    15-1379
    Johnson v. New York City Police Dep’t


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 8th day of June, two thousand sixteen.

    PRESENT:
                      PETER W. HALL,
                      GERARD E. LYNCH,
                      DENNY CHIN,

                      Circuit Judges.
    _____________________________________

    Vandyke Johnson,

                                Plaintiff-Appellant,

                      v.                                                     15-1379

    New York City Police Department, et al.,

                                Defendants-Appellees.

    _____________________________________


    FOR PLAINTIFF-APPELLANT:                           Vandyke Johnson, pro se, New York, New York.

    FOR DEFENDANTS -APPELLEES:                         Christina F. Ante, Assistant District Attorney, New
                                                       York County District Attorney’s Office, New York,
                                                       New York, for Defendants-Appellees District
                                                       Attorney Cyrus R. Vance, Jr., and Assistant District
                                                       Attorney Karen Edelman Clarke.
                                               Zachary W. Carter, New York City Law
                                               Department, New York, New York, for
                                               Defendants-Appellees New York City Police
                                               Department, Detective Mark Fishstein, Police
                                               Officer John Russo, Police Officer David Denizard,
                                               Sergeant David Chung, New York City Department
                                               of Probation, Probation Officer Ellen Watson-Suber,
                                               City of New York.


       Appeal from a judgment of the United States District Court for the Southern District of

New York (Preska, C.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Vandyke Johnson, proceeding pro se, appeals the district court’s

judgment dismissing sua sponte his 42 U.S.C. § 1983 complaint against the City of New York

(“City”), the New York City Police Department (“NYPD”), the New York City Department of

Probation (“DOP”), NYPD officers, district attorneys, and a probation officer. The district court

dismissed his claims on the grounds that Johnson failed to state a claim, he sought monetary

damages from defendants who were immune from such relief, and his claims were barred under

Heck v. Humphrey, 512 U.S. 477, 487 (1994). We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       We review de novo a district court’s dismissal of a complaint under 28 U.S.C.

§ 1915(e)(2). Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001). The complaint must plead

“enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007), and “allow[] the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although all
allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal

conclusions.” Id.

I.     Heck Bar

       Johnson challenges the district court’s application of the Heck bar and contends that the

court misconstrued his complaint as raising a malicious prosecution claim when he actually

asserted a Brady claim. Under Heck, a claim for damages is “not cognizable under § 1983” if “a

judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or

sentence.” 512 U.S. at 487. If it would, then the claim is Heck-barred, and “must be dismissed

unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.”

Id. “Brady-based § 1983 claims necessarily imply the invalidity of a challenged conviction in the

trial (or plea) in which the Brady violation occurred” because “the remedy for a Brady violation is

vacatur of the judgment of conviction and a new trial.” Poventud v. City of New York, 750 F.3d

121, 132-33 (2d Cir. 2014) (en banc) (emphasis omitted). Thus, a Brady claim is not cognizable

under § 1983 unless the challenged conviction has been invalidated.

       Construing Johnson’s complaint in the manner he proposes, the result remains the same:

Johnson’s Brady claim is Heck-barred. Johnson has not alleged, either in his complaint or on

appeal, that his assault conviction has been invalidated in any way. To the contrary, he stated that

the state court denied his motion to vacate his conviction. On appeal, Johnson argues that

Poventud alters this result. He is incorrect. Johnson’s situation is distinguishable from that of

the plaintiff in Poventud, who secured a state court judgment vacating his conviction and then

pleaded guilty to a lesser charge and was released on time served. Id. at 126-27. By contrast,

Johnson has not alleged that he ever obtained an invalidation of his state court conviction.


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II.    Claims against NYPD and DOP

       Johnson’s claims against the NYPD and the DOP fail because those entities are not subject

to suit. Under New York Law, “[a]ll actions and proceedings for the recovery of penalties for the

violation of any law shall be brought in the name of the City of New York and not in that of any

agency, except where otherwise provided by law.” N.Y.C. Charter Ch. 17 § 396; see Jenkins v.

City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) (citing N.Y.C. Charter Ch. 17 § 396)

(affirming the district court’s dismissal of claims against the NYPD as a non-suable entity). As a

New York City agency, the NYPD may not be sued, and Johnson’s claims against it fail.

Although the district court did not address Johnson’s claims against the DOP, it is also a New York

City agency and so those claims fail for the same reason. See Thyroff v. Nationwide Mut. Ins. Co.,

460 F.3d 400, 405 (2d Cir. 2006) (holding that this Court may affirm on any basis apparent in the

record).

III.   Claims against the City

       Johnson also failed to state a claim against the City. “To hold a city liable under § 1983

for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three

elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial

of a constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (internal

quotation marks and alterations omitted); see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91

(1978). Accordingly, “a municipality cannot be made liable [under § 1983] by application of the

doctrine of respondeat superior,” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986), but

rather the plaintiff must “demonstrate that, through its deliberate conduct, the municipality was the




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moving force behind the alleged injury,” Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008)

(internal quotation marks omitted).

        Johnson fails to state a claim for municipal liability. His complaint states in a conclusory

fashion that the City’s policies led to violations of his constitutional rights, reciting the elements of

the Monell claim without providing any details that would allow the inference of any custom or

policy. Johnson argues on appeal that the district court ignored the attached documents that

purportedly showed that the NYPD fabricated evidence and that its officers abused him.

However, he does not explain how (nor is it otherwise apparent that) those documents give rise to

an inference that the City had a custom or policy that caused the purported constitutional

violations.

IV.     Claims against Prosecutors

        The district court properly dismissed Johnson’s claims against District Attorney Cyrus

Vance, Jr. and Assistant District Attorney Karen Edelman Clarke because they were entitled to

absolute immunity. See Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013) (“A

prosecutor acting in the role of an advocate in connection with a judicial proceeding is entitled to

absolute immunity for all acts ‘intimately associated with the judicial phase of the criminal

process.’” (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); see also Dory v. Ryan, 25 F.3d

81, 83 (2d Cir. 1994) (“[A]bsolute immunity protects a prosecutor from § 1983 liability for

virtually all acts, regardless of motivation, associated with his function as an advocate.”).

V.      Claims against Probation Officer Watson-Suber

        The district court’s order of dismissal did not explicitly address Johnson’s claims against

Probation Officer Watson-Suber. See ROA doc. 6. However, Johnson’s appellate brief does not


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challenge the dismissal of those claims, and so he has abandoned the issue. See LoSacco v. City of

Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (concluding that pro se appellant abandoned issue

by failing to raise it in his appellate brief).

VI.     Leave to Amend

        The district court dismissed Johnson’s complaint without granting him an opportunity to

amend or discussing whether leave to amend would be appropriate. Generally, a pro se plaintiff

should be granted at least one opportunity to amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112

(2d Cir. 2000). However, leave to amend is not required if it would be futile. See Hill v.

Curcione, 657 F.3d 116, 123 (2d Cir. 2011). Here, leave to amend would be futile because

amendment cannot cure the deficiencies in Johnson’s complaint. Moreover, all of Johnson’s

§ 1983 claims appear to be untimely. The statute of limitations for a § 1983 claim accruing in

New York is three years. See Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (citing

N.Y. C.L.P.R. § 214). Johnson’s claims arise out of his 2003 conviction, but he did not file his

complaint until 2014, well after the three-year statute of limitations expired.

        We have considered all of Johnson’s arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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