   15-3919
   Warren v. Fischl


                      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
   6th day of January, two thousand seventeen.

   PRESENT: RALPH K. WINTER,
            DENNIS JACOBS,
            ROSEMARY S. POOLER,
                 Circuit Judges.
   _____________________________________

   GREGORY WARREN,

                       Plaintiff-Appellant,

                v.                                  15-3919

   A.D.A. ROBERT FISCHL, et al.,

                       Defendants-Appellees,

   MATTHEW MURASKIN, et al.,




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              Defendants.*
____________________________________


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.


     Appeal from a judgment of the United States District Court
for the Eastern District of New York (Seybert, J.).
     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

     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

* We respectfully direct the Clerk of Court to amend the
caption as noted.

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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

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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.

                            FOR THE COURT:
                            Catherine O=Hagan Wolfe, Clerk




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