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noting the possibility that NYPD officers deputized to the federal DEA could simultaneously be considered both federal and city employees
Summary of this case from Amador v. City of New YorkOpinion
11 Civ. 5834 (JPO)
02-14-2013
VICTOR GUZMAN, Plaintiff, v. UNITED STATES OF AMERICA, THE CITY OF NEW YORK, Investigator JASON ROBLES, DEA Special Agent JOSEPH MERCURIO, NYPD Sergeant CORNELIUS P. CLANCY, DEA Special Agent MICHAEL REVERENDO, State Police Special Investigator MICHAEL BRYANT, Detective KEVIN ROY, and State Police Investigator BRUCE TAYLOR, Defendants.
MEMORANDUM AND ORDER
:
Victor Guzman ("Guzman" or "Plaintiff") brought this civil rights and tort action against Jason Robles, Joseph Mercurio, Cornelius P. Clancy, Michael Reverendo, Michael Bryant, Kevin Roy, Bruce Taylor (collectively, "the Individual Defendants" or "the Officers"), the United States of America, and the City of New York ("the City"). Plaintiff asserts claims for (1) false arrest and false imprisonment (Count I), (2) malicious prosecution (Count II), and (3) violations of Plaintiff's Fourth and Fifth Amendment rights pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 389 (1971) (Counts III - V). Plaintiff asserts all five claims against the Individual Defendants, the United States, and the City.
Count III broadly alleges a violation of Plaintiff's Constitutional rights, while Counts IV and V divide the Constitutional violation into illegal search and seizure and violation of Miranda v. Arizona, 384 U.S. 436 (1966), respectively. Because Count III appears to be redundant, it should be assumed that the fate of Count III hinges upon that of the other two counts.
Before the Court is the United States and DEA Agents' Motion to Partially Dismiss Plaintiff's Second Amended Complaint and the City's Motion to Dismiss Plaintiff's Second Amended Complaint. For the reasons that follow, the United States and Individual Defendants' Partial Motion to Dismiss is granted in part and denied in part, and the City's Motion to Dismiss is denied.
The United States and Individual Defendants have moved to dismiss all Counts against the United States, and Counts I, II, and V against all parties for failure to state a claim.
The City has moved to dismiss all claims against itself, and has also moved to dismiss Counts I, II, and V for failure to state a claim.
I. Background
A. Factual Background
Unless otherwise noted, the facts herein are taken from the allegations in the Second Amended Complaint, which are assumed true for purposes of these motions.
The seven Individual Defendants were, during the relevant period, officers in New York Drug Enforcement Task Force T-12 ("Task Force T-12"), a unit composed of City, State, and Federal law enforcement officers. (Dkt. No. 51 ("Cowart Decl."), Ex. 11; Dkt. No. 47 ("Weingarten Decl."), Ex. C ("Clancy Authorization"); Ex. D ("Roy Authorization").) Two of the Individual Defendants—Clancy and Roy—were City police officers; three—Robles, Bryant, and Taylor—were State officers; and two—Mercurio and Reverendo—were federal agents employed by the Drug Enforcement Agency ("DEA"). (Id.)
During the relevant period, Plaintiff lived at 442 West 160th Street, Apartment 1C, New York, New York ("the Apartment"), with his girlfriend, Jenny Peña ("Peña"), their child, and another woman ("Julia"). On the night of April 29, 2009, the Individual Defendants knocked on the door of the Apartment. The door was answered by Peña's brother, Pedro Campos ("Campos"), who granted the Individual Defendants permission to enter the Apartment. Without asking permission, the Officers conducted a security sweep of the premises. Plaintiff was detained against his will and escorted to one of the bedrooms in the Apartment. Once there, Individual Defendants demanded that Plaintiff tell them if there were narcotics in the Apartment. Guzman was handcuffed, thrown against the bed, and threatened with a weapon. He was also told that he, his children, and Campos' children would be deported unless he consented to a search. Finally, Plaintiff gave Individual Defendants consent to search the Apartment.
The Officers thereafter conducted a several-hour search, after which they appear to have found illicit drugs. The Officers then presented Guzman with a Miranda form, and coerced and intimated Guzman into signing it. On that form, Guzman indicated that he was invoking his right not to speak to the officers. (Cowart Decl., Ex 4.) However, the Individual Defendants continued to speak to him.
The form asks, "Now that I have advised you of your rights, are you willing to answer questions?" Guzman wrote "NO" and signed his initials.
Guzman protested that he knew nothing about the drugs and claimed they were not his. However, after facing a barrage of threats by the Officers, he signed a statement that the drugs found in the Apartment belonged to him. Guzman was then formally arrested and incarcerated.
The Miranda form contains a statement signed by Guzman averring that "SOY EL DUE[Ň]O DE LAS DROGAS QUE ENCONTRARON EN EL APARTMENTO" (roughly translated as "I am the owner of the drugs that they found in the apartment.") (Id.)
