Kevilly v. New York

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Roman KEVILLY, Plaintiff-Appellant, v. The State of NEW YORK, Nassau County Police Department, Floral Park Police Department, Nassau County District Attorneys Office, Nassau County Courts, Department of Correctional Services, New York State Division of Parole, New York State Attorneys General Office and Nassau County; Michael Schirano and Terrence Hagan, sued in their individual capacities; Robert Tedesco, Gaspare Desimone, G. Quinn, John Doe-Siudak, Grace C. Diaz, Christopher Devane, Martin I. Silberg, deceased, Alan L. Honorof, Mark Diamond, Lawrence J. Schwarz, Russ Tedesco, Denis E. Dillon, Sheryl A. Channer, K.F. Kakretz, D. Kinderman, Zelda Jonas, Nancy Williams, Melvin L. Hollins, Michael Liccione, Glenn S. Goord, Bruce D. Alpert, Nell A. Mallen, S. Carter, L. Jolma, Frank Marlenga, James V. Murray, Eliot Spitzer, and Peter H. Schiff, in their individual and official capacities, Defendants-Appellees.

No. 09-4635-pr.

United States Court of Appeals, Second Circuit.

Dec. 21, 2010.

Court presents a special situation. Although B & L has nominally sued the Commissioner, its suit was purely defensive, seeking to parry the Commissioners collection thrust. One could imagine a system where, instead of the Commissioner issuing a notice of deficiency and the taxpayer suing to contest it, the Commissioner simply sued the taxpayer, who then would defend either on jurisdictional grounds or on the merits. Such a system would differ little, from our perspective at least, from the procedure in this case. In all relevant respects this case is equivalent to Concerned Citizens.

B & L only briefly tries to explain the harm it would suffer from the Tax Courts ruling. It argues that the ruling it sought would have foreclosed any further attempt to assess the alleged deficiencies, while the Tax Courts dismissal of its cases “may not permanently foreclose the Commissioner from later asserting the same tax deficiencies by issuing new Notices.” But the possibility that the Commissioner may someday issue a new deficiency notice raising the same issues does not create a current, concrete injury that B & L may litigate today with respect to deficiency notices that have been ruled invalid by the Tax Court and in effect withdrawn by the Commissioner. Indeed, the chance that the Commissioner will ever impose such a new notice is highly contingent. For such an eventuality to occur, the Commissioner would have to win a reversal of the partnership-level case in this Court or in the Supreme Court. Then, because the Tax Court decided the partnership-level case based on the statute of limitations, the partnership (and B & L) could still press its unrelated argument about the 1993 no-adjustment letter in that case on remand, and might succeed. If that argument failed in the Tax Court, B & L would be able to seek a further appeal to this Court (and on to the Supreme Court). Only if B & L lost on all these issues in all these fora could the Commissioner then reissue the notices of deficiency that the Tax Court found invalid here. We find this possibility too remote to make the case fit to hear now.

For these reasons, we dismiss.

* The Clerk of Court is directed to amend the caption to read as shown above.

Marion R. Buchbinder, Assistant Solicitor General (Andrew M. Cuomo, Attorney General, Barbara D. Underwood, Solicitor General, Richard Dearing, Deputy Solicitor General, on the brief), State of New York, New York, NY, for Defendants-Appellees State of New York, New York State Attorney General‘s Office, Nassau County Courts, Department of Correctional Services, New York State Division of Parole, Eliot Spitzer, Zelda Jonas, Bruce D. Alpert, Alan L. Honorof, Russ Tedesco, Glenn S. Goord, Melvin L. Hollins, D. Kinderman, S. Carter, Nancy Williams, Frank Marlenga, and L. Jolma.

John E. Ryan (John M. Donnelly, of counsel), Ryan, Brennan & Donnelly LLP, Floral Park, NY, for Defendants-Appellees Floral Park Police Department and Gaspare Desimone.

Robert A. Sparer, Clifton Budd & DeMaria, LLP, New York, NY, for Defendant-Appellee Michael Schirano.

Roman Kevilly, Oneida Correctional Facility, Rome, NY, pro se.

PRESENT: JOSE A. CABRANES, ROSEMARY S. POOLER, and RICHARD C. WESLEY, Circuit Judges.

SUMMARY ORDER

Plaintiff-Appellant Roman Kevilly, pro se and incarcerated, appeals from the District Courts judgment dismissing his civil rights complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In his complaint, Kevilly asserted claims of false arrest, malicious prosecution, false imprisonment, and other violations under 42 U.S.C. §§ 1983 and 1985(3), and the Racketeer Influenced and Corrupt Organizations Act (“RICO“), 18 U.S.C. § 1961 et seq. These claims arise from Kevillys December 1996 New York State conviction for robbery and kidnapping, and continued detention. We assume the parties famil-iarity with the underlying facts, procedural history of the case, and issues on appeal.²

We review de novo a district courts dismissal of a complaint for failure to state a claim under Rule 12(b)(6). Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009). “In conducting this review, we assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009)). In addition, “when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally,” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (quoting McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)), and must interpret them “to raise the strongest arguments that they suggest,” Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (quotation marks omitted).

