Opinion
22-CV-00324(GRB)(ST)
2022-03-11
Lavon D. DAWSON, Plaintiff, v. Officer Anthony LIPPICCOLO #6863, et al., Defendants.
Lavon D. Dawson, Riverhead, NY, pro se.
Lavon D. Dawson, Riverhead, NY, pro se.
ORDER
GARY R. BROWN, United States District Judge:
Plaintiff Lavon D. Dawson filed a pro se complaint alleging, in sum and substance, that a gun purportedly recovered from him was, in fact, planted by defendants, and is apparently being used to prosecute him in an ongoing state court criminal matter. Plaintiff seeks an order from this Court dismissing his pending state court charges and damages in the amount of $2 million. Currently, plaintiff, an inmate at the Suffolk County Correctional Facility, seeks leave to proceed in forma pauperis. Docket Entry ("DE") 2. Plaintiff is granted leave to file this action without prepayment of the filing fee. However, because plaintiff fails to state a claim upon which relief can be granted, the complaint is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) and leave to replead is denied.
BACKGROUND
Plaintiff's sparse complaint is submitted on the Court's form for civil rights actions brought pursuant to 42 U.S.C. § 1983 and names as defendants four Suffolk County police officers: Lippiccolo, McGuiness, Lyons and King, the assistant district attorney prosecuting him in the underlying state criminal case, and the Sixth Precinct. See generally , DE 1. Plaintiff seeks to challenge his February 27, 2021 arrest and ongoing criminal prosecution. Plaintiff alleges that an "illegal search took place" after he pulled into the driveway at 6 Barbara Lane in Medford, New York. According to the complaint, Lippiccolo claimed Plaintiff committed a traffic infraction and, together with McGuiness, ordered Plaintiff to exit the vehicle. DE 1 at 4. Lippiccolo and King began to search Plaintiff's vehicle, at which point King "yelled gun." Id. at 5. Plaintiff alleges that "P.O. Lippiccolo planted the gun in my car." Id.
According to the records maintained by the New York State Office of Court Administration on its public website, Plaintiff pled not guilty during his September 10, 2021 arraignment and is awaiting trial on charges including criminal possession of a loaded firearm in the second degree and criminal possession of a heroin. See https://iapps.courts.state.ny.us/webcrim (last visited on March 7, 2022).
Though required by the form, plaintiff has failed to provide a description of any claimed injuries (id. at 4, ¶ II.A.), yet seeks to recover a damages award in the sum of $2 million for "unlawful imprisonment, mental anguish and defamation of character" and the dismissal of the state criminal charges against him. Id. at 6, ¶ III.
STANDARD OF REVIEW
Under Second Circuit law, this Court must first consider whether plaintiff qualifies for in forma pauperis status, and then review the merits of the complaint under 28 U.S.C. § 1915(e)(2). Potnick v. E. State Hosp. , 701 F.2d 243, 244 (2d Cir. 1983). As noted, plaintiff's in forma pauperis application reveals that plaintiff meets the financial requisites to commence this action without the prepayment of the filing fee. Therefore, the application to proceed in forma pauperis is granted.
As to the sufficiency of the pleadings, Judge Bianco summarized:
A district court is required to dismiss an in forma pauperis complaint if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii). The Court is required to dismiss the action as soon as it makes such a determination. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii).
It is axiomatic that district courts are required to read pro se complaints liberally, see Erickson v. Pardus , 551 U.S. 89, 94 [127 S.Ct. 2197, 167 L.Ed.2d 1081] (2007) (quoting Estelle v. Gamble , 429 U.S. 97, 106 [97 S.Ct. 285, 50 L.Ed.2d 251] (1976) ); Chavis v. Chappius , 618 F.3d 162, 170 (2d Cir. 2010), and to construe them " ‘to raise the strongest arguments that [they] suggest [ ].’ " Chavis , 618 F.3d at 170 (quoting Harris v. City of New York , 607 F.3d 18, 24 (2d Cir. 2010) ). Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of "all well-pleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum Co. , 621 F.3d 111, 123 (2d Cir. 2010), aff'd , 569 U.S. 108 [133 S.Ct. 1659, 185 L.Ed.2d 671] (2013) (citing Ashcroft v. Iqbal , 556 U.S. 662 [129 S.Ct. 1937, 173 L.Ed.2d 868] (2009) ). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements ... are not entitled to the assumption of truth." Iqbal , 556 U.S. at 678 (citation omitted).
