The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is a Federal Tort Claims Act ("FTCA") action in which plaintiffs complain that agents of the Fish and Wildlife Service tortuously injured them, causing money damages. The case is now before the Court on defendants' motion (# 9) to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), 12(b)(6) and 12(c). For the reasons stated below, the defendants' motion is granted in part, and denied in part.
From the complaint, the Court assumes the following as true for the purposes of this motion. Plaintiffs Barbara and Frank VanZandt were husband and wife living in a private home in Livingston County, New York. Frank VanZandt has since died. Ellen Kiley ("Kiley"), as an Agent of the Fish and Wildlife Service, was conducting an investigation of a Livingston County shop owner, who was alleged to have been selling Native American remains in violation of 18 U.S.C. § 1170 (Illegal trafficking in Native American human remains and cultural items). As part of her investigation, Kiley visited the VanZandt home on or about June 19, 2002, to view their rare and valuable family collection of items used and accumulated over seven generations. This collection included a large number of rare and valuable Civil War and Native American historical items. During the visit, Kiley offered to purchase some of the items but Frank VanZandt refused to sell them.
On or about June 24, 2002, Kiley obtained a search warrant from then U.S. Magistrate Judge William G. Bauer. She alleged in the warrant application that she had reason to believe that Frank VanZandt was selling Native American remains and cultural items, in violation of 18 U.S.C. § 1170.
On or about June 26, 2002, Kiley and the John Doe defendants, using their authority as Agents of the Fish and Wildlife Service, executed the search warrant at the VanZandt home. The VanZandts*fn1 allege that defendants negligently and willfully destroyed and converted property, and caused personal injuries to them. Specifically, they allege eleven causes of action as follows:
FIRST COUNT-(Negligence as against all Defendants)-defendants failed to protect the VanZandts and their property in that they negligently, recklessly, and carelessly damaged, destroyed, or removed, with no receipt given, a number of items belonging to the VanZandts.*fn2
SECOND COUNT-(Conversion as against all Defendants)-On or about June 26, 2002 the defendants converted to their own use a number of rare and valuable pieces from the family collection.*fn3
THIRD COUNT-(Abuse of Process as against Ellen Kiley and the Fish and Wildlife Service)-at the time of the application for the Search Warrant, defendants knew, or should have known, that Frank VanZandt was not guilty of any crimes under 18 U.S.C. § 1170 and that no evidence of any such crimes would be found at the VanZandt home.
FOURTH COUNT-(Conspiracy as against all defendants)-on or about June 24, 2002, defendants conspired together and maliciously and willfully entered into a scheme to apply for and execute a search warrant at the VanZandt home for the purposes of entering the home and converting some rare and valuable pieces from the family collection and thereby depriving the VanZandts of their property.
FIFTH COUNT-(Assault and Battery against all Defendants)-during the four hours of time the VanZandts allege it took for defendants to execute the search warrant, Frank VanZandt, a diabetic, was not permitted to eat and thereby suffered an aggravation of a previous condition, and became sick, sore, lame, and disabled, and remained disabled until the date of his death; suffered, and continued to suffer until the date of his death great physical and mental pain; was obliged to and did expend large sums of money for medical aid and attention; and was informed, and believed, that his injuries were permanent, and valued at $200,000.
SIXTH COUNT-(Violation of Civil Rights as against all defendants)-in executing the Search Warrant, the defendants used excessive force against the VanZandts; unreasonably intimidated them; falsely imprisoned them during the execution of the search warrant; and invaded their privacy, all in violation of 42 U.S.C. § 1983, with damages amounting to $200,000.
SEVENTH COUNT-(Negligence as against all defendants)-in executing the search warrant, defendants breached their duty of care to protect the VanZandts to the fullest extent possible, by failing to allow Frank VanZandt regular access to food, which was medically necessary to maintain his health, with damages amounting to $200,000.
EIGHTH COUNT-(Intentional Infliction of Emotional Distress as all defendants)-during the time it took to execute the Search Warrant, the defendants verbally assaulted and humiliated Frank VanZandt, made Frank VanZandt the object of derisive comments and gestures, and otherwise deliberately and maliciously harassed and intimidated Frank VanZandt; defendants' conduct was willful, intentional, unwarranted, and caused severe emotional distress to Frank VanZandt, with damages in the amount of $200,000.
NINTH COUNT-(Negligent Infliction of Emotional Distress as against all defendants)-defendants negligently and recklessly and without justification caused severe emotional distress to Frank ...