintiff filed his
objections to the Order and Report-Recommendation. See Dkt. No. 14. On February 17, 2017
and March 9, 2017, Plaintiff filed two additional letters in support of the amended complaint. See
Dkt. Nos. 15-16. Currently before this Court is Magistrate Judge Dancks' Order and ReportRecommendation. See Dkt. No. 13.
When a plaintiff seeks to proceed IFP, "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). In making this determination, "'the court has the
duty to show liberality towards pro se litigants,' however, 'there is a responsibility on the court to
determine that a claim has some arguable basis in law before permitting a plaintiff to proceed
with an action in forma pauperis.'" Griffin v. Doe, 71 F. Supp. 3d 306, 311 (N.D.N.Y. 2014)
(quoting Moreman v. Douglas, 848 F. Supp. 332, 333-34 (N.D.N.Y. 1994); see also Thomas v.
Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power
to dismiss a complaint sua sponte if the complaint is frivolous).

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When reviewing a complaint under 28 U.S.C. § 1915(e), courts are guided by applicable
requirements of the Federal Rules of Civil Procedure. Rule 8(a) of the Federal Rules of Civil
Procedure provides that a pleading must contain "a short and plain statement of the claim showing
that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8(a) "does not require
'detailed factual allegations,' . . . it demands more than an unadorned" recitation of the alleged
misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)) (other citations omitted).
To survive dismissal for failure to state a claim, a party need only present a claim that is
"plausible on its face." Twombly, 550 U.S. at 570. "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." Iqbal, 556 U.S. at 678 (citation omitted). In
determining whether a complaint states a claim upon which relief may be granted, "the court must
accept the material facts alleged in the complaint as true and construe all reasonable inferences in
the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted).
However, "the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citation
omitted).
When a party files specific objections to a magistrate judge's order and reportrecommendation, the district court "make[s] a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1)(C). However, when a party files "'[g]eneral or conclusory objections, or objections
which merely recite the same arguments presented to the magistrate judge,'" the court reviews
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those recommendations "'for clear error.'" Chime v. Peak Sec. Plus, Inc., 137 F. Supp. 3d 183,
187 (E.D.N.Y. 2015) (quotation omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1)(C).
Plaintiff sued Defendants pursuant to 18 U.S.C. §§ 241 and 242 and 42 U.S.C. § 1983
alleging a violation of his civil rights under the First, Fifth, Sixth, and Fourteenth Amendments.
See Dkt. No. 9 at 3. Magistrate Judge Dancks recommended dismissing Plaintiff's claims on a
number of grounds. See Dkt. No. 13 at 9.
First, as Magistrate Judge Dancks correctly explained, civil lawsuits may not be used to
collaterally attack criminal convictions. See id. at 8. Rather, the Supreme Court has held that:
[I]n 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.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (citing 28 U.S.C. § 2254); see also Praileau v.
Fischer, 930 F. Supp. 2d 383, 396 (N.D.N.Y. 2013) (stating "[u]nless, and until, the conviction is
challenged and adjudicated in Plaintiff's favor, Plaintiff's [42 U.S.C. § 1983] claims are barred
under Heck").
As Magistrate Judge Dancks found, Plaintiff's claims related to the jury pool selection,
voir dire, jury charges, ineffective assistance of counsel, and appeals of the previous case would
necessarily imply the unlawfulness of a valid conviction or sentence and fall within Heck. See
Dkt. No. 13 at 9. Plaintiff objects, stating that his 42 U.S.C. § 1983 claims should not be barred
because "[a] jury found Claimant/Plaintiff was not guilty on [the] charge of Endangering the
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Welfare of a Child" and because he "is pursuing an appeal to the Court of Appeals as to the
