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Subgidio v. Graiani


March 16, 2006


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


Plaintiff Kelvin Subgidio has filed a complaint pro se asserting various claims under 42 U.S.C. § 1983 and state law. Subgidio alleges that the defendants arrested him using excessive force and without probable cause, that he was arrested based on forged arrest warrants, and that he was prosecuted based on a forged indictment. Subgidio was convicted by a jury in New York County Court, Rockland County, on October 22, 1999, of three counts of criminal sale of a controlled substance in the third degree and three counts of criminal possession of a controlled substance in the third degree.

The "State Defendants" -- consisting of the Honorable William Kelly, County Court Judge for the County of Rockland, and Edward Gorman, Clerk of the Rockland County Supreme and County Courts -- now move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Richard Oleszczuk, James Kralik, David Zagon, Stephanie Small, Michael Bongiorno, and the County of Rockland (the "County Defendants") move pursuant to Fed. R. Civ. P. 12(c) and 56 for a judgment dismissing the complaint. For the following reasons, the defendants' motions to dismiss should be granted.


A. The Complaint

The following facts are alleged in Subgidio's complaint, and are assumed to be true for purposes of this motion.

On April 16, 1999, Subgidio was entering the parking lot of an apartment complex in Spring Valley, New York where his infant son resided. See Civil Complaint, filed Apr. 22, 2005 (Docket #2) ("Complaint"), ¶ 27. Officer Kevin Graiani was parked in a marked police car across from the entrance of the parking lot. Complaint ¶ 28. As Subgidio entered the parking lot, Officer Graiani glared at him and made a hand gesture mimicking the shooting of a handgun; in response, Subgidio raised his middle finger at the officer. Id. ¶¶ 29-30. Subgidio entered one of the apartment buildings, and later exited carrying his infant son in a car seat. Id. ¶ 31. Upon leaving, Subgidio noticed another police cruiser occupied by Officer David Hughes. Id. ¶ 32. Officer Graiani again made the same handgun hand gesture to Subgidio, who was holding his son. Id. ¶ 33. Subgidio got in his car and "made an exaggerated showing" of securing himself with a seat belt, and securing his son in the car seat. Id. ¶ 34. Subgidio drove out of the parking lot while Officers Hughes and Graiani glared at him but did not pursue him. Id. ¶ 35.

At approximately 12:30 p.m., Subgidio returned with his son to the parking lot and parked his car. Complaint ¶ 36. As Subgidio removed the seat belt straps from his son's car seat, Officer Graiani sped into the lot and came to a halt approximately 150 feet in front of Subgidio. Id. ¶ 37. Officer Graiani jumped out of the police cruiser crouched behind the driver's side door, and pointed a gun at Subgidio, yelling, "Hands-up!" and "Don't fucking move'm Kelvin!" Id. ¶ 38 (capitalization omitted). Subgidio removed his wallet, placed it in his son's jump-suit pocket, and zippered it shut. Id. ¶ 39. After Officer Graiani repeated his order, Subgidio complied and said that his son was in the car. Id. ¶ 40. Officer Graiani ordered Subgidio to come out from behind his vehicle and towards the cruiser. Id. ¶ 41. Subgidio began complying, and told the officer that the car was his and all his papers were in order. Id. Officer Graiani said this was "not about the car or your papers Kelvin." Id. ¶ 42. When he reached Graiani, Subgidio tossed his driver's license and insurance card held together by a rubber band towards Graiani, and requested to get his infant son out of the car because the door was closed. See id. ¶ 43. Officer Graiani refused and said, "stay put or your son's a bastard Kelvin." Id. ¶ 44. Subgidio again pleaded to get his son out of the car, but Officer Graiani refused, saying, "Don't. I think you got a warrant. Don't go back to that car. Stay right fuckin' there Kelvin or I'll cap you're [sic] ass. I owe you one from last year anyway." Id. ¶¶ 45-46.

