10-4019-pr
    Shue v. United States



                             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
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 3rd day of April, two thousand twelve.

    PRESENT:
                ROBERT A. KATZMANN,
                REENA RAGGI,
                       Circuit Judges,
                JED S. RAKOFF,
                       District Judge.*
    ________________________________________________

    PETER SHUE,

                       Plaintiff-Appellant,

                              v.                                         10-4019-pr

    UNITED STATES OF AMERICA, MARK WASSERMAN, JOHN MCKENNA, ROBERT C.
    HEINEMANN, STEPHEN KING,

                Defendants-Appellees.
    ________________________________________________

    For Plaintiff-Appellant:          Peter Shue, pro se, Atlanta, GA.

    For Defendants-Appellees:         No appearances.


             *
            Judge Jed S. Rakoff, of the United States District Court for the Southern District of New
    York, sitting by designation.
          Appeal from a judgment of the United States District Court for the Eastern District of

New York (Seybert, J.).

          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

          Appellant Peter Shue, proceeding pro se, appeals the from district court’s judgment

dismissing his complaint sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B). We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

          We review de novo a district court’s sua sponte dismissal of a complaint pursuant to 28

U.S.C. § 1915(e). See Giano v. Goord, 

, 149–50 (2d Cir. 2001). Here, Shue’s

constitutional claims against federal officials are properly analyzed as claims pursuant to Bivens

v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 

(1971), rather than 42

U.S.C. § 1983. Nevertheless, we may affirm the district court’s judgment solely on the ground

that Shue’s complaint failed to state a claim under the Supreme Court’s decision in Heck v.

Humphrey, 

(1994). See Boy Scouts of Am. v. Wyman, 

, 90 (2d Cir.

2003) (“[W]e may affirm the judgment of the district court on any ground appearing in the

record.”). Because § 1983 actions and Bivens actions “share the same ‘practicalities of

litigation,’ federal courts have typically incorporated § 1983 law into Bivens actions,” including

the law articulated by the Supreme Court in Heck. Tavarez v. Reno, 

, 110 (2d Cir.

1995). As noted by the district court, the Heck Court held that a § 1983 action for monetary

damages is not cognizable if a decision in the plaintiff's favor would necessarily invalidate a

criminal conviction that has not been reversed on appeal or otherwise overturned. See Heck, 

. In this case, success on Shue’s claim that he was tried and convicted with a

falsified superceding indictment that was never presented to a Grand Jury would invalidate his

1996 federal conviction, see Stirone v. United States, 

, 218-19 (1960), as would

success on his claim that the Government withheld exculpatory and material impeachment

evidence at trial, see Giglio v. United States, 

, 153-54 (1972). Because Shue’s 1996

conviction has not been overturned, his Bivens claims are subject to dismissal under Heck. See

. In light of this conclusion, we decline to reach the district court’s

alternative analysis of Shue’s constitutional claims under the applicable statute of limitations.

       Finally, there is no merit to Shue’s argument that Judge Seybert was subject to recusal for

bias solely because she presided over his 1996 trial. “[O]pinions formed by the judge on the

basis of facts introduced or events occurring in the course of the current proceedings, or of prior

proceedings, do not constitute a basis for a bias or partiality motion unless they display a

deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v.

United States, 

, 555 (1994).

       We have considered Shue’s other arguments on appeal and have found them to be

without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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