Guzman was arraigned before Magistrate Judge Katz on April 30, 2009. (Cowart Decl., Ex. 5.) He was charged with possession, with intent to distribute, of 50 grams or more of crack cocaine. (Id.)
On July 14, 2010, Judge Kaplan issued a decision suppressing "physical evidence seized pursuant to the search of his apartment and the inculpatory statements he made to Robles in the computer room and on the bottom of the Miranda form." United States v. Guzman, 724 F. Supp. 2d 434, 449 (S.D.N.Y. 2010) ("the Kaplan Order"). Judge Kaplan ordered the United States "to advise the Court promptly whether it intends to proceed to trial." Id.
The United States submitted a nolle prosequi on October 29, 2010, explaining that "[b]ased upon a review of the evidence which is still available to the Government following the issuance of the July 14 Order, the Government has determined that it would not be in the interest of justice to proceed" with Guzman's prosecution. (Ex. 9, at ¶ 4.) The nolle prosequi was filed by the Court on November 2, 2010. (Id.) Guzman was released from prison on November 4, 2010, having been incarcerated for more than eighteen months.
B. Procedural Background
Plaintiff filed his first Complaint in this action on August 19, 2011. (Dkt. No. 1.) The Complaint was amended on August 31, 2011. (Dkt. No. 6.). On June 1, 2012 and June 4, 2012, Defendants moved to dismiss the Amended Complaint. (Dkt. No. 30; Dkt. No. 33.) Plaintiff then filed a Second Amended Complaint on July 6, 2012. (Dkt. No. 42 ("Sec. Amend. Compl.").) As a result, this Court terminated as moot the prior Motions to Dismiss. (Dkt. No. 44.) On August 20, 2012, the City of New York filed its Motion to Dismiss the Second Amended Complaint. (Dkt. No. 48 ("City's Mem.").) On the same day, the United States and Individual Defendants filed their Motion to Dismiss the Second Amended Complaint. (Dkt. No. 50 ("Defs.' Mem.").) On September 2, 2012, Plaintiff opposed both Motions to Dismiss. (Dkt. No. 53 ("Pl.'s Opp'n.").) The City filed its Reply on September 21, 2012, as did the United States and Individual Defendants. (Dkt. No. 59 ("City's Rep."); Dkt. No. 60 ("Defs.' Rep.").)
II. Legal Standard
A. Standard of Review for a Motion to Dismiss
To survive a motion to dismiss pursuant to Federal Rule 12(b)(6), a plaintiff must plead sufficient factual allegations "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must accept as true all well-pleaded factual allegations in the complaint, and "draw[ ] all inferences in the plaintiff's favor." Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006) (internal quotations omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 555 (noting that a court is "not bound to accept as true a legal conclusion couched as a factual allegation" (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986))).
B. Judicial Notice at the Motion to Dismiss Stage
In its Memorandum of Law, the City "respectfully requests that the Court take judicial notice of" various facts related in the Kaplan Order. (City's Mem. at 3.) The United States and Individual Defendants also rely heavily on the Kaplan Order in their brief. Plaintiff, however, argues that it would be "inappropriate for a motion to dismiss" to be granted based upon Judge Kaplan's findings. (Pl.'s Opp'n. at 12.)
At the Motion to Dismiss stage, courts consider "only the facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Thomas v. Goord, 215 Fed. Appx. 51, 52 (2d Cir. 2007) (internal quotation marks and citations omitted). The doctrine of judicial notice is governed by Federal Rule of Evidence 201, which states that "a court may judicially notice a fact that is not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction; or (2) can be determined from sources whose accuracy cannot reasonably be questioned." It is common and entirely proper for courts to take judicial notice of other court proceedings. See Faulkner v. Verizon Commc'n, Inc., 156 F. Supp. 2d 384, 391 (S.D.N.Y. 2001) (explaining that a court "may take judicial notice of pleadings in other lawsuits attached to the defendants' motion to dismiss, as a matter of public record" (citations omitted)); see also Sheppard v. Lee, No. 10 Civ. 6696 (GBD) (JLC), 2011 WL 5314450, at *1 n.2 (S.D.N.Y. Nov. 7, 2011) (taking judicial notice of state court proceedings attached to the motion to dismiss in a § 1983 case) (Report and Recommendation), adopted, 2011 WL 6399516 (S.D.N.Y. Dec. 20, 2011); Stubbs v. de Simone, No. 04 Civ. 5755 (RJH) (GWG), 2005 WL 2429913, at *5 (S.D.N.Y. Sept. 30, 2005) (relying on facts from court papers attached to defendants' motion to dismiss a § 1983 action by prison inmate).
