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Nwobi v. Kelly

October 5, 2006

ANTHONY NWOBI, PLAINTIFF,
v.
RAYMOND KELLY, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF NEW YORK CITY POLICE DEPARTMENT; JOHN DOES 1-4, INDIVIDUALLY, AND AS UNKNOWN EMPLOYEES OF THE NEW YORK POLICE DEPARTMENT AND QUEENS COUNTY DISTRICT ATTORNEY'S OFFICE, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge

FOR ON LINE PUBLICATION ONLY

MEMORANDUM AND ORDER

Plaintiff Anthony Nwobi, a prisoner incarcerated at Green Haven Correctional Facility, brings this action pro se pursuant to 42 U.S.C. § 1983 alleging that defendants violated his civil rights when they failed to respond to his request for the release of ballistics evidence from his 1993 criminal trial.*fn1 Plaintiff seeks injunctive relief and monetary damages. For the reasons set forth below, I hereby dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted.

BACKGROUND

On December 13, 1993, plaintiff was convicted and sentenced in state court to concurrent indeterminate terms of 22 years to life imprisonment for murder in the second degree, 7-21 years imprisonment for attempted murder in the second degree, 10-20 years imprisonment for burglary in the second degree, and 7-14 years imprisonment for criminal possession of a weapon in the second degree. See People v. Nwobi, 233 A.D.2d 467 (2d Dep't 1996). On November 18, 1996, the Appellate Division, Second Department, modified plaintiff's sentence for his conviction of criminal possession of a weapon in the second degree to an indeterminate term of four-and-two-thirds to 14 years imprisonment and affirmed his conviction and sentence in all other respects. Id. Subsequently, plaintiff challenged his conviction by filing in this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order dated November 27, 2001, I denied plaintiff's petition. See Nwobi v. Artuz, No. CV-98-5036 (JG), 2001 WL 1792446, slip op. at 10 (E.D.N.Y. Nov. 27, 2001).

On October 17, 2005, plaintiff filed the instant action in the United States District Court for the Southern District of New York, alleging that he was wrongfully denied post-trial access to potentially exculpatory evidence in his criminal case. Plaintiff alleges that the bullet recovered by the medical examiner from the shooting victim's head "is slightly deformed," Compl. ¶ 4, indicating that the victim was killed by a bullet that ricocheted from a wall rather than one that was fired directly at the victim. Id. ¶ 29. Plaintiff alleges that the "deformed" bullet would provide him "with a scientifically irrefutable basis for a second degree manslaughter conviction," as opposed to murder in the second degree. Id. Plaintiff wishes to subject the bullet to "scientific testing" to "show the microscopic imprints of the objects which caused the various irregularities on the bullet." Id. ¶ 32.

Plaintiff alleges that on September 5, 2005, he submitted a letter to defendant Kelly requesting "all ballistic evidence recovered during the Police investigation on my case, including without limitation, the deformed bullet recovered from the victim and/or crime scene." Compl. ¶ 38. According to plaintiff, "[d]efendants continue to refuse to disclose the evidence and upon information and belief, will continue to do so absent judicial intervention." Id. ¶ 40.

The court construed plaintiff's action as alleging malicious prosecution, false arrest and false imprisonment claims. As plaintiff's conviction had not been reversed or otherwise called into question, the court ruled that plaintiff's claims were barred by the Supreme Court's ruling in Heck v. Humphrey, 512 U.S. 477 (1994).*fn2 Nwobi v. Kelly, et al., No. 06 Civ. 3784, slip op. at 1-3 (S.D.N.Y. May 17, 2006). The court further held that plaintiff's action was time-barred, as it was brought after the three-year statute of limitations period for initiating a § 1983 claim had lapsed. Id., slip op. at 3-4.

On July 11, 2006, plaintiff filed a motion for reconsideration pursuant to Fed. R. Civ. P. 60(b). Plaintiff argued that he was not attempting to bring malicious prosecution, false arrest and false imprisonment claims, but that his complaint was solely concentrated on obtaining access to exculpatory evidence. Mot. at 1. Plaintiff cited Osborne v. Dist. Attorney's Office for the 3rd Judicial Dist., 423 F.3d 1050 (9th Cir. 2005), and Bradley v. Pryor, 305 F.3d 1287 (11th Cir. 2002), arguing that both cases stand for the proposition that Heck does not bar § 1983 actions seeking post-trial access to evidence. Mot. at 1-2. Plaintiff also argued that his claim began to accrue on September 5, 2005, when he sent the letter to Kelly, and therefore his action was within the three-year limitations period. Id. at 2. The Southern District (1) granted plaintiff's motion, (2) reopened his action, and (3) transferred the matter to this Court pursuant to 28 U.S.C. § 1391(b), as a substantial part of the events or omissions giving rise to his claim occurred in Queens County, located in this district. Nwobi, No. 06 Civ. 3784, slip op. at 1-2 (S.D.N.Y. Aug. 15, 2006).

DISCUSSION

A. Standard of Review

Under 28 U.S.C. § 1915A, I have the authority to review a prisoner's complaint in order to identify any cognizable claims or dismiss the complaint, or any portion thereof, if it

(1) is frivolous, malicious or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief. Because plaintiff is proceeding pro se, and because he alleges civil rights violations, I am obliged to construe his pleadings liberally. McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004) (citing Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. ...


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