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United States District Court, S.D. New York

September 29, 2004.


The opinion of the court was delivered by: RICHARD HOLWELL, District Judge


Plaintiff Alvin Peterson ("Peterson") brings claims under 42 U.S.C. § 1983 in his first amended complaint against defendants Alan Tomaselli ("Tomaselli"), New York City Department of Corrections ("DOC"), and the Office of Special Narcotics Prosecutor of the City of New York ("OSNP") (collectively "defendants") for alleged violations of the Sixth, Eighth, and Fourteenth Amendments, as well as for violations of the Privacy Act, 5 U.S.C. §§ 552, 552a. Peterson separately asserts a claim arising under 42 U.S.C. § 1985 against Tomaselli. Defendants now move to dismiss Peterson's complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Peterson cross-moves for leave to amend his complaint a second time pursuant to Rule 15(a) of the Federal Rules of Civil Procedure by naming the City of New York ("City"), the Commissioner of the DOC ("Commissioner"), and his assigned appellate counsel in his underlying state court criminal proceedings ("Assigned Counsel") as parties to this action. He also cross-moves for summary judgment on his § 1983 claims arising under the Sixth and Fourteenth Amendments. Additionally, Peterson seeks to add conspiracy claims pursuant to § 1983 and § 1985 against the City, Assigned Counsel, the Commissioner, and Tomaselli. For the reasons set forth below, defendants' motion is granted in part and denied in part. Peterson's cross-motion for permission to amend his complaint is granted in part and denied in part; his cross-motion for summary judgment is denied.


  The facts of this case are laboriously set forth in two preceding opinions decided by Judge Robert P. Patterson in Peterson v. Lacy, No. 97 Civ. 7795, 1998 WL 883302 (S.D.N.Y. Dec. 17, 1998); and Judge Denny Chin in Peterson v. Tomaselli, No. 02 Civ. 6325, 2003 WL 22213125 (S.D.N.Y. Sept. 29, 2003). For the purposes of this opinion, the Court shall assume familiarity with this action and summarize the most relevant facts. Additionally, the facts alleged by Peterson in his complaint are accepted as true for the purpose of ruling upon defendants' 12(b)(6) motion.

  A. Peterson Enters State Custody

  On August 7, 1993, Peterson entered state custody after being arrested and charged for criminal sale and possession of a controlled substance in the third degree. (Smith Decl. Ex. A ¶ 7.) At the time, Peterson was on federal parole for an earlier crime he had committed; this criminal activity thus violated the terms of his federal parole. Peterson v. Tomaselli, 2003 WL 22213125, at *1. In exchange for forgoing his right to trial, the state prosecutor offered Peterson a plea bargain on April 4, 1994, enabling Peterson to serve a state sentence of three and a half years to seven years concurrently with a federal sentence for violating the terms of his federal parole. (Smith Decl. Ex. A ¶ 7.) In order to effectuate the plea bargain, Peterson's attorney informed the presiding state sentencing court that Peterson would first have to be released to federal custody and sentenced for violating his federal parole. (Smith Decl. Ex. A ¶ 8.) The court adjourned the proceedings to allow the prosecutor time to figure out what procedures would ensure that Peterson's sentences would run concurrently. (Id.) By June 28, 1994, the prosecutor was still unable to determine the proper procedures. (Id. ¶ 9.) Nevertheless, the court denied Peterson's subsequent request to withdraw his plea, sentenced him to three and a half to seven years running concurrently with his federal sentence, and paroled him to the appropriate federal authorities. (Id.)

  Because of various mishaps amounting to what Judge Patterson called "a Kafkaesque comedy of errors," Peterson was not in fact released to the federal authorities for sentencing. Peterson v. Lacy, 1998 WL 883302, at *1. Despite two separate orders issued by the state court on July 12, 1994 and July 21, 1994, directing the DOC to release Peterson to federal authorities, "these directives were ignored." Id., 1998 WL 883302, at *1. Apparently, the DOC was willing to hold him for only fourteen days after his state sentence was imposed before transferring him to the New York State Correctional Services, and that despite the state sentencing court's orders, the DOC transferred him to state prison on July 19, 1994. (Smith Decl. Ex. A ¶ 12.) The actions of the DOC thus prevented Peterson from attending his federal sentencing. (Id.)

  B. Peterson Enters Federal Custody

  Given these distressing circumstances, Peterson filed a motion to vacate his sentence, which the state court granted on October 24, 1994. (Id. ¶¶ 14, 15.) The state court also directed the DOC to lodge a detainer with the appropriate federal authorities so that the court could properly sentence him in accordance with the original plea bargain. (Id. ¶ 15.)

  Peterson was subsequently released from state custody to federal custody at FCI Raybrook on January 4, 1995 and ordered to serve a term of incarceration by the Board of Parole Examiners for his federal parole violation in August of 1995. Peterson v. Lacy, 1998 WL 883302, at *2 n. 3. Peterson notified his attorney that he had been sentenced for his federal parole violation and requested his attorney to contact the district attorney to schedule an appearance in state court for his re-sentencing. (Smith Decl. Ex. A ¶ 18.) However, Peterson learned that an outstanding bench warrant existed for his failure to appear in state court although the warrant stated that Peterson was in federal custody. (Id. ¶ 19.) Moreover, on October 10, 1995, the district attorney filed another detainer with the Federal Bureau of Prisons. (Id.)

  On November 15, 1995, Peterson filed a request for a final disposition of his state case — for which he had still not been re-sentenced — pursuant to the Interstate Agreement of Detainers ("IAD").*fn1 (Id.) By March of 1996, the State failed to respond, and the Federal Bureau of Prisons notified the State by certified mail on March 21, 1996, that the State failed to take any action in producing Peterson's presence at state court, as mandated by the IAD. (Id. ¶ 21.) Additionally, this letter informed the State that it had until May 17, 1996 to produce Peterson in state court. (Id.) In June of 1996, Peterson filed a pro se motion to dismiss the indictment because the State did not take any action to produce him in state court. (Id.) However, the prosecutor then forwarded a letter to the Federal Bureau of Prisons in July of 1996, stating that it would withdraw any detainers lodged against Peterson. (Id. ¶ 23.)

  C. Peterson's Appearances in State Court While Serving His Federal Sentence

  On August 28, 1996, a writ issued by the state court enabled Peterson to appear in state court although he was still serving his federal sentence. (Id. ¶ 24.) According to Peterson, the state court failed to resolve the matter and returned Peterson to federal custody. (Id.)

