Finley v. Hersh et al
Filing
33
OPINION and ORDER: Defendants' 8 , 16 , and 23 Motions to Dismiss are GRANTED, and Plaintiff's 28 Motion for Summary Judgment is DENIED. This case is DISMISSED. Signed by District Judge J. Garvan Murtha on 7/9/2013. (kak)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Edward Finley,
Plaintiff,
v.
John Hersh, Leonard
Shapiro, and Ray LaMoria,
Defendants.
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Case No. 1:12-cv-162-jgm
OPINION AND ORDER
(Docs. 8, 16, 23, 28)
Plaintiff Edward Finley was convicted in 1999 of
conspiring and attempting to rob a federally insured credit
union.
He brings the current action, pro se, against two now-
retired FBI agents and a police officer, claiming that false
testimony, witness intimidation, and withheld evidence denied
him a fair trial.
Pending before the Court are Defendants’
motions to dismiss and Finley’s motion for summary judgment.
For the reasons set forth below, the motions to dismiss are
GRANTED, the motion for summary judgment is DENIED, and this
case is DISMISSED.
Factual Background
In March 1998, Finley was indicted on charges that he
conspired and attempted to rob a federally insured credit
union, and that he had distributed marijuana.
See United
States v. Finley, Case No. 1:98-cr-25 (Doc. 11.)
In February
1999, a jury convicted him of conspiring to rob a credit union
in violation of 18 U.S.C. § 371, and attempting to rob a
credit union in violation of 18 U.S.C. § 2113(a).
87.)
Id. (Doc.
The United States Court of Appeals for the Second
Circuit summarized the facts underlying the convictions as
follows:
The government’s case centered on the testimony of
Finley’s co-conspirator, Daniel Colomb. He
testified that, in late 1997, after he and Finley
had participated in several burglaries, Finley
suggested that they rob the Vermont Grocer’s Credit
Union, and they took several preliminary steps to
plan the robbery. In addition, in January 1998,
they burglarized a local residence and stole some
marijuana. Soon thereafter, Colomb was arrested on
a shoplifting charge and agreed to cooperate with
the police; he wore a recording device during
several subsequent meetings with Finley. During one
of these meetings, Finley sold two ounces of
marijuana to Colomb. Later, during a series of
meetings on March 5, 1998 concerning the robbery,
defendant told Colomb he “wanted to do the job” but
then changed his mind back and forth several times.
He brought Colomb to the credit union and drove past
it three times. On the final pass, Colomb exited
the car wearing a mask and entered the credit union.
As Finley moved the car away, a police officer
observed him wearing a hood. He was arrested and
gave a full confession admitting the robbery was his
idea.
Finley testified in his own defense. He claimed,
among other things, that the robbery was Colomb’s
idea; that he never agreed to rob the credit union;
that he was unaware of what was going on while the
robbery attempt was underway and did not expect
Colomb to get out of the car; and that he was not
wearing a hood as he pulled away from the credit
union.
United States v. Finley, 205 F.3d 1325, 2000 WL 232166, at *1
(2d Cir. Feb. 18, 2000) (unpublished opinion).
2
On March 15, 1999, Finley’s attorney filed a motion to
set aside the verdict, arguing (1) that Defendant John Hersh,
a now-retired FBI agent, attempted to intimidate Finley’s
wife, Kimberly Finley, to prevent her from testifying on
behalf of her husband; (2) that Hersh had threatened another
non-party witness with criminal prosecution if he refused to
testify on behalf of the government; and (3) that the evidence
against Finley was insufficient.
Court denied the motion.
(Doc. 9-1 at 21-31.)
This
In July 1999, Finley was sentenced
to 63 months in prison, to be followed by three years of
supervised release.
Finley appealed his conviction and sentence, as well as
the Court’s ruling on the motion to set aside the verdict.
The Second Circuit affirmed, and with respect to the motion to
set aside the verdict, found that Finley had suffered no
prejudice because his wife “actually testified, and [the other
non-party witness] did not.”
Finley, 2000 WL 232166, at *3.
