Ali v. John Dow

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ABDUL N. ALI,

Plaintiff,

V. 8:24-CV-0128

(DNH/CFh)

DET. ARTHOR SHATTUCK, DET. JOHN DOE,

ADA SARAH CARPENTER, ST. LAWRENCE

COUNTY DISTRICT ATTORNEY,

Defendants.

APPEARANCES:

Abdul N. Ali

23-B-4295

Orleans Correctional Facility

3531 Gaines Basin Road

m| Albion, New York 14411

Attorneys for plaintiff

CHRISTIAN F. HUMMEL

U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION & ORDER

|. In Forma Pauperis Application

Presently before the Court is plaintiff pro se Abdul Ali’s application for leave to

proceed in forma pauperis (“IFP”) and review of his amended complaint’ pursuant to 28

U.S.C. §§ 1915(e)(2), 1915A. See Dkt. Nos. 3-4, 6. Upon review of plaintiff's IFP

application, the undersigned determines that plaintiff financially qualifies for leave to

1 Plaintiff filed his original complaint on January 29, 2024. See Dkt. No. 1. Plaintiff filed his amended

complaint on May 17, 2024. See Dkt. No. 6. Plaintiff wrote the word “supplement” on the form complaint.

See id. He also included a cover letter referring to the filing as a “supplemental complaint.” Dkt. No. 6-1.

However, an amended complaint supersedes and replaces an original complaint in its entirety. Further, a

plaintiff may not incorporate by reference any portion of an original complaint into an amended complaint.

Thus, as the operative pleading is the amended complaint, the Court will base its review of the sufficiency

of the complaint on the amended complaint only. See Dkt. No. 6.

proceed IFP. Plaintiff is advised that, despite being granted IFP status, he is still

required to pay any costs and fees he may incur in this action, including, but not limited

to, copying fees, transcription fees, or witness fees.

ll. Initial Review

a A. Legal Standards

28 U.S.C. § 1915 provides that, when a 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). “Thus, it is a court’s responsibility to determine that a plaintiff

m| MAY properly maintain his complaint before permitting him to proceed further with his

action.” Praileau v. Fischer, 930 F. Supp. 2d 383, 394 (N.D.N.Y. 2013).

Where, as here, the plaintiff proceeds pro se, “the court must construe his [or

her] submissions liberally and interpret them to raise the strongest arguments that they

suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)

(internal quotation marks omitted). As the Second Circuit stated,

[tIhere are many cases in which we have said that a pro se

m litigant is entitled to special solicitude, that a pro se litigant’s

submissions must be construed liberally, and that such

submissions must be read to raise the strongest arguments

that they suggest. At the same time, our cases have also

indicated that we cannot read into pro se submissions claims

that are not consistent with the pro se litigant’s allegations,

or arguments that the submissions themselves do not

suggest, that we should not excuse frivolous or vexatious

filings by pro se litigants, and that pro se status does not

exempt a party from compliance with relevant rules of

procedural and substantive law....

Id. (internal quotation marks, citations, and footnote omitted); see also Sealed Plaintiff v.

Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (“On occasions too numerous to

count, we have reminded district courts that when [a] plaintiff proceeds pro se, ...a

court is obligated to construe his pleadings liberally.”) (internal quotation marks and

citations omitted). Thus, the Court is not required to accept unsupported allegations

| that are devoid of sufficient facts or claims. Although detailed allegations are not

required at the pleading stage, the complaint must still include enough facts to provide

the defendants with notice of the claims against them and the grounds upon which

these claims are based. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell

Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Ultimately, the plaintiff must plead

“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

570; see Iqbal, 556 U.S. at 678 (“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.”).

“The [Second Circuit]’s ‘special solicitude’ for pro se pleadings has its limits,

because pro se pleadings still must comply with . . . the Federal Rules of Civil

Procedure [(‘Fed. R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019

m| WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d

Cir. 1994)).2 Specifically, Rule 8 provides that a pleading which sets forth a claim for

relief shall contain, among other things, “a short and plain statement of the claim

showing that the pleader is entitled to relief.” FED. R. Civ. P. 8(a)(2). “The purpose...

is to give fair notice of the claim being asserted so as to permit the adverse party the

2 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have

been provided to plaintiff.

opportunity to file a responsive answer, prepare an adequate defense and determine

whether the doctrine of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54,

55 (N.D.N.Y. 1999) (internal quotation marks and citations omitted). Rule 8 also

requires the pleading to include:

(1) a short and plain statement of the grounds for the court’s

jurisdiction... ; and

° (3) a demand for the relief sought... .

