20

- 3316

- cv Stegemann v. Rensselaer County Sheriff’s Office 

## 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 D ATABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO 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 th e 23 rd da y of November , two thousand twenty
- one . PRESENT: JOHN M. WALKER , JR. , RICHARD C. WESLEY , JOSEPH F. BIANCO , Circuit Judges.

_____________________________________ Joshua G. Stegemann , Plaintif f

- Cross
- Defendant
- Appellant,

v. 20
- 3316
- cv Rensselaer County Sheriff ’ s Office, Rensselaer County District Attorney ’ s Office, Jack Mahar, Air National Guard, Richard J. Sloma, Chris Clifford, Warren County Sheriff ’ s Office, Warren County, Nathan H. York, Christopher Perilli, New York State Police, New York State Police, Sort, Dan Kiley, 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 Br ian Foley, Berkshire County District Attorney's Office, David F. Cap e less , Richard2 Locke, Cellco Partnership, DBA Verizon Wireless, AT&T Mobility LLC , Rick Smith, Retired Captain of the Massachusetts State Police, FKA The Captain of The Massachusetts State Police, Michael Fynn, Frank Mastan, FKA Unknown Members of the Rensselaer County Emergency Response Team, Christopher Fumerola, FKA Unknown Members of the Rensselaer County Emergency Response Team, Anthony D ’ Agostino, FKA Unknown Members of the Rensselaer County Emergency Response Team, Justin Loomis, FKA Unknown Members of Fulton County Sheriffs Office Canine Team, Wayne Peters, FKA Unknown Members o f Fulton County Sheriffs Office Canine Team , Defendants
- Appellees , ∗ Rensselaer County, Patrick Russo, FKA Pat Russo, Arthur Hyde, FKA Art Hyde, Steve Wohlleber, William Webster, Shane Holcomb, Jason Robelotto, FKA J.S. Robelotto, Mark Geracitano, Sandra Blodgett, Justin Walread, Jami Panichi, Investigator, Travas McCarthy, FKA Travis McCarthy, William Scott, Dale Gero, Michelle Mason, John Stec, Robert Patterson, FKA Todd Patterson, Steve Jones, Berkshire County Drug Task Force, Derek Pyle, FKA Captain Pyle, Richard McNally, James Deas, William Roy, Investigator Film, Unkno wn Members of the Rensselaer County Emergency Response Team, Richard C. Giardino, Kevin Roy, as a member of the Rensselaer County Emergency Response Team, Unknown Members of Fulton County Sheriffs Office Canine Team, Mark Gorman, FKA Unknown Members of the Rensselaer County Emergency Response Team ,

∗ The Clerk of Court is directed to amend the caption as set forth above.3 Defendants
- Cross
- Defendants
- Appellees , Subsurface Informational Surveys, Inc., Defendant
- Cross
- Claimant
- Appellee , Michael Fynn, Defendant .

_____________________________________ FOR PLAINTIFF
- CROSS
- DEFENDANT
- Joshua G. Stegemann , pro se , Ray Brook, APPELLANT: NY

.

FOR DEFENDANTS
- APPELLEES: Stephen G. DeNigris, The DeNigris Law Firm PLLC , Albany, N Y ; Joseph P. Kittredge, Lorena Galvez, Rafanelli Kittredge, P.C., Acton, MA ( for William Scott, Dale Gero, Michelle Mason, John Stec, Steve Jones, Robert Patterson, Travas McCarthy, and James Deas ); Seth Schofield, Senior Appellate Counsel , for Maura Healy , Attorney General of the Commonwealth of Massachusetts , Boston , MA ( for Scott Colbert, Thomas Bowler, Berkshire County Sherriff’s Office, Berkshire County District Attorney’s Office, David Capeless, Richard Locke, Berkshire County, Massachusetts State Pol ice, Rick Smith, and David Brian Foley ); Shawn F. Brousseau, Napierski, VanDenburgh, Napierski & O’Connor, LLP, Albany , NY ( for Pittsfield Police Department, Glenn Civello, Michael Wynn, Tyrone Price, John Mazzeo, and Glenn F. Decker ) ; Andrew B. Joseph , Faegre Drinker Biddle4 & Reath LLP, Florham Park, NJ ( for AT&T Mobility LLC ) ; Christine D. Hanlon, The Law Office of Tromello & Fishman , Chicago, IL ( for Subsurface Informational Surveys , Inc. ); Janet D. Callahan, Hancock Estabrook LLP , Syracuse , NY ( for Cellco Partnership d/b/a Verizon Wireless ) ; Barbara D. Underwood, Solicitor General, Jeffrey W. Lang, Deputy Solicitor General, Jonathan D

