United States District Court, S.D. New York
OPINION AND ORDER
NELSON S. ROMN, District Judge.
Plaintiffs Jose Quinoy and Marina Quinoy ("Plaintiffs") commenced the instant action against Catherine Pena and the United States of America (collectively, "Defendants"), asserting federal claims under the Fifth and Sixth Amendments of the United States Constitution and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. Plaintiffs bring these claims under the constitutional cause of action recognized by the Supreme Court in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
Defendant United States of America (the "Government") now moves, pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(c), to dismiss the amended complaint in its entirety. Defendant Catherine Pena ("Pena") moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Pena's motion to dismiss is GRANTED. The Government's motion to dismiss is GRANTED in part and DENIED in part.
I. THE FACTS
On October 17, 2006, Jose Quinoy ("Quinoy") was a police officer for Sleepy Hollow. (Amended Complaint at ¶ 27.) On October 17, 2006, Mario Gomez ("Gomez") called plaintiff Quinoy and informed him that he was coming down to the Sleepy Hollow Police headquarters to "kick his ass." Id. at ¶ 28. Subsequently, Sleepy Hollow Police Officers, including Quinoy, arrested Gomez outside the Sleepy Hollow Police Department headquarters. Id. at ¶ 29.
On December 17, 2006, Luis Vilches ("Vilches") entered Sleepy Hollow Police headquarters brandishing a saw and stated that he wanted to cut Quinoy "into pieces" and subsequently fled the headquarters. Id. at ¶ 48. Quinoy responded to a police call regarding Vilches and assisted in arresting him with other Sleepy Hollow police officers. Id. at ¶ 49. When Sleepy Hollow Police found Vilches on December 17, 2006, he resisted arrest. Id. at ¶ 50.
Sleepy Hollow Police Officer Hood ("Hood") testified before the federal grand jury on January 19, 2009 that during the Vilches arrest, police officers had to use a police dog and a police taser to assist in the arrest because Vilches was resisting arrest. Id. at ¶¶ 51-52. In January 2009, Vilches told Pena and other Federal Bureau of Investigation ("FBI") agents that he was not tased after being placed in handcuffs.
On or about December 12, 2007, the FBI sent a letter to the Sleepy Hollow Police Department stating that it was beginning an investigation into certain arrests that Quinoy assisted in, including the Gomez and Vilches arrests. Id. at ¶ 56. Pena was the lead FBI agent in the criminal investigation of Quinoy. Id. at ¶ 57. During the course of the FBI investigation, Pena had Michael Hayes ("Hayes"), a Sleepy Hollow police officer and Quinoy's co-worker, wear a recording device to secretly record conversations between him and Quinoy. Hayes's recordings were submitted to FBI technicians who then downloaded them onto a computer and then transferred the files onto compact discs, labeled them, and turned them over to Pena. Id. at ¶ 59.
1D-5, a recording Hayes made on or about June 4, 2008, contained a conversation between Hayes and Pena regarding a prior recording, 1D-4. Id. at ¶ 60. In this conversation between Hayes and Pena contained on 1D-5, Hayes informed Pena that he said "inappropriate things" on 1D-4. Id. at ¶ 61. Hayes testified at a May 17, 2010 hearing before United States District Judge Kenneth M. Karas that in a conversation on 1D-4, Officer Raymond D'Allessandro ("D'Allensandro") told Hayes that he did not see Quinoy punch or kick Gomez during his arrest. Id. at ¶ 63. There were three conversations on 1D-4, including a conversation from May 24, 2008 between Hayes and D'Allensandro. Plaintiffs speculate that, on 1D-4, D'Allesandro offered exculpatory evidence for Quinoy and refuted Gomez's version of his arrest, stating that he did not witness him use unreasonable force during the Gomez arrest. Id. at ¶ 64.
Subsequently, Pena took active steps to block the identification of 1D-4 to the prosecution, including changing a written transcript of 1D-5 to erase any mention of conversations that were recorded on 1D-4 and editing it from forty-two (42) pages to thirteen (13) pages. Id. at ¶ 65. Pena lied to the United States Attorney's Office by informing a paralegal that 1D-5, which contained the conversation between her and Hayes about 1D-4, was an inadvertent recording that contained a discussion about giving directions. Id. at ¶ 66. Pena omitted the conversation between her and Hayes contained on 1D-5, which references 1D-4, from a summary of 1D-5 that she prepared for the United States Attorney's Office. Id. at ¶ 67. On or about June 6, 2008, Pena obtained the original 1D-4 compact disc from FBI evidence, destroyed it, and replaced it with a blank disc. Id. at ¶ 70. On November 7, 2008, five (5) months after obtaining 1D-4, Pena created a report which indicated that the purported 1D-4 disc was blank. Id. at ¶ 72. The transcript and recording of 1D-4 were never recovered. Id. at ¶ 74. On June 15, 2010, Judge Karas ruled that Pena's version of what happened to the 1D-4 recording was "simply not credible" and that Pena intentionally destroyed 1D-4 in bad faith. Id. at ¶¶ 82, 93.