The District Court erred in dismissing as untimely Kevillys § 1983 claims regarding the alleged insufficiency of the charging information, prosecutorial misconduct, and the conspiracy between his court-appointed defense counsel and the Nassau County District Attorneys Office, as well as his various claims arising from his criminal prosecution. In the circumstances presented, Kevillys claims would imply the invalidity of his conviction or sentence, and could therefore be brought only if his 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 courts issuance of a writ of habeas corpus.” See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). Thus, because none of these prerequisites is in place, Kevillys claims have not yet accrued, and it is uncertain that they ever will. See id. at 489-90, 114 S. Ct. 2364.

Despite this error, we may “affirm the judgment of the district court on any basis for which there is a record sufficient to permit conclusions of law, including grounds upon which the district court did not rely.” Pollara v. Seymour, 344 F.3d 265, 268 (2d Cir. 2003) (quotation marks omitted). Because Kevillys § 1983 claims imply the invalidity of his conviction or sentence, they are not cognizable unless he has shown that his state court conviction 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 courts issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87, 114 S. Ct. 2364. Kevilly does not allege that his conviction or sentence has been invalidated or otherwise questioned; moreover, his state court direct appeal and habeas proceedings have been unsuccessful. See, e.g., People v. Kevilly, 249 A.D.2d 328, 671 N.Y.S.2d 296 (1998), leave denied, 92 N.Y.2d 927, 680 N.Y.S.2d 468, 703 N.E.2d 280 (1998); Kevilly v. Connell, No. 06-cv-5672, 2009 WL 750227 (E.D.N.Y. Mar. 19, 2009). Therefore, these claims are barred under Heck.³

Concerning Kevillys false arrest and unlawful imprisonment claims—which are not barred by Heck, see Wallace v. Kato, 549 U.S. 384, 394–95, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007)—they are indeed untimely, although for different reasons than those found by the District Court. It is well-established that New Yorks three-year limitations period for personal injury actions, New York State Civil Practice Law and Rules (“N.Y. C.P.L.R.“) § 214(5), not the one-year limitations period for actions arising from false imprisonment, N.Y. C.P.L.R. § 215(3), governs § 1983 claims. See Okure v. Owens, 816 F.2d 45, 49 (2d Cir. 1987). Although the district court erred in dismissing Kevillys false arrest and unlawful imprisonment claims as time-barred under N.Y. C.P.L.R. § 215(3), these claims are nevertheless time-barred under the applicable three-year statute of limitations because he was detained pursuant to legal process in 1996 and he did not file his complaint until October 2002. See Wallace, 549 U.S. at 397, 127 S. Ct. 1091; Okure, 816 F.2d at 49. Furthermore, on appeal, Kevilly does not raise any argument that the applicable statute of limitations should be tolled and the record does not reflect that he suffered from any disability that would have tolled the statute of limitations. Insofar as Kevillys other claims on appeal arising prior to October 1999 are not barred by Heck, they are also untimely for substantially the same reasons.

Lastly, we review a district courts decision on leave to amend for abuse of discretion. See Green v. Mattingly, 585 F.3d 97, 104 (2d Cir. 2009). “A district court has abused its discretion if it [has] based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence or rendered a decision that cannot be located within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (quotation marks and alterations omitted). “Although Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend shall be freely given when justice so requires, it is within the sound discretion of the district court to grant or deny leave to amend.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). While the District Court erred in its conclusion that all of Kevillys claims in his amended complaint were time-barred, amendment would have nevertheless been futile. See Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003). As explained, Kevillys claims in his original complaint were either barred under Heck or untimely. Moreover, his claims in his proposed amended complaint regarding, among other things, ineffective assistance of counsel, the false testimony of witnesses and police officers, malicious prosecution, and evidence tampering would also be barred under Heck. See Heck, 512 U.S. at 484, 486-87, 114 S. Ct. 2364.

We have considered Kevillys remaining contentions on appeal and find them to be without merit.

For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.

Notes

2

As a preliminary matter, because the district court revoked Kevillys in forma pauperis status, the Clerks Office is directed to file Kevillys pending motion for leave to proceed in forma pauperis. We grant the motion nunc pro tunc.

3

For the same reasons, Kevillys § 1985 conspiracy claim is barred by Heck. See Amaker v. Weiner, 179 F.3d 48, 51-52 (2d Cir. 1999).

Case Details

Case Name: Kevilly v. New York

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 21, 2010

Citation: 410 F. App'x 371

Docket Number: 09-4635-pr

Court Abbreviation: 2d Cir.