. Hitsous, Assistant Solicitor General, for Letitia James, Attorney General of the State of New York , Albany , NY ( for New York Air National Guard, Chris Clifford, Dan Kiley, New York State Police, New York State Police Sort , and Richard Sloma ) ; John W. Bailey, Crystal R. Peck, Baily, Johnson & Peck, P.C., Albany, NY ( for Sandra Blodgett, Anthony D ’ Agostino, Christopher Fumerola, Mark Geracitano, Shane Holcomb, Arthur Hyde, Investigator Film, Mark Gorman, Jack Mahar, Frank Mastan, Richard McNally, Jami Panichi, Derek Pyle, Rensselaer County, Rensselaer County Sherriff’s Of fice, Rensselaer County District Attorney’s Office, Jason Robelotto, William Roy, Kevin Roy, Patrick Russo, Justin Walread, William Webster, and Steve Wohleber)

. Appeal from a judgment of the United States District Court for the Northern District of New York ( McAvoy , J

. ; Hummel, M.J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND5 DECREED that the judgment of the district court is AFFIRMED

. Plaintiff

- Cross

- Defendant

- Appellan t Joshua Stegemann , proceeding pro se , brought various claims against several dozen defendants, including numerous law enforcement and government agencies, police officers , private entities ( such as telecommunications comp anies ) , and others . He alleges, inter alia , that the defendants violated his Fourth , Fifth , and Fourteenth Amendment rights when a search warrant was executed at his home in April and May 2013. Specifically, Stegemann challenges the dismissal of his wire tap and excessive force claims, as well as his claims brought against defendant Subsurface Informational Surveys, Inc. (“Subsurface”)

. As relevant on appeal, t he district court sua sponte dismissed Stegemann’s claim s concerning illegal wiretapping as barred by Heck v. Humphrey , 512 U.S. 477 (1994). A fter extensive motion practice, the district court also dismissed his Fourth Amendment excessive force and destruction of property claims against the law enforcement defe ndants as precluded by collateral estoppel

. Subsequently, the district court granted summary judgment to defendant Subsurface

— a private entity hired to conduct a survey on Stegemann’s property in connection with the execution of the search warrant

— on the destruction of property claims, reasoning that the re was no evidence that Subsurface had caused any property destruction during the search. We assume the parties ’ familiarity with the underlying facts and the procedural history of the case, which we refer ence only as necessary to explain our decision to affirm.
I. Appellate Jurisdiction As an initial matter, defendant

- appellee AT&T Mobility LLC 1 contends that we lack

1 AT&T Mobility LLC contends that Stegemann improperly identified it as “AT&T Wireless Network” in his pleadings. The Clerk of Court is directed to amend the caption accordingly.6 appellate jurisdiction because three defendants (Berkshire County Drug Task Force, Kevin Roy, and Mark Gorman) and several “cross

- defendants” were not dismissed on the district court do cket. 2 We ha ve jurisdiction over final decisions of the district cour t. 28 U.S.C. § 1291. A final decision “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” In re Roman Cath

. Diocese of Albany, N.Y., Inc. , 745 F.3d 30, 35 (2d Cir. 2014) (internal quotation marks and cita tion omitted). Although a separate judgment has not been entered and three defendants remain unserved, all other defendants have been dismissed. Therefore, we have jurisdiction to proceed to the merits of the appeal. See Leonhard v. United
States , 633 F .2d 599, 608

– 09 (2d Cir. 1980) (holding that “the absence of a dismissal” as to unserved defendants was “no impediment to the present appeal” of the dismissal of all of the other defendants).
II. Illegal Wiretap Claim s Stegemann first challenges the district court’s dismissal of his illegal wiretap claim s
. We conduct de novo review of sua sponte dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii), accepting well

- pled factual allegations in the complaint as true and drawing all reasonable inferences in
St e gemann’s favor. See Fed

. Defs

. of New York, Inc. v. Fed

. Bureau of Prisons , 954 F.3d 118, 125 (2d Cir. 2020). “Further, when the plaintiff proceeds pro se , as in this case, a court is obliged to construe his pleadi ngs liberally, particularly when they allege civil rights violations.” McEachin v. McGuinnis , 357 F.3d 197, 200 (2d Cir. 2004).