Plaintiffs speculate that on April 27, 2009, Pena falsely testified before a federal grand jury that Quinoy punched and kicked Gomez during his arrest and on March 24, 2010 that Quinoy used unreasonable force on Gomez during his arrest. Id. at ¶¶ 42-43. Plaintiffs speculate that Pena knew that this testimony was false due to the potentially exculpatory conversation contained on 1D-4 that she destroyed.
Plaintiffs speculate that on March 24, 2010, Pena falsely testified before the federal grand jury that Quinoy used unreasonable force on Vilches during his arrest by tasing him after he was already in handcuffs. Id. at ¶ 55. Plaintiffs speculate that Pena knew that this testimony was false because in January 2009, Vilches informed FBI agents, including Pena, that he was not tased after being placed in handcuffs. Id. at ¶ 53.
On or about April 28, 2009, Pena arrested Quinoy, who was charged with using unreasonable force during the Gomez and Vilches arrests. Id. at ¶ 85. Subsequently, on or about April 28, 2009, the Sleepy Hollow Police Department placed Quinoy on administrative suspension without pay. Id. at ¶ 86. On or about April 27, 2009 a federal grand jury in the United States District Court, Southern District of New York indicted Quinoy for allegedly using excessive force with Gomez and Vilches during their respective arrests. Id. at ¶ 87. On or about March 24, 2010 a federal grand jury in the United States District Court, Southern District of New York indicted Quinoy via a superseding indictment for allegedly using excessive force in arresting Gomez and Vilches and for witness tampering. Id. at ¶ 88. Plaintiffs speculate that each of these indictments was a product of Pena providing false and misleading information to the United States Attorney's Office and federal grand jury and her intentional destruction of potentially exculpatory evidence. Id. at ¶ 89.
On or about June 15, 2010, Judge Karas ordered that Quinoy could introduce evidence before the jury at his criminal trial regarding the destruction of evidence and that an adverse inference instruction would be given to the jury. Id. at ¶ 92. Judge Karas also ruled that the loss of evidence was chargeable to the government, as the weight of the evidence supported that Pena intentionally destroyed evidence in bad faith and subsequently attempted to cover it up by lying. Id. at ¶ 93. Judge Karas also ruled that Quinoy could argue to the jury that the missing FBI tape contained exculpatory information and therefore could have created reasonable doubt as to his guilt. Id. at ¶ 94.
On or about July 21, 2010, a jury in the United States District Court, Southern District of New York acquitted Quinoy on the Vilches assault charge and the witness tampering charge. The jury was hung on the Gomez assault charge, so a mistrial was ordered regarding that charge. Id. at ¶ 95. After the Government opted not to retry Quinoy on that charge, Judge Karas ordered that the Gomez assault charge be dismissed on or about August 30, 2010. Id. ¶¶ 10, 95-96; see also Onozawa Decl. Ex. A at Dkt. Nos. 64-65. This order was entered on September 2, 2010. (Amended Complaint at ¶ 96.)
Plaintiffs filed their complaint on March 22, 2013 and an amended complaint on December 31, 2013. Defendants each moved to dismiss the amended complaint on April 4, 2014.
II. MOTION TO DISMISS STANDARD
On a motion to dismiss for "failure to state a claim upon which relief can be granted, " Fed.R.Civ.P. 12(b)(6), dismissal is proper unless the complaint "contain[s] 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). "Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] not bound to accept as true a legal conclusion couched as a factual allegation.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679.
When there are well-pleaded factual allegations in the complaint, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. A claim is facially plausible when the factual content pleaded allows a court "to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Ultimately, determining whether a complaint states a facially plausible claim must be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. When determining the plausibility of a complaint, "[i]n addition to allegations in the complaint itself, the Court may consider documents attached as exhibits and documents incorporated by reference in the complaint." Lesesne v. Brimecome, 918 F.Supp.2d 221, 223 (S.D.N.Y. 2013) (citing Halebian v. Berv, 644 F.3d 122, 131 n. 7 (2d Cir. 2011); Chapman v. N.Y. State Div. for Youth, 546 F.3d 230, 234 (2d Cir. 2008)).
A claim is "properly dismissed for lack of subject-matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "When jurisdiction is challenged, the plaintiff bears the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists." Id. (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)). When "the case is at the pleading stage and no evidentiary hearings have been held... [a court] must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009) (internal citations and quotations omitted; brackets and ellipses added). However, "in adjudicating a motion to dismiss for lack of subject-matter ...