Wilkins v. Franczyk et al
Filing
29
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 15 Motion to Dismiss for Failure to State a Claim.Defendants motion [#15] is granted and this action is dismissed with prejudice. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), tha t 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 d irected 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 5/28/13. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MELZAR TI-SHAWN WILKINS,
DECISION AND ORDER
Plaintiff,
11-CV-6104 CJS (MWP)
-vKELLY R. HERKY, KAITLIN BAILEY and
JEFFREY BANAS,
Defendants.
APPEARANCES
For Plaintiff:
Melzar Ti-Shawn Wilkins, pro se
10-B-3529
Collins Correctional Facility
Box 340
Collins, New York 14034-0340
For Defendants:
Anthony B. Targia, Esq.
Erie County Attorney’s Office
95 Franklin Street, 16th Floor
Buffalo, New York 14202
INTRODUCTION
Melzar Ti-Shawn Wilkins (“Plaintiff) alleges that Defendants, all of whom were
employed by the Erie County Central Police Services Forensic Laboratory, violated his
federal constitutional rights by fabricating evidence used against him in a criminal action.
Now before the Court is Defendants’ motion for judgment on the pleadings. (Docket No.
[#15]). The application is granted and this action is dismissed.
BACKGROUND
This action involves the alleged introduction of false evidence against Plaintiff at a
criminal trial. The Amended Complaint [#6] refers to the underlying criminal proceedings
and to the alleged false testimony that Defendants provided against him. Accordingly, in
setting forth the facts below, the Court refers to the actual trial testimony, of Defendants and
other witnesses, since Plaintiff clearly referred to it in his Complaint. See, e.g., City of
Providence v. Aeropostale, Inc., No. 11 Civ. 7132(CM)(THK), 2013 WL 1197755 at *8-9
(S.D.N.Y. Mar. 25, 2013) (“In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court
may consider the full text of documents that are quoted in or attached to the complaint, or
documents that the plaintiff either possessed or knew about and relied upon in bringing the
suit.”) (citations omitted); see also, Vasquez v. City of New York, No. 10 Civ. 6277(LBS),
2012 WL 4377774 at *1 (S.D.N.Y. Sep. 24, 2012). (“[A] court may consider ‘documents
attached to the complaint as an exhibit or incorporated in it by reference, ... matters of which
judicial notice may be taken, or ... documents either in plaintiffs' possession or of which
plaintiffs had knowledge and relied on in bringing suit.’” Chambers v. Time Warner, Inc., 282
F.3d 147, 153 (2d Cir.2002) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d
Cir.1993)).”). In that regard, it would defy logic to evaluate the sufficiency of Plaintiff’s
pleading based solely on his subjective characterizations of what Defendants supposedly
said during the underlying criminal trial, when the actual record of what they said is before
the Court and undoubtedly was available to him when he drafted the pleading. See, Avon
Pension Fund v. GlaxoSmithKline PLC, No. 08–4363–cv, 343 Fed.Appx. 671, 674 n. 2 (2d
Cir. Aug. 24, 2009) (“Although the transcript of Dr. Buse's statement and testimony are not
attached to the proposed amended complaint, they may nevertheless be considered in ruling
on a Rule 12(b)(6) motion as they are incorporated by reference.”) (citation omitted); see
also, Bath Petroleum Storage, Inc. v. Market Hub Partners, L.P., 129 F.Supp.2d 578, 581
(W.D.N.Y.,2000) (“[A] plaintiff should not be permitted to survive a motion to dismiss and put
a defendant to the trouble and expense of discovery simply by excluding highly relevant
2
facts and documents from its complaint.”), aff'd 229 F.3d 1135 (2d Cir.2000) (table), cert.
den. 532 U.S. 1037, 121 S.Ct. 1998, 149 L.Ed.2d 1001 (2001).
