The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
DOCUMENT ELECTRONICALLY FILED DOC #:
Plaintiff Paul Cortina ("Plaintiff"), proceeding pro se, brings this action seeking $1,000,000,000 in damages as a result of the Government's alleged violations of his state and constitutional rights under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, and 42 U.S.C. §§ 1983 and 1985. Plaintiff filed this action on July 9, 2010. On July 15, 2010, the matter was referred to Magistrate Judge Yanthis for all pretrial matters.
Plaintiff alleges that "he is a victim of a vast conspiracy between the FBI and 'vigilante groups' engineered to violate plaintiff's civil rights and harass him via 'gang stalking' and prank telephone calls." (R&R 1.) In addition, Plaintiff alleges that "the FBI turns a blind eye toward the 'vigilante groups' and, even worse, perpetuates and ensures their misconduct by silencing whistleblowers like plaintiff." (Id.) Defendants move to dismiss the case under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted.
On June 28, 2011, Magistrate Judge Yanthis filed his Report and Recommendation ("R&R") that the Court dismiss Plaintiff's case. Having reviewed the R&R and Plaintiff's objections, the Court adopts Magistrate Judge Yanthis's R&R in its entirety. Accordingly, Defendants' motion is GRANTED and Plaintiff's complaint is dismissed with prejudice.
MAGISTRATE JUDGE YANTHIS'S R&R
The United States may not be sued without its consent and, as a result, any suit against the Government requires a "clear statement from the United States waiving sovereign immunity[.]" (R&R 2 (citing United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003)).) Neither § 1983 nor § 1985 unequivocally express the Government's waiver of sovereign immunity and, accordingly, Magistrate Judge Yanthis recommends that the Court dismiss Plaintiff's federal civil rights claims. (Id.3.)
"The FTCA provides a waiver of sovereign immunity, subject to enumerated exceptions, for claims of property damage or personal injury caused by the negligent or wrongful act or omission of the federal government's employees acting within the scope of their employment." (Id. (citing 28 U.S.C. § 1346(b)).) "Congress has not waived the government's sovereign immunity . . . from lawsuits based on constitutional claims." (Id. (quoting King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999)).) As a result, Magistrate Judge Yanthis recommends that the Court dismiss Plaintiff's constitutional tort claims.
Plaintiff alleges common law tort claims for assault, breach of a deferred prosecution agreement, invasion of privacy, and prima facie tort. "The FTCA's limited waiver of sovereign immunity does not generally extend to claims 'arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference of contract rights." (Id. (quoting 28 U.S.C. § 2680(h)) (emphasis omitted).) The FTCA, however, specifically provides a waiver of sovereign immunity for claims against federal law enforcement officers arising out of "assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution." (Id. 4 (quoting 28 U.S.C. § 2680(h)).) As a result, Magistrate Judge Yanthis found that Plaintiff's assault claim is cognizable under the FTCA and that Plaintiff's claim for a breach of a deferred prosecution agreement is not cognizable. (Id.) Accordingly, Magistrate Judge Yanthis recommends that the Court dismiss Plaintiff's claim for breach of a deferred prosecution agreement. (Id.)
"In order to maintain his FTCA claims for prima facie tort and invasion of privacy, plaintiff must establish that, under New York law, a private actor could be found liable for said claims." (Id.) See 28 U.S.C. § 1346(b). New York law recognizes a common law action for prima facie tort and, accordingly, Magistrate Judge Yanthis found that Plaintiff's claim for prima facie tort is cognizable under the FTCA. (Id. 4-5.) New York law does not recognize a common law right of privacy, however, and ...