And yet, the rules concerning judicial notice of other proceedings are not as straightforward as they first appear; indeed, when it comes to taking judicial notice of other court proceedings, "courts frequently get it wrong." 21B Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5106.4 at 234 (2d ed. 2005). This seems to be the result of a fundamental misunderstanding of the bounds of a court's ability to take judicial notice of a court proceeding: While a court may take judicial notice of a prior proceeding's existence, see Staehr v. Hartford Fin. Serv. Grp., 547 F.3d 406, 425 (2d Cir. 2008) (affirming district court's decision to take judicial notice of state court filings in order to determine whether those filings constituted inquiry notice), a court may not take judicial notice of that proceeding for the truth of the matters asserted therein, see Wyatt v. Terhune, 315 F.3d 1108, 1114 n.5 (9th Cir. 2003) ("Factual findings in one case ordinarily are not admissible for their truth in another case through judicial notice."); see also Frigerio v. United States, No. 10 Civ. 9086 (SAS), 2011 WL 3163330, at *6 (S.D.N.Y. July 22, 2011) (noting that "courts routinely take judicial notice of documents filed in other courts, again not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings" (quoting Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)).
Defendants would have this Court take judicial notice of the underlying testimony by Robles and Mercurio cited in Judge Kaplan's decision, as well as Judge Kaplan's findings of fact, for the truth of the matters asserted therein. However, were this Court to do so, it would be tantamount to accepting as true declarations made by those parties appended to the City's Motion to Dismiss. Therefore, while this Court does take judicial notice of Judge Kaplan's Order, it may not consider Judge Kaplan's findings of fact, nor the testimony cited in his opinion.
Judicial notice is taken of the public documents indicating that DEA deputized certain Individual Defendants to serve on the Task Force. Judicial notice is also taken of existence of the criminal complaint. (Cowart Decl., Ex 5.) However, for the reasons explained above, this Court does not assume the truth of the facts asserted in that document.
III. Common Law Tort Claims
A. False Arrest (Count I)
Because the allegedly false arrest took place in the state of New York, New York law applies. See United States v. Bernard, 25 F.3d 98, 102 (2d Cir. 1994) (explaining that when "the acts or omissions at issue" take place in New York, "New York law applies . . . under the [Federal Torts Claim Act]"). "To prove the elements of false arrest under New York law, plaintiff must show: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." Id. (citation omitted). Defendants argue that Plaintiff cannot adequately allege a lack of probable cause, and that he has therefore failed to state a claim.
A finding of probable cause "is a complete defense to an action for false arrest." Id.; see also Lewis v. United States, 388 F. Supp. 2d 190, 197 (S.D.N.Y. 2005) (same). As this Court has explained,
Probable cause "is based upon whether the facts known by the arresting officer at the time of the arrest objectively provided probable cause to arrest." Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir.2006) (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). An officer has probable cause to arrest when he or she has "knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Id. at 152 (quoting Weyant, 101 F.3d at 852); see also United States v. Ceballos, 812 F.2d 42, 50 (2d Cir.1987).Sachs v. Cantwell, No. 10 Civ. 1663 (JPO), 2012 WL 3822220, at *11 (S.D.N.Y. Sept. 4, 2012). Moreover, the evidence upon which probable cause is based can come from the fruit of a poisonous tree; even if the officers lacked probable cause to search and seize evidence, once that evidence is seized, it can validly constitute probable cause to arrest. Townes v. City of New York, 176 F.3d 138, 149 (2d Cir. 1999). Nonetheless, Townes makes clear that the finding of probable cause at 1:00 p.m. does not whitewash unconstitutional conduct perpetrated at noon. Id. That is to say, any false imprisonment before the establishment of probable cause remains actionable.
Defendants encourage this Court to find probable cause on the basis of Plaintiff's "admi[ssion], in writing, that the crack cocaine was his." (Defs.' Mem. at 11.) However, because Plaintiff has pleaded that the confession was coerced, "we will not consider the confession in our probable cause determination." Edwards v. Pretsch, 180 F. Supp. 2d 499, 507 (S.D.N.Y. 2002). Defendants have also asked this Court to take judicial notice that 300 grams of crack cocaine were discovered in Guzman's apartment. For reasons explained above, however, this Court cannot do so. The Second Amended Complaint does make reference to "[t]he narcotics found" in the Apartment. (Sec. Amend. Compl. at ¶ 147.) However, Guzman also pleads that he "had no knowledge" of any drugs found "and no intention to exert control or dominance over the drugs that were eventually found" in the Apartment. (Id. at ¶ 148). Guzman also alleges that whatever drugs were found were unearthed only after extensive searching.
Because probable cause requires "knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested," drugs discovered in an apartment constitute sufficient probable cause to arrest only when they are constructively possessed. Curley v. Vill. of Suffern, 268 F.3d 65, 69-70 (2d Cir. 2001) (citation omitted). When drugs are out in the open, all persons in the apartment are found to constructively possess them. See United States v. Heath, 455 F.3d 52, 57 (2d Cir. 2006) (finding arrest valid where plaintiff would be expected to see contraband in regular course of walking through home's public spaces, because "those who are permitted to observe obvious criminal activity in a home are, absent indications to the contrary, likely to be complicit in the offense"). Otherwise, however, "mere proximity or presence is . . . insufficient to support a finding of constructive possession." United States v. Rodriguez, 392 F.3d 539, 548 (2d Cir. 2004) (citation omitted); see also United States v. Brown, 3 F.3d 673, 681 (3d Cir.1993) (holding that, "[w]hile the evidence may be sufficient to show that [the defendant] was residing at the [co-defendant's] home and that she knew that drugs were in the house, the evidence is not sufficient to support a finding that she exercised dominion and control over the drugs").
