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Jovanny Liriano and Emely Ortiz v. Ice / Dhs

October 25, 2011

JOVANNY LIRIANO AND EMELY ORTIZ, PLAINTIFFS,
v.
ICE / DHS, BRIAN J. FLANAGAN AND ICE / DHS AGENTS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge

MEMORANDUM AND ORDER

Plaintiffs Jovanny Liriano ("Liriano") and his daughter Emely Ortiz ("Emely"), appearing pro se, bring this suit against the U.S. Immigration and Customs Enforcement ("ICE"), ICE Deportation Officer Brian J. Flanagan ("Officer Flanagan"), and "six to seven" unknown ICE agents who participated in the arrest of Liriano. Plaintiffs assert (i) claims against the United States*fn1 under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., for physical and emotional trauma suffered as a result of Liriano's arrest, and (ii) claims against the individual officers under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for unspecified constitutional violations. Presently before this Court is defendants' motion to dismiss the FTCA claims pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure and to grant summary judgment on the Bivens claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted in its entirety.

BACKGROUND*fn2

I.Factual Background

Liriano, a citizen of the Dominican Republic, was deported to the Dominican Republic in June 2005 after a 2001 conviction in New York for sale of a controlled substance. (R. 56.1 ¶ 1, Compl. ¶ 12). Liriano illegally re-entered the United States following his deportation. (Compl. ¶ 12).

On February 3, 2007, Liriano was arrested in Manhattan by the New York City Police Department for violation of a local law. (R. 56.1 ¶ 2.) Liriano was fingerprinted in connection with this arrest, and ICE was subsequently notified that the fingerprints taken by the Police Department matched the fingerprints taken of Liriano at the time of his 2005 deportation.

On February 14, 2009, a criminal complaint was filed against Liriano in the Southern District of New York, charging him with one count of illegal re-entry by a felon, in violation of 8 U.S.C. § 1326. (R. 56.1 ¶ 4.) That same day, Magistrate Judge Gabriel W. Gorenstein signed an arrest warrant for Liriano. (R. 56.1 ¶ 5.)

Also on February 14, 2009, Magistrate Judge Gorenstein ordered the relevant cell phone service provider to furnish technical assistance, in the form of GPS tracking technology, to ascertain the physical location of a cell phone believed to belong to Liriano. (R. 56.1 ¶ 6.) Magistrate Judge Gorenstein also authorized the use of a pen register with a caller identification and/or trap and trace device on the cell phone that Liriano was believed to be using. (R. 56.1 ¶ 6.) Based on information obtained from the pen register and the GPS tracking technology, ICE officials located Liriano's apartment at 2467 Valentine Avenue in the Bronx, New York. (Flanagan Decl. ¶ 11.)

On February 16, 2009, a team of ICE officers led by Officer Flanagan arrived at the Bronx apartment to arrest Liriano. Liriano was inside the apartment with Emely, his eight-year old daughter. After the officers announced their presence, Liriano "decided not to open the door." (Compl. ¶ 16.) Liriano claims that he chose not to do so "because his daughter was frightened by the excessive bang or knock on the door." (Compl. ¶ 16.) The situation developed into a protracted standoff, during which plaintiffs allege the ICE officers "were using profanity and serious threats" and Emely's fear escalated to the point that she urinated on herself. (Compl. ¶¶ 18-21.) A full five hours after the ICE officers arrived, Liriano finally opened the door to the apartment. (Compl. ¶¶ 13, 18.) Plaintiffs allege that when Liriano did open the door, the officers "heavily armed came through the door at gun point and pushed [Liriano] against the wall." (Compl. ¶ 32.)

Following this arrest, Liriano pleaded guilty to the illegal re-entry charge and was sentenced by Judge Berman to thirty-eight months imprisonment. (R. 56.1 ¶¶ 9-10.)

II.Procedural History

Plaintiffs filed an administrative claim against ICE on May 19, 2010. (Compl. at A-18.) The claim, filed on a Form SF-95, sought relief for emotional trauma suffered by plaintiffs as a result of the circumstances surrounding Liriano's arrest. (Compl. at A-18.) ICE has not yet adjudicated this administrative claim.

Plaintiffs filed the instant complaint on August 18, 2010. The complaint seeks monetary damages for the physical and emotional trauma suffered by plaintiffs. Specifically with regard to Emely, plaintiffs allege that she has developed severe anxiety attributable to defendants' actions, for which she is now undergoing treatment at the Child and Family Institute in Manhattan. (Compl. ΒΆΒΆ 60-61.) Plaintiffs also request that this Court enter preliminary and permanent ...


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