The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiff Robert Rhodes, a former Department of Homeland Security ("DHS"), Customs and Border Protection ("CBP") Officer, commenced this action on July 23, 2007, under the provisions of the Fourth and Fifth Amendments to the Constitution and pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Docket No. 1.) Plaintiff filed an Amended Complaint on February 15, 2008, alleging six causes of action against Defendants Robert Tevens ("Tevens"), Steven MacMartin ("MacMartin"), Donald Mania ("Mania") (collectively referred to herein as "Defendants") for their involvement in the investigation and subsequent prosecution of Plaintiff following an incident at the border with a Chinese national. (Docket No. 26.)
Presently before this Court is Defendants' Motion to Dismiss Plaintiff's Amended Complaint pursuant to Rule 12(b)(6), and alternatively, Rule 56 of the Federal Rules of Civil Procedure. (Docket No. 33.)*fn1 Having considered the parties' written submissions and the applicable law, this Court will grant Defendants' motion and dismiss Plaintiff's Amended Complaint.
The following facts are not in dispute.*fn2 On July 21, 2004, Plaintiff was involved in an incident at the Rainbow Bridge, Niagara Falls, New York, where he was on duty at the bus and pedestrian inspection terminal. Allegations were made by Supervisory Customs and Border Protection Officer ("SCBPO") Martin Mahady to the DHS Immigration and Customs Enforcement ("ICE") Resident Agent in Charge, Office of Professional Responsibility ("OPR"), that on that date Plaintiff was involved in an incident with a Chinese national, Zhao Yan ("Zhao") wherein Plaintiff administered pepper spray to subdue Zhao and may have struck her in the head while restraining her.
The following day, OPR Senior Special Agents ("SSAs") Mania and MacMartin began their investigation of the allegations of excessive force by Plaintiff against Zhao. Mania and MacMartin interviewed several witnesses to the incident involving Plaintiff and Zhao, and took photographs of Zhao's injuries. Afterward, Mania and MacMartin contacted the United State's Attorney's Office, Western District of New York, to inform the duty attorney of their investigation.
On July 22, 2004, at approximately 6:30 p.m., a warrant for the search of Plaintiff's person was signed by Magistrate Judge Hugh B. Scott, Western District of New York.
Approximately two hours later, Plaintiff was arrested for a violation of 18 U.S.C. § 242, Deprivation of Rights under Color of Law.*fn3 Plaintiff's arrest was based on upon a criminal complaint and a warrant for arrest signed by Magistrate Judge Scott. MacMartin submitted an affidavit in support of the warrant for arrest and criminal complaint.
During the morning hours of July 23, 2004, the warrant for the search of Plaintiff's person was executed, and photographs were taken of Plaintiff.
On July 27, 2004, a federal Grand Jury convened and indicted Plaintiff on August 11, 2004, charging him with a one-count violation of 18 U.S.C. § 242, Deprivation of Rights under Color of Law. Plaintiff was arraigned on August 13, 2004, and pleaded not guilty to the charge.
A jury was seated to hear evidence in the case of United States v. Rhodes, 04-CR-196 (W.D.N.Y) on August 18, 2005. On September 8, 2005, the jury returned a verdict of not guilty.
Following the not guilty verdict, DHS/ICE OPR conducted an internal security investigation to determine whether the misconduct allegations made against Plaintiff were substantiated. Specifically, whether Plaintiff used unreasonable force while detaining Zhao and whether he made false material statements to CBP or to ICE on July 21 or 22, 2004. Rhodes was afforded union representation during the interview and was advised of his rights prior to the interview.
After the internal security investigation and the report of final investigation were complete, CBP determined that there were substantiated allegations of misconduct against Plaintiff.
B. Plaintiff's Allegations
The allegations of Plaintiff's Amended Complaint are in dispute. By affidavit, Plaintiff attests that on July 21, 2004, he was working at the Rainbow Bridge performing inspections of pedestrians, buses, and tour vans entering the United States from Canada. (Plaintiff's Aff. (Docket No. 42), ¶ 4.) At approximately 11:00 p.m., a black male passed through Plaintiff's booth when another CBP Officer, Angelo Arcuri ("Arcuri") observed a bulge at the small of the man's back. Arcuri approached the man, patted down the area, and found an object taped to his back. Plaintiff assisted Arcuri in restraining the man, and pressed the "duress" button to summon assistance from other officers. (Id., ¶¶ 5-8.) Arcuri then brought to Plaintiff's attention three women standing outside the exit doors looking in, and directed Plaintiff to bring the women in for questioning. (Id., ¶ 9.) When Plaintiff approached the women and gestured them to come inside, they backed up and said, "no, no, no," and began to run away. (Id., ¶ 11.) Despite Plaintiff's yells to stop, the women continued to run, and Plaintiff pursued them on foot. (Id., ¶ 12.)
Plaintiff caught up with one of the women, later identified as Zhao, and attempted to grab her left arm, but she pulled away. According to Plaintiff, Zhao then began to scratch and kick him. (Id., ¶ 13.) At that point, Plaintiff produced a can of pepper spray and discharged it once in Zhao's face in a 1-2 second burst. As he reached for Zhao's arm, she again began to hit and kick Plaintiff, who then discharged a second burst of pepper spray.