2 The cross

- defendants were the individual Rensselaer County law enforcement officers. The claims against those officers were dismissed. Cf. Federman v. Empire Fire & Marine Ins. Co. , 597 F.2d 798, 811 (2d Cir. 1979) (pre

- trial settlement of original fede ral claim necessitated dismissal of cross

- claim for indemnification).7 The Supreme Court’s decision in Heck v. Humphrey “precludes the use of § 1983 suits for damages that necessarily have the eff ect of challenging existing state or federal criminal convictions.” Poventud v. City of New York , 750 F.3d 121, 124 (2d Cir. 2014). Under Heck , if a judgment in the plaintiff’s favor would “necessarily imply the invalidity of his conviction or sentence,” the complaint must be dismissed. 512 U.S. at 487. The bar established in Heck applies regardless of whether a plaintiff seeks damages or injunctive relief. Wilkinson v. Dotson , 544 U.S. 74, 81

– 82 (2005). Stegemann contends that Heck cannot bar his wir etap claim s because we concluded on the direct appeal of his criminal case that admission of the wiretap evidence at his trial was harmless error and that his conviction was affirmed based on the strength of the g overnment’s other evidence. United States v. Stegemann , 701 F. App’x 35, 38

– 39 (2d Cir. 2017) (summary order)

. In He ck , the Supreme Court noted that a Section 1983 suit “may lie” even if the challenged action “produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff ’ s still

- outstanding conviction.” 512 U.S. at 487 n.7. The Heck Court specifically pointed to the doctrine of harmless error as one reason such a claim could survive because it does not

“ necessarily ” invalidate the conviction. Id. The governing standard for this exception is “whether a prisoner ’ s victory in a § 1983 suit would necessarily demonstrate the invalidity of his conviction or sentence; that a prisoner ’ s success might be merely helpful or potentially demonstrative of illegal confinement is, under this standard, irrelevant.” McKithen v. Brown , 481 F.3d 89, 1 02 (2d Cir. 2007). Stegemann is correct that , on his direct appeal of the criminal conviction, we did not address the merits of his contention that the wiretaps were illegal , but rather concluded that , even8 if the admission of any such evidence were erro r, it was harmless because the g overnment’s case was otherwise strong enough to sustain his criminal conviction. Stegemann , 701 F. App’x at 3 8

– 39 . Thus, Stegemann’s pursuit of claims in this civil action based on an alleged illegal wiretap , even if successful, would not invalidate his criminal conviction. However, Stegemann’s illegal wiretap claim s are still barred on a separate ground under Heck

. More specifically, as the Supreme Court explained in Heck , when seeking compensatory dama ges for an allegedly unreasonable search while the underlying conviction still stands, a plaintiff may only recover for an injury other than the harm caused by the conviction and the imprisonment resulting therefrom. 512 U.S. at 487 n.7 ( “ I n order to reco ver compensatory damages [for an illegal search claim]

. . . t he § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, which, we hold today, does not encompass the ‘injury’ of being convicted and imprisoned (until his conviction has been overturned).” (internal citation omitted ) )

. Here, Stegemann has not alleged any injury other than his conviction and subsequent imprisonment , which he asserts resulted from the purportedly illegal wiretap. Therefore, e ven though his claim s regarding the wiretap may not call his conviction into question, Stegemann cannot recover any damages for these injuries unless and until his conviction , which we affirmed on direct appeal, is overturned

. Accordingly, there is no basis to disturb the dismissal of his illegal wiretap claim s
. III. Excessive Force Claim Stegemann also challenges the dismissal of his excessive force claim. First, Stegemann argues that the district court did not make a finding w ith respect to why his excessive force claim was barred by Heck

