DUNBAR v. Muzile, Defendant. (2020)

SUMMARY ORDER

Plaintiff-appellant Timolyn Deneen Dunbar, proceeding pro se, appeals from the district court's sua sponte dismissal of her amended complaint after she failed to respond to the court's order to show cause why this action should not be dismissed under Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).¹ Under Heck, a plaintiff may not assert a § 1983 claim for damages for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid,” unless the plaintiff first “prove[s] that the 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.² We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review the sua sponte dismissal of a complaint de novo. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). While “we liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest,” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017), pro se appellants must still comply with Rule 28(a) of the Federal Rules of Appellate Procedure, which “requires appellants in their briefs to provide the court with a clear statement of the issues on appeal,” Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998). We “normally will not ․ decide issues that a party fails to raise in his or her appellate brief.” Id.; see also LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995) (“We need not manufacture claims of error for an appellant proceeding pro se․”); Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”).

Dunbar's appellate brief addresses the reasons that she believes that the defendants violated her rights. But it does not address the district court's reasons for dismissal, namely that she failed to respond to the court's order to show cause why the initial complaint should not be dismissed under Heck, and that the amended complaint appeared to be barred by the Heck doctrine for the same reasons as the initial complaint. Dunbar has thus waived any challenge to the district court's order. See Moates, 147 F.3d at 209.

We have considered all of Dunbar's arguments on appeal and have found in them no grounds for reversal. Accordingly, we AFFIRM the judgment of the district court and DENY Dunbar's motion for in forma pauperis status as unnecessary.

FOOTNOTES

1.   Dunbar also moves, in a motion styled as a motion for “judicial notice,” for leave to proceed in forma pauperis. This motion is DENIED as unnecessary because the district court granted in forma pauperis status and did not revoke it.

2.   Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.