dismissal of his appeal of conviction Oswego County Court (Judge Todd)." Dkt. No. 14 at ¶ 1.
Nonetheless, Plaintiff's convictions for resisting arrest and cruelty to an animal have not been
overturned. Where, as here, "success on Plaintiff's Section 1983 claims would implicate the
validity of the remaining convictions, Heck's bar precludes their adjudication" notwithstanding
the fact that Plaintiff was not convicted on all counts. Warren v. Fischl, No. 15-cv-2829, 2015
WL 6760230, *6 (E.D.N.Y. Nov. 5, 2015), aff'd, ___ Fed. Appx. ___, 2017 WL 66584 (2d Cir.
Jan. 6, 2017) (emphasis added). Moreover, to the extent the complaint may be deemed to assert a
cause of action under 42 U.S.C. § 1985, such claim is also barred by Heck. See Amaker v.
Weiner, 179 F.3d 48, 51-52 (2d Cir. 1999) (collecting cases).
Second, Magistrate Judge Dancks recommended dismissing the claims against Justice
Nazarian and Judge Todd with prejudice due to judicial immunity. See Dkt. No. 13 at 10.
"[J]udicial immunity is an immunity from suit, not just from ultimate assessment of damages."
Mireles v. Waco, 502 U.S. 9, 11 (1991) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
"[T]he Supreme Court has generally concluded that acts arising out of, or related to, individual
cases before the judge are considered judicial in nature." Bliven v. Hunt, 579 F.3d 204, 210 (2d
Cir. 2009). "This immunity applies even when the judge is accused of acting maliciously and
corruptly." Imbler v. Pachtman, 424 U.S. 409, 419 n.12 (1976) (citation omitted).
As Magistrate Judge Dancks found, Plaintiff sued Justice Nazarian and Judge Todd for
acts that were unquestionably judicial actions. See Dkt. No. 13 at 10. In his objections, Plaintiff
asserts that Justice Nazarian and Judge Todd "are not necessarily entitled to absolute judicial
immunity from suit for any actions simply because of their position as 'Judge' and the fact that
their misconduct/actions was/were performed in the course of their 'judicial duties.'" Dkt. No. 13
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at 10. However, as explained above, such circumstances are exactly when immunity applies.
Moreover, the Court agrees that Plaintiff's references to the ADA do not compel a different result.
See DuQuin v. Kolbert, 320 F. Supp. 2d 39, 41 (W.D.N.Y. 2004). Therefore, Plaintiff's § 1983
claims against Justice Nazarian and Judge Todd are dismissed with prejudice.
Third, Magistrate Judge Dancks recommended dismissing Plaintiff's § 1983 claims against
Defendant Lanza with prejudice because he is not a state actor. See Dkt. No. 13 at 10. "[I]t is
well-established that court-appointed attorneys performing a lawyer's traditional functions as
counsel to defendant do not act 'under color of state law' and therefore are not subject to suit
under 42 U.S.C. § 1983." Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (citations
omitted). In his objections, Plaintiff concedes that his claims "against his defense counsel
Salvatore Lanza are not recognizable under 42 U.S.C. § 1983." Dkt. No. 14 at ¶ 2. Therefore,
Plaintiff's § 1983 claims against Defendant Lanza are dismissed with prejudice.2
Fourth, Magistrate Judge Dancks recommended dismissing Plaintiff's claims against
Oswego County and the Town of Schroeppel under the doctrine of res judicata. See id. at 15.
"Under the doctrine of res judicata, 'once a final judgment has been entered on the merits of a
case, that judgment will bar any subsequent litigation by the same parties or those in privity with
them concerning the transaction, or series of connected transactions, out of which the [first] action
arose.'" Cieszkowska v. Gray Line N.Y., 295 F.3d 204, 205 (2d Cir. 2002) (quoting Maharaj v.
Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997)) (alterative in original). "To prove that a

To the extent Plaintiff contends that he can cure this defect by raising claims under 18
U.S.C. §§ 241 or 242, see id.; see also Dkt. No. 9 at 1, he errs. Plaintiff has no private right of
action under 18 U.S.C. §§ 241 and 242 because they are federal criminal statutes. See Hill v.
Didio, 191 Fed. Appx. 13, 14 (2d Cir. 2006). Therefore, to the extent the complaint may be
deemed to assert causes of action under 18 U.S.C. §§ 241 and 242, such claims are dismissed
with prejudice against all Defendants.
2