. We disagree . The district court concluded that this claim was not barred9 by Heck because it did not necessarily imply the invalidity of his conviction. However, the district court treated Stegemann’s excessive force claim arising from the execution of the search warrant as the same as his claim s asserting property damage during the search

. Ultimately, t he district court dismissed the destruction of property claims as barred by collateral estoppe l

. On appeal, Stegemann c ontends that his excessive force claim concerned the entry of officers onto his property and was distinct from his destruction of property claim s based on the actions of the officers during the search itself , and thus the district court erred by construing the claims as the same.
E ven assuming , arguendo , that the district court should have construed his excessive force claim as separate fr om the destruction of property claim s , we affirm the dismissal of both claims as precluded under the doctrine of collateral estoppel

. We review de novo the dismissal of a complaint for failure to state a claim. Chambers v. Time Warner, Inc. , 282 F.3d 147 , 152 (2d Cir. 2002). To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal , 556 U. S. 662, 678 (2009) (“[Although] a court must accept as true all of the allegations contained in a complaint,” this tenet is “inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
st atements, do not suffice.”). Under the Full Faith and Credit Act, 28 U.S.C. § 1738, a federal court must apply New York collateral estoppel law to New York state court judgments. See Hoblock v. Albany Cnty. Bd. of Elections , 422 F.3d 77, 93 (2d Cir. 20 05). Under New York law , the doctrine of collateral estoppel bars a party from relitigating an issue in a subsequent proceeding when “ (1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom10 the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.” Vargas v. City of New York , 377 F .3d 200, 205

– 06 (2d Cir. 2004) (internal quotation marks omitted) . Collateral estoppel applies only if the issue in the second action is identical to the first. City of New York v. Welsbach Elec. Corp. , 9 N.Y.3d 124, 128 (2007). A nonparty to the prior litigation may invoke the doctrine of collateral estoppel. See Buechel v. Bain , 97 N.Y.2d 295,
315

– 16 (2001)

. Collateral estoppel applies here. First, the issues were identical. To determine if an issue is identical, New York courts apply a “functional approach[.]” Kosakow v. New Rochelle Radiology Assocs., P.C. , 274 F.3d 706, 731 (2d Cir. 2001) (citing Schwartz v. Pub. Adm’r. of Cnty. of Bronx , 24 N.Y.2d 65, 7 3 (1969) ) . The test is whether the issue “has necessarily been decided in the prior action an d is decisive of the present action[.]” Schwartz , 24 N.Y.2d at 71. It does not matter that the claim in the latter case is based on a different legal theory so long as the same underlying issue was litigated in the prior proceeding. See Graven v. Childr en’s Home R.T.F.,
Inc. , 152 A.D.3d 1152, 1154 ( N.Y. App. Div. 3d Dep’t 2017). Although Stegemann describes his claim here as an “excessive force” claim, the underlying issues are the same as the negligent destruction of property claim that he litigated previously in the New York Court of Claims. Both a Fourth Amendment claim and a state law negligent destruction of property claim involve questions of reasonableness. To determine whether a police officer’s actions were reasonable under the Fou rth Amendment, this c ourt “ask[s] whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Terebesi v. Torreso , 764 F.3d 217,
231 (2d Cir. 2014) (internal quotation marks omitted). In New York, an officer must execute a11 search warrant “without unnecessary force or severity[,]” Siemiasz v. Landau , 224 A.D. 284, 285 ( N.Y. App. Div. 4th Dep’t 1928), and cannot act in a way that was “not reasona bly necessary” to execute the search warrant and “potentially violate the Fourth Amendment[,]” Onderdonk v. State , 170 Misc. 2d 155, 162 (N.Y. Ct. Cl

. 1996). Because reasonableness lies at the heart of both a Fourth Amendment claim and a claim under New Y ork law, the issues are identical for collateral estoppel purposes. Second, the issues were actually litigated. The issue of whether the defendants engaged in “excessive conduct” while executing the search warrant was litigated in the Court of Claims when the court granted the State’s motion for summary judgment

. The court reasoned that “ t here is no evidence in the record to indicate that the officers overstepped the bounds of the warrants, that they engaged in excessive conduct in entering upon claimant’ s property, or that their execution of the warrants was accomplished with unnecessary force or severity

