Walker v. Briggs
Filing
6
DECISION AND ORDER: ORDERS that this action is dismissed, with prejudice, for failure to state a cause of action and as frivolous; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order upon the Plainti ff in accordance with the Courts Local Rules; and the court further ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 11/22/2011. (ptm) (Copy served on plaintiff by regular mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
TOMMY WALKER, III,
Plaintiff,
v.
9:11-CV-959
(MAD/DEP)
JERRY BRIGGS,
Defendant.
_________________________________________
APPEARANCES:
OF COUNSEL:
TOMMY WALKER, III
06328-052
U.S. Penitentiary
P.O. Box 1000
Lewisburg, Pennsylvania 17837
Plaintiff pro se
Mae D’Agostino, U.S. District Judge
DECISION AND ORDER
I.
BACKGROUND
On or about August 10, 2011, pro se Plaintiff Tommy Walker, III, who is presently
incarcerated, filed a pleading styled as a motion for return of property, pursuant to Rule 41(g) of
the Federal Rules of Criminal Procedure.1, 2 See Dkt. No. 1. Plaintiff seeks the return of
1
The motion was originally filed by the Clerk of the Court under Walker v.
Briggs, Civil Action No. 9:89-CV-C432, an action commenced by Plaintiff on December 6,
1989, arising out of the same facts and circumstances alleged in the current complaint. By Text
Order of August 12, 2011, the Court directed the Clerk to re-file this complaint as a separate
action. See Walker v. Briggs, Civil Action No. 9:89-CV-1432, Text Order of 8/12/11. In
accordance with that directive, the Clerk filed Plaintiff’s complaint as a separate action under
Civil Action No. 9:11-CV-0959.
2
Since criminal proceedings are no longer pending against Plaintiff, the Court has
(continued...)
property allegedly seized by the Utica Police Department during an illegal search conducted on
November 18, 1988. At the time of filing, Plaintiff did not pay the filing fee, nor did he file an
application to proceed in forma pauperis (“IFP”). Accordingly, the Court ordered that Plaintiff
either pay the $350.00 filing fee in full, or provide the Clerk of the Court with a signed IFP
application and inmate authorization form within thirty (30) days from the date of the Court’s
Decision and Order, issued on September 15, 2011. See Dkt. No. 2. In compliance with that
directive, on October 24, 2011, Plaintiff filed an IFP application along with a signed inmate
authorization.3 See Dkt. Nos. 3, 4. On that date, Plaintiff also filed a document he has
identified as a “motion of clarification.” See Dkt. No. 5. Upon review of Plaintiff’s
submissions, the Court has determined that Plaintiff’s application to proceed IFP will be
granted, but that this action will be dismissed.
II.
REVIEW OF PLAINTIFF’S MOTION TO PROCEED IFP
A.
In Forma Pauperis Application
After a careful review of Plaintiff’s IFP application, the Court finds that Plaintiff
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(...continued)
construed his motion for return of property as a claim for civil equitable relief. See Polanco v.
United States Drug Enforcement Admin., 158 F.3d 647, 649 (2d Cir. 1998); Rufu v. United
States, 20 F.3d 63, 65 (2d Cir. 1994) (holding that if a motion for return of seized property is
“made after the termination of criminal proceedings against the defendant . . . such a motion
should be treated as a civil complaint for equitable relief”).
3
Though filed on October 24, 2011, more than thirty (30) days following the
Court’s issuance of its Decision and Order, the IFP application is signed by Plaintiff and dated
October 14, 2011. Affording Plaintiff the benefit of the prison mail box rule, under which a pro
se inmate's papers are deemed filed as of the date they are given to prison officials, see Tracy v.
Freshwater, No. 5:01-CV-0500, 2008 WL 850594, *1 (N.D.N.Y. Mar. 28, 2008) (citing
Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385 (1988)), the Court will assume that
Plaintiff delivered his papers to prison officials on that date and will therefore deem his filing
timely.
2
qualifies for IFP status. As such, Plaintiff’s request to proceed in forma pauperis in this action
is granted.
B.
Standard of Review
Since the Court has found that Plaintiff meets the financial criteria for commencing this
action in forma pauperis, the Court must consider the sufficiency of the allegations set forth in
his pleading in light of 28 U.S.C. § 1915(e). Section 1915(e) 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 – . . . (B) the action . . . (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, the Court has a gatekeeping responsibility
to determine whether a complaint may be properly maintained in this District before it may
permit a plaintiff to proceed with an action in forma pauperis. See id.
In deciding whether a complaint states a colorable claim, a court must extend a certain
measure of deference towards pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir.