FeD. R. Civ. P. 8(a). Although “[nJo technical form is required,” the Federal Rules make

clear that each allegation contained in the pleading “must be simple, concise, and

direct.” Feb. R. Civ. P. 8(d).

Further, Rule 10 provides in pertinent part that:

[a] party must state its claims or defenses in numbered

paragraphs, each limited as far as practicable to a single set

of circumstances. A later pleading may refer by number to a

paragraph in an earlier pleading. If doing so would promote

clarity, each claim founded on a separate transaction or

occurrence—and each defense other than a denial—must

be stated in a separate count or defense.

FED. R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of

identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189

F.R.D. at 55 (internal quotation marks and citations omitted). A complaint that fails to

comply with the pleading requirements “presents far too a heavy burden in terms of

defendants’ duty to shape a comprehensive defense and provides no meaningful basis

for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D.

352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does

not comply with the requirement that it be short and plain, the court has the power, on

its own initiative .. . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42

(2d Cir. 1988) (citations omitted). However, “[d]ismissal . . . is usually reserved for

those cases in which the complaint is so confused, ambiguous, vague, or otherwise

unintelligible that its true substance, if any, is well disguised.” Id. (citations omitted).

B. Amended Complaint

Plaintiff states that “[o]n September 18, 2023[,] before the Hon. G. Hobbs the

petitioner accepted a plea to a Court that lacks jurisdiction. There was a want of due

process.” Dkt. No. 6 at 5. Plaintiff contends that he was “[c]harged with criminal

possession in the 3 degree with the intent to sell, in violation of Penal law 220.16.” Id.

Plaintiff as sentenced to three years of imprisonment and two years of post-release

supervision. See id.

Plaintiff elaborates that he was arrested without a warrant on August 3, 2022.

Compl. at 5. Plaintiff was “take [sic] to and illegally held at the Hudson County Jail.” Id.

Two “unknow [sic] police officer of Hudson County New Jersey” arrested plaintiff. Id.

“Police Officers of St. Lawrence County Canton New York came to Hudson County Jail

to pick the plaintiff up.” Id. at 6. Plaintiff contends that these officers “used a false

unfiled warrant to pick up the plaintiff and took the plaintiff to St. Lawrence County Jail.”

Plaintiff appeared before St. Lawrence County Supreme Court Judge Gary Hobbs at

an unspecified date after arriving to St. Lawrence County Jail. See id. Plaintiff was

“informed of his charges, byt never provided any accusatory instrument.” Id. Plaintiff

“was charged but never arriagned [sic] on the charges of conspircy [sic] 2", intent to

perform a Class A Felony and criminal possession control [sic] substance in the 3°

degree with intent to sell a Class B Felony.” Id. “Plaintiff was released on the state [sic]

day without being arriagned [sic]. The Court released the Petitioner and made a new

Court date.” Id. Plaintiff “was again picked up and illegally extradicted [sic] from

Hudson County Jail and taken without an official warrant from a Court of Compentent

[sic] Jurisdiction. The plaintiff was illegal [sic] taken back to St. Lawrence County Jail.”

Id.

On April 4, 2023, plaintiff appeared before Judge Hobbs for the second time.

| See Dkt. No. 6 at 7. Judge Hobbs assigned plaintiff Robert Fix as his defense attorney.

See id. Mr. Fix “would not provide copies of the Discovery. Counsel would only

demand that the Plaintiff Accept a plea.” Id. Plaintiff “maintains that he broke no law.

The plaintiff [sic] position is that he was kidnap [sic]. Arrested without a warrant or

probable cause.” Id. Plaintiff contends, “[t]he entire proceedings was [sic] a sham, a

pretense of prosecution. The [sic] Directed that The Grand Jury True Bill of Indictment,

| all discovery and motions to be filed with St. Lawrence Supreme Court Clerk.” Id.

