1

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 
2

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. 
3

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 
4

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). 

 

1 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 
5

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 DefendantsAppellees 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.
6

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 
7

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 
8

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. 
9

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. 
10

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 
11

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