Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gonzalez v. Vance

United States District Court, S.D. New York

February 27, 2014



ALISON J. NATHAN, District Judge.

In 1982, Plaintiff Victor Gonzalez was convicted in New York state court for murdering a police officer and wounding another victim during the course of a robbery. He brings this action under 42 U.S.C. § 1983 seeking access to DNA testing of blood collected at the scene of the crime. Before the Court is Defendant Cyrus R. Vance's motion to dismiss Plaintiff's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Defendant's motion is granted.


On March 5, 1982, Plaintiff was convicted, after a jury trial, of two counts of second-degree murder, two counts of first-degree robbery, two counts of first-degree assault, and one count of second-degree burglary. See People v. Gonzalez, 494 N.Y.S.2d 866, 866 (1st Dep't 1985). In 1980, Plaintiff and two other men, Luis Pinto and James Marsan, had broken into an apartment when two police officers arrived on the scene. Plaintiff and Marsan fired on the officers, killing one of them and hitting one of the apartment's residents in the eye, permanently blinding her. Plaintiff himself was shot in the arm during the exchange of gunfire. Am. Compl. ¶¶ 6, 7; Def. Ex. A at 2.

Plaintiff was convicted based on numerous pieces of evidence. One was testimony that blood found at the crime scene matched Plaintiff's. Pl. Ex. A. In addition, a number of witnesses identified Plaintiff as the perpetrator in court, including three who identified him in a pre-trial lineup. Def. Ex. A at 3. One witness, Morgan Perez, saw Plaintiff fleeing from the scene and later saw him with a bloody arm and in possession of a revolver; Plaintiff admitted to Perez that he had shot a police officer. Am. Compl. ¶ 7; Def. Ex. A at 3. Plaintiff was also found throwing a revolver, later identified as the one used in the crime, out of his bathroom window when he was arrested. Def. Ex. A at 3.

Plaintiff appealed his conviction to the First Department, which affirmed, finding that his guilt "was convincingly established." Gonzalez, 494 N.Y.S.2d at 866. The New York Court of Appeals denied leave to appeal. People v. Gonzalez, 67 N.Y.2d 651 (1986).

In 2002, Plaintiff filed a pro se petition under N.Y. CPL § 440.30(1-a), which allows a prisoner seeking to vacate his conviction the opportunity to obtain DNA testing if a judge determines that such testing would create a "reasonable probability that the verdict would have been more favorable to the defendant." Plaintiff sought access to DNA testing on the blood discovered at the crime scene, which he claimed was not his. On January 31, 2003, Plaintiff's petition was denied by Justice Brenda Soloff, who concluded that whether or not the blood was Plaintiff's, the other evidence against him was so "overwhelming" that DNA testing would not create the "reasonable probability" of innocence required by New York law. Def Ex. A at 3. Plaintiff filed a similar motion in 2010, seeking to challenge Justice Soloff's conclusion based on a purported retroactive change in the law. That motion was denied. Def. Ex. B.

On January 18, 2013, Plaintiff filed a pro se Complaint in this Court under 42 U.S.C. § 1983, seeking DNA testing of the blood recovered at the crime scene. Specifically, he asks for an injunction requiring Defendant to "release[] the biological evidence for DNA testing." Compl. at 5 Although Plaintiff indicates that he is willing-through "appellate counsel"[2]-to pay for any tests, he asks the Court to order an "independent agency" to actually perform them. Am. Compl. ¶ 12; Pl. Opp. at 2. Plaintiff claims that any tests performed on the blood at the time of his trial, which were the subject of incriminating testimony, were unreliable, a product of "faulty crime laboratories in the early 80s." Pl. Resp. at 4. He suggests that modern DNA testing will furnish evidence of his innocence. Am. Compl. ¶¶ 13-15.

Defendant moved to dismiss the Complaint on June 21, 2013. In response to Defendant's motion, Plaintiff amended his Complaint, but Defendant subsequently informed the Court that he would rely on his initially filed motion. On November 4, 2013, Plaintiff filed a "response" to Defendant's motion, as well as a separate memorandum of law. Defendant did not file a reply.


When deciding a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept as true all well-pleaded facts and draw all reasonable inferences in the light most favorable to the non-moving party. See Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007). Although factual allegations are therefore afforded a presumption of truth, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Bell All. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). "To survive a motion to dismiss, the plaintiff's pleading 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 Twombly, 550 U.S. at 570).

As well as allegations in the complaint itself, a court may consider documents attached as exhibits, incorporated by reference, or relied upon by the plaintiff in bringing suit, as well as judicially noticeable matters. See Halebian v. Berv, 644 F.3d 122, 131 n.7 (2d Cir. 2011); In re Harbinger Capital Partners Funds Investor Litig., No. 12 Civ. 1244 (AJN), 2013 WL 5441754, at *15 n.6 (S.D.N.Y. Sept. 30, 2013). "If a document relied on in the complaint contradicts allegations in the complaint, the document... control[s], and the court need not accept the allegations in the complaint as true." TufAmerica, Inc. v. Diamond, ___ F.Supp.2d ___, No. 12 Civ. 3529 (AJN), 2013 WL 4830954, at *1 (S.D.N.Y. Sept. 10, 2013) (quoting Poindexter v. EMI Record Grp. Inc., No. 11 Civ. 559 (LTS), 2012 WL 1027639, at *2 (S.D.N.Y. Mar. 27, 2012)) (internal quotation marks omitted).

Finally, "[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis omitted) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)); see Watson v. Geithner, No. 11 Civ. 9527 (AJN), 2013 WL 5441748, at *3 (S.D.N.Y. Sept. 27, 2013). This policy is "driven by the understanding that [i]mplicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.