Shapard v. Attea et al
Filing
100
-CLERK TO FOLLOW UP-DECISION AND ORDER denying 92 Motion for Summary Judgment. Defendants application [#92] is denied, and this action is dismissed without prejudice pursuant to Heck v. Humphrey. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma p auperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. The Clerk of the Court is directed to terminate this action. Signed by Hon. Charles J. Siragusa on 7/25/16. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHRISTOPHER SHAPARD,
Plaintiff,
-v-
DECISION AND ORDER
JOHN ATTEA, Correction Officer, EDWIN
MENDEZ, Correction Officer, ROBERT KYLE,
Correction Officer and AL HERDZIK,
Lieutenant,
Defendants.
08-CV-6146 CJS
APPEARANCES
For Plaintiff:
Cameron S. Friedman
Luke X. Flynn-Fitzsimmons
Noam Lerer
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Auburn, New York 13021
For Defendants:
Gary M. Levine, Esq.
Assistant Attorney General of Counsel
New York State Office of the Attorney General
144 Exchange Boulevard, Suite 200
Rochester, New York 14614
INTRODUCTION
This is an action pursuant to 42 U.S.C. § 1983, in which Plaintiff, a prison inmate
in the custody of the New York State Department of Corrections and Community
Supervision (“DOCCS”), alleges that Defendants, all employees of DOCCS, used
1
retaliatory excessive force against him, in violation of his federal constitutional rights.
Now before the Court is Defendants’ motion (Docket No. [#92]) for leave to file a
summary judgment motion beyond the court-imposed deadline for such applications, on
the grounds that Plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S. 477, 114
S.Ct. 2364 (1994). The motion is denied, and this action is dismissed sua sponte
pursuant to Heck v. Humphrey, since Plaintiff’s claims, if proven, would clearly imply the
invalidity of his state-court conviction for assault arising from the same incident at issue
in this action.
BACKGROUND
On June 7, 2005, at Wende Correctional Facility (“Wende”), Corrections Officer
Edwin Mendez (“Mendez”) and/or Corrections Officer Rober Kyle (“Kyle”) used force on
Plaintiff, after they maintain that he attacked Corrections Officer John Attea (“Attea”)
without provocation. In particular, Mendez and/or Kyle struck Plaintiff several times with
a baton, causing at least one laceration to Plaintiff’s head that required stitches. At that
time, Plaintiff was serving an indeterminate sentence of incarceration (twelve-and-a-half
years to twenty-five years) in the State of New York for kidnaping, burglary and robbery,
after which he was scheduled to serve a sixty-year term of imprisonment for a murder
conviction in the State of Connecticut.
Following the incident on June 7, 2005, a Grand Jury in Erie County, New York,
indicted Plaintiff for assaulting Attea. Specifically, the Grand Jury indicted Plaintiff for
Assault in the Second Degree in violation of New York Penal Law § 120.05(7), which
prohibits the intentional injury of another person while confined in a correctional facility.
At all relevant times Penal Law § 120.05(7) provided:
2
A person is guilty of assault in the second degree when: . . . (7) Having
been charged with or convicted of a crime and while confined in a
correctional facility, as defined in subdivision three of section forty of the
correction law, pursuant to such charge or conviction, with intent to cause
physical injury to another person, he causes such injury to such person or
to a third person[.]
