Opinion
CV 99-4191 (RR)
June 21, 2000
RODNEY GREEN, #97-A-7338, Fishkill, New York 12524, Plaintiff Pro Se.
HONORABLE MICHAEL D. HESS, NEW YORK CITY CORPORATION COUNSEL, New York, New York 10007, By: Catherine M. Mirabile, Assistant Corporation Counsel, Attorney for Defendants.
Memorandum and ORDER
Plaintiff Rodney Green sues Kings County District Attorney Charles J. Hynes and Assistant District Attorney Gail Ostriker pursuant to 42 U.S.C. § 1983 for violating his right to due process by maliciously prosecuting him for attempted murder and felonious assault despite knowing that he was innocent. In fact, a state jury convicted Green on the felonious assault charge, and plaintiff is currently incarcerated for that crime. There is presently pending in this court Green's petition for a writ of habeas corpus to vacate his assault conviction.
Green named his criminal defense attorney, Mark Pliskow, as a defendant. Upon notification that Mr. Pliskow had passed away, Green notified the court that he withdraws his claims against Mr. Pliskow.
Defendants moved to dismiss the complaint on the grounds of prosecutorial immunity. Upon review of the claims and the parties' papers, it appeared to this court that the Supreme Court decision in Heck v. Humphrey, 512 U.S. 477 (1994) might be relevant to the issue of dismissal. The court requested and the parties provided further briefing on this point. The court has reviewed the supplemental submissions and concludes that plaintiff's complaint must be dismissed.
Factual Background
On January 16, 1996, plaintiff and three other individuals were arrested in connection with a shoot-out that involved approximately 15 people, in which Lammal Adams was injured. Though numerous people, including Adams's mother, apparently approached the Brooklyn District Attorney's office to proclaim Green's innocence, defendants Hynes and Ostriker nevertheless prosecuted him for Attempted Murder in the Second Degree, see N.Y. Penal Law §§ 110.00, 125.25 (McKinney 1998) and Assault in the First Degree, see N.Y. Penal Law § 120.10 (McKinney 1998). After a jury convicted him of the assault charge, Green filed a motion pursuant to N.Y. Criminal Procedure Law § 330.30 to set aside the verdict on the basis of juror misconduct. Hynes and Ostriker then purportedly conspired with Green's defense attorney to blackmail him and threatened him with a guaranteed sentence of twenty-five years to life if he did not withdraw his § 330.30 motion and waive his right to appeal. In his opposition to Green's petition for a writ of habeas corpus, the District Attorney explains that Green did file a § 330.30 motion on the grounds that, inter alia a juror observed Green in custody while she was visiting another inmate at Riker's Island. The District Attorney submits that on October 28, 1997, Green withdrew his motion and waived his right to appeal in exchange for the prosecution withdrawing its motion to have Green adjudicated a persistent felony offender and consenting to a prison term not to exceed ten years.
Green now seeks $10,000,000 in damages for defendants' violations of his civil rights.
Discussion
I. Standard of Review
A motion to dismiss will not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). The court must accept all well-pleaded factual allegations in the complaint or in attached supporting documents to be true and must draw all reasonable inferences in the light most favorable to the plaintiff. See Dangler v. New York City Off Track Betting Corp., 193 F.3d at 138 (citations omitted). Where, as here, plaintiff proceeds pro se, the court is under a special duty liberally to construe the complaint. See Haines v. Kerner, 404 U.S. 519, 520 (1972);accord Sawyer v. American Federation of Gov't Employees, AFL-CIO, 180 F.3d 31, 36 (2d Cir. 1999).
II. Heck Issue
In Heck v. Humphrey, 512 U.S. at 487, the Supreme Court ruled that a § 1983 claim could not be maintained if it "necessarily impl[ies] the invalidity of [plaintiff's] conviction or sentence." Accord Jenkins v. Haubert, 179 F.3d 19, 25 (2d Cir. 1999). Instead, a plaintiff must first succeed in overturning his conviction or having it declared invalid, whether by an administrative board, state court, or in a federal habeas corpus proceeding. See id. at 486-87; accord Jenkins v. Haubert, 179 F.3d at 24-25.
Plaintiff's claim that defendants prosecuted him despite knowing that he was innocent necessarily challenges the validity of his conviction. Similarly, any injury caused by defendants' alleged conspiracy to have Green withdraw his § 330.30 motion depends on plaintiff showing that his conviction is invalid. In fact, Green has failed to have his conviction overturned before seeking § 1983 damages in this court. Indeed, his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed thereafter and is still pending. See Green v. Mazzula, CV 00-0996 (RR). Accordingly, pursuant to the holding in Heck v. Humphrey, Green's § 1983 suit for money damages must be dismissed.
III. Prosecutorial Immunity
Even if plaintiff had succeeded in overturning his conviction before filing his suit against District Attorney Hynes and Assistant District Attorney Ostriker, his case would have to be dismissed since these defendants are absolutely immune from damages under 42 U.S.C. § 1983 for activities conducted "in initiating a prosecution and in presenting the State's case." Imbler v. Pachtman, 424 U.S. 409, 431 (1976); accord Smith v. Garretto, 147 F.3d 91, 94 (2d Cir. 1998). Though Green argues forcefully that defendants' conduct was particularly egregious in violating civil rights, he fails to aver any facts that either of them acted outside of their roles as advocates for the state against Green. Accordingly, Green cannot bring a damages claim against them for their prosecution of him.
Conclusion
Green's claims under § 1983 must be dismissed in their entirety because they necessarily impugn the invalidity of his conviction and, in any event, the defendant prosecutors are absolutely immune from suit for their roles in Green's prosecution.
SO ORDERED.