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Delarosa v. United States

United States District Court, Second Circuit

May 24, 2013

Lizamaris Delarosa, Plaintiff,
United States of America, AUSA Craig Nolan, ATF S/A Thomas M. Jusianiec, and T.F.O. Thomas McCoy, Defendants.

Lizamaris Delarosa, Plaintiff, pro se.

Hon. Richard S. Hartunian, United States Attorney, Charles E. Roberts, Esq., Assistant United States Attorney, Syracuse, New York, Attorney for Defendants.


NORMAN A. MORDUE, District Judge.


In this pro se action, defendants move (Dkt. No. 28) to dismiss the amended complaint (Dkt. No. 18) pursuant to Fed.R.Crim.P. 12(b)(1) and 12(b)(6) for failure to state a claim, prosecutorial immunity, qualified immunity, sovereign immunity, and lack of standing. As set forth below, the Court grants dismissal in part and denies it in part.


This action stems from the federal investigation and prosecution of plaintiff's husband Noel Delarosa for his participation in a drug trafficking conspiracy in violation of 21 U.S.C. §§ 841 and 846. See United States v. Delarosa, 1:09-CR-64 (D.Vt.). The Court takes judicial notice of the public records in that case. On June 16, 2010, the third superseding indictment was filed, charging Noel Delarosa with conspiracy to distribute 5000 grams or more of cocaine and 100 kilograms or more of marijuana. Id. at Dkt. No. 335. On May 17, 2011 the jury returned a verdict of guilty, see id. at Dkt. No. 795, and on October 17, 2011 the court sentenced him to 300 months imprisonment and forfeiture of assets including a 2004 Cadillac Escalade SUV. See id. at Dkt. Nos. 1092, 1103, and 1105; see also United States v. Noel Delarosa, 2012 WL 3778855 (D.Vt. Aug. 30, 2012) (denying defendant's motion for judgment of acquittal or new trial).

Meanwhile, on April 4, 2011, plaintiff filed the complaint in the instant action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-80.[1] In response to plaintiff's initial complaint, defendants moved to dismiss for failure to state a claim (Dkt. No. 12). Instead of opposing the motion, plaintiff moved to amend the complaint (Dkt. No. 14). On December 17, 2011, United States Magistrate Judge David R. Homer granted the motion (Dkt. No. 17).

Plaintiff's complaint (Dkt. No. 1), motion to amend the complaint (Dkt. No. 14), amended complaint (Dkt. No. 18), and opposition (Dkt. No. 19) to defendants' dismissal motion set forth factual allegations regarding defendants' alleged wrongful conduct during the investigation and prosecution of her husband Noel Delarosa. Plaintiff alleges that between January 2010 and May 2010, defendants Special Agent Thomas M. Jusianiec ("Jusianiec") and Task Force Officer Thomas McCoy ("McCoy") "disclosed sensitive information" about Noel Delarosa (apparently, they disclosed that he was a confidential informant for the Government) that put plaintiff and her children in danger. She further alleges that after he was informed of this conduct, Assistant United States Attorney Craig Nolan ("Nolan") did nothing to stop it.

The amended complaint claims that in May 2010, plaintiff and her husband "discovered an ongoing audio CD that exposes Outrageous Conduct by defendants." Plaintiff states that on the CD, defendants "make discriminatory statements and other illegal activities involving human and civil rights violations planned to be committed by the defendants" including "planning on assaulting an unknown individual."

On June 15, 2010, plaintiff's husband's attorney Donald T. Kinsella, Esq. sent a letter to United States Attorney Richard Hartunian of the Northern District of New York, concerning the CD and other matters. In the letter, attached to plaintiff's papers in opposition to dismissal (Dkt. No. 19), Attorney Kinsella states that he represents Noel Delarosa; that Mr. Delarosa has been cooperating with the Drug Enforcement Administration in Albany; that federal agents have been investigating allegations that Mr. Delarosa was actively involved in a Vermont-based drug trafficking conspiracy in violation of his cooperation agreement; and that it appears that in interviewing people in the course of the investigation, the agents have been disclosing Mr. Delarosa's cooperation with the Government. Attorney Kinsella writes: "We only ask that your office caution NDNY based agents that they should be careful not to put anyone, whether they are witnesses, informants or defendants, into situations in which they will be exposed to injury or death in retaliation for perceived cooperation with the government, or for any other reason." The letter further states that three search warrant applications presented to Magistrate Judge Homer in the Northern District of New York were based on an affidavit by Jusianiec; that Attorney Kinsella has compared the affidavit to the contents of conversations recorded by a device given by the ATF agents to a confidential informant on January 23, 2009; that the conversations were recorded when the informant returned the recording device, which was still turned on, to the agents; that the device recorded "the subsequent goings on amongst the informant and the agents and later between the agents themselves back in their office"; and that the contents of the recording raise credibility issues regarding Jusianiec's affidavit (apparently this is the CD to which plaintiff refers). The letter concludes: "We believe that it is appropriate to bring this matter to your attention so that your duty AUSA will be careful not to present information to Judge Homer that is inaccurate or worse." Plaintiff alleges that, in response to this letter, defendants "launched a criminal vendetta against the Plaintiff and the Plaintiff's family, " including "false statements, illegal seizures and harassment."