Again, for the reasons explained above, Defendants' assertion that the Officers had probable cause "[a]ccording to [the facts as found in] Honorable Lewis A. Kaplan's July 14, 2010 decision" is not relevant. (Defs.' Rep. at 7.)
Thus, "drawing all inferences in the plaintiff's favor," Allaire Corp., 433 F.3d at 249-50, this Court cannot conclude as a matter of law, on a motion to dismiss, that the Individual Defendants had probable cause to arrest Plaintiff.
Moreover, even if this Court were to determine that there was probable cause after the discovery of the drugs, Plaintiff have successfully stated a claim as to the period during which Plaintiff was held against his will but before the drugs were discovered. See Townes, 176 F.3d at 149 (noting that, even when a search bears results that provide probable cause to make an arrest, a claim may exist for "the brief invasion of privacy related to the seizure and initial search of his person"); see also Davenport v. Cnty. of Suffolk, No. 99 Civ. 3088 (JFB), 2007 WL 608125, at *7 (E.D.N.Y. Feb. 23, 2007) (same).
B. Malicious Prosecution (Count II)
Defendants contend that sovereign immunity bars Plaintiff's malicious prosecution claim, and that this Court should therefore dismiss Plaintiff's Count II for lack of subject matter jurisdiction. "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994) (citations omitted). "In the FTCA, Congress waived the United States' sovereign immunity for claims arising out of torts committed by federal employees." Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18 (2008) (citing 28 U.S.C. § 1346(b)(1)). The United States has declined to waive its sovereign immunity as to, inter alia, "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights" except "with regard to acts or omissions of investigative or law enforcement officers of the United States Government." 28 U.S.C. § 2680(h). "[I]nvestigative or law enforcement officers" include "any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." Id. Thus, Assistant United States Attorneys are not "investigative or law enforcement officers," and the United States cannot be held liable for malicious prosecution "based upon the actions of Government prosecutors." Bernard, 25 F.3d at 104.
"Plaintiff concedes that the claims against the Assistant United States Attorneys for malicious prosecution are barred by sovereign immunity." (Pl.'s Opp'n. at 24.) Rather, his malicious prosecution claim is premised upon the behavior of the Individual Defendants. As a result, Defendants' sovereign immunity argument is either unavailing or superfluous: if Plaintiff is able to allege that the Individual Defendants induced the prosecutors to pursue the action against him, the argument is unavailing; if not, Plaintiff fails to state a claim, and his malicious prosecution action must be dismissed pursuant to Rule 12(b)(6).
"The elements of a malicious prosecution claim under New York law are: (1) the defendant commenced or continued a criminal proceeding against plaintiff, (2) the proceeding terminated in plaintiff's favor, (3) there was no probable cause for the criminal proceeding, and (4) the defendant initiated the criminal proceeding out of malice." Bernard, 25 F.3d. at 104 (citation omitted). Defendants contend that Guzman has not plausibly alleged any of the above elements. Each is examined in turn.
1. Commencing or Continuing a Legal Proceeding
"New York law imposes a presumption that a prosecutor exercises his own independent judgment in deciding to prosecute a criminal defendant." Gilman v. Marsh & McLennan Cos., Inc., 868 F. Supp. 2d 118, 128 (S.D.N.Y. 2012) (citation omitted). Thus, proximate cause is often lacking in malicious prosecution claims against police officers, as "the chain of causation between a police officer's unlawful arrest and a subsequent conviction and incarceration is broken by the intervening exercise of independent judgment." Townes, 176 F.3d at 147 (citations omitted). However, "a plaintiff may overcome that presumption by demonstrating that 'the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.'" Espada v. Schneider, 522 F. Supp. 2d 544, 553 (S.D.N.Y. 2007) (quoting DeFilippo v. Cnty. of Nassau, 183 A.D.2d 695, 696, 583 N.Y.S.2d 283, 284 (2d Dep't 1992)). Moreover, "[a] police officer may also be held liable for malicious prosecution if he provides false information to the prosecutor that influences a decision whether to prosecute." Jouthe v. City of New York, No. 05 Civ. 1374 (NGG) (VVP), 2009 WL 701110, at *11 (E.D.N.Y. Mar. 10, 2009) (internal quotation marks and citations omitted). The question, then, is whether the Officers were a proximate cause of the prosecution.
In his Second Amended Complaint, Plaintiff alleges that the Individual Defendants
induced the United States Attorney to commence and continue legal proceedings against plaintiff VICTOR GUZMAN by omitting material facts, including . . . the fact that defendants had conducted an illegal search of the Subject Premises, that VICTOR GUZMAN's statements were only obtained using coercion and intimidation, and that Defendants had violated VICTOR GUZMAN's Miranda rights . . . .(Sec. Amend. Compl. at ¶¶ 221-227.) Plaintiff further alleges that, "[a]s a result of the defendants' acts set forth herein, a criminal proceeding was commenced on the strength of the illegal and unconstitutional conduct by these defendants." (Id. at ¶ 228.)
