84 L. Ed. 2d 797, 105 S. Ct. 1408 (1985) ("conclusory allegations of conspiracy are insufficient to survive either a 12(b)(6) motion for dismissal . . . or in the alternative a motion for summary judgment in defendants' favor") (citations omitted).
Berman must plead facts that show an agreement or some form of joint or concerted action. See Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990), cert. denied, 499 U.S. 937, 113 L. Ed. 2d 446, 111 S. Ct. 1389 (1991); see also Lewal v. Doe, 1994 U.S. Dist. LEXIS 7826, *7, 1994 WL 263521 at *3 (S.D.N.Y. 1994) (Leisure, J.) ("plaintiff makes only vague and conclusory allegations of conspiracy that will not survive a motion to dismiss"). The Second Circuit has stated, "it is imperative for courts to examine with great care any suit charging that prosecution witnesses conspired with the prosecutor, and to dismiss on pre-trial motion those that are clearly baseless." San Filippo, 737 F.2d at 256.
Berman fails to allege any facts from which a common scheme or an agreement between Chapman and Turecki can be inferred. Berman merely makes the conclusory assertion that Turecki and Chapman entered into a conspiracy to deprive him of his rights under the First, Fourth, Sixth and Eighth Amendments. Complaint P 2. Berman provides no supporting facts, however, from which a trier of fact could infer a meeting of the minds between Chapman and Turecki concerning a course of action intended to deprive Berman of his constitutional rights. Consequently, Chapman's motion to dismiss should be granted.
See San Filippo, 737 F.2d at 252; Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977).
3. Qualified Immunity
FBI officers enjoy a qualified immunity from damage suits arising out of their official conduct. See Anderson v. Creighton, 483 U.S. 635, 639-41, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987).
"The relevant question . . . [is] whether a reasonable officer could have believed [his or her conduct] to be lawful, in light of clearly established law and the information the . . . officers possessed." Id. at 641. The defense of qualified immunity is established when (1) at the time defendant acted, it was unclear whether plaintiff's asserted interests were protected by federal law, or (2) defendant could have reasonably believed that his actions did not contravene an established federal right. See Ying Jing Gan v. City of New York, 996 F.2d 522, 531-32 (2d Cir. 1993); Eng v. Coughlin, 858 F.2d 889, 895 (2d Cir. 1988).
This Court finds that it was objectively reasonable for Chapman to have believed both that probable cause existed and that his actions did not contravene an established federal right. Consequently, Chapman is immune from liability in a Bivens action on grounds of qualified immunity.
A defense of qualified immunity should be decided at the earliest possible stage in a litigation, and it is a defense that often can and should be decided on a motion for summary judgment. See Castro v. U.S., 34 F.3d 106, 112 (2d Cir. 1994). On a motion for summary judgment on the ground of qualified immunity, defendant bears the burden of showing that as to that defense there is no genuine issue of material fact. Id.
Plaintiff asserts that Chapman applied for a search warrant and an arrest warrant based upon allegations that he knew were false and that he also omitted information that he knew was material.
This Court finds, however, that the purported misstatements and omissions, do not raise a genuine issue of fact as to whether Chapman had a reasonable basis to believe that there was probable cause.
Preliminarily, the Court notes that a plaintiff who argues that a warrant was issued on less than probable cause faces a "heavy burden." See Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991). "Normally, the issuance of a warrant by a neutral magistrate, which on a of creates depends finding probable cause, a presumption that it was objectively reasonable for the officers to believe that there was probable cause." Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991), cert. denied, 112 S. Ct. 3032 (1992). In order to successfully challenge the grant of a warrant, a plaintiff "must make a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit and that the allegedly false statement was necessary to the finding of probable cause." Golino, 950 F.2d at 870 (citations omitted).
The only false statement that Berman alleges Chapman affirmatively made was Chapman's assertion that Berman, in his letter to Turecki's publisher, had threatened Turecki.
