Burke v. Donovan

Filing 20

REPORT AND RECOMMENDATION: recommending defendants' 9 MOTION to Dismiss be granted, plaintiff's 12 , 15 , 17 , and 19 MOTIONS to Amend 4 Complaint be denied, plaintiff's 14 MOTION for Summary Judgment be denied as moot, and this case be dismissed without prejudice. Objections to R&R due by 12/21/2009. Signed by Judge Jerome J. Niedermeier on 12/1/09. (hbc)

UNITED STATES DISTRICT COURT F O R THE D I S T R I C T OF VERMONT J a m e s T. Burke, Plaintiff, v. T . J . Donovan, State's A t t o r n e y , State of Vermont, Defendants. M A G I S T R A T E JUDGE'S REPORT AND RECOMMENDATION ( P a p e r s 9, 12, 14, 15, 17 and 19) P l a i n t i f f James Burke, proceeding pro se, alleges that S t a t e ' s Attorney T.J. Donovan has violated his c o n s t i t u t i o n a l rights in the course of a state court prosecution. Specifically, Burke claims that he was falsely C i v i l Action No. 1:08-CV-263

a c c u s e d of sexual assault, and that Donovan has refused to c h a r g e the complainant with perjury. Burke also claims that For

D o n o v a n has failed to produced certain discovery.

r e l i e f , Burke asks the Court to order Donovan to bring a p e r j u r y charge against his accuser. D e f e n d a n t s Donovan and the State of Vermont now move to d i s m i s s on grounds of Eleventh Amendment immunity, p r o s e c u t o r i a l immunity, abstention, and Heck v. Humphrey. For the reasons set forth below, I recommend that the motion t o dismiss be GRANTED, that all other motions be DENIED, and t h a t this case be DISMISSED.

F a c t u a l Background A c c o r d i n g to the complaint, Burke has been accused of p l a c i n g a date rape drug in a woman's drink and sexually a s s a u l t i n g her. Burke alleges that his accuser, identified

b y the defendants as "E.L.," is "on record for making two s e p a r a t e documented false sexual assault allegations" and is t h u s not credible. (Paper 4 at 4). He further claims that

J o e Leahy of the Vermont State Police stated in a deposition t h a t E.L. had lied under oath during an unrelated criminal investigation. Leahy also allegedly cited Vermont's perjury

s t a t u t e and suggested that E.L. should have been prosecuted f o r her statements. Id.

B u r k e ' s legal claim is that State's Attorney T.J. D o n o v a n has violated his rights under the Fourteenth A m e n d m e n t by failing to charge E.L. with perjury. He claims

t h a t Donovan has declined to bring charges against E.L. b e c a u s e doing so would disqualify her as a witness in his c r i m i n a l case. Burke also claims that Donovan has failed to p r o d u c e the Leahy deposition transcript. For relief, he

a s k s the Court to "compel defendant Donovan to uphold and e n f o r c e the perjury documented violations against [E.L.]." Id. at 3.

2

Discussion I. S o v e r e i g n Immunity T h e defendants first argue that all claims against the S t a t e of Vermont, as well as Donovan in his official c a p a c i t y , are barred under the doctrine of sovereign i m m u n i t y and the Eleventh Amendment. The Eleventh Amendment

p r o h i b i t s suits brought in federal court against u n c o n s e n t i n g states or state officials sued in their o f f i c i a l capacities. 6 6 3 (1974). See Edelman v. Jordan, 415 U.S. 651,

A state may waive its Eleventh Amendment

i m m u n i t y so long as the waiver is unequivocally expressed. Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985). A d d i t i o n a l l y , Congress may abrogate the Eleventh Amendment p u r s u a n t to Section 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Congress has not abrogated Vermont's sovereign immunity f r o m a § 1983 suit in federal court, and the State of V e r m o n t has expressly preserved its sovereign immunity under t h e Eleventh Amendment. See, e.g., 12 V.S.A. § 5601(g).