In October 2001, Finley filed a petition for writ of
coram nobis, claiming (1) that the government misled the grand
jury by presenting perjured testimony, (2) that the court had
no jurisdiction over the criminal case because there was no
“nexus” between the federal government and the credit union,
and (3) ineffective assistance of counsel because his attorney
had failed to raise the “jurisdictional” issues.
3
Finley v.
United States, Case No. 1:01-cv-306 (Docs. 2, 3.)
The Court
denied the petition, finding it procedurally defective,
untimely, and ultimately without merit.
Id. (Doc. 18.)
On July 25, 2006, Finley filed a motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255.
The
motion argued, among other things, that in 2006, during an
interview with an investigator from the Federal Public
Defender’s Office (“FPD”), Daniel Colomb revealed that he had
urged Finley to commit the robbery after being pressured by
Special Agent Hersh.
Colomb also alleged that after Finley’s
trial, the FBI paid him between $1,000 and $1,500 for his
testimony.
Based upon this “newly discovered evidence,”
Finley argued that the government had violated his rights when
it failed to disclose the FBI’s tactics prior to trial.
Finley also argued that trial counsel was ineffective for
failing to properly investigate the possibility of government
pressure on Colomb.
The Court denied the § 2255 motion, finding it both
untimely and without merit.
As to the merits, the Court
reviewed Colomb’s trial testimony and concluded that his
statements to the investigator in 2006 were not materially
different from his testimony at trial with respect to any
pressure and/or incentives from the government.
Finley
appealed the Court’s ruling, and the Second Circuit denied the
4
appeal, finding he had failed to show that “jurists of reason
would find it debatable whether the district court was correct
in its procedural ruling.”
United States v. Finley, Case No.
1:98-cr-25 (Doc. 172.)
Finley now seeks relief under 42 U.S.C. § 1983, as well
as various tort theories, claiming that “the Government failed
to provide me with a fair trial by fabricating evidence and
withholding exculpatory evidence.”
(Doc. 4 at 1.)
Specifically, he claims Special Agent Hersh committed perjury
before the grand jury and at trial, withheld evidence from the
prosecutor, and intimidated the prosecution’s key witness.
The two other Defendants, Special Agent Shapiro1 and Rutland
police officer LaMoria, were allegedly aware of Hersh’s
conduct and failed to disclose it.
All Defendants have moved
to dismiss on various grounds, including timeliness and
failure to state a claim.
Finley has responded with a motion
for summary judgment.
Discussion
I.
Motion to Dismiss Standards
Defendants’ motions to dismiss are submitted pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
1
Under
The Complaint names “Leonard” Shapiro as a Defendant.
The government informs the Court that the agent who worked on
Finley’s case with Special Agent Hersh was Special Agent
Lionel Shapiro.
5
Federal Rule of Civil Procedure Rule 12(b)(1), a claim may be
dismissed for lack of subject matter jurisdiction.
Makarova
v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“A case is
properly dismissed for lack of subject matter jurisdiction
under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.”).
In
reviewing a motion to dismiss under Rule 12(b)(1), the Court
must accept as true all material factual allegations in the
Complaint, but is not required to draw all reasonable
inferences in the plaintiff’s favor.
See J.S. v. Attica Cent.
Schs., 386 F.3d 107, 110 (2d Cir. 2004).
Rather, a plaintiff
asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that subject matter
exists.
In deciding a Rule 12(b)(6) motion to dismiss, the Court
applies a “plausibility standard,” which is guided by “[t]wo
working principles.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir.
2009).
First, the Court must again accept all allegations in
a plaintiff’s complaint as true, although this “tenet” is
inapplicable to legal conclusions, and “[t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
678; accord Harris, 572 F.3d at 72.
6
Iqbal, 556 U.S. at
Second, only complaints
that state a “plausible claim for relief” can survive a Rule
12(b)(6) motion to dismiss.
Iqbal, 556 U.S. at 679.
Determining whether a complaint does so is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”
Id.; accord Harris, 572 F.3d at
72.
II.
Defendant LaMoria’s Motion to Dismiss
The first motion before the Court is that of Officer
LaMoria.
(Doc. 8.)
The sole allegation against LaMoria is
that he “was aware of the Hersh crime and did nothing to stop
it, or expose it at trial.”
