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Gonzalez v. United States

United States District Court, E.D. New York

March 31, 2018

UNITED STATES OF AMERICA, SPECIAL AGENT STEPHEN MICHAEL LEE, individually and in his capacity as an agent of the Department of Homeland Security, and “JOHN DOES 1-10” names being Presently unknown and intended to be the law enforcement personnel involved in detention, battery, arrest, imprisonment, and prosecution of plaintiff, Defendants.



         In an amended complaint (“Compl.” or the “complaint, ” ECF No. 27), plaintiff Jose Antonio Trad Gonzalez (the “plaintiff”), brings fifteen claims against the United States of America (the “United States”), Department of Homeland Security Special Agent Stephen Michael Lee (“SA Lee, ” and together with the United States, “defendants”), and ten unidentified John Doe 1-10 defendants, under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., and Bivens v. Six Unknown Named Agents (“Bivens”, 403 U.S. 388 (1971), in connection with his March 28, 2013 arrest and subsequent detention and prosecution.

         Before the court is defendants' motion to dismiss this action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and for failure to state a claim under Rule 12(b)(6).

         For the reasons set forth below, the court dismisses plaintiff's FTCA claims against the United States alleging negligence and violation of plaintiff's right to due process and Bivens claims against SA Lee and the John Doe defendants alleging negligent infliction of emotional distress, negligence/gross negligence, and violation of plaintiff's rights under the New York State Constitution, for lack of subject matter jurisdiction. Additionally, the court dismisses plaintiff's remaining claims for failure to state a claim upon which relief can be granted.


         I. Factual Background

         The following well-pleaded factual allegations are taken from the complaint and assumed to be true for the purposes of this motion. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (“When considering a motion to dismiss for lack of subject matter jurisdiction or for failure to state a cause of action, a court must accept as true all material factual allegations in the complaint.”). The court also considers a Memorandum Opinion and Order dated September 19, 2013 by the Honorable Laura Taylor Swain of the United States District Court for the Southern District of New York, which is annexed as Exhibit A to the complaint. (“SDNY M&O, ” ECF No. 27-1.) Plaintiff, a Mexican citizen and municipal government employee in Mexico, has lived at the same publicly-listed address in the border city of Reynosa, Tamaulipas, Mexico, since the 1970s. (Compl. ¶¶ 25-27.) Plaintiff formerly possessed a border crossing card that incorporated B-1 and B-2 visas, which plaintiff regularly used to cross the border into the United States to provide golf lessons and play golf, until the card and visas expired in November 2010. (Id. ¶¶ 28-29.) At some point prior to 2010, plaintiff's border crossing card became mutilated such that it was not machine-readable, but plaintiff was nevertheless able to continue crossing the border with the card until his visas expired in November 2010. (Id. ¶¶ 30-31.) Plaintiff made approximately fifty border crossings between Mexico and the United States between 2007 and 2010. (Id. ¶ 45.) As noted by Judge Swain, the United States did not have a record of plaintiff's crossings from May 8, 2007 through 2010, perhaps due to plaintiff's mutilated border crossing card, and considered plaintiff a fugitive. (SDNY M&O at 8-9.)

         In 2006, plaintiff traveled to the United States with a man he knew as Roberto Gonzalez, also known to the United States as Jose Zumaya (“Zumaya”). (Id. ¶ 34.) During this visit to the United States, plaintiff opened a Bank of America account using his true name and address. (Id. ¶¶ 35-36.) In May 2007, Zumaya and an individual named Johnny Jacob (“Jacob”), were arrested, in connection with an investigation of an alleged narcotics conspiracy in which Zumaya and Jacob were allegedly co-conspirators. (Id. ¶ 37-38.) Plaintiff was aware of the Zumaya arrest in May 2007. (Id. ¶¶ 38, 45.) SA Lee was the supervisory agent for the investigation of the alleged narcotics conspiracy, and the John Doe defendants are other government employees and agents who participated in the investigation and subsequent arrests and prosecutions. (Id. ¶¶ 39.)

         Following their arrest, Zumaya and Jacob began cooperating with the United States, and in the course of their cooperation, Zumaya told the defendants that, in 2006, he and plaintiff “had twice flown from McAllen, Texas, to pick up and deliver drugs and cash for Jacob.” (Id. ¶ 40.) Based on Zumaya's and Jacob's allegations and other evidence, including airline and hotel receipts and records indicating that plaintiff opened a Bank of America account when plaintiff traveled to New York with Zumaya in 2006, a warrant was issued for plaintiff's arrest on federal narcotics charges on or about February 25, 2009. (Id. ¶¶ 41-43.) The records obtained by the defendants during the investigation of the narcotics conspiracy included plaintiff's name, address, and telephone No. in Mexico. (Id.)

