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Vazquez-Mentado v. Buitron

United States District Court, Second Circuit

May 28, 2013

BUITRON, et al., Defendants.


LAWRENCE E. KAHN, District Judge.


On May 14, 2012, Plaintiff Gerardo Vazquez-Mentado ("Plaintiff") filed a Complaint against Defendants Border Patrol Agents Buitron, Lorenzo, John Doe 1, John Doe 2, Chief Border Patrol Agent Kevin Oaks, and the United States of America (collectively, "Defendants"). Dkt. No. 1 ("Complaint"). In the Complaint, Plaintiff asserts a Bivens[1] claim and claim under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Id . ¶¶ 57-60.

On September 28, 2012, Defendants filed a Motion to dismiss Plaintiff's Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and a lack of subject-matter jurisdiction. Dkt. No. 19. In response, Plaintiff filed an Amended Complaint on November 6, 2012. Dkt. Nos. 26 ("Amended Complaint"). In his Amended Complaint, Plaintiff asserts causes of action for false arrest and false imprisonment as the torts underlying the FTCA claim. See id. In response to the Amended Complaint, Defendants filed a renewed Motion to dismiss for failure to state a claim on December 7, 2012. Dkt. No. 33 ("Motion"). On January 9, -, Plaintiff filed a Response in opposition to Defendants' Motion. Dkt. No. 36 ("Response"). Defendants, in turn, filed a Reply on January 16, 2013. Dkt. No. 37 ("Reply"). Finally, on March 11, 2013, Plaintiff filed a Supplemental Memorandum in opposition to Defendants' Motion. Dkt. No. 40 ("Supplement"). Presently before the Court is Defendants' Motion to dismiss.


Plaintiff is a resident of Oswego, New York, who became a naturalized citizen of the United States on June 10, 1998. Am. Compl.¶ 6. In late September 2009, Plaintiff noticed a Border Patrol vehicle near his residence. Id . ¶ 12. On September 29, 2009, Plaintiff, his wife, Cherrie Vazquez ("Mrs. Vazquez"), and their two children were driving in Plaintiff's 2002 Chevrolet van near his home. Id . ¶¶ 13, 15. Plaintiff, who was driving in conformity with the vehicle and traffic law of the State of New York, parked his van on the street. Id . ¶ 14. The Border Patrol vehicle that he had noticed earlier then parked behind him with its lights flashing. Id . ¶ 17. Defendants Buitron and Lorenzo, both uniformed and armed, exited the vehicle, approached the van, and asked Plaintiff for identification. Id. at ¶ 18. Plaintiff produced his New York State driver's license, stating the name "Gerardo Vazquez."[2] Id . ¶ 19. Defendants Buitron and Lorenzo replied "You are Gerardo Vasquez-Mentado, you are illegal" and ordered Plaintiff out of the van. Id . ¶ 20. In the presence of Plaintiff's wife and children, Defendants Buitron and Lorenzo proceeded to search and then handcuff Plaintiff. Id . ¶ 21.

Throughout the encounter, Plaintiff and his wife repeatedly told Defendants Buitron and Lorenzo that Plaintiff was a U.S. citizen and that his license was valid. Id . ¶¶ 22-23. However, Defendants Buitron and Lorenzo insisted that Plaintiff "was illegal" and did not check his driver's license to see if it was valid. Id . ¶¶ 24-25. When asked by Mrs. Vazquez why Plaintiff had been stopped, Defendants refused to answer. Id . ¶ 26. Mrs. Vazquez also informed Defendants that she too was a United States citizen. Id . ¶ 27. At one point during the encounter, Plaintiff informed Defendants that his handcuffs were too tight. Id . ¶ 28. In response, Defendants told Plaintiff not to worry about it and not to move his arms. Id.

Mrs. Vazquez offered to go back to Plaintiff's house and retrieve his naturalization certificate and U.S. passport. Id . ¶ 31. However, Defendants asserted that they could not wait and had to take Plaintiff to their office immediately. Id . ¶ 32. Without further inquiry into Plaintiff's citizenship status, Defendants then placed Plaintiff into the backseat of an Oswego Police car. Id . ¶¶ 33, 36. An Oswego Police Officer proceeded to transport Plaintiff to the Oswego Border Patrol station with Defendants following in the Border Patrol vehicle. Id . ¶ 34. At the Border Patrol station, Plaintiff was released from the handcuffs, but "at all times... was under arrest and was not free to leave." Id . ¶ 37. When Plaintiff arrived at the Border Patrol station, Defendants John Doe 1 and John Doe 2, both of whom were uniformed and armed, were already present. Id . ¶ 38. Defendants Doe 1 and 2 fingerprinted and photographed Plaintiff. Id . ¶ 39. Plaintiff was then questioned about his citizenship status by Defendants John Doe 1 and 2. Id . ¶ 40.