Then Officer Hughes arrived at the scene in another police cruiser, almost hitting Subgidio as he sped into the parking lot. Complaint ¶ 48. Officer Hughes came out of his cruiser and jumped onto Subgidio, who was already on the ground after falling while trying to avoid being hit by the police car. Id. ¶¶ 48-49. Subgidio was hurt by the weight of Officer Hughes, and began fighting back. Id. ¶ 50. He managed to shove and wrestle Officer Hughes off of him just as Officer Graiani attempted to tackle him. Id. ¶ 51. Subgidio pushed Officer Graiani into Officer Hughes, and then ran to open his car door to reach his son. Id. ¶ 52. Officer Hughes hit Subgidio on his right leg with a police baton as he reached the car, and Subgidio fell down screaming in severe pain. Id. ¶¶ 53-55. Both officers then beat Subgidio on the back and legs with "clubs with metal in [them] that extend out like antennae." Id. ¶ 56. Subgidio received more blows from the officers after he was handcuffed. Id. ¶ 57.

Thereafter, other Spring Valley officers arrived at the scene and began searching Subgidio's car while Officer Graiani searched his son. Complaint ¶ 58. Officer Hughes struck Subgidio and shoved him inside the back of a police car. Id. ¶ 59. Then, Subgidio's fiancée ran outside of the apartment building and demanded the release of her son. Id. ¶ 60. Officer Graiani did not release her son; instead, he removed Subgidio's wallet from the infant's pocket. Id. ¶ 61. The officer then placed the wallet, which contained $5,500, inside his own pocket. Id.

Next, Subgidio was transported to the Spring Valley Police Department. Complaint ¶ 67. Once there, he requested medical attention because he was hurt, but Officer Hughes and Graiani refused and stated:

[M]edical attention? You hurt me and you want medical attention? This ain't N.Y.C. "Homie." This be the "Valley." You'll see a doctor in Attica. Our policy here don't include medical attention for assholes. And right now that's all you are until we figure out what to charge you with.

Complaint ¶¶ 68-69. Subgidio was in severe pain from his back, the back of his head, and his right calf, which had swollen to the size of a grapefruit. Id. ¶ 73. Subgidio was booked without being told what he was being charged with, despite inquiries made to Officers Graiani and Hughes, and he was "strip searched." Id. ¶¶ 74-75. Then he was placed in a holding cell where an Officer Marciano began interrogating him. See id. ¶ 81. Marciano told Subgidio he was under arrest for the attempted murder of two police officers and possession of a stolen car. Id. ¶ 86. Marciano said, "we don't like you New York niggers up in our County. You either cooperate or be charged with a bunch of shit [that] you'll never get out of if you had Johnny Cochran himself." Id. ¶ 88. Marciano continued to interrogate Subgidio even after Subgidio repeatedly requested an attorney. See id. ¶¶ 82, 89, 92. While he was transporting Subgidio to the Rockland County Jail, Marciano kept threatening Subgidio if he did not reveal who was driving the stolen car that almost ran over Marciano and his partner, Graiani, the previous summer. Id. ¶ 91.

Once he arrived at the Rockland County Jail, Subgidio overheard Sheriff James Kralik, the Rockland County Sheriff, conversing with Officer Marciano and referring to the fact that they did not have "any paperwork on him." Complaint ¶ 94. Sheriff Kralik said, "[g]et him out of my jail until you got something to hold him with," and asked Subgidio if he was hurt and wanted medical attention. Id. ¶¶ 94, 96. Subgidio told the sheriff that he needed medical attention because he was in pain from being beaten by the officers. Id. ¶ 97. Sheriff Kralik told Officer Marciano to take him to the hospital. Id. ¶ 98.*fn1

Marciano took Subgidio to the Rockland County Narcotics Task Force Agency, whose operations were overseen by Rockland County District Attorney Michael Bongiorno. Id. ¶ 99 & p. 14. Subgidio overheard Officer Marciano telling Detective Richard Oleszczuk and another officer that there was a problem because there was no warrant and the sheriff would not take him. Id. ¶¶ 99-100 & p. 14. Oleszczuk told Officer Marciano not to worry and that a warrant could be obtained "one way or another." Id. ¶ 101 & p. 14. Officer Marciano said he would take Subgidio to the hospital to allow time for a warrant to be procured. See id. ¶ 102 & p. 14. Thereafter, Subgidio was transported to the hospital where he was treated for his injuries, and then taken back to the Rockland County Jail. Id. ¶ 105-106.

