The opinion of the court was delivered by: Block, Senior District Judge:
Plaintiff Kenji Ryu Nakamura brings this action against defendant the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"), asserting claims for false arrest/ false imprisonment and malicious prosecution. Defendant moves to dismiss the action, pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction. Because the court has jurisdiction over one claim but not the other, defendant's motion is granted in part and denied in part.
On March 3, 2008, plaintiff arrived at John F. Kennedy Airport on a flight from Peru. Plaintiff was stopped while passing through customs, where U.S. Customs and Border Protection ("CBP") agents found over 8,000 grams of cocaine in his luggage. Plaintiff was then arrested and charged with knowingly and intentionally engaging in narcotics trafficking. CBP also issued an immigration detainer, deferring the decision about plaintiff's admissibility until after the resolution of the criminal case. On May 19, 2008, the U.S. District Court for the Eastern District of New York dismissed the criminal charges against plaintiff without prejudice, but ordered that plaintiff remain in U.S. Marshal custody in light of the immigration detainer. Also on May 19, immigration officials from CBP and ICE arrested plaintiff and charged him with narcotics trafficking and related offenses.
On May 21, 2008, plaintiff was transferred to CBP custody in New York City, to permit a determination regarding his admissibility to the United States. Also on May 21, plaintiff was served with a Notice to Appear at Immigration Proceedings. On May 22, plaintiff was transferred to a detention center in Pennsylvania. On May 28, he was transferred to a staging facility and detention center in Texas. On June 2, 2008, plaintiff filed a motion requesting that he be released. The complaint states that on June 25, 2008, the charges against plaintiff and the Notice to Appear were withdrawn and plaintiff was released. Defendant's memorandum of law in support of the present motion and plaintiff's memorandum in opposition both state that removal proceedings were terminated and plaintiff was released from custody on June 13, 2008.
Plaintiff now contends that it was unlawful for agents of CBP and the U.S. Immigration and Customs Enforcement ("ICE") to detain him beginning on May 19, 2008, after criminal narcotics charges against him were dismissed.Plaintiff also contends that defendant caused a false accusatory statement, the Notice to Appear, to be filed against him.*fn1
Defendant argues that this action should be dismissed for the following reasons. First, that the court lacks subject matter jurisdiction over plaintiff's claims because plaintiff cannot satisfy the FTCA's "private analogue" requirement. Second, that even if plaintiff satisfies the private analogue requirement, the court does not have subject matter jurisdiction over plaintiff's malicious prosecution claim because the claim is integrally related to the government's decision to commence removal proceedings.
"When considering a motion to dismiss for lack of subject matter jurisdiction or for failure to state a cause of action, a court must accept as true all material factual allegations in the complaint." Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate the case." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).
The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence, Aurecchione v. Schoolman Transp. System, Inc., 426 F.3d 635, 638 (2d Cir. 2005), and the government's waiver of immunity under the FTCA must be "strictly construed in favor of the government." Long Island Radio Co. v. NLRB, 841 F.2d 474, 477 (2d Cir. 1988); see Shipping Fin. Serv. Corp., 140 F.3d at 131 ("[W]hen the question to be considered is one involving the jurisdiction of a federal court, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.").
A. Private Analogue Requirement
Defendant first argues that plaintiff's detention pending removal proceedings and the issuance of a Notice to Appear "were directly the product of CBP's determination that plaintiff was inadmissible," and that no "private analogue" exists for a "quasiadjudicative" act like an admissibility determination. Def's Mem. of Law at 11.
1. Standards Governing FTCA Private Analogue Requirement
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994). Because sovereign immunity is jurisdictional in nature, the "terms of [the United States's] consent to be sued in any court define that court's jurisdiction to entertain the suit." Id. (quoting United Stats v. Sherwood, 312 U.S. 584, 586 (1941)). Waivers of sovereign immunity must be "unequivocally expressed" and "construed strictly in favor of the sovereign." ...