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TENORIO v. MURPHY

September 20, 1994

OSCAR TENORIO, Plaintiff,
v.
GERALD B. MURPHY, JOSE LUIS GUZMAN, HEVER PEIDRAITA, SCT-85-0025, CARLOS CABRERA, AKHTAR HUSSAIN, HERNAN GORDILLO, JANE DOE C.I., JOHN DOE C.I./DEA AGENT, 4 JOHN DOE SPECIAL AGENTS DEA, 10 JOHN DOE MEMBERS OF GROUP 87 NYDETF, PETER WILLIS, LOUIS BELTRE, 1 JOHN DOE NEW JERSEY STATE TROOPER, and JOSEPH CLASS, Warden, Defendants.



The opinion of the court was delivered by: STERLING JOHNSON, JR.

 JOHNSON, District Judge:

 Before this Court is a motion to dismiss by Defendants Gerald B. Murphy, Jose Luis Guzman, *fn1" and Joseph Class which has been joined by Defendant Peter Willis. *fn2" Defendants assert that the United States should be substituted as a defendant to Plaintiff's tort claims, that Plaintiff's tort claims against the United States must be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and that the entire action must be dismissed as pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff responded to Defendant Willis' motion but has not responded to the Government's brief. Plaintiff requested an extension until December 20, 1993 to respond but as of this date, no response has been received in the Clerk's office or in this chambers.

 INTRODUCTION

 Plaintiff alleges that he was arrested, convicted, and sentenced as part of a conspiracy between the Drug Enforcement Agency ("DEA"), New Jersey State Troopers, the New York City Police Department ("NYPD"), his attorneys, confidential informants, the warden of his prison, and various other parties. Plaintiff alleges that this conspiracy began in New York state in January 1986 and continued until December 1990. Plaintiff has brought suit under 42 U.S.C. § 1983 for alleged violations of his Fourth, Fifth, Sixth, and Fourteenth Amendments. Plaintiff also seeks a declaratory judgment and damages under the Federal Tort Claims Act.

 On January 14, 1986, Plaintiff was arrested by New Jersey State Troopers in New Jersey after attempting to sell 11 kilograms of cocaine to undercover DEA agents. Plaintiff claims to have been set up in the transaction by several of the Defendants. According to the Complaint, Defendant Hernan Gordillo ("Gordillo") contacted Defendant Jose Guzman ("Guzman") of the NYPD and offered to arrange a drug transaction with the Plaintiff using DEA drugs.

 Plaintiff arrived in New York City on January 3, 1986 from Miami, Florida to deliver 11 kilograms of cocaine for a friend. The following day, Plaintiff was informed that there was no buyer for the drugs and Plaintiff began searching for another buyer. Over the course of several days, Plaintiff met with various potential buyers, all of whom have been alleged to be DEA agents and are named as John Doe Defendants. Plaintiff asserts that these agents and confidential informants induced him to brag about larger possible deals. Indeed, during one meeting, Plaintiff boasted that he could bring 88 kilograms of cocaine.

 Plaintiff contends that these meetings were part of a larger strategy of the government to encourage the Plaintiff to "puff up" his connections in order to enhance his sentence. According to Plaintiff, the agents knew that he only had access to 11 kilograms and that all other claims were merely bravado.

 On January 13, 1986 Plaintiff struck a deal with the undercover agents to deliver 88 kilograms of cocaine of which 11 were to be delivered the next day. Plaintiff asserts that although he did not have access to such a large quantity, he saw the larger deal as a way to unload the 11 kilograms that he did in fact possess. Unbeknownst to Plaintiff, the undercover agents, knowing that he would be delivering 11 kilograms of cocaine, determined to have Plaintiff arrested at some point during the transaction. To this end, the agents contacted the New Jersey State Police and arranged for Plaintiff to be pulled over in a traffic stop, during which a search would reveal the cocaine.

 On January 14, 1994, Plaintiff set off for the appointed location with Defendant Peidraita in a cab with 11 kilograms in the trunk. Outside of a Burger King in North Bergen, New Jersey, Plaintiff met with the undercover agent and a confidential informant. During the meeting, the agent made a phone call to his DEA supervisor who ordered the agent to proceed, with the Plaintiff following, to a nearby Holiday Inn where a trooper was waiting to stop and search the cab. The stop did not occur. At the Holiday Inn the agent made yet another call and then informed Plaintiff that they would have to drive to another location.

 While en route to this third location, Plaintiff and Peidraita were stopped by a trooper. During the stop, the trooper requested the keys to the trunk and Peidraita turned them over. Upon opening the trunk, the trooper found cocaine in a small sports bag. The trooper called for backup which arrived within seconds and Plaintiff was arrested and charged with ownership of the cocaine. Peidraita was also arrested after a long conversation with the trooper.

 Plaintiff was moved from the arrest scene and a series of agents spoke with him but Plaintiff would not speak and requested an attorney. Plaintiff was arraigned on January 15, 1986 at which the trooper testified to finding nine kilos in the trunk and one in the cab. After the arraignment, Defendant Willis, an attorney, conferred with Plaintiff about his case and suggested that Plaintiff plead guilty. In February, Plaintiff hired Willis who insisted that Plaintiff plead guilty and not object to the search and seizure. Plaintiff then fired Willis. Notwithstanding Plaintiff's disagreement's with Willis' advice, Plaintiff pled guilty. At the pleading in New Jersey state court and at sentencing, Plaintiff was represented by Defendant Louis Beltre.

 In September 1987, the federal authorities in Brooklyn were provided with information by Defendants Murphy and Cabrera which led to charges being filed against the Plaintiff in this district. Plaintiff was represented by counsel, Defendant Hussain, who allegedly conspired with the government attorney's to coerce Plaintiff into pleading guilty. During sentencing the prior arrest and conviction in ...


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