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April 21, 1997

THE UNITED STATES OF AMERICA, et al., Defendants. DANIEL ADAMI, Plaintiff, -v- THE UNITED STATES OF AMERICA, et al., Defendants.

The opinion of the court was delivered by: RAKOFF



 These consolidated cases arise from a Ragnarok-like confrontation on March 4, 1993 between agents of the federal Drug Enforcement Agency ("DEA") and employees of the New York City Department of Transportation ("DOT"). While many material facts remain genuinely in dispute, this much seems clear:

 At approximately 6:00 p.m. on March 4, 1993, plaintiff Daniel Adami, a DOT employee, was supervising other DOT employees preparing to tow an illegally parked vehicle from the streets of mid-town Manhattan, when he was approached by DEA Agent Robert Stia, who informed him that the vehicle was being employed in a Government surveillance operation then underway. Adami Dep. at 136, 149. Adami radioed his supervisor, Captain Pedro Rodriguez, who instructed Adami to proceed with the tow, stating it was department policy to finish a tow once a vehicle was already hooked and raised. Id. at 154-59. Adami relayed this information to Stia but added that he would attempt to obtain authorization from the New York City Police Department ("NYCPD") to desist from the tow. Id. at 167. Stia responded that "someone is going to get arrested" if the vehicle was not released. Id. at 163. Accordingly, Adami entered the cab of his tow truck, with the engine still running, to radio the NYCPD for permission to stop the tow. Id. at 166-71. But even as Adami waited for a response, Stia and several other DEA Agents, including Donald Bailey, David McNamara, and Kevin Mancini, opened the cab door, pulled Adami's arm behind his back and head, forced him outside, and arrested him (charging him with obstruction of justice in violation of 18 U.S.C. § 111). Id. at 173, 177-86. Adami was then placed in a DEA van, which drove off -- with two DOT tow vehicles in hot pursuit.

 Morales parked his own vehicle a short distance away and walked toward the wedged trucks. Morales Dep. at 172-74. By now, four or five more DOT vehicles had arrived at the scene. McNamara Dep. at 73-74. At this point, another DEA agent, Robert Smith, approached Morales, who was wearing a DOT uniform. Smith Dep. at 69. Smith, whose gun was drawn, id. at 54-55, repeatedly inquired of Morales as to who had driven the large tow truck that had rammed the DEA van, see Morales Dep. at 181-84; McNamara Dep. at 76-77; Matta Dep. at 53. When Morales replied that he did not know, Morales Dep. at 181, Smith grabbed Morales, who unsuccessfully attempted to pull away. Id. at 183-84, 188. Smith then placed Morales under arrest and allegedly (though this is disputed) slammed Morales against a nearby vehicle, twisted his arm, and kneed him in the groin area. Id. at 193, 211. Like Adami, Morales was charged with obstruction of justice in violation of 18 U.S.C. § 111.

 Four months later, on July 16, 1993, all charges against Adami and Morales were dismissed without prejudice. A year or more after that, Adami and Morales separately filed the instant actions, alleging various federal and state claims arising from the aforementioned events. The actions were subsequently consolidated for all purposes. Following discovery, the parties filed motions, which this Court (to whom the cases were reassigned on March 1, 1997) resolved in a summary order dated March 31, 1997. This memorandum will serve to reaffirm those rulings and briefly to state the reasons therefor.

 At the outset, the Government contends that it is shielded from any and all liability under the "discretionary function exception" to the Federal Tort Claims Act ("FTCA"), see 28 U.S.C. § 2680(a). But although the "discretionary function exception" exempts the Government from tort liability for certain acts of its agents that "involve an element of judgment or choice," United States v. Gaubert, 499 U.S. 315, 322, 113 L. Ed. 2d 335, 111 S. Ct. 1267 (1991), its purpose is to "prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Id. at 323. Here, while the DEA agents' decisions to arrest and prosecute plaintiffs for obstruction of justice involved an element of discretion, nothing in those decisions involved the "balancing of policy factors" or considerations of public policy that the discretionary function exception is designed to protect. See Caban v. United States, 671 F.2d 1230, 1232-33 (2d Cir. 1982) (exception does not protect discretionary decision of INS agent to detain aliens because the decision to detain does not "involve a choice between competing policy considerations"); see also Wilson v. United States, 767 F. Supp. 551, 552 (S.D.N.Y. 1991) (noting that "claims for false imprisonment and malicious prosecution do not fall within the discretionary function exception"). Instead, the discretionary function exception "protects only governmental actions and decisions based on considerations of public policy," and not the kinds of decisions involved here. Berkovitz v. United States, 486 U.S. 531, 537, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988); see also Gaubert, 499 U.S. at 322-24. Indeed, to expand the exception to encompass any government act or decision that simply involved the exercise of discretion would entirely eviscerate, and contradict, the Government's waiver of sovereign immunity under the FTCA.

