Stephenson v. Albany County Policymakers et al

Filing 7

REPORT AND RECOMMENDATIONS and ORDER granting 2 MOTION for Leave to Proceed in forma pauperis ; RECOMMENDING that 1 Complaint filed by David Stephenson be dismissed. ( Objections to R&R due by 8/28/2009, Case Review Deadline 9/3/2009). Clerk served all non-ecf parties this Order via regular mail on 8/14/09. Signed by Magistrate Judge Randolph F. Treece on 8/14/09. (tab, )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK DAVID STEPHENSON, Plaintiff, -vALBANY COUNTY POLICYMAKERS, et al., Defendants.
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Civ. No. 6:09-CV-326 (LEK/RFT)

APPEARANCES: DAVID STEPHENSON 06-A-3734 Plaintiff, pro se Marcy Correctional Facility Box 3600 Marcy, New York 13403 RANDOLPH F. TREECE United States Magistrate Judge
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OF COUNSEL:

REPORT-RECOMMENDATION and ORDER The Clerk has sent to the Court a civil rights Complaint (Dkt. No. 1), Motion to Proceed In Forma Pauperis (IFP) (Dkt. No. 2), Motion for Joinder of Claims (Dkt. No. 3), and a Motion to Appoint Counsel and Conduct Discovery (Dkt. No. 6), filed by pro se Plaintiff David Stephenson, who is currently incarcerated at Marcy Correctional Facility.1 In his pro se Complaint, Stephenson alleges civil rights violations based upon, inter alia, malicious prosecution, abuse of process, conspiracy, fraud, invasion of privacy, and attorney malpractice. For a more complete statement of Plaintiff's claims, reference is made to the Complaint.

In 2006, Stephenson filed a civil rights action in this Court, pursuant to 42 U.S.C. § 1983, Stephenson v. Herrick, Civ. No. 1:06-CV-1466 (GLS/DRH), which was dismissed by the Court, sua sponte, for failure to state a claim upon which relief could be granted. Stephenson's Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, is also pending in this Court, Stephenson v. Superintendent, Civ. No. 9:08-CV-1243 (LEK/RFT).

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I. DISCUSSION A. Application to Proceed In Forma Pauperis Plaintiff has submitted an In Forma Pauperis Application. The Prison Litigation Reform Act (PLRA), codified in part at 28 U.S.C. § 1915(b), provides that an inmate who seeks in forma pauperis status is required to pay over a period of time the full amount of the filing fee provided for in 28 U.S.C. § 1914(a), which is currently $350.00 for most civil actions. After reviewing Plaintiff's Application, we find that he may properly proceed in forma pauperis. B. Allegations Contained in the 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 further with his action. Moreover, under 28 U.S.C. § 1915A, a court must, as soon as practicable, sua sponte review "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employees of a governmental agency" and must "identify cognizable claims or dismiss the
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complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §§ 1915A(a) & (b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam). Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which "establishes a cause of action

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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 "§ 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights"). In this action, Plaintiff seeks to hold Defendants liable for various alleged constitutional violations, including, but not limited to: · · conspiracy claims against all Defendants; claims for malicious prosecution and abuse of process against Defendants Mark Haskins, New York State Bureau of Narcotics, P. David Soares, Albany County District Attorney, and Christopher Baynes, Albany County Assistant District Attorney; ·
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claims of "undue influence and fraud" against Defendants Haskins, Albany County Task Force, and Albany County Prosecutors; claims of "common law fraud" and attorney malpractice against Defendant F. Stanton Ackerman, his court appointed attorney; invasion of privacy claims against Defendants Haskins, Andrew Zostant, Town of Colonie Police Detective, Steven Heider, Town of Colonie Police Superintendent, and other members of the Albany County Task Force for interfering with Plaintiff's expectation of privacy and private communications without probable cause; and

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what appears to be a Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978), claim against Albany County for various policies and customs.

