1 15

- 0686 S t egemann v. Rensselaer Co. Sheriff UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER

R ULINGS BY SUMMARY OR DER DO NOT HAVE PREC EDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER F ILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COUR T , A PARTY MUST CITE EI THER THE F EDERAL A PPENDIX OR AN ELECTR ONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST S ERVE A COPY OF IT ON ANY PARTY NOT REPRES ENTED 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 3 rd 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 WALREA D, JAMI PANICHI, AIR NATIONAL G U A RD, RICHARD J. SLOMA, CHRIS2 CLIFFORD, WARREN COUNTY SHERIFF'S OFFICE, WARREN COUNTY, NATHAN H. YORK, CHRI STOPHER 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, MI CHAEL 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 AT TORNEY'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 APPELLEE S : 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 C ourt 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 acti on 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 hi s 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 h is person and property, and for the interception of his electronic communications. Stegemann initiated this civil rights action against the Defendants

- Appellees while his underlying criminal4 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, n o judgment of conviction had been entered against
him

. On February 3, 2015, Magistrate Ju dge 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 claim s under Hudson v. Palmer, 468 U.S. 517 (1984) , and (3) dismissal of Stegemann’s state claims for lack of diversity jurisdiction

. O n February 19, 2015, the District Court accepted the Magistrate Judge’s recommendation. In support of its decision, t he 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 the5 I. Bivens and § 1983 The District Court improperly dismissed with prejudice Stegemann ’ s Bivens and § 19 83 c laims u nder 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, a t 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 ambiguou s, 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 th e 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 Defen dants

- 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 fac t 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 sugge sts that the Court meant the rule it announced to apply to judgments. For example, th e 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 sente nce has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such
determination , or call ed 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 wi th its holding: The Court notes that its7 conclusion is supported by “ the hoary principle that civil tort actions are not appropriate vehicles for challenging the v alidity of outstanding criminal judgments," i d. at 486 (emphasis added), and the Court states that the Heck bar
does not apply when the § 1983 action, “ even if s uccessful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff.” Id. at
48 7 (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
in to play only when there exists ‘ a conviction or sentence that has not been .

. . invalidated, ’ that is to s ay, 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 conv iction 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 w ould 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 has8 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 co nviction 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 th at 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 j udge 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 adjud ication, and the sentence.”).
B ecause 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 dis missed 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 Amendment s . 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 Amendment s , 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 Amendment s . III. State Law Claims
T he District Court held that it lacked jurisdiction over Stegemann’s state
law claims because “ Stegemann has faile d to achieve complete diversity ” under
28 U.S.C. § 1332

. On rema nd, 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, th e 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. See11 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