Because the Eleventh Amendment protects the State of Vermont r e g a r d l e s s of the nature of the relief sought, all claims a g a i n s t the State should be DISMISSED. Alabama v. Pugh, 438

3

U . S . 781, 782 (1978). T h e Eleventh Amendment does not apply, however, to c l a i m s for prospective injunctive relief brought against a s t a t e actor in his official capacity. See Ex Parte Young,

2 0 9 U.S. 123, 155-56 (1908); Dairy Mart Convenience Stores, I n c . v. Nickel, 411 F.3d 367, 372 (2d Cir. 2005). The

S u p r e m e Court has held that determining whether a litigant's c l a i m falls under the Ex parte Young exception is a " s t r a i g h t f o r w a r d inquiry" that asks "whether [the] complaint a l l e g e s an ongoing violation of federal law and seeks relief p r o p e r l y characterized as prospective." Verizon Md., Inc.

v . Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002). H e r e , Burke claims that Donovan is currently violating h i s Fourteenth Amendment rights, and seeks injunctive relief i n the form of an order compelling Donovan to prosecute E.L. f o r perjury. Because Burke claims an ongoing violation, and

t h e relief he requests is plainly prospective, the Court s h o u l d decline to dismiss his official capacity claim a g a i n s t Donovan on the basis of Eleventh Amendment immunity. II. Absolute Prosecutorial Immunity T h e defendants next argue that Donovan is protected f r o m suit by prosecutorial immunity. This well-established

4

i m m u n i t y applies to "acts undertaken by a prosecutor in p r e p a r i n g for the initiation of judicial proceedings or for t r i a l , and which occur in the course of his role as an a d v o c a t e for the State." 2 5 9 , 273 (1993). Buckley v. Fitzsimmons, 509 U.S.

Again, however, requests for injunctive Shmueli v. City of New York, 424 The Court should thus decline

r e l i e f are not protected.

F . 3 d 231, 239 (2d Cir. 2005).

t o dismiss the case on this basis. III. Abstention T h e defendants also argue that according to the d o c t r i n e of abstention set forth by the Supreme Court in Y o u n g e r v. Harris, 401 U.S. 37 (1971), the Court must r e f r a i n from granting Burke any relief. "Under Younger,

f e d e r a l courts, in the interest of comity, must abstain from e n j o i n i n g pending state court criminal prosecutions and a l l o w state courts to resolve pending matters within their jurisdiction." Washington v. County of Rockland, 373 F.3d

3 1 0 , 318 (2d Cir. 2004) (citing Trainor v. Hernandez, 431 U . S . 434 (1977)). Younger abstention is required when three

c o n d i t i o n s are met: (1) there is a pending state proceeding; ( 2 ) the proceeding implicates an important state interest; a n d (3) the state proceeding affords the federal plaintiff

5

a n adequate opportunity for judicial review of the federal c o n s t i t u t i o n a l claims. See Hartford Courant Co. v.

P e l l e g r i n o , 380 F.3d 83, 100-01 (2d Cir. 2004). Burke seeks an order compelling the prosecution of a t h i r d party. He is not asking the Court to interfere

d i r e c t l y with the proceedings in his own state court case. While the perjury prosecution, if successful, might have an i n d i r e c t impact on Burke's case, it would not be the sort of d i r e c t interference contemplated by Younger. 43-46. 401 U.S. at

Furthermore, it is not clear that the state court

c o u l d , as part of that proceeding, compel such a prosecution. The Court should therefore find that Younger

d o e s not apply to Burke's request for relief. R e a d i n g the complaint liberally, Burke's claim that the L e a h y deposition has not been produced could be construed as a request for an order compelling such production. That

s o r t of order would, of course, constitute interference with B u r k e ' s criminal case. Moreover, assuming that the failure

t o produce the Leahy affidavit raises a constitutional i s s u e , Burke certainly has an opportunity to raise that i s s u e with the state court. Spargo v. New York State Comm'n

o n Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003) (Supreme

6

C o u r t has "unequivocal[ly] stated" that abstention is a p p r o p r i a t e when the plaintiff has "an `opportunity to raise a n d have timely decided by a competent state tribunal' the c o n s t i t u t i o n a l claims at issue in the federal suit.") ( q u o t i n g Middlesex Ethics Comm. v. Garden State Bar Ass'n, 4 5 7 U.S. 423, 437 (1982)); see, e.g., State v. Tester, 181 V t . 506, 509-11 (2007) (discussing defendant's Brady claim). Accordingly, to the extent that Burke seeks Court action w i t h regard to production of the Leahy deposition, a b s t e n t i o n is appropriate. IV. Heck v. Humphrey I n Heck v. Humphrey, 512 U.S. 477, 487 (1994), the S u p r e m e Court held that a claim is not cognizable under § 1 9 8 3 if "a judgment in favor of the plaintiff would n e c e s s a r i l y imply the invalidity of his conviction or s e n t e n c e . . . unless the plaintiff can demonstrate that the c o n v i c t i o n or sentence has already been invalidated." d e f e n d a n t s in this case submit that Burke's claims of " e r r o r s regarding the underlying criminal proceedings . . . n e c e s s a r i l y imply the invalidity of that proceeding," and a r e therefore barred under Heck. (Paper 9 at 6). The

