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
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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.
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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
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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).
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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
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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.
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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
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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
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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.
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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.
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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
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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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