  On October 4, 1996, the state court denied Peterson's motion filed in June of 1996 to dismiss the indictment charging him with criminal sale and possession of a controlled substance in the third degree. At that time, the state court also observed that Peterson's reply affidavit contained due process allegations arising from the denial of speedy resolution of his state case. (Id. ¶ 25.) Consequently, the state court adjourned the matter until November 22, 1996 to allow the prosecutor time to respond to these allegations.

  On October 23, 1996, detectives from the district attorney's office escorted plaintiff back to federal custody at FCI Fairton before he was re-sentenced for his state crimes. (Id. ¶ 26.) Upon his return, assistant district attorney Tomaselli forwarded "false documents" to FCI Fairton, claiming that Peterson had been sentenced to three and a half to seven years by the state court concurrently with his federal sentence, and requested that those documents be lodged as a detainer. (Id.) Peterson, knowing that this information was false because he had not yet been re-sentenced by the state court, duly notified Eleanor Dunnigan ("Dunnigan"), the Inmates Records Coordinator at FCI. (Id. ¶ 27.) Dunnigan subsequently requested that Tomaselli forward the official state court judgment and commitment order. (Id.) However, Tomaselli, realizing that he could not provide that order, allegedly conspired with Dunnigan to have her forward a "[f]alse certified sentence computation data form" to the Warden at FCI Fairton setting forth falsified release dates. (Id. ¶ 28.) At Peterson's request, the Warden of FCI Fairton removed this form, as well as Tomaselli's detainer, from Peterson's files at the federal prison after his investigation revealed that Peterson had indeed not yet been re-sentenced. (Id. ¶¶ 29, 30.)

  After being informed that the false documents were removed from Peterson's file, Tomaselli nevertheless filed a motion with the New York State Supreme Court seeking a bench warrant for Peterson's arrest on the ground that Peterson violated the terms of his state parole. (Id. ¶ 31.) Although Peterson was not in fact on state parole, the court issued a bench warrant. (Id.) Tomaselli then lodged the warrant as a detainer with FCI Fairton officials. (Id.)

  On February 14, 1997, the state court finally sentenced Peterson to three and a half years to seven years to be served concurrently with his federal sentence and directed that the federal sentence be entered on February 28, 1997. (Id. ¶ 33.) By this time, Peterson had already completed his federal sentence and failed to receive any credit for this time served. (Id.)

  D. Peterson's Habeas Corpus Petition and § 1983 Action

  On October 22, 1997, Peterson filed a federal writ of habeas corpus, pursuant to 28 U.S.C. § 2554, which Judge Patterson granted on December 17, 1998. Peterson v. Lacy, 1998 WL 883302, at *1. Judge Patterson found that the delay in sentencing of more than three and a half years and a delay in appeal of almost two years deprived Peterson of "the conditional release which his agreed upon sentence would have afforded him eight months ago." Id., 1998 WL 883302, at *8. Additionally, Judge Patterson concluded that "it would be incongruous to find that such delay was not lengthy enough to amount to a due process violation." Id., 1998 WL 883302, at *8. Judge Patterson thus ordered the issuance of a writ of habeas corpus and directed that Peterson immediately receive a conditional release as mandated by New York's Correction Law.*fn2 Id., 1998 WL 883302, at *5. Although Peterson filed another writ of habeas corpus for relief from the state court judgment imposed in 1997, which the Appellate Division, First Department, affirmed, this petition is still pending before Judge Patterson. Peterson v. Tomaselli, 2003 WL 22213125, at *3.

  Peterson originally brought this action before Judge Chin as a pro se plaintiff on December 14, 2001, seeking damages pursuant to 42 U.S.C. § 1983 for his alleged constitutional injuries against Dunnigan and Tomaselli.*fn3 Id., 2003 WL 22213125, at *1. Additionally, on January 8, 2003, Peterson moved to amend his complaint to add the DOC and OSNP as parties to this action. Id., 2003 WL 22213125, at *4. Dunnigan moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Id., 2003 WL 22213125, at *4. In an opinion dated September 29, 2003, Judge Chin dismissed the § 1983 and Privacy Act claims against Dunnigan,*fn4 and granted Peterson's request for amend his complaint by adding the DOC and OSNP. Id., 2003 WL 22213125, at *8-9. Defendants now collectively move to dismiss pursuant to Rule 12(b)(6).


  I. The Rule 12(b)(6) Standard

  In ruling on a motion to dismiss under Rule 12(b)(6), the court is required to read a complaint generously, accepting all the alleged facts as true and drawing all reasonable inferences in favor of the plaintiff. See LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Frasier v. Gen. Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991). The court must deny the motion unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Additionally, "the review of such a motion is limited, and `[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (citation omitted).

  Moreover, the fact that Peterson is proceeding pro se in pursuit of civil rights claims means that the court must construe his complaint with particular generosity. See Davis v. Goord, 320 F.3d 346, 350 (2d Cir. 2003) (quotations omitted); Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 146 (2d Cir. 2002). As such, Peterson's allegations "must be read so as to `raise the strongest arguments that they suggest.'" Weixel, 287 F.3d at 146 (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)). The court may also consider factual "allegations contained in [the plaintiff's] other court filings." Torrico v. International Business Machines Corp., 213 F. Supp. 2d 390, 400 n. 4 (S.D.N.Y. 2002) (quoting Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992)).

  II. Peterson's Claims Against DOC and OSNP

  Defendants assert that Peterson's amended complaint improperly names the DOC and OSNP as parties to this action because they are not suable entities. The capacity of the DOC and OSNP to be sued is determined by the laws of New York. See Fed.R. Civ. P. 17(b). The New York City Charter states that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law." N.Y. City Charter Ch. 17 § 396. As agencies of New York City, neither the DOC nor the OSNP can be sued. Indeed, "[s]ettled case law applying this provision establishes that suits against the DOC are suits against a non-suable entity and are properly dismissed upon that basis." Echevarria v. Dep't of Corr. Servs. and City of New York, 48 F. Supp. 2d 388, 391 (S.D.N.Y. 1999) (citing cases). Similarly, courts have regularly dismissed actions against the OSNP because it "has no legal existence independent of the Special Prosecutor himself sued in his individual capacity." Gonzalez v. City of New York, No. 98 Civ. 6081, 2002 WL 252564, at *2 (S.D.N.Y. February 21, 2002) (citing N.Y. Crim. Proc. Law § 1.20(31) (McKinney 1992)) (dismissing complaint against OSNP). Accordingly, the Court dismisses all claims asserted against the DOC and OSNP.