Three days later, on Monday, April 19, 1999, Subgidio was taken to the Rockland County Courthouse and brought before Judge Kelly. Complaint ¶ 107. Judge Kelly informed Subgidio that he was arrested on a warrant based on a sealed indictment that had been filed March 26, 1999, and that charged him with various narcotics offenses. Id. ¶ 108. Subgidio learned in 2004 that no such sealed indictment had been filed on March 26, 1999, and that the arrest warrant was invalid and forged. Id. ¶ 110. Subgidio alleges he was actually charged on April 16, 1999. Id. ¶ 123. The indictment charged him (falsely, he alleges) with obstructing governmental justice, aggravated assault, resisting arrest, criminal possession of a controlled substance, and criminal sale of a controlled substance. Id. Subgidio was subsequently tried before Judge Kelly, convicted on October 22, 1999, and "sentenced to an indeterminate term of imprisonment of eight to sixteen years for the drug offenses listed in the April 16, 1999 arrest report." See id. ¶¶ 132, 149. On the date of his conviction, October 22, 1999, Subgidio filed a notice of appeal to the Appellate Division. See Brief of Defendant-Appellant in People v. Subgidio, (2d Dep't) (filed Oct. 14, 2003) (available at 2003 WL 23318231).*fn2

While his direct appeal was pending, Subgidio moved pursuant to New York Criminal Procedure Law ("CPL") § 440.10(1) for an order vacating the judgment of conviction on the grounds that he was "denied the effective assistance of counsel, that his right to testify before the Grand Jury was impaired, that the prosecutor failed" to produce exculpatory materials and witness statements, "that his arrest was improper, and that the prosecutor offered false evidence." Decision & Order, dated Mar. 3, 2003 ("Judge Kelly Decision") (reproduced as Ex. A to the Affirmation of Constantine A. Speres (annexed to Notice of Motion to Dismiss Complaint, filed June 22, 2005 (Docket #6) ("State Def. Motion")), at 1. Judge Kelly denied the motion. Id. at 2.

On November 3, 2003, Subgidio's conviction was affirmed by the New York State Appellate Division, Second Department. See People v. Subgidio, 1 A.D.3d 388 (2d Dep't 2003). On March 31, 2004, the Court of Appeals denied Subgidio's application for leave to appeal. See People v. Subgidio, 2 N.Y.3d 746 (2004). On April 30, 2005, the Court of Appeals again denied leave to appeal "on reconsideration." People v. Subgidio, 4 N.Y.3d 857 (2005).

At some point after his direct appeal was decided, Subgidio sought a writ of error coram nobis to vacate his conviction on the ground of ineffective assistance of appellate counsel. On October 12, 2004, the Second Department denied the application. See People v. Subgidio, 11 A.D.3d 569 (2d Dep't 2004). On January 19, 2005, the Court of Appeals denied Subgidio's application for leave to appeal from this decision as well. See People v. Subgidio, 4 N.Y.3d 768 (2005).

