United States District Court, D. Connecticut
TERRY J. DIMARTINO, Plaintiff,
ERIN PULICE, SARA HAMILTON, UNITED STATES OF AMERICA INTERNAL REVENUE SERVICE, JOHN KOSKINEN, JASON M. SCHEFF, and ALVIN W. THOMPSON, Defendants.
ORDER DISMISSING CASE
W. Thompson United States District Judge
reasons set forth below, Defendants' Motion to Dismiss
(Doc. No. ) is hereby GRANTED. This case is hereby
dismissed with prejudice.
August 14, 2014, a grand jury returned an eight-count
indictment against Terry J. Dimartino, charging him with one
count of obstructing and impeding the due administration of
the Internal Revenue laws, in violation of 26 U.S.C. §
7212(a); two counts of filing false tax returns, in violation
of 26 U.S.C. § 7206(1); and five counts of willfully
failing to file tax returns, in violation of 26 U.S.C. §
7203. See United States v. DiMartino, No.
3:14-CR-175(AWT), Doc. No. 1.
March 7, 2016, nine days before the trial in his criminal
case began, DiMartino filed this civil lawsuit against Erin
B. Pulice and Jason M. Scheff, the prosecutors in his
criminal case, and Sara Hamilton, one of the IRS case agents.
DiMartino sued all three defendants in their individual
capacities. In the complaint, DiMartino alleges, in
conclusory fashion, that all three defendants committed
“bodily injury by assault and unlawful deprivation of
property under color of law.” Compl. at 2. He further
alleges that the prosecutors and the case agent have
“aided and abetted in the loss of liberty, and personal
property and ha[ve] caused the alienation of clients, both
established and potential, which has diminished [his] ability
to earn a living.” Compl. at 2. He claims that their
unspecified “acts and actions have caused injury and
great mental anguish resulting in pain and suffering.”
Compl. at 2. With respect to the IRS case agent, he claims
that “she took upon herself to draft the alleged
evidence, upon which the unlawful and illegal warrant issued
by the court.” Compl. at 2. DiMartino has filed an
amended complaint, but he makes no reference to these three
defendants in that amended complaint. See Doc. No. 14.
March 28, 2016, the jury returned its verdict and DiMartino
was found guilty on all eight counts of the indictment. See
United States v. DiMartino, Doc. No. 233.
have absolute immunity from suits challenging actions they
take within the scope of their duties. See Cleavinger v.
Saxner, 474 U.S. 193, 200 (1985); see also Hartman
v. Moore, 547 U.S. 250, 261-62 (2006) (noting that
absolute prosecutorial immunity protects federal prosecutors
facing Bivens actions); Imbler v. Pachtman, 424 U.S.
409, 427 (1976) (prosecutorial activities that are intimately
associated with the judicial process are protected by
absolute immunity). This immunity is not limited to activity
taking place in the courtroom. Rather, it encompasses
“all of their activities that can fairly be
characterized as closely associated with the conduct of
litigation or potential litigation[.]” Barrett v.
United States, 798 F.2d 565, 571-72 (2d Cir. 1986). With
respect to defendants Pulice and Scheff, it is clear from the
allegations in the complaint that plaintiff DiMartino is
challenging activities closely associated with their conduct
in connection with the criminal case against him. Thus
defendants Pulice and Scheff are absolutely immune from suit.
acting in an investigative capacity and federal agents are
immune from civil suit for conduct that does not violate
clearly established constitutional or statutory rights. See
Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In
the context of a motion to dismiss, “qualified immunity
protects government officials from liability for civil
damages ‘unless a plaintiff pleads facts showing (1)
that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly
established' at the time of the challenged
conduct.'” Wood v. Moss, 134 S.Ct. 2056,
respect to defendant Hamilton, DiMartino has not alleged
facts sufficient to state a claim for a violation of a
clearly established constitutional right, so she is protected
from this lawsuit by qualified immunity. Moreover, even if
DiMartino's complaint is construed to allege that
Hamilton violated his constitutional rights in the course of
discharging her duties, any such claim would be barred by the
rule in Heck v. Humphrey,512 U.S. 477 (1994),
because DiMartino's conviction in the criminal case has
not been overturned or invalidated. See Channer v.
Mitchell,43 F.3d 786, 788 (2d Cir. 1994) (dismissing
Section 1983 claims where petitioner claimed he was
unconstitutionally convicted as a result of police
officers' perjury and coercion of witnesses, because
petitioner had failed to establish that his conviction had
been reversed); Kaminski v. Hayes, No.
3:06-CV-1524-CFD, 2009 WL 3193621, at *6 (D. Conn. Sept. 30,
2009) (finding Fourth Amendment claims challenging search and
seizure were barred by Heck where conviction had not been
overturned or invalidated); Fernandez v. Alexander,419 F.Supp.2d 128, 133 ...