  To the extent that Peterson asserts claims against individual employees of the DOC and OSNP responsible for mishandling his transfer to federal custody and disregarding repeated orders issued by the state sentencing court, the Court recognizes that his failure to name these defendants is not fatal to the complaint at this stage. See Soto v. Brooklyn Corr. Facility, 80 F.3d 34, 36-37 (2d Cir. 1996) (remand to allow § 1983 plaintiff to engage in discovery to identify proper defendants). But for Peterson's technical misunderstanding that he was to name the DOC and OSNP in his complaint, he would have named the individual DOC employees responsible for the alleged misdeeds. Id. at 37. Even if Peterson cannot identify the exact DOC and OSNP defendants, it is well settled in the Second Circuit that a pro se plaintiff who is incarcerated, and "therefore unable to carry out a full pre-trial investigation," may simply name defendants as "John Doe" in his complaint until further investigation during discovery. Valentin v. Dinkins, 121 F.3d 72, 75-76 (2d Cir. 1997); Griffin v. New York City: Dep't of Corr. Rikers Island, No. 91 Civ. 1694, 1993 WL 322872, at *2 (S.D.N.Y. Aug. 17, 1992) (plaintiff's failure to identify individual officers "not necessarily fatal to the complaint"). Accordingly, Peterson is granted leave to amend his complaint to add as "John Doe" defendants unidentified employees of the DOC and OSNP, and to learn the identities of these employees of the DOC and OSNP through discovery. See Palacios v. Corr. Officer Doe, No. 95 Civ. 6855, 1997 WL 458816, at *2 (S.D.N.Y. Aug. 12, 1997). III. Peterson's Claims Against the Commissioner and the City

  Peterson seeks to amend his complaint to include the Commissioner and the City as named parties to this action. (Pl.'s Mem. in Opp'n to Mot. to Dismiss at 2.) Given that Peterson has already amended his complaint once, he may amend his pleading "only by leave of court." Fed.R. Civ. P. 15(a). Although such leave "shall be freely given when justice so requires," Fed.R.Civ. P. 15(a), a court may deny a "futile" proposed amendment if it cannot "withstand a motion to dismiss pursuant to Rule 12(b)(6)." Oneida Indian Nation v. City of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003) (quoting Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). Additionally, a "pro se plaintiff, particularly one bringing a civil rights action, should be afforded an opportunity fairly freely to amend his complaint." Holmes v. Goldin, 615 F.2d 83, 85 (2d Cir. 1980). Ultimately, the decision to grant or deny the opportunity to amend "is within the sound discretion of the district court." Dluhos v. Floating and Abandoned Vessel, Known as "New York," 162 F.3d 63, 70 (2d Cir. 1998) (citation omitted).

  A. The Commissioner

  Peterson argues that adding the Commissioner in his individual capacity as a party to this § 1983 action is proper because the Commissioner was "directly responsible" for his extended incarceration. In response, defendants argue that Peterson has failed to allege facts regarding the Commissioner's personal involvement with Peterson's constitutional injuries.

  According to the Second Circuit, an individual "cannot be held liable for damages under § 1983 "merely because he held a high position of authority, but can be held liable if he was personally involved in the alleged deprivation" of the plaintiff's constitutional rights. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (quotations omitted). To demonstrate personal involvement, plaintiff must allege that:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference . . . in failing to act on information indicating that unconstitutional acts were occurring.
Id. (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). The Second Circuit has also observed that it is only by "casting § 1983 claims [as `failure to train' or `failure to supervise'] that plaintiffs can link an actual decision by a high level municipal official to the challenged incident." Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992).

  Read liberally and with particular generosity, Peterson's complaint alleges that the Commissioner exhibited (1) deliberate indifference in failing to act on orders issued by the state sentencing court indicating that Peterson was in danger of being unconstitutionally imprisoned; or (2) gross negligence in failing to adequately train or supervise DOC subordinates in properly transferring state prisoners to federal custody. These acts, Peterson contends, directly caused his prolonged imprisonment in contravention of the Sixth, Eighth, and Fourteenth Amendments. (Smith Decl. Ex. A ¶ 40.) To be sure, an inmate has a "liberty interest in being set free at the end of his term." Calhoun v. New York State Division of Parole Officers, 999 F.2d 647, 653 (2d Cir. 1993). That said, Peterson has not alleged facts inferring that the Commissioner "exhibited deliberate indifference" in the sense that he "intended the discrimination to occur" or acted "clearly unreasonab[ly] in light of the known circumstances" by failing to act on orders issued by the state sentencing court. Back, 365 F.3d at 127 (quotations omitted). Indeed, Peterson's single allegation that the Commissioner "fail[ed] to transfer plaintiff to the custody of the federal authorities" is insufficient to infer "deliberate indifference" without further allegations that the Commissioner knew about the state sentencing orders but chose to ignore them. Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989) ("a supervisory official may be personally liable if he or she has `actual or constructive notice of unconstitutional practices and demonstrates "gross negligence" or "deliberate indifference" by failing to act'") (quoting Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1988)).

  Even assuming that the Commissioner had actual or constructive notice of Peterson's sentencing difficulties, Peterson fails to allege that the Commissioner knew that, "given his . . . job description or the role he . . . assumed in the administration of the prison, a sentence calculation problem [would] not likely be resolved unless he . . . address[ed] it or refer[red] it to others." Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989) (Commissioner of Corrections was not individually liable for failing to release prisoner where senior records official was primarily responsible for calculating sentences and releasing prisoners); see also Al-Jundi, 885 F.2d at 1065 (fact that governor "was kept abreast" of alleged constitutional violations occurring in prison was insufficient to establish § 1983 individual liability absent further allegations). Even if the Commissioner had the "ultimate responsibility" in releasing prisoners, he did not exhibit "deliberate indifference" by failing to address Peterson's sentencing directives if there were adequate procedures in place calling for others to pursue the matter. Sample, 885 F.2d at 1110; see Pembaur v. City of Cincinatti, 475 U.S. 469, 483-84 (1986).

