09-4635-pr
Kevilly v. New York

                          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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 21st day of December, two thousand and ten.

PRESENT:

       JOSÉ A. CABRANES,
       ROSEMARY S. POOLER,
       RICHARD C. WESLEY ,
              Circuit Judges.

-------------------------------------------x

ROMAN KEVILLY ,

                       Plaintiff-Appellant,

       v.                                                             No. 09-4635-pr

THE STATE OF NEW YORK , NASSAU COUNTY POLICE
DEPARTMENT, FLORAL PARK POLICE DEPARTMENT,
NASSAU COUNTY DISTRICT ATTORNEY ’S OFFICE , NASSAU
COUNTY COURTS, DEPARTMENT OF CORRECTIONAL
SERVICES, NEW YORK STATE DIVISION OF PAROLE , NEW
YORK STATE ATTORNEY GENERAL’S 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 ,

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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.*

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FOR APPELLANT:                                       Roman Kevilly, pro se, Oneida Correctional Facility, Rome,
                                                     NY.

FOR APPELLEES:                                       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.

       Appeal from an October 8, 2009 judgment entered in the United States District Court for
the Eastern District of New York (Denis R. Hurley, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be AFFIRMED.

       Plaintiff-Appellant Roman Kevilly, pro se and incarcerated, appeals from the District Court’s
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 Kevilly’s December 1996 New York State conviction for robbery and kidnapping, and




          *
              The Clerk of Court is directed to amend the caption to read as shown above.
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continued detention. We assume the parties’ familiarity with the underlying facts, procedural history
of the case, and issues on appeal.2

        We review de novo a district court’s 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, 129 S. Ct. 1937, 1950
(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 Kevilly’s § 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 Attorney’s Office, as
well as his various claims arising from his criminal prosecution. In the circumstances presented,
Kevilly’s 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 court’s issuance of a writ of habeas corpus.” See Heck v. Humphrey, 512
U.S. 477, 486-87 (1994). Thus, because none of these prerequisites is in place, Kevilly’s claims have
not yet accrued, and it is uncertain that they ever will. See id. at 489-90.

         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 Kevilly’s § 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 court’s issuance of a writ of habeas corpus.”
Heck, 512 U.S. at 486-87. 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, 671 N.Y.S.2d 296 (App. Div. 2d Dep’t 1998), leave




         2
            As a preliminary matter, because the district court revoked Kevilly’s in forma pauperis status, the Clerk’s Office
is directed to file Kevilly’s pending motion for leave to proceed in forma pauperis. We grant the motion nunc pro tunc.
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denied, 92 N.Y.2d 927 (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 Kevilly’s false arrest and unlawful imprisonment claims—which are not barred
by Heck, see Wallace v. Kato, 549 U.S. 384, 394-95 (2007)— they are indeed untimely, although for
different reasons than those found by the District Court. It is well-established that New York’s
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 Kevilly’s 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; 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 Kevilly’s 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 court’s 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 Kevilly’s 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, Kevilly’s 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.

         We have considered Kevilly’s remaining contentions on appeal and find them to be without
merit.



         3
          For the same reasons, Kevilly’s § 1985 conspiracy claim is barred by Heck. See Amaker v. Weiner, 179 F.3d 48,
51-52 (2d Cir. 1999).
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For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.




                                    FOR THE COURT,
                                    Catherine O’Hagan Wolfe, Clerk of Court




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