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Kenneth J. Phelan v. Christina Calabrese and John Doe

February 13, 2013


The opinion of the court was delivered by: Therese Wiley Dancks, United States Magistrate Judge


This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Kenneth J. Phelan claims that Defendants Christina Calabrese and John Doe, both Assistant District Attorneys, violated his civil rights during criminal proceedings by misrepresenting his previous criminal history and using illegal evidence. (Dkt. No. 1.) Currently pending before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 51.) For the reasons discussed below, I recommend that the Court grant Defendants' motion.


Plaintiff alleges in his verified complaint that Defendant Doe lied to former Defendant Judge Wagner during Plaintiff's July 2008 arraignment in Albany City Court. (Dkt. No. 1 at 3-4.) Defendant Doe allegedly falsely informed the judge that Plaintiff had two prior felonies when Plaintiff only had one. Id. at 4-5. Plaintiff alleges that Defendant Calabrese knowingly used illegally seized evidence against Plaintiff at his trial. Id. at 5.

Plaintiff filed this action on March 21, 2011. (Dkt. No. 1.) As is relevant here, Plaintiff requests declaratory relief and injunctive relief. Id. at 6-7. Specifically, Plaintiff requests (1) a declaration that Defendants Calabrese and Doe broke state and federal law; and (2) an injunction directing Defendants Calabrese and Doe "to stop lying in court and not use illegally seized property against any defendants . . . ." Id.

Defendants Wagner, Doe, Calabrese, and the State of New York were dismissed upon the Court's initial screening of the complaint. (Dkt. No. 7.) The Court reinstated the claims for declaratory and injunctive relief against Defendants Wagner, Calabrese, and Doe in response to Plaintiff's motion for reconsideration. (Dkt. No. 23.) The Court dismissed the claims against Defendant Wagner in response to his motion to dismiss. (Dkt. No. 49.) Thus, the only claims remaining in this action are the claims against Defendants Calabrese and Doe for declaratory and injunctive relief.

Defendants now move for summary judgment of the remaining claims. (Dkt. No. 51.) Plaintiff has opposed the motion. (Dkt. No. 56.) Defendants have filed a reply. (Dkt. No. 57.)


A. Legal Standard Governing Motions for Summary Judgment

Under Federal Rule of Civil Procedure 56, summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Id. at 273. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material*fn1 fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).

B. Legal Standard Governing Motion to Dismiss for Failure to State a Claim

To the extent that a defendant's motion for summary judgment under Federal Rule of Civil Procedure 56 is based entirely on the allegations of the plaintiff's complaint, such a motion is functionally the same as a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). As a result, "[w]here appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment." Schwartz v. Compagnie Gen. Transatlantique, 405 F.2d 270, 273 (2d Cir. 1968); accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y. 1989) ("This Court finds that . . . a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties."). Accordingly, it is appropriate to summarize the legal standard governing Federal Rule of Civil Procedure 12(b)(6) motions to dismiss.

A defendant may move to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted.

In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (emphasis added). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense. . . [W]here the well-pleaded facts do not permit the court to ...

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