  Peterson also fails to allege facts suggesting the Commissioner was "grossly negligent" in failing to train or supervise his subordinates at the DOC.*fn5 Absent allegations of a history of constitutional injuries arising from the same defect in training or supervision, a particular context "might [still] make the need for training or supervision so obvious that a failure to do so would constitute deliberate indifference." Id. In these situations, the plaintiff must show that (1) the supervisory official "[knew], to a `moral certainty,' that [his] employees would confront a given situation"; (2) training will reduce the risk of employees' mishandling the situation; and (3) the "wrong choice by the city employee will frequently cause the deprivation of a citizen's rights." Walker, 974 F.2d at 297-78.

  Although it is clear that training will reduce the risk that state correctional employees will mishandle inmate transfers from state custody to federal custody, Peterson has not alleged that the Commissioner knew, "to a moral certainty," that DOC employees regularly faced this situation. Id. at 297. Additionally, Peterson fails to allege that the mishandling of transfers from state to federal custody "will frequently cause the deprivation of a citizen's constitutional rights." Id. at 298 (citing City of Canton v. Harris, 489 U.S. 378, 390 (1989)). Ultimately, the Court cannot "assess whether the [Commissioner's] conduct evidenced deliberate indifference" solely on the facts asserted. Sample, 885 F.2d at 1118.

  The Court pauses, however, in entirely dismissing Peterson's § 1983 claims against the Commissioner. The Second Circuit has cautioned against dismissing claims prematurely against supervisory officials before plaintiffs can identify, through brief discovery, the subordinate officials who may have personal liability. Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998) (citing cases); Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984) ("[p]laintiff should have a reasonable opportunity, through discovery of [supervisory officials] . . . to ascertain what individuals or policies caused him to be unlawfully incarcerated"). Despite the apparent defects in Peterson's complaint, he "could not reasonably have been expected to understand prison transfer procedures or to be able to identify the officials involved." Davis, 160 F.3d at 921. Particularly since Peterson is proceeding pro se, his failure to make appropriate inquiries or sufficiently allege facts is not fatal to his complaint at this early stage of litigation. Id. Indeed, discovery will allow him to clarify whether the Commissioner lacked personal involvement so as to dismiss him from this action — or whether DOC employees acted at his instruction. Id. at 921-22. It is clear that a "serious error was apparently made, resulting in [Peterson's] incarceration" for eight additional months, that becomes "[e]ven more serious [with] . . . Peterson's claim that the error was intentional. Satchell, 745 F.2d at 785. At "the very least, careful inquiry, discovery, and further development of the facts is required before [Peterson's] actions should be dismissed against [the Commissioner]." Satchell, 745 F.2d at 786. Accordingly, the Court grants Peterson leave to add the Commissioner in his individual capacity as a defendant.

  B. The City

  Peterson further asserts that his complaint alleges facts sufficient to subject the City to municipal liability because "high ranking officials such as members of the Office of Special Narcotics Prosecutor and the Commissioner of New York City Department of Corr. are directly responsible for the acts which caused plaintiff's extended incarceration and the failure to transfer the plaintiff to the custody of the federal authorities despite the court orders to do so." (Pl.'s Mem. in Opp. to Mot. to Dismiss at 9.) Defendants, however, contend that Peterson's motion to add the City as a named party is "futile" because he fails to allege how the municipality itself is at fault for his alleged constitutional injuries. (Defs.' Reply Mem. in Supp. of Mot. to Dismiss at 3.)

  A municipality is liable under § 1983 only if "action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. Dep't of Soc. Servs. of the City of New York, et al., 436 U.S. 658, 691 (1978). The Supreme Court has used the term "official municipal policy" to limit the scope of § 1983 to "acts which the municipality has officially sanctioned or ordered," and to prevent § 1983 from simply incorporating the doctrine of respondeat superior by exposing municipalities to liability for all employee misconduct. Pembaur, 475 U.S. at 480; Walker, 974 F.2d at 296. To satisfy this pleading standard, a plaintiff may allege that his constitutional injuries arose from (1) "a policy statement, ordinance, regulation, or decision officially adopted and promulgated" by the municipality, Monell, 436 U.S. at 690; (2) a "permanent and well settled" practice sufficient to constitute "`custom or usage' with the force of law" and to impute constructive acquiescence by government officials, id.; (3) actions taken by government officials with final policymaking authority regarding the particular alleged constitutional deprivation, Pembaur, 475 U.S. at 483; or (4) the "failure to train" municipal employees amounting to "deliberate indifference to the rights of persons" who come in contact with these subordinates. City of Canton, 489 U.S. at 388.

  Because Peterson fails to identify a particular custom or practice endorsed by these agencies,*fn6 see City of Canton, 489 U.S. at 385, the allegations set forth here implicate the question of whether Peterson has sufficiently identified "actual conduct by a municipal policymaker . . . [who is] relatively high up in the municipal hierarchy." Walker, 974 F.2d at 297. As a threshold matter, the determination of whether a municipal employee is a "policymaker" for the purposes of § 1983 is "dependent on the definition of the official's functions under relevant state law." McMillian v. Monroe County, Alabama, 520 U.S. 781, 786 (1997). Moreover, the Supreme Court stated that "municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur, 475 U.S. at 483. However, merely asserting that an official has "discretion in the exercise of particular functions" is not sufficient to impose municipal liability. Id. at 482-83.*fn7 Thus, municipal liability predicated on the official's policymaking authority hinges on the question of whether that official was responsible for Peterson's constitutional tort. City of Canton, 489 U.S. at 389; see Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir. 2003). Specifically, the Second Circuit has explained that:

Where an official has final authority over significant matters involving the exercise of discretion, the choices he makes represent government policy. An official has final authority if his decisions, at the time they are made, for practical or legal reasons constitute the municipality's final decisions.
Anthony, 339 F.3d at 139 (quoting Rookard v. Health & Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983).

  1. Municipal Liability Based on the OSNP and Tomaselli

  As defendants point out, Peterson's complaint only mentions the OSNP in connection with (1) the actions of OSNP detectives regarding Peterson's release from federal custody on January 29, 1997 (Smith Decl. Ex. A ¶ 26); and (2) the actions of Tomaselli as assistant district attorney in forwarding false sentencing data and documents, motioning the state court for a baseless bench warrant, and lodging that warrant as a detainer with FCI officials. (Id. ¶¶ 26, 27, 28, 29, 31); (Def.'s Reply Mem. in Supp. of Mot. to Dismiss at 4.) However, detectives in the OSNP lack the decision-making authority necessary to impose municipal liability on the City. See Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir. 2003) (police sergeant lacked final decision-making authority for purposes of § 1983). Accordingly, the Court finds that pleading § 1983 municipal liability solely on the basis of the actions of OSNP detectives is improper.