This Court finds that Chapman's statement was neither false nor did it constitute a statement necessary to the finding of probable cause. If the statement had never been made, probable cause would still have existed. Moreover, this Court finds that the letter could reasonably be interpreted as a threat to Turecki. This is especially true given Turecki's allegations that Berman threatened to distribute more widely the photograph of Turecki, an allegation which Chapman reasonably could have believed.
Berman maintains that Chapman omitted a number of material facts in an effort to deceive the magistrate and thereby induce the issuance of an improper warrant. This Court finds, however, that none of the alleged omitted facts would have cast doubt on the existence of probable cause. Specifically, Berman claims: (1) Chapman knew that Turecki was a long time drug abuser; (2) Chapman knew that Turecki had accused Berman of blackmail in an action in state court and lost;
(3) Chapman knew that Turecki had previously threatened to kill Ms. Turecki and throw acid in her face; (4) Chapman knew that the state court judge had ruled in Ms. Turecki's favor in the litigation over Turecki's child support and alimony obligations.
This Court finds that the alleged misstatements would not either individually or collectively affect a reasonable officer's belief that probable cause existed. The inclusion of any or all of the alleged omitted information would not have materially impacted the probable cause determination. Summary relief should be granted "if the affidavit accompanying the warrant is sufficient, after correcting for material misstatements or omissions, to support a reasonable officer's belief that probable cause existed." Cartier, 955 F.2d at 845.
4. Service of Process
Having decided the Bivens claim on the merits, this Court need not reach Chapman's alternative claim that the action against him in his individual capacity should be dismissed for lack of service of process.
5. Subject Matter Jurisdiction
Having decided the Bivens claim on the merits, this Court need not reach Chapman's alternative claim that the action against him in his official capacity should be dismissed for lack of subject matter jurisdiction. The Court simply notes that under the doctrine of sovereign immunity, an action for damages will not lie against the United States without consent.
Because an action against a federal agency or federal officer in his official capacity is essentially a suit against the United States, such suits are also barred under the doctrine of sovereign immunity unless such immunity is waived.
See FDIC v. Meyer, 127 L. Ed. 2d 308, 114 S. Ct. 996, 1005-06 (1994). Consequently, to the extent that Berman's claim constitutes a Bivens action for damages against Chapman in his official capacity, it is properly dismissed for want of subject matter jurisdiction.
C. Claims Against Turecki
1. Failure to State a Cause of Action
As this Court earlier observed, Berman fails to allege any facts from which a common scheme or an agreement between Chapman and Turecki can be inferred. Berman merely makes the conclusory assertion that Turecki and Chapman entered into a conspiracy to deprive him of his rights under the First, Fourth, Sixth and Eighth Amendments. Complaint P 2. Berman provides no supporting facts, however, from which a trier of fact could infer a meeting of the minds between Chapman and Turecki concerning a course of action intended to deprive Berman of his constitutional rights. Consequently, Turecki's motion to dismiss should be granted. See San Filippo, 737 F.2d at 252; Ostrer, 567 F.2d at 553.
2. Private Individual
Private causes of action against a federal official for the deprivation of constitutional rights are governed by the Bivens decision. Bivens, however, did not provide a right to bring suit against a private citizen acting in his individual capacity. "It is axiomatic that a Bivens action can be brought only against one who is engaged in governmental (or state) action or, to put the matter another way, who is acting under color of federal law." Lewal, 1994 U.S. Dist. LEXIS 7826, *12, 1994 WL 263521 at *3.
In the instant action, plaintiff's complaint fails to provide any basis for a finding that Turecki was acting under color of federal law. Consequently, Turecki's motion to dismiss Berman's action should be granted.
Finally, even if Turecki were considered a government actor against whom a Bivens action could be maintained, as examined at greater length above, Turecki's action would still be barred by the principles of collateral estoppel and those propounded in Heck. Accordingly, Turecki's motion to dismiss should be granted.
For the reasons stated above, defendants' motion to dismiss this action are granted, and this action is dismissed in its entirety.
Dated: May 4, 1995
New York, New York
Peter K. Leisure