       15-0686
       Stegemann v. Rensselaer Co. Sheriff


                               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 “SUMMARY ORDER”). A PARTY CITING 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 3rd day of May, two thousand sixteen.

       PRESENT: RALPH K. WINTER
                RICHARD C. WESLEY,
                GERARD E. LYNCH,
                          Circuit Judges.

       _____________________________________________________

       JOSHUA G. STEGEMANN,

                                             Plaintiff-Appellant,

                      v.                                                              15-0686

       RENSSELAER COUNTY SHERIFF'S OFFICE, RENSSELAER
       COUNTY, RENSSELAER COUNTY DISTRICT ATTORNEY'S
       OFFICE, JACK MAHAR, PATRICIA RUSSO, ART HYDE,
       STEVE WOHLLEBER, WILLIAM WEBSTER, SHANE
       HOLCOMB, J.S. ROBELOTTO, MARK GERACITANO,
       SANDRA BLODGETT, JUSTIN WALREAD, JAMI PANICHI,
       AIR NATIONAL GUARD, RICHARD J. SLOMA, CHRIS

                                                      1
CLIFFORD, WARREN COUNTY SHERIFF'S OFFICE,
WARREN COUNTY, NATHAN H. YORK, CHRISTOPHER
PERILLI, NEW YORK STATE POLICE, NEW YORK STATE
POLICE, SORT, DAN KILEY, INVESTIGATOR, FULTON
COUNTY SHERIFF'S OFFICE, FULTON COUNTY,
BERKSHIRE COUNTY SHERIFF'S OFFICE, BERKSHIRE
COUNTY, THOMAS BOWLER, SCOTT COLBERT,
PITTSFIELD POLICE DEPARTMENT, MICHAEL WYNN,
TYRONE PRICE, JOHN MAZZEO, GLENN F. DECKER,
GLENN CIVELLO, MASSACHUSETTS STATE POLICE
DEPARTMENT, DAVID BRIAN FOLEY, TRAVIS
MCCARTHY, WILLIAM SCOTT, DALE GERO, MICHELLE
MASON, JOHN STEC, TODD PATTERSON, STEVE JONES,
BERKSHIRE COUNTY DISTRICT ATTORNEY'S OFFICE,
DAVID F. CAPLESS, RICHARD LOCKE, BERKSHIRE
COUNTY DRUG TASK FORCE, CELLCO PARTNERSHIP,
AT&T WIRELESS NETWORK, SUBSURFACE
INFORMATIONAL SURVEYS, INC.,

                            Defendants-Appellees.
_____________________________________________________

FOR APPELLANT:                VALDI LICUL (Susan Jewell Walsh, on the brief),
                              Vladeck, Raskin & Clark, P.C., New York, NY.

FOR APPELLEES:                JAMES A. RESILA, Carter, Conboy, Case,
                              Blackmore, Maloney & Laird, P.C., Albany, NY.

     Appeal from the United States District Court from the Northern District of
New York (McAvoy, J.).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the order of the District Court is VACATED

and REMANDED for further proceedings consistent with this order.

                                       2
      Plaintiff-Appellant Joshua G. Stegemann (“Stegemann”) appeals from an

opinion and order of the United States District Court for the Northern District of

New York (McAvoy, J.). We assume the parties’ familiarity with the underlying

facts, the procedural history, and the issues presented for review, which we

reference only as necessary to explain our decision.

      On January 8, 2015, Stegemann, acting pro se, filed a civil rights action

against the Defendants-Appellees, seeking money damages pursuant to (1) 42

U.S.C. § 1983 (“§ 1983”) and Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971) for violations of his rights under the Fourth, Fifth

and Fourteenth Amendments as a result of the unlawful search and seizure of his

person and property, and interception of his electronic communications, (2) 18

U.S.C. § 2520 and 18 U.S.C. § 2701 for intercepting and accessing his electronic

communications, (3) § 1983 for violation of his rights under the Fourth, Fifth, and

Fourteenth Amendments for the arbitrary destruction of his property, and (4)

various New York and Massachusetts constitutional and statutory provisions for

the unlawful search and seizure of his person and property, and for the

interception of his electronic communications. Stegemann initiated this civil

rights action against the Defendants-Appellees while his underlying criminal



                                          3
case was ongoing. On August 5, 2015, a jury returned a verdict finding

Stegemann guilty of all counts of the indictment in the underlying criminal case.

At the time of this appeal, no judgment of conviction had been entered against

him.