This action arises from the arrest of Plaintiff and his wife, following two police raids
on their house in Buffalo, New York, in August 2007 and December 2007. A search
conducted in August 2007 turned up marijuana, cocaine, other controlled substances and
a hand gun. Plaintiff was found hiding in a cubby hole in the attic, and the gun was
discovered hidden under a stair. At trial, Plaintiff’s defense was, in part, that the drugs found
in August 2007 belonged to his wife. In that regard, in Plaintiff’s defense, his wife testified
at trial that she possessed the marijuana, cocaine and “Lortabs” for her own personal
consumption. See, [#17-6] at 556 (“They were my Lortabs, I had a bag of marihuana. And
I had probably thirty to fifty dollars’ worth of crack cocaine.”). Significantly, therefore, the
issue at trial was not whether the items seized were actually illegal drugs, but rather, the
issue was whether Plaintiff possessed them, as he was charged with doing. Plaintiff
admitted possessing a certain amount of marihuana. The jury convicted Plaintiff of criminal
possession of a weapon in the second degree, resisting arrest and unlawful possession of
marijuana. See, People v. Wilkins, 104 A.D.3d 1156, 960 N.Y.S.2d 776 (4th Dept. 2013).
The second raid of Plaintiff’s house was in December 2007, after which Plaintiff was
charged with Criminal Possession of a Controlled Substance in the Third Degree, Unlawful
Possession of Marihuana, Criminal Possession of a Controlled Substance in the Fourth
Degree and Criminally Using Drug Paraphernalia in the Second Degree. Amended
Complaint [#6] at ¶ 4-5. Apparently, the controlled substance was cocaine base, and drug
paraphernalia was digital scales. On March 19, 2008, an Erie County Grand Jury indicted
Plaintiff on the aforementioned charges. At trial, Plaintiff admitted being in the house at the
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time of the search and seizure, but he denied that any drugs found were his. To the
contrary, Plaintiff suggested that the drugs may have belonged to his wife, who he indicated
was a drug addict and who had overdosed that day, or possibly to his teenage son, who he
had thrown out of the house for having drugs. See, [#17-7] at 587-588, 590-591. In any
event, Plaintiff did not deny the presence of the drugs, though he did deny knowing whose
they were. Id. at 591-593.
On September 7, 2010, Plaintiff was acquitted after trial.
Plaintiff’s Amended Complaint (Docket No. [#6]) represents his third attempt to set
forth actionable claims arising from the foregoing events. On March 1, 2011, Plaintiff, who
is currently imprisoned and proceeding pro se, filed the original Complaint [#1], purportedly
on behalf of himself, his wife and child. Although difficult to understand, the original
Complaint [#1] seemingly attempted to allege claims under 42 U.S.C. § 1983 arising from
both of the aforementioned criminal proceedings that were instituted against him. The
Complaint [#1] alleged claims of unlawful search and seizure, excessive force and malicious
prosecution, against the Judges who presided over his cases, as well as his “private defense
attorneys, Erie County prosecutors and Buffalo Police Department officials.” Order [#3] at
1. Included as a defendant was Kelly Herky (“Herky”), whom Plaintiff identified as a
“forensic serologist.” The Court, acting sua sponte pursuant to 28 U.S.C. § § 1915(e)(2)(B)
and 1915A(a), dismissed most of the claims and gave Plaintiff an opportunity to file an
amended complaint. See, Order [#3]. The Court gave Plaintiff specific instructions regarding
the deficiencies of his Complaint [#1], and indicated that the remaining claims would be
dismissed unless he filed an Amended Complaint that cured those deficiencies, by April 18,
2011. Id. at 10-11.
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In response to that Order, Plaintiff filed a document entitled “Notice of Amended
Case.” (Docket No. 4). The amended claim seemingly pertained just to the December 2007
arrest and subsequent prosecution. Included as defendants were the Commissioner of the
Buffalo Police Department, several police officers, and Herky. The proposed amended
pleading indicated that the police officers wrongly entered Plaintiff’s home,conducted an
illegal search and seizure, falsely arrested him, used excessive force and “manufactured
evidence.” Id. at 2. The document further alleged that Herky manufactured evidence and
tampered with test results. Id. at 4.
