The facts described below are uncontested except where
On August 7, 1996, Special Agent Rocco Inneo of the FBI was
operating an undercover "fencing" operation as part of a broader
FBI investigation into goods stolen from cargo shipments at John
F. Kennedy Airport. In the course of his operations, Inneo was
introduced to an individual named "Rock" by Frank Auriemma, an
associate of the Gambino organized crime family. "Rock" was
driving a green Dodge van which contained $73,000 in stolen
computer equipment that Inneo purchased, and that Auriemma and
"Rock" helped unload.
Tracing the license plate number of the van driven by "Rock,"
the FBI determined that the vehicle was registered to Tammy Luzio
(a.k.a. Plaintiff Tammy Anderson) ("Tammy"), at 51 Bayberry Lane
in Levittown, N.Y. Further investigation revealed that the same
address was once claimed as a residence on a driver's license by
Ray Luzio, Jr. ("Ray"), and that telephone service at that
address is in the name of "Ray Luzio." The FBI set up
surveillance of the residence and observed the green van driven
by "Rock" parked in Tammy's driveway on several occasions and
that a person fitting the description of "Rock" appeared to
reside at that address. In May 1997, Inneo was shown Ray's
driver's license photo and Inneo positively identified Ray as
"Rock." Based on this information, Ray was indicted on counts of
theft from interstate shipments and conspiracy. An arrest warrant
for "Raymond Luzio, a.k.a. Rock," was issued on May 1, 1997. On
May 7, 1997, the FBI simultaneously executed some 70 arrest
warrants resulting from the undercover operation, including the
warrant for Ray's arrest. Because of his affiliation with a
member of the Gambino crime family, the FBI instructed its agents
to consider Ray "armed and dangerous."
At approximately 6:00 a.m. on the morning of May 7, 1997, eight
FBI agents and two other government agents went to 51 Bayberry
Lane, which, based on the FBI investigation and surveillance,
they believed to be Ray's residence. At the time the agents
arrived, Tammy was leaving the house. According to the complaint,
the agents drew firearms and pointed them at Tammy. The agents
asked Tammy if Ray was inside the house, and she indicated that
Ray, who is her brother, had not lived there for several years,
and that the telephone account was in the name of Ray Luzio, Sr.
Two agents remained outside with Tammy while the remainder
entered the open door of the house, over Tammy's objection, to
search for Ray. Once inside the house, the agents located the
Plaintiff Keith Anderson ("Anderson"), who the agents mistook for
Ray based on the driver's license photo they had reviewed and on
the basis that Anderson matched the physical description of
"Rock" given by Agent Inneo. Anderson and his 3 year-old son,
Plaintiff Keith Anderson, Jr. ("Keith Jr."), who were sleeping in
the same bed, were awakened at gunpoint by the agents. Anderson
was handcuffed and brought to the kitchen where the Plaintiffs
allege he was thrown to the floor and his face shoved into a
kitchen garbage can and restrained. Other agents continued
searching the house for additional occupants, and encountered
Plaintiffs Sara Kastin (carrying her 10-month old sister,
Plaintiff Chelsea Anderson) and Adam Kastin in other rooms of the
house. The parties agree that the agents drew their guns on both
Sara and Adam, although the Defendants contend that it was only
momentarily, until they recognized that the children were not a
The agents brought all the occupants of the home into the
kitchen where Anderson remained handcuffed with his face in the
garbage can. Anderson insisted that he was not Ray and claimed
that his driver's license out in the van would prove it.
Apparently, the agents were simultaneously interrogating the
children regarding the whereabouts of Ray. According to the
Tammy directed the agents to stop interrogating the children.
Eventually, Tammy was allowed to retrieve Anderson's driver's
license from the van, and once the agents determined that
Anderson was not Ray, the agents removed the handcuffs from Ray
and he was allowed to sit at the kitchen table. One of the
children provided the agents with Ray's telephone number, and the
agents left the property, although two agents stayed on briefly
in order to prevent anyone from calling Ray and warning him of
the agents' intentions. The parties generally agree that the
entire course of events took approximately one hour.