 The individual DEA agent defendants -- against whom claims of constitutional violations are asserted pursuant to the doctrine 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) -- likewise seek wholesale dismissal, claiming they are entitled to qualified immunity. See Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995). But as the Court indicated at the March 25, 1997 hearing in this matter, see transcript, material disputed facts in the record now before the Court preclude the Court from presently determining the qualified immunity of these "Bivens " defendants as a matter of law. See In re State Police Litig., 88 F.3d 111, 124-25 (2d Cir. 1996); Warren v. Keane, 937 F. Supp. 301, 306 (S.D.N.Y. 1996) (citing Warren v. Dwyer, 906 F.2d 70 (2d Cir.), cert. denied, 498 U.S. 967, 112 L. Ed. 2d 414, 111 S. Ct. 431 (1990)). For example, there is a genuine factual dispute as to whether the DEA agents who arrested plaintiff Adami knew that he was entering his truck solely for the purpose of obtaining NYCPD permission to stop the tow. If they so understood, then they (and any reasonable DEA agent similarly situated) necessarily lacked a basis for believing that Adami had any intention of obstructing justice. Similarly, there is a genuine factual dispute as to whether agent Smith had any reasonable basis to infer that plaintiff Morales had anything to do with the truck jamming. If not, neither Smith nor any reasonable DEA agent similarly situated would have had a basis for grabbing Morales. See Lennon, 66 F.3d at 423-24.

 Given the factually disputed nature of the qualified immunity issues, it follows that the Court must also deny Morales' cross-motion for summary judgment on his claims of false arrest, as there remain disputed issues as to whether Agent Smith had probable cause to arrest Morales for obstruction of justice. See, e.g., United States v. Moreno, 897 F.2d 26, 31 (2d Cir.), cert. denied, 497 U.S. 1009, 110 S. Ct. 3250, 111 L. Ed. 2d 760 (1990).

 The Court likewise denies defendants' motion to dismiss plaintiff Adami's claims of excessive force and assault, *fn1" since, on the evidentiary record presented on this motion, the Court cannot determine, as a matter of law, that "no rational jury could have found that the force used [by defendants] was so excessive that no reasonable officer would have made the same choice." See Lennon, 66 F.3d at 426. Adami has testified that, without consultation or warning, the various DEA agents pulled him out of his car, threw him against the side and hood of his truck, and violently pulled his arm behind his back. Whether these actions were necessary, as the Government contends, to avoid Adami's driving off in the truck or to control him in resisting of arrest, cannot be determined by the Court based upon the conflicting testimony presented here.

 On the other hand, the Court does grant the motion of the "Bivens " defendants to dismiss the malicious prosecution claims against them, as the plaintiffs have failed to meet their burden of "showing some post-arraignment deprivation of liberty that rises to the level of a constitutional violation." Singer v. Fulton County Sheriff, 63 F.3d 110, 117 (2d Cir. 1995), cert. denied, 134 L. Ed. 2d 779, 116 S. Ct. 1676 (1996). Although the Second Circuit in Singer did not expressly define what kinds of post-arraignment deprivations would constitute a constitutional injury, the Court of Appeals did suggest that where -- as here -- the arrested person is released after arraignment, has no restrictions on travel, is not required to post bail, and is only required to appear at subsequent hearings (at which time the charges are dismissed), there may not be an injury "sufficient to implicate the Fourth Amendment." Id. at 117 & n.6. At least one judge of this District has applied Singer to malicious prosecution claims against state police officers, concluding that there was an insufficient deprivation even where plaintiff was required to appear in court three times and incurred $ 13,000 in legal fees. Niemann v. Whalen, 911 F. Supp. 656, 670-71 (S.D.N.Y. 1996) (Conner, J.). The Court agrees with Judge Conner's reasoning and concludes that, absent any indication that a plaintiff was subject to material restrictions on liberty greater than those here alleged, there is no injury of a constitutional dimension to support a claim of malicious prosecution pursuant to Bivens.

 The same analysis does not apply, however, to plaintiffs' malicious prosecution claims against the Government, which are grounded in state tort law rather than (as in the Bivens claims) being premised on constitutional violations. Here there remains a genuinely disputed material issue of fact as to whether the criminal prosecutions of Adami and Morales were "terminated in their favor," an essential element of such a claim. See Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980). Although the criminal charges against Adami and Morales were dismissed "without prejudice" and the statute of limitations for the charges of obstruction of justice (five years) has not yet expired, plaintiffs have introduced some indirect evidence (albeit of limited admissibility) that, after the criminal charges were dismissed, the Assistant United States Attorney in charge of prosecuting Adami and Morales for criminal obstruction of justice indicated that there was no basis for the charges against them. See Kaplan Aff; Friess Aff. Accordingly, taking all reasonable inferences most favorably to plaintiffs, summary judgment must be denied. See Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994).

 On the other hand, with respect to plaintiffs' claims of malicious abuse of criminal process, summary judgment must be granted to all defendants, since plaintiffs have failed to adduce admissible evidence of any impermissible "collateral objective" on the part of defendants to further use already-issued criminal processes against Adami and Morales for an improper purpose. See Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). "The mere act of issuing process does not give rise to a claim [for malicious abuse of criminal process]," see Lopez v. City of New York, 901 F. Supp. 684, 691 (S.D.N.Y. 1995), because "the gist of abuse of process is the improper use of process after it is regularly issued." Cook, 41 F.3d at 80. Thus, because plaintiffs have, at most, simply adduced ...

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