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17-486 - Boria v. Hicks et al


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17-486 - Boria v. Hicks et al
June 14, 2017
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ORDER AND REPORT-RECOMMENDATION re 3 MOTION for Leave to Proceed in forma pauperis filed by Jose Boria.ORDERED that Plaintiffs IFP Application (Dkt. No. 3) is GRANTED; and it is hereby RECOMMENDED that Plaintiffs complaint (Dkt. No. 1) be DISMISSED on initial review under §§ 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A; and it is further RECOMMENDED that Plaintiffs § 1983 claim against Defendant Hicks for ineffective assistance of counsel, which would otherwise be subject to dismissal without prejudice under Heck, be DISMISSED WITH PREJUDICE on the grounds that Hicks was not acting under color of state law as Plaintiffs court-appointed counsel; and it is further RECOMMENDED that Plaintiffs § 1983 conspiracy claim against Defendant Hicks, be DISMISSED WITHOUT PREJUDICE on the grounds that it is presently barred under Heck; and it is further RECOMMENDED that Plaintiffs § 1983 conspiracy claim against Defendant Kapperman, which would otherwise be subject to dismissal without prejudice under Heck, be DISMISSED WITH PREJUDICE on prosecutorial immunity grounds; and it is further RECOMMENDED that Plaintiffs §1983 claim against The People of the State of New York for failure to provide legal assistance and an interpreter, which would otherwise be subject to dismissal without prejudice under Heck, be DISMISSED WITH PREJUDICE on the grounds that it is barred under the Eleventh Amendment; and it is further RECOMMENDED that Plaintiffs § 1983 claim against Erie County be DISMISSED WITHOUT PREJUDICE and with leave to amend for failure to state a claim. Objections to R&R due by 7/3/2017 Case Review Deadline 7/5/2017. Signed by Magistrate Judge Therese Wiley Dancks on June 14, 2017. (Copy served via regular) (khr)
July 12, 2017
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DECISION and ORDER adopting Report and Recommendations re 6 Report and Recommendations. ORDERED that Plaintiffs complaint (Dkt. No. 1) is DISMISSED on initial review under §§ 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A; and it is further ORDERED that Plaintiffs § 1983 claim against Defendant Hicks for ineffective assistance of counsel, which would otherwise be subject to dismissal without prejudice under Heck v. Humphrey, 512 U.S. 477 (1994), is DISMISSED WITH PREJUDICE on the grounds that Hicks was not acting under color of state law as Plaintiffs court-appointed counsel; and it is further ORDERED that Plaintiffs § 1983 conspiracy claim against Defendant Hicks is DISMISSED WITHOUT PREJUDICE on the grounds that it is presently barred under Heck; and it is further ORDERED that Plaintiffs § 1983 conspiracy claim against Defendant Kapperman, which would otherwise be subject to dismissal without prejudice under Heck, is DISMISSED WITH PREJUDICE on prosecutorial immunity grounds; and it is further ORDERED that Plaintiffs § 1983 claim against The People of the State of New York for failure to provide legal assistance and an interpreter, which would otherwise be subject to dismissal without prejudice under Heck, is DISMISSED WITH PREJUDICE on the grounds that it is barred under the Eleventh Amendment; and it is further ORDERED that Plaintiffs § 1983 claim against Erie County is DISMISSED WITHOUT PREJUDICE and with leave to amend for failure to state a claim. IT IS SO ORDERED. Signed by Senior Judge Thomas J. McAvoy on July 12, 2017. (Copy served via regular and certified mail) (khr)