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Alcantara v. City of New York

June 23, 2009

DIEGO ALCANTARA, PLAINTIFF,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge

OPINION AND ORDER

This is a malicious prosecution action arising out of an undercover federal investigation into drug-money laundering known as "Operation White Dollar." In October 2001 the plaintiff was tentatively identified as the drug-money courier in a transaction observed by Special Agents Mark Crane, John Oldano, and Michael Dellamura of the United States Department of Justice Drug Enforcement Administration (the "DEA"), who were conducting surveillance pursuant to Operation White Dollar. The transaction was between the courier and an undercover officer employed by the Office of the Special Narcotics Prosecutor for the City of New York (the "UC"). The tentative identification was made in several DEA Reports of Investigation ("DEA Reports") by Special Agent Crane summarizing the surveillance, one of which explained that the basis for the identification was that the vehicle driven by the courier on the night of the transaction was registered to the plaintiff. The DEA reports were also signed by DEA Special Agent Nicholas Caruso, who supervised the surveillance.

Over two-and-one-half years later, in the spring of 2004, the plaintiff was indicted by a Grand Jury for offenses related to money laundering. The charges were based on the transaction observed in the course of surveillance in October 2001. The plaintiff was arrested pursuant to a warrant signed by a magistrate judge, arraigned on the charges, and detained in federal prison for 72 days before making reduced bail. On January 10, 2005, at the request of the Government, the district court issued a nolle prosequi order "in the interests of justice."

The plaintiff now brings this action for malicious prosecution against Special Agents Crane, Oldano, Dellamara, and Caruso (the "DEA defendants") in their individual capacities pursuant to Bivens

v.

Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and against the UC in his individual and official capacities pursuant to 42 U.S.C. § 1983.*fn1 The defendants move to dismiss the action or, in the alternative, for summary judgment.

I.

All of the parties, including the plaintiff, have submitted declarations, numerous exhibits, and Local Rule 56.1 Statements of Undisputed Material Facts. The defendants' motions plainly placed the plaintiff on notice that the defendants sought summary judgment as an alternative to their motions to dismiss. Because all parties have submitted declarations, exhibits, and 56.1 Statements, and the Court has considered them, the Court will treat these motions as motions for summary judgment. See Rutilgiano v. City of New York, No. 07 Civ. 4614, 2008 WL 110946, at *2 (S.D.N.Y. Jan. 2, 2008) ("[T]he essential inquiry [in converting a motion to dismiss to a summary judgment motion] is whether the non-movant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment . . . .") (quoting Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir. 1990); see also Haji v. United States, No. 08 Civ. 2230, 2009 WL 602972, at *1 (S.D.N.Y. Mar. 9, 2009); Frimpong v. 1199SEIU United Healthcare Workers East, No. 07 Civ. 7375, 2008 WL 3861449, at *1 (S.D.N.Y. Aug. 19, 2008).

The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the matter that it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Summary judgment is appropriate if it appears that the non-moving party cannot prove an element that is essential to the non-moving party's case and on which it will bear the burden of proof at trial. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805-06 (1999); Celotex, 477 U.S. at 322; Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998); Singh v. New York City Off-Track Betting Corp., No. 03 Civ. 5238, 2005 WL 1354038, at *1 (S.D.N.Y. June 8, 2005).

II.

The following facts are undisputed, unless otherwise indicated.

In October 2001, the DEA defendants worked as members of a surveillance team involved in Operation White Dollar. (DEA Defendants' Local Rule 56.1 Statement of Undisputed Material Facts ("DEA 56.1 Stmt.") ¶ 1; Plaintiff's Counterstatement to DEA 56.1 Stmt. ("Pl.'s DEA 56.1 Stmt.") ¶ 1.) Operation White Dollar consisted of approximately thirty related investigations authorized by the United States Attorney General to permit the DEA to launder drug proceeds in an effort to identify, arrest, and prosecute members of drug money laundering organizations. (DEA 56.1 Stmt. ¶ 2; Pl.'s DEA 56.1 Stmt. ¶ 2.) Agents involved in investigations pursuant to Operation White Dollar used informants, or confidential sources ("CS"), affiliated with money launderers in Colombia. (DEA 56.1 Stmt. ¶ 3; Pl.'s DEA 56.1 Stmt. ¶ 3.) Typically the CS would inform money launderers in Colombia that he knew of American or Canadian sources who were willing to receive illicit drug money, place the money in the United States banking system, and transfer it to accounts controlled by the Colombian money launderers. (DEA 56.1 Stmt. ¶ 4; Pl.'s DEA 56.1 Stmt. ¶ 4.) Couriers would then deliver large amounts of United States currency to undercover officers working with the DEA; the undercover officers would, in turn, transfer the money to DEA agents, who would deposit it in DEA-controlled undercover bank accounts, and thereafter wire the money to other bank accounts. (DEA 56.1 Stmt. ¶ 5; Pl.'s DEA 56.1 Stmt. ¶ 5.)

On or about October 15, 2001, a CS contacted Special Agent Oldano and informed him that a certain individual affiliated with a known Colombian money-laundering organization was seeking to launder approximately $150,000 in United States Currency. (DEA 56.1 Stmt. ¶ 6; Pl.'s DEA 56.1 Stmt. ¶ 6.) The CS provided a prepaid cellular telephone number for the currency courier. (DEA 56.1 Stmt. ¶ 7; Pl.'s DEA 56.1 Stmt. ¶ 7.) The UC contacted the courier at the number provided by the CS, and arranged to take delivery of the currency from the courier on October 17, 2001 in the vicinity of 96th Street and Broadway in New York City. (DEA 56.1 Stmt. ¶ 8; Pl.'s DEA 56.1 Stmt. ¶ 8.)

On October 17, 2001, Special Agents Crane, Dellamura, and Oldano were part of a team assigned to conduct surveillance of the delivery of the currency. (DEA 56.1 Stmt. ¶ 9; Pl.'s DEA 56.1 Stmt. ¶ 9.) Special Agent Caruso was the supervisor of that team. (DEA 56.1 Stmt. ¶ 18; Pl.'s DEA 56.1 Stmt. ¶ 18.) At approximately 3:20 p.m., the surveillance team observed the courier meet the UC at the intersection of 94th Street and Broadway and speak with him for approximately ten minutes. (DEA 56.1 Stmt. ¶ 10; Pl.'s DEA 56.1 Stmt. ¶ 10.) During that encounter, the surveillance team observed that the courier was driving a red Ford Escort, and they recorded the license plate number. (DEA 56.1 Stmt. ¶ 11; Pl.'s DEA 56.1 Stmt. ¶ 11.) The UC and the courier then parted ways, and Special Agent Dellamura followed the courier to a building in the Bronx. (DEA 56.1 Stmt. ¶ 12; Pl.'s DEA 56.1 Stmt. ¶ 12.) Special Agent Dellamura observed the courier enter the building and emerge shortly thereafter with a black backpack. (DEA 56.1 Stmt. ¶ 13; Pl.'s DEA 56.1 Stmt. ¶ 13.)

At approximately 5:15 p.m., the courier and the UC met again near the intersection of 125th Street and Broadway, and the courier placed the backpack in the UC's car. (DEA 56.1 Stmt. ¶ 14; Pl.'s DEA 56.1 Stmt. ¶ 14.) The backpack turned out to contain a large amount of United ...


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