The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Plaintiff Caonabo Valdez ("Plaintiff"), represented by counsel, initiated this action on May 12, 2008 by filing a two-count complaint ("Complaint") against the United States of America ("United States") and Defendant Joseph Mercurio ("Mercurio" or "Agent Mercurio"). The Complaint charged Defendants with constitutional tort claims and defamation claims based on Plaintiff's acquittal after a jury trial commencing on March 29, 2007. Defendants filed a motion to dismiss arguing, inter alia, that the Court lacks subject matter jurisdiction over Plaintiff's constitutional tort, Federal Tort Claims Act ("FTCA"), and defamation claims against the United States and Agent Mercurio in his official capacity. See Fed. R. Civ. P. 12(b)(1). With respect to any constitutional tort claims Plaintiff may be seeking against Agent Mercurio in his individual capacity, Defendant moves for summary judgment based on qualified immunity.
For the following reasons, Defendants' motions are granted in their entirety and all of Plaintiff's claims are dismissed.
Plaintiff is a resident of the County of New York and a citizen of the State of New York. (Compl. ¶ 2.) Special Agent Mercurio is a citizen of the State of New York and a Special Agent of the United States Drug Enforcement Agency ("DEA"), a governmental agency within the United States Department of Justice and existing under and by virtue of the laws of the United States. (Compl. ¶¶ 3, 4.) The United States operates a unit of the DEA within the City of New York; specifically, the DEA's New York headquarters are located at 99 10th Avenue, New York, New York. (Compl. ¶ 14.) Defendant Mercurio is an employee of the DEA and, therefore, an employee of the United States government. (Compl. ¶ 5.) Mercurio is a Special Agent of the DEA and serves on the T32 taskforce, also known as the "REDRUM" unit. (Compl. ¶¶ 16 -- 19.)
On or about February 15, 2006, Agent Mercurio participated in a DEA investigation of a home invasion robbery-seeking drugs or drug proceeds-that took place on January 2, 2001. (Compl. ¶¶ 25 -- 27.) The robbery ("Gleason Avenue robbery") occurred at 1936 Gleason Avenue in Bronx, New York. (Compl. ¶¶ 26 -- 27.) Agent Mercurio learned of the Gleason Avenue robbery through his interrogation of an individual named Maximo Guillen (a.k.a. "Amadito"). (Declaration of Joseph D. Mercurio, dated September 17, 2008 ("Mercurio Decl.") at ¶ 5.) Amadito had been arrested and taken into federal custody in the summer of 2004; after his arrest, Amadito became a cooperating witness. (Id.) During an interview with Amadito, which occurred on October 1, 2004, Agent Mercurio learned that a police officer named "Caonabo" was one of several individuals involved in the Gleason Avenue robbery. (Mercurio Decl. ¶¶ 5 -- 7.) After further investigation, Mercurio learned that an individual named Caonabo Valdez had been enrolled in the New York Police Department's Police Academy in 2000. (Mercurio Decl. ¶ 8.) In late 2005, Amadito identified Plaintiff, through a driver's license photograph, as the "Caonabo" who had participated in the Gleason Avenue robbery.*fn1 (Mercurio Decl. ¶ 8.)
On December 27, 2005, Agent Mercurio testified before a federal grand jury in the Southern District of New York and presented the evidence that his unit had collected regarding the Gleason Avenue robbery. (Mercurio Decl. ¶ 13.) The grand jury returned a four-count sealed indictment*fn2 against eight individuals, including Plaintiff, Socrates Vizcaino, and "Tiko."*fn3 (Id.) Plaintiff was charged in Count I with conspiracy to commit robberies in violation of Section 371 of Title 18 of the United States code and, in Count II, with the substantive act of committing a robbery, both in violation of Sections 1951(b)(1) and (b)(3) of Title 18 of the United States Code. (Compl. ¶ 46; Mercurio Decl. ¶ 14.) In Count III, Plaintiff was charged with using, carrying, and brandishing a firearm, and aiding and abetting in the use, carrying, or brandishing of a firearm in furtherance of a crime, in violation of Section 924(c)(1)(A)(ii) of Title 18 of the United States Code. (Id.) On December 27, 2005, United States Magistrate Judge Douglas F. Eaton of the Southern District of New York issued an arrest warrant for Plaintiff based on the grand jury's indictment. On February 15, 2006, pursuant to the warrant, Agent Mercurio arrested Plaintiff for his alleged involvement in the actions charged in the indictment.*fn4 (Compl. ¶¶ 30 -- 31.)