         In the course of his investigation and at some point in 2007, SA Lee put a “lookout” alert on plaintiff's immigration file. (Id. ¶ 52.) According to the complaint, the “lookout” would cause a computer-generated e-mail to be sent to SA Lee in the event of any contact between plaintiff and United States officials at any port of entry, including contact resulting from any attempt by plaintiff to enter the United States. (Id. ¶¶ 52-53.) SA Lee and others involved in the investigation of the alleged narcotics conspiracy also began conducting yearly database checks in an effort to locate plaintiff and obtained hotel and bank records relating to plaintiff. (Id. ¶ 48, 54) SA Lee and others involved in the investigation did not make any attempt to determine whether plaintiff resided at the address in Mexico indicated on plaintiff's records, nor did they seek to extradite plaintiff from Mexico despite the existence of an extradition treaty, and of a United States Consulate and a Department of Homeland Security office in the vicinity of Reynosa, the Mexican city where plaintiff was residing. (Id. ¶¶ 25, 48-51.)

         In late 2012 or 2013, plaintiff, who had been aware since 2007 that Zumaya had been arrested on drug related charges but was unaware of the warrant for his own arrest, (id. ¶ 44- 46), applied for a new visa to enter the United States using his true name and address. (Id. ¶ 46.) As part of the application process, he attended a consular interview in Mexico and had his fingerprints taken. (Id.) Because of the “lookout, ” SA Lee received electronic notification of plaintiff's visa application. (Id. ¶ 55.) Following an inquiry by unidentified federal government employees, referred to in the complaint as among the John Doe defendants, SA Lee confirmed that the warrant for plaintiff's arrest was still active and valid. (Id.) Plaintiff was subsequently issued a visa for the sole purpose of arresting him upon any attempted entry to the United States. (Id. ¶ 56.)

         On March 28, 2013, plaintiff attempted to cross the border into the United States at the McAllen-Reynosa border crossing in McAllen, Texas with his new visa, was arrested, and remained in custody for nearly eight months, until October 18, 2013. (Id. ¶ 57-58.) During this time, plaintiff was in federal custodial facilities in Texas; Oklahoma; Bergen County, New Jersey; and Brooklyn, New York. (Id. ¶ 59.)

         In or around March or April of 2013, a grand jury was impaneled in the Southern District of New York and, following presentation of evidence by the defendants, on April 3, 2013, indicted plaintiff on one count of conspiracy to possess cocaine with intent to distribute from October 2006 to May 2007, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). (Id. ¶ 60, 62.) A second grand jury was subsequently impaneled and, on August 4 or 5, 2013, [1] issued a superseding indictment against Plaintiff, which stated the dates of the alleged conspiracy as “2006 to 2007.” (Id. ¶ 63; see also SDNY M&O at 5 (noting that the only change between the initial and superseding indictments was “that the dates of the alleged conspiracy were expanded from October 2006 to May 2007, to 2006 to 2007”).) Plaintiff alleges that the evidence defendants presented to procure the initial and superseding indictments was “unreliable, misleading, false and/or incomplete.” (Id. ¶¶ 61, 64.) Plaintiff relies on an alleged failure by defendants to advise the grand juries that 18 U.S.C. § 3282(a) served to bar the prosecution, trial, or punishment of any person “unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” (Id.) The complaint alleges that the grand juries should have been advised of the five-year statute of limitations because plaintiff's alleged criminal conduct occurred no later than “May 2007” with respect to initial indictment and “2007” with respect to the superseding indictment. (Id.) Therefore, plaintiff's alleged criminal conduct occurred more than five years before the return of the initial and superseding indictments, in April and August 2013, respectively. (See id.)

         On or about July 22, 2013, plaintiff's criminal defense counsel moved before Judge Swain to dismiss plaintiff's indictment as time-barred under 18 U.S.C. § 3282(a).[2] (Compl. ¶ 65.) The United States opposed plaintiff's motion and argued that plaintiff had been a fugitive from justice, and accordingly the statute of limitations had been tolled by reason of plaintiff's flight from justice pursuant to 18 U.S.C. § 3290. (Id. ¶ 66.) Following an evidentiary hearing, on September 19, 2013, Judge Swain found that the government had not carried its burden to show that the statute of limitations should be tolled on flight from justice grounds and dismissed the superseding indictment and ordered plaintiff's release. (Id. ¶¶ 67-68, 70; see also generally SDNY M&O.)

         The SDNY M&O directed the United States to release plaintiff, who had been in custody since his arrest on March 28, 2013, “as of 12:00 p.m. noon on Monday September 23, 2013” (SDNY M&O at 10; accord Compl. ¶ 68), though plaintiff was not actually released until October 18, 2013. (Compl. ¶ 71.)