See generally Compl. The initial impediment to Plaintiff's pursuit of this action is aptly summarized in Plaintiff's Complaint: "The Plaintiff has a pending Federal Habeas Corpus Petition in the Northern District of New York Federal Court, Case No. 9:08-CV-1243. This 1983 action and complaint is intended -3-

to supplement that Petition, as these claims for money damages are relevant to the same set of facts." Compl. at ¶ 17 (emphasis added). Indeed, as Plaintiff overtly admits, this entire § 1983 action (including state claims for malpractice and fraud) relates to events leading up to and including his guilty plea and sentence in Albany County Court in 2006.2 The Supreme Court has held that 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. Humphrey, 512 U.S. 477, 486-87 (1994). Plaintiff's claims in this action are barred because he has failed to show that his conviction or sentence has been overturned. See Duamutef v. Morris, 956 F. Supp. 1112, 1115-18 (S.D.N.Y. 1997) (dismissing § 1983 claims of malicious prosecution, false arrest, perjury, retaliation, and civil rights conspiracy under Heck where the plaintiff's underlying conviction had not been overturned). Because all of Plaintiff's claims relate to events that gave rise to Plaintiff's conviction and the sentence he is currently serving, many of which are currently interposed in his pending Habeas Corpus Petition,3 this action is barred under Heck and we recommend dismissal pursuant to 28
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A similar fait accompli vanquished Stephenson's prior attempt to sue various individuals in this Court, Stephenson v. Herrick, et al., Civ. No. 1:06-CV-1466 (GLS/DRH). Upon information and belief, the core events giving rise to Stephenson's prior § 1983 action are the same events giving rise to the current action. That prior civil rights action was dismissed in light of Heck v. Humphrey, 512 U.S. 477 (1994). See Stephenson v. Herrick, et al., Civ. No. 1:06-CV-1466, Dkt. No. 9, Decision and Order, dated Mar. 8, 2007. Stephenson raises the following grounds, inter alia, in support of his Habeas Petition: 1) he was denied equal protection and due process in state court when he was denied, inter alia, a grand jury and was subjected to an insufficient accusatory process and was victim of an illegal search and seizure; 2) he was a victim of selective prosecution and "Mode of Proceedings error"; and 3) his guilty plea was unknowing and unintelligent due to ineffective assistance of counsel. Stephenson v. Superintendent, Civ. No. 9:08-CV-1243 (LEK/RFT), Dkt. No. 1, Pet.
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U.S.C. § 1915(e)(2)(B)(i) and (ii) as it lacks an arguable basis in law. We note that this recommendation is limited to all § 1983 claims asserted by Plaintiff. Plaintiff has also inserted some state law claims sounding in fraud and attorney malpractice. It is not clear whether Plaintiff intended to assert these claims in support of his § 1983 claims, or if he intended them to stand on their own, thereby invoking the Court's pendent jurisdiction to entertain state law claims. To the extent they are part and parcel of the § 1983 claims, then they too suffer the same infirmity and are barred by Heck. To the extent, however, that they are purely state law claims, in light of this Court's recommendation of dismissal of the federal claims, we would recommend the Court not exercise pendent jurisdiction of such state law claims, pursuant to 28 U.S.C. § 1367, which authorizes a federal court to decline to exercise supplemental jurisdiction over a state claim if all of the claims over which the court had original jurisdiction were dismissed. 28 U.S.C. § 1367(c)(3). C. Other Pending Motions
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Presently pending in this matter are Plaintiff's Motions for Joinder of Claims, Appointment of Counsel, and to Conduct Discovery. In light of the Court's recommendation of full dismissal, we find it unnecessary at this juncture to adjudicate such claims. Should the District Judge assigned to this matter accept this recommendation, such Motions would be automatically terminated upon the closing of this case. If, however, the recommendation is not accepted, the Clerk shall forward this file to the undersigned for consideration of these Motions. WHEREFORE, it is hereby ORDERED, that Plaintiff's In Forma Pauperis Application (Dkt. No. 2) is granted; and it is further RECOMMENDED, that pursuant to the Court's review under 28 U.S.C. § 1915 and §

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1915A, Plaintiff's entire Complaint be should be dismissed as barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), and the Court should decline to exercise pendent jurisdiction over any purported state claims pursuant to 28 U.S.C. § 1367(c)(3); and it is further ORDERED, that in the event the District Court does not adopt the above recommendation, the entire file be returned to the undersigned for consideration of Plaintiff's other Motions (Dkt. Nos. 3 & 6); 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. 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(a), & 6(e). Date: August 14, 2009 Albany, New York
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