As an aside, and to provide context, documents that Defendants disclosed during
discovery, indicate that in or about 2009 Herky was fired from her job with the Erie County
Crime Lab for failing to perform a test in a certain case and then lying about it. See, Docket
No. [#17-3] at 457-460. Herky performed testing on some of the evidence seized from
Plaintiff’s residence, though after her employment was terminated, the evidence was retested by another forensic chemist Kaitlyn Bailey (“Bailey”) at the request of the Erie County
District Attorney. See, [#17-4] at 470-481. Another forensic chemist employed by the Erie
County crime lab, Jeffrey Banas (“Banas”) also performed testing on certain evidence seized
from Plaintiff’s home. However, neither Bailey nor Banas was mentioned in Plaintiff’s
“Notice of Amended Case.”
After Plaintiff filed his “Notice of Amended Case,” the Court conducted another review
pursuant to 28 U.S.C. § § 1915(e)(2)(B) and 1915A(a). On June 27, 2011, the Court issued
a Decision and Order [#5], indicating that Plaintiff had failed to comply with the Court’s
previous instructions. Although the Court observed that Plaintiff had already “been given
5
several opportunities to correct deficiencies in his pleadings,” it nevertheless granted Plaintiff
until July 26, 2011 to file another amended pleading.
On July 21, 2011, Plaintiff filed the Amended Complaint [#6], which is now the
operative pleading. The Amended Complaint [#6] purports to assert claims against Herky,
Bailey and Banas, pursuant to 42 U.S.C. § 1983, arising from the December 2007 arrest and
prosecution. The pleading alleges that Herky, Bailey and Banas were all employed at the
Erie County Central Police Services Forensic Laboratory. The pleading alleges that Herky
while acting as a forensic serologist . . . did not perform her duties in analyzing
evidence that would have excluded the plaintiff, she failed to perform the
necessary duties that is required in Lab testing and fabrication of evidentiary
results in favor of the Erie County District Attorney’s Office (Buffalo, New York)
where the said defendant made findings of regular baking soda to be cocaine
and/or derivative of cocaine. The defendant’s actions and/or inactions were
intentional and executed in a manner to cause the malicious and selective
prosecution of the plaintiff[.]
Amended Complaint [#6] ¶ 7. The Amended Complaint does not allege that any test results
by Herky were actually used against him in the criminal prosecution, and in fact the trial
transcripts contained in the record indicate that they were not so used. Rather, as noted
earlier, Bailey re-tested all of the evidence that was initially tested by Herky. There is also
no indication in the record that Herky actually misidentified any substance that she tested.
Moreover, Herky did not testify at trial.
As for the claim against Bailey, the Amended Complaint alleges that she
gave fabricated conclusions on substances that were tested by falsely
reporting that ‘baking soda was a controlled substance, poured from the box
into a plastic baggie admitted into evidence. That a scale never analyzed was
admitted into evidence and she failed to retest results of a former employee
[Herky] that had been dismissed for not following procedure. In fact she
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signed her initials to something that she never analyzed into evidence, that a
scale had tested positive for cocaine when in fact ‘it was not cocaine.’ She
presented false testimony before a Jury in [the] state criminal trial proceeding
in an effort to cause and facilitate the selective and malicious prosecution of
the plaintiff[.]
Amended Complaint [#6] at ¶ 8. However, in her actual testimony, Bailey did not indicate
that baking soda was a controlled substance. Bailey testified that she re-tested certain
substances, which were confirmed to be controlled substances, but did not re-test a white
powder substance that had already been determined was not a controlled substance. See,
[#17-4] at 481-482. In that regard, Bailey indicated that she had not re-tested that material
because it had initially tested negative for controlled substances, and because she had not
been asked to re-test it by the Assistant District Attorney handling the case. Bailey also did
not indicate that a scale had tested positive for cocaine. In fact, Bailey testified that she did
not perform any testing on the scale. See, [#17-4] at 473. Bailey also indicated that she
signed her initials to the items that she received, regardless of whether she tested them.
To the extent that Plaintiff suggests that by signing her initials to certain evidence Bailey was
indicating that it contained a controlled substance, he is badly mis-characterizing Bailey’s
testimony.
As for the claim against Banas, the Amended Complaint contends that Banas
did produce a deceptive and incriminating evidentiary report exclusively
connecting the plaintiff to the unlawful possession of a controlled substance.