  With respect to Tomaselli, the Second Circuit has held that only "[w]here a district attorney acts as the manager of the district attorney's office, may the district attorney be held to act as a county policymaker." Walker, 974 F.2d at 301. Therefore, Peterson's assertion that Tomaselli acted as a policymaker is without merit because assistant district attorneys are below the policymaking level. Belot v. Wieshaupt, No. 96 Civ. 3005, 1997 WL 218449, at *8 (S.D.N.Y. April 29, 1997). Even assuming that Tomaselli was deliberate in his actions, the City cannot be held liable under § 1983 on the basis of Tomaselli's actions absent any specific allegations that Tomaselli acted pursuant to an official municipal policy or that his superiors' failure to train him caused Peterson's constitutional deprivations. Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) ("a single incident alleged in a complaint, especially if it involved only actors below the policymaking level, generally will not suffice to raise an inference of the existence of a custom or policy"); Sorlucco v. New York City Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992) (municipality "may not be held liable under § 1983 for the isolated unconstitutional acts of its employees"). Since no such allegations are made, plaintiff's complaint cannot be premised on alleged unconstitutional acts committed solely by Tomaselli.

  2. Municipal Liability Based on the Commissioner

  Peterson also seeks to add the City based on the alleged actions of the Commissioner. Defendants do not contest that the Commissioner is a municipal policymaker in this context for the purposes of § 1983. (Def.'s Reply Mem. in Supp. of Mot. to Dismiss at 5 (citing Mandell v. County of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003) (finding county police commissioner was a municipal policymaker)).) Rather, defendants focus on Peterson's failure to assert that the Commissioner ever took a specific act towards Peterson.

  It is not clear whether, in the Second Circuit, the standards for individual liability of a policymaker and municipal liability are the same where municipal liability is predicated on the actions of that policymaker. In addressing this question, the Third Circuit has repeatedly declared that "the standard of individual liability for supervisory public officials will be found to be no less stringent than the standard of liability for the public entities that they serve. In either case, a `person' is not the `moving force [behind] the constitutional violation' of a subordinate, City of Canton, 109 S.Ct. at 1205, unless that `person' — whether a natural one or a municipality — has exhibited deliberate indifference to the plight of the person deprived." Sample, 885 F.2d at 1118; Carter v. City of Philadelphia, 181 F.3d 339, 356-57 (3d Cir. 1999) ("the standard for personal liability under section 1983 is the same as that for municipal liability"); see also Doe v. Taylor Independent Sch. Dist., 114 F.3d 539, 551 (5th Cir. 1997) ("[t]he legal elements of an individual's supervisory liability and a political subdivision's liability . . . are similar enough that the same standards of fault and causation should govern").

  In any event, Peterson has not pointed to a single act committed by the Commissioner linked to Peterson's constitutional injuries. Monell, 436 U.S. at 691 (to find municipal liability, "action pursuant to official municipal policy of some nature [must cause] a constitutional tort") (emphasis added). Nor has Peterson adequately alleged that the Commissioner's purported failure to act amounted to deliberate indifference to Peterson's constitutional rights. City of Canton, 489 U.S. at 388. Although Peterson claims that the Commissioner "was directly responsible for the acts which caused plaintiff's extended incarceration," vague and conclusory allegations are not sufficient to impose municipal liability. See Dwares, 985 F.2d at 100 (mere assertion that municipality employed discriminatory custom was insufficient "in the absence of allegations tending to support, at least circumstantially, such an inference"). As such, the Court cannot conclude that the Commissioner was "the moving force" behind Peterson's extended incarceration. City of Canton, 489 U.S. at 389.

  While, as discussed above, Second Circuit cases such as Satchell and Davis allow prisoners asserting civil rights violations to maintain claims against supervisory officials — at least beyond the 12(b)(6) stage — even if the allegations are insufficient to impose individual liability, the Court is not aware of any justification for adding the City as a named party as well. Consequently, the Court denies plaintiff leave to amend the complaint to add the City as a defendant based on the allegations presently made by plaintiff. In the event that plaintiff is able subsequently to allege with greater specificity a factual basis for a § 1983 claim against the City based on the Commissioner's conduct, the Court will entertain a further motion to amend at that time.

  III. Peterson's Conspiracy Claims

  Defendants seek to dismiss Peterson's existing and proposed conspiracy claims on the ground that Peterson fails to state a valid cause of action under either § 1983 or § 1985. (Def.'s Mem. in Supp. of Mot. to Dismiss at 11.) To assert a viable conspiracy claim under § 1983, a plaintiff must show: (1) an "agreement between two or more state actors"; (2) to "act in concert to inflict an unconstitutional injury"; and (3) an "overt act done in furtherance of that goal causing damages." Pangburn, 200 F.3d at 72. Additionally, a § 1983 conspiracy claim is actionable only if plaintiff proves the existence of a § 1983 actual violation — that is, the deprivation of a constitutional right. Dean Tarry Corp. v. Friedlander, 650 F. Supp. 1544, 1553 n. 15 (S.D.N.Y. 1987) (observing that there is "no cause of action for conspiracy per se under section 1983") (emphasis in original), aff'd, 826 F.2d 210 (2d Cir. 1987).

  Unlike § 1983, a conspiracy claim under § 1985 may be asserted against both public and private actors. See Griffin v. Breckenridge, 403 U.S. 88, 101 (1971). Section 1985, however, does not "apply to all tortious, conspiratorial interferences with the rights of others." Id. Indeed, the plaintiff must plead that defendants undertook a conspiracy "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws." Jews for Jesus, Inc. v. Jewish Community Relations, 968 F.2d 286, 290 (2d Cir. 1992). Furthermore, "a plaintiff `must allege some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" Gagliardi, 18 F.3d at 194 (quoting Griffin, 403 U.S. at 102; see also Jews for Jesus, 968 F.2d at 290-91.