A s s u m i n g that Heck applies to a pre-trial detainee

7

c l a i m for injunctive relief, Burke's claims do not fit w i t h i n the purview of the Heck decision since success in t h i s case would not "necessarily" undermine the validity of h i s conviction or sentence. Heck, 512 U.S. at 487; McKithen If Burke were

v . Brown, 481 F.3d 89, 102 (2d Cir. 2007).

s u c c e s s f u l in the instant case, Donovan would be compelled t o bring a perjury charge against E.L. Success on the Moreover,

p e r j u r y charge, however, would not be guaranteed.

i f the perjury proceeding resulted in a finding of guilt, a n d / o r the Leahy deposition were produced and introduced at B u r k e ' s trial, neither event would necessarily undermine the s e x u a l assault charge. Rather, it would call the

r e l i a b i l i t y of E.L.'s testimony into question, and leave the t r i e r of fact to determine the truth. "[T]hat a prisoner's success might be merely helpful or p o t e n t i a l l y demonstrative of illegal confinement is, under [ t h e Heck] standard, irrelevant." original). Id. (emphasis in

If E.L. were convicted of perjury, Burke's

c h a n c e of success in his criminal case would conceivably be heightened. The perjury conviction would not, however,

8

d i s q u a l i f y E.L. as a witness, 1 and would not "necessarily" u n d e r m i n e her claims of sexual assault. Similarly,

i n f o r m i n g a jury of Leahy's statements about E.L.'s c r e d i b i l i t y would not necessarily establish Burke's innocence. The Court should therefore find that Heck v.

H u m p h r e y does not apply in this case. V. No Constitutional Right To Perjury Prosecution A l t h o u g h the defendants' arguments do not warrant the c o m p l e t e dismissal of Burke's complaint, this case must s t i l l be dismissed due to its failure to present a valid l e g a l claim. 1915A(b). See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. §

As noted previously, the Court should abstain

f r o m issuing any sort of order with regard to production of t h e Leahy deposition. Consequently, the only remaining

c l a i m s is a request for an order compelling Donovan to bring c h a r g e s against Burke's accuser. It is well established,

h o w e v e r , that Burke has no constitutional right to such an order. B u r k e argues that by failing to prosecute E.L., Donovan h a s violated his rights under the Fourteenth Amendment, and

Vermont law no longer considers someone who has been convicted of p e r j u r y as automatically barred from testifying under oath. 13 V.S.A. § 2907 ( r e p e a l e d 2006); 12 V.S.A. § 1608 (amended 2005).

1

9

p r e s u m a b l y the Due Process Clause.

The Supreme Court has

h e l d that "the benefit that a third party may receive from h a v i n g someone else arrested for a crime generally does not t r i g g e r protections under the Due Process Clause." C a s t l e Rock v. Gonzalez, 545 U.S. 748, 768 (2005). Similarly, in the context of substantive due process, the S u p r e m e Court has determined that the Due Process Clause " g e n e r a l l y confer[s] no affirmative right to governmental a i d , even where such aid may be necessary to secure life, l i b e r t y , or property interests of which the government i t s e l f may not deprive the individual." DeShaney v. Town of

W i n n e b a g o County Dep't of Soc. Servs., 489 U.S. 189, 196 ( 1 9 8 9 ) ; see Linda R.S. v. Richard D., 410 U.S. 614, 619 ( 1 9 7 3 ) ("a private citizen lacks a judicially cognizable i n t e r e s t in the prosecution or nonprosecution of another"); M a r s h v. Kirschner, 31 F. Supp. 2d 79, 81 (D. Conn. 1998) ( " n o federal right to have criminal wrongdoers prosecuted"). T h e r e are two recognized exceptions to the general rule c i t e d in DeShaney. See Matican v. City of New York, 524 The first is where the