Ray was subsequently arrested on May 7, 1997. A person who was
with Ray at the time of his arrest insisted to the FBI that they
had the wrong man, and that Anderson was actually the person
known as "Rock." The FBI later relayed this information to Inneo,
who, after reviewing another photo of Ray, agreed that Ray was
not the driver of the green van. Eventually, the FBI indicted and
arrested Anderson on charges of conspiracy to steal goods from an
interstate shipment and possession of stolen property. In an
April 1, 1998 decision in the case of U.S. v. Keith Anderson,
98-CR 114, United States District Judge Charles P. Sifton
observed that Ray and Anderson "bear an uncanny resemblance to
each other." The Plaintiffs do not expressly deny such a
resemblance; in their Local Rule 56.1 Counterstatement of facts,
the Plaintiffs simply state that "plaintiffs do not see this
resemblance." Anderson was eventually acquitted of the charges
following a jury trial.
The Plaintiffs then filed this lawsuit, naming the United
States, Special Agent Vincent Piazza, and unknown agents of the
FBI as Defendants. The complaint contained two causes of action,
one alleging various tort claims of assault and battery, false
imprisonment, false arrest, and negligence, and the other
alleging a violation of the Plaintiffs' Fourth Amendment rights,
although the Plaintiffs fail to otherwise explain the legal basis
for the Constitutional claim.
Following discovery, the Plaintiffs moved to amend the
complaint under Fed. R.Civ.P. 15(a) to specifically identify four
particular agents involved by name and to omit reference to
Special Agent Piazza. The proposed amended complaint made no
material changes to the facts alleged or the causes of action
claimed by the Plaintiffs. The Defendants oppose the amendment on
the grounds of futility, and also filed a motion for summary
judgment pursuant to Fed.R.Civ.P. 56. The Defendants' motion
contends that the Constitutional claim in the second cause of
action should be dismissed, and that the amendment of the claim
to add the individual defendants should be denied on the grounds
that the proposed amended complaint fails to allege sufficient
personal involvement of each individual Defendant in the
Constitutional violations. Further, the Defendants claim that the
individual Defendants are entitled to summary judgment on the
basis of qualified immunity. In addition, the Defendants argue
that the tort claims against the individuals are barred by the
Federal Tort Claims Act, and that such claims can only be alleged
against the United States.
Because the Defendants' opposition to the motion to amend is
premised on essentially the same arguments as those supporting
their motion for summary judgment, the Court will consider both
Summary judgment is appropriate where the record "show[s] that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." Fed.
R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden of
showing that no genuine factual issue exists rests on the moving
party. See Gallo v. Prudential Residential Servs., Ltd.
Partnership, 22 F.3d 1219, 1223 (2d Cir.
1994). All ambiguities must be resolved and all inferences must
be drawn in favor of the party against whom summary judgment is
sought. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); D'Amico v. City of New
York, 132 F.3d 145, 149 (2d Cir. 1998). The non-moving party may
not rely on mere conclusory allegations nor speculation, but
instead must offer some hard evidence showing that its version of
the events is not wholly fanciful. D'Amico, 132 F.3d at 149;
Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir.
Fed.R.Civ.P. 15(a) provides that "leave [to amend a pleading]
shall be freely given when justice so requires." See also Zahra
v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995); Block v.
First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993).
However, leave to amend is not granted automatically or
reflexively. Denial of a Rule 15(a) motion may be appropriate
where the proposed amendment, if allowed, would nevertheless fail
to state a cause of action and thus, granting leave to amend
would be futile. Forman v. Davis, 371 U.S. 178, 182, 83 S.Ct.
227, 9 L.Ed.2d 222 (1962); accord Zahra, 48 F.3d at 685;
Block, 988 F.2d at 350; Ruffolo v. Oppenheimer & Company,
987 F.2d 129, 131 (2d Cir. 1993).
The Plaintiffs' first cause of action, which alleges various
torts against the Defendants, is governed by the FTCA. Section
2679(b)(1) of Title 28 states:
The remedy against the United States . . . for injury
. . . arising or resulting from the negligent or
wrongful act or omission of any employee of the
Government while acting within the scope of his
office or employment is exclusive of any other civil
action or proceeding for money damages by reason of
the same subject matter. . . .
The exclusivity of the remedy against the United States under the
FTCA, requires that the United States be substituted as the party
defendant upon certification by Government that the defendant
employees were acting within the scope of their employment.
28 U.S.C. § 2679(d); B & A Marine Co. v. American Foreign Shipping
Co., 23 F.3d 709, 712 (2d Cir. 1994). The United States Attorney
has submitted such a certification of employment for the
individual agents in this case, and therefore, any claims for
tortious acts by any of the individuals are governed by the
exclusivity provisions of the FTCA.