1990), and extreme caution should be exercised in ordering sua sponte dismissal of a pro se
complaint before the adverse party has been served and the parties have had an opportunity to
respond, see Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). There is, nonetheless, an
obligation on the part of the court to determine that a claim is not frivolous before permitting a
plaintiff to proceed.4 See Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363
4
“Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless
legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive
defense clearly exists on the face of the complaint.’” Aguilar v. United States, Nos. 3:99-MC304, 3:99-MC-408, 1999 WL 1067841, *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v.
(continued...)
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(2d Cir. 2000) (holding that a district court may dismiss as frivolous a complaint sua sponte
notwithstanding the fact that the plaintiff has paid the statutory filing fee); Wachtler v. County
of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (holding that a district court has the power to
dismiss a case sua sponte for failure to state a claim).
When reviewing a complaint under section 1915(e), the court may also look to the
Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that
a pleading that sets forth a claim for relief shall contain “a short and plain statement of the
claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The purpose of
Rule 8 “‘is to give fair notice of the claim being asserted so as to permit the adverse party the
opportunity to file a responsive answer [and] prepare an adequate defense.’” Hudson v. Artuz,
No. 95 CIV. 4768, 1998 WL 832708, *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (quoting Brown v. Califano, 75 F.R.D. 497,
498 (D.D.C. 1977))) (other citation omitted).
A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “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.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation omitted). Although the court should
construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
4
(...continued)
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490
U.S. 319, 325 (1989); Pino v. Ryan, 49 F.3d. 51, 53 (2d Cir. 1995) (holding that "the decision
that a complaint is based on an indisputably meritless legal theory, for the purposes of dismissal
under section 1915([e]), may be based upon a defense that appears on the face of the
complaint”).
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conclusions.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555, 127 S. Ct. 1955).
Thus, “where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the
pleader is entitled to relief.’” Id. at 1950 (quoting Fed. Rule Civ. Proc. 8(a)(2)).
III.
ANALYSIS OF PLAINTIFF’S COMPLAINT
A.
Summary of Plaintiff’s Claims
Instead of a single integrated pleading, Plaintiff filed his original motion, followed by
the filing of a “motion for clarification,” which the Court will treat as an amended pleading.5 In
his pro se motion, Plaintiff contends that the Utica Police Department conducted an illegal
search of his vehicle on November 18, 1988, without a search warrant. See Dkt. No. 1 at ¶ 1.
During the course of that search, the law enforcement agents allegedly seized $638.00 in cash,
electronic equipment, airplane tickets, personal clothing, Plaintiff’s vehicle, and other items of
minimum value. See id. Plaintiff claims that he has contacted the Oneida County District
Attorney’s Office on several occasions for the return of his seized property, to no avail. See id.
at ¶ 2. Plaintiff seeks the return of his property or, in the alternative, an evidentiary hearing to
show cause as to why this property is still being held by law enforcement officials. See id. at ¶
12.
Plaintiff’s amended pleading alleges the same factual basis for his claims, but provides
5
Plaintiff's initial and amended pleading are properly considered together by the
Court when evaluating the plausibility of his claims. See Hale v. Rao, No. 9:08-CV-1612, 2009
WL 3698420, *3 n.8 (N.D.N.Y. Nov. 3, 2009) (holding that “in cases where a pro se plaintiff is
faced with a motion to dismiss, it is appropriate for the court to consider materials outside the
complaint to the extent they are consistent with the allegations in the complaint”).
5
some additional factual background, including that the state charges that were brought against
him in New York were dismissed, and that the Oneida County District Attorney’s office was
ordered to return the seized property. See Dkt. No. 5 at 2. Plaintiff also attaches
correspondence from the Oneida County District Attorney’s Office, dated September 28, 2007,
advising Plaintiff that it possesses $638.00 seized at the time of his arrest and that it would
return one-third of that amount in exchange for Plaintiff’s agreement to forfeit the remainder.
See id. at Attachment. Plaintiff refused the District Attorney’s offer and demanded the return of
all of the property that was seized. See id. The property was not returned. See id. at 4.
Perhaps most significantly, in his “motion for clarification,” Plaintiff “seeks to have his Rule
41(g) motion recharacterized as a motion under Rule 60(b).”6 See id. at 4.
Read in light of the applicable standards, the Court finds that the claim set forth in
Plaintiff’s submissions, which in deference to Plaintiff’s pro se status the Court has construed
as a whole, fails to state a cause of action upon which relief may be granted and are frivolous.
B.
Application of Governing Legal Principles to Plaintiff's Claims
1.
