Russo v. Duprey et al

Filing 15

DECISION and ORDER: ORDERED, that Plaintiff's claim seeking his "immediate release" is DISMISSED without prejudice; and it is further ORDERED, that the remainder of the Amended Complaint (Dkt. No. 13 ) is DISMISSED with prejudice. The Clerk is directed to enter judgment in favor of the Defendants and close this case; and it is further ORDERED, that the Clerk serve a copy of this Decision and Order on Plaintiff. Signed by Senior Judge Lawrence E. Kahn on 3/11/2014. (ptm) (Copy served on plaintiff by regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANTHONY CRIVELLO RUSSO,
Plaintiff,
-against-

9:12-CV-1815 (LEK/ATB)

STEPHEN DUPREY; et al.,
Defendants.
____________________________________
DECISION AND ORDER
I.

INTRODUCTION
Plaintiff’s Amended Complaint is before the Court for review pursuant to 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A(b). Dkt. No. 13 (“Amended Complaint”). Plaintiff initially filed a
Complaint asserting claims pursuant to 42 U.S.C. § 1983, together with an Application to proceed
in forma pauperis. Dkt. Nos. 1; 2 (“IFP Application”). The Court granted Plaintiff’s IFP
Application, but dismissed the Complaint for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e) and 1915A. Dkt. No. 8 (“June Order”). Plaintiff then filed an Amended Complaint.
Am. Compl. For the following reasons, the Court dismisses this action pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b) for failure to state a claim upon which relief may be granted.
II.

DISCUSSION
A. Review of the Amended Complaint
The legal standard governing the dismissal of a pleading for failure to state a claim pursuant

to 28 U.S.C. §§ 1915(e) and 1915A was discussed at length in the June Order and will not be
restated here. See June Order at 2-4. Taking into account Plaintiff’s pro se status, the Court
construes the allegations in the Amended Complaint liberally. See, e.g., Haines v. Kerner, 404 U.S.

519, 521 (1972) (holding that a pro se litigant’s complaint is to be held “to less stringent standards
than formal pleadings drafted by lawyers”). For the reasons discussed below, the Amended
Complaint does not cure the deficiencies identified in the original Complaint.
The Amended Complaint alleges that (1) Defendants Molinar and Morgiewicz created the
“unconstitutional [pre-sentence report]” (“PSR”) during Plaintiff’s pre-sentence interview at
Middletown, New York, on July 10, 2005, in connection with Plaintiff’s criminal trial and
conviction; (2) Defendants Duprey and Robert violated Plaintiff’s Fourteenth Amendment rights by
using the PSR at Plaintiff’s parole hearings at Bare Hill Correctional Facility on April 17, 2008 and
at Great Meadow Correctional Facility on October 12, 2010; (3) Defendants violated Plaintiff’s
Eighth Amendment rights by using the PSR to deny Plaintiff access to prison programs; (4) the PSR
violated Plaintiff’s Fifth Amendment rights by exposing him to double jeopardy; and (5) the PSR
denied Plaintiff meaningful right to a jury trial in contravention of Plaintiff’s Sixth and Seventh
Amendment rights. Am. Compl. at 5-7. As relief, Plaintiff requests an award of compensatory and
punitive damages, an order directing that the PSR be removed from his inmate record, and his
“immediate release.” Am. Compl. at 7.
1. Claims That Arose Prior to December 3, 2009
In § 1983 actions, the applicable statute of limitations is the “general or residual [state]
statute [of limitations] for personal injury actions.” Pearl v. City of Long Beach, 296 F.3d 76, 79
(2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)). In New York, that statute
of limitations is three years. Pearl, 296 F.3d at 79; see also N.Y. C.P.L.R. 214(5). Although state
law provides the relevant limitations period, federal law determines when a § 1983 action accrues,
which is “when the plaintiff knows or has reason to know of the harm.” Connolly v. McCall, 254
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F.3d 36, 41 (2d Cir. 2001). Thus, a claim accrues when a “plaintiff becomes aware that he is
suffering from a wrong for which damages may be recovered in a civil action.” Singleton v. City of
New York, 632 F.2d 185, 192 (2d Cir. 1980). In “rare and exceptional” cases, the doctrine of
equitable tolling or equitable estoppel may be invoked to defeat a defense that the action was not
timely filed. See Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007).
Plaintiff’s original Complaint was filed, at the earliest, on December 3, 2012.1 Compl. at 7.
Thus, the claims that arose prior to December 3, 2009—that Defendants Molinar and Morgiewicz
created the PSR on July 10, 2005 and Defendants Duprey and Robert used the PSR at Plaintiff’s
parole hearing on April 17, 2008—are dismissed as untimely filed. While typically a court should
not dismiss a claim as time-barred without providing a pro se plaintiff with notice and an
opportunity to be heard as to whether there might be a meritorious tolling argument or other reason
why the complaint might be considered timely filed, see Abbas, 480 F.3d at 640-41, Plaintiff has
also failed to state a claim upon which relief could be granted.
2. Creation or Use of a False Record
To support his claims, Plaintiff submits a portion of his state criminal sentencing minutes.
See Am. Compl. at 7 (alleging that the statement in his PSR that he “was convicted of confronting a
police officer with a weapon was erroneous”); Dkt. No. 13-1 at 1 (claiming that sentencing minutes
show that plaintiff was convicted of “‘Constructive Possession of a weapon’ not Criminal