Plaintiff contends that the People and the defense attorney failed to comply with the

Court order to file with the St. Lawrence Supreme Court clerk. See id. at 7. Instead,

they “would file the papers with the Court Clerk under Index number 24515, the secret

dual file illegal system. The True Bill was received by the County Clerk but never

properly filed with the Supreme Court Clerk.” Id. Plaintiff argues, “[t]he actions taken

| by the people was [sic] in bad faith. The entire proceed [sic] was a pretense of

prosecution with the consent of the defense counsel.” Id. Plaintiff contends that Mr. Fix

“was adverse to his client and was apart of the conspiracy.” Id. “The prosecution

served in the capacity as investigators” who “instructed the police to illegally go to new

Jersey to illegally bring him to St. Lawrence County.” Id.

Plaintiff contends that the above conduct was violative of his rights under the

Fourth, Fifth, Sixth, Tenth, and Fourteenth Amendments. See Dkt. No. 6 at 7.

Plaintiff contends that he

has postconviction proceedings in the trial court. The Plaintiff motion to

vacate the Judgment went unopposed because there is no Forum. The

People did not execute the sentence and the Plaintiff shall proceed to the

Federal Court on the writ of Habeas Corpus because the State Court is

° ineffective, and there is no other remedy at law other to call it into question

by the Petition for the Writ of Habeas Corpus 28 U.S.C. 2241.

Dkt. No. 6 at 7. Plaintiff contends that “there is no evidence of a crime the people is

[sic] moving in bad faith, and must answer to these serious allegations. Because the

prosecution is a lie (Mooney violation),” Dkt. No. 6 at 8. Plaintiff contends that his

extradition from New Jersey “violated the due process of law. The violation of

Extradition Law can serve as basis for 1983 Action, where official violate Extradition

. procedure protected by the Constitution and Law of the United States 42 USC 1983.”

Id. at 8 (citing Harden v. Pataki, 320 F.3d 1289 (11" Cir. 2003)).

Plaintiff further states that he was “falsely arrested . . . without probable cause or

a warrant for arrest” and seeks “to be award [sic] monetary damages against the Office

for five Million dollars.” Dkt. No. 6 at 9. On the next page of his form complaint, he

states that he seeks “[t]o be compensated for the illegal Action of Police, and

Prosecutors in the amount of three (3) million dollars.” Id. He also states he seeks

“compensation against the Police and Prosecutors for false arrest, abuse of process,

malious [sic] prosecution with punitive damages.” Id. at 10. Plaintiff attaches to his

amended complaint an “Order Upon Arraignment” dated August 3, 2022, signed by

Hon. Craig P. Carriero, County Court Judge.” Dkt. No. 6 at 1-16.

C. Initial Review of amended Complaint

1. Heck v. Humphry

As discussed above, plaintiff's claims stem from his criminal conviction

and sentence. Plaintiff states that he “accepted a plea” on September 18, 2023. See

Dkt. No. 6 at 4. The New York State DOCCS inmate look up confirms that plaintiff has

been convicted of criminal possession of a controlled substance in the third degree.

See N.Y.S. DOCCS Look Up, https://nysdoccslookup.doccs.ny.gov (last visited May 22,

2024).

As the District of Connecticut recently laid out:

In Heck, the Supreme Court held that in order for a plaintiff “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

i 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.” Id. at 486-87. The court further held that “[a]

claim for damages bearing that relationship to a conviction or sentence

that has not been so invalidated is not cognizable under § 1983.” Id. at

487 (emphasis in original). For this reason, “the Second Circuit has

recognized that the statute of limitations for a malicious prosecution claim

brought pursuant to § 1983 begins to run at the time a criminal proceeding

terminates in favor of the accused.” Bakowski v. Kurimai, No. 3:98-cv-

2287 (DJS), 2000 WL 565230, at *5 (D. Conn. Mar. 20, 2000), aff'd, 387 F.

App'x 10 (2d Cir. 2003) (citing DiBlasio v. City of New York, 102 F.3d 654,

658 (2d Cir. 1996)). Thus, under Heck and its progeny, if a conviction has

not been invalidated previously, a Ҥ 1983 action is barred ... no matter the

target of the prisoner's suit . . . if success in that action would necessarily

demonstrate the invalidity of confinement or its duration.” Wilkinson v.

Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in original).

Zografidis v. Richards, No. 3:22-CV-00631 (AVC), 2022 WL 21756775, at *7 (D. Conn.