Thus, to the extent the Plaintiffs' motion to amend seeks to
allege tort claims against the named individuals, the motion is
denied as futile. To the extent such claims are alleged against
Victor Piazza or other individual FBI agents in the original
complaint, the Defendants' motion for summary judgment dismissing
those claims against Piazza and the other agents is granted. The
first cause of action, to the extent it alleges common-law torts,
shall continue only as against the Defendant United States.
To the extent that the Plaintiffs allege in their Second Cause
of Action that their rights to be free from unreasonable searches
and seizures under the Fourth Amendment were violated by the
individual Defendants, such claims are governed by the seminal
case of Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971); see also Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct.
1692, 143 L.Ed.2d 818 (1999). A Bivens claim can only be
asserted against the individual alleged to have caused the
Constitutional deprivation, and thus, Bivens claims asserted
against a federal agency must be dismissed. Federal Deposit Ins.
Corp. v. Meyer, 510 U.S. 471, 486, 114 S.Ct. 996, 127 L.Ed.2d
308 (1994). Thus, to the extent the Plaintiffs allege
Constitutional violations against the Defendants United States,
or the FBI, the Defendants are granted summary judgment on those
The Defendants oppose amendment of the complaint to add
agents as Defendants on the Bivens claims, and seek summary
judgment dismissing those claims against Special Agent Piazza on
the grounds of qualified immunity. A claim of qualified immunity
in a Bivens action is considered under the same standards as a
qualified immunity defense in a Section 1983 case. Wilson, 526
U.S. at 609, 119 S.Ct. 1692; Jones v. New York State Div. Of
Military and Naval Affairs, 166 F.3d 45, 51 (2d Cir. 1999).
Faced with a defense of qualified immunity, the Court must first
determine whether the plaintiff has alleged the deprivation of an
actual constitutional right at all, and if so, proceed to
determine whether that right was clearly established at the time
of the alleged violation. Wilson, 526 U.S. at 609, 119 S.Ct.
1692; Conn v. Gabbert, 526 U.S. 286, 119 S.Ct. 1292, 143
L.Ed.2d 399 (1999). In Anderson v. Creighton, 483 U.S. 635,
639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Supreme Court
explained that the meaning of "clearly established" in this
context depends largely "upon the level of generality at which
the relevant `legal rule' is to be established." 483 U.S. at 639,
107 S.Ct. 3034. While it is clearly established that the Fourth
Amendment applies to the actions of federal agents, the Court in
Creighton explained that the right allegedly violated must be
defined at the appropriate level of specificity before a court
can determine if it was clearly established. 483 U.S. at 641, 107
S.Ct. 3034. The claims of each of the Plaintiffs will be analyzed
separately under these standards.
A. As to Plaintiff Tammy Anderson
Tammy's Bivens claims are premised on the fact that FBI
agents entered her home and detained her in violation of the
Fourth Amendment. Read in the light most favorable to Tammy, the
complaint might also contain an allegation that the FBI agents
used excessive force, in that they drew their weapons while
Notably, the Plaintiffs do not attack the validity of the
arrest warrant. An arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a
dwelling in which the suspect lives when there is reason to
believe the suspect is within. Wilson, 526 U.S. at 611, 119
S.Ct. 1692, citing Payton v. New York, 445 U.S. 573, 602, 100
S.Ct. 1371, 63 L.Ed.2d 639 (1980); U.S. v. Lovelock,
170 F.3d 339 (2d Cir. 1999). So long as the authorities have a reasonable
belief that a suspect will be found at a given residence, it is
not necessary that the belief also be correct. Maryland v.
Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987);
Lovelock, 170 F.3d at 342. Thus, so long as the FBI agents
reasonably believed that Ray resided at 51 Bayberry Lane, their
execution of the warrant at that address was proper despite the
fact that their belief was erroneous.
The Plaintiffs argue that the FBI did not have reason to
believe that Ray lived at 51 Bayberry Lane because Ray's driver's
license only gave 51 Bayberry Lane as a former, not current
address. The Court finds this argument to be unpersuasive.