         Plaintiff subsequently initiated administrative tort claims against United States Customs and Border Protection (“CBP”) and the United States Department of Justice (“DOJ”) under the FTCA, (see Id. ¶¶ 3-4), and, on March 1, 2016, was informed by CBP that his claim against that agency was denied.[3](Id. ¶ 5.) Plaintiff initiated this action by filing an initial complaint on March 27, 2016, (the “Initial Complaint, ” ECF No. 1), and filed the instant amended complaint on February 22, 2017.[4]

         II. The Complaint

         The complaint asserts fifteen “counts, ” the first six against the United States pursuant to the FTCA and the remaining nine against SA Lee and Does 1-10 pursuant to Bivens. The FTCA counts assert claims for false arrest (Count I), false imprisonment (Count II), malicious prosecution (Count III), abuse of process (Count IV), “Violation of Right to Due Process” (Count V), and negligence (Count VI). (Compl. ¶¶ 78-108.) The Bivens counts assert claims against SA Lee and the John Doe defendants for false arrest (Count VII), false imprisonment (Count VIII), malicious prosecution (Count IX), malicious abuse of process (Count X), unreasonably prolonged detention (Count XI), “Violation of Due Process” (Count XII), “Violation [o]f Plaintiff's Rights Under [t]he New York State Constitution” (Count XIII), negligent infliction of emotional distress (Count XIV), and “negligence/gross negligence” (Count XV). (Id. ¶¶ 109-135).

         On February 1, 2017, the court granted defendants leave to file a motion to dismiss or for summary judgment, (see February 1, 2017 Minute Entry), and the instant motion to dismiss was fully briefed and submitted as of August 11, 2017. (See Notice of Motion, ECF No. 31.) In support of their motion, defendants have submitted a memorandum of law (“Mem., ” ECF No. 32) and a reply memorandum. (ECF No. 33.) Plaintiff has submitted a memorandum in opposition to defendants' motion. (“Opp., ” ECF No. 30.)


         Defendants seek dismissal of the complaint under Rule 12(b)(1) for lack of subject matter jurisdiction, and under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Mem. at 1.).

         In considering Rule 12(b)(6) motions, courts must generally accept as true all well-pleaded factual allegations stated in the complaint and draw all reasonable inferences in favor of the plaintiff. Mayor & City Council of Baltimore, Md. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (citations omitted). The same is true when courts consider Rule 12(b)(1) motions, but “jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), (citing Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) and quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)), aff'd, 561 U.S. 247 (2010).[5]

         “A case is properly dismissed . . . 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) (citing Fed.R.Civ.P. 12(b)(1)). “[J]urisdiction to entertain a claim against the United States exists only as Congress has granted it, ” and “[a]ny waiver of the government's sovereign immunity is to be strictly construed in favor of the government.” Long Island Radio Co. v. N.L.R.B., 841 F.2d 474, 477 (2d Cir. 1988) (citations omitted).

         To survive a motion to dismiss under Rule 12(b)(6), “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, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully, ” and a complaint that “pleads facts that are ‘merely consistent with' a defendant's liability . . . ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (citing and quoting Twombly, 550 U.S. at 556-57.)

         Finally, “[w]here, as here, the defendant moves for dismissal under Rule 12(b)(1) . . . as well as on other grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.” Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (internal quotation marks and citations omitted).


         I. The FTCA and Bivens

         “The United States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.” McGowan v. United States, 825 F.3d 118, 125 (2d Cir. 2016) (omission in quoted material) (quoting Liranzo v. United States, 690 F.3d 78, 84 (2d Cir. 2012)). The Supreme Court has emphasized that the FTCA waives sovereign immunity “‘where the United States, if a private person, ' not ‘the United States, if a state or municipal entity, ' would be liable.” United States v. Olson, 546 U.S. 43, 45-46 (quoting 28 U.S.C. § 1346(b)(1)) (emphasis in source material). The FTCA is a limited waiver of sovereign immunity and authorizes suits against the United States to recover damages

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1).

         The FTCA is “structured as a grant of subject matter jurisdiction to the federal courts, ” and is subject to certain exceptions. Caban v. United States, 671 F.2d 1230, 1235 n.5 (2d Cir. 1982) (citations omitted); see also 28 U.S.C. § 1346(b). A finding that a statutory exception applies to a claim is therefore “tantamount to holding that the court lacks jurisdiction to entertain that claim.” Caban, 671 F.2d at 1235 n.5.

         Under Bivens, “victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). The Bivens remedy, however, is only available for violations of the Fourth Amendment, the Due Process Clause of the Fifth Amendment, and the Cruel and Unusual Punishments Clause of the Eighth Amendment. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66-68 (2001) (discussing availability of the Bivens remedy and collecting cases).

         II. Plaintiff's Claims

         A. FTCA Constitutional Tort and Negligence Claims (Counts V and VI)

         Defendants contend that plaintiff's FTCA constitutional tort claim asserted against the United States and FTCA negligence claim fall outside the FTCA's waiver of sovereign immunity. (Mem. at 8, 12-13.) As set forth below, the court agrees.

         1. Plaintiff's FTCA Constitutional Tort Claim (Count V)

         Defendants contend that that the United States has not waived its sovereign immunity for constitutional torts. (Mem. at 8.) In FDIC v. Meyer, the Supreme Court noted that “[a] claim comes within th[e FTCA's] jurisdictional grant - and thus is ‘cognizable' under [28 U.S.C.] § 1346(b) - if it is actionable under § 1346(b).” 510 U.S. 471, 477 (1994). The Supreme Court then observed that for a claim to be actionable against the United States under the FTCA, “a claim must allege, inter alia, that the United States ‘would be liable to the claimant' as ‘a private person' ‘in accordance with the law of the place ...

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