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Wilkins v. Herky

United States District Court, Second Circuit

May 29, 2013

MELZAR TI-SHAWN WILKINS, Plaintiff,
v.
KELLY R. HERKY, KAITLIN BAILEY and JEFFREY BANAS, Defendants.

Melzar Ti-Shawn Wilkins, pro se, 10-B-3529, Collins Correctional Facility, Collins, New York, for Plaintiff.

Anthony B. Targia, Esq., Erie County Attorney's Office, Buffalo, New York, for Defendants.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

Melzar Ti-Shawn Wilkins ("Plaintiff) alleges that Defendants, all of whom were employed by the Erie County Central Police Services Forensic Laboratory, violated his federal constitutional rights by fabricating evidence used against him in a criminal action. Now before the Court is Defendants' motion for judgment on the pleadings. (Docket No. [#15]). The application is granted and this action is dismissed.

BACKGROUND

This action involves the alleged introduction of false evidence against Plaintiff at a criminal trial. The Amended Complaint [#6] refers to the underlying criminal proceedings and to the alleged false testimony that Defendants provided against him. Accordingly, in setting forth the facts below, the Court refers to the actual trial testimony, of Defendants and other witnesses, since Plaintiff clearly referred to it in his Complaint. See, e.g., City of Providence v. Aeropostale, Inc., No. 11 Civ. 7132(CM)(THK), 2013 WL 1197755 at *8-9 (S.D.N.Y. Mar. 25, 2013) ("In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court may consider the full text of documents that are quoted in or attached to the complaint, or documents that the plaintiff either possessed or knew about and relied upon in bringing the suit.") (citations omitted); see also, Vasquez v. City of New York, No. 10 Civ. 6277(LBS), 2012 WL 4377774 at *1 (S.D.N.Y. Sep. 24, 2012). ("[A] court may consider documents attached to the complaint as an exhibit or incorporated in it by reference, ... matters of which judicial notice may be taken, or... documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.'" Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) ( quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993))."). In that regard, it would defy logic to evaluate the sufficiency of Plaintiff's pleading based solely on his subjective characterizations of what Defendants supposedly said during the underlying criminal trial, when the actual record of what they said is before the Court and undoubtedly was available to him when he drafted the pleading. See, Avon Pension Fund v. GlaxoSmithKline PLC, No. 08-4363-cv, 343 Fed.Appx. 671, 674 n. 2 (2d Cir. Aug. 24, 2009) ("Although the transcript of Dr. Buse's statement and testimony are not attached to the proposed amended complaint, they may nevertheless be considered in ruling on a Rule 12(b)(6) motion as they are incorporated by reference.") (citation omitted); see also, Bath Petroleum Storage, Inc. v. Market Hub Partners, L.P., 129 F.Supp.2d 578, 581 (W.D.N.Y., 2000) ("[A] plaintiff should not be permitted to survive a motion to dismiss and put a defendant to the trouble and expense of discovery simply by excluding highly relevant facts and documents from its complaint."), aff'd 229 F.3d 1135 (2d Cir.2000) (table), cert. den. 532 U.S. 1037, 121 S.Ct. 1998, 149 L.Ed.2d 1001 (2001).

This action arises from the arrest of Plaintiff and his wife, following two police raids on their house in Buffalo, New York, in August 2007 and December 2007. A search conducted in August 2007 turned up marijuana, cocaine, other controlled substances and a hand gun. Plaintiff was found hiding in a cubby hole in the attic, and the gun was discovered hidden under a stair. At trial, Plaintiff's defense was, in part, that the drugs found in August 2007 belonged to his wife. In that regard, in Plaintiff's defense, his wife testified at trial that she possessed the marijuana, cocaine and "Lortabs" for her own personal consumption. See, [#17-6] at 556 ("They were my Lortabs, I had a bag of marihuana. And I had probably thirty to fifty dollars' worth of crack cocaine."). Significantly, therefore, the issue at trial was not whether the items seized were actually illegal drugs, but rather, the issue was whether Plaintiff possessed them, as he was charged with doing. Plaintiff admitted possessing a certain amount of marihuana. The jury convicted Plaintiff of criminal possession of a weapon in the second degree, resisting arrest and unlawful possession of marijuana. See, People v. Wilkins, 104 A.D.3d 1156, 960 N.Y.S.2d 776 (4th Dept. 2013).

