United States District Court, N.D. New York
For Gerardo Vazquez-Mentado, Plaintiff: David O. Irving, LEAD ATTORNEY, Worker Justice Center of New York, Inc., Rochester, NY; Walter H. Ruehle, LEAD ATTORNEY, Legal Aid Society of Rochester, Rochester, NY.
For Agent Buitron, individually and in his/her official capacity as U.S. Border Patrol Agent, Agent Lorenzo, individually and in his/her official capacity as U.S. Border Patrol Agent, John Doe 1, individually and in his official capacity as U.S. Border Patrol Agent, John Doe 2, individually and in his official capacity as U.S. Border Patrol Agen, Kevin Oaks, individually and in his official capacity as Chief Border Patrol Agent, Buffalo Sector, United States of America, Defendants: Katherine E.M. Goettel, LEAD ATTORNEY, U.S. Department of Justice Office of Immigration Litigation, Washington, DC.
MEMORANDUM-DECISION and ORDER
Lawrence E. Kahn, U.S. District Judge.
In this civil rights action, Plaintiff Gerardo Vazquez-Mentado (" Plaintiff" ) asserts claims against various members of the U.S. Customs and Border Protections's Office of Border Patrol (" USBP" ) arising out of his arrest and detention on suspicion of being an alien illegally present in the United States. See generally Dkt. No. 43 (" Second Amended Complaint" ). Presently before the Court is Buffalo Sector Chief Patrol Agent Kevin Oaks's (" Oaks" ) Motion to Dismiss Plaintiff's Fourth Amendment Bivens claims against him for failure to sufficiently allege personal involvement. Dkt. No. 51 (" Motion" ). For the following reasons, the Motion is granted in part and denied in part.
The parties are presumed to be familiar with the background of this case. For a complete statement of Plaintiff's allegations and claims, reference is made to the Second Amended Complaint or to the Court's Memorandum-Decision and Order of May 28, 2013. Dkt. No. 41 (" May Order" ). Plaintiff, a United States citizen, alleges that he was pulled over, arrested, and detained for a number of hours by USBP Buffalo Sector agents despite producing a valid New York driver's license. See generally Second Am. Compl.; May Order. The May Order denied a Motion to dismiss filed by the two named arresting agents but granted that Motion without prejudice as to Oaks, finding that the allegations regarding Oaks's involvement were too conclusory. See May Order at 17-18; First Am. Compl.; Dkt. No. 33. Plaintiff then filed the Second Amended Complaint and Oaks filed the present Motion, which argues that the factual allegations remain insufficient. See Dkt. No. 51-1 (" Memorandum" ). Plaintiff filed the Response and Oaks a Reply. Dkt. No. 61 (" Reply" ).
III. LEGAL STANDARD
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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting
Bell A. Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Fed.R.Civ.P. 12(b)(6). Plausibility requires " enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]." Twombly, 550 U.S. at 556. " [U]nadorned, the-defendant-unlawfully-harmed-me accusation[s]" do not suffice. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, although 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), an action is subject to dismissal where the court is unable to infer more than the " sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
A. Supervisory Liability under Bivens
A defendant is liable under Bivens only where she is " personally involved in the claimed constitutional violation." Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009). " Because vicarious liability is inapplicable to Bivens . . . suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. It has long been the law in this circuit that a supervisor's personal involvement may be found where she: (1) participated directly in the alleged constitutional violation; (2) failed to remedy the wrong after being informed of the violation through a report or appeal; (3) created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom; (4) was grossly negligent in supervising subordinates who committed the wrongful acts; or (5) exhibited deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
However, the Supreme Court held in Iqbal that, at least where the constitutional violation is premised on discriminatory intent, " purpose rather than knowledge" is required for an " official charged with violations arising from his or her superintendent responsibilities." Iqbal, 556 U.S. at 677. Some district courts have extended this holding and found that the second, fourth, fifth, and part of the third Colon factors are no longer viable bases for liability in any context. See, e.g., Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939, at *4, 6 (S.D.N.Y. June 26, 2009) (" Only the first and part of the third Colon categories pass Iqbal's muster--a supervisor is only held liable if that supervisor participates directly in the alleged constitutional violation or if that supervisor creates a policy or custom under which unconstitutional practices occurred. The other Colon categories impose the exact types of supervisory liability that Iqbal eliminated--situations where the supervisor knew of and acquiesced to a constitutional violation committed by a subordinate." ); Joseph v. Fischer, No. 08 Civ. 2824, 2009 WL 3321011, at *14 (S.D.N.Y. Oct. 8, 2009) (" [U]nder Iqbal, . . . [a] defendant is not liable . . . if the defendant's failure to act deprived the plaintiff of his or her constitutional right." ); Newton v. City of New York, 640 F.Supp.2d 426, 448 (S.D.N.Y. 2009) (" [P]assive failure to ...