United States District Court, N.D. New York
STEVEN D. BURDICK, Plaintiff,
TOWN OF SCHROEPPEL; ARMEN J. NAZARAIN, Schroeppel Town Justice; SALVATORE LANZA, Esq.; DONALD TODD, Oswego County Court Judge; JAMES G. CLOONAN, Oswego County Commissioner of Jurors; and OSWEGO COUNTY NEW YORK, Defendants.
D. BURDICK Plaintiff, pro se.
D'Agostino, U.S. District Judge.
November 21, 2016, Plaintiff Steven D. Burdick filed his
original 42 U.S.C. § 1983 civil rights complaint against
Defendants Town of Schroeppel, Armen J.
Nazarian ("Justice Nazarian"), Salvatore
Lanza, Esq. ("Lanza"), Donald Todd ("Judge
Todd"), James G. Cloonan ("Cloonan"), and
Oswego County. See Dkt. No. 1. That same day,
Plaintiff also filed a motion for leave to proceed in
forma pauperis ("IFP"). See Dkt. No.
2. Following a series of extensions, Plaintiff filed an
amended complaint on January 18, 2017, see Dkt. No.
9, and additional exhibits in support of the amended
complaint on January 25, 2017, see Dkt. No. 12.
January 31, 2017, Magistrate Judge Dancks issued an Order and
Report-Recommendation which granted Plaintiff's IFP
application and recommended that the Court (1) dismiss
Plaintiff's amended complaint without leave to amend,
see Dkt. No. 13 at 17; (2) dismiss Plaintiff's
42 U.S.C. § 1983 claims against Justice Nazarian, Judge
Todd, Lanza, Oswego County and the Town of Schroeppel with
prejudice, see id.; (3) and refrain from exercising
supplemental jurisdiction over Plaintiff's state law
claims, see id. On February 17, 2017, Plaintiff
filed his objections to the Order and Report-Recommendation.
See Dkt. No. 14. On February 17, 2017 and March 9,
2017, Plaintiff filed two additional letters in support of
the amended complaint. See Dkt. Nos. 15-16.
Currently before this Court is Magistrate Judge Dancks'
Order and Report-Recommendation. See Dkt. No. 13.
plaintiff seeks to proceed IFP, "the court shall dismiss
the case at any time if the court determines that . . . the
action or appeal (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). In making this
determination, "'the court has the duty to show
liberality towards pro se litigants, ' however,
'there is a responsibility on the court to determine that
a claim has some arguable basis in law before permitting a
plaintiff to proceed with an action in forma
pauperis.'" Griffin v. Doe, 71 F.Supp.3d
306, 311 (N.D.N.Y. 2014) (quoting Moreman v.
Douglas, 848 F.Supp. 332, 333-34 (N.D.N.Y. 1994);
see also Thomas v. Scully, 943 F.2d 259, 260 (2d
Cir. 1991) (per curiam) (holding that a district court has
the power to dismiss a complaint sua sponte if the
complaint is frivolous).
reviewing a complaint under 28 U.S.C. § 1915(e), courts
are guided by applicable requirements of the Federal Rules of
Civil Procedure. Rule 8(a) of the Federal Rules of Civil
Procedure provides that a pleading must contain "a short
and plain statement of the claim showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a)(2). While Rule
8(a) "does not require 'detailed factual
allegations, ' . . . it demands more than an
unadorned" recitation of the alleged misconduct.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)) (other citations omitted).
survive dismissal for failure to state a claim, a party need
only present a claim that is "plausible on its
face." Twombly, 550 U.S. at 570. "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." Iqbal, 556 U.S. at 678 (citation
omitted). In determining whether a complaint states a claim
upon which relief may be granted, "the court must accept
the material facts alleged in the complaint as true and
construe all reasonable inferences in the plaintiff's
favor." Hernandez v. Coughlin, 18 F.3d 133, 136
(2d Cir. 1994) (citation omitted). However, "the tenet
that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice." Iqbal, 556 U.S. at 678 (citation
party files specific objections to a magistrate judge's
order and report-recommendation, the district court
"make[s] a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1)(C). However, when a party files
"'[g]eneral or conclusory objections, or objections
which merely recite the same arguments presented to the
magistrate judge, '" the court reviews those
recommendations "'for clear error.'"
Chime v. Peak Sec. Plus, Inc., 137 F.Supp.3d 183,
187 (E.D.N.Y. 2015) (quotation omitted). After the
appropriate review, "the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C. §
sued Defendants pursuant to 18 U.S.C. §§ 241 and
242 and 42 U.S.C. § 1983 alleging a violation of his
civil rights under the First, Fifth, Sixth, and Fourteenth
Amendments. See Dkt. No. 9 at 3. Magistrate Judge
Dancks recommended dismissing Plaintiff's claims on a
number of grounds. See Dkt. No. 13 at 9.
as Magistrate Judge Dancks correctly explained, civil
lawsuits may not be used to collaterally attack criminal
convictions. See id. at 8. Rather, the Supreme Court
has held that:
[I]n 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
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)
(citing 28 U.S.C. § 2254); see also Praileau v.
Fischer, 930 F.Supp.2d 383, 396 (N.D.N.Y. 2013) (stating
"[u]nless, and until, the conviction is challenged and
adjudicated in Plaintiff's favor, Plaintiff's [42
U.S.C. § 1983] claims are barred under
Magistrate Judge Dancks found, Plaintiff's claims related
to the jury pool selection, voir dire, jury charges,
ineffective assistance of counsel, and appeals of the
previous case would necessarily imply the unlawfulness of a
valid conviction or sentence and fall within Heck.
See Dkt. No. 13 at 9. Plaintiff objects, stating
that his 42 U.S.C. § 1983 claims should not be barred
because "[a] jury found Claimant/Plaintiff was not
guilty on [the] charge of Endangering the Welfare of a
Child" and because he "is pursuing an appeal to the
Court of Appeals as to the dismissal of his appeal of
conviction Oswego County Court (Judge Todd)." Dkt. No.
14 at ¶ 1. Nonetheless, Plaintiff's convictions for
resisting arrest and cruelty to an animal have not been
overturned. Where, as here, "success on Plaintiff's
Section 1983 claims would implicate the validity of the
remaining convictions, Heck's bar
precludes their adjudication" notwithstanding the fact
that Plaintiff was not convicted on all counts. Warren v.
Fischl, No. 15-cv-2829, 2015 WL 6760230, *6 (E.D.N.Y.
Nov. 5, 2015), aff'd, ___ Fed. Appx.___, 2017 WL
66584 (2d Cir. Jan. 6, 2017) (emphasis added). Moreover, to
the extent the complaint may be deemed to assert a cause of
action under 42 U.S.C. § 1985, such claim is also barred
by Heck. See Amaker v. Weiner, 179 F.3d 48,
51-52 (2d Cir. 1999) (collecting cases).
Magistrate Judge Dancks recommended dismissing the claims
against Justice Nazarian and Judge Todd with prejudice due to
judicial immunity. See Dkt. No. 13 at 10.
"[J]udicial immunity is an immunity from suit, not just
from ultimate assessment of damages." Mireles v.
Waco, 502 U.S. 9, 11 (1991) (citing Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)). "[T]he Supreme
Court has generally concluded that acts arising out of, or
related to, individual cases before the judge are considered
judicial in nature." Bliven v. Hunt, 579 F.3d
204, 210 (2d Cir. 2009). "This immunity applies even