Opinion
20-CV-9282 (LLS)
12-03-2020
TARENCE KIRKLAND, Plaintiff, v. ROBIN BAUER, Legal Aid Society; ALLAN FOCARILE, Defendants.
ORDER OF DISMISSAL :
Plaintiff, appearing pro se, brings this action under the Court's federal question jurisdiction, alleging that Defendants violated his constitutional rights. By order dated November 12, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the "special solicitude" in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief "that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true "[t]hreadbare recitals of the elements of a cause of action," which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff filed this complaint against two attorneys, Robin Bauer and Allan Focarile, who represented Plaintiff in criminal proceedings held in Westchester County Court. Plaintiff alleges that the attorneys were "insufficient," and that he "should of never went to jail." (ECF 1 ¶ III.) According to Plaintiff, the "alleged victim" told him that she was 18 years old, and falsely accused him of rape after he told her that he had a girlfriend. He further states that there was no evidence of "forcible and no medical report from the hospital saying it was force," that there was "no indictment, no signed SCI," and that Judge Difiore "gave false charges" and "lied." (Id.) Plaintiff asserts that a 2002 conviction that was supposed to be "sealed" was used to enhance a second case 18 years later. (Id.) Plaintiff seeks $50 million in damages.
DISCUSSION
A. Claims Against Bauer and Focarile
The Court construes Plaintiff's allegations as asserting constitutional claims under 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a "state actor." West v. Atkins, 487 U.S. 42, 48-49 (1988). Private parties are therefore not generally liable under the statute. Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) ("[T]he United States Constitution regulates only the Government, not private parties.").
Absent special circumstances suggesting concerted action between an attorney and a state representative, see Nicholas v. Goord, 430 F.3d 652, 656 n.7 (2d Cir. 2005) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)), the representation of a defendant by private counsel in state proceedings does not constitute the degree of state involvement or interference necessary to establish a claim under § 1983, regardless of whether that attorney is privately retained, court-appointed, or employed as a public defender. See Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir. 2004) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 324-25 (1981)); see also Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (holding that legal aid organization ordinarily is not a state actor for purposes of § 1983).
As Defendants Bauer and Focarile are private parties who do not work for any state or other government body, Plaintiff has not stated a claim against these defendants under § 1983.
B. Favorable Termination Rule
Plaintiff alleges that he was wrongly convicted, and he seeks damages. Because Plaintiff was convicted of the crimes charged, and because he does not allege that the conviction was reversed, expunged, or otherwise declared invalid, the Court must dismiss Plaintiff's § 1983 damages claim that he was wrongfully convicted or sentenced.
Plaintiff's claim is barred by the favorable termination rule set forth in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). The United States Supreme Court has explained:
that a state prisoner's § 1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) - if success in that action would necessarily demonstrate the invalidity of confinement or its duration.Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (italics in original); see Heck, 512 U.S. at 486-87 ("[I]n order to recover damages for [an] 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 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.").
Because success on Plaintiff's § 1983 claims would necessarily imply the invalidity of his conviction, and because Plaintiff has not alleged that his conviction was overturned or otherwise invalidated, Heck's favorable termination rule bars his claim for money damages. See Perez v. Cuomo, No. 09-CV-1109 (SLT), 2009 WL 1046137, at *7 (E.D.N.Y. Apr. 17, 2009) ("Since plaintiff's conviction remains valid, plaintiff's claim for violation of his right to a fair trial is not cognizable under § 1983."). The Court must therefore dismiss Plaintiff's § 1983 claim that he was wrongfully convicted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
"Disposition of the case on Heck grounds warrants only dismissal without prejudice, because the suit may be reinstituted should plaintiff's conviction be 'expunged by executive order, declared invalid . . ., or called into question by a federal court's issuance of a writ of habeas corpus.'" Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) (quoting Heck, 512 U.S. at 487).
C. Challenge to Conviction or Sentence
Plaintiff may not challenge the legality of his conviction in a § 1983 action; he can only obtain such relief by bringing a petition for a writ of habeas corpus under 28 U.S.C. § 2254. See Wilkinson v. Dotson, 544 U.S. 74, 78-82 (2005) (citing Preiser v. Rodriguez, 411 U.S. 475 (1973)) (noting that writ of habeas corpus is sole remedy for prisoner seeking to challenge the fact or duration of his confinement). A state prisoner may not circumvent the exhaustion requirement for habeas corpus relief by requesting release from custody in a civil action. Preiser, 411 U.S. at 489-90.
To the extent that this submission can be construed as a § 2254 petition, the petition must be dismissed because Plaintiff has not demonstrated that he has exhausted his available state remedies in accordance with 28 U.S.C. § 2254(b) and (c). See Coleman v. Thompson, 501 U.S. 722, 731 (1991) ("[A] state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims.").
Under the Antiterrorism and Effective Death Penalty Act of 1996, which modified the habeas corpus statutes, a person in state custody must generally file a § 2254 petition within one year from the latest of four benchmark dates: (1) when the judgment of conviction becomes final; (2) when a government-created impediment to making such a motion is removed; (3) when the constitutional right asserted is initially recognized by the Supreme Court, if it has been made retroactively available to cases on collateral review; or (4) when the facts supporting the claim(s) could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d).
Plaintiff may file a petition for a writ of habeas corpus once all available state remedies have been exhausted.
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's complaint cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend his complaint.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. Plaintiff's complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). SO ORDERED. Dated: December 3, 2020
New York, New York
/s/_________
Louis L. Stanton
U.S.D.J.