(Doc. 4 at 3.)
LaMoria argues
that the Complaint, which contains virtually no underlying
factual information about Finley’s criminal case or Hersh’s
alleged misconduct, is conclusory and thus subject to
dismissal.
LaMoria also contends that the Complaint is
untimely, urging the Court to take judicial notice of Finley’s
1999 conviction, and arguing that any cause of action arose at
that time.
Apparently in response to LaMoria’s motion to dismiss,
Finley filed with the Court a 68-page addendum that includes
documents relating to his criminal case.
(Doc. 9-1.)
Among
those documents are two references to LaMoria: first, that
Colomb called LaMoria after being approached by the FPD in
2006 but LaMoria did not return the call; and second, that
7
LaMoria had been Colomb’s initial contact but “did not feel it
was right so he got out of it totally.”
Id. at 2, 3.
LaMoria
argues in reply that these facts “in effect acknowledge[] the
complete absence of wrongdoing on the part of Defendant
LaMoria.”
(Doc. 18 at 2.)
The Court first addresses the timeliness question.
Federal courts borrow the state law personal injury statute of
limitations period for purposes of Section 1983 actions.
Wilson v. Garcia, 471 U.S. 261, 276 (1985).
In Vermont, the
applicable statute of limitations for personal injuries and
tort claims is three years.
12 V.S.A. § 512(4).
Thus, unless
the limitations period is tolled for some reason, a plaintiff
must file his Section 1983 civil rights action or state law
tort claims within three years of the accrual of each cause of
action.
Federal law governs the question of when a section 1983
claim accrues.
Covington v. City of New York, 171 F.3d 117,
121 (2d Cir. 1999) (citing Morse v. Univ. of Vt., 973 F.2d
122, 125 (2d Cir. 1992)).
Generally, under federal law, a
cause of action accrues when “the plaintiff knows or has
reason to know of the injury which is the basis of his
action.”
Id. (internal quotation marks omitted).
Although
federal law determines when a section 1983 claim accrues,
8
state law determines whether the limitations period has been
tolled.
See Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir. 1997).
Finley submits that the statute of limitations tolled
while he was in prison, and notes that after his release he
was prohibited from contacting Colomb.
This Court has
previously acknowledged that a Vermont statutory tolling
provision applies to inmates.
See Bain v. Cotton, 2009 WL
1660051, at *4 (D. Vt. June 12, 2009).
Specifically,
Vermont’s limitations statute provides that “[w]hen a person
entitled to bring an action specified in this chapter is a
minor, insane or imprisoned at the time the cause of action
accrues, such person may bring such action within the times in
this chapter respectively limited, after the disability is
removed.”
12 V.S.A. § 551(a).
The Court has also determined
that tolling ceases once the inmate is released, and that reincarceration does not give rise to additional tolling under
the statute.
See Gilbeau v. Pallito, 2012 WL 2416719, at *7
(D. Vt. May 22, 2012), Report and Recommendation adopted by
2012 WL 2416654 (D. Vt. June 26, 2012).
In this case, the Complaint does not set forth the dates
of Finley’s incarceration.
Nonetheless, the Court takes
judicial notice of the fact that Finley was sentenced in 1999
to approximately five years in prison.
See Fed. R. Evid.
201(b) (court may take judicial notice of a fact “that it is
9
either (1) generally known within the territorial jurisdiction
of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned”); Chambers v. Time Warner, Inc., 282
F.3d 147, 153 (2d Cir. 2002) (holding that in deciding Rule
12(b)(6) motions, courts may consider judicially noticeable
facts).
Accordingly, if Finley’s causes of action accrued at
trial, his limitations period likely tolled, at most, through
2004, after which he had three years to bring his Section 1983
and tort claims.
In 2007, the Court considered the question of accrual in
the context of Finley’s Section 2255 proceeding.
In that
ruling, the Court found:
there was evidence presented at trial showing (1)
that Colomb had been encouraged by law enforcement
to assist Finley in criminal conduct, and (2) that
Special Agent Hersh had applied pressure on
potential witnesses. In his trial testimony, Colomb
acknowledged that his role in the crime, as well as
his role at trial, constituted part of a deal with
the prosecution.