While Subgidio's conviction was still on appeal in 2003, Subgidio learned of "two felony warrants for his arrest out of Spring Valley, one of which related to the case he was tried on." Complaint ¶ 120. Subgidio "later learned that the two warrants . . . were the result of the vexatious, malicious, retaliatory actions taken by Defendants Graiani, Hughes, John Doe Marciano, and Bongiorno." Id. ¶ 121. The warrants falsely accused Subgidio of "attempted assault on a police officer and criminal possession of stolen property resulting from an alleged incident wherein [Subgidio] tried to run down" Officer Graiani with his car a year before his 1999 arrest. See id. ¶ 122. Subgidio alleges that he was also falsely accused in a warrant of "obstructing governmental justice, aggravated assault, resisting arrest, criminal possession of a controlled substance [three counts], and criminal sale of a controlled substance [three counts], on April 16, 1999." See id. ¶ 123. The April 16, 1999 charges are "the very same charges named in the . . . arrest report that was suppressed by the Defendants." Id. ¶ 124.

After learning of the two warrants, Subgidio repeatedly requested Clerk Gorman to provide him with copies of the arrest warrant and indictment that led to his conviction. Complaint ¶¶ 117-18. Subgidio received a copy of the "real" indictment in 2004. Id. ¶ 114. Subgidio received copies of the arrest reports after several requests from the Spring Valley Police Department, "overseen by Defendant Furco." Id. ¶ 116. The copies Subgidio received of the warrants, the indictment, and the arrest reports revealed to him that no sealed indictment or warrant had been filed before his arrest, and that both the indictment and the warrants were "forged" documents with retroactive dates inserted in order to legitimate the grounds for the arrest listed in the arrest reports. Id. ¶¶ 110, 115, 117, 133. Subgidio attaches to his motion papers a note that Clerk Gorman sent Subgidio confirming that the warrant was not filed until April 20, 1999, and that the indictment was not filed until April 29, 1999, although Clerk Gorman's note asserts that both were signed on March 26, 1999. See Message, dated Jan. 23, 2004 (reproduced as Ex. G to Pl. Opp. Aff.); see also Complaint ¶ 145 (referring to Clerk Gorman's note). Subgidio claims that the drug offenses listed on the arrest report were the ones named in the purportedly forged indictment. See id. ¶ 133. Although the indictment is dated March 26, 1999, Subgidio seems to be claiming that the indictment was not actually created until April 19, 1999. See id.

Judge Kelly and Assistant District Attorney David Zagon allegedly conspired to withhold this fraud from Subgidio, thereby denying him access to the courts. Complaint ¶ 134. On or about April 29, 1999, Judge Kelly and Zagon had a conference at the bench regarding the indictment, which was not yet filed, and Subgidio heard Zagon ask Judge Kelly if he could amend the date of the indictment off the record. See id. ¶¶ 135-137. Subgidio objected, but then Judge Kelly and Zagon huddled closely together, and he could not hear what they said. Id. ¶ 138.

After receiving the alleged forged copies of the indictment and warrants in 2004, Subgidio brought this matter to another Assistant District Attorney, Stephanie Small, and again to Judge Kelly, who advised him -- on an unspecified date -- that the court did not keep records, and that Subgidio "had no grounds to challenge the indictment because the indictment pre-dated the warrant." Complaint ¶¶ 111, 141, 143. Subgidio claims Judge Kelly and Zagon were co-conspirators in creating forged copies of the indictment and warrant by signing the documents with a retroactive date. See id. ¶ 148.

Subgidio also claims there was another hearing on June 10, 2004. Complaint ¶ 126. After the 2004 hearing, the District Attorney allegedly conceded all of Subgidio's allegations and the court dismissed all the charges against him, id. ¶ 127, though Subgidio makes clear in a later filing that the charges on which he was convicted were not dismissed. See Pl. Supp. Mem. at 5-6.

B. Procedural History

Subgidio filed the instant Complaint on April 22, 2005. At that time, he was confined at the Fishkill Correctional Facility in Beacon, New York. Complaint ¶ 4. He seeks $1,000,000 in compensatory damages, $1,000,000 for the violation of his constitutional rights, and $1,000,000 in punitive damages. Id. ¶¶ 160-62. He also seeks to compel the defendants to return his vehicle and its contents to him, provide him with transcripts of certain proceedings, and to stop making certain assertions regarding the indictment. Id. ¶ 159.

