*The Honorable David G. Larimer, District Judge of the United States District Court for the Western District of New York, sitting by designation. 09-4186-pr Colliton v. Donnelly et al.


## 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** 1 **the Second Circuit, held at the Daniel Patrick Moynihan United** 2 **States Courthouse, 500 Pearl Street, in the City of New York, on** 3 **the 2 nd** **day of November, two thousand ten.** 4 5 PRESENT: 6 DEBRA ANN LIVINGSTON, 7 DENNY CHIN, 8 Circuit Judges , 9 DAVID G. LARIMER, * 10 District Judge. 11

__________________________________________ 12 13 James P. Colliton, 14 15 Plaintiff-Appellant , 16 17 v. 09-4186-pr 18 19 Ann Marie Donnelly, Rachel Lauren 20 Hochhauser, and Robert M. Morgenthau, 21 22 Defendants-Appellees. 23

__________________________________________ 24 252 FOR APPELLANT: James P. Colliton, pro se , Poughkeepsie, NY. 1 2 FOR APPELLEES: Susan C. Roque, Assistant District Attorney, 3 Cyrus R. Vance, Jr., District Attorney, New 4 York County, New York, NY. 5 6 Appeal from a judgment of the United States District Court 7 for the Southern District of New York (Kaplan, J. ) 8 **UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND** 9

**DECREED** that the judgment of the district court be **AFFIRMED**
. 10 Plaintiff-Appellant James P. Colliton, pro se , appeals the 11 judgment of the district court granting the Defendants-Appellees’ 12 Fed. R. Civ. P. 12(b)(6) motion to dismiss his 42 U.S.C. § 1983 13 complaint alleging various constitutional claims arising from his 14 arrest, prosecution, and state court conviction in 2006 and 2007 15 for various charges of sexual misconduct. Colliton argues that 16 the district court erred by finding his claims barred by Heck v. 17 Humphrey, 512 U.S. 477 (1994), and by collateral estoppel (issue 18 preclusion). We assume the parties’ familiarity with the 19 underlying facts and procedural history. 20 “We review de novoa district court’s dismissal of a 21 complaint pursuant to Rule 12(b)(6), construing the complaint 22 liberally, accepting all factual allegations in the complaint as 23 true, and drawing all reasonable inferences in the plaintiff’s 24 favor.” Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d 25 Cir. 2002); see also Miller v. Wolpoff & Abramson, L.L.P. , 321 26 F.3d 292, 300 (2d Cir. 2003). To survive a motion to dismiss 273 under Rule 12(b)(6), the complaint must plead “enough facts to 1 state a claim to relief that is plausible on its face.” Bell 2 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although all 3 allegations contained in the complaint are assumed to be true, 4 this tenet is “inapplicable to legal conclusions.” Ashcroft v. 5 Iqbal , 129 S. Ct. 1937, 1949 (2009). A claim will have “facial 6 plausibility when the plaintiff pleads factual content that 7 allows the court to draw the reasonable inference that the 8 defendant is liable for the misconduct alleged.” Id. 9 After a thorough review of the record, we conclude that the 10 majority of Colliton’s claims are precluded by his prior state 11 court conviction, while his remaining claims are either 12 insufficiently pleaded or barred by absolute immunity. See 13 ACEquip Ltd. v. Am. Eng’g Corp. , 315 F.3d 151, 155 (2d Cir. 2003) 14 (finding that the Court of Appeals may “affirm the district 15 court’s judgment on any ground appearing in the record, even if 16 the ground is different from the one relied on by the district 17 court”). 18 “The fundamental notion of the doctrine of collateral 19 estoppel, or issue preclusion, is that an issue of law or fact 20 actually litigated and decided by a court of competent 21 jurisdiction in a prior action may not be relitigated in a 22 subsequent suit between the same parties or their privies.”Ali 23 v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2009) (internal quotations 24 omitted)(emphasis added). This principle applies to a judgment 254 from a New York state court, to which a federal court must give 1 “the same preclusive effect as would be given to the judgment 2 under the law of the State in which the judgment was rendered.” 3 Johnson v. Watkins , 101 F.3d 792, 794 (2d Cir. 1996). Under New 4 York law, because a criminal conviction is considered a valid 5 final judgment for purposes of issue preclusion, it bars 6 relitigation of all of the factual issues upon which that 7 conviction was based. See Singleton v. City of New York , 632 8 F.2d 185, 205 (2d Cir. 1980) (citing S.T. Grand, Inc. v. City of 9 New York , 32 N.Y.2d 300, 304-05 (1973)). 10 The majority of Colliton’s claims rely on the presumption 11 that, as a factual matter, he was not guilty of the offenses to 12 which he entered a guilty plea in state court. But Colliton, who 13 neither appealed his state court conviction nor sought to 14 withdraw his plea, is collaterally estopped from challenging the 15 facts supporting his conviction. Colliton argues that collateral 16 estoppel is inapplicable to a § 1983 claim where the plaintiff 17 was denied a “full and fair opportunity” to litigate his claims 18 in the earlier action. Colliton contends that he was denied such 19 an opportunity due to incompetent counsel at his state court 20 proceedings. This is unavailing. Colliton, who practiced law at 21 Cravath, Swaine & Moore LLP prior to his disbarment, entered a 22 plea under oath and stated that he understood and knowingly 23 admitted that he committed the offenses charged in the state 245 indictments, and that he voluntarily entered a plea free from any 1 coercion. Neither his complaint in this case nor his brief on 2 appeal alleges facts sufficient to render facially plausible his 3 claim that he was not afforded a full and fair opportunity to 4 litigate his factual innocence in that proceeding. 5 In addition, we find Colliton’s remaining claims to be 6 insufficiently pleaded or barred by absolute prosecutorial 7 immunity. See Ciambello v. County of Nassau , 292 F.3d 307, 324- 8 25 (2d Cir. 2002) (finding that complaints containing conclusory 9 or general allegations of conspiracy are insufficient to sustain 10 a § 1983 action);see also Cornejo v. Bell,592 F.3d 121, 127 (2d 11 Cir. 2010) (“Prosecutors are entitled to absolute immunity. . . 12 because their prosecutorial activities are intimately associated 13 with the judicial phase of the criminal process.”) (internal 14 quotations omitted). 15 We have considered Colliton’s other arguments on appeal and 16 find them to be without merit. For the foregoing reasons, the 17 judgment of the district court is hereby **AFFIRMED**
. 18 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21
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