F . 3 d 151, 155 (2d Cir. 2008).

g o v e r n m e n t has a "special relationship" with the victim that g i v e s rise to a duty to protect. While incarceration may

10

t r i g g e r that duty, "special relationship cases typically i n v o l v e individuals who were in government custody at the t i m e of the harm by private actors." Hespeler v. Town of

L e d y a r d , 2009 WL 3128536, at *5 (D. Conn. Sept. 28, 2009). Here, there is no indication that Burke was incarcerated w h e n E.L. brought her allegations of sexual assault. i f Burke was incarcerated at the time, the harm he has a l l e g e d l y suffered had nothing to do with the fact that he w a s in prison. Accordingly, the State had no heightened Even

d u t y to protect him from harm, and this exception does not apply. The second exception provides that the State may owe an o b l i g a t i o n to the victim if its agents "in some way had a s s i s t e d in creating or increasing the danger to the victim." Matican, 524 F.3d at 155. There is no allegation Moreover, in addition to

o f any such conduct in this case.

p r o v i n g one of these two exceptions, Burke would need to s h o w that Donovan's conduct in failing to prosecute E.L. is " s o egregious, so outrageous, that it may fairly be said to s h o c k the contemporary conscience." Id. at 155. Given a

p r o s e c u t o r ' s wide discretion as to when to bring charges, a n d because a successful perjury conviction would not

11

n e c e s s a r i l y undermine the credibility of E.L.'s claims, t h e r e is no basis for a finding that Donovan has acted in a w a y that "shocks the conscience." Burke's claim for relief

i n the form of an order compelling Donovan to prosecute E.L. f o r perjury should, therefore, be DISMISSED. VI. Leave To Amend W h e n addressing a pro se complaint, a district court s h o u l d not dismiss without granting leave to amend at least o n c e when a liberal reading of the complaint gives any i n d i c a t i o n that a valid claim might be stated. Thompson v.

C a r t e r , 284 F.3d 411, 419 (2d Cir. 2002) (citing Branum v. C l a r k , 927 F.2d 698, 705 (2d Cir. 1991)). However, a court

n e e d not permit amendment when, as in this case, the c o m p l a i n t gives no indication that a valid claim might be stated. Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003).

S i n c e the defendants filed their motion to dismiss, B u r k e has filed four motions to amend his complaint. The

f i r s t asks the Court to "amend or convert this 42 U.S.C. § 1 9 8 3 to a federal habeas corpus so that the issues c o m p l a i n e d about can be litigated and ruled on." a t 1). (Paper 12

A federal habeas corpus proceeding challenges the See 28 U.S.C.

f a c t or duration of the plaintiff's custody.

12

§ 2254; Preiser v. Rodriguez, 411 U.S. 475, 490 (1973). Burke's complaint alleges prosecutorial misconduct and asks t h a t E.L. be prosecuted for perjury. Accordingly, the

c o m p l a i n t need not be converted, and the first motion to a m e n d should be DENIED. B u r k e ' s next three motions argue that the Court should n o t abstain from hearing his claims, and seek to add a s p e e d y trial claim. (Papers 15, 17 and 19). In the more

d e t a i l e d of the three motions, Burke also submits that the e v i d e n c e against him is insufficient. (Paper 15). Unlike

h i s initial complaint, the relief sought is a declaration t h a t his state court proceedings are invalid. B o t h the weighing of evidence and the speedy trial i s s u e clearly implicate Younger abstention. See, e.g.,

H o u s t o n v. Horn, 2007 WL 2993846, at *1 (E.D.N.Y. Oct. 10, 2 0 0 7 ) (speedy trial claim barred by Younger). Indeed, the

Y o u n g e r requirements are squarely met, as Burke seeks i n t e r v e n t i o n in an ongoing, state court criminal proceeding i n which he may raise each of his constitutional concerns. Hartford Courant Co., 380 F.3d at 100-01. Evidently aware of this impediment to federal review, B u r k e asserts that the State has acted in bad faith, thereby

13

i n v o k i n g one of the few exceptions to Younger application. See Kugler v. Helfant, 421 U.S. 117, 124 (1975) ("the Court i n Younger left room for federal equitable intervention in a s t a t e criminal trial where there is a showing of bad faith o r harassment by state officials responsible for the p r o s e c u t i o n . . ."). In order to successfully invoke a

Y o u n g e r exception, however, "the defendant in a criminal c a s e must make sufficient specific factual allegations which s u p p o r t an inference that the particular exception applies a n d cannot rely on general claims of misconduct." Saunders Two

v . Flanagan, 62 F. Supp. 2d 629, 634 (D. Conn. 1999).

o f Burke's motions to amend state in conclusory fashion that t h e "respondents" have acted in bad faith. 19). (Paper 17 and

The third provides slightly more detail, complaining

o f continuances requested by the prosecution and granted by t h e state court. 2 (Paper 15 at 1-2).

