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Zhao v. United States

United States District Court, Second Circuit

June 14, 2013

YAN ZHAO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief District Judge.

I. INTRODUCTION

Plaintiff, Yan Zhao, alleges that a United States Customs and Border Protection officer physically and unlawfully assaulted her. She brings her claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b).

Presently before this Court is Defendant's motion to dismiss under Rule 12(b)(1) and Plaintiff's motion for partial summary judgment. For the following reasons, Defendant's motion to dismiss is granted and Plaintiff's motion for partial summary judgment is denied.

II. BACKGROUND

A. Facts[1]

Both parties agree that on July 21, 2004, Yan Zhao, a Chinese citizen, was involved in an altercation with Customs Officer Robert Rhodes III in the immediate vicinity of the Rainbow Bridge in Niagara Falls, New York.[2] (Def's St., ¶ 1; Docket No. 94.) For the purposes of this motion, it suffices to note that the parties maintain vastly different versions of the circumstances of that altercation, with Zhao contending that Rhodes chased her down without provocation, grabbed her arm, pepper sprayed her, and slammed her head into a wall; and Rhodes maintaining that he suspected her of criminal activity and did not use excessive force in detaining her. But the factual dispute is not the subject of the motions pending before this Court. Instead the events and litigation that followed this altercation currently play a more significant role.

In that vein, this is the fourth lawsuit arising out of the events on July 21, 2004. The first suit began on July 22, 2004, when, as a result of his interaction with Zhao, Rhodes was arrested and charged with a violation of 18 U.S.C. § 242, which makes unlawful the "deprivation of rights under color of law." (Pl.'s State., ¶ 7; Docket No. 96-1.) A federal grand jury later indicted Rhodes. At trial, however, a petit jury found that the Government failed to meet its burden, and acquitted Rhodes in September of 2005.

Rhodes himself also initiated two cases. In those tandem cases, Rhodes sued the United States (and several agents of the United States in a separate, Bivens action[3]), arguing that his arrest was unjustified. ( Id., ¶ 11.) The Government eventually moved for summary judgment, contending, inter alia, that the arrest was based on probable cause. To support this position, the Government cited eyewitness affidavits that attested to the unlawful use of force on Zhao. ( Id., ¶¶ 12-13.) On March 7, 2012, this Court, finding that probable cause did exist, granted the Government's motion and closed both cases. See Rhodes v. United States, No. 07-CV-471S, 2012 WL 777421 (W.D.N.Y. Mar. 7, 2012); Rhodes v. Tevens, No. 07-CV-471S, 2012 WL 777421 (W.D.N.Y. Mar. 7, 2012) (Bivens action), both affirmed by 2013 WL 849810 (2d Cir. Mar. 8, 2013).

The current case is the lone remaining suit. As noted, Zhao herself alleges here that Rhodes' use of force on her that day was excessive.

B. Procedural History

This case began when Zhao filed a complaint in this Court on February 17, 2006. (Docket No. 1.) She amended her complaint on July 28, 2006 and Defendant answered three days later. (Docket Nos. 10, 11.) Defendant later moved to amend its answer, and Magistrate Judge Hugh B. Scott granted that motion in part; the Government then filed its amended answer on November 8, 2011. (Docket Nos. 78, 84, 85.)

After a long interval for discovery - Judge Scott granted several extension requests - on January 15, 2013, both Plaintiff and Defendant filed the motions that are currently before this Court. (Docket Nos. 92, 96.) Briefing thereon concluded April 12, 2013, at which time this Court took the motions under consideration.

III. DISCUSSION

A. Defendant's Motion

The Government moves to dismiss the complaint under Rule 12(b)(1) on one discrete issue: Zhao's claims for negligence in the hiring, retaining, supervising, and training of Robert Rhodes. The Government argues that this claim falls under the ...


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