COUNSEL: You’ve come into this courtroom,
Mr. Colomb, and it’s part of sort of an
agreement you made with the prosecution.
Isn’t that right?
COLOMB: That’s correct.
COUNSEL: You would help the police arrest
[Finley]. In exchange for that, you
wanted some benefits.
COLOMB: Correct.
10
It was also revealed at trial that Colomb had been
working with Hersh, and that Hersh had allegedly
tried to intimidate two other trial witnesses.
United States v. Finley, 2007 WL 1732115, at *4 (D. Vt. June
13, 2007) (internal record citations omitted).
Based upon
these facts, the Court found that Finley’s Section 2255
filing, although submitted within one year of Colomb’s 2006
interview with the investigator from the FPD, was untimely, as
he “‘could have’ discovered ‘the facts supporting the claims
or claims presented’” within the initial limitations period.
Id. (quoting 28 U.S.C. § 2255(f)(4)).
The Court reaches the same conclusion here.
Hersh’s
alleged conduct was the subject of trial testimony, and Finley
thus knew or had reason to know of the injury “which is the
basis of his action.”
Covington, 171 F.3d at 121.
Indeed,
Finley himself concedes that “[t]he cause of action against
LaMoria and the others accrued once their wrongful
actions/inactions resulted in a guilty verdict against
petitioner.”
(Doc. 22 at 2.)
Finley’s Section 1983 actions
and tort claims against LaMoria are therefore untimely.
The Court also considers equitable tolling.
The doctrine
of equitable tolling permits a court, “under compelling
circumstances, [to] make narrow exceptions to the statute of
limitations in order ‘to prevent inequity.’”
In re U.S.
Lines, Inc., 318 F.3d 432, 436 (2d Cir. 2003) (citation
11
omitted).
Typically, a statute of limitations is equitably
tolled when a defendant fraudulently conceals from a plaintiff
the fact that the plaintiff has a cause of action, or when the
plaintiff is induced by the defendant to forego a lawsuit
until the statute of limitations has expired.
See Pearl v.
City of Long Beach, 296 F.3d 76, 82–83 (2d Cir. 2002);
see
also Town of Victory v. State, 814 A.2d 369, 372 (Vt. 2002)
(“Courts apply the doctrine [of equitable tolling] only when
the defendant actively misled the plaintiff or prevented the
plaintiff in some extraordinary way from filing a timely
lawsuit, or the plaintiff timely raised the precise claim in
the wrong forum.”).
District courts also consider whether the
plaintiff “(1) has ‘acted with reasonable diligence during the
time period [he] seeks to have tolled,’ and (2) has proved
that the circumstances are so extraordinary that the doctrine
should apply.”
Zerilli–Edelglass v. New York City Transit
Auth., 333 F.3d 74, 80-81 (2d Cir. 2003) (citation omitted).
The plaintiff bears the burden of showing that he is entitled
to equitable tolling.
See Tho Dinh Tran v. Alphonse Hotel
Corp., 281 F.3d 23, 37 (2d Cir. 2002).
Finley contends that “[a]s a pro se litigant I was led to
believe that there was no time bar for filing a civil claim
12
(Doc. 15 at 1.)2
pursuant to 42 U.S.C. § 1983.”
He also
asserts that tolling commenced upon his incarceration in 1999.
(Doc. 22 at 2.)
Finley further reports that upon his release
from incarceration, he was prohibited from contacting Colomb,
and was only able to investigate his claim after he was reincarcerated and appointed counsel.
None of these allegations supports equitable tolling.
First, Finley does not claim that it was LaMoria who “led
[him] to believe” there was no limitations for a Section 1983
action.
See Pearl, 296 at 82–83.
accused of providing such advice.
Indeed, no Defendant is
Furthermore, Finley does
not claim that he was barred from approaching LaMoria, or
other potential witnesses aside from Colomb, to inquire about
Hersh’s alleged misconduct.
Accordingly, as the Court
concluded in Finley’s habeas corpus proceeding, a reasonably
diligent litigant would have discovered the claims prior to
the expiration of the limitations period.