       On February 3, 2015, Magistrate Judge Christian F. Hummel

recommended (1) dismissal without prejudice of Stegemann’s Bivens and § 1983

claims under Heck v. Humphrey, 512 U.S. 477 (1994), (2) dismissal of Stegemann’s

Fourteenth Amendment destruction of property claims under Hudson v. Palmer,

468 U.S. 517 (1984), and (3) dismissal of Stegemann’s state claims for lack of

diversity jurisdiction. On February 19, 2015, the District Court accepted the

Magistrate Judge’s recommendation. In support of its decision, the District

Court offered only that it accepted the Magistrate Judge’s recommendation “for

the reasons stated in the [Magistrate Judge’s] Report-Recommendation.” App’x

59. The District Court erroneously wrote that “Magistrate Judge Hummel

recommends that Plaintiff’s Complaint be dismissed in its entirety with prejudice .

. . for failure to state a claim upon which relief can be granted.” 1 App’x 58

(emphasis added).


1
 Because the District Court adopted the reasoning of the Magistrate Judge’s Report and
Recommendation, we presume that it adopted the Magistrate Judge’s analysis as to the
                                          4
I.    Bivens and § 1983

      The District Court improperly dismissed with prejudice Stegemann’s

Bivens and § 1983 claims under Heck. Heck bars a § 1983 claim based on an extant

conviction, but it has no application to an anticipated future conviction. See

Wallace v. Kato, 549 U.S. 384, 393 (2007); Heck, 512 U.S. at 486–87. In February

2015, at the time of the District Court’s decision below, no conviction had been

entered against Stegemann—in fact, his trial was still ongoing.

      Nor is Heck applicable against Stegemann at this time. The Defendants-

Appellees equate the jury’s return of a guilty verdict with a “conviction,” but

“the word ‘conviction’ can mean either the finding of guilt or the entry of final

judgment on that finding.” Deal v. United States, 508 U.S. 129, 13 l (emphasis

added). The Deal Court went on to note that the word is not usually ambiguous,

because “all but one of the [possible] meanings [of the word ‘conviction’] is

ordinarily eliminated by context.” Id. at 131–32. We therefore look to Heck and

Wallace to identify the meaning of the word in the context relevant here. Heck for

the most part does not specify that the rule it states applies to “judgments of

conviction,” but generally speaks simply of a “conviction” as barring a § 1983

need to dismiss Stegemann’s claims under Heck, Hudson, and based on lack of diversity
jurisdiction. Accordingly, we refer to the Magistrate Judge’s analysis as that of the
District Court in the remainder of this order.
                                          5
suit that would impugn that conviction or sentence, 512 U.S. at 489, a distinction

that Defendants-Appellees seize on to suggest that “conviction” must mean

“verdict of guilt,” as distinct from the judgment that incorporates the sentence.

We conclude, however, that in the context of Heck, “conviction” refers to the

judgment rather than verdict.

      First, Heck’s civil suit was in fact barred by a final judgment of conviction,

on which he was already serving a sentence. 512 U.S. at 478–79. Thus, the facts

of Heck involved a judgment and not merely a verdict. Second, the overall tenor

of the Court’s language suggests that the Court meant the rule it announced to

apply to judgments. For example, the Court repeatedly refers to an “outstanding

criminal conviction” or “still-outstanding conviction.” E.g., id. at 486 n.5 & 487

n.7. Moreover, the Court states its holding as: “[A] § 1983 plaintiff must prove

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. at 486–87—all events that typically occur after, and operate to

invalidate, a judgment of conviction. Finally, the Court twice directly uses the

word “judgment” in connection with its holding: The Court notes that its



                                         6
conclusion is supported by “the hoary principle that civil tort actions are not

appropriate vehicles for challenging the validity of outstanding criminal

judgments," id. at 486 (emphasis added), and the Court states that the Heck bar

does not apply when the § 1983 action, “even if successful, will not demonstrate

the invalidity of any outstanding criminal judgment against the plaintiff.” Id. at

487 (emphasis added and removed).