On June 22, 2005, the State Defendants moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6), and filed supporting papers. See State Def. Motion; Memorandum of Law on Behalf of State Defendants in Support of their Motion to Dismiss the Complaint, filed June 22, 2005 (Docket #7) ("State Def. Mem."). On July 11, 2005, Subgidio filed an affirmation in opposition to defendants' motion. See Pl. Opp. Aff. On July 15, 2005, the County Defendants moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(c) and 56, and filed papers in support. See Notice of Motion to Dismiss, filed July 15, 2005 (Docket #18) ("County Def. Motion"); Brief in Support of Defendants' Motion for Summary Judgment to Dismiss the Complaint, filed July 15, 2005 (Docket #19) ("County Def. Mem."); Declaration in Support of Motion to Dismiss, filed July 15, 2005 (Docket #15). The remaining defendants, Graiani, Hughes, Marciano, Furco, and Oleszczuk, have answered the Complaint, see Answer to the Complaint, filed July 14, 2005 (Docket #14), but have not filed any motions. Pursuant to an Order of this Court, see Order, filed Oct. 25, 2005 (Docket #25), the parties submitted supplemental briefing on certain legal issues. See State Defendants' Supplemental Memorandum of Law in Further Support of their Motion to Dismiss the Complaint, filed Nov. 30, 2005 (Docket #27) ("State Def. Supp. Mem."); Supplemental Memorandum of Law in Support of Defendants' Motion for Summary Judgment to Dismiss the Complaint, filed Dec. 5, 2005 (Docket #28) ("County Def. Supp. Mem."); Supplemental Brief, dated Feb. 8, 2006 ("Pl. Supp. Mem.") (Docket #32).

Before Subgidio filed his supplemental brief, he informed the Court that he had been released from Fishkill Correctional Facility on parole on December 9, 2005. Letter from Kelvin Subgidio to Pro Se Clerk's Office, filed Jan. 12, 2006 (Docket #31). Subgidio was then rearrested by the Dutchess County Sheriff on an unrelated 1999 out-of-state misdemeanor warrant from Virginia. Id. In his supplemental brief, he lists an address in Virginia as his current address along with a prisoner identification number. Pl. Supp. Mem.


The County Defendants move under Fed. R. Civ. P. 12(c) for judgment on the pleadings and the State Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and in the alternative under Fed. R. Civ. P. 12(b)(1).*fn3 A motion made under Rule 12(c) is analyzed under the same standard applicable to a motion to dismiss for failure to state a claim under Rule 12(b)(6). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816 (1994). Accordingly, we will review the motions under the Rule 12(b)(6) standard.

A court should dismiss a complaint pursuant to Rule 12(b)(6) if it appears beyond doubt that the plaintiff can prove no set of facts in support of his complaint that would entitle him to relief. See, e.g., Strougo v. Bassini, 282 F.3d 162, 167 (2d Cir. 2002); King v. Simpson, 189 F.3d 284, 286-87 (2d Cir. 1999). The Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Koppel v. 4987 Corp., 167 F.3d 125, 130 (2d Cir. 1999); Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). The issue is not whether a plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support his or her claims. See, e.g., Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, 519 U.S. 808 (1996). The Court must "confine its consideration 'to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999).

Moreover, when considering motions to dismiss the claims of a plaintiff proceeding pro se, pleadings must be construed liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Lerman v. Board of Elections of N.Y., 232 F.3d 135, 140 (2d Cir. 2000), cert. denied, 533 U.S. 915 (2001); Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999).


A. Subgidio's Claims

Subgidio's complaint states that it was "brought for violations of the following federal laws and rights under [the] federal constitution, as well as state law tort claims for which this Court has supplemental jurisdiction": rights under [the] first, fourth, fifth, sixth, eighth, and ninth amendments; rights to due process, substantive due process, procedural due process, and equal protection of the laws; rights and the laws against abuse of process, malicious prosecution, false arrest, false imprisonment, and assault and battery.