Never provided the initial results of Lab testing. Falsely initiated a report that
was a misdemeanor complaint and knew that a Felony Complaint lodged
would go to trial. The said defendant produced this said report and provided
same into the Erie County District Attorney’s office to be used to cause the
selective and malicious prosecution of the plaintiff in the matter. The theory
was the scale that was used to weigh controlled substances that never
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appeared on the scale. The defendant’s actions contributed to the selective
and malicious prosecution of the plaintiff [.] [sic]
Amended Complaint [#6] at ¶ 9. Again, though, these allegations mis-characterize the
record, since Banas never “connected” any substances tested to Plaintiff, never indicated
that he tested a scale for drug residue, and had no control over the accusatory instruments
that were filed against Plaintiff. See, e.g., [#17-3] at 465-466. In fact, with regard to the
scales, Banas specifically testified that he never tested either scale for drug residue. Id.
Defendants subsequently filed the subject motion [#15] for judgment on the pleadings
pursuant to Fed.R.Civ.P. 12(c) on the ground that they are immune from suit because they
are covered by the same absolute immunity afforded to prosecutors.1 See, Defs. Memo of
Law [#15-1] at p. 3 (“Defendants should be afforded absolute immunity because they are
forensic lab technicians who analyzed evidence at the request of the prosecutor.”). In that
regard, Defendants maintain that they assisted in the prosecutorial phase of the case
against Plaintiff, after Plaintiff has already been arrested and charged. For authority,
Defendants rely on, inter alia, Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995),
Newton v. City of New York, 738 F.Supp.2d 397, 407 (S.D.N.Y. 2010), Goncalves v.
Reynolds, 198 F.Supp.2d 278, 281 (W.D.N.Y. 2001) and Jenkins v. City of New York, Nos.
98Civ. 7170 JGK DFE, 98Civ. 7338 JGK DFE, 1999 WL 782509 at *16 (S.D.N.Y. Sep. 30,
1999), aff’d 216 F.3d 1072 (2d Cir. 2000).
Plaintiff made two submissions in response to Defendants’ motion. See, Docket Nos.
[#26] & [#28]. The first submission [#26] is not responsive to the motion for judgment on the
1
Defendants alternatively contend that any state-law claims against them must also be dismissed.
However, even construing the Amended Complaint liberally, it does not attempt to set forth any state-law
claims.
8
pleadings, except insofar as it states in conclusory fashion that “[t]he defendants are not
immune from any action.” Id. at p. 3. The second submission is also generally nonresponsive to Defendants’ motion, though it does contain the following statements: 1) “The
defendants are not immune as they acted under the color of state law[.]”; and 2) “The
actions of the defendants are what caused this action and are NOT protected by quasi
judicial immunity.” (emphasis in original). To summarize, Plaintiff offers conclusory denials,
but does not attempt to cite any legal authority to counter Defendants’ arguments.
DISCUSSION
Defendants have moved for judgment on the pleadings, and “[t]he same standard
applicable to Fed.R.Civ.P. 12(b)(6) motions to dismiss applies to Fed.R.Civ.P. 12(c) motions
for judgment on the pleadings.” Bank of New York v. First Millennium, Inc., 607 F.3d 905,
922 (2d Cir.2010) (citation omitted). Such standard is clear:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order to
give the defendant fair notice of what the claim is and the grounds upon which
it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.
Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
Cir.2007 ) (“To survive dismissal, the plaintiff must provide the grounds upon which his claim
rests through factual allegations sufficient ‘to raise a right to relief above the speculative
9
level.’ ”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted). When applying this
standard, a district court must accept the allegations contained in the complaint as true and
draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192
F.3d 52, 56 (2d Cir.1999), cert. den. 531 U.S. 1052, 121 S.Ct. 657 (2000).
“While a pro se complaint must contain sufficient factual allegations to meet the
plausibility standard, this Court affords pro se litigants ‘special solicitude’ by ‘interpreting [a
pro se ] complaint to raise the strongest claims that it suggests.’” Jackson v. Pfau, No.