(McKinney’s 2016). On July 16, 2007, in New York State Supreme Court, Erie County,
Plaintiff pled guilty to assaulting Attea, in violation of Penal Law § 120.05(7), and
received a sentence of imprisonment of fifteen years to life. During Plaintiff’s plea
colloquy, he acknowledged not only that he assaulted Attea, but that he initiated the
actions that culminated in his assault on Attea.1
On April 2, 2008, Plaintiff commenced this action proceeding pro se. In pertinent
part, Plaintiff alleged that on June 7, 2005, Attea, Mendez and Kyle viciously assaulted
him using punches, kicks and baton strikes.2 Plaintiff alleged that defendant
Corrections Lieutenant Al Herdzik (“Herdzik”) was not present during the attack, but
“orchestrated” the beating in retaliation for grievances that Plaintiff had filed. Attached
to Plaintiff’s verified Complaint [#1] is a letter that he purportedly wrote to Wende’s
Superintendent, Anthony Zon (“Zon”), on June 7, 2005, immediately following the
assault. In pertinent part, Plaintiff wrote: “I did not assault or attempt to assault any of
the officers. I was attacked and this was pure retaliation by C.O. Attea and, I believe,
Lt. Herdzik.” (emphasis in original). Also attached to the Complaint [#1] is a copy of the
1
Levine Declaration, Ex. C, Plea Transcript at pp. 10-11. Plaintiff admits that this current lawsuit
involves the same event for which he pled guilty to assaulting Attea. See, Pl. Deposition at p. 26 (“I pled
guilty to an indictment that charged me with Assault in the Second Degree, that arose from the events of
which we are contesting, yes.”).
2
Complaint [#1] at ¶ ¶ 20-27.
3
transcript from Plaintiff’s Tier III disciplinary hearing, at which he testified that Attea,
Mendez and Kyle attacked him without provocation, and that he “never assaulted any
officers[.]”3 The Complaint [#1] demands money damages, as well as an injunction
requiring that closed-circuit television cameras be installed in “each housing area,
lobby, cell gallery, hallway[ ] and corridor[ ]” at Wende, to “deter future physical abuse
of prisoners.”
On March 3, 2010, Defendants deposed Plaintiff at Auburn Correctional Facility
(“Auburn”). At the deposition, Plaintiff reiterated that the defendant corrections officers
assaulted him, and that he never assaulted them. For example, Plaintiff testified that
he “was on defense the whole time” and that the only thing that he could do was “cover
up until this whole event had finished.”4 Plaintiff further testified that the incident began
when Attea punched him in the face “from the blind side” without warning, after which
Mendez tackled him to the ground, Kyle kicked him in the face, the officers bent his legs
back toward his head, and Kyle or Mendez struck him with a baton multiple times. 5
Plaintiff insisted that he never struck any officer: “I didn’t strike anybody at any time,”
“[and] that includes Officer Attea.”6
During the deposition, Plaintiff acknowledged that his claim in this action, that he
never struck any of the corrections officers including Attea, contradicts his sworn plea
3
Disciplinary Hearing Transcript at pp. 57-58, 84.
4
Pl. Deposition at p. 48.
5
Pl. Deposition at pp. 92-105.
6
Pl. Deposition at p. 109; see also, id. at p. 123 (Reiterating that he never assaulted anyone.); id.
at p. 126 (“I did not hit CO Atteta to start this thing.”).
4
that he assaulted Attea. Plaintiff maintained, though, that he lied during his plea
because he wanted to remain incarcerated in New York, rather than be returned to
prison in Connecticut. On this point, Plaintiff testified, “I am innocent and [when I] pled
guilty . . . I lied.”7
On January 7, 2010, the Honorable Jonathan W. Feldman, United States
Magistrate Judge, issued a Scheduling Order [#32], directing inter alia that all discovery
in this action be completed by July 30, 2010, and that all dispositive motions be filed by
September 17, 2010.
On June 23, 2010, Defendants filed a motion for summary judgment [#47], on
behalf of two defendants who are no longer parties to this action, which, on December
1, 2011, the Court granted. See, Decision and Order [#58]. As a result of the Court’s
rulings, only Attea, Mendez, Kyle and Herdzik remained as defendants, and the matter
was ready for trial.
However, Plaintiff subsequently retained counsel, whom the Court permitted to
conduct additional discovery. While such additional discovery was underway, on May
18, 2015, Defendants’ counsel wrote to the Court requesting permission to file a
another dispositive motion in this action. However, because the scheduling deadline for
filing dispositive motions had already passed, and because counsel’s letter did not
explain the nature of the proposed dispositive motion or why it could not have been
brought sooner, the Court denied Defendants’ request, without prejudice to them
making a further application demonstrating good cause.