July 6, 2022), report and recommendation adopted (Oct. 7, 2022), aff'd, No. 22-3197,

2023 WL 7538211 (2d Cir. Nov. 14, 2023).

Plaintiff has failed to demonstrate that his conviction or sentence has been

“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.” Zografidis, 2022 WL 21756775, at *7. Plaintiff's claims call into question his

arrest, prosecution, and conviction are barred by Heck. “These are precisely the sort of

| claims that are contemplated by Heck, as they would imply the validity of his conviction.

‘Claims for both false arrest and malicious prosecution both call into question the validity

of a conviction, because false arrest requires a lack of probable cause and malicious

prosecution requires probable cause and a termination of the proceedings in the

[inmate’s] favor.” Id. at *8 (quoting McFadden v. New York, No. 10-cv-141 (RRM /

CLP), 2011 WL 6813194, at “4 (E.D.N.Y. Dec. 28, 2011) and citing Warren v. Fischl,

m|674 F. App'x 71, 72 (2d Cir. 2017) (summary order) (“applying Heck to preclude

prisoner's claim against police officers and prosecutors for unreasonable search and

seizure and fabrication of evidence).”(additional citations omitted)). “Here, because

Plaintiff has failed to show that his conviction has been overturned (and, in fact,

declares he is currently incarcerated as a result of the above-referenced constitutional

violations for a crime he did not commit) his § 1983 claims are barred under Heck

unless and until such time as Plaintiff's conviction is overturned or his sentence is

invalidated.” Godley v. Onondaga Cnty., No. 6:16-CV-01419 (DNH/TWD), 2017 WL

2805162, at *6 (N.D.N.Y. Jan. 6, 2017), report and recommendation adopted, No. 5:16-

CV-1419 (DNH/TWD), 2017 WL 2804944 (N.D.N.Y. June 28, 2017).

2. Absolute Prosecutorial Immunity

Plaintiff seeks to sue “the people,” “the prosecution,” and/or “prosecutors.” DKkt.

No. 6 at 6-7, 10. Although plaintiff does not identify any specific prosecutors in the body

of the amended complaint, in the caption, he identifies one, ADA Sarah Carpenter. See

id. at 1. In the body of the complaint, plaintiff contends that his constitutional rights were

violated by “St. Lawrence County District Attorney.” Id. at 10.

° Plaintiff contends that the “prosecutors” violated his Fourth, Fifth, Sixth,

Tenth and Fourteenth Amendment rights for “false arrest, abuse of process, [and]

mali[c]ious prosecution.” Dkt. No. 6 at 10. Plaintiff also appears to claim that the

“prosecutors” conspired with the police to deprive him of his due process rights in

connection with his extradition from New Jersey to St. Lawrence County. Dkt. No. 6 at

8. Plaintiffs claims against the St. Lawrence County District Attorney and Assistant

m| District Attorney Carpenter are barred by absolute prosecutorial immunity.

Although plaintiff's complaint does not clarify the context of all of plaintiff's claims,

against St. Lawrence County District Attorney and Assistant District Attorney Carpenter,

what is clear is that plaintiff's claims against these defendants relate to non-investigative

actions he alleges they have taken in their official capacities as prosecutors.

Accordingly, they are entitled to absolute prosecutorial immunity.

Further, to the extent plaintiff may wish to sue the St. Lawrence County District

attorney and ADA Carpenter in their official capacities, such claims would be barred by

Eleventh Amendment immunity. See Ying Jing Gan v. City of New York, 996 F.2d 522,

536 (2d Cir. 1993) (quoting Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988), cert.

denied, 488 U.S. 1014 (1989)) (“When prosecuting a criminal matter, a district attorney

in New York State, acting in a quasi-judicial capacity, represents the State not the

10

county.’”); see Gentry v. New York, No. 21-CV-0319, 2021 WL 3037709 (GTS/ML), at

*6 (N.D.N.Y. June 14, 2021) (recommending dismissal of the plaintiffs claims against

the defendant assistant district attorneys in their official capacities as barred by the

Eleventh Amendment), adopted by, 2021 WL 3032691 (N.D.N.Y. July 19, 2021).

Accordingly, it is recommended that plaintiff's claims against St. Lawrence County

District Attorney and ADA Carpenter be dismissed with prejudice as they are immune

from suite under section 1983. See 28 U.S.C. 1915(e), 1915A.

3. Municipal Defendant

Plaintiff has named two police officers/detectives as defendants in the caption.

However, the body of the complaint may be interpreted as seeking to bring claims, more

generally, against the St. Lawrence County Police Department. Although plaintiff's

Complaint is barred by Heck, the undersigned notes that any claims against the police

department would also be barred as alleged in the amended complaint.