1732115, at *5.
See Finley, 2007 WL
The Court therefore finds that Finley has not
carried his burden of showing the requisite “compelling
circumstances” that would warrant equitable tolling, and his
2
Finley suggests that his belief arose out of a 2002
Court ruling dismissing a medical malpractice claim without
prejudice. See Finley v. United States, Case No. 1:01-cv-306
(Doc. 18 at 4.) The Court’s ruling did not make any
statements about either a statute of limitations or tolling.
Id.
13
claims are DISMISSED as untimely.
In re U.S. Lines, Inc., 318
F.3d at 436.
Even assuming a timely filing, however, Finley has failed
to state a claim for relief again LaMoria.
Rather than
claiming that LaMoria aided Hersh’s alleged efforts to corrupt
the trial, Finley’s exhibits suggest that LaMoria “got out of
it totally.”
(Doc. 9-1 at 2.)
And while Finley claims that
LaMoria should have “expose[d]” Hersh’s conduct at trial, the
trial record cited above indicates that Hersh’s alleged
actions were the subject of trial testimony.
Accordingly, no
injury can be attributed to LaMoria, his motion to dismiss
(Doc. 8) is GRANTED, and the claims against him are DISMISSED.
III.
Federal Defendants’ Motions to Dismiss
The remaining Defendants in the case are former Special
Agents Hersh and Shapiro.
To the extent these Defendants are
sued in their official capacities, the government has filed a
Notice of Substitution, substituting the United States as the
proper party, as well as the required certification from the
United States Attorney, pursuant to 28 U.S.C. § 2679(d)(1).
The government has filed a separate motion to dismiss with
respect to the claims against Hersh and Shapiro in their
individual capacities.
14
A.
The United States’ Motion to Dismiss
The United States first argues that Finley has not
identified any basis for a waiver of its sovereign immunity.
Sovereign immunity “shields the federal government and its
agencies from suit” absent an express Congressional waiver.
Diaz v. United States, 517 F.3d 608, 611 (2d Cir. 2008)
(citing F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994)); see also
United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is
axiomatic that the United States may not be sued without its
consent and that the existence of consent is a prerequisite
for jurisdiction.”).
This protection from suit offered by
sovereign immunity is not just a ground for dismissal, but a
jurisdictional bar.
See, e.g., Meyer, 510 U.S. at 475.
A
plaintiff bears the burden of proving by a preponderance of
the evidence that Congress has waived sovereign immunity.
See, e.g., Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004).
With respect to Finley’s constitutional claims, “the
United States simply has not rendered itself liable . . . for
constitutional tort claims” for money damages.
U.S. at 478.
Meyer, 510
Under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971), an
individual may sue a federal official in his or her individual
capacity for unconstitutional conduct.
While Bivens
authorizes suits against the responsible federal official, it
15
does authorize suits against the government itself.
See
Norton v. United States, 581 F.2d 390, 393 (4th Cir.), cert.
denied, 439 U.S. 1003 (1978).
Accordingly, “Bivens-type
actions against the United States are . . . routinely
dismissed for lack of subject matter jurisdiction.”
Keene
Corp. v. United States, 700 F.2d 836, 845 n.13 (2d Cir. 1983).
Finley does not specify what sort of relief he is
requesting.
If he is seeking damages for unconstitutional
conduct, sovereign immunity applies and this Court has no
jurisdiction over his claims against the United States.
id.
See
The government acknowledges that other forms of relief
may be sought under the Administrative Procedures Act, 5
U.S.C. §§ 701-06 (“APA”), although Finley does not assert any
such claim.
The APA “allows judicial review of final agency
decisions,” Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir.
2001), and only applies where “no other adequate remedy in a
court” exists.
5 U.S.C. § 704.
Even assuming that the
alleged misconduct by Hersh and Shapiro constituted a final
agency decision, the habeas corpus statute provided Finely
with an adequate remedy.
See, e.g., Stone v. Holder, 859 F.
Supp. 2d 48, 52, n.2 (D.D.C. 2012) (concluding that although
plaintiff had unsuccessfully pursued habeas corpus relief, his
APA claims were barred because the habeas corpus statute
16
“provides the appropriate remedy”).
