Kunz v. Brazill et al

Filing 23

ORDER adopting Report and Recommendations re 11 Report and Recommendations:The Court hereby ORDERS that Magistrate Judge Dancks Order and Report-Recommendation (Dkt. No. 11) is ADOPTED in its entirety; and the Court further ORDERS that Plaintiff&# 039;s complaint is DISMISSED as follows: (1) Plaintiff's § 1983 claims are dismissed without leave to amend as barred under Heck v. Humphrey, 512 U.S. 447 (1993), and the applicable statute of limitations, and for failure to state a claim; and (2) the Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims under Article 1, § § 6 and 11 of the New York State Constitution; and the Court further ORDERS that Plaintiff's motion for a default judgment and hearing (Dkt. No. 20) is DENIED. Signed by U.S. District Judge Mae A. D'Agostino on 2/25/15. [copy mailed to plaintiff via regular mail] (ban) Modified on 2/25/2015 (ban).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ROBERT J. KUNZ,
Plaintiff,
vs.

6:14-CV-1471
(MAD/TWD)

ROGER BRAZILL and SANDRA J. DOORLEY,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

ROBERT J. KUNZ
03-B-1730
Marcy Correctional Facility
Post Office Box 3600
Marcy, New York 13403
Plaintiff pro se

Mae A. D'Agostino, U.S. District Judge:
ORDER
On December 5, 2014, Plaintiff commenced this action pro se pursuant to 42 U.S.C. §
1983. See Dkt. No. 1. Plaintiff alleges that in connection with his arrest and conviction on sexual
assault charges, Defendant Sandra J. Doorley ("Defendant Doorley"), the prosecuting assistant
district attorney, violated "his constitutional rights to due process and equal protection under
Article 1, § § 6 and 11 of the New York State Constitution and his rights to due process and equal
protection under the Fifth and Fourteenth Amendments." Dkt. No. 11 at 4; see also Dkt. No. 1 at
7-16. Plaintiff also alleges that Defendant Roger Brazill ("Defendant Brazill"), Plaintiff's defense
counsel on the charges, rendered ineffective assistance of counsel in violation of Plaintiff's Sixth
Amendment rights. Dkt. No. 11 at 4-5; see also Dkt. No. 1 at 7-16.

In an Order and Report-Recommendation dated January 29, 2015, Magistrate Judge
Therese Wiley Dancks granted Plaintiff's application to proceed in forma pauperis ("IFP") and
reviewed the sufficiency of Plaintiff's complaint. See Dkt. No. 11. Magistrate Judge Dancks first
found that any "§ 1983 claims asserted against Defendants by Plaintiff, and any proposed
amendment thereof, are futile because the applicable statutes of limitations have expired." Id. at
5. Magistrate Judge Dancks then found that even if the statute of limitations had not expired,
Plaintiff had failed to state a claim against either of the Defendants under § 1983. Id. at 7. In
regard to Defendant Brazill, Magistrate Judge Dancks found that as a public defender performing
an attorney's traditional function as defense counsel, Defendant Brazill was not acting under color
of state law and thus was not liable under § 1983. Id. at 8. Magistrate Judge Dancks further
found that Plaintiff's allegations did not "make a plausible showing that [Defendant] Brazill
willfully participated with [Defendant] Doorley in the violation of Plaintiff's constitutional
rights." Id. Magistrate Judge Dancks also found that Defendant Doorley is "entitled to absolute
immunity with regard to the claims asserted against her in the Complaint" because she was
engaged in prosecutorial functions in the conduct alleged and not investigative functions that
would subject her to only qualified immunity. Id. at 9. Next, Magistrate Judge Dancks found that
Heck v. Humphrey, 512 U.S. 477 (1994), bars Plaintiff's claims, because under Heck, Plaintiff's
conviction must be overturned or his sentence invalidated to permit Plaintiff to bring claims
pursuant to § 1983 that necessarily call into question the validity of Plaintiff's conviction or
sentence. Id. at 10. Magistrate Judge Dancks then recommended that this Court dismiss
Plaintiff's § 1983 claims without leave to amend because allowing Plaintiff an opportunity to
amend would be futile "both because of the bar imposed by the statute of limitations, and the bar
imposed by Heck, absent a future invalidation of Plaintiff's conviction or sentence." Id. at 10-11.
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Regarding Plaintiff's New York State constitutional claims, Magistrate Judge Dancks
"recommend[ed] that [this Court] decline to exercise supplemental jurisdiction over Plaintiff's
state law claims without prejudice subject to refiling in state court and to reconsideration in the
event [this Court] does not accept" her Order and Report-Recommendation. Id. at 11. Magistrate
Judge Dancks also denied Plaintiff's motions for the appointment of counsel and default
judgment, explaining that Defendants have not yet been served with Plaintiff's complaint as it has
not yet passed the initial review stage. Id. at 11-12.
Subsequent to the filing of Magistrate Judge Dancks' Order and Report-Recommendation,
Plaintiff submitted a letter to this Court in which he claims that Magistrate Judge Dancks' refusal
to grant either a default judgment or a wrongful imprisonment hearing is in error. Dkt. No. 20 at
1. Plaintiff has not otherwise objected to Magistrate Judge Dancks' Order and ReportRecommendation.
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." Moreman v. Douglas, 848 F. Supp. 332, 333–34 (N.D.N.Y.
1994) (internal citations omitted).
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes 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). However,
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when a party files "[g]eneral or conclusory objections, or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote 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).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health & Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
Having reviewed Magistrate Judge Dancks' Order and Report-Recommendation,
Plaintiff's submissions, and the applicable law, the Court finds that Magistrate Judge Dancks
correctly recommended that the Court should dismiss Plaintiff's complaint. 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 indication that a valid claim might be
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stated." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). However, as set out in Magistrate
Judge Dancks' Order and Report-Recommendation, leave to amend in the current case would be
futile due to the statute of limitations bar and the bar imposed by Heck. See Dkt. No. 11 at 10-11.
Accordingly, the Court adopts Magistrate Judge Dancks' recommendation that Plaintiff's claims
be dismissed without leave to amend.
Furthermore, Judge Dancks' Order and Report-Recommendation correctly informed
Plaintiff that "Defendants have not been served with the Complaint and have no present
obligation to respond to it." Dkt. No. 11 at 12. The Court adopts Magistrate Judge Dancks'
reasoning in her Order and Report-Recommendation in regard to Plaintiff's earlier requests for
default judgment, see id., and accordingly denies Plaintiff's motion for default judgment.
In light of the foregoing, the Court hereby
ORDERS that Magistrate Judge Dancks Order and Report-Recommendation (Dkt. No.
11) is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's complaint is DISMISSED as follows:
(1) Plaintiff's § 1983 claims are dismissed without leave to amend as barred under Heck v.
Humphrey, 512 U.S. 447 (1993), and the applicable statute of limitations, and for failure to state a
claim; and
(2) the Court declines to exercise supplemental jurisdiction over Plaintiff's state law
claims under Article 1, § § 6 and 11 of the New York State Constitution; and the Court further
ORDERS that Plaintiff's motion for a default judgment and hearing (Dkt. No. 20) is
DENIED; and the Court further

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ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: February 25, 2015
Albany, New York

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