It is well established that [a] police department is an administrative arm of

[a] municipal corporation, and cannot sue or be sued because it does not

exist separate and apart from the municipality and does not have its own

legal identity.” Kelly v. Colonie Police Dep't, No. 8:20-cv-721 (GTS/CFH),

2020 WL 6465448, at *3 (N.D.N.Y. Sept. 21, 2020), report and

recommendation adopted, No. 8:20-cv-0721 (GTS/CFH), 2020 WL

6445901 (N.D.N.Y. Nov. 3, 2020) (internal quotation marks omitted); see

also DeLee v. New York, No. 5:20-cv-549 (GTS/ATB), 2020 WL 4288455,

at *4 (N.D.N.Y. June 12, 2020), report and recommendation adopted, No.

5:20-cv-0549 (GTS/ATB), 2020 WL 4284131 (N.D.N.Y. July 27, 2020)

(collecting cases dismissing claims against police departments). “Section

1983 provides that an action may only be maintained against a ‘person’

who has deprived another of rights under the ‘Constitution and Laws.”

Hester-Bey v. Police Dep't, No. 12-cv-3320 (KAM), 2012 WL 4447383, at

*1 (E.D.N.Y. Sept. 24, 2012). A municipal Police department is not a

“person” within the meaning of Section 1983 and is, therefore, not a

proper defendant. Id.

Zografidis, 2022 WL 21756775, at *9 (D. Conn. July 6, 2022).

11

A plaintiff may only proceed with claims against a municipal defendant, such as a

police department, if he or she alleges that his or her constitutional rights were violated

as a result of an official municipal policy or custom. See Monell v. Dep't of Soc. Servs.,

436 U.S. 658 (1978); see also Bruker v. City of N.Y. 337 F. Supp. 2d 539, 556 (S.D.N.Y.

2004) (quoting Anthony v. City of N.Y., 339 F.3d 129, 140 (2d Cir. 2003)). Plaintiff

makes no such claims. Thus, to the extent that a liberal reading of the amended

complaint suggests that plaintiff may be seeking to raise claims against the St.

Lawrence County Police Department, it is recommended that such claims be dismissed

for failure to state a claim upon which relief can be granted and as barred by Heck for

the reasons discussed above.

4. Claims against plaintiff's defense attorney

Although plaintiff does not name his defense attorney as a defendant in the

caption and in the “relief sought” states that he wishes to sue the prosecution and the

police officers, he makes several references within the complaint to his defense counsel

“conspiring” with the prosecution and police. To the extent plaintiff wishes to sue his

attorney, plaintiff he cannot proceed under section 1983. “To prevail on a claim under

42 U.S.C. § 1983, a plaintiff must allege (1) that some person has deprived him of a

| federal right, and (2) that the person who has deprived him of that right acted under

color of state law.” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005). “[P]rivate individuals

... cannot be sued under 42 U.S.C. § 1983 absent a plausible allegation that they

acted under color of state law.” Basile v. Connolly, 538 F. App'x 5, 7 (2d Cir. 2013)

(summary order). Additionally, “such claims are not plausible because attorneys,

whether court appointed or privately retained, are generally not state actors for

12

purposes of Section 1983.” Wilson v. Flanders, No. 3:23-CV-00263 (DNH/TWD), 2023

WL 3251992, at *4 (N.D.N.Y. May 4, 2023), report and recommendation adopted, No.

3:23-CV-263, 2023 WL 3496372 (N.D.N.Y. May 17, 2023) (citing Polk Cty. v. Dodson,

454 U.S. 312, 325 (1981); Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997)).

Accordingly, to the extent plaintiff may seek to bring a section 1983 claim against his

° attorney, it is recommended that this claim be dismissed.