  In evaluating conspiracy claims under the 12(b)(6) standard, the Second Circuit has stated that complaints "containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed." Dwares, 985 F.2d at 100. Although pro se plaintiffs are entitled to liberal pleading standards, they "cannot completely avoid the pleading requirements of the Federal Rules of Civil Procedure." Murphy, 1996 WL 442797, at *7 (citing Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). Thus, a pro se plaintiff must make "an effort to provide some `details of time and place and the alleged effect of the conspiracy.'" Id. (quoting 2A Moore's Federal Practice ¶ 8.17[6], at 8-109 to 8-110 (2d ed. 1992)).

  Peterson primarily alleges that two conspiracies existed to deprive him of his constitutional rights: (1) Tomaselli and Dunnigan conspired to give falsified release dates in connection with his state sentence; and (2) Tomaselli, Assigned Counsel, the Commissioner and the City conspired together to keep Peterson incarcerated beyond his sentence.

  A. Conspiracy 1: Tomaselli and Dunnigan

  Peterson first contends that Tomaselli conspired with Dunnigan (1) to have her "forward a [f]alse certified sentence computation data form to the Warden of the FCI Fairton which falsely stated that [Peterson] was sentenced"; and (2) to give falsified release dates to FCI officials. (Smith Decl. Ex. A ¶ 28.) This alleged conspiracy, he contends, violated § 1985.*fn8

  However, this claim fails to adequately allege that these defendants conspired to act based on class-based animus necessary to plead a § 1985 claim. Notably, Judge Chin dismissed Peterson's claim against Dunnigan — the allegations of which form the basis of his claim against Tomaselli. Peterson v. Lacy, 2003 WL 22213125, at *7. In so doing, Judge Chin found, inter alia, that there were "no alleged acts done in furtherance of the conspiracy, no assertions of injury or deprivation of rights based on the false documentation, and no contention that Dunnigan acted with class-based discriminatory animus." Id. Since Peterson's claim against Tomaselli fails to mention any perceived class-based animus, it fails to state a cause of action under § 1985. Gagliardi, 18 F.3d at 194 ("invidious discriminatory motive is an element of the cause of action" for § 1985). Accordingly, the Court dismisses this claim without prejudice for a renewed motion for leave to amend based on proper factual allegations supporting such a claim.

  B. Conspiracy 2: Tomaselli, Assigned Counsel, the Commissioner, and the City

  Peterson separately seeks leave to amend his complaint to allege that Tomaselli, Assigned Counsel, the Commissioner and the City conspired together in violation of § 1985 because "all the actors are caucasion [sic] persons who know they are violating the civil rights of this black plaintiff." (Pl.'s Mem. in Opp'n to Mot. To Dismiss at 10.) Alternatively, Peterson alleges that these actors conspired in violation of § 1983 by engaging "in designed conduct which [was] similar and which reveal[ed] a design to achieve a similar goal of delaying plaintiff's sentencing transfer to the custody of federal authorities, appeal process and plaintiff's release." (Id.)

  Peterson's failure to "specify in detail the factual basis necessary to enable [defendants] intelligently to prepare their defense" is fatal to either legal theory. Ciambriello v. County of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (quoting Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977)). For example, Peterson does not offer any facts "supporting a meeting of the minds such that defendants entered into an agreement, express or tacit, to achieve the unlawful end." Webb, 340 F. 3d at 110 (citation omitted); Dwares, 985 F.2d at 100 (complaint sufficiently alleged agreement requirement by stating that defendants told "skinheads" that they would permit assaults and one of "skinheads" informed Village Voice reporter of such agreement); Thomas v. Roach, 165 F.3d 137, 147 (2d Cir. 1999). Absent allegations sketching out the duration, place and nature of these alleged conspiracies, Peterson's single, conclusory statement that these defendants conspired to deprive him of his rights is insufficient as a matter of law.*fn9 Dwares, 985 F.2d at 100.

  Accordingly, the Court denies Peterson leave to amend his complaint to add conspiracy claims against the Tomaselli, Assigned Counsel, the Commissioner and the City without prejudice. Peterson may, however, renew his motion for leave to amend, provided he offers proper factual allegations supporting such a claim. Gomez, 171 F.3d at 794; Satchell, 745 F.2d at 785 ("a pro se litigant should be afforded every reasonable opportunity to demonstrate that he has a valid claim").

  IV. Peterson's Claims and the Statute of Limitations

  Defendants contend that the statute of limitations for § 1983 and § 1985 actions bars all of Peterson's claims. In § 1983 and § 1985 actions, the "applicable limitations period is found in the `general or residual [state] statute [of limitations] for personal injury actions.'" Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)); Meyer v. Frank, 550 F.2d 726, 727 (2d Cir. 1977) (applying New York's three year statute of limitations to § 1985 claim). In New York, the statute of limitations for § 1983 and § 1985 claims is three years. Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 331 (2d Cir. 1997); Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004).

  However, federal law governs when § 1983 and § 1985 claims accrue — that is, when the statute of limitations begins to run. Cornwall v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994). The Second Circuit has generally determined that § 1983 and § 1985 actions accrue when the plaintiff "knows or has reason to know" of the injury arising out of his claim. Id. An exception to this rule applies where a § 1983 claim to recover damages for allegedly unconstitutional imprisonment implicates the validity of the sentence itself. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).*fn10 Specifically, the Supreme Court has ruled that "a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." Id. at 489-90. Indeed, the plaintiff must first prove, for instance, that the sentence was "called into question by a federal court's issuance of a writ of habeas corpus" in order to state a § 1983 claim for damages arising out of unlawful incarceration. Id. at 487.

  The Second Circuit endorsed this approach after the Supreme Court vacated and remanded that court's ruling in Woods v. Candela, 513 U.S. 801 (1994). In Woods, plaintiff Woods brought § 1983 claims against a New York state trooper who had justifiably stopped Woods' car but impermissibly questioned him as to whether he had weapons in the car on September 25, 1989. Woods v. Candela, 825 F. Supp. 43, 44 (S.D.N.Y. 1993). Following a jury trial for charges of criminal possession of a weapon in the fourth degree and robbery in the first degree, Woods was found guilty and sentenced on November 15, 1990, to 12½ to 25 years of imprisonment. Id. After Woods had been incarcerated for nearly three years, the Appellate Division, Second Department, reversed his conviction on January 19, 1993, reasoning that the weapons should have been suppressed because the state trooper did not have reasonable suspicion or fear for his own safety. Id.