Notwithstanding a plaintiff's pro se status, a complaint must plead sufficient facts to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 [127 S.Ct. 1955, 167 L.Ed.2d 929] (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678 . The plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." Id. ; accord Wilson v. Merrill Lynch & Co. , 671 F.3d 120, 128 (2d Cir. 2011). While "detailed factual allegations" are not required, "[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 555 ). Plaintiff's factual allegations must also be sufficient to give the defendant "fair notice of what the ... claim is and the grounds upon which it rests," Twombly , 550 U.S. at 555 (internal quotation marks and citation omitted).
Patrick v. Bronx Care , No. 14-CV-7392 (JFB)(AKT), 2014 WL 7476972, at *1-2 (E.D.N.Y. Dec. 31, 2014). With this standard in mind, the Court turns to the instant claim.
DISCUSSION
In Heck v. Humphrey , 512 U.S. 477, 479, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court reviewed the dismissal of a pro se prisoner's 1983 complaint arising from a conviction that remained on appeal, and featured allegations, like those here, of evidence tampering by investigators and prosecutors. Heck sought only monetary damages. The district court dismissed the case as implicating the legality of confinement, while the Seventh Circuit affirmed the dismissal based upon a failure to exhaust state remedies, as would be required in the case of a writ of habeas corpus. Id. Noting that the case "lies at the intersection of the two most fertile sources of federal-court prisoner litigation—the Civil Rights Act of 1871, Rev.Stat. § 1979, as amended, 42 U.S.C. § 1983, and the federal habeas corpus statute, 28 U.S.C. § 2254," the Court further recognized that Heck's claim did not fall under the rubric of habeas relief – along with its concomitant exhaustion requirement – as Heck only sought monetary damages. Id., 512 U.S. at 480-82, 114 S.Ct. 2364, citing Preiser v. Rodriguez , 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (holding that "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983."). Thus, to the extent plaintiff here challenges his confinement, a § 2254 petition represents his exclusive remedy. Such relief is obviously unavailable where, as here, plaintiff has not and cannot exhaust his state remedies.
In Heck , Justice Scalia then turned to damages claims under § 1983 aimed at alleged infirmities in ongoing state criminal proceedings. The Court held:
We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the 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.
512 U.S. at 486–87, 114 S.Ct. 2364. The Court commented on the breadth of its decision, noting that:
our holding sweeps more broadly than the approach respondents had urged. We do not engraft an exhaustion requirement upon § 1983, but rather deny the existence of a cause of action. Even a prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus.... Under our analysis the statute of limitations poses no difficulty while the state challenges are being pursued, since the § 1983 claim has not yet arisen.
512 U.S. at 489–90, 114 S.Ct. 2364 (emphasis added). Subsequently, the Supreme Court and the Second Circuit "extended Heck ’s reach to section 1983 lawsuits brought during pending criminal prosecutions." Smalls v. Collins , 10 F.4th 117, 137 (2d Cir. 2021) (citing McDonough v. Smith , ––– U.S. ––––, 139 S. Ct. 2149, 2160, 204 L.Ed.2d 506 (2019) ). As a result, "[a] criminal defendant therefore cannot ‘bring a fabricated-evidence challenge to criminal proceedings while those criminal proceedings are ongoing.’ " Smalls , 10 F.4th at 136.
These authorities compel a singular conclusion: plaintiff seeks to bring a claim which, under applicable law, does not exist, and therefore constitutes a claim upon which the Court cannot grant relief. As such, the complaint is dismissed in its entirety, without leave to replead, as any effort to amend would constitute an exercise in futility.
A certificate of appealability shall not issue because plaintiff has not made a substantial showing that he was denied any constitutional rights. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of this order would not be taken in good faith and therefore in forma pauperis status is denied for any appeal on those grounds. See Coppedge v. United States , 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). The Clerk of Court is directed to serve a copy of this order to plaintiff at his address of record and close the case.