Relief is thus
unavailable under the APA.
As to Finley’s tort claims, his exclusive remedy for
monetary damages against the United States is under the
Federal Tort Claims Act, 28 U.S.C. § 2671-2680 (“FTCA”).
See
28 U.S.C. § 2679(b)(1); Rivera v. United States, 928 F.2d 592,
608 (2d Cir. 1991).
The FTCA requires a plaintiff to exhaust
his administrative remedies prior to commencing a lawsuit.
See 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S.
106, 113 (1993) (“The FTCA bars claimants from bringing suit
in federal court until they have exhausted their
administrative remedies.”).
Before a district court can
exercise jurisdiction over a plaintiff’s FTCA claim, that
plaintiff must first “plead and prove compliance” with the
FTCA’s exhaustion requirements.
In re “Agent Orange” Prod.
Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987); see also
Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir.
1999).
This “procedural hurdle [of demonstrating exhaustion]
applies equally to litigants with counsel and to those
proceeding pro se,” Adeleke v. United States, 355 F.3d 144,
153 (2d Cir. 2004), and failure to demonstrate exhaustion
deprives the Court of jurisdiction.
See Keene Corp., 700 F.2d
at 841 (requirement that a notice of claim be filed “is
jurisdictional and cannot be waived”); see also Celestine v.
17
Mt. Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir.
2005).
Because Finley’s pleadings do not establish exhaustion
under the FTCA, the Court cannot exercise jurisdiction over
any tort claims brought against the United States.
The government next argues that Finley’s claims are
untimely.
The general statute of limitations for civil claims
brought against the United States is six years.
§ 2401(a).
See 28 U.S.C.
For tort claims, the limitations period is two
years, or within “six months after the date of mailing, by
certified or registered mail, of notice of final denial of the
claim by the agency to which it was presented.”
See id. §
2401(b).
As discussed above, the Court finds, and Finley concedes,
that his claims accrued upon his conviction.
Filing suit
thirteen years later, with up to five years of tolling while
Finley was serving his sentence, does not satisfy even the
six-year limitations period.
With regard to any tort claims,
there again is no showing of exhaustion at the agency level
such that a six-month limitations period would apply.
Accordingly, Finley’s claims against the United States are
untimely, and its motion to dismiss (Doc. 16) is GRANTED.
B.
Individual Federal Defendants’ Motion to Dismiss
The government has moved separately for dismissal of all
claims against Hersh and Shapiro in their individual
18
capacities.
The government first argues that absolute witness
immunity and prosecutorial immunity bar Finley’s claims.
As
to witness immunity, Finley claims that Hersh committed
perjury before the grand jury and at trial.
The Supreme Court
has held that law enforcement officers enjoy absolute immunity
for their testimony as trial witnesses.
460 U.S. 325, 335-36 (1983).
testimonoy.
Id. at 342-43.
See Briscoe v. LaHue,
This is true even for perjured
Similarly, in Rehberg v. Paulk,
132 S. Ct. 1497, 1505-09 (2012), the Supreme Court recently
held that grand jury witnesses, including law enforcement
officers, enjoy absolute immunity from liability arising out
of their testimony.
Accordingly, all claims against Hersh
based upon his trial and grand jury testimony are DISMISSED.
The government also submits that Hersh’s alleged efforts
to threaten and intimidate witnesses are protected by absolute
prosecutorial immunity.
Prosecutorial immunity applies when
“prosecutors, and person working under their direction . . .
function as advocates for the state in circumstances
‘intimately associated with the judicial phase of the criminal
process.’”
Bernard v. Cnty. of Suffolk, 356 F.3d 495, 502-03
(2d Cir. 2004) (quoting Imbler v. Pachtman, 424 U.S. 409, 43031 (1976)).
Absolute immunity does not apply when prosecutors
and others “perform investigative functions.”
19
Id.
It has been held that “intimidating and coercing
witnesses into changing their testimony is not advocatory.
It
is rather a misuse of investigative techniques. . . . [and]
absolute immunity is not available.”
