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United States Court of Appeals, Second Circuit.

GREGORY WARREN, Plaintiff-Appellant, v. A.D.A. ROBERT FISCHL, et al., Defendants-Appellees, MATTHEW MURASKIN, et al., Defendants.*


Decided: January 06, 2017

PRESENT: RALPH K. WINTER, DENNIS JACOBS, ROSEMARY S. POOLER, Circuit Judges. FOR PLAINTIFF-APPELLANT: Gregory Warren, pro se, Bronx, NY. FOR DEFENDANTS-APPELLEES: Carnell T. Foskey, Nassau County Attorney; Robert F. Van der Waag, Deputy County Attorney, Mineola, NY.


Plaintiff Gregory Warren, pro se, appeals the district court's sua sponte dismissal of his 42 U.S.C. § 1983 complaint, which asserted claims against Nassau County, the Nassau County District Attorney's Office, individual assistant district attorneys (“ADAs”), the Nassau County Court, the Nassau County Police Department, and individual police officers. This Court previously dismissed as frivolous that portion of Appellant's appeal that challenged the dismissal of his claims against the Nassau County Legal Aid Society, attorneys of that office, and several county court judges, as well as all of Appellant's claims asserted under the Racketeer Influenced and Corrupt Organizations statute. We assume the parties' familiarity with the underlying facts, the procedural history of this case, and the issues on appeal.

Appellant's complaint asserted that that his arrest, indictment, and conviction had been obtained as a result of the violation of his constitutional rights to be free from unreasonable searches and seizures and to a fair trial. He alleged that Nassau County police officers and ADAs had manufactured evidence and presented perjured testimony against him at both his grand jury proceedings and at trial, and that, after his conviction on some counts was reversed and remanded for a new trial, the prosecution agreed to dismiss the remanded charges to prevent him from presenting his proof of fabricated evidence at a new trial.

The district court sua sponte dismissed the complaint under 28 U.S.C. § 1915(e), ruling that Appellant's claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994), because success on those claims “would necessarily invalidate” his conviction on the counts that had not been reversed or vacated. App'x at 18. This appeal followed.

We review de novo a district court's sua sponte dismissal of a complaint. Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001). To recover damages under § 1983 for an unconstitutional conviction or imprisonment, a plaintiff “must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal ․ , or called into question by ․ the issuance of a [federal] writ of habeas corpus.” Heck, 512 U.S. at 486-87. In Peay v. Ajello, 470 F.3d 65, 67 (2d Cir. 2006), a § 1983 plaintiff alleged, as relevant here, that an assistant prosecutor and an assistant public defender had conspired to deprive him of his constitutional rights by fabricating evidence used at trial and suborning perjury. The district court dismissed the claims against the prosecutor based on immunity and the claims against the public defender based on the Heck bar. Id. In affirming, this Court held that, even though the plaintiff had not “in so many words challenge[d] the lawfulness of his conviction,” the Court did not doubt that his allegations of “extensive conspiratorial misconduct between defense counsel and the prosecution would render the conviction invalid if they were proved.” Id. at 68 (citation omitted).

So too here. The very premise of Appellant's claims is that the defendants conspired to fabricate evidence and testimony against him and introduced such fabricated evidence and perjury at trial. Such claims, if proved, would demonstrate the invalidity of his conviction. Appellant's unlawful search and seizure claims were also based on the alleged conspiracy between the prosecutors and police officers and their intentional manufacturing of false evidence against him, so that success on those claims would also necessarily imply that his conviction was unlawful. Appellant's claims are therefore barred by Heck.

We have considered all of Appellant's arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.


Catherine O'Hagan Wolfe, Clerk

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