As Zhao continued to struggle with Plaintiff, Plaintiff attests that her hand "was getting close to my gun," so he "pushed her off center, whereupon I brushed against the building." (Id., ¶¶ 14-15.) Fellow CBP Officer Emmett Russell ("Russell"), assisting Plaintiff, picked up Zhao, brought her to the center of the walkway, and applied an "arm bar to bring her to the ground." At that point, Plaintiff observed the top of Zhao's head make contact with the ground. (Id., ¶ 16.) While her head was on the ground, Russell pulled Zhao's legs out to straighten them, and as a result, "her head slid along the concrete paving stones that constituted the walkway." (Id., ¶ 17.)
Plaintiff approached Zhao, and, to control her movements, placed his knee on the left side of her back. While Russell "got control of Ms. Zhao's right hand," a third CBP Officer, Amina Zinnerman ("Zinnerman") approached and attempted to control Zhao's left hand. (Id., ¶¶ 18-19.) At that point, Plaintiff "readjusted [his] knees" for the purposes of relieving pressure upon them to control Zhao's body. He then placed his hands on top of her head and one knee against her shoulder. (Id., ¶ 20.) Three times Zhao attempted to raise her head, and "each time" Plaintiff "took [her] head with both fists and pressed it back down, as I had been trained to do under such circumstances, because of the potential of the subject spitting on or biting an officer. . . ." (Id., ¶ 21.)
Zinnerman also continued to struggle with Zhao. When Zinnerman momentarily released Zhao's hand to produce her handcuffs, Zhao's hand immediately went beneath her body in the vicinity of her handbag, from which she retrieved a camera. Zhao opened the back of the camera to expose the film inside. (Id., ¶¶ 22-23.) Zinnerman again took hold of Zhao's left arm. According to Plaintiff, Russell then tapped his shoulder, saying, "Rocky, stop,"*fn4 whereupon Plaintiff released Zhao's head and backed away. (Id., ¶ 23.) Officers were ultimately able to apply handcuffs to Zhao, and Zhao was led into the building. (Id., ¶ 25.)
Plaintiff attests that during the struggle, he, Russell, and Zinnerman repeatedly instructed Zhao to "stop resisting," and Zhao ignored those commands. (Id., ¶ 26.)
Plaintiff then reported the incident to his supervisor, SCBPO Mahady, and prepared a written statement detailing what occurred. Shortly thereafter, SSAs Mania and MacMartin arrived at approximately 1:00 a.m. and met with Mahady and Plaintiff. Mania observed a small cut on Plaintiff's right forearm. (Id., ¶¶ 27-29.)
At 7:30 a.m., Mania and MacMartin advised Plaintiff that he could leave without taking an additional statement from him. (Id., ¶ 30.)
Later, Plaintiff learned that the three women were taking photographs on the pedestrian walkway, a designated "no photograph" zone, near a defective entrance gate. Zhao, a Chinese national, had in her possession an expired visa. (Id., ¶¶ 32-35.) Although Zhao ran from and resisted CBP officers, she was released without charges. Id., ¶ 42.)
As of July 22, 2004, Plaintiff was suspended without pay from his job with DHS. According to Plaintiff, he was "singled out" for prosecution after Zhao initially accused several unnamed DHS officers of pepper spraying and kicking her repeatedly. (Id., ¶¶ 35-36.) Plaintiff avers that since he came out as openly gay in 1997, he has been the subject of harassment by supervisors and employees of DHS based on his sexual orientation, including discipline against him for "trivial and trumped up infractions." (Id., ¶ 37.) Prior to that, Plaintiff claims to have had an "exemplary" record. (Id.) As a result, Plaintiff filed an Equal Employment Opportunity Commission ("EEOC") complaint regarding the alleged instances of harassment. (Id., ¶ 40.)
Plaintiff also contends that his prosecution was a result of Bush Administration "caving in" to pressure from the Chinese government, who had published several gruesome photographs of Zhao's injuries through its news agencies as evidence of the "barbarism" of the United States government. (Id., ¶ 41.) Also, that DHS and the United States Justice Department allegedly pressured DHS/CBP Officers to give inculpating testimony regarding Plaintiff. (Id., ¶¶ 45-46.)
Following Plaintiff's acquittal of the civil rights charge, Plaintiff was not reinstated to his employment with DHS, and OPR conducted an internal investigation regarding his conduct. (Id., ¶ 52.) On October 7, 2005, Plaintiff, accompanied by union representative Officer Kevin Feeley, attended an interview that Plaintiff characterizes as a "20 hour interrogation."*fn5 (Id., ¶¶ 52-56.) During the interview, Plaintiff states that he was "repeatedly threatened with criminal prosecution" by SSAs Mania and MacMartin for "obstructing their investigation," and then when he asked permission to speak with his attorney, the investigators refused. (Id., ¶¶ 58-61.)
C. The Defendants' Motion
Defendants have moved for dismissal of the Amended Complaint and/or for summary judgment on the grounds that: (1) Plaintiff's Amended Complaint fails to allege personal involvement of Defendant Tevens; (2) Plaintiff's seizure and detention did not violate the Fourth Amendment; (3) Plaintiff's prosecution was instituted without malice; (4) legal process was not improperly used in Plaintiff's arrest and prosecution; (5) Plaintiff fails to state a Fifth Amendment right to counsel claim; (6) Plaintiff fails to ...