12–324–pr, 2013 WL 1338712 at *1 (2d Cir. Apr. 4, 2013) (table) (quoting Hill v. Curcione,
657 F.3d 116, 122 (2d Cir.2011) (alterations and quotation marks omitted)).
For claims under Section 1983, Prosecutors have absolute immunity, from actions
seeking damages, for acts committed in their capacity as advocates, such as when
commencing and pursuing prosecutions:
[A] defense of absolute immunity from a claim for damages must be upheld
against a § 1983 claim that the prosecutor commenced and continued a
prosecution that was within his jurisdiction but did so for purposes of
retaliation, or for purely political reasons. A prosecutor is also entitled to
absolute immunity despite allegations of his knowing use of perjured testimony
and the deliberate withholding of exculpatory information. Although such
conduct would be reprehensible, it does not make the prosecutor amenable
to a civil suit for damages. In sum, the nature of absolute immunity is such
that it accords protection from any judicial scrutiny of the motive for and
reasonableness of official action. In the realm of absolute immunity, evaluation
of motive and reasonableness is forbidden. These principles are not affected
by allegations that improperly motivated prosecutions were commenced or
continued pursuant to a conspiracy.
Shmueli v. City of New York, 424 F.3d 231, 237-238 (2d Cir. 2005) (citations and internal
quotation marks omitted). On the other hand, qualified immunity, not absolute immunity,
10
applies when prosecutors perform investigative functions normally performed by a detective
or police officer. Zahrey v. Coffey, 221 F.3d 342, 346 (2d Cir. 2000).2
In determining whether activity was investigative or prosecutorial, the Court must
“apply a functional approach, looking to the function being performed rather than to the
office or identity of the defendant.” Hill v. City of New York, 45 F.3d at 660 (citation and
internal quotation marks omitted). If a defendant fabricates evidence in order to provide
probable cause for an arrest, such conduct is deemed investigative, not prosecutorial. See,
id., 45 F.3d at 662 (alleged fabrication of evidence to provide probable cause for arrest is
investigative in nature and therefore entitled to only qualified immunity). On the other hand,
once a prosecution is commenced, actions that when viewed in isolation might appear to be
investigative are nevertheless prosecutorial. See, Warney v. Monroe County, 587 F.3d 113,
123 (2d Cir. 2009) (“[I]t is unhelpful to ascertain the prosecutor’s functional role by isolating
each specific act done or not done; rather, a prosecutor’s function depends chiefly on
whether there is a pending or in preparation a court proceeding in which the prosecutor acts
as an advocate.”). As one district court recently put it, “[i]nvestigative acts aimed at
gathering and piecing together evidence for indications of criminal activities and
determination of the perpetrators are not entitled to absolute immunity . . .
while
investigative acts reasonably related to decisions whether or not to begin or to carry on a
2
Similarly, as to claims brought under New York State law, government employees have absolute
immunity for their discretionary judicial and quasi-judicial acts. See, Cornejo v. Bell, 592 F.3d 121, 130 (2d
Cir. 2010); see also, Carossia v. City of New York, 39 A.D.3d 429, 430, 835 N.Y.S.2d 102, 104 (1st Dep. 2007)
(“Defendants are entitled to immunity for those governmental actions requiring expert judgment or the exercise
of discretion. This immunity is absolute when the action involves the conscious exercise of discretion of a
judicial or quasi-judicial nature”) (citation and internal quotation marks omitted). On the other hand, under
New York law, prosecutors enjoy only qualified immunity for “investigative, law-enforcement” type acts. Claude
H. v. County of Oneida, 214 A.D.2d 964, 965, 626 N.Y.S.2d 933, 935 (4th Dept. 1995). Again, though, Plaintiff
has not pleaded any state-law claims.
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particular criminal prosecution, or to defend a conviction are.” Collins v. City of New York,
— F.Supp.2d — , 2013 WL 563436 at * 5-8 (E.D.N.Y. Feb. 15, 2013) (citing Giraldo v.
Kessler, 694 F.3d 161, 166 (2d Cir. 2012), emphasis added, internal quotation marks
omitted).