Moore v. Valder, 65 F.3d
189, 194 (D.C. Cir. 1995) (cited in Zahrey v. Coffey, 221 F.3d
342, 346-47 (2d Cir. 2000)); but see Dory v. Ryan, 25 F.3d 81,
83 (2d Cir. 1994) (finding that prosecutor who allegedly
coerced witnesses to commit perjury at trial was absolutely
immune).
Here, the claim against Hersh is that he tried to
coerce witnesses into either testifying for the government, or
not testifying on Finley’s behalf.
It is not clear from the
Complaint at what stage in the case Hersh engaged in such
alleged misconduct, or whether he did so at the direction of
prosecutors.
Accordingly, the Court declines to apply
prosecutorial immunity based upon this limited record.
In any event, Finley’s claims against Hersh and Shapiro
are untimely.
As it does in Section 1983 cases, the Court
looks to state law to determine the statute of limitations for
a Bivens claim.
(2007);
See Wallace v. Kato, 549 U.S. 384, 395
Kronisch v. United States, 150 F.3d 112, 123 (2d Cir.
1998); Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987) (applying
same statute of limitations to Bivens claims as applied to
Section 1983 claims).
three years.
That limitations period in Vermont is
12 V.S.A. § 512(4).
20
For any tort claims, the
limitations period under the FTCA is two years.
28 U.S.C. §
2401(b).
As discussed above, a cause of action accrues when “the
plaintiff knows or has reason to know of the injury which is
the basis of his action,” see Morse, 973 F.2d at 125, and
Finley concedes that his cause of action accrued at the time
of his 1999 conviction.
(Doc. 22 at 1-2.)
While statutory
tolling would again apply, that tolling ended with Finley’s
release after his initial period of incarceration.
Gilbeau, 2012 WL 2416719, at *7.
See
Furthermore, as discussed
previously, Finley has not carried his burden of demonstrating
grounds for equitable tolling.
Accordingly, this case, filed
thirteen years after Finley’s conviction and approximately
eight years after the end of his sentence, is untimely.
The government further argues that Finley’s claims are
barred by issue preclusion.
Issue preclusion prevents re-
litigation of an issue when: (1) the identical issue was
raised in a previous proceeding; (2) the issue was actually
litigated and decided in the previous proceeding; (3) the
party had a full and fair opportunity to litigate the issue;
and (4) the resolution of the issue was necessary to support a
valid and final judgment on the merits.
Corp., 451 F.3d 66, 69 (2d Cir. 2006).
21
Ball v. A.O. Smith
In this case, to the extent Finley is bringing a due
process claim based upon governmental misconduct, that issue
was decided on direct appeal.
Finley claimed on appeal that
Special Agent Hersh had violated his rights when Hersh
threatened potential witnesses.
The Second Circuit found that
“Hersh’s conduct did not violate Finley’s due process rights
and, in any event, resulted in no prejudice requiring
reversal,” as the alleged threats were ultimately
unsuccessful.
Finley, 2000 WL 232166, at *3.
Claims of withheld evidence were also decided previously.
In the course of his federal habeas corpus proceeding, Finley
argued that the government “failed to disclose the full nature
and extent of Colomb’s history as a cooperating witness.”
Finley, 2007 WL 1732115, at *5 (record citation omitted).
The
Court determined that there was no violation under Brady v.
Maryland, 373 U.S. 83 (1963), since Colomb’s role as a
cooperating witness was fully revealed at trial.
The Court
also found that Colomb’s credibility was called into question
through “extensive cross-examination,” and that evidence of
additional incentives for Colomb would have “added little to
the jury’s knowledge of Colomb’s reliability generally.”
Finley, 2007 WL 1732115, at *7.
Accordingly, to the extent
Finley’s claim of withheld evidence relates to a deal between
the government and Colomb, that issue has been decided and is
22
now precluded.
See Kulak v. City of New York, 88 F.3d 63, 71-
72 (2d Cir. 1996) (barring re-litigation in Section 1983
action of issues previously litigated and lost in state habeas
corpus proceeding); Menillo v. U.S. Dep’t of Justice Bureau of
Prisons, 411 F. Supp. 2d 130 (D. Conn. 2006) (barring relitigation in Bivens action claims previously litigated and
lost in federal habeas corpus proceeding).
