United States District Court, N.D. New York
Beaver 14-B-2131 Marcy Correctional Facility, Jr. Plaintiff,
MEMORANDUM-DECISION AND ORDER
BRENDA K. SANNES, U.S. DISTRICT JUDGE.
Horace Beaver, Jr. brought this pro se action under
42 U.S.C. § 1983, raising claims against Assistant
District Attorney Wendy Franklin and others, following her
prosecution of him for unidentified child molestation
charges. Dkt. No. 1. This matter was referred to United
States Magistrate Judge Andrew T. Baxter who, on December 16,
2016, issued an Order and Report-Recommendation recommending
that this action be dismissed in its entirely. Dkt. No. 7, p.
11. Magistrate Judge Baxter advised the parties that, under
28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), they had
fourteen days within which to file written objections to the
report, and that the failure to object to the report within
fourteen days would preclude appellate review. Dkt. No. 7, p.
12. Plaintiff has filed objections to the
Report-Recommendation. Dkt. No. 22. For the reasons set forth
below, the Report-Recommendation is adopted in its entirety.
Standard of Review
court reviews de novo those portions of the
Magistrate Judge's findings and recommendations that have
been properly preserved with a specific objection.
Petersen v. Astrue, 2 F.Supp.3d 223, 228-29
(N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A
proper objection is one that identifies the specific portions
of the [Report and Recommendation] that the objector asserts
are erroneous and provides a basis for this assertion.”
Kruger v. Virgin Atlantic Airways, Ltd., 976
F.Supp.2d 290, 296 (E.D.N.Y. 2013) (citation omitted).
Findings and recommendations as to which there was no
properly preserved objection are reviewed for clear error.
Petersen, 2 F.Supp.3d at 229. In this case,
Plaintiff has raised specific objections which this Court has
reviewed de novo.
Complaint alleges that Plaintiff's mother-in-law, Karen
Jerkes, conspired with Assistant District Attorney Wendy
Franklin to convict Plaintiff of unidentified child
molestation offenses. Dkt. No. 1, pp. 4-5. Plaintiff alleges
that ADA Franklin spoke to Plaintiff's stepdaughter
outside the presence of the girl's mother; that ADA
Franklin “made threats” to the girl after the
girl recanted, and thereby secured the girl's grand jury
testimony; that ADA Franklin pursued false charges against
the Plaintiff; and that ADA Franklin “broke verbal
agreements . . . between the parties and their
lawyers.” Id., p. 4. Plaintiff alleges claims
for unlawful imprisonment, slander, and defamation.
Id., p. 6. Plaintiff also named the District
Attorney, Gwen Wilkinson, as a defendant, but did not include
any allegations regarding her in the Complaint.
Judge Baxter recommended dismissing the Complaint with
prejudice against ADA Franklin and DA Wilkinson based on
absolute immunity and failure to state a claim. Magistrate
Judge Baxter noted that ADA Franklin's conduct in
evaluating the stepdaughter's testimony for presentation
to a grand jury was protected by absolute immunity. Dkt. No.
7, p. 6-8. In addition, with respect to DA Wilkinson,
Magistrate Judge Baxter noted that there were no facts
whatsoever alleged against her. Id., p. 6.
Magistrate Judge Baxter recommended dismissing the complaint
without prejudice as to defendant Jerkes under the doctrine
in Heck v. Humphrey, 512 U.S. 477 (1994), which
precludes civil lawsuits from being used to attack criminal
convictions. Dkt. No. 7, p. 8-10.
objects to Magistrate Judge Baxter's recommendation that
ADA Franklin is entitled to absolute immunity. Dkt. No. 22,
p. 1. Plaintiff argues that by interviewing the child
“and not allowing parent present, ” ADA Franklin
was acting “outside the scope of duty, ” and was
not entitled to immunity. Id. Plaintiff also argues
that ADA Franklin acted “outside the scope of her
duties to obtain a plea, threats, cocherion [sic], false
promises.” Id., p. 2. Plaintiff's claims
are without merit. A prosecutor “engaged in advocative
functions will be denied absolute immunity only if he acts
‘without any colorable claim of authority.'”
Bernard v. County of Suffolk, 356 F.3d 495, 504 (2d
Cir. 2004) (citation omitted). Absolute immunity does not,
for example, protect a prosecutor who makes “an
unauthorized demand for a bribe [or] sexual favors” to
initiate or drop criminal charges. Id. In this case,
there is no such unauthorized conduct alleged. DA
Franklin's interview of the child, prior to the
child's grand jury testimony, was well within ADA
Franklin's prosecutorial authority. And, as Magistrate
Judge Baxter explained, ADA Franklin's other alleged
misconduct in connection with conducting plea negotiations
and presenting evidence to the grand jury was protected by
absolute immunity. Dkt. No. 7, pp. 7-8. Finally, although
Plaintiff asks that the dismissal of DA Wilkinson be without
prejudice, he fails to state any basis for that request. Dkt.
No. 22, p. 3.
also objects to the dismissal because his “appeal is
still pending;” he is sure that his conviction will be
reversed; and a “440.10 has been filed.” Dkt. No.
22, p. 2. That, however, does not alter the result required
here. Under the Heck doctrine, “the complaint
must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been
invalidated.” Heck, 512 U.S. at 487 (emphasis
added). The Court therefore adopts Magistrate Judge
Baxter's recommendation that the case be dismissed as to
defendant Jerkes in accord with Heck.
Plaintiff asks the Court to assign him counsel for this case.
Dkt. No. 22, p. 3. While the court may ask an attorney to
represent an individual who is unable to afford counsel, 28
U.S.C. 1915(e)(1), an indigent person must demonstrate that
he is unable to obtain counsel. Hodge v. Police
Officers, 802 F.2d 58, 61 (2d Cir. 1986). In addition,
“in deciding whether to appoint counsel ... the
district judge should first determine whether the
indigent's position seems likely to be of
substance.” Id. Once this threshold is met,
the court is required to consider other criteria “such
as the factual and legal complexity of the case, the ability
of the litigant to navigate the legal minefield unassisted,
and any other reason why in the particular case appointment
of counsel would probably lead to a more just resolution of
the dispute.” Carmona v. U.S. Bureau of
Prisons, 243 F.3d 629, 632 (2d Cir. 2001). Having found
that Plaintiffs Complaint should be dismissed, the Court
cannot at this point find that Plaintiffs claims are
“likely to be of substance.” Hodge, 802
F.2d at 61. In light of the above, Plaintiffs request for
appointment of counsel is denied without prejudice.
for the foregoing reasons, it is hereby
that Magistrate Judge Baxter's Report-Recommendation
(Dkt. No. 7) is ...