Opinion
5:22-CV-00757 (LEK/TWD)
07-29-2022
OTIS SIMMONS, Plaintiff, v. WILLIAM J. FITZPATRICK, et. al., Defendants.
APPEARANCES: OTIS SIMMONS Plaintiff, pro se
APPEARANCES: OTIS SIMMONS Plaintiff, pro se
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
Otis Simmons (“Plaintiff”) initiated this action pro se on July 20, 2022, asserting claims under 42 U.S.C. § 1983 against William J. Fitzpatrick, Onondaga County District Attorney, (“DA Fitzpatrick”) and the Hon. William Walsh, Supreme Court Judge (“Judge Walsh”) (together, “Defendants”). (Dkt. No. 1.) Plaintiff, who is incarcerated and has not paid the filing fee for this action, seeks leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.) The Clerk sent Plaintiff's complaint and IFP application to the undersigned for initial review. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A. Plaintiff has also filed a motion for appointment of counsel. (Dkt. No. 4.)
For the reasons discussed below, Plaintiff's IFP application is granted for purposes of this review and the Court recommends sua sponte dismissing the complaint without prejudice and without leave to amend. Thus, Plaintiff's motion for appointment of counsel is denied without prejudice as moot.
I. IFP APPLICATION
Section 1915 of Title 28 of the United States Code “permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee at the time . . . of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id.; Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010).
Section 1915(g) prohibits a prisoner from proceeding IFP where, absent a showing of “imminent danger of serious physical injury,” a prisoner has filed three or more actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) Service. Based on that review, it appears Plaintiff had accumulated one strike for purposes of Section 1915(g) as of the date this action was commenced. See Simmons v. Walsh, No. 5:07-cv-012024 (DNH/GJD), ECF Dkt. No. 6 (sua sponte dismissing Plaintiff's complaint on initial review pursuant to 28 U.S.C. § 1915(e)(2)(b)).
Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).
Upon review, Plaintiff has demonstrated economic need and filed the inmate authorization form required in this District. (Dkt. Nos. 2, 3.) Accordingly, Plaintiff's IFP application is granted.
II. STANDARD OF REVIEW
This Court must conduct an initial review of complaints filed IFP and in civil cases where a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A; see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (finding that both Sections 1915(e)(2)(B) and 1915A provide a basis for screening prisoner's complaints). When conducting this review, “the court shall dismiss the case at any time if the court determines . . . the action is . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); accord id. § 1915A(b)(1); see also Allen v. Stringer, No. 20-3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021). The Court must construe pro se pleadings with the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).
“An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555; see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
III. SUMMARY OF THE COMPLAINT
Plaintiff, an inmate in custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this action under Section 1983 asserting claims arising from his Onondaga County criminal proceedings. (Dkt. No. 1.) Generally, Plaintiff alleges that on October 11, 2005, he was convicted of a crime he did not commit. Id. at 4. Plaintiff complains certain “rulings” made by the trial court “made it impossible for [him] to prove his actual innocence.” Id. To that end, the complaint states the:
Plaintiff does not identify the crime for which he was convicted. According to the website maintained by DOCCS, Plaintiff has been confined to state prison since October 2005, having been convicted of first degree rape, first degree criminal sexual act, first degree sexual abuse, and third degree aggravated sexual abuse. See www.nysdocslookup.state.ny.us (DIN 05-B-2976) (last visited July 29, 2022). The Court takes judicial notice that Plaintiff's conviction was unanimously affirmed and the New York Court of Appeals denied leave to appeal. See People v. Simmons, 63 A.D.3d 1691 (N.Y.App.Div., 4th Dep't), lv. denied, 12 N.Y.3d 929 (N.Y. 2009). A review of Plaintiff's litigation history in this District reveals he also filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the October 11, 2005, judgment of conviction in Onondaga County Court, which was denied and dismissed by Memorandum Decision and Order on August 23, 2010. Simmons v. Graham, No. 9:09-cv-00952 (GTS), ECF Dkt. No. 25. By Mandate of the United States Court of Appeals for the Second Circuit issued September 20, 2020, Plaintiff's subsequent application for leave to file a successive 28 U.S.C. § 2254 petition was denied. Id., ECF Dkt. No. 33.
DNA report dated September 8, 2005, showed the hairs recovered from the crime scene did not possess sufficient individuality to be used as the basis for a positive personal/individuality identification. This was not sufficient to be convicted. When [Plaintiff] requested to challenge the DNA by an independent lab, he was denied by the trial court. He appealed said judgment and that was denied too. These rulings made it impossible for [Plaintiff] to prove his actual innocence.Id. Liberally construed, Plaintiff alleges violations of his federal constitutional rights, with specific claims relative to his procedural due process rights guaranteed by the Fourteenth Amendment to present a defense and to receive a fair trial. Id. at 5. He further maintains his “actual innocence.” Id. He brings these claims against DA Fitzpatrick, who prosecuted Plaintiff, and the “Now Decased” (sic) Judge Walsh, who presided over Plaintiff's trial. Id. at 2; see People v. Simmons, 63 A.D.3d 1691. For relief, he seeks to “Rectify the Constitutional Errors.” Id.
IV. DISCUSSION
Plaintiff purports to bring this action pursuant to Section 1983, which provides a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990).
