10 Civ. 1887 (WHP)
Copies mailed to: Kevin Eric Scott 119-11 Guy R. Brewer Blvd. Jamaica, NY 11434 Plaintiff Pro Se Christopher Kendrick Connolly United States Attorney's Office Southern District of New York 86 Chambers Street 3 Floor New York, NY 10007 Counsel for Federal Defendants Joseph Anthony Maria Joseph A. Maria, P.C. 301 Old Tarrytown Road White Plains, NY 10603 Counsel for City of White Plains Defendants
MEMORANDUM & ORDER
Plaintiff Kevin Eric Scott ("Scott") brings this federal civil rights action against the City of White Plains, Detective Matthew Kittlestade ("Kittlestade") and Detective Michael Munroe ("Munroe") ("the White Plains Defendants") and Immigration and Customs Enforcement ("ICE") Officers Diaz, Sayad, Rances, Owens, Galindo, and the United States of America (collectively the "Federal Defendants"). Scott brings§ 1983 claims against the White Plains Defendants and Bivens and FTCA claims against the Federal Defendants. All Defendants move to dismiss this action for failure to state a claim. For the following reasons, the White Plains Defendants' motion to dismiss is granted in its entirety, and the Federal Defendants' motion is granted in part and denied in part.
I. The 2005 Removal Order
This action arises out of loosely connected events spanning more than fifteen years. In 1996, the Immigration and Naturalization Service ("INS") entered an order of removal in absentia against Scott, a Jamaican national. (Fourth Amended Complaint, dated May 9, 2011 ("Compl.")¶23.) Five years later, the INS deported Scott to Jamaica. (Compl.¶23.) The following year, Scott returned to the United States where he was apprehended and convicted of illegal reentry. (Compl. ¶ 23.) In 2004, while serving his term of imprisonment, Scott moved successfully to re-open his prior removal proceeding. (Compl. ¶ 24.) On August 24, 2005, an immigration judge issued a second deportation order ("the 2005 order"). (Compl. ¶ 25.) Scott did not appeal the 2005 order. (Compl. ¶ 25.) It appears that Scott remained in the United States for the four years prior to his arrest in White Plains.
II. Arrest in White Plains
On March 17, 2009, the White Plains Defendants arrested Scott. That arrest arose from an incident in which Scott's friend, Jed Connelly ("Connelly"), attempted to purchase a car at a White Plains Mercedes Benz dealership with fraudulent identification. (Compl. ¶ 13.) Scott drove Connelly to the dealership, then met two of his friends who, coincidentally, were also car shopping. (Compl. ¶ 13.) Scott returned to the Mercedes Benz dealership with his friends, and then they dropped him off at his car, which he had parked elsewhere. (Compl. ¶ 13.) At that point, Detectives Kittlestade and Munroe approached Scott and his friends and ordered them to produce identification. (Compl. ¶ 13.) Scott produced a Virginia driver's license and Social Security card that bore the name Nazeer M. Bey, which Scott contends is his religious name. (Compl. ¶ 13.) Detectives Kittlestad and Munroe arrested Scott. (Compl. ¶ 13.)
After fingerprinting Scott, Kittlestad and Munroe ascertained Scott's legal name and discovered that he had previously been deported. (Compl. ¶ 13.) The detectives also found a handwritten note in Scott's wallet that contained personal identification information for a woman in Boca Raton, Florida. (Compl. ¶ 15.)
The detectives charged Scott with attempted grand larceny in the second degree and unlawful possession of personal identification information in the third degree. (Compl. ¶ 13.) Eventually, these charges were dismissed. (Compl. ¶ 17.) Following his arrest by White Plains detectives, Immigration and Customs Enforcement ("ICE") took Scott into custody pursuant to the 2005 order. (Compl. ¶ 19.) Scott remained in ICE custody from April to June 2009 and again from August until September 24, 2009, when he was again deported. (Compl. ¶¶ 19, 35.)