Defendants argue that these allegations are conclusory, and that Guzman has therefore failed to state a claim. This Court disagrees. Plaintiff has specifically alleged the misconduct by which Individual Defendants induced the United States Attorney to pursue the case against Guzman. Nor is it necessarily implausible that the Individual Defendants would induce the United States Attorney to prosecute a case by falsely affirming that the relevant evidence had been legally garnered. Indeed, it is hard to imagine that the United States Attorney would have pursued this case from the outset had he been informed by the Individual Defendants of the means by which—according to Guzman—they obtained his consent to search the Apartment and his confession.
Defendants' contention that the case at bar is similar to Gilman is unpersuasive. In Gilman, the plaintiffs alleged solely that their employer "'encouraged,' 'convinced' and 'colluded with' the Attorney General by 'offer[ing] up [the plaintiffs] as targets for criminal prosecution." 868 F. Supp. 2d at 128. Noting the implausibility of the employer inducing the Attorney General to pursue such an action—as well as the fact that a more plausible explanation for the Attorney General's behavior existed—this Court held that the plaintiff failed to state a claim for malicious prosecution. Id. at 128-29. Here, however, Plaintiff has far more specifically alleged how the inducement occurred; additionally, the allegation that a United States Attorney was induced to prosecute by an officer's prevarications is more plausible than the allegation that a private company orchestrated a criminal action against a former employee.
Thus, Plaintiff has sufficiently alleged that the Individual Defendants induced federal prosecutors to bring a criminal case against Guzman.
2. Termination in Plaintiff's Favor
The next issue is whether Guzman's criminal case was terminated in his favor.
In Hygh v. Jacobs, the Second Circuit held that, "as a matter of [New York] law, [a dismissal 'in the interest of justice'] cannot provide the favorable termination required as the basis for a claim of malicious prosecution." 961 F.2d 359, 368 (2d Cir. 1992) (citations omitted). In so finding, the Hygh Court relied primarily on the New York Court of Appeals' holding that "[a] dismissal 'in the interest of justice' is neither an acquittal of the charges nor any determination of the merits. Rather, it leaves the question of guilt or innocence unanswered." Id. (quoting Ryan v. New York Tel. Co., 62 N.Y.2d 494, 504-05 (1984)).
Plaintiff would have it that Hygh "does not mean that a termination ending in the 'interest of justice' can never show termination in favor of the accused, just that such a termination is not enough by itself." (Pl.'s Opp'n. at 22-23.) Plaintiff's reading of Hygh, however, has been contravened by the Second Circuit, which recently cited Hygh for the proposition that a "plaintiff cannot state a § 1983 claim for malicious prosecution . . . because the charges were dismissed 'in the interest of justice' . . . ." Lynch v. Suffolk Cnty. Police Dept., Inc., 348 Fed. Appx. 672, at *2 (2d Cir. 2009) (emphasis added).
In the years between Hygh and Lynch, however, the New York Court of Appeals clarified New York law regarding the characterization of dismissals "in the interest of justice." In Cantalino v. Danner, 96 N.Y.2d 391 (N.Y. 2001), the plaintiff brought a malicious prosecution claim after the Criminal Court dismissed the case against plaintiff "in the interest of justice." Id. at 393. The defendant argued that the claim was barred because the plaintiff had not received a favorable termination, and the Appellate Division agreed. Id. at 394. The Court of Appeals, however, reinstated the claim. Writing for a unanimous Court, Chief Judge Kaye held that "the dismissal of criminal charges against plaintiff was a favorable termination because it was not inconsistent with her innocence." Id. at 395. Chief Judge Kaye went on to explain that, while, "[t]o be sure, there are circumstances where a dismissal in the interest of justice is inconsistent with innocence because it represents mercy requested or accepted by the accused," the Court's past decisions did "not establish a per se rule that a dismissal in the interest of justice can never constitute a favorable termination. Rather . . . the question is whether, under the circumstances of each case, the disposition was inconsistent with the innocence of the accused." Id. at 396-97 (internal quotation marks and citations omitted).