Complaint ¶ 1. Subgidio asserts that 42 U.S.C. § 1983 provides a basis for his claims. Id.

Section 1983 provides that:

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff "must allege (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Dwyer v. Regan, 777 F.2d 825, 828 (2d Cir. 1985), modified, 793 F.2d 457 (2d Cir. 1986); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980) (listing the same two elements). Section 1983 does not in and of itself create any substantive rights; rather the plaintiff must demonstrate a violation of an independent federal constitutional or statutory right. See, e.g., Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979).

B. Substantive Due Process, Ninth Amendment, and Fifth Amendment Claims

Some of Subgidio's claims can be dismissed on their face. Subgidio's complaint does not state a substantive due process violation because one or more of the other constitutional provisions he cites "provide[] an explicit textual source of constitutional protection" against the governmental behavior he complains of and thus those provisions and "not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims." Albright v. Oliver, 510 U.S. 266, 273 (1994) (citation and some internal quotation marks omitted).

The Ninth Amendment claim fails because that amendment cannot be enforced by means of an action under Section 1983. See, e.g, Strandberg v. City of Helena, 791 F.2d 744, 748-49 (9th Cir. 1986); Sylla v. City of New York, 2005 WL 3336460, at *2 (E.D.N.Y. Dec. 8, 2005); Rini v. Zwirn, 886 F. Supp. 270, 289-90 (E.D.N.Y. 1995) (collecting cases).

To the extent Subgidio alleges defendants violated his Fifth Amendment right to an indictment by a grand jury, such a claim is not cognizable because his conviction was in state court. See Rodriguez v. Hynes, 1995 WL 116290, at *3 (E.D.N.Y. 1995) ("The right to an indictment by a grand jury for a state prosecution is dependent solely upon rights granted by the state and not the federal government, since the grand jury provision contained in the Fifth Amendment is not applicable to the states.") (citing Hurtado v. California, 110 U.S. 516 (1884)).

Accordingly, we now consider Subgidio's remaining claims under § 1983: (1) excessive force under the Fourth Amendment; (2) false arrest under the Fourth Amendment; (3) false imprisonment under the Fourth Amendment; (4) malicious prosecution under the Fourth Amendment; (5) procedural due process under the Fourteenth Amendment; (6) equal protection under the Fourteenth Amendment; and (7) abuse of process.*fn4

C. Statute of Limitations

Defendants move to dismiss Subgidio's § 1983 claims as time barred by the applicable statutes of limitations. See State Def. Mem. at 5-6; County Def. Mem. at 7-8.

In § 1983 actions, the applicable limitations period is found in the general or 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)). Accordingly, New York's three-year statute of limitations for "unspecified personal injury actions," New York Civil Practice Law and Rules § 214(5), governs § 1983 actions in New York. Id. Section 214(5) provides that an action to recover for personal injury must be brought within three years of the date of its accrual. See id. Thus, any claim that accrued prior to April 22, 2002 -- three years prior to the filing of the complaint --is time-barred.

Federal law determines the date of accrual of a § 1983 claim. Ormiston, 117 F.3d at 71. Section 1983 claims accrue when the plaintiff "knows or has reason to know of the injury which is the basis of his action." Id. (quotation marks and citation omitted). We now address the applicability of the limitations period to Subgidio's claims.

1. Excessive Force Claim

With respect to the excessive force claim, Subgidio knew or had reason to know of his injuries when he was arrested on April 16, 1999, see Complaint ¶¶ 27, 57, long before the April 22, 2002 bar date. Consequently, this claim is time-barred.

