George Salemo, proceeding pro se, brings numerous constitutional and other tort claims arising from his investigation and eventual arrest by U.S. Secret Service Special Agent Maureen Murphy, U.S. Department of Agriculture Assistant Special Agent-in-Charge Bethanne Dinkins, and U.S. Probation Officer Marcela Bravo.
Salemo brings this action against several federal officers and agencies. The action originally included as defendants Warden Hastings of the Metropolitan Correctional Center ("MCC"), the Federal Bureau of Prisons, "United States Marshals Service SDNY," "Chief United States Marshal," Special Agent Murphy, ASAC Dinkins, and Officer Bravo. The complaint was previously dismissed as to the Federal Bureau of Prisons, Warden Hastings, "United States Marshals Service SDNY," and "Chief United States Marshal", leaving Special Agent Murphy, ASAC Dinkins, and Officer Bravo as defendants.
The remaining defendants move to dismiss the complaint. Their motion is granted.
Salemo's complaint provides little context for his allegations but, drawing from the complaint as well as the exhibits attached to Salemo's opposition, a somewhat clearer picture emerges:
Salemo was suspected (and ultimately convicted) of presenting a forged $2.25 Million U.S.D.A. Farm Service Agency grant agreement as collateral for a loan to be paid to the Global Alliance for International Advancement ("GAIA"). Salemo claims that GAIA was a non-profit corporation of which he served as CEO.
But Salemo alleges that defendants pursued their investigation recklessly, repeatedly abusing their powers due to their personal contempt for him. In so doing, the officers are said to have taken and encouraged others to take documents and hard drives from GAIA headquarters without a warrant. Defendants then allegedly replaced Salemo in his role at GAIA with another GAIA employee, Troy Sargent, and then had Salemo locked out of his own offices. Defendants then allegedly allowed Sargent and others to gain unauthorized access to GAIA's bank accounts. When Salemo attempted to initiate civil and criminal proceedings against Sargent and other GAIA employees, he claims that defendants interfered.
Salemo also alleges that defendants orchestrated attacks on his reputation: he claims that they authorized Sargent to contact Salemo's business associates as well as the website Rip-Off Report, informing them that Salemo's enterprises were fraudulent.
This investigation, however, was not Salemo's first legal problem; he had previously been convicted of other financial crimes and was under supervised release when these events took place. In the course of defendants' investigation, it was discovered that Salemo was violating the terms of his release and he was arrested. Ultimately, Salemo was sentenced to an additional 15 months in prison for this violation of his supervised release. And when these 15 months were over, the defendants were ready to arrest him in connection with the fraud they had been investigating.
Therefore, when Salemo was formally released from the MCC, instead of being actually freed as he had expected, he was delivered into the custody of the U.S. Marshals and finally arrested by defendants. Salemo claims, however, that in the course of his arrest defendants conspired to have him illegally detained for approximately two hours before actually arresting him.
Salemo claims that these events ultimately culminated in GAIA's bankruptcy. He seeks compensatory and punitive damages in connection with these alleged constitutional violations totaling $55 million.
Salemo initiated this action by filing a form civil complaint on April 6, 2011. On May 9, 2011, Salemo's claims against the United States Marshalls Service SDNY, the Bureau of Prisons ("BOP"), Warden Hastings, and the "Chief United States Marshall" were dismissed pursuant to 28 U.S.C. § 1915A.
The instant motion to dismiss Salemo's complaint was filed by the remaining defendants on November 30, 2011. Salemo then, on February 24, 2012, filed his opposition to defendants' motion to dismiss as well as a motion for reconsideration of the May 9, 2011 order dismissing his complaint in part. Defendants replied to Salemo's opposition on March 28, 2012 to which Salemo further replied on July 19, 2012.
Salemo's opposition and reply, however, include allegations not included in his original complaint. His opposition, in particular, consists of a 36 page statement of facts. In general, a party is not permitted to use its reply to a dispositive motion as a vehicle for amending its complaint. See Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir.1998). And although courts afford pro se plaintiffs a fair measure of procedural latitude, see, e.g., Graham v. Lewinsky, 848 F.2d 342, 344 (2d Cir. 1988), this latitude typically does not extend so far as permitting a plaintiff to supplement the claims in his complaint with additional allegations in his motion papers. See, e.g., Shah v. Helen Hayes Hosp., 252 F. App'x 364, 366 (2d Cir. Oct 29, 2007).
Therefore, though a pro se plaintiff's supplemental statement might be considered, the court declines to do so here because it is so excessively lengthy and because it is a confused mixture of claims against federal officers and various private parties not named in the complaint. A pro se plaintiff is certainly entitled to a liberal construction of his pleadings, but Salemo's supplemental statement goes beyond what even a pro se plaintiff can be permitted.
Therefore, only the allegations contained in Salemo's April 6, 2011 complaint will be considered on the current motion which is a motion addressed to that complaint. However, on one point, to be noted later in this opinion, the court will rely on an admission made in Salemo's opposition brief, supported by documents he provides.
Salemo's complaint presents a lengthy narrative describing numerous alleged constitutional violations and other torts perpetrated against him by defendants.
Salemo's first claim relates to his detention by defendants after he was nominally released from the MCC November 19, 2010, after completing a 15-month sentence for violating the terms of his supervised release. After signing his release papers, Salemo was informed that he was not in fact free to leave but that, instead, he was to be transported to the courthouse with other inmates. He alleges that he was then locked in a room at the MCC for approximately 45 minutes and, after he was transported to the courthouse, held in a cell for another 30 minutes.
Eventually, Salemo was taken to Special Agent Murphy who informed him that he was under arrest. Generously read, Salemo's complaint alleges that Special Agent Murphy and ASAC Dinkins orchestrated these events with the cooperation of unnamed BOP officials.
Salemo alleges that he was held for a total of approximately two hours, during which time he claims that officers informed him that neither a detainer nor a warrant had been issued for his detention. The court takes judicial notice, however, that this statement, if it was made, was incorrect: a warrant for Salemo's arrest had indeed been issued the day before.
The next count in the complaint relates to defendants' alleged removal of documents from GAIA offices. In May 2009 Salemo alleges that a GAIA employee, Troy Sargent, took documents from GAIA offices with defendants' encouragement, and delivered them to defendants. The defendants then, a few days later, came to the GAIA offices themselves where they interviewed employees and removed additional files, hard drives, and other evidence.
During and subsequent to this search of the GAIA offices, Salemo also claims that GAIA employees looted and vandalized the offices and (with defendants' knowledge) gained unauthorized access to GAIA's online banking accounts. When Salemo attempted to bring civil and criminal actions against GAIA employees in connection with these events, Salemo claims that defendants interfered by contacting the attorneys involved and claiming to have taken over the cases. He does not, however, provide any other information about the disposition of these cases.
Additionally, subsequent to the search of the premises, Salemo claims that Special Agent Murphy somehow installed Sargent as a new officer of GAIA (and another organization operating out of the same offices, American Unclaimed Properties, Inc.) and arranged for Salemo to be locked out of the GAIA offices. Salemo claims that not only was he the C.E.O. of GAIA, but that he also had ...