Because Lynch relies on Hygh, it appears that the Second Circuit overlooked the Court of Appeals' clarification of the law in Cantalino. Indeed, even after the Second Circuit decided Lynch, other judges on this Court have seen fit to apply the rule of Cantalino. See, e.g., D'Olimipio v. Crisafi, 718 F. Supp. 2d 357, 368 (S.D.N.Y. 2010) (post-Lynch decision holding that Hygh was overruled by Cantalino); Blanzina v. Port Auth. Of New York & New Jersey, 06 Civ. 481 (KNF), 2008 WL 919671, at *5 (S.D.N.Y. Apr. 1, 2008) (citing Cantalino for the proposition that "[w]hether a dismissal in the interest of justice . . . constitutes a favorable termination is a question which requires a case-by-case analysis"); Javanovic v. City of New York, 04 Civ. 8437 (PAC), 2010 WL 8500283, at *6 (S.D.N.Y. Sept. 28, 2010) (relying on Cantolino for the proposition that "a dismissal by the prosecution 'in the interest of justice . . . may properly be considered a 'favorable' termination'"). But see Tribie v. Parwanta, No. 10 Civ. 6016 (VB), 2012 WL 246619, at *8 (S.D.N.Y. Jan. 26, 2012) (rejecting plaintiff's argument that a dismissal "in the interest of justice" does not per se preclude a malicious prosecution case because "Lynch was decided eight years after Cantalino"); Paulin v. Figlia, 11 Civ. 9634 (VB), 2013 WL 120167, at *5 (S.D.N.Y. Jan. 10, 2013) ("Because plaintiff's criminal case was . . . dismissed ['in the interest of justice'], his malicious prosecution claim must be dismissed.").
Nor does it matter, as the Defendants would have it, that the order of nolle prosequi is presumed to be without prejudice. Indeed, the New York Court of Appeals has squarely held that "[a] dismissal without prejudice qualifies as a final, favorable termination if the dismissal represents the formal abandonment of the proceedings by the public prosecutor, for instance, by the entry of a nolle prosequi." Smith-Hunter v. Harvey, 95 N.Y.2d 191, 198 (N.Y. 2000) (internal quotation marks and citations omitted).
Thus, this Court cannot conclude at this stage of the proceedings that Plaintiff's criminal case did not terminate favorably. Guzman has therefore satisfied the second element of the New York test for malicious prosecution.
3. Probable Cause
As explained above, Plaintiff has adequately pleaded that he was arrested without probable cause. (See III.A.) Guzman has therefore satisfied the third element required to state a claim for malicious prosecution.
4. Malice
Finally, Defendants contend that Plaintiff has failed to plead malice. "Under New York law, malice does not have to be actual spite or hatred, but means only 'that the defendant must have commenced the criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.'" Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (quoting Nardelli v. Stamberg, 44 N.Y.2d 500, 502-03 (N.Y. 1978)). Malice can be demonstrated through lack of probable cause. Id. Indeed, "once an issue of fact exists with regard to the possible lack of probable cause, the element of malice becomes an issue of fact as well." Brandon v. City of New York, 705 F. Supp. 2d 261, 277 (S.D.N.Y. 2010); see also Ricciuti v. New York City Transit Auth., 124 F.3d 123, 131 (2d Cir. 1997) ("In the present case, as we have just noted, a jury could find that probable cause for the charges against the plaintiffs was lacking, and that finding alone would support an inference of malice." (citing Loweth, 82 F.3d at 573)).
Because probable cause may have been lacking here, Plaintiff has adequately pleaded malice, and has, by extension, successfully stated a claim of malicious prosecution.
C. Common Law Tort Claims against the City
Having determined that Plaintiff's common law tort claims survive Defendants' Motions to Dismiss, this Court must now consider whether Counts I and II allege proper claims against the City. The City would be liable, if at all, as a result of the actions of Clancy and Roy, who were, at the time of their alleged misconduct, members of the City's police force working as members of the T-12 Task force. While the parties agree that the Officers were all federal employees during the incidents in question, they disagree as to whether Clancy and Roy may also be deemed employees of the City during that period.
"Under the common law, unlike § 1983, a municipality may be held liable for common law false arrest and malicious prosecution on a theory of respondeat superior." Chimurenga v. City of New York, 45 F. Supp. 2d 337, 344 (S.D.N.Y.1999) (citing Johnson v. Town of Colonie, 102 A.D.2d 925, 477 N.Y.S.2d 513, 514 (3d Dep't 1984)). In cases concerning the liability of the City, as in traditional respondeat superior analysis,
[t]he doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of his or her employment. An employee's actions fall within the scope of employment where the purpose in performing such actions is "to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business."Beauchamp v. City of New York, 3 A.D.3d 465, 466, 771 N.Y.S.2d 129 (2d Dep't 2004) (internal citations and quotation marks omitted). Because the question of whether an officer's actions "were committed within the scope of his public employment and the discharge of his duties raises factual questions," such inquiries often survive motions for summary judgment, let alone motions to dismiss. Williams v. City of New York, 64 N.Y.2d 800, 802 (N.Y. 1985) (citation omitted); see also Beauchamp, 3 A.D.3d at 466-67 (same); Waterman v. State, 19 A.D.2d 264, 267 (4th Dep't 1963) (holding that "the question of whether the State is liable . . . under the principle of respondeat superior presents a question of fact which cannot be summarily disposed of on a motion to dismiss").