On August 29, 2010, Jusianiec and McCoy seized the 2004 Cadillac Escalade from plaintiff's property. Ultimately the vehicle was forfeited in the criminal prosecution of plaintiff's husband. Plaintiff claims the seizure was legally unjustified.

Plaintiff also claims that, during the course of the seizure of the 2004 Cadillac Escalade on August 29, 2010, Jusianiec and McCoy violated her rights. She alleges that they knocked on the door of her residence and requested the keys to the vehicle; that when she requested documentation of their right to seize it, they became "aggressive" and threatened to seize her other vehicle as well; that they stated: "[Y]ou're not going anywhere until you give us the keys"; that they attempted to interrogate her regarding her husband; that they did not leave until a truck removed the vehicle; and that they remained at her residence "holding her against her own free will... [for] approximately 30 to 45 minutes." Thereafter, between August 29, 2010 and September 20, 2010, they "have been stalking, following and putting the Plaintiff's family in great danger."

The amended complaint claims that on September 20, 2010, defendants Jusianiec and McCoy came to plaintiff's place of business, a store located at 855 Crane Street, Schenectady, New York. It does not appear whether plaintiff has a legal interest in the business. In her opposition to the dismissal motion, plaintiff alleges the following regarding this incident:

[D]efendants Thomas M. Jusianiec and Thomas E. McCoy along with an unknown individual surprisingly appeared at Plaintiff's place of business "Fly to the Limit" clothing store/barber shop located at 855 Crane St, Schenectady, New York. Defendants walked in the business uninvited and defendant Thomas E. McCoy along with the unknown individual stood at the door of the entrance to the business while defendant Thomas M. Jusianiec approached plaintiff while she was with her new born son. Plaintiff immediately told defendants to leave her alone. Thomas M. Jusianiec started disrespecting Plaintiff in front of her son, and when plaintiff was attempting to leave with her son, Thomas M. Jusianiec stated "you are not going anywhere until you answer my questions." Plaintiff told Jusianiec that she knows that this is about the audio CD, and Plaintiff also told Jusianiec "I know you are corrupt and soon every one is going to know."

According to plaintiff, the encounter lasted for 30 to 45 minutes. Plaintiff's amended complaint alleges: "The defendants were armed and stood by the door of the front entrance of the store. The defendants made the plaintiff feel as if she was not free to end the encounter and make business sells [ sic ] until their questions were answered." Plaintiff claims that on October 7, 2010 she filed a complaint with the Federal Bureau of Investigation in Albany and Vermont, and with the Attorney General in Washington, D.C. She does not attach copies of these documents.

The amended complaint further alleges that on February 1, 2011, Jusianiec and McCoy again entered plaintiff's place of business at 855 Crane Street. Plaintiff, who apparently was not present at the time of the incident, states:

On or about February 1st, 2011, defendants Thomas M. Jusianiec, Thomas McCoy and a 3rd unknown individual appeared at the Plaintiff's business located at 855 Crane St, Schenectady, New York and impersonated themselves to be Code Enforcement Officers who worked for the city of Schenectady to get access inside of the store. When an individual by the name of Carlos Ruiz who at the time was working at the store asked the defendants who they were, the defendant's advised Mr. Ruiz that they were Code Enforcement Officers who worked for the city of Schenectady, and were there to take measurements of the store. After illegally gaining access to the basement and inside of the entire store, the defendants began recording and or taking pictures of all the items in the store to include all the items in the basement.

Plaintiff also alleges that in March 2011, Nolan, Jusianiec, and McCoy attempted to persuade Dawn Schiavone, the mother of one of Noel Delarosa's codefendants, to wear a recording device and converse with plaintiff in an effort to incriminate plaintiff. The allegations are as follows:

On or about March of 2011, the defendants AUSA Craig Nolan, TFO Thomas McCoy and ATF agent Thomas M. Jusianiec interviewed Ms. Dawn Schiavone who is the mother of John Orlando Brooker a defendant involved in the United States v. Delarosa, Brooker case et al. (also see United States v. Brooker) while the defendant's were conducting their interview, Ms. Dawn Schiavone was recording the conversation between the defendants and herself. According to the audio recording provided by Ms. Schiavone, you clearly hear the defendants requesting that she call the Plaintiff in regards to her son (Brooker) wanting to plead guilty. The defendants had Ms. Schiavone believe that the reason her son at the time had not plead guilty was because the Plaintiff may have threatened to hurt Brooker and or his family if he were to plead guilty and not go to trial. According to Ms. Schiavone who may be a witness at trial, the defendants provided her with an audio recording device and requested that she call the Plaintiff and have the plaintiff somehow incriminate herself through an audio recorded ...

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