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*fn1 complain that agents of the Fish and Wildlife Service tortuously injured them, causing money damages. The case is now before the Court on Defendants' second motion (Docket No. 22) to dismiss the third cause of action, and for summary judgment. For the reasons stated below, Defendants' motion is denied.
The Court previously granted in part a defense motion to dismiss. See Decision and Order, VanZandt v. Fish & Wildlife Serv., No. 05-CV-6093 CJS, 2007 U.S. Dist. LEXIS 13613 (Feb. 28, 2007), familiarity with which will be presumed. This case stems from the execution of a search warrant in which the applicant, individual defendant, Special Agent Eileen Kiley, alleged that evidence of a violation of the Native America Graves Protection and Repatriation Act ("NAGPRA")*fn2 would be found at the VanZandt home. Although, the complaint set forth eleven causes of action, as a result of the Court's prior decision and order, only the following remain:
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*fn3 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. The Court allowed this cause of action to proceed under both the FTCA and Bivens.*fn4
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. The Court permitted this cause of action to go forward only under the FTCA.
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. This cause of action was permitted by the Court to go forward only under the FTCA.
EIGHTH COUNT-(Intentional Infliction of Emotional Distress as all defendants)-during the time it took to execute the Search Warrant, 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. This cause of action was permitted by the Court to go forward only under the FTCA.
NINTH COUNT-(Negligent Infliction of Emotional Distress as against all defendants)-Defendants negligently and recklessly and without justification caused severe emotional distress to Frank VanZandt, with damages in the amount of $200,000. This cause of action was permitted by the Court to go forward only under the FTCA.
ELEVENTH COUNT-(Derivative claim, stemming from the Fifth Count, of Barbara VanZandt as against all defendants)-as a result of the incident described in the complaint, Barbara VanZandt has been deprived of the services, society, affection, and consortium of Frank VanZandt and has been caused to expend large sums of money for his medical care and treatment, and continued to do so up until the time of his death, with damages in the amount of $100,000. This cause of action was permitted by the Court to go forward only under the FTCA.
In the present motion, Defendants first move for dismissal of the Third Count, the abuse of process claim against Kiley, contending that Plaintiffs have failed to state a cause of action under Federal Rule of Civil Procedure 12(b)(6). Then, evidently in the alternative, Defendants move for summary judgment under Rule 56(c) in favor of Kiley, based upon probable cause, qualified immunity and insufficiency of evidentiary proof. Plaintiffs oppose the motion.
Fed. R. Civ. P. 12(b)(6) Recently, the U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955 (May 21, 2007), clarified the standard to be applied to a 12(b)(6) motion: Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. W hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Commc's., Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]" as opposed to merely conceivable.) W hen applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999), cert. denied, 531 U.S. 1052 (2000). On the other hand, "[c]onclusory allegations of the legal status of Defendants' acts need not be accepted as true for the purposes of ruling on a motion to dismiss." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995) (citing In re Am. Express Co. S'holder Litig., 39 F.3d 395, 400-01 n.3 (2d Cir. 1994)).
NAGPRA contains a criminal sanction, which states as follows: § 1170. Illegal trafficking in Native American human remains and cultural items (a) Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit, the human remains of a Native American without the right of possession to those remains as provided in the Native American Graves Protection and Repatriation Act shall be fined in accordance with this title, or imprisoned not more than 12 months, or both, and in the case of a second or subsequent violation, be fined in accordance with this title, or imprisoned not more than 5 years, or both.
(b) Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit any Native American cultural items obtained in violation of the Native American Grave Protection and Repatriation Act shall be fined in accordance with this title, imprisoned not more than one year, or both, and in the case of a second or subsequent violation, be fined in accordance with this title, imprisoned not more than 5 years, or both.
18 U.S.C. § 1170 (1994) (emphasis added). NAGPRA protects Native American graves and cultural objects by defining their ownership as follows:
(a) Native American human remains and objects. The ownership or control of Native American cultural items which are excavated or discovered on Federal or tribal lands after the date of enactment of this Act [enacted Nov. 16, 1990] shall be (with priority given in the order listed)--
(1) in the case of Native American human remains and associated funerary objects, in the lineal descendants of the Native American; or
(2) in any case in which such lineal descendants cannot be ascertained, and in the case of unassociated funerary objects, sacred objects, ...