During the course of Defendant Mercurio's interrogation of Plaintiff regarding the Gleason Avenue robbery, Plaintiff maintained his innocence and informed Mercurio that he was the victim of identity theft by his cousin, Jacinto Polanco (a.k.a. "Tiko" and/or "Angel Diaz"), a known felon. (Compl. ¶¶ 38 -- 41; Mercurio Decl. ¶ 21.) Plaintiff did not provide Agent Mercurio with information as to the whereabouts of Tiko. Amadito, the cooperating witness, had previously advised Agent Mercurio that Plaintiff's cousin "Tiko" was a participant in the Gleason Avenue robbery. (Mercurio Decl. ¶ 9.) Agent Mercurio states that he and the DEA did not learn of Tiko's whereabouts until on or about October 10, 2007-after Plaintiff's acquittal and release from custody on April 13, 2007. (Mercurio Decl. ¶ 9, 22.)
In mid-November of 2006, Agent Mercurio learned that the New York Police Department ("NYPD") had seized a gun involved in the Gleason Avenue robbery.*fn5 (Mercurio Decl. ¶ 25.) Mercurio also learned that the gun had already been destroyed by the NYPD. (Mercurio Decl. ¶ 26.)
Plaintiff's trial commenced on March 29, 2007. At the trial, a witness to and victim of the Gleason Avenue robbery, Malaisy Gil, testified that she had never seen the Plaintiff and that he was not a participant in the robbery. (Compl. ¶ 56 -- 59.) Agent Mercurio asserts that, as of December 27, 2005-the date of Plaintiff's grand jury indictment-he had not interviewed Malaisy Gil, who was incarcerated out of state on unrelated charges, nor did he know that she could not identify Plaintiff as a suspect in the Gleason Avenue robbery. (Mercurio Decl. ¶¶ 12, 30.) After Gil was brought to New York (on or about January 31, 2007) in connection with Plaintiff's trial, she was shown a photo book which included photographs of the indicted defendants. (Mercurio Decl. ¶ 31.) Gil did not identify Plaintiff as a participant in the Gleason Avenue robbery. (Mercurio Decl. ¶ 31 -- 32.) Prior to Gil's viewing the photo books on January 31, 2007, Agent Mercurio states that he was not aware Gil could not identify Plaintiff. (Mercurio Decl. ¶ 32.)
At trial on March 29, 2007, the DEA's cooperating witness, Amadito, identified Plaintiff as a co-participant in the Gleason Avenue robbery. (Waszmer Decl., Exhibit G, Trial Transcript ("Trial Tr."), at 187 -- 90.) On April 3, 2007, Socrates Vizcaino-one of the indicted defendants- also identified Plaintiff as participating in the Gleason Avenue robbery. (Trial Tr., at 591 -- 95.)
Plaintiff was acquitted of all of the aforementioned charges on April 13, 2007 and was subsequently released from federal custody. (Compl. ¶ 48 -- 49.) He then timely filed an administrative tort claim with the DEA, dated August 14, 2007, which sought "damages and injury" against the DEA. (Compl. ¶ 6 -- 8.) On November 14, 2007, the DEA denied Plaintiff's administrative claim. (Compl. ¶ 9.)
With respect to Defendants' motion to dismiss the claims under the FTCA in Count I and the defamation claims against the United States and Agent Mercurio in Count II, Plaintiff has the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction over these claims.See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000 (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)). If the Court does not have subject matter jurisdiction, it cannot rule on these claims, and the claims must be dismissed pursuant to ...