With respect to both issues, it is plain that Finley had
a full and fair opportunity to litigate his claims in the
prior proceedings, and that the courts’ rulings were necessary
to support a valid judgment on the merits.
These claims are
therefore DISMISSED on the basis of issue preclusion.
For each of the reasons set forth above, the motion to
dismiss filed on behalf of Defendants Hersh and Shapiro in
their individual capacities (Doc. 23) is GRANTED.3
3
The government also initially moved for dismissal
under Heck v. Humphrey, 512 U.S. 477 (1994). However, in
light of the Second Circuit’s ruling in Poventud v. City of
New York, 715 F.3d 57 (2d Cir. 2013), in which the circuit
declined to apply Heck where the plaintiff was not in custody,
the government has invited the Court “not [to] wade into the
waters of Heck and Poventud if one or more of these other
grounds for dismissal suffice.” (Doc. 31 at 2 n.1). The
Court thus declines to address the government’s arguments
under Heck. The Court does find, however, that even without
Heck, Finley’s claims of false arrest and malicious
prosecution are barred because he was ultimately convicted of
the offenses for which he was arrested and prosecuted. See
Cameron v. Fogarty, 806 F.2d 380, 388 (2d Cir. 1986); see also
Poventud, 715 F.3d 64 n.6 (acknowledging “an old common law
rule” that malicious prosecution claims “turn[] on the fact
that favorable termination is an element . . . .”); Siliski v.
23
IV.
Finley’s Motion for Summary Judgment
In his reply to Defendants’ motions to dismiss, Finley
asserts that he is entitled to summary judgment “based on the
evidence presented.”
(Doc. 28 at 1.)
Because the Court has
concluded that the Complaint must be dismissed, Finley’s
motion for summary judgment (Doc. 28) is DENIED as moot.
V.
Leave to Amend
Ordinarily, a court should not dismiss a complaint filed
by a pro se litigant without granting leave to amend at least
once “when a liberal reading of the complaint gives any
indication that a valid claim might be stated.”
Branum v.
Clark, 927 F.2d 698, 704–05 (2d Cir. 1991); Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999) (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.”).
Leave to amend
is not required where “the problem with [plaintiff’s] causes
of action is substantive” such that “better pleading will not
cure it.”
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is
Allstate Ins. Co., 811 A.2d 148, 151 (Vt. 2002) (explaining
that termination of the prior proceeding in the malicious
prosecution claimant’s favor is an essential element).
24
unable to allege any fact sufficient to support its claim, a
complaint should be dismissed with prejudice.”).
Here, Finley’s claims against all Defendants are
untimely.
In addition, as to the United States, sovereign
immunity bars the Court from exercising subject matter
jurisdiction.
Finley’s claims against Special Agent Hersh
pertaining to false testimony are barred by absolute witness
immunity, while allegations of witness intimidation and
withheld evidence appear to be barred by issue preclusion.
Finley’s false arrest and malicious prosecution claims are
barred because he was ultimately convicted.
Finally, to the
extent Defendants Shapiro and LaMoria are accused of causing
harm by failing to report Hersh’s alleged misconduct, Hersh’s
actions were known by the defense, and thus presented to the
jury, at Finley’s criminal trial.
Given these many grounds for dismissal, the Court finds
that leave to amend would be futile.
Even if Finley were able
to overcome the timeliness issue through statutory or
equitable tolling, Defendants’ immunities and other bars to
his claims would still apply.
Furthermore, Finley has already
submitted an “Addendum” to his Complaint, to which he attached
over sixty pages of “evidence” to “support [his] complaint.”
(Doc. 9 at 1.)
The Court has reviewed those filings, and
notes that they are the substantially the same materials
25
described, and found to be unavailing, in prior rulings.
The
Court therefore declines to grant leave to amend in this case.
Conclusion
For the reasons set forth above, Defendants’ motions to
dismiss (Docs. 8, 16, 23) are GRANTED, and Finley’s motion for
summary judgment (Doc. 28) is DENIED.
This case is DISMISSED.
Dated at Brattleboro, in the District of Vermont, this
day of June, 2013.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge
26
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