E x c e p t i o n s to the Younger doctrine represent a "very n a r r o w gate for federal intervention in pending state c r i m i n a l proceedings." 1 3 5 8 (7 t h Cir. 1993). Arkebauer v. Kiley, 985 F.2d 1351, "This is because a pending state

This motion appears to be targeted more to the state court than to t h i s court, as it cites Vermont procedural rules, makes references to an a p p o i n t e d attorney, and asks for dismissal of the information. (Paper 15 at 2).

2

14

p r o s e c u t i o n usually provides the accused a fair and s u f f i c i e n t opportunity for vindication of federal c o n s t i t u t i o n a l rights." Saunders, 62 F. Supp. 2d at 634 Accordingly, courts have

( c i t i n g Kugler, 421 U.S. at 124).

a p p l i e d the bad faith exception sparingly. T h e "bad faith" exception has been applied where t h e plaintiff alleged that the prosecution was m o t i v a t e d , in part, by his race, Lewellen v. Raff, 8 4 3 F.2d 1103, 1112 (8 t h Cir. 1988); that the p r o s e c u t i o n was motivated by a purpose to r e t a l i a t e for or to deter the filing of a civil s u i t against state officers, Wilson v. Thompson, 5 9 3 F.2d 1375 (5 t h Cir. 1979); that the prosecution w a s instituted to harass and punish the federal p l a i n t i f f s for having exercised their first a m e n d m e n t rights in criticizing public officials, F i t z g e r a l d v. Peek, 636 F.2d 943 (5 t h Cir.) (per c u r i a m ) , cert. denied, 452 U.S. 916 (1981); and t h a t the prosecution was instituted in retaliation f o r the plaintiff exercising his First Amendment r i g h t s by providing truthful testimony which was d a m a g i n g to the prosecutor in another case, [Smith v . Hightower, 693 F.2d 359, 368 (5 t h Cir. 1982)]. I n each of these cases the plaintiff successfully i n v o k e d federal intervention by showing that he w a s being prosecuted, at least in part, based upon s o m e constitutionally prohibited motive. S a u n d e r s , 62 F. Supp. 2d at 636. Burke makes no such claim,

a l l e g i n g only that his trial has been unreasonably, and u n l a w f u l l y , delayed. Because this claim can be adequately

a d d r e s s e d by the state courts, there is no need for federal i n t e r v e n t i o n at this time. I therefore recommend that Burke's motions for leave to 15

a m e n d be DENIED, and that the Court find that any further e f f o r t s to amend would be futile. s h o u l d be DISMISSED. Accordingly, this case

Dismissal should be without prejudice,

s u c h that Burke may raise his claims in state court. Conclusion F o r the reasons set forth above, I recommend that the d e f e n d a n t s ' motion to dismiss (Paper 9) be GRANTED, that B u r k e ' s motions to amend (Papers 12, 15, 17 and 19) be D E N I E D , that Burke's motion for summary judgment (Paper 14) b e DENIED as moot, and that this case be DISMISSED without prejudice. D a t e d at Burlington, in the District of Vermont, this 1 s t day of December, 2009.

/ s / Jerome J. Niedermeier Jerome J. Niedermeier U n i t e d States Magistrate Judge

A n y party may object to this Report and Recommendation w i t h i n 14 days after service by filing with the clerk of the c o u r t and serving on the magistrate judge and all parties, w r i t t e n objections which shall specifically identify the p o r t i o n s of the proposed findings, recommendations or report t o which objection is made and the basis for such o b j e c t i o n s . Failure to file objections within the specified t i m e waives the right to appeal the District Court's order. See Local Rules 72.1, 72.3, 73.1; 28 U.S.C. § 636(b)(1); F e d . R. Civ. P. 72(b), 6(a) and 6(d).

16