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Under the “prison mailbox rule,” the date of filing is deemed to be the date that the
prisoner delivered his complaint to a prison guard for mailing to the court; absent other evidence,
this is presumed to be the date that the complaint was signed. See Houston v. Lack, 487 U.S. 266,
276 (1988); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001). Plaintiff signed his original Complaint
on December 3, 2012, see Compl. at 7, and, in light of Plaintiff’s pro se status, the Court will
presume that Plaintiff “brought” this action on that date.
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Possession of [a] weapon” and that he was “exonerated” on the charge of “confronting a police
officer with a weapon”).
However, even if Plaintiff could prove that the PSR contained false or inaccurate
information, his claim would nevertheless fail because, as the Court noted in the June Order:
The Second Circuit has not recognized that prisoners have a constitutional right to
have incorrect information expunged from their files. LaBounty v. Coombe, 208
F.3d 203 (2d Cir 2000). Thus, Plaintiff has no right to have the PSR removed from
his inmate records.
June Order at 9. Finally, probation officers are entitled to absolute immunity for their role in
preparing a PSR. See Hili v. Sciarrotta, 140 F.3d 210, 214 (2d Cir. 1998).
As a result of the foregoing, Plaintiff’s requests to expunge the PSR from his
records, or to obtain damages from Defendants for the allegedly false PSR, are dismissed pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
3. Plaintiff’s Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendment Claims
Plaintiff reasserts his claims that the use of the allegedly false PSR to deny him prison
programs violated: (1) his right to be free from Double Jeopardy under the Fifth Amendment; (2) his
right to trial by jury under the Sixth and Seventh Amendments; (3) his right to be free from cruel
and unusual punishment under the Eighth Amendment; and (4) his Fourteenth Amendment due
process rights. He provides no additional factual detail. For the same reasons set forth in the June
Order, see id. at 5-9, Plaintiff’s claims regarding the use of the PSR to deny Plaintiff prison
programs are dismissed in their entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
4. Defendants Elovich, Ross, and Crangle
“Personal involvement of defendants in alleged constitutional deprivations is a prerequisite

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to an award of damages under section 1983.” Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010);
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citations omitted). To prevail on a § 1983 action
against an individual, a plaintiff must show a tangible connection between the constitutional
violation and the particular defendant. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). A
complaint that fails to allege a defendant’s personal involvement in the alleged unlawful conduct is
“fatally defective on its face,” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987), and
thus is appropriate for dismissal by the Court pursuant to 28 U.S.C. § 1915(e).
Upon review of the Amended Complaint, the Court notes that Elovich, Ross, and Crangle
are named as Defendants, but are not mentioned anywhere in the body of the Amended Complaint.
See Am. Compl. In the absence of factual allegations sufficient to plausibly suggest that these
individuals were personally involved in conduct violative of Plaintiff’s constitutional or statutory
rights, the Amended Complaint fails to state a cognizable claim against them. See Cipriani v.
Buffardi, No. 06-CV-0889, 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) (“Dismissal is
appropriate where a defendant is listed in the caption, but the body of the complaint fails to indicate
what the defendant did to the plaintiff.”). As a result, Elovich, Ross, and Crangle are dismissed
from this action pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
5. Request for Immediate Release
In addition to requesting monetary damages and expungement of his PSR from his inmate
records, the Amended Complaint now also requests Plaintiff’s “immediate release.” Am. Compl. at
7. Plaintiff does not explain the basis for his request for his release from incarceration. In any
event, such relief is not available in a § 1983 action. “[H]abeas corpus—not a § 1983
action—provides the sole federal remedy where a state prisoner challenges the fact or duration of
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his imprisonment.” Channer v. Mitchell, 43 F.3d 786, 787 (2d Cir. 1994) (citing Preiser v.
Rodriguez, 411 U.S. 475 (1973)). Therefore, Plaintiff’s claim seeking his “immediate release” is
dismissed.
B. Opportunity to Amend
After reviewing Plaintiff’s Amended Complaint, the Court cannot discern a factual or legal
basis for this action. Insofar as Plaintiff seeks his “immediate release,” that claim is dismissed
without prejudice. See Amaker v. Weiner, 179 F.3d 48 (2d Cir. 1999) (stating that dismissal under
Preiser is without prejudice; if a plaintiff’s conviction or sentence is later declared invalid or called
into question by a federal court’s issuance of a writ of habeas corpus, the suit may be reinstated).
For the reasons set forth above and in the June Order, and because Plaintiff has already had an
opportunity to amend his claims, the Court finds the flaws in the remainder of the Amended
Complaint to be substantive, rather than merely formal. Thus, leave to amend would be futile, and
the Court dismisses these claims with prejudice. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000); see also Pucci v. Brown, 423 F. App’x 77, 78 (2d Cir. 2011).
III.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiff’s claim seeking his “immediate release” is DISMISSED without

prejudice; and it is further
ORDERED, that the remainder of the Amended Complaint (Dkt. No. 13) is DISMISSED
with prejudice. The Clerk is directed to enter judgment in favor of the Defendants and close this
case; and it is further
ORDERED, that the Clerk serve a copy of this Decision and Order on Plaintiff.
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IT IS SO ORDERED.
DATED:

March 11, 2014
Albany, New York

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