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Veras v. United States

United States District Court, S.D. New York

August 3, 2018

RAFAEL VERAS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM AND ORDER

          KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         The plaintiff commenced this action by a verified complaint asserting the following claims, pursuant to 28 U.S.C. § 1346(b) and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680: (1) false arrest and imprisonment; (2) assault; (3) battery; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; and (6) violation of the Fourth Amendment "for the detention and confinement of the Plaintiff without warrant or judicial process." The plaintiff alleges that, on or about April 17, 2014, he was "accused of being part of a narcotics conspiracy" and arrested by four agents of the United States Drug Enforcement Administration ("DEA"). He asserts that, on April 18, 2014, he was released on a $100, 000 personal recognizance bond. By a letter, dated May 6, 2014, an assistant United States attorney requested that the court cancel the initial conference, scheduled for May 8, 2014, and "expunge" the bail set for the plaintiff because, "[t]hrough post-arrest investigation, the Government has determined that the Rafael Veras arrested on April 17, 2014 is not the individual charged in the indictment [for 'one count of participating in a narcotics conspiracy'].",

         The defendant answered the complaint denying the allegations and admitting that: (a) "upon [the plaintiffs] arrest, the Plaintiff was then immediately placed into a motor vehicle and driven to a location at or near 174th Street and the Cross Bronx Expressway in the Bronx," where he "was removed from this vehicle, handcuffed, and placed into another motor vehicle"; (b) the plaintiff "never confessed"; (c) the court set bail at $100, 000; and (d) the May 6, 2014 letter, attached to the verified complaint, was prepared and sent to the court by the defendant's attorney. The defendant asserted certain affirmative defenses. Thereafter, the plaintiffs Fourth Amendment claim was dismissed, with prejudice. See Docket Entry No. 27. Before the Court is the defendant's motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure.[1] The plaintiff opposes the motion.

         DEFENDANT'S CONTENTIONS

         The defendant contends that the: (1) plaintiff "failed to establish a false arrest or imprisonment claim, as it is undisputed that he was arrested pursuant to a valid warrant"; (2) plaintiff "failed to establish his claims of assault and battery"; and (3) plaintiffs "intentional and negligent infliction of emotional distress claims improperly duplicate his other claims and lack any basis in fact." With respect to the plaintiffs false arrest and imprisonment claim, the defendant asserts that "[o]nly the fourth element is at issue," namely, whether the plaintiffs "confinement was not otherwise privileged." According to the defendant, that issue "has been conclusively resolved" in its favor because the plaintiff was arrested "pursuant to a valid warrant, following an indictment by a grand jury." The defendant asserts it is undisputed that a grand jury "issued the charge of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) against Rafael Veras, whom the Government had previously identified as Plaintiff." The indictment was filed on March 31, 2011, and an arrest warrant issued for the arrest of "Rafael Veras a/k/a 'Rafelito, '" pursuant to which the plaintiff was arrested; thus, "he cannot maintain a false arrest claim against the Government. See, e.g. Broughton v. State, 37 N.Y.2d 451, 457-58, 335 N.E.2d 310 (N.Y. 1975)." The warrant was facially valid because the defendant knew the target's name and "the warrant included his first and last name, in addition to his nickname." The defendant maintains that,

[t]o the extent Plaintiff contends that the warrant does not conclusively establish probable cause because more than one individual in the New York area may have the name Rafael Veras, this argument is also unavailing. While courts have held that if a warrant could apply to multiple people, the arresting officer must exercise reasonable care and due diligence in executing the warrant so as to arrest the correct person, this standard for so-called "misnomer cases" is inapplicable here, "because [P]laintiff was the person intended to be apprehended under the warrant." See Boose v. City of Rochester, 71 A.D.2d 59, 67, 421 N.Y.S.2d 740 (N.Y.App.Div. 1979); Davis v. City of Syracuse, 66 N.Y.2d 840, 489 N.E.2d 242, 244 (N.Y. 1985).

