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Kunz v. Brazill

United States District Court, N.D. New York

January 29, 2015

ROBERT J. KUNZ, Plaintiff,

ROBERT J. KUNZ, Marcy, NY, Plaintiff, pro se.




The Clerk has sent to the Court for review the Complaint in this action brought by Plaintiff Robert J. Kunz under 42 U.S.C. § 1983 against Assistant District Attorney, Sandra J. Doorley ("ADA Doorley"), who prosecuted him in a rape case in 2002, and Public Defender, Roger Brazill ("Brazill"), who served as Plaintiff's defense counsel. (Dkt. No. 1.) Plaintiff, who has not paid the filing fee for this action, has filed an application for leave to proceed in forma pauperis ("IFP Application"). (Dkt. No. 2.) Plaintiff has also filed a motion for appointment of counsel. (Dkt. No. 4.) Plaintiff is presently incarcerated at Marcy Correctional Facility.


As to Plaintiffs IFP Application, the Court finds that Plaintiff has demonstrated economic need and has filed the inmate authorization form required in the Northern District to proceed with this matter in forma pauperis. (Dkt. No. 3.) As a result, Plaintiff's IFP Application is granted.


Having found that Plaintiff meets the financial criteria for commencing this case in forma pauperis, and because Plaintiff seeks relief from an officer or employee of a governmental entity, the Court must consider the sufficiency of the allegations set forth in the Complaint in light of 28 U.S.C. §§ 1915(e) and 1915A. Section 1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that... the action... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).[1]

Similarly, under 28 U.S.C. § 1915A, a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint... is frivolous, malicious, or fails to state a claim upon which relief can be granted; or... seeks monetary relief against a person who is immune from such relief." 28 U.S.C. § 1915A.

In reviewing a pro se complaint, the Court has the duty to show liberality towards pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990), and should exercise "extreme caution... in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted). Therefore, a court should not dismiss a complaint if the Plaintiff has stated "enough facts to state a claim that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court should construe the factual allegations in the light most favorable to Plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). "[W]here the well-pleaded facts do not permit the court to infer more than the possibility of misconduct, the complaint has alleged but it has not "show[n] that the pleader is entitled to relief." Id. at 679 (quoting Federal Rule of Civil Procedure 8(a)(2)). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, ... it demands more than an unadorned, the-defendant-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Id. (internal quotations marks and alterations omitted). Allegations that "are so vague as to fail to give the defendants adequate notice of the claims against them" are subject to dismissal. Sheehy v. Brown, 335 F.App'x 102, 104 (2d Cir. 2009).

Where a pro se complaint fails to state a cause of action, the court generally "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco, 222 F.3d at 112 (citation omitted).


Plaintiff claims arise out of his arrest and conviction on what he describes as a rape charge brought against him in 2002. (Dkt. No. 1 at ¶ 6.) Plaintiff has alleged that his conviction was obtained by ADA Doorley in violation of his constitutional rights to due process and equal protection under Article 1, §§ 6 and 11 of the New York State Constitution and his rights to due process and equal protection under the Fifth and Fourteenth Amendments to the United States Constitution by her failure to do a rape kit or DNA analysis; denial of his Miranda rights; destruction of medical records showing that the alleged victim had lied about being raped; a Brady violation; improper treatment as a predicate felon when he was a first time offender; concealment of exculpatory evidence and a deliberate failure to search for the truth; a lack of legally sufficient evidence to convict Plaintiff; and denial of a hearing under New York Criminal Procedure Law § 730.30 to determine his mental competency to stand trial. Id. at ¶¶ 6-7 and pp. 7, 9-10, 12-16.

Plaintiff also claims that Defendant Brazill rendered ineffective assistance of counsel in violation of his Sixth Amendment rights by allowing a police officer to read from his notes at a Huntley hearing and telling Plaintiff to shut-up when he told Brazill that the officer was lying; failing to talk to witnesses or get reports Plaintiff and his wife had asked Brazill to obtain before trial; failing to act on Plaintiff's request for a § 730.30 hearing; and generally throwing the case and selling Plaintiff out "down the river without a paddle." Id. at pp. 8, 11-12.

Plaintiff requests relief in the action in the form of setting aside the judgment of conviction against him or, in the alternative, an award of damages in the amount of One-Hundred and Twenty-Million Dollars against Defendants. Id. at ¶ 8 and p. 10.


Plaintiff brings this action against Defendants pursuant to 42 U.S.C. § 1983. (Dkt. No. 1 at ¶ 1.) For the reasons explained below, the Court concludes that Plaintiff's Complaint should be dismissed on initial review for multiple reasons.