Although absolute immunity is an affirmative defense, it is appropriate to address
absolute immunity in a 12(b)(6) context if the complaint clearly indicates the nature of the
function for which the defendant is being sued:
[A]lthough absolute immunity is an affirmative defense whose availability
depends on the nature of the function being performed by the defendant
official who is alleged to have engaged in the challenged conduct, the nature
of that function is often clear from the face of the complaint. In that
circumstance, the absolute immunity defense may be resolved as a matter of
law on a motion to dismiss the complaint pursuant to Rule 12(b)(6).
Shmueli v. City of New York, 424 F.3d at 236 (citations and internal quotation marks
omitted). Conversely,
when it may not be gleaned from the complaint whether the conduct objected
to was performed by the prosecutor in an advocacy or an investigatory role,
the availability of absolute immunity from claims based on such conduct
cannot be decided as a matter of law on a motion to dismiss.
Hill v. City of New York, 45 F.3d at 663 (finding that there were issues of fact as to whether
prosecutor who took false videotaped statement, purportedly for use in grand jury, was
acting in investigative capacity).
In the instant case, the nature of the functions performed by Defendants is evident
from the Complaint. Defendants are not prosecutors, but are forensic scientists who
performed testing on evidence that was seized from Plaintiff at the time of his arrest, and
then testified at trial. Nevertheless, the rationale that provides absolute immunity to
12
prosecutors applies equally to other government officials who are involved in the judicial
process. See, Newton v. City of New York, 738 F.Supp.2d at 406-416. The district court in
Newton found that a forensic scientist who allegedly failed to conduct proper DNA testing
that would have exonerated a criminal defendant was entitled to absolute immunity. Id.3
This Court adopts the reasoning applied in Newton and finds that Defendants are entitled
to absolute immunity for their alleged actions in fabricating evidence. In that regard, the
Court finds that the Defendants’ actions in evaluating evidence seized after an initial
investigation resulted in Plaintiff’s arrest were more akin to advocacy than investigation.
See, Newton, 738 F.Supp.2d at 407-408 (“[T]he determination of whether [Ryan’s] actions
implicate her investigatory or advocacy capacity necessarily relies on their role and function
in an ongoing proceeding. . . . Ryan’s analysis was [advocacy because it was] conducted
for the sole purpose of determining whether Newton’s continued incarceration
was
necessarily warranted, not for a general purpose investigation to identify potential suspects
in V.J.’s attack. ”) (emphasis in original). Defendants are also entitled to absolute immunity
insofar as Plaintiff is claiming that their trial testimony violated his constitutional rights. See,
Jones v. King, No. 10 Civ. 0897(PKC), 2011 WL 4484360 at *6 (S.D.N.Y. Sep. 28, 2011)
(“It is well established that testifying witnesses, including police officers, are entitled to
absolute immunity from liability under § 1983 based on their testimony.”) (citation omitted).
Alternatively, the Court also finds that the Amended Complaint is entirely conclusory
and does not set forth sufficient factual allegations to state a plausible claim against any of
3
Newton, like Warney, involved a post-conviction collateral attack. To the extent that the district court
in Newton questioned, in dicta, whether such immunity would apply in the pre-conviction context, see, 738
F.Supp.2d at 411, the Court finds that it does, for the same reasons discussed elsewhere in the Newton
decision.
13
the Defendants. See, Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993) (“A complaint
containing only conclusory, vague, or general allegations of conspiracy to deprive a person
of constitutional rights cannot withstand a motion to dismiss.”). In that regard, it appears that
Plaintiff is attempting to capitalize on the fact that Herky was terminated for misconduct in
an unrelated case to cast doubt on the work performed by Bailey and Banas. However, the
Amended Complaint does not plausibly suggest any actual wrongdoing in Plaintiff’s
underlying criminal action. Plaintiff’s bald assertion that Defendants falsified test results to
indicate the presence of controlled substances is also disingenuous inasmuch as he did not
dispute at trial that controlled substances were in fact found in his home.
CONCLUSION
For the foregoing reasons, Defendants’ motion [#15] is granted and this action is
dismissed with prejudice. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a),
that any appeal from this Order w ould 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 w ith Rule 24 of the Federal Rules of Appellate Procedure. The Clerk of
the Court is directed to terminate this action.
SO ORDERED.
Dated:
May 28, 2013
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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