7
Pl. Deposition at p. 138.
5
On November 13, 2015, Defendants filed the subject application, consisting of
both a request for leave to file a summary judgment motion, and a motion for summary
judgment pursuant to Heck v. Humphrey. Defendants acknowledge that the application
is late, but maintain that the Court should excuse the untimeliness due to counsel’s
excusable neglect. In particular, Defendants’ counsel indicates that while he was aware
of the facts discussed above, he “previously failed to recognize the law related to
Plaintiff’s plea of guilty to assaulting Attea and the ramifications such plea would have
on the trial.”8 The Court understands Defendants’ counsel to mean that he only
belatedly recognized that Plaintiff’s claim in this action implicates Heck v. Humphrey.
Defendants further maintain that even if the Court is unwilling to consider the summary
judgment motion, they will inevitably be entitled to dismissal of Plaintiff’s claims at trial,
since his claims are barred by Heck v. Humphrey.
Plaintiff opposes the application, and maintains that Defendants’ counsel’s
“excusable neglect” is insufficient to establish “good cause” for extending the
dispositive-motion deadline imposed by Magistrate Judge Feldman. Plaintiff further
contends that Defendants’ summary judgment motion must fail on the merits in any
event, since his claims under § 1983 are theoretically compatible with his conviction for
assaulting Attea, since a jury might disbelieve his version of the facts but nevertheless
find that Defendants used excessive force.
8
Levine Decl. [#92-2] at ¶ 3.
6
DISCUSSION
A preliminary issue is whether Defendants have shown good cause for failing to
file the instant summary judgment motion on or before September 17, 2010, as required
by Magistrate Judge Feldman’s Scheduling Order [#32]. The Court finds that they have
not done so. In that regard, the Scheduling Order [#32] directed that all dispositive
motions be filed by September 17, 2010, and that “[n]o extension of the above cutoff
dates [would] be granted except upon written joint motion, filed prior to the cutoff date,
showing good cause for the extension.” Defendants did not comply with the deadline,
and the Court agrees with Plaintiff that they have not shown good cause for such
failure. In that regard, “good cause” “depends on the diligence of the moving party,”
see, Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 243 (2d Cir. 2007), and
Defendants were not diligent in pursuing the subject motion. For example, even putting
aside the delay that followed Plaintiff’s deposition in 2010, Defendants were not diligent
even after they recognized the Heck v. Humphrey issue. Specifically, at least by May
2015, Defendants apparently recognized the Heck v. Humphrey issue, because that is
when they initially requested leave to file a late summary judgment motion. However,
after the Court denied that request without prejudice, Defendants waited until
November 2015 to file the subject renewed application. Consequently, while the Court
does not believe that Plaintiff would be prejudiced by Defendants’ late motion, the Court
cannot find that Defendants were diligent, and therefore they cannot establish good
cause. See, Woodworth v. Erie Ins. Co., No. 05-CV-6344 CJS, 2009 WL 3671930 at *3
(W.D.N.Y. Oct. 29, 2009) (“Plaintiffs failed to [demonstrate good cause because they
7
have not met] the threshold diligence requirement.”).
Nevertheless, the Court finds that it must dismiss the action sua sponte because
pursuant to Heck v. Humphrey, Plaintiff’s § 1983 claims cannot accrue unless and until
he first succeeds in having his conviction for Assault in the Second Degree set aside.
As the Second Circuit has observed, Heck v. Humphrey
precludes the use of § 1983 suits for damages that necessarily have the
effect of challenging existing state or federal criminal convictions. Heck
requires 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 [challenged] 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.”
Poventud v. City of New York, 750 F.3d 121, 124 (2d Cir. 2014) (quoting Heck v.
Humphrey, 512 U.S. at 486-87, 114 S.Ct. at 2364).