  On May 6, 1993, Woods brought a § 1983 action against that state trooper for claims of false arrest. The district court, however, barred Woods' claims by applying New York's three-year statute of limitations from the date of his false arrest, and not from the date of the reversal of his conviction by the Appellate Division. Woods, 825 F. Supp. at 45-46. Although the Second Circuit affirmed that decision, the Supreme Court vacated the Second Circuit's decision in light of Heck. Woods v. Candela, 47 F.2d 545, 546 (2d Cir. 1995). Upon remand, the Second Circuit held that Woods' claims could not have been raised prior to the Appellate Division's reversal of his conviction, and therefore, his claims fit within the statute of limitations period. Id. The Second Circuit further commented that Woods could not have brought his Fourth and Fifth Amendment claims against the police officer without implicating the validity of his conviction for criminal possession of a weapon. Id.

  Similarly, Peterson's § 1983 claim "necessarily impl[ies] the invalidity of his . . . sentence." Jenkins v. Haubert, 179 F.3d 19, 25 (2d Cir. 1999); Heck, 512 U.S. at 487. Peterson cannot bring his § 1983 claims predicated on Sixth, Eighth and Fourteenth Amendment violations without suggesting that the duration of his imprisonment beyond his agreed-upon sentence was unlawful. Peterson v. Lacy, 1998 WL 883302, at *6, 8 (finding violations of Sixth Amendment and Fourteenth Amendment Due Process because of delays in appeal and sentencing; "where a delay in sentencing of more than three and a half years and a delay in appeal of almost two years has resulted in petitioner being denied the conditional release which his agreed upon sentence would have afforded him eight months ago, it would be incongruous to find that such delay was not lengthy enough to amount to a due process violation"). Moreover, Peterson could not have asserted these claims prior to succeeding on a federal habeas petition because a plaintiff attacking the fact or length of custody must first seek federal habeas relief — not § 1983 damages. See Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973) (prisoners challenging prison's refusal to grant good time credits were required to seek federal habeas relief and not § 1983 damages); see also Jenkins, 179 F.3d at 22.

  Certainly, Judge Patterson's issuance of that writ of habeas corpus "called into question" the validity of the duration of Peterson's confinement. Heck, 512 U.S. at 487. In granting Peterson's release, Judge Patterson found that Peterson had been unlawfully detained for eight months due to the "compounded errors of various state actors" in computing, imposing, and applying his sentence. Peterson v. Lacy, 1998 WL 883302, at *9. Peterson's claims therefore fall directly into the line of cases involving attacks to "the fact or duration of custody." Black v. Coughlin, 76 F.3d 72, 75 (2d Cir. 1996) (§ 1983 claim accrued on date state court reversed disciplinary hearings that imposed 180 days of confinement); Johnson v. Coombe, 156 F. Supp. 2d 273, 277 (S.D.N.Y. 2001) (prisoner challenging disciplinary hearing that imposed penalty of confinement in special housing unit and revoked good time credits accrued on the date state appellate court annulled disciplinary decision).

  As such, Peterson's claim accrued on December 17, 1998 — the moment at which the writ of habeas corpus issued, thereby releasing him from custody. Peterson v. Lacy, 1998 WL 883302, at *10. To be considered timely, Peterson would have had to file his complaint by December 17, 2001. Peterson's averment that the original complaint in this action was mailed on December 14, 2001, therefore, satisfies the statute of limitations for all of his original claims asserted against Tomaselli. (Pl.'s Mem. in Opp'n to Mot. to Dismiss at 6.) Accordingly, Peterson's claims against Tomaselli are not time-barred.*fn11 Although the claims against Tomaselli are timely, the Court observes that defendants have not addressed whether Peterson's proposed amendments to add new parties "relate back" to the filing of the original complaint for the purposes of Rule 15. See Bano v. Union Carbide Corp., 361 F.3d 696, 710 (2d Cir. 2004) (statute of limitations is an "affirmative defense" on which the defendant bears the burden of proof). District courts should "avoid an inquisitorial role, and not search out issues more appropriately left to a motion by the opposing party." Lewis v. New York, 547 F.2d 4, 6 (2d Cir. 1976). Even if the statute of limitations bars Peterson's proposed amendments, "sua sponte dismissal of a plaintiff's complaint is disfavored," particularly where the plaintiff is proceeding pro se. Hernandez v. U.S. Supreme Court of New York, No. 96 Civ. 4160, 1997 WL 266973, at *1 (S.D.N.Y. May 19, 1997) (citing Lewis v. New York, 547 F.2d 4, 6 n. 4 (2d Cir. 1976) ("[f]ailure to afford plaintiffs an opportunity to address the court's sua sponte motion to dismiss is, by itself, grounds for reversal") (citing cases)). Accordingly, the Court declines to reach the issue of whether the statute of limitations bars added claims against the Commissioner, City, and "John Doe" employees of the DOC and OSNP.

  IV. Peterson's Cross-Motion for Summary Judgment

  Peterson cross-moves for summary judgment on his § 1983 claims arising under the Sixth and Fourteenth Amendment. Primarily, Peterson seeks to apply the principles of res judicata and collateral estoppel based on the Sixth and Fourteenth Amendment issues already decided in Judge Patterson's decision issuing Peterson a writ of habeas corpus. In response, defendants argue that (1) none of the parties in the pending action, except Tomaselli, were parties to the federal habeas proceeding; and (2) Judge Patterson did not make any findings of fact regarding Tomaselli.*fn12

  A. The Summary Judgment Standard

  Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (quoting Fed.R. Civ. P. 56(c)). In reviewing the record, the district court must assess the evidence in "the light most favorable to the non-moving party," resolve all ambiguities, and "draw all reasonable inferences" in its favor. Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

  A party may "move for summary judgment on the ground that another action already has adjudicated the disputed claim on the merits and therefore it should not be relitigated because of claim preclusion (res judicata)." Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2735 at 286 (3d ed. 1998) ("Wright, Miller & Kane"); Zoll v. Ruder Finn, Inc., No. 02 Civ. 3652, 2003 WL 22283830, at *3 (S.D.N.Y. Oct. 3, 2003) ("[c]laim preclusion is a proper ground for a summary judgment motion") (citing Thompson v. County of Franklin, 15 F.3d 245, 253 (2d Cir. 1994)). Alternatively, a party may move for summary judgment if "the earlier litigation actually determined an issue crucial to both actions so that an application of issue preclusion (collateral estoppel) entitles the movant to a judgment as a matter of law in the second action." Wright, Miller & Kane § 2735 at 287; Mishkin v. Ageloff, 299 F. Supp. 2d 249, 252 (S.D.N.Y. 2004) ("[s]ummary judgment is appropriate under the doctrine of collateral estoppel (issue preclusion) when all the material issues of fact in a pending action have been actually and necessarily resolved in a prior proceeding") (citing State of New York v. Julius Nasso Concrete Corp., 202 F.3d 82, 86 (2d Cir. 2000)); NLRB v. Thalbo Corp., 171 F.3d 102, 109 (2d Cir. 1999).

