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May 18, 2000


The opinion of the court was delivered by: Spatt, District Judge.


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 otherwise noted.

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 threat.

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 motions together.


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. 1997).

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 ...

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