Where the “Heck v. Humphrey bar” applies, a plaintiff simply has no actionable
claim for damages under § 1983. Rather, such a claim cannot accrue until the Plaintiff
obtains relief from the underlying criminal conviction. See, Poventud v. City of New
York, 750 F.3d at 130 (Observing that where Heck v. Humphrey applies, the Plaintiff
“ha[s] no cause of action under § 1983” because the cause of action does not accrue
until the conviction has been set aside.); see also, U.S. v. Valentine, 343 Fed. Appx.
723, 724 (2d Cir. Aug. 31, 2009) (A plaintiff “is unable to pursue” a claim barred by
Heck v. Humphrey); Morris v. City of Suffolk, Va., 70 F.3d 112 (table), 1995 WL 686271
at *1 (4th Cir. Nov. 20, 1995) (A claim barred by Heck v. Humphrey is “not yet ripe for a
8
§ 1983 action.”); Ballenger v. Owens, 352 F.3d 842, 846 (4th Cir. 2003) (Observing that
in Heck v. Humphrey, the Supreme Court “denied the very existence of such a cause of
action.”); Damond v. LeBlanc, 552 Fed. Appx. 353, 354 (5th Cir. Jan. 16, 2014) (A
claim barred by Heck v. Humphrey is “not cognizable” and “unripe.”); Plotkin v. U.S.,
465 Fed. Appx. 828, 831 (11th Cir. Feb. 13, 2012) (A claim barred by Heck v.
Humphrey “is not ripe and must be dismissed unless the conviction has been
invalidated.”).
Further, while Heck specifically pertains to § 1983 claims for money damages,
courts have also held that Heck bars claims for injunctive relief that would similarly
imply the invalidity of the plaintiff’s underlying criminal conviction. See, e.g., Hamm v.
Obama, 448 Fed.Appx. 76, 76-77, 2012 WL 116814 at *1 (D.C. Cir. Jan. 10, 2012)
(Affirming dismissal of claim for injunctive relief which if successful would have implied
the invalidity of the Plaintiff’s conviction).
Consequently, where Heck v. Humphrey applies, the Court may dismiss the
action sua sponte. See, e.g., Johnson v. New York City Police Dept., --- Fed. Appx. --- ,
2016 WL 3277261 at *1 (2d Cir. Jun. 8, 2016) (Observing that a “Heck-barred” claim
“must be dismissed,” and affirming the district court’s sua sponte dismissal.);9 see also,
9
To this Court’s knowledge, neither the Supreme Court nor the Second Circuit has indicated that
the “Heck bar” is an affirmative defense which a defendant can waive or forfeit. Rather, the Heck rule is
described as a procedural bar, and the requirement of dismissal is expressed in mandatory terms. See,
Edwards v. Balisok, 520 U.S. 641, 649, 117 S. Ct. 1584, 1589 (1997) (“[A] claim either is cognizable under
§ 1983 and should immediately go forward, or is not cognizable and should be dismissed.’).
Consequently, although Plaintiff has not argued that Defendants have forfeited the “Heck bar defense”
due to inaction, the Court is unaware of any binding case authority to support such a argument in any
event. but see, Carr v. O’Leary, 167 F.3d 1124 (7th Cir. 1999) (Finding that the government defendant had
waived the Heck “affirmative defense” on dissimilar facts). However, even assuming arguendo that the
Heck bar is an affirmative defense, and that it could be found to have been forfeited on the facts
presented here, the Court would nonetheless exercise its discretion to deny the forfeiture argument.
9
Shue v. U.S., 466 Fed. Appx. 51, 51-52, 2012 WL 1085865 at *1 (2d Cir. Apr. 3, 2012)
(Affirming sua sponte dismissal of claim pursuant to Heck).