Besides confirming that Ray had once listed Bayberry Lane as his
residence at one time, the FBI had determined that telephone
service at the house was in the name of "Ray Luzio." Agent Inneo
had positively identified a man named "Ray Luzio" as the man he
knew as "Rock," and the van driven by "Rock" was registered to
and parked regularly at the house. Most importantly, a man
fitting Ray's description had been observed by the FBI at the
premises acting in a manner that suggested he resided there.
While reliance on an outdated driver's license, taken alone,
might not constitute a reasonable basis for believing Ray resided
at 51 Bayberry Lane, the combination of facts uncovered by the
FBI prior to executing the warrant support a reasonable belief
that "Rock" was Ray Luzio, and that Ray could be found residing
at 51 Bayberry Lane. Accord Lovelock, 170 F.3d at 344 ("Though
Lovelock attempts to segment, isolate, and minimize each item of
that contributed to the existence and reasonableness of the
officers' belief, . . . the totality of the information possessed
by the officers gave them no reason to doubt that Williams was
then a resident of the attic apartment"); see also U.S. v.
Manley, 632 F.2d 978, 983-84 (2d Cir. 1980). Since the FBI had a
reasonable basis to believe that Ray resided at 51 Bayberry Lane,
their entry onto the premises to execute a valid warrant for his
arrest did not violate the Plaintiffs' Fourth Amendment rights.
The brief detention of Tammy by the agents during the execution
of the warrant also does not amount to a Fourth Amendment
violation. In Michigan v. Summers, 452 U.S. 692, 101 S.Ct.
2587, 69 L.Ed.2d 340 (1981), the Supreme Court rejected a Fourth
Amendment claim brought by a person who was detained outside of
his apartment while police executed a valid search warrant for
the interior. The Court found that the detention of persons
present when a judicial warrant is executed does not constitute a
Fourth Amendment violation, 452 U.S. at 701, 101 S.Ct. 2587, and
that detention of the property owner on the sidewalk outside the
house was no more intrusive than detention within the property.
452 U.S. at 702 n. 16, 101 S.Ct. 2587. Here, the FBI detained
Tammy for a reasonable period of time while the warrant was being
executed and the premises secured. Since the Fourth Amendment
permits such detention pursuant to the execution of a valid
warrant, Tammy has failed to articulate any clearly established
Constitutional right that was allegedly violated by her
Finally, any Bivens claim by Tammy that the agents' drawing
of their weapons during these events constitutes excessive force
must be rejected. While the proposed amended complaint alleges
that "the aforementioned agents drew and aimed their various
types of firearms at the plaintiff, Tammy Anderson," Tammy was
asked at her deposition "Do you recall at any point during this
them being — he weapons being directed at you," and she responded
"Not that I recall." In light of this admission, the Defendants
are entitled to summary judgment on any claim by Tammy of
Thus, Tammy has failed to allege that she suffered a violation
of any clearly established Constitutional right at the hands of
any of the Defendants, nor does the proposed amended complaint
remedy this defect. The Defendants are therefore entitled to
summary judgment on Tammy's Bivens claims, and the Plaintiffs'
motion for leave to amend the complaint to allege such claims
against individual agents is denied as futile.
B. As to Plaintiff Keith Anderson
Anderson contends that the FBI violated his Fourth Amendment
rights by mistakenly arresting him and used excessive force
against him by forcing his head into the garbage can.
Once again, the Court begins from the premise, unchallenged by
the Plaintiffs, that the FBI entered Tammy's house pursuant to a
valid warrant for the arrest of Ray. The Fourth Amendment is not
violated by an arrest based on a warrant supported by probable
cause, even if the wrong person is arrested, so long as the
arresting officer had a reasonable, good faith belief that he was
arresting the correct person. Hill v. California, 401 U.S. 797,
91 S.Ct. 1106, 28 L.Ed.2d 484 (1971); U.S. v. Rosario,
543 F.2d 6, 8 (2d Cir. 1976). Here, the Plaintiffs do not allege that
Anderson's arrest was motivated by bad faith. Thus, if the FBI
had a reasonable basis to believe that Anderson was Ray for the
brief period of time that they detained him, no Fourth Amendment
violation has been alleged. In determining the reasonableness of
that belief, the Court should consider the fact that police
officers are often forced to make split-second judgments in
situations that are often tense, uncertain, and rapidly evolving.
v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d
At the time the FBI entered Anderson's house to execute the
warrant, agents had been told that the subject of the warrant was
a white male, 34 years old, and approximately 6 feet tall. In
addition, the FBI agents had viewed a driver's license photo of
the subject, and were aware that a man of that general physical
description had been observed by FBI surveillance residing there.