2. Equal Protection Claim

Although Subgidio does not specify the basis of his equal protection claim, this court will broadly construe the Complaint as basing that claim on the racist statements made by the officers at the time of his arrest. Complaint ¶¶ 69, 88. Subgidio was aware of the injury caused by the officers at the time of his arrest, and consequently that claim too is time-barred.*fn5

3. Abuse of Process Claim

An abuse of process claim lies against a defendant who "(1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process." Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). Subgidio claims that, through his arrest, "all Defendants" were retaliating against him for an incident that occurred one year prior to his arrest. Complaint ¶¶ 121-22, 157. This claim too is time-barred since Subgidio "kn[ew] or ha[d] reason to know of the injury" that is the basis of this claim when he was arrested and subsequently prosecuted in 1999. Ormiston, 117 F.3d at 71.

4. Remaining Claims

It is not so clear, however, whether the remaining claims are time-barred. These claims all depend to some degree upon Subgidio's allegation that he was arrested and prosecuted based on a forged indictment and forged warrants. Subgidio asserts that he did not find out about the forged indictment and warrants until 2004. Complaint ¶ 110. While it would seem clear that Subgidio knew or had reason to know of the "injury," Ormiston, 117 F.3d at 71, resulting from these alleged forgeries prior to the bar date of April 22, 2002, he might be able to take advantage of the doctrine of equitable tolling. Because it is impossible to answer that question on the current record, we will assume arguendo that there is no statute of limitations bar to Subgidio's remaining claims: malicious prosecution, false arrest, false imprisonment, and procedural due process.

D. Heck v. Humphrey

The next bar argued by defendants is the doctrine articulated in Heck v. Humphrey, 512 U.S. 477, 483-87 (1994). Heck held that in 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, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.

Heck, 512 U.S. at 486-87 (emphasis in original) (citations omitted). "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).

Heck stands for "[t]he hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments" where success in federal court "necessarily require[s] the plaintiff to prove the unlawfulness of his conviction or confinement." Amaker, 179 F.3d at 51 (quoting Heck, 512 U.S. at 486). The Second Circuit, however, has interpreted subsequent Supreme Court cases as limiting the Heck principle. In Huang v. Johnson, 251 F.3d 65, 74 (2d Cir. 2001), the Second Circuit held that "a former prisoner, no longer, 'in custody,' may bring a § 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy." Id. (interpreting Spencer v. Kemna, 523 U.S. 1, 20-21 (1998). The basis for this holding was that "where federal habeas corpus is not available to address constitutional wrongs, § 1983 must be." Id. at 75 (quoting Jenkins v. Haubert, 179 F.3d 19, 26 (2d Cir. 1999)). In limiting Heck, the Second Circuit stated that for the Heck principle to apply, habeas relief must be "available" and a plaintiff must be "in custody" for the purposes of habeas. Id. at 74-75.

At least one case has held that the date as of which these two Heck elements should be considered is the date of the filing of the complaint. See Gastelu v. Breslin, 2005 WL 2271933, at *4 (E.D.N.Y. Sept. 12, 2005). It is undisputed that at the time of the filing of the complaint, Subgidio had habeas relief "available" and he was "in custody." It was "available" because the time period for him to file a federal habeas petition based on his direct appeal did not expire at least until June 30, 2005 -- that is, one year and 90 days after March 31, 2004, when the Court of Appeals denied him leave to appeal. See 28 U.S.C. 2244(d)(1); McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003).*fn6 Subgidio was "in custody" because at the time of the filing of his complaint he was incarcerated at the Fishkill Correctional Facility. Complaint ¶ 4.*fn7

Accordingly, we now examine whether any of Subgidio's remaining claims, if successful, would "necessarily imply the invalidity" of his confinement.

1. Malicious Prosecution Claims

In order to succeed on a malicious prosecution claim under § 1983, the challenged proceeding must have terminated in plaintiff's favor. See Bonide Products, Inc. v. Cahill, 223 F.3d 141, 145 (2d Cir. 2000). Consequently, the Supreme Court specifically held in Heck that success on a malicious prosecution claim necessarily implies the invalidity of a plaintiff's conviction. See Heck, 512 U.S. at 485-87. Thus, Subgidio's malicious prosecution claim is barred by Heck and must be dismissed.