Second, to the extent plaintiff may wish to allege that his defense counsel

engaged in a conspiracy with the prosecutors and/or police officers to deprive him of his

constitutional rights, pursuant to 42 U.S.C. § 1983, “[a] conclusory allegation that a

private individual acted in concert with a state actor does not constitute a plausible

allegation that the private individual acted under color of state law.” Wilson, 2023 WL

m| 3251992, at *4 (citing Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002);

Asensio v. DiFiore, No. 18-CV-10933 (RA), 2019 WL 4392743, at *8 (S.D.N.Y. Sept. 13,

2019); Bornschein v. Herman, 304 F. Supp. 3d 296, 301 (N.D.N.Y. 2018)). Thus, to the

extent plaintiff seeks to bring a conspiracy claim against his defense counsel, it is

recommended that such claim be dismissed. As the conspiracy claim is tied to his

claims that Mr. Fix conspired with the police officers and prosecutors to deprive him of

his constitutional rights, this claim is also barred by Heck for the reasons discussed,

supra. Accordingly, it is recommended that such dismissal be without prejudice to

renew should plaintiff be able to overcome the Heck bar in the future, but without leave

to amend in this proceeding.

To the extent plaintiff wishes to bring a legal malpractice claim against his

attorney, this would be a state law claim. See Delap v. Mackey, No. 1:21-CV-0847

13

(LEK/CFH), 2021 WL 5991702, at *7 (N.D.N.Y. Sept. 15, 2021), report and

recommendation adopted as modified, No. 1:21-CV-0847 (LEK/CFH), 2021 WL

5354762 (N.D.N.Y. Nov. 17, 2021) (citing Ramos v. Zucker, No. 14-CV-5694 (SLT)

(RER), 2014 WL 5363778, at *2 (E.D.N.Y. Oct. 20, 2014)). Here,

The only possible basis for this Court's subject matter jurisdiction over

plaintiffs legal malpractice claim would d be supplemental jurisdiction

o pursuant to 28 U.S.C. § 1367. However, “[t]he district court may decline to

exercise supplemental jurisdiction over a claim . . . [i]f the district court has

dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §

1367(c)(3); Spiegel v. Schulmann, 604 F.3d 72, 78 (2d Cir. 2010). As the

undersigned concluded that it does not have subject matter jurisdiction, the

undersigned finds that declining supplemental jurisdiction over plaintiffs’

state law legal malpractice claim is proper.

Delap, 2021 WL 5991702, at *7. In sum, because plaintiffs amended complaint

presents no valid federal claim, it is recommended that the Court decline to review this

State law legal malpractice claim pursuant to its supplemental jurisdiction.

5. Conspiracy Claim against Prosecutors, Police Officers

Plaintiff appears to contend that defense counsel Mr. Fix, the “prosecutors,” and

the “police officers,” conspired to deprive him of his constitutional rights. See dkt. no. 6

at 7 919. As indicated above, plaintiff sets forth no more than a single, conclusory

allegation that his defense counsel, Mr. Fix, “was apart [sic] of the conspiracy.” Dkt. No.

at 7. Plaintiff's vague allegation of conspiracy involving the prosecutors and police

also does not suffice. “Wholly conclusory claims of conspiracy are properly dismissed

sua sponte on initial review.” Hawthorne v. City of Albany, No. 1:17-CV-00716

(GTS/TWD), 2017 WL 3822112, at *7 (N.D.N.Y. July 25, 2017), report and

recommendation adopted sub nom. Hawthorne v. Ruecker, No. 1:17-CV-0716

(GTS/TWD), 2017 WL 4351520 (N.D.N.Y. Oct. 2, 2017) (citing Johnson v. Goord, 12 F.

14

App’x 22, 23 (2d Cir. 2000) (summary order)). Further, as plaintiff has failed to allege,

in his current pleading, a valid constitutional violation, his claim that the prosecutors,

police officers, or defense counsel conspired with each other to violate his Fourth, Fifth,

Sixth, Tenth, and Fourteenth Amendment rights must fail “because there can be no

conspiracy to violate an individual’s constitutional right if there were no underlying

constitutional violations.” Dougal v. Lewicki, No. 1:23-CV-1167 (DNH/CFH), 2024 WL

1959668, at *5 (N.D.N.Y. May 2, 2024), adopted in part 2024 WL 2350003 (N.D.N.Y.

May 23, 2024). Accordingly, it is recommended that plaintiff's apparent conspiracy

claim against the prosecutors and police officers pursuant to 42 U.S.C. § 1983 be

dismissed. As noted above, any conspiracy claims are tied into his claims that

defendants violated his constitutional rights — claims that are currently barred by Heck.

m| Thus, it is recommended that such dismissal be without prejudice to renew should

plaintiff be able to overcome the Heck bar in the future, but without leave to amend in

this proceeding.