An employee "who is transferred for a limited time of whatever duration to the service of another" is a special, or borrowed, servant. Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557 (N.Y. 1991). Under New York law, "[t]he special servant rule applies only where the usual employer relinquishes control of the servant to another person, thereby making the servant a special employee of the other person and making that person, rather than the usual employer, liable for the servant's acts." Reinitz v. Arc Elec. Const. Co., Inc., 104 A.D.2d 247, 250 (3rd Dep't 1984). A key to the determination is "who controls and directs the manner, details and ultimate result of the employee's work." Zapata v. Riverside Study Ctr., No. 10 Civ. 6283 (CM), 2012 WL 1744792, at *6 (S.D.N.Y. May 16, 2012) (citing Thompson, 78 N.Y.2d at 558). "If, at the time of an injury, the servant negligently causing the injury, is not in the service of his employer, the principle is not applicable, and the employer is not liable, but a special master, one in whose service the servant at the time is engaged, may be liable." Ramsey v. New York Cent. R. Co., 269 N.Y. 219, 223 (1935).
"A person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other." Restatement (Second) of Agency § 226 (1958); see also Ward v. Gordon, 999 F.2d 1399, 1404 (9th Cir. 1993) (same). Moreover, both masters may "be responsible for an act which is a breach of duty to one or both of them." Restatement (Second) of Agency § 226 cmt. a. Indeed, "in the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it." Restatement (Second) of Agency § 227 cmt. b.
As Justice Cardozo noted in his celebrated article, A Ministry of Justice:
The law that defines or seeks to define the distinction between general and special employers is beset with distinctions so delicate that chaos is the consequence. No lawyer can say with assurance in any given situation when one employment ends and the other begins. The wrong choice of defendants is often made, with instances all too many, in which justice has miscarried.
Here, Clancy and Roy were deputized as DEA agents pursuant to 21 U.S.C. § 878 (permitting the Attorney General to designate state or local law enforcement officers to make arrests, execute and carry out search warrants, make seizures, carry firearms, and perform other duties on behalf of the federal government) and 5 U.S.C. § 3374(c) (providing that state or local employees on detail to a Federal agency are in many respects to be considered federal employees "[d]uring the period of assignment"). (Clancy Authorization; Roy Authorization.) It is clear that, while working on the T-12 Task Force, Clancy and Roy were federal employees. See Aikman v. Cnty. of Westchester, 691 F. Supp. 2d 496, 498 (S.D.N.Y. 2010) ("Courts within this Circuit have interpreted § 3374(c) to extend to civil rights actions, and consequently have treated deputized officers as federal employees for purposes of such actions.") As explained above, while the parties agree that the Officers were all federal employees during the incidences in question, they disagree as to whether Clancy and Roy may also be deemed employees of the City during that period.
At this stage in the litigation, this Court cannot definitively determine that Clancy and Roy were not acting in the scope of their employment as City, as well as Federal, officers. This is in part because discovery has not yet elucidated the precise contours of the pertinent agreement among the Federal, State, and City governments. And indeed, § 3374(c) provides that "[t]he supervision of the duties of such an employee may be governed by agreement between the Federal agency and the State or local government concerned." Thus, it is not necessarily the case that the task force was exclusively under the control of the federal government. Moreover, it seems evident that the task force furthered the goals of the City just as much as it did those of the federal government.
Thus, the City's Motion to Dismiss is denied as to Counts I and II.
IV. The Constitutional Tort Claims
Plaintiff has alleged violations of his Fourth and Fifth Amendment rights. Defendants assert that Plaintiff's Fifth Amendment Claim fails under Rule 12(b)(6). (City Mem. at 21; Defs.' Mem. at 15-16.) Moreover, The City and the United States both assert that any constitutional claims as against them should be dismissed.
A. Fifth Amendment Claim (Count V)
Plaintiff's Fifth Amendment claim concerns Individual Defendants' alleged "violat[ion] of [Guzman's] Miranda rights, by unlawfully questioning VICTOR GUZMAN after he invoked his Miranda rights" and "intimidating, and coercing plaintiff VICTOR GUZMAN" in order to coax Plaintiff into waiving his Miranda rights. (Sec. Amend. Compl. at ¶¶ 531-39.)
"The remedy for a Miranda violation is the exclusion from evidence of any ensuing self-incriminating statements" and "not a [civil rights] action." Neighbour v. Covert, 68 F.3d 1508, 1510-11 (2d Cir. 1995) (citations omitted); see also Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998) (holding that the interrogation of juveniles without Miranda warnings "does not, without more, result in § 1983 liability"). However, while "Miranda violations, absent coercion, do not rise to the level of constitutional violations actionable under § 1983," Jocks v. Tavernier, 316 F.3d 128, 138 (2d Cir. 2003) (citation omitted) (emphasis added), the Second Circuit has recently underscored that "[a] Miranda violation that amounts to actual coercion based on outrageous government misconduct is a deprivation of a constitutional right that can be the basis for a § 1983 suit even when a confession is not used against the declarant in any fashion." Gardner v. McArdle, 461 Fed. Appx. 64, 66 (2d Cir. 2012) (quoting Deshawn E., 156 F.3d at 348) (emphasis added). Thus, in Gardner, the Second Circuit reversed the dismissal of a pro se plaintiff's civil rights action, on the ground that "a liberal reading of the complaint does give an indication that Gardner might state a valid claim that his due process rights were violated on the basis that police coercion led to inculpatory statements." Id.