Upon entering the house, the agents encountered Anderson, who is
admittedly a white male, who was then approximately 35 years old,
and is "about" five foot ten. In light of the physical
similarities between the two men, the Court finds that the
agents' belief that Anderson was Ray was not unreasonable. In
this regard, it is notable that Judge Sifton has previously found
that Anderson and Ray "bear an uncanny resemblance to each
other." However, even ignoring this finding, it is nevertheless
clear from the driver's license photograph of Ray and the
photograph of Anderson submitted by the Plaintiffs that the two
men share some degree of physical similarity.
Furthermore, at the same time Anderson was being arrested, a
sweep of the house by other FBI agents failed to turn up any
other person meeting Ray's physical description, thus reinforcing
their belief that Anderson must be the man they were searching
for. While the Plaintiffs contend that Anderson does not resemble
Ray because Ray wears a beard and long hair in his driver's
license photo while Ray was clean-shaven and short-haired, the
absence of any other person matching Ray's description on the
property reasonably reinforced the FBI's belief that they had the
correct man. Moreover, the decision to detain Anderson was
premised on the FBI's knowledge that the subject of their warrant
had ties to a known organized crime figure and could potentially
be armed. Examined in the context of a sudden, tense
confrontation with an individual who could have been armed, the
Court finds that the FBI's belief that Anderson was the man named
in their warrant was reasonable. See Thompson v. Prince William
County, 753 F.2d 363, 364-65 (4th Cir. 1985) (misidentification
of plaintiff as the suspect was not unreasonable where the
plaintiff and suspect possessed several similar attributes).
Since the FBI's mistake was not unreasonable, the arrest of
Anderson does not amount to a Constitutional violation.
Anderson's continued detention, despite his protests that he
was not Ray, was also reasonable. It is certainly not uncommon
for the subjects of arrest warrants to object, even vociferously,
when they are apprehended, White v. Olig, 56 F.3d 817 (7th Cir.
1995), and thus, police officers making an arrest are not
required to investigate independently every claim of innocence by
the arrestee. Mensh v. Dyer, 956 F.2d 36, 40 (4th Cir. 1991),
citing Baker v. McCollan, 443 U.S. 137, 145-146, 99 S.Ct. 2689,
61 L.Ed.2d 433 (1979). Given the tense nature of the situation,
the Court finds nothing unreasonable about the detention of
Anderson until the protective sweep of the house was completed
and the agents had an opportunity to review Anderson's
identification. Mensh, 956 F.2d at 40 ("In the ensuing
confusion, a brief detention to question Mr. Mensh's assertions,
reevaluate the situation and secure the scene was prudent and
Finally, Anderson claims that the agents used excessive force
in pushing his head into the garbage can while he was handcuffed.
While there may be a question of fact as to whether this degree
of force was objectively reasonable under the circumstances, the
Court need not reach that issue as Anderson does not specifically
identify the individuals he alleges are responsible for the act.
Anderson testified that a black FBI agent in charge of the team
first awakened him, but that "they," meaning "a couple of
assisting officers" actually handcuffed him and brought him
to the kitchen. (Proposed Defendant Stith is the black agent
identified by Anderson.) Neither Anderson's deposition testimony,
nor any of the other depositions in the record before the Court
provide sufficient information to identify which agent is alleged
to have pushed Anderson's head in the garbage can. In the absence
of proof identifying the particular individual alleged to have
used excessive force, Anderson cannot maintain a Bivens action
against any individual Defendant based simply on a respondeat
superior theory. Jett v. Dallas Independent School Dist.,
491 U.S. 701, 735, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989).
Therefore, the Defendants are entitled to summary judgment
dismissing Anderson's Bivens claims.
C. As to Plaintiffs Adam Kastin, Sara Kastin, Chelsea Anderson
and Keith Anderson, Jr.
Plaintiffs Sara Kastin, Adam Kastin, Chelsea Anderson, and
Keith Anderson, Jr. each appear to assert Bivens claims that
their Fourth Amendment rights were violated when they were
briefly detained and questioned by the agents and that the agents
used excessive force by pointing weapons at them during a search
of the house.