The second raid of Plaintiff's house was in December 2007, after which Plaintiff was charged with Criminal Possession of a Controlled Substance in the Third Degree, Unlawful Possession of Marihuana, Criminal Possession of a Controlled Substance in the Fourth Degree and Criminally Using Drug Paraphernalia in the Second Degree. Amended Complaint [#6] at ¶ 4-5. Apparently, the controlled substance was cocaine base, and drug paraphernalia was digital scales. On March 19, 2008, an Erie County Grand Jury indicted Plaintiff on the aforementioned charges. At trial, Plaintiff admitted being in the house at the time of the search and seizure, but he denied that any drugs found were his. To the contrary, Plaintiff suggested that the drugs may have belonged to his wife, who he indicated was a drug addict and who had overdosed that day, or possibly to his teenage son, who he had thrown out of the house for having drugs. See, [#17-7] at 587-588, 590-591. In any event, Plaintiff did not deny the presence of the drugs, though he did deny knowing whose they were. Id. at 591-593. On September 7, 2010, Plaintiff was acquitted after trial.

Plaintiff's Amended Complaint (Docket No. [#6]) represents his third attempt to set forth actionable claims arising from the foregoing events. On March 1, 2011, Plaintiff, who is currently imprisoned and proceeding pro se, filed the original Complaint [#1], purportedly on behalf of himself, his wife and child. Although difficult to understand, the original Complaint [#1] seemingly attempted to allege claims under 42 U.S.C. § 1983 arising from both of the aforementioned criminal proceedings that were instituted against him. The Complaint [#1] alleged claims of unlawful search and seizure, excessive force and malicious prosecution, against the Judges who presided over his cases, as well as his "private defense attorneys, Erie County prosecutors and Buffalo Police Department officials." Order [#3] at 1. Included as a defendant was Kelly Herky ("Herky"), whom Plaintiff identified as a "forensic serologist." The Court, acting sua sponte pursuant to 28 U.S.C. § § 1915(e)(2)(B) and 1915A(a), dismissed most of the claims and gave Plaintiff an opportunity to file an amended complaint. See, Order [#3]. The Court gave Plaintiff specific instructions regarding the deficiencies of his Complaint [#1], and indicated that the remaining claims would be dismissed unless he filed an Amended Complaint that cured those deficiencies, by April 18, 2011. Id. at 10-11.

In response to that Order, Plaintiff filed a document entitled "Notice of Amended Case." (Docket No. 4). The amended claim seemingly pertained just to the December 2007 arrest and subsequent prosecution. Included as defendants were the Commissioner of the Buffalo Police Department, several police officers, and Herky. The proposed amended pleading indicated that the police officers wrongly entered Plaintiff's home, conducted an illegal search and seizure, falsely arrested him, used excessive force and "manufactured evidence." Id. at 2. The document further alleged that Herky manufactured evidence and tampered with test results. Id. at 4.

As an aside, and to provide context, documents that Defendants disclosed during discovery, indicate that in or about 2009 Herky was fired from her job with the Erie County Crime Lab for failing to perform a test in a certain case and then lying about it. See, Docket No. [#17-3] at 457-460. Herky performed testing on some of the evidence seized from Plaintiff's residence, though after her employment was terminated, the evidence was retested by another forensic chemist Kaitlyn Bailey ("Bailey") at the request of the Erie County District Attorney. See, [#17-4] at 470-481. Another forensic chemist employed by the Erie County crime lab, Jeffrey Banas ("Banas") also performed testing on certain evidence seized from Plaintiff's home. However, neither Bailey nor Banas was mentioned in Plaintiff's "Notice of Amended Case."

After Plaintiff filed his "Notice of Amended Case, " the Court conducted another review pursuant to 28 U.S.C. § § 1915(e)(2)(B) and 1915A(a). On June 27, 2011, the Court issued a Decision and Order [#5], indicating that Plaintiff had failed to comply with the Court's previous instructions. Although the Court observed that Plaintiff had already "been given several opportunities to correct deficiencies in his pleadings, " it nevertheless granted Plaintiff until July 26, 2011 to file another amended pleading.

On July 21, 2011, Plaintiff filed the Amended Complaint [#6], which is now the operative pleading. The Amended Complaint [#6] purports to assert claims against Herky, Bailey and Banas, pursuant to 42 U.S.C. § 1983, arising from the December 2007 arrest and prosecution. The pleading alleges that Herky, Bailey and Banas were all employed at the ...


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