The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM DECISION AND ORDER
This case concerns allegations by the Plaintiffs under the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671-2680, and
42 U.S.C. § 1983 against the United States and several agents of the
Federal Bureau of Investigation ("FBI"). Presently before the
Court are the Plaintiffs' motion to amend the complaint and the
Defendants' motion for partial summary judgment.
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
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.
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