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claim is precluded under this doctrine, 'a party must show that (1) the previous action involved an
adjudication on the merits; (2) the previous action involved the [parties] or those in privity with
them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in
the prior action.'" Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001) (quoting Monahan v. New
York City Dep't of Corr., 214 F.3d 275, 284-85 (2d Cir. 2000) (other citations omitted) (alteration
in original). As Magistrate Judge Dancks explained, Plaintiff has previously brought an action
against Oswego County and the Town of Schroeppel concerning the same nucleus of facts as
alleged here. See Burdick v. Oswego Cty., NY, No. 5:15-cv-00353 MAD, 2015 WL 6554515,
(N.D.N.Y. Oct. 29, 2015). The Court dismissed Plaintiff's complaint in that action with prejudice
pursuant to 12(b)(6) with the exception of Plaintiff's Sixth Amendment speedy trial claim, which
was dismissed without prejudice. See id. at *8.
In his objection, Plaintiff contends that his claims are "necessarily still in question"
because the Court's decision in the prior action "was not rendered on the actual merits" and
because that action "was not dismissed in its entirety." Dkt. No. 14 at ¶ 4. However, "the
dismissal for failure to state a claim is a final judgment on the merits and thus has res judicata
effects." Berrios v. N.Y. City Hous. Auth., 564 F.3d 130, 134 (2d Cir. 2009) (collecting cases).
Therefore, the Court finds Plaintiff's claims against Oswego County and the Town of Schroeppel
are dismissed under the doctrine of res judicata with the exception of Plaintiff's speedy trial
claim, which the Court again dismisses without prejudice because it was not "properly raised by a
habeas corpus petition after exhausting state court remedies." Burdick, 2015 WL 6554515, at *8.

Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without
granting leave to amend at least once "'when a liberal reading of the complaint gives any
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indication that a valid claim might be stated.'" Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir.
2015) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). An opportunity to amend
is not required, however, where "the problem with [plaintiff's] causes of action is substantive"
such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(citation omitted).
In the present matter, the Court agrees with Magistrate Judge Dancks that "leave to amend
would be futile due to the bars imposed by Heck, judicial immunity, and res judicata." Dkt. No.
13 at 15. "Disposition of the case on Heck grounds, however, warrants only dismissal without
prejudice, because the suit may be reinstituted should plaintiff's conviction be '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.'" Amaker v. Weiner,
179 F.3d 48, 52 (2d Cir. 1999) (quoting Heck, 512 U.S. at 487) (other citations omitted).
Nonetheless, for the reasons stated above, Plaintiff's § 1983 claims against Justice Nazarian,
Judge Todd, Lanza, Oswego County, and the Town of Schroeppel are dismissed with prejudice
with the exception of Plaintiff's Sixth Amendment speedy trial claim against Oswego County and
the Town of Schroeppel, which is dismissed without prejudice.
Lastly, the Court agrees with Magistrate Judge Dancks's recommendation that, to the
extent the complaint may be deemed to raise state law claims, the Court decline to exercise
supplemental jurisdiction over those claims. See Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d
118, 122 (2d Cir. 2006) ("[A] district court 'may decline to exercise supplemental jurisdiction' if it
'has dismissed all claims over which it has original jurisdiction'") (citing 28 U.S.C. § 1367(c)(3)).

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After carefully reviewing Plaintiff's submissions, Magistrate Judge Dancks' January 31,
2017 Order and Report-Recommendation, the applicable law and for the above-stated reasons, the
Court hereby
ORDERS that Magistrate Judge Dancks' January 31, 2017 Order and ReportRecommendation (Dkt. No. 13) is ADOPTED to the extent consistent with this Order; and the
Court further
ORDERS that Plaintiff's amended complaint (Dkt. No. 9) is DISMISSED without leave
to amend as barred under Heck v. Humphrey, 512 U.S. 477 (1994); and the Court further
ORDERS that Plaintiff's 42 U.S.C. § 1983 claims against Justice Nazarian, Judge Todd,
Lanza, Oswego County, and the Town of Schroeppel are DISMISSED with prejudice, with the
exception of Plaintiff's Sixth Amendment right to a speedy trial claim, which is DISMISSED
without prejudice; and the Court further
ORDERS that Plaintiff's 18 U.S.C. §§ 241 and 242 claims against Defendants are
DISMISSED with prejudice; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with the Local Rules.

IT IS SO ORDERED.
Dated: April 6, 2017
Albany, New York

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