In the instant case, Plaintiff tacitly acknowledges that his claims, as pleaded and
as supported by his sworn deposition testimony, imply that his conviction for Assault in
the Second Degree is invalid. Indeed, Plaintiff’s sworn Complaint [#1] and sworn
deposition testimony insist that he is actually innocent. Nevertheless, Plaintiff argues
that success on his claims would not necessarily imply the invalidity of his assault
conviction, since it is possible either that he might not testify at trial that he was
innocent, or that he might testify that he is innocent but the jury might reject his
testimony and find that he actually assaulted Defendants, but that they subsequently
used excessive force while subduing him.10 Plaintiff’s argument is not entirely off the
mark, since in general, Heck does not necessarily bar excessive force claims where the
plaintiff was convicted of assaulting officers during the same incident. For example,
Heck would not apply if Plaintiff had admitted that he assaulted Attea (or if Plaintiff had
said nothing about who initiated the incident), but maintained that Defendants
subsequently used excessive force. See, Jeanty v. Cty. of Orange, 379 F. Supp. 2d
533, 543-544 (S.D.N.Y. 2005) (“[P]laintiff maintains that his misdemeanor assault
conviction is not necessarily invalidated if he prevails on his excessive force claim
because if a jury credits his account of what transpired, they could find that he was
subjected to excessive force after he assaulted Pfelger and was already compliant. . . .
10
Pl. Memo of Law [#94] at p. 7 (“If one were to imagine that the jury believes that our client did
throw the first punch . . . another question is was the force that defendants responded with appropriate.”)
(referencing transcript of appearance on March 24, 2014, Docket No. [#95-1] at pp. 16-17).
10
We agree with plaintiff that a jury could reasonably conclude that even though Jeanty
assaulted Officer Pfleger, after Jeanty had been subdued, he was subjected to
excessive force by the individual defendants.”).
Unfortunately for Plaintiff, though, he has pleaded himself out of Court, since it is
his version of the facts which the Court must consider when determining whether Heck
applies, see, e.g., Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003) (“[I]f he makes
allegations that are inconsistent with the conviction’s having been valid, Heck kicks in
and bars his civil suit.”), cert den. 539 U.S. 910 (2003),11 and his version of the facts
clearly implies, and, in fact, insists upon, the invalidity of his assault conviction. See,
e.g., Pl. Deposition at p. 138 (“I am innocent.”). Plaintiff’s sworn contentions, that he
was viciously attacked out of the blue in retaliation for a complaint that he made weeks
earlier, and that he never defended himself during the attack, are the basis for all of his
claims, as well as his demands for both monetary and injunctive relief.12 All of Plaintiff’s
claims thus clearly imply the invalidity of his assault conviction, which has not been set
aside, and consequently they are barred by Heck v. Humphrey, meaning that such
claims have not accrued, and will not accrue, unless and until he succeeds in
overturning his conviction.
11
Compare Prioleau v. Caserta, No. CV 10-5670 (SJF)(ETB), 2012 WL 5389992 at *7 (E.D.N.Y.
Sep. 12, 2012) (“Accepting plaintiff’s version of the altercation does not require the factfinder to conclude
that plaintiff did not assault the defendants.”) (citation omitted), with Wiggins v. Figueroa, No. 13-CV-1731
(JS)(SIL), 2015 WL 729730 at *4 (E.D.N.Y. Feb. 18, 2015) (“Plaintiff’s version of events are completely
irreconcilable with his sworn statements establishing his guilty plea to Assault in the Second Degree.”).
12
Plaintiff’s demand for injunctive relief ordering Wende to install video cameras to avoid future
assaults only makes sense in the context of his excessive force claim, and therefore the claim for
injunctive relief must also be dismissed.
11
CONCLUSION
For the reasons stated above, Defendants’ application [#92] is denied, and this
action is dismissed without prejudice pursuant to Heck v. Humphrey. The Court hereby
certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be
taken in good faith and leave to appeal to the Court of Appeals as a poor person is
denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed
on appeal in forma pauperis should be directed on motion to the United States Court of
Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of
Appellate Procedure. The Clerk of the Court is directed to terminate this action.
SO ORDERED.
Dated:
Rochester, New York
July 25, 2016
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
12
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