Plaintiff’s Claim Under Federal Rule of Criminal Procedure 41(g) is
Untimely
Plaintiff’s original pleading was brought pursuant to Federal Rule of Criminal Procedure
41(g), which provides that,
[a] person aggrieved by an unlawful search and seizure of
property or by the deprivation of property may move for the
property's return. The motion must be filed in the district where
the property was seized. The court must receive evidence on any
factual issue necessary to decide the motion. If it grants the
6
In its previous Decision and Order, the Court observed that it appeared that his
Complaint was both untimely and barred by the doctrine of res judicata. See Dkt. No. 2 at 3 &
n.1.
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motion, the court must return the property to the movant, but may
impose reasonable conditions to protect access to the property and
its use in later proceedings.
Fed. R. Crim. Proc. 41(g). Such an action is subject to the six-year statute of limitations set
forth in 28 U.S.C. § 2401(a). See Polanco v. United States Drug Enforcement Admin., 158 F.
3d 647, 653 (2d Cir. 1998); see also Valencia-Romero v. United States, No. 97 CV 6723, 1998
WL 938949, *2 (E.D.N.Y. Nov. 18, 1998). A cause of action accrues for statute of limitations
purposes when the plaintiff “knows or has reason to know of the harm” for which he may be
entitled to damages. See Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994), cert. denied, 516
U.S. 808, 116 S. Ct. 53 (1995).
Plaintiff alleges that he was arrested, his vehicle, person, and part-time residence were
searched, and that his property was seized on November 18, 1988. Thus, it appears from the
face of Plaintiff’s pleading that this action should have been brought on or before November 18,
1994, and is therefore grossly untimely. Thus, to the extent that Plaintiff seeks to proceed under
Rule 41(g), that claim must be dismissed as time-barred.7
2.
Plaintiff’s Motion Under Federal Rule of Civil Procedure 60(b) Is
Untimely
7
Rule 41 is entitled “search and seizure” and provides, inter alia, the procedure
for a federal law enforcement officer or an attorney for the government to obtain a search
warrant. See Fed. R. Crim. P. 41(b). From the allegations in Plaintiff’s pleadings it appears
that the property in question was seized in relation to a New York state criminal arrest, without
any involvement of federal law enforcement officers. In light of this fact, is seems unlikely that
Rule 41(g) would provide a basis for Plaintiff’s claim, even if it were timely. See United States
v. Burke, 517 F.2d 377, 382 (2d Cir. 1975) (holding that “the mere fact that property seized
pursuant to the warrant of a state judge at the request of state law enforcement officers for
violation of state law does not implicate the requirements of the Rule”).
7
Rules 60(b) of the Federal Rules of Civil Procedure, which Plaintiff now asserts
provides the procedural vehicle for his current Complaint, addresses the standard to be applied
when relief from a final judgment or order is sought, and provides in relevant part that
[o]n motion and just terms, the court may relieve a party. . . from
a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under
Rule 59(b); (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void; (5) the judgment has been satisfied,
released, or discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). In this District, reconsideration of an order entered by the court is
appropriate upon a showing of “(1) an intervening change in controlling law, (2) the
availability of new evidence not previously available, or (3) the need to correct a clear error of
law or prevent manifest injustice.” In re C-TC 9th Ave. P’ship, 182 B.R. 1, 3 (N.D.N.Y. 1995);
see also Cayuga Indian Nation of N.Y. v. Pataki, 188 F. Supp. 2d 223, 244 (N.D.N.Y. 2002)
(citing Sumner v. McCall, 103 F. Supp. 2d 555, 558 (N.D.N.Y. 2000)). Applications for
reconsideration are also subject to an overarching “clearly erroneous” gauge. See Sumner, 103
F. Supp. 2d at 558. Additionally, the Rule expressly provides that a motion under this provision
“must be made within a reasonable time – and for reasons (1), (2), and (3) no more than a year
after entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c). “This
time limit is jurisdictional and cannot be extended.” Arrieta v. Battaglia, 461 F.3d 861, 864
(7th Cir. 2006) (citations omitted); Lugo v. Artus, No. 05 Civ. 1998, 2008 WL 312298, *2, n.14
(S.D.N.Y. Jan. 31, 2008). An appeal during this one-year time period does not toll the one-year
limitations period. See King v. First American Investigations, Inc., 287 F.3d 91, 94 (2d Cir.
2002); Espaillat v. Continental Exp., Inc., No. 99-CV-6173, 2003 WL 22384799, *3 (W.D.N.Y.
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Sept. 5, 2003).
