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D'Amario v. United States

United States District Court, W.D. New York

October 23, 2014

ARTHUR D'AMARIO, Plaintiff,
v.
UNITED STATES OF AMERICA and ICE AGENT JOHN DOE, Defendants

Page 250

Arthur D'Amario, Petitioner, Pro se, Tucson, AZ.

For The United States, Respondent: Gail Y. Mitchell, LEAD ATTORNEY, U.S. Attorney's Office, Buffalo, NY.

Page 251

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge.

Plaintiff, Arthur D'Amario III, appearing pro se, filed this action against the United States of America (" Government" ) under the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § 1346(b), 2671-2680, and against " ICE Agent 'John Doe, '" pursuant to 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).[1] Plaintiff, who is currently an inmate in federal custody, seeks $10, 000 in damages for the alleged destruction of personal property of plaintiff that was seized from him at the time of his arrest.[2]

Defendants have moved to dismiss the complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure, based on lack of subject matter jurisdiction, and under Rule 12(b)(6), for failure to state a claim upon which relief can be granted. For the reasons that follow, the motion is granted, and the complaint is dismissed.

DISCUSSION

I. Plaintiff's Allegations

Plaintiff, a resident of Rhode Island, alleges that on March 5, 2013, while plaintiff was in Canada, a federal judge in New Jersey issued a warrant for his arrest; the charges are not alleged in the complaint and are not material to plaintiff's claims here. At some point, he was taken into custody by Canadian officials, who on March 28, 2013, delivered him to the custody of the United States Marshals Service (" USMS" ) in Niagara Falls, New York.

One or more deputy marshals placed plaintiff under arrest, and transported him to federal court in Buffalo that same day. Plaintiff appeared before United States Magistrate Judge Jeremiah J. McCarthy of this Court, who ordered that plaintiff remain in custody and that he be transferred to the District of New Jersey for further proceedings. See Docket, 13-mj-1044.

Plaintiff alleges that at the time of his arrest, defendants seized from him various personal property, including cash, an overcoat, his passport and wallet, and a travel bag. The wallet and bag also contained other items belonging to plaintiff, such as identification and credit cards, eyeglasses, two wristwatches, medicine, and so on.

Around the time of plaintiff's appearance before Judge McCarthy, defendants returned plaintiff's cash to him, but not his other property. Plaintiff alleges that they agreed to ship all that property to plaintiff's mother in Arizona.

Plaintiff subsequently learned, however, that all that property had been destroyed, either negligently or willfully. He filed an administrative claim against USMS, which denied the claim and issued a right-to-sue letter in October 2013. Plaintiff brought this ...


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