6. Habeas Corpus

Plaintiff references habeas corpus relief. See Dkt. No. 6 (“. . . Plaintiff shall

proceed to the Federal Court on the writ of Habeas Corpus... .”). However, plaintiff

May not seek habeas corpus relief through this section 1983 proceeding. Plaintiff is

advised that if he wishes to seek habeas corpus relief, he must properly commence a

separate habeas corpus proceeding pursuant to 28 U.S.C. § 2241. See, e.g., Simmons

v. Fitzpatrick, No. 5:22-CV-00757 (LEK/TWD), 2022 WL 7666973, at *3 (N.D.N.Y. July

29, 2022), report and recommendation adopted, No. 5:22-CV-00757 (LEK/TWD), 2022

WL 7508816 (N.D.N.Y. Oct. 13, 2022). Indeed, “habeas corpus is the exclusive remedy

15

for a state prisoner who challenges the fact or duration of his confinement and seeks

immediate or speedier release, even though such a claim may come within the literal

terms of § 1983.” Heck, 512 U.S. at 481. Accordingly, insofar as plaintiff is seeking to

file a motion for writ of habeas corpus, it is recommended that such claim be dismissed

without prejudice to plaintiff seeking to separately commence a habeas corpus

o proceeding, but with prejudice to amend in this proceeding.

IV. Conclusion

Wherefore, it is hereby ORDERED, that plaintiff's IFP application, Dkt. Nos. 3, 4,

is GRANTED; and it is

RECOMMENDED, that the Clerk be directed to update the docket and caption in

this case to reflect the defendants as those identified within the Amended Complaint:

Det. Arthor Shattuck, Det. John Doe, Assistant District Attorney Sarah Carpenter, St.

Lawrence County District Attorney, and Robert Fix, Esq., and terminate as defendants

John Dow, John Dow #2, John Dow #3, and John Dow #4, see generally dkt. no. 6; and

it is further

RECOMMENDED, that plaintiff's amended complaint, Dkt. No. 6, be DISMISSED

in its entirety against all defendants, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii),

1915A(b)(1), but that the dismissal be without prejudice to plaintiff renewing his claims®

3 This recommendation does not apply to any claims the undersigned recommends to be dismissed with

prejudice.

16

only in the event he can show favorable termination of his sentence/conviction pursuant

to Heck’; and it is further

RECOMMENDED, that plaintiff's claims against the St. Lawrence County District

Attorney and Assistant District Attorney Sarah Carpenter in their official capacities be

DISMISSED WITH PREJUICE, as barred by Eleventh Amendment immunity; and it is

further

RECOMMENDED, that all claims against St. Lawrence County District Attorney

and Assistant District Attorney Sarah Carpenter in their individual capacities be

DISMISSED WITH PREJUDICE as barred by absolute prosecutorial immunity; and it is

further

RECOMMENDED, that, insofar as plaintiff may seek habeas corpus relief, such

request is DISMISSED without prejudice to seek to bring a separate habeas corpus

proceeding but without opportunity to renew in this proceeding; and it is further

RECOMMENDED, that, the Court decline to exercise supplemental jurisdiction

over plaintiff's potential legal malpractice claim against his defense attorney, Robert Fix,

Esq., and such claims be DISMISSED without prejudice’ to plaintiffs ability to seek to

pursue legal malpractice claims in an appropriate state court;® and it is

ORDERED, that the Clerk serve this Report-Recommendation & Order, along

with the unpublished cases, upon plaintiff in accordance with the Local Rules.

4 See Simmons, 2022 WL 7666973, at *4 (recommending dismissal without prejudice, in the event the

plaintiff could show, at some point in the future, favorable termination pursuant to Heck, but without

opportunity to amend because of futility).

5 The undersigned recommends dismissal without prejudice in the event plaintiff may, in the future, be

able to demonstrate favorable termination pursuant to Heck and, at that time, may wish to renew and

seek to cure the defects of his conspiracy claim.

8 The undersigned takes no position on the merits or validity of any legal malpractice claim.

17

Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) 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

(14) DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984

F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d

| 45 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 6(a), 72.’

Dated: May 29, 2024

Albany, New York

Christian F. Hummel

U.S. Magistrate Judge

ry

7 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three

(3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17)

days from the date the Report-Recommendation and Order was mailed to you to serve and file

objections. See FED. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday,

or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday,

Sunday, or legal holiday. Id. § 6(a)(1)(c).

18