Bussey v. Haynes et al, No. 2:2018cv00322 - Document 14 (E.D.N.Y. 2018)

Court Description: MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's Complaints are CONSOLIDATED pursuant to Federal Rule of Civil Procedure 42 into the first filed case, 18-CV-0322. The Clerk of Court is DIRECTED to: (1) consolidate these actions; and (2) mark the Complaint assigned docket number 18-CV-2571 CLOSED. Any future filings are to be docketed in only 18-CV-0322. Plaintiff's applications to proceed in forma pauperis ar e GRANTED, however the Complaints are sua sponte DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. The Clerk of the Court is directed to CLOSE these cases and to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 7/3/2018. C/M (Valle, Christine)

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ying conviction, a district court must dismiss the claim, unless the conviction has been invalidated. Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 2372, 129 L. 8 Ed. 2d 383 (1994). The petitioner in Heck was an inmate with a direct appeal from his conviction pending, who brought a § 1983 action for damages against state officials who, he claimed, acted unconstitutionally in arresting and prosecuting him. Drawing an analogy to the tort of malicious prosecution, the Supreme Court held that an inmate’s § 1983 claim for damages was unavailable because he could not demonstrate that the underlying criminal proceedings had terminated in his favor. Id. at 486-87. The Supreme Court in Heck enumerated four methods of demonstrating that a conviction has been invalidated: (1) the conviction was reversed on a direct appeal; (2) an executive order expunged the conviction; (3) a habeas corpus petition was issued by a federal court; or (4) an authorized state tribunal declared the conviction invalid. Id. Here, as is readily apparent and, affording the pro se Complaints a liberal construction, Plaintiff does not allege that his conviction has been invalidated.4 on his civil rights claims in Because Plaintiff’s success this case would necessarily invalidate the conviction, which is not alleged to have been reversed or vacated, Plaintiff’s Section 1983 claims are not cognizable under Heck. Thus, Heck’s bar precludes the adjudication 4 Although Plaintiff alleges in Bussey II that, under Indictment No. 1542N-17, he was “wrongly accused and the case was dismissed”, such fact is belied by his conviction following a jury trial. And, given that his Notice of Appeal was just filed on April 13, 2018, it remains pending. 9 of Plaintiff’s Section 1983 claims,5 and Plaintiff’s Section 1983 claims are thus DISMISSED pursuant to 28 U.S.C. §§ 1915(e) (2)(B)(ii), 1915A(b)(1). IV. Leave to Amend Given the Second Circuit’s guidance that a pro se complaint should not be dismissed without leave to amend unless amendment would be futile, Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000), the Court has carefully considered whether leave to amend is warranted here. Because the defects in Plaintiff’s claims are substantive and would not be cured if afforded an opportunity to amend, leave to amend the Complaint is DENIED. CONCLUSION For the reasons set forth above, Plaintiff’s Complaints are CONSOLIDATED pursuant to Federal Rule of Civil Procedure 42 into the first filed case, 18-CV-0322. The Clerk of Court is DIRECTED to: (1) consolidate these actions; and (2) mark the Complaint assigned docket number 18-CV-2571 CLOSED. filings are to be docketed in only 18-CV-0322. Any future Plaintiff’s applications to proceed in forma pauperis are GRANTED, however the Complaints are sua sponte DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b). 5 Although “§ 1983 remains a possible remedy when there is no other federal avenue through which to bring a claim”, Chillemi v. Town of Southampton, 943 F. Supp. 2d 365, 375 (E.D.N.Y. 2013), Plaintiff has the opportunity to seek habeas relief once his constitutional claims are properly exhausted in state court. 10 The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). The Clerk of the Court is directed to CLOSE these cases and to mail a copy of this Order to the pro se Plaintiff. SO ORDERED. /s/ JOANNA SEYBERT JOANNA SEYBERT, U.S.D.J. Dated: July 3 , 2018 Central Islip, New York 11

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