A. Statute of Limitations

The § 1983 claims asserted against Defendants by Plaintiff, and any proposed amendment thereof, are futile because the applicable statutes of limitations have expired.[2] Claims arising under 42 U.S.C. § 1983 are governed by state statutes of limitations. Wilson v. Garcia, 471 U.S. 261, 266-267 (1985). In New York, such claims are governed by the general three-year limitations period governing personal injury claims. Owens v. Okure, 488 U.S. 235, 251 (1989). Accrual of the claim, however, is a question of federal law. Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997).

Under federal law, generally, a claim arising under 42 U.S.C. § 1983 "accrues" when the plaintiff "knows or has reason to know of the injury which is the basis of his action." Pearl v. City of Long Island Beach, 296 F.3d 76, 80 (2d Cir. 2002). Plaintiff's claims accrued at the time of Defendants' alleged violation of his constitutional rights in connection with the prosecution and defense of the 2002 rape charge. Assuming Plaintiff's actual conviction did not occur until 2003, [3] the three year statute of limitations under § 1983 would have run years before Plaintiff commenced this action in December of 2014.

If Plaintiff's claim against Brazill could be construed as one for legal malpractice, the claim would be barred by the applicable three year statute of limitations for legal malpractice, which begins to run on "the day an actionable injury occurs, " regardless of when a plaintiff discovers the injury.[4] See N.Y. C.P.L.R. § 214; Protostorm, LLC v. Antonelli, Terry, Stout & Kraus, LLP, 834 F.Supp.2d 141, 155 (E.D.N.Y. 2011) (quoting McCoy v. Feinman, 755 N.Y.S.2d 693, 700 (2002)).

B. Failure to State a Claim Against Defendants under § 1983

Plaintiff has also failed to state a claim against either of the Defendants under § 1983, which provides in relevant part that

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured....

42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege that the challenged conduct (1) was "committed by a person acting under color of state law, " and (2) "deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). "The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992).

1. Brazill

It is well settled that "the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful."[5] Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted). A plaintiff must therefore allege facts showing that a defendant was either a state actor or a private party acting under color of state law. Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). Private actors have been found to engage in "state action" when they are "willful participant[s] in joint activity with the State or its agents." Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (citing United States v. Price, 383 U.S. 787, 794 (1966)).

Private attorneys, whether court appointed or privately retained, are generally not liable under § 1983. See Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) ("[I]t is well-established that court-appointed attorneys performing a lawyer's traditional functions as counsel to defendant do not act under color of state law' and therefore are not subject to suit under 42 U.S.C. § 1983.") (citation omitted); accord Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (public defender not acting under color of state law when performing attorney's traditional functions as defense counsel). Plaintiff's conclusory allegation that ADA Doorley and Brazill destroyed a doctor's report indicating that the victim had lied about being raped, without specific factual allegations in support, is not enough to make a plausible showing that Brazill wilfully participated with ADA Doorley in the violation of Plaintiff's constitutional rights. See Twombly, 550 U.S. at 570 (conclusory statements without any supporting factual allegations are insufficient to state a claim).

2. ADA Doorley

"Because a public prosecutor cannot zealously perform the prosecutorial duties of the office if compelled to work under the constant threat of legal reprisals, such official is shielded from liability for civil wrongs by the doctrine of absolute immunity." Hill v. City of New York, 45 F.3d 653, 656 (2d Cir. 1995). The Second Circuit explained in Hill, id. at 660-61, that:

In determining whether absolute immunity obtains, we apply a "functional approach, " looking at the function being performed rather than to the office or identity of the defendant. See Buckley v. Fitzsimmons, 509 U.S. 259, 268-69 (1993). State prosecutors are entitled to absolute immunity for that conduct "intimately associated with the judicial phase of the criminal process." Imbler [ v. Pachtman, 424 U.S. 409, 430 (1976)]. Thus, a district attorney is absolutely immune from civil liability for initiating a prosecution and presenting the case at trial. Id. at 430-31; Buckley, 509 U.S. at 273. Such official is also immune for conduct in preparing for those functions; for example, evaluating and organizing evidence for presentation at trial or to a grand jury, Buckley, 509 U.S. at 273, or determining which offenses are to be charged. See Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993). Prosecutorial immunity from § 1983 liability is broadly defined, covering "virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate." Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).

Absolute immunity is defeated only when a prosecutor is engaged in investigative, rather than prosecutorial, functions. Bernard v. County of Suffolk, 356 F.3d 495, 502-03 (2d Cir. 2004). Although Plaintiff has alleged that ADA Doorley failed to order a rape kit or DNA testing, there are no allegations in the Complaint that she was involved in, or as prosecutor had a duty to Plaintiff to be involved in, the investigation.[6] (Dkt. No. 1 at ¶ 6.) ADA Doorley is, therefore, entitled to absolute immunity with regard to the claims asserted against her in the Complaint.

C. Heck v. Humphrey

Plaintiff's § 1983 claims are also barred under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), in which the Supreme Court held that

in order to recover damages for 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 cognizant under § 1983. (emphasis in original).

