United States District Court, N.D. New York
STEPHEN L. LOCKWOOD, P.C. STEPHEN L. LOCKWOOD, ESQ., Counsel
GRANT C. JAQUITH Acting United States Attorney for the
N.D.N.Y. Counsel for Defendant KAREN F. LESPERANCE, ESQ.
Assistant U.S. Attorney.
DECISION AND ORDER
T. SUDDABY, Chief United States District Judge.
before the Court, in this civil rights action filed by
Jessica Cooke (“Plaintiff”) against the United
States of America (“Defendant”), is
Defendant's motion to dismiss Plaintiff's Amended
Complaint for lack of subject-matter jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(1). (Dkt. No. 8.) For the reasons set
forth below, Defendant's motion is granted.
liberally construed, Plaintiff's Amended Complaint
alleges that, during a traffic stop on or about May 7, 2015,
in St. Lawrence County, New York, two U.S. Custom and Border
protection (“CBP”) officers, without cause,
“shoved her into the side of her car, ”
“threw her violently to the ground, ” and
“violently and repeatedly tased the [her] with [a]
taser gun, causing [her] to suffer physical and emotional
pain and injury.” (Dkt. No. 4 [Plf.'s Am. Compl.]
at ¶ 22.) Based on these factual allegations, Plaintiff
claims that Defendant violated her following rights: (1) her
rights under 42 U.S.C. §§ 1981, 1983, 1985, and the
Fourth, Fifth, and Fourteenth Amendments by using excessive
force; (2) her rights under 42 U.S.C. §§ 1981,
1983, 1985, and the Fourth, Fifth, and Fourteenth Amendments
by failing to intervene in the use of excessive force; and
(3) assault and battery under 28 U.S.C. §§ 2679
(“FTCA”). (See generally Dkt. No. 4
[Plf.'s Am. Compl.].) Familiarity with the factual
allegations supporting these claims in Plaintiff's
Amended Complaint is assumed in this Decision and Order,
which is intended primarily for the review of the parties.
Relevant Procedural Background
April 1, 2016, Plaintiff's counsel filed a “Civil
Rights Complaint” with the United States Department of
Homeland Security's Office of Civil Rights and Civil
Liberties (“DHS/CRCL”), alleging violation of her
civil rights due to the wrongful conduct of CBP agents. (Dkt.
No. 9 at ¶ 5 [Plf.'s Aff. in Response to Def.'s
Motion to Dismiss].) On May 31, 2016, Plaintiff sent by U.S.
mail a “Claim for Damage, Injury or Death Standard Form
95” (“SF-95”) to DHS/CRCL. (Id. at
¶ 6.) Plaintiff did not submit an administrative claim
to the CBP. (Id.)
22, 2016, DHS/CRCL acknowledged receipt of Plaintiff's
April 1, 2016, civil rights complaint “regarding the
treatment of Jessica Cooke by employees of U.S. Customs and
Border Patrol (CBP).” (Id. at ¶ 7.)
DHS/CRCL requested a signed authorization from Plaintiff
allowing counsel to act on her behalf. (Id.)
Plaintiff's counsel forwarded Plaintiff's executed
authorization on July 5, 2016. (Id.)
received no reply from DHS/CRCL with respect to the SF-95,
Plaintiff commenced this action by filing her original
Complaint on February 17, 2017. (Dkt. No. 1 [Plf.'s
Complaint asserted claims against DHS, CBP, CBP Agent Chad
Kenna, CBP Agent Nicole Martin, and one or more unidentified
CBP agents. (Id.) Summonses were issued for these
entities and individuals (except for the John and Jane Doe
Defendants) on February 27, 2017. (Dkt. No. 2 [Summonses].)
March 1, 2017, Plaintiff filed an Amended Complaint that
named the United States as a Defendant and appeared to
abandon her claims against the aforementioned entities and
individuals (at least in their individual capacities). (Dkt.
No. 4, at Caption and ¶¶ 4-10 [Plf.'s Am.
Compl.].) On March 6, 2017, the Clerk's Office confirmed
with Plaintiff's counsel that Plaintiff does not want to
include the aforementioned entities and individuals as