      In Wallace, moreover, the Court again refers explicitly to “judgments” of

conviction in stating its holding that “the Heck rule for deferred accrual is called

into play only when there exists ‘a conviction or sentence that has not been . . .

invalidated,’ that is to say, an ‘outstanding criminal judgment,’” 549 U.S. at 393

(quoting Heck, 512 U.S. at 486–87 (emphasis removed)). The Wallace Court

declined to “adopt[] . . . a principle that goes well beyond Heck: that an action

which would impugn an anticipated future conviction cannot be brought until

that conviction occurs and is set aside.” Id. at 393 (emphasis removed). The

Court found that in the context of a false arrest claim, to apply Heck from the

moment of an arrest in anticipation that the arrested person would be convicted

would be speculative, and the “impracticality of such a speculative rule is

obvious.” Id. The same is true in the instant case, where the guilty verdict has



                                          7
been reached, but a sentence has not yet been imposed and a judgment of

conviction not yet entered. Post-verdict motions that can overturn the guilty

verdict are still possible, and counsel for Stegemann stated during oral argument

that such motions are planned in this case. Until sentencing occurs and a final

judgment of conviction is entered, it remains possible that the verdict will not

ripen into a judgment of conviction. It therefore makes little sense to decide that

the claim is Heck-barred. In short, the Supreme Court's discussion in the relevant

cases makes clear that the Heck bar applies only where a judgment of conviction

has been entered.

      The Defendants-Appellees equate the jury’s return of a guilty verdict

against Stegemann in August 2015 with a judgment of conviction. Yet a jury

verdict is not a judgment of conviction. Rather, a guilty verdict necessarily

precedes a judgment of conviction. See Fed. R. Crim. P. 31; Deal, 508 U.S. at 132

(1993) (finding it “unambiguous that ‘conviction’ refers to the finding of guilt by

a judge or jury that necessarily precedes the entry of a final judgment of

conviction”). A judgment of conviction is entered only after post-trial motions

have been decided. See, e.g., Fed. R. Crim. P. 29(c)(2) (“If the jury has returned a

guilty verdict, the court may set aside the verdict and enter an acquittal.”); Fed.



                                          8
R. Crim. P. 32(k)(1) (“In the judgment of conviction, the court must set forth the

plea, the jury verdict or the court's findings, the adjudication, and the sentence.”).

      Because Stegemann’s criminal trial is still ongoing, civil relief is not

categorically barred by the favorable termination rule of Heck. Moreover,

because the District Court failed to explain why, in the alternative, it dismissed

Stegemann’s Bivens and § 1983 for failure to state a claim, remand is required.

II.   Destruction of Property

      The District Court properly dismissed Stegemann’s Fourteenth

Amendment destruction of property claims under Hudson, 468 U.S. 517.

However, the District Court failed to consider Stegemann’s destruction of

property claims made under the Fourth and Fifth Amendments. Stegemann’s

pro se complaint sought “compensatory and punitive damages” for “the

deprivation of rights guaranteed by him under the 4th, 5th, and 14th

Amendments . . . .” App’x 8. After listing in detail the extensive destruction of

property allegedly committed by the Defendants-Appellees, Stegemann wrote

that the destruction was “done without a valid warrant, in violation of rights

guaranteed [to him] under the 4th, 5th, and 14th Amendments . . .” App’x 20–22.




                                          9
        The District Court should have considered and explained whether

Stegemann’s complaint states a claim under the Fourth and Fifth Amendments,

rather than simply dismissing all of his destruction of property claims for

jurisdictional reasons under Hudson, which applies only in the Fourteenth

Amendment context. See Hudson, 468 U.S. at 533. Accordingly, we remand

Stegemann’s destruction of property claims for consideration of whether he has

stated a claim under the Fourth and Fifth Amendments.

III.    State Law Claims

        The District Court held that it lacked jurisdiction over Stegemann’s state

law claims because “Stegemann has failed to achieve complete diversity” under

28 U.S.C. § 1332. On remand, the District Court should consider whether it has

supplemental jurisdiction over Stegemann’s state law claims under 28 U.S.C. §

1367.

        Because Stegemann’s underlying criminal action is ongoing, the better

course might be for the District Court to hold Stegemann’s civil action in

abeyance until a judgment of conviction has been entered in his criminal case, see

USA v. Stegemann, No. 13-357 (N.D.N.Y. Sep. 18, 2013). Indeed, the Supreme

Court has expressly noted the general appropriateness of such a course. See



                                          10
Wallace, 549 U.S. at 393–94 (noting that “it is within the power of the district

court, and in accord with common practice, to stay the civil action until the

criminal case or the likelihood of a criminal case is ended”). For this reason and

the reasons stated above, we VACATE and REMAND the judgment of the

District Court for further proceedings consistent with this order.




                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk




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