  A. Res Judicata

  Peterson first moves for summary judgment on the ground that res judicata bars litigating his § 1983 claim. In support, Peterson argues that "Judge Patterson directly decided the Sixth and Fourteenth Amendment Constitutional claims in favor of plaintiff and ordered plaintiff's discharge from custody while granting the application for habeas corpus relief under 28 U.S.C. § 2254." (Pl.'s Mem. in Opp'n to Mot. to Dismiss at 15.)

  Res judicata dictates that once a final judgment has been entered on the merits of a case, that judgment will bar any subsequent litigation by the same parties or those in privity with them concerning "`the transaction, or series of connected transactions, out of which the [first] action arose.'" Maharaj v. Bankamercia Corp., 128 F.3d 94, 97 (2d Cir. 1997). In effect, res judicata operates to bar relitigation of claims or causes of actions that could have been raised in a prior action. Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 381 n. 7 (2d Cir. 2003).

  As an initial matter, the Court observes that Peterson's argument of res judicata only applies to Tomaselli, since he was the sole party named to the original action. In defining privity, the Second Circuit has stated that "one whose interests were adequately represented by another vested with the authority of representation is bound by the judgment, even though the first party was not formally a party to the litigation." Alpert's Newspaper Delivery Inc. v. The New York Times Co., 876 F.2d 266, 270 (2d Cir. 1989). Peterson has not alleged a theory — and the Court is not aware of any — that vested Tomaselli with the "authority of representation" for any of the parties in the prior habeas action.

  In any event, res judicata is clearly inapplicable to this action.*fn13 In the course of petitioning for a writ of habeas corpus, Peterson never raised nor litigated his cause of action under § 1983. Although Peterson claims that this cause of action arises out of the same series of events leading to his habeas corpus petition, he could not have raised § 1983 claims in that action because that habeas corpus petition sought to attain relief from his prolonged confinement. See Hili v. Sciarotta, 140 F.3d 210, 216 (2d Cir. 1998) (prisoner must claim relief from denial of probation through habeas corpus petition, not § 1983 action). Indeed, as discussed above, Peterson would have been barred from bringing § 1983 claims arising out of the facts of his custody prior to succeeding on a habeas petition. Heck, 512 U.S. at 486-87; Jenkins, 179 F.3d at 25. Since Peterson did not and could not have raised his § 1983 claims in his habeas petition, res judicata is unavailable to Peterson in the present action. B. Collateral Estoppel

  Read liberally, Peterson's cross-motion for summary judgment based on collateral estoppel seeks to preclude defendants from relitigating specific findings of fact already determined by Judge Patterson. Specifically, Peterson asserts that the factual issues decided by Judge Patterson in the prior habeas proceeding "reveal concerted action by state actors and the assigned appellate counsel to sustain claims of conspiracy to violate plaintiff's civil rights . . . [resulting in] . . . plaintiff's unconstitutional prison confinement" in violation of the Sixth and Fourteenth Amendment. (Pl.'s Mem. in Opp'n to Mot. to Dismiss at 15.)

  Collateral estoppel "bars a party and its privies from relitigating an issue if, but `only if:' (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits." N.L.R.B. v. Thalbo Corp., 171 F.3d 102, 109 (2d Cir. 1999).

  To reiterate, Tomaselli is the only party against whom collateral estoppel may be applied because he was named in the prior federal habeas action, and there was no "privity" between Tomaselli and the other parties regarding that action. However, Tomaselli had no incentive to litigate the issue because Peterson sought release from imprisonment through his habeas petition, and not damages through a § 1983 action. It thus cannot be said that Tomaselli had a "full and fair opportunity to litigate" against Peterson's § 1983 claims. Moreover, although Judge Patterson recognized that Peterson suffered violations of his Sixth and Fourteenth Amendment rights to speedy sentencing and appeal, Judge Patterson did not identify who or what specifically caused those violations. Peterson v. Lacy, 1998 WL 883302, at *9. Instead, Judge Patterson based his decision on the "compounded errors of various state actors" contributing to Peterson's delayed release. Id. As such, the Court cannot at this stage conclude that "all the material issues of fact in [Peterson's § 1983 action] have been actually and necessarily resolved" in the prior federal habeas proceeding before Judge Patterson. Mishkin, 299 F. Supp. 2d at 252. Accordingly, the Court also denies Peterson's cross-motion for the summary judgment based on collateral estoppel.

  V. Appointment of Counsel

  The Court has the power and discretion to appoint counsel, sua sponte, for Peterson pursuant to the federal "in forma pauperis" statute, 28 U.S.C. § 1915(d) (1988); Manley v. Strack, 1999 WL 232906. The Second Circuit, however, has cautioned against appointing counsel in such cases unless the indigent "first pass[es] the test of likely merit." Cooper v. A. Sargenti Co., 877 F.2d 170, 173 (2d Cir. 1989). At the same time, the "preliminary assessment of likely merit must be undertaken somewhat more generously [at the trial level] since the unrepresented litigant might have difficulty articulating the circumstances that will indicate the merit that might be developed by competent counsel." Id. at 174. The Court finds that Peterson has made the requisite threshold showing thus far that he is likely to succeed on the merits of his § 1983 claims. Accordingly, the Court appoints counsel to represent Peterson in this action.

  VI. Conclusion

  The Court grants defendant's 12(b)(6) motion with respect to all claims asserted against the DOC and OSNP and conspiracy claims asserted against Tomaselli. The Court also grants Peterson permission to amend his complaint to add the Commissioner, the City, and any "John Doe" employees of the DOC or OSNP, and appoints counsel to represent Peterson in this action. Peterson is free to amend any conspiracy claims against defendants and to pursue the remaining non-conspiracy claims against Tomaselli.


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