Here, Guzman has alleged that, after he invoked his right to remain silent, the Officers used threats to obtain a confession. (Sec. Amend. Compl. at ¶¶ 531-38). These allegations make Plaintiff's Fifth Amendment claim actionable under Bivens. Defendants' Motions are therefore denied as to Plaintiff's Fifth Amendment claim.
B. Constitutional Tort Claims against the United States
It appears that Plaintiff asserts Counts III, IV, and V—his civil rights claims—against the United States. (See Sec. Amend. Compl. at ¶¶ 490 (Count III), 512 (Count IV), 537 (Count V).) Such claims, however, are barred by sovereign immunity.
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994). "The United States has not waived its immunity 'with respect to claims that its employees have committed constitutional torts.'" Banks v. United States, No. 10 Civ. 6613 (GBD) (GWG), 2011 WL 4100454, at *8 (S.D.N.Y. Sept. 15, 2011) (quoting Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994)). Thus, all Bivens claims against the United States must be dismissed, as must the Bivens claims against officers in their official capacities. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (explaining that Bivens claims against "the individual federal defendants in their official capacities were properly dismissed on the ground of sovereign immunity").
Accordingly, Plaintiff's civil rights claims are dismissed as to the United States and the officers in their official capacities.
C. Constitutional Tort Claims against the City
It is well established that a plaintiff may not hold a municipality liable pursuant § 1983 under a theory of respondeat superior. See Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 691 (1978). Rather, "[t]o hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2009) (citation omitted). At the pleadings stage, a plaintiff must do more than make a colorable claim against City employees; he must also "allege facts that would support a finding that the violation of his rights was the result of a policy or a custom undertaken by the City." Harper v. City of New York, 424 Fed. Appx. 36, 38 (2d Cir. 2011).
The City cites Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993), which held that "[t]he mere assertion . . . that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference." However, to the extent that Dwares called for a heightened pleading standard for Monell claims, it was overruled by Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993), in which the Supreme Court squarely held that Rule 8(a)(2), and not a more rigorous pleading standard, applies to Monell claims. See also Plair v. City of New York, 789 F. Supp. 2d 459, 468-69 (S.D.N.Y. 2011) (holding that the "heightened pleading standard" articulated in Dwares was no longer appropriate in light of Leatherman (citing Rheingold v. Harrison Town Police Dep't., 568 F. Supp. 2d 384, 394 (S.D.N.Y. 2008)); Javid v. Scott, 913 F. Supp. 223, 230-31 (S.D.N.Y. 1996) (same); Cooper v. Metro. Transp. Auth., No. 04 Civ. 525 (LTS) (AJP), 2006 WL 1975936, at *3 (S.D.N.Y. July 14, 2006) (same). Moreover, contrary to the City's assertion that Plaintiff cannot succeed at the pleading stage because his claim is "based on a single, isolated instance of alleged unconstitutional activity" (City's Mem. at 10), the Supreme Court has "specifically rejected the argument that a plaintiff must do more than plead a single instance of misconduct to establish municipal liability under section 1983." Rheingold, 568 F. Supp. 2d at 394 (citing Leatherman, 507 U.S. at 167).
Plaintiff argues that he has sufficiently pleaded a policy or custom in his Complaint. Specifically, Plaintiff points to paragraph 494, which alleges that Guzman's mistreatment resulted from City employees being "encouraged and/or allowed by their supervisors" to use coercive and intimidating interrogation techniques, to perjure themselves and facilitate cover-ups, to violate persons Miranda rights, and conduct illegal searches. This Court agrees that Plaintiff has sufficiently pleaded a claim that is plausible on its face; Plaintiff has therefore met his burden under Rule 8(a)(2).
Accordingly, the City's Motion to Dismiss Plaintiff's Monell claim is denied.
V. Conclusion
For the foregoing reasons, the United States' and Individual Defendants' Partial Motion to Dismiss is GRANTED in part and DENIED in part. The City's Motion to Dismiss is DENIED.
The Clerk of Court is directed to close the Motions at Docket Numbers 46 and 49. SO ORDERED. Dated: New York, New York
February 14, 2013
/s/_________
J. PAUL OETKEN
United States District Judge
35 Harv. L. Rev. 113, 121 (1921); see also J. Dennis Hynes, Chaos and the Law of Borrowed Servant: An Argument for Consistency, 14 J.L. & Com. 1, 1 (1994) (observing that Justice Cardozo found the borrowed servant doctrine "in chaos" and that "no improvement has been made" since Justice Cardozo's article). Justice Cardozo's warning about the possibility of "the wrong choice of defendants" ending up on the hook serves as a potent reminder of the danger of making a determination, before discovery, that one master should be shielded from liability while the other should not.