2. False Imprisonment and Arrest Claims

Similarly, false arrest and false imprisonment claims are also barred by Heck. See Duamutef v. Morris, 956 F. Supp. 1112, 1117 (S.D.N.Y. 1997). "[T]he common-law rule, equally applicable to actions asserting false arrest, false imprisonment, or malicious prosecution, was and is that the plaintiff can under no circumstances recover if he was convicted of the offense for which he was arrested." Cameron v. Fogarty, 806 F.2d 380, 387 (2d Cir. 1986), cert. denied, 581 U.S. 1016 (1987). Consequently, success on false imprisonment and false arrest claims would necessarily imply the invalidity of a conviction. Therefore, those claims in the Complaint must also be dismissed.

3. Section 1983 Procedural Due Process Claim

The remaining claim is Subgidio's procedural due process claim. While the precise nature of the claim Subgidio intends to assert under this rubric is unclear, the only claim that could survive the statute of limitations defense would be an assertion that the use of the allegedly forged indictment deprived him of due process.

The Supreme Court has made clear that Heck can apply to procedural due process claims pursuant to § 1983. Indeed, in Edwards v. Balisok, 520 U.S. 641, 643 (1997), the Supreme Court made clear that the Heck doctrine applied not only when the litigant asserts that "the result" of the challenged proceeding was wrong but also when the litigant asserts that "the procedures" used were wrong, if those procedures necessarily imply the invalidity of the judgment. Id. at 645. Thus, the question here is whether the procedural defect complained of --namely, that Subgidio was denied due process because his arrest and prosecution were based on a forged indictment -- would, if established, invalidate his confinement. No party has pointed to any case law in New York discussing what occurs where a defendant shows that he was prosecuted based on a forged indictment. But a review of New York law makes reasonably clear that a forged indictment would indeed result in the overturning of a conviction. While the CPL specifically provides that a motion to dismiss an indictment based on insufficient evidence is not grounds for appealing a conviction, see CPL § 210.30(6), there is no such restriction on a motion to dismiss an indictment based on a "defective" grand jury proceeding, see CPL § 210.35. A "defective" grand jury proceeding includes a proceeding that "fails to conform to the requirements" of the statute governing grand jury proceedings "to such degree that the integrity thereof is impaired and prejudice to the defendant may result." CPL § 210.35(5). This exception would almost certainly include an indictment that had been forged and thus was not the result of a proper grand jury proceeding. Given that the New York Court of Appeals has dismissed indictments following conviction where this statute was implicated, see, e.g., People v. Huston, 88 N.Y.2d 400, 409, 411 (1996), it seems plain that Subgidio's successful challenge to his indictment would "necessarily imply the invalidity" of his conviction. Thus, this claim too is barred under Heck.


For the foregoing reasons, defendants' motions (Docket ## 6 and 18) should be granted and the Complaint should be dismissed in its entirety as to all defendants. Specifically, Subgidio's malicious prosecution, false imprisonment, false arrest, and procedural due process claims should be dismissed under Heck without prejudice. Subgidio's remaining federal claims should be dismissed with prejudice. Because all federal claims are being dismissed, the state claims should be dismissed as well. See, e.g., Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61, 79 n.18 (2d Cir. 2003).

Finally, the dismissal should be granted without leave to replead, inasmuch as repleading would be "futile," Acito v. IMCERA Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995). The complaint provides a full narrative of Subgidio's contentions and the defects in the complaint could not be cured by repleading. See generally Hill v. Philip Morris USA, 2004 WL 1065548, at *7 (S.D.N.Y. May 11, 2004).


Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to serve and file any objections. See also Fed. R. Civ. P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. George B. Daniels at 40 Centre Street, New York, New York 10007, and to the undersigned at the same address. Any request for an extension of time to file objections must be directed to Judge Daniels. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).

GABRIEL W. GORENSTEIN United States Magistrate Judge

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