Plaintiff's various claims regarding the investigation surrounding his being charged with rape, the prosecution of the charge, ineffective assistance of defense counsel represent challenges that fall squarely within the ambit of Heck. Were Plaintiff to succeed on any theory espoused by him, he would necessarily call into question the validity of the conviction he is challenging in this action. Because Plaintiff has failed to show that his conviction has been overturned, his § 1983 claims are barred under Heck unless and until such time as Plaintiff's conviction is overturned or his sentence is invalidated.

D. Conclusion Regarding Plaintiff's § 1983 Claims

Plaintiff has failed to state a § 1983 claim against Defendants Brazill and ADA Doorley Brazill because public defenders do not act under color of state law, Polk Cnty., 454 U.S. at 325, and ADA Doorley because she is entitled to prosecutorial immunity with regard to the claims asserted by Plaintiff. Even if Plaintiff had stated claims against Brazill and ADA Doorley under § 1983, or for legal malpractice against Brazill, or could do so if granted leave to amend, those claims would be barred by the applicable statutes of limitations. Plaintiff's § 1983 claims are also presently barred under Heck.

Ordinarily, given Plaintiff's pro se status, the Court would recommend that he be given an opportunity to amend prior to an outright dismissal. See Cuoco, 222 F.3d 112. However, in this case the Court finds that amendment would be futile, both because of the bar imposed by the statutes of limitations, and the bar imposed by Heck, absent a future invalidation of Plaintiff's conviction or sentence.

E. Claims Under the New York State Constitution

Plaintiff claims Defendants violated his rights to due process and equal protection under Article 1, §§ 6 and 11 of the New York State Constitution. Inasmuch as the Court is recommending that Plaintiff's federal claims against Defendants be dismissed, it also recommends that the District Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims without prejudice subject to refiling in state court and to reconsideration in the event the District Court does not accept this Court's recommendation for dismissal of Plaintiff's § 1983 claims without leave to amend. See Kolari v. New York Presbyterian Hosp., 445 F.3d 118, 120 (2d Cir. 2006).

F. Motion for Appointment of Counsel

Plaintiff has moved for appointment of counsel. (Dkt. No. 4.) Even if the Court were not recommending dismissal of Plaintiff's Complaint without leave to amend, a more fully developed record would be necessary before an assessment can be made as to whether counsel should be appointed. See Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (court must look to the likelihood of merit of the underlying dispute in determining whether to appoint counsel). Therefore, the motion is denied. The denial is without prejudice so that Plaintiff will not be precluded from making a subsequent motion for appointment of counsel in the event the District Court allows the action to proceed.

G. Docket Nos. 7-10

Docket Nos. 7-10 are January 16, 20, and 23, 2015, letters from Plaintiff containing a second request for a default judgment against Defendants (Dkt. Nos. 7, 8 and 10), asking to have Defendants arrested for tampering with evidence in his criminal trial (Dkt. No. 7), and allowing Plaintiff time before the Court to show the Court papers relevant to his claim. (Dkt. Nos. 7-10.) As explained to Plaintiff in this Court's Text Order denying his initial motion for a default judgment, this case is presently under initial review pursuant to 28 U.S.C. § 1915. (Dkt. No. 6.) Defendants have not been served with the Complaint and have no present obligation to respond to it. The Court denies Plaintiff's newly filed motions for a default judgment as well as the other relief requested in Docket Nos. 7-10 without prejudice.

WHEREBY, it is hereby

ORDERED that Plaintiff's application to proceed in forma pauperis is GRANTED (Dkt. No 2); and it is

RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED as follows:

(1) that Plaintiff's § 1983 claims be dismissed without leave to amend as barred under Heck v. Humphrey, 512 U.S. 477 (1994) and the applicable statutes of limitations, and for failure to state a claim; and

(2) the District decline to exercise supplemental jurisdiction over Plaintiff's state law claims under Article 1, §§ 6 and 11 of the New York State Constitution; and it is hereby

ORDERED that Plaintiff's motion for appointment of counsel (Dkt. No 4) is DENIED without prejudice; and it is further

ORDERED that Plaintiff's motions for a default judgment and other relief requested in Docket Nos. 7-10 are DENIED without prejudice; and it is further

ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with copies of the unpublished decisions in Mercier v. Pataki, No. 1:06-CV-0435 (GLS/DRH), 2006 WL 1133198 (N.D.N.Y. Apr. 21, 2006); Holloway v. MacFarland, No. 07-2032 (AET), 2007 WL 3376683 (D.N.J. Nov. 13, 2007); and O'Neil v. Bebee, No. 5:09-CV-1133 (GTS/DEP), 2010 WL 502948 (N.D.N.Y. Feb. 10, 2010) in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.

Everett Holloway, Bridgeton, NJ, pro se.

Keith S. Massey, Jr., Office of the N.J. Attorney General, Trenton, NJ, for Defendants.



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