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MALDONADO v. PHARO

September 12, 1996

DANIEL MALDONADO, Plaintiff, against DAVID PHARO, in his individual capacity, and UNITED STATES OF AMERICA, Defendants.


The opinion of the court was delivered by: PARKER

 Plaintiff Daniel Maldonado ("Maldonado") brings this action against defendant Daniel Pharo ("Pharo") and the United States under the authority of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) *fn1" for violations of his constitutional rights, and for false arrest, malicious prosecution, and malicious abuse of criminal process, pursuant to the Federal Tort Claims Act ("FTCA"). Before the Court are defendants' motion for partial summary judgment, and defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). *fn2"

 FACTS

 On May 28, 1995, Maldonado was rafting on the Upper Delaware River in New York State with two companions, David Wheeler and Roger Mora. The trip was part of an annual Memorial Day outing which Maldonado had attended for approximately eighteen years.

 Pharo, National Park Service Ranger, was canoeing on the Delaware River on May 28, when he approached the three men and asked them what they were doing. Maldonado told him that they were rowing and that their raft was taking in water. Pharo then instructed them to stop what they were doing and go to shore. Once on shore, Pharo produced a white cylinder container that he claimed he found floating up from underneath the raft. He asked the men, "what is this?" The container in fact held .95 grams of marijuana.

 Pharo requested to search the raft, and Maldonado consented. After searching and finding no drugs, Pharo radioed in a call that he had detained three "Hispanic males." Neither Maldonado nor any of his companions had informed Pharo that they were in fact Hispanic. Pharo then gave Maldonado a Notice of Violation for the unlawful possession of a controlled substance (less than one ounce) which ordered him to appear in the United States District Court for the Southern District of New York on July 13, 1995.

 Many of the facts pertaining to the May 28 incident are in dispute. Maldonado claims he had never been in possession of the container, nor was in he possession of any marijuana at any point during the rafting trip, and that Pharo had no legitimate reason to detain him and his companions.

 Pharo tells a much different story. He claims that when he pulled up alongside Maldonado in the river, he saw Maldonado holding a white object that resembled a cigarette, and that Maldonado subsequently thrust this object into the river. Pharo also claims that, upon questioning Maldonado, he detected an odor of marijuana on plaintiff's breath. He further claims that he observed the white container float to the surface from underneath Maldonado's raft. Finally, he claims that Maldonado was belligerent and uncooperative, repeatedly disobeying Pharo's orders to remain seated during the event.

 Maldonado appeared before United States Magistrate Judge Goldberg at the United States District Court for the Southern District of New York on July 13, 1995. His attorney advised the Court that Maldonado planned to plead not guilty to the charge of unlawful possession of less than one ounce of marijuana. Judge Goldberg directed him to return on August 17, 1995. On that date, the government moved to dismiss the charges against Maldonado. Counsel from the United States Attorney's Office stated that "based on further investigation by the government and the circumstances surrounding the issuance of the citation, the government moves to dismiss." The Court granted the motion, and criminal charges against Maldonado for the incident on May 28, 1995 were dismissed. This litigation followed.

 Maldonado brings Bivens claims for false arrest and malicious prosecution under the Fourth and Fourteenth Amendments to the Constitution against Pharo. He further brings Bivens claims for malicious abuse of process and violation of Equal Protection under the Fifth and Fourteenth Amendments to the Constitution against Pharo. Maldonado also brings the claims for false arrest, malicious prosecution, and malicious abuse of process against the United States, pursuant to the FTCA.

 Defendants move pursuant to Fed.R.Civ.P. 56 for summary judgment on Maldonado's malicious prosecution claims and malicious abuse of process claims, and move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss his Equal Protection claim. Defendants also request that this Court bifurcate the FTCA false arrest claim, and to hold an evidentiary hearing to resolve the issue of probable cause.

 DISCUSSION

 A. Summary Judgment ...


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