During this questioning, Defendants Doe 1 and 2 showed Plaintiff a piece of paper with the name "Gerardo Vasquez-Mentado" written on it, as well as a date of birth, which was the same as Plaintiff's. Id . ¶ 41. Defendants Doe 1 and 2 then told Plaintiff that he was "Gerardo Vasquez-Mentado" and that they had arrested him in Texas in 1993. Id . ¶ 41. Plaintiff responded that in 1993 he was a legal permanent resident living in Oswego, New York. Id . ¶ 42. Further, Plaintiff pointed out that his last name was spelled differently than the name of the alleged target. Id . ¶ 43. Plaintiff also showed Defendants Doe 1 and 2 his New York State pistol permit, which indicated that he was not an alien. Id . ¶ 44. Despite Plaintiff's contentions that he was a U.S. citizen and the two valid forms of identification that he presented to the Border Patrol Agents, Plaintiff remained in custody until Mrs. Vazquez brought his Naturalization Certificate and U.S. passport to the Border Patrol station. Id . ¶ 45.

Plaintiff alleges that Defendants' actions were not in compliance with the "applicable laws, policies and procedures in investigating [his] immigration status... prior to detaining and arresting him." Id . ¶ 29. Plaintiff further asserts that prior to being transported to the Border Patrol station, Defendants made no effort to validate or invalidate his claims that he was a citizen. Id . ¶ 35. Plaintiff also contends that in the Buffalo, New York, sector of the U.S. Border Patrol there is "a pattern and practice of unlawful detentions and/or arrests of U.S. citizens, " which is encouraged by Defendant Oaks who trained and supervised the four Defendant Border Patrol agents. Id . ¶¶ 50, 51.

Based on these facts, Plaintiff sets forth both a Bivens claim and an FTCA claim. Id . ¶¶ 57-60. The Bivens claim asserts that Defendants' actions, in their individual capacities, violated Plaintiff's Fourth Amendment right to be free from unlawful search, seizure, and arrest. Id . ¶ 58. Plaintiff's FTCA claim asserts that Defendants' actions constituted false arrest and imprisonment and that because these actions were committed within the scope of Defendants' employment, Defendant United States of America should be held liable. Id . ¶ 60.


To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). Such a determination "requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679 (citation omitted). A court must accept as true the factual allegations contained in a complaint and draw all inferences in favor of a plaintiff. See Allaire Corp. v. Okumus , 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570. Plausibility requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]." Id. at 556. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678 (citing Twombly , 550 U.S. at 556). "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id . (citing Twombly , 550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, a pleader has not demonstrated that she is entitled to relief, and the action is subject to dismissal. See id. at 678-79.


A. FTCA Claim

The FTCA allows a party to file suit against federal government employees normally granted sovereign immunity when there has been a violation of a state or common law tort. See 28 U.S.C. § 1346(b)(1); FDIC v. Meyer , 510 U.S. 471, 478 (1994). In this case, Plaintiff puts forth claims of false imprisonment and false arrest as the underlying tort violations that give rise to governmental liability. Am. Compl. ¶ 60.

In order to make out a claim for false imprisonment, a plaintiff must establish that "(1) the defendant intended to confine, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." Benjamin v. United States , 554 F.Supp. 82, 85 (N.D.N.Y. 1982) (internal quotation marks omitted). False arrest requires the same elements; however, the first three elements are assumed under New York law if the confinement resulted from "a law enforcement official's assertion of his power to arrest." See id.; see also Liranzo v. United States , 690 F.3d 78, 91 (2d Cir. 2012) ("Under New York law, the tort of false arrest is synonymous with that of false imprisonment.") (internal citations and quotation marks omitted). Claims of false imprisonment and false arrest turn on whether the arresting officers had the requisite legal justification for making the arrest. Benjamin, 544 F.Supp. at 85. Therefore, the presence of probable cause to arrest serves as "a complete defense to an action for false arrest." Bernard v. United States , 25 F.3d 98, 102 (2d Cir. 1994).

Probable cause requires an arresting officer to possess "knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Panetta v. Crowley , 460 F.3d 388, 395 (2d Cir. 2006) (citing Martinez v. Simonett , 202 F.3d 625, 634 (2d Cir. 2000)). In determining whether an officer had probable cause, "courts must consider those facts available to the officer at the time of the arrest and immediately before it." Id. at 395 (citing Caldarola v. Calabrese , 298 F.3d 156, 162 (2d Cir. 2002)). This requires a court to "look to the totality of the circumstances' and... [realize] that probable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules." Id . (citing Caldarola , 298 F.3d at 162). The probable cause standard "is a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." United States v. Steppello , 664 F.3d 359, 364 (2d Cir. 2011). While probable cause "does not require absolute certainty, " Panetta , 460 F.3d at 395, officers "may not disregard plainly exculpatory evidence." Id . (citing Kerman v. City of New York , 261 F.3d 229, 241 (2d Cir. 2001)). In a case of mistaken identity, "[w]hen the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest." Hill v. California , 401 U.S. 797, 802 (1971) (internal quotation marks omitted).

In the immigration context, in order to arrest a suspect, an officer is required to have "reason to believe" that the suspect is an alien unlawfully in the United States. 8 U.S.C. § 1357(a)(2); 8 C.F.R. § 287.8(c)(2)(I). Reason to believe has been defined as requiring probable cause.[3] Avila-Gallegos v. INS , 525 F.2d ...

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