         The defendant asserts that "there are no material facts in dispute as to whether Government law enforcement officers arrested the individual they 'intended to [] apprehend[], '" and "the existence of a valid warrant bars Plaintiffs false arrest claim." Moreover, probable cause existed to arrest the plaintiff "who shared a name and birth date with the individual named in the warrant" because "a confidential source with multiple interactions with Rafael Veras identified him as Plaintiff, and therefore Plaintiff became the target of the investigation before the issuance of the grand jury's indictment and the arrest warrant, which were based on the DEA's investigation and observation." The defendant asserts that the plaintiff cannot challenge the defendant's "handling of its investigation that led to Plaintiffs arrest and short confinement in a false arrest action; instead, Plaintiff would have had to bring a malicious prosecution action, which he failed to do," and the plaintiffs "time to amend the Complaint has long passed."

         Concerning the plaintiffs claims for assault and battery, the defendant contends that "no supporting evidence" exists, the complaint "does not identify the tortious actions at issue," and the plaintiffs deposition testimony does not "reveal any such actions for which liability could be found under New York law." The plaintiffs testimony that, .during his transportation to a detention center, his handcuffs were "squeezing" his wrists and the officer who was driving "was talking on the phone and driving recklessly and .. . [Plaintiff] banged [himself] against the door and against the side," does not establish "that the officer intentionally drove in a manner that could be construed as excessive force, especially given that Plaintiff testified that he did not tell officers or anyone else that he needed medical treatment and that he did not seek medical treatment." Moreover, "transportation in handcuffs is a normal part of arrest and alone does not constitute assault or battery," and no evidence exists showing that the plaintiff suffered more than "the discomfort of sitting in a moving car while handcuffed that many if not most arrestees experience."

         With respect to the plaintiffs intentional and negligent infliction of emotional distress claims, "they are entirely undeveloped and improperly replicate other causes of action asserted." Since the plaintiffs claims fall "within the ambit of other traditional tort liability," "an intentional infliction claim cannot be brought." Claims for negligent infliction of emotional distress are precluded if a traditional theory of recovery applies, such as "false arrest, assault, and battery." According to the defendant, the plaintiff cannot remedy his failure to raise a malicious prosecution claim "by pursuing claims based on the investigation preceding his arrest through emotional distress claims." Furthermore, the plaintiff failed to put forth any evidence supporting his claims for intentional and negligent infliction of emotional distress.

         PLAINTIFF'S CONTENTIONS

         The plaintiff contends that he "was not arrested pursuant to a valid warrant because the warrant was improperly obtained as the government made false statements and/or material omissions, either knowingly or with reckless disregard for the truth." The plaintiff asserts that it is undisputed that: (a) the defendant "relied solely on the misidentification of the confidential informant"; (b) "the lone photograph shown the confidential informant for him to identify the [target of the investigation] was a nine year old photograph of the [plaintiff] obtained from the NYS Dept. of Motor Vehicles"; (c) the defendant "did almost nothing to corroborate the veracity of the misidentification of the [plaintiff]"; and (d) the defendant "did nothing to investigate the alleged brotherly ties between the [plaintiff] and the convicted drug dealer, Nelson Veras." Thus, the defendant "relied only on the misidentification of the [plaintiff] by a confidential source ... to establish probable cause to obtain the arrest warrant for [a person named Rafael Veras]." According to the plaintiff "no information supporting the reliability or veracity of the confidential informant" exists and the defendant's "failure to verify the reliability and veracity of the confidential informant" was "a material omission in obtaining the arrest warrant for [a person named Rafael Veras]," which "rebuts the presumption of reasonableness for the issuance of said warrant." Similarly, the defendant's failure to investigate the relationship between the plaintiff and Nelson Veras is a material omission in obtaining the arrest warrant, rebutting the presumption of reasonableness. The defendant's material omissions "destroy its claim that it had probable cause to obtain an arrest warrant against the [plaintiff] and to subsequently apprehend him."

         The plaintiff asserts that he "established his claims of assault and battery by reason of the Government's excessive force in arresting him." The record shows that the plaintiff was arrested "under false pretenses, was not given his Miranda rights, was transported from the Bronx to Manhattan in a recklessly dangerous manner causing him great fear for his life and subjected to coercive interrogation to have him falsely confess to being the brother of a drug dealer and himself engaging in illegal narcotic trafficking." ]

         In the Table of Contents of his memorandum of law, the plaintiff indicates, under ARGUMENT III: "The Plaintiff acknowledges that the allegations comprising the claims for intentional and/or negligent infliction of emotional distress fall within the ambit of ...


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