While not entirely clear, it appears that Plaintiff’s Rule 60(b) motion is addressed to the
judgment previously entered in this Court in his action filed in 1989, Walker v. Briggs, Civil
Action No. 9:89-CV-1432. That action was tried before the Court in November of 2003, and
judgment was entered in favor of the defendants therein on March 24, 2004. Like an action
under Federal Rule of Criminal Procedure 41(g), Plaintiff’s motion under Rule 60(b), brought
more than seven years after the entry of judgment, is grossly untimely and must be dismissed as
time-barred.
3.
Plaintiff’s Claim Is Barred By the Doctrine of Res Judicata
The judgment entered in Plaintiff’s previous action also provides a separate and
independent basis for dismissal of the present claim under the doctrine of res judicata. “The
preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are
collectively referred to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880, 892 (2008). While
under claim preclusion a final judgment forecloses successive litigation of the very same claim
regardless if relitigation of the claim raises the same issues as in the prior suit, issue preclusion
bars successive litigation of an issue of fact or law actually litigated and resolved by a court,
even if the issue recurs in a different context in a new claim. See id. (citing New Hampshire v.
Maine, 532 U.S. 742, 748-49, 121 S. Ct. 1808, 1814 (2001)). Both doctrines protect against
“the expense and vexation attending multiple lawsuits, conserve judicial resources, and foster
reliance on judicial action by minimizing the possibility of inconsistent decisions” while
precluding parties from bringing claims they have already had a full and fair opportunity to
litigate. Montana v. United States, 440 U.S. 147, 153-54, 99 S. Ct. 970, 973-74 (1979).
Succinctly stated, “[t]he doctrine of res judicata . . . was established as a means to promote legal
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economy and certainty.” Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1232 (2d Cir.), cert.
denied, 434 U.S. 903, 98 S. Ct. 3000 (1977).
Res judicata or “claim preclusion generally prevents litigation of any ground that could
have been advanced in the earlier suit in support of the claim . . . made there. . . .” USM Corp.
v. SPS Technologies, Inc., 694 F.2d 505, 508 (7th Cir. 1982). Before claim preclusion will bar
a subsequent lawsuit, it must be shown that there was a final judgment on the merits in the
previous proceeding, involving the same parties or their privies, and arising out of the same
transaction or connected series of transactions that was at issue in the previous proceeding. See
Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286-87 (2d Cir. 2002); see also Faye v. South
Colony Cent. Sch. Dist., 802 F.2d 21, 28 (2d Cir. 1986), overruled on other grounds by, Taylor
v. Vermont Dep’t of Educ., 313 F.3d 768 (2d Cir. 2002).
A review of Plaintiff’s Complaint filed in Civil Action No. 9:89-CV-1432, reveals that it
arose out of the same arrest and alleged seizure of Plaintiff’s personal property, named Jerry
Briggs as a defendant, and sought, among other things, “[r]eturn of personal property retained
as the result of illegal arrests and seizures” – the same relief requested in the pending action.
See Walker v. Briggs, et al., Civil Action No. 9:89-CV-1432, Dkt. No. 1 at 1. As previously
discussed, following a bench trial, that action terminated with a judgment in the defendants'
favor. See id. at Dkt. No. 114. On appeal, that judgment was affirmed by the Second Circuit.
See id. at Dkt. No. 129. For these reasons, Plaintiff’s action must be dismissed under the
doctrine of res judicata.
C.
Nature of Dismissal
Generally, when a pro se action is dismissed sua sponte, the plaintiff should be allowed
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to amend his or her complaint. See Gomez v. USAA Federal Savings Bank, 171 F.3d 794, 796
(2d Cir. 1999). An opportunity to amend, however, is not required where “the problem with
[plaintiff’s] causes of action is substantive” such that “[b]etter pleading will not cure it.” Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted); see also Cortec Indus. Inc. v.
Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (holding that “where a plaintiff is unable to
allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice”
(citation omitted)); cf. Gomez, 171 F.3d at 796 (granting leave to amend is appropriate “unless
the court can rule out any possibility, however unlikely it might be, that an amended complaint
would succeed in stating a claim”). Stated differently, “[w]here it appears that granting leave to
amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.”
Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted); accord,
Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, *1 (N.D.N.Y. Sept. 22, 1997) (holding
that “the court need not grant leave to amend where it appears that amendment would prove to
be unproductive or futile” (citation omitted)).
For the reasons set forth above, it is clear that Plaintiff cannot state a viable claim for the
return of his property, and that, as a result, leave to amend would be futile. Accordingly,
Plaintiff’s Complaint is dismissed with prejudice.
Accordingly, the Court hereby
ORDERS that this action is dismissed, with prejudice, for failure to state a cause of
action and as frivolous; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order upon
the Plaintiff in accordance with the Court’s Local Rules; and the Court further
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ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and
close this case.
IT IS SO ORDERED.
Dated: November 22, 2011
Albany, New York
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