Here, Plaintiff asks this Court to “Rectify the Constitutional Errors”. (Dkt. No. 1 at 5.) However, a civil lawsuit may not be used to collaterally attack an existing criminal conviction. See Heck v. Humphrey, 512 U.S. 477 (1994). The United States Supreme Court 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, e.g., Barzee v. Tyler, No. 8:21-CV-902 (GTS/CFH), 2022 WL 1406606, at *10 (N.D.N.Y. May 3, 2022) (“To the extent plaintiff seeks declaratory and injunctive relief that would effectively invalidate his existing criminal conviction, such claims are barred by the Heck doctrine.”), reportrecommendation adopted, 2022 WL 2079084 (N.D.N.Y. June 9, 2022).
Stated differently, Plaintiff may not challenge the legality of his conviction in a Section 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 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); see also Heck, 512 U.S. at 481 (“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”); Godley v. Onondaga Cty., No. 6:16-CV-01419 (DNH/TWD), 2017 WL 2805162, at *6, n.4 (N.D.N.Y. Jan. 6, 2017) (“A habeas corpus petition, not a § 1983 suit, is the appropriate vehicle by which to seek relief from illegal confinement.”), report-recommendation adopted, 2017 WL 2804944 (N.D.N.Y. June 28, 2017); Simmons v. Walsh, No. 5:07-CV-1024 (DNH/GHL), ECF Dkt. No. 6 at 4 n.4 (“Plaintiff's request that he be released is not cognizable in an action pursuant to Section 1983.”).
As noted, Plaintiff has already filed a habeas corpus petition in this Court, which was denied. See Simmons v. Graham, No. 9:09-cv-00952 (GTS), ECF Dkt. Nos. 25, 33.
Here, because success on Plaintiff's § 1983 claims would necessarily imply the invalidity of his conviction, and because Plaintiff's conviction has not been overturned or otherwise invalidated, Heck's favorable termination rule bars this action. 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.”); see, e.g., Simmons v. Walsh, No. 5:07-CV-1024 (DNH/GHL) (dismissing on initial review Plaintiff's 1983 claims to be “released and compensated” for violation of his constitutional rights and subsequent arrest as barred under Heck). Accordingly, the Court recommends dismissing the complaint without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
“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).
Notably, even if Heck did not bar adjudication of Plaintiff's claims, given that he seeks to sue the judge who presided over his state court criminal case as well as the state prosecutor, such claims would also likely be barred by absolute judicial, prosecutorial, and Eleventh Amendment immunity. See Mireles v. Waco, 502 U.S. 9, 11 (1991); Montes v. O'Shea, No. 1:21-CV-303 (DNH/ATB), 2021 WL 1759853, at *4 (N.D.N.Y. Apr. 6, 2021) (“Judicial immunity is immunity from suit, not just immunity from the assessment of damages.”); report recommendation adopted, 2021 WL 1758858 (N.D.N.Y. May 4, 2021); Imbler v. Pachtman, 424 U.S. 409, 437-38 (1976) (principles of judicial immunity from suit apply to prosecutors); Ying Jing Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993) (when a district attorney decides whether to prosecute, he or she is representing the State not the county and is, thus, entitled to invoke Eleventh Amendment immunity); Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005) (finding that absolute immunity protects a prosecutor “not only from liability but also from suit”).
Generally, district courts 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); see also Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (“Where it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.”).
Here, for the reasons set forth above, Plaintiff's Section 1983 claims are not cognizable because (1) Plaintiff is challenging the constitutionality of his criminal conviction itself; (2) he has not demonstrated the favorable termination of his criminal conviction pursuant to Heck; and (3) even if the Heck bar could be cured at a future date, Plaintiff's claims most likely would be barred by judicial, prosecutorial, and Eleventh Amendment immunity. Thus, the Court recommends dismissal without leave to amend.
V. MOTION FOR APPOINTMENT OF COUNSEL
Although civil litigants do not have a constitutional right to the appointment of counsel, “[t]he court may request an attorney to represent any person unable to afford counsel.” See 28 U.S.C. § 1915(e)(1); see also Leftridge v. Conn. State Trooper Officer No. 1283, 640 F.3d 62, 68 (2d Cir. 2011) (“A party has no constitutionally guaranteed right to the assistance of counsel in a civil case.”). A court's power to request such assistance “must be understood to guarantee indigents meaningful access to the courts as required by the Constitution.” Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986).
“In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance.” Hodge, 802 F.2d at 61; see also Dolan v. Connolly, 794 F.3d 290, 296-97 (2d Cir. 2015). “If the claim meets this threshold requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.” Hodge, 802 F.2d at 61-62; see also Dolan, 794 F.3d at 296-97.
Here, in light of the foregoing recommendations, Plaintiff's motion for appointment of counsel (Dkt. No. 4) is denied without prejudice as moot.
WHEREFORE, it is hereby
ORDERED that Plaintiff's IFP application (Dkt. No. 2) is GRANTED solely for purposes of initial review; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be sua sponte DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) and WITHOUT LEAVE TO AMEND; and it is further
ORDERED that Plaintiff's motion for appointment of counsel (Dkt. No. 4) is DENIED WITHOUT PREJUDICE AS MOOT; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three (3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17) days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. See Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. See id. § 6(a)(1)(c).
IT IS SO ORDERED.