. ” Stegemann v. State , No.
2016

- 032

- 163 (N.Y. Ct. Cl. Jan. 3, 2017). The Court of Claims also decided the issue of whether the defendants “negligently destroyed [Stegemann’s] property” in the course of executing the search warrant. Stegemann v. State , 163 A.D.3d 1303, 1304 ( N.Y. App. Div. 3d Dep’t 2018); see also Halyalkar v. Bd. of Regents of State of N.Y. , 72 N.Y.2d 261, 268 (1988) (“For a question to have been actually litigated . . . , it must have been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding.”). Third, the issue was necessary to the resolution of the motion for summary judgment in the Court of Claims. As discussed above, the reasonableness of the officer s ’ actions was necessary to determine if they negligently destroyed Stegemann’s property. See Kret by Kret v. Broo kdale Hosp. Med. Ctr. , 93 A.D.2d 449, 458

– 59 ( N.Y. App. Div. 2d Dep’t 1983) (holding that an issue12 was necessarily decided where a decision on that issue was required to reach a verdict and a contrary decision in subsequent litigation would contradict that verdict). Fourth, Stegemann had a full and fair opportunity to litigate this issue. “[A] determination whether a full and fair hearing was provided requires consideration of the realities of the prior litigation.” In re Sokol , 113 F.3d 303, 307 (2d Cir . 1997) ( internal quotation marks and alteration omitted ) (applying New York law) . “Factors to be considered include, inter alia : 1) the nature of the forum and the importance of the claim in the prior litigation; 2) the incentive to litigate and the
actu al extent of litigation in the prior forum; and 3) the foreseeability of future litigation (because of its impact on the incentive to litigate in the first proceeding).” Id. Here, Stegemann had an opportunity to raise a genuine issue of material fact on summary judgment in the Court of Claims. Further, he had another full and fair opportunity to litigate when he appealed the decision to the Third Department. Accordingly, the district court properly dismissed the excessive force claim as barred by collat eral estoppel

. IV. Subsurface’s Motion for Summary Judgment Finally, Stegemann challenges the district court’s grant of summary judgment to Subsurface on the claims against it, which related to its alleged participation in the destruction of his property in co nnection with the execution of the search warrant

. We review a grant of summary judgment de novo , “resolv[ing] all ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t , 706 F.3d 120, 126

– 27 (2d Cir. 2013) ( p er curiam ). “Summary judgment is proper only when, construing the evidence in the light most favorable to the non

- movant, ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehof f

, 642 F.3d 334, 344 (2d Cir. 2011)13 (quoting Fed. R. Civ. P. 56(a)). “The general touchstone of reasonableness which governs Fourth Amendment analysis governs the method of execution of the warrant.” United States v. Ramirez , 523 U.S. 65, 71 (1998) (internal citation omitted). “Excessive or unnecessary destruction of prop erty in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppression.” Id. Stegemann did not offer any evidence establishing that Subsurface destroyed any prop erty when it conducted a ground penetrating radar (“ GPR ”) survey. Indeed, the uncontroverted evidence in the r ecord demonstrated that Subsurface was not hired to excavate Stegemann’s property , the GPR unit rolled over the ground in a gentle

manner like a baby carriage, no excavation was necessary for the survey, and Subsurface did not have the manpower or equipment to excavate the property. Stegemann argues that there was an issue of fact regarding who conducted excavations on his property after Subsurfa ce completed the GPR survey. However, this argument is meritless because, a s the district court concluded, the record is devoid of evidence that Subsurface excavated Stegemann’s property. T he fact that excavation was mentioned in the GPR report is not ev idence that Subsurface did the excavation. Nor is the fact that excavations occurred after Subsurface
survey ed the property sufficient to raise a genuine issue of fact precluding summary judgment

. Subsurface offered evidence that it did not excavate

— and could not have excavated

— and Stegemann offered no evidence to controvert th ese fact s
. Accordingly, summary judgment was properly granted in Subsurface ’s favor

.

* * *14 We have considered all of Stegemann’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court

. FOR THE COURT: Catherine O = Hagan Wolfe, Clerk of Court