III. The Assault by ICE
On or about September 21, 2009, three ICE officers—Diaz, Sayad, and Rances—transported Scott from New York to Harrisburg, Pennsylvania as part of the deportation process. (Compl. ¶ 28.) While in New York, Scott resisted Diaz's efforts to fingerprint him. (Compl. ¶ 28.) Scott alleges that Diaz then instructed another ICE officer to turn a surveillance camera away so that his interactions with Scott would not be recorded. (Compl. ¶ 28.) Scott alleges that Diaz, Sayad, and Rances held him down and bent his wrists and fingers "painfully beyond their normal degree of flexibility." (Compl. ¶ 28.) He also alleges that "an unknown ICE officer at the behest of . . . Diaz deliberately pressed his thumb into a pressure point behind [his] right ear . . . ." (Compl. ¶ 28.) Scott further alleges that Owens failed to intervene to stop the assault. (Compl. ¶ 29.) Scott claims he felt intense pain and thought that his ear was bleeding. (Compl. ¶ 30.) He also claims that he had a severe headache for the three-hour bus ride to Harrisburg that continued during a flight to Louisiana. (Compl. ¶ 30.) Scott alleges that medical personnel provided him with over-the-counter pain medication on the plane. (Compl. ¶ 30.) On September 24, 2009, ICE again deported Scott to Jamaica. (Compl. ¶ 30.)
Undeterred, Scott flew back to the United States on December 13, 2009. (Compl. ¶ 38.) When Scott arrived at JFK International Airport, he alerted Customs and Border Patrol ("CBP") officials that he had returned to the United States because he did not believe that the 2005 order altered his status as a legal permanent resident. (Compl. ¶ 38.) ICE arrested Scott at the airport, and continued to hold him through the time that Scott filed his Fourth Amended Complaint on May 9, 2011.
I. Legal Standard
On a motion to dismiss, a court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in plaintiff's favor. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). Nonetheless, "factual allegations must be enough to raise a right of relief above the speculative level, on the assumption that all of the allegations in the complaint are true." Bell Atl. Corp. v. Twombly, 540 U.S. 544, 556 (2007) (requiring plaintiff to plead "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [his claim]"). "To survive a motion to dismiss, 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, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 555 U.S. at 570). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct at 1949 (citation omitted). "A pleading that offers mere labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). A court's "consideration [on a motion to dismiss] is limited to 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." Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991).
A pro se litigant's submissions are held to "less stringent standards than [those] drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Courts must "liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions 'to raise the strongest arguments they suggest.'" Berlin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
II. City of White Plains Defendants
A. False Arrest
To establish false arrest, a "plaintiff must show that the defendant intentionally confined him without justification or consent." Micalizzi v. Ciamarra, 206 F. Supp. 2d 564, 575 (S.D.N.Y. 2002). "A finding of probable cause is a complete defense to . . . [a claim] of false arrest." Micalizzi, 206 F. Supp. 2d at 575. Probable cause exists if the officer had "knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a reasonably cautious person in the belief that an offense has been . . . committed." Micalizzi, 206 F. Supp. 2d at 575 (internal quotations omitted). "Existence of probable cause to arrest is determined objectively, without regard to the officer's subjective belief at the time of arrest, based on the totality of the circumstances, and thus, a probable cause determination must be made by considering what the officer knew at the time of the arrest and whether the officer was reasonable in relying on that knowledge." D'Angelo-Fenton v. Town of Carmel, 470 F. Supp. 2d 387, 394 (S.D.N.Y. 2007).
Detectives Kittlestade and Munroe had probable cause to arrest Scott for attempted grand larceny in the second degree. Scott is correct that "mere presence at the scene of a crime . . . does not provide probable cause to arrest." United States v. Rodriguez, 07 Cr. 699 (HB), 2008 WL 52917, at *5 (S.D.N.Y. Jan. 2, 2008). However, Detectives Kittlestade and Munroe were aware of other facts that were "sufficient to warrant a reasonably cautious person in the belief that an offense" had been committed because they knew that Scott had driven Connelly to the scene of the crime. See Rodriguez, 2008 WL 52917, at *6 (finding probable cause to arrest defendants near scene of crime where police knew that several robbery accomplices had agreed to meet in the area).
B. Malicious Prosecution
To state a claim for malicious prosecution, a plaintiff must allege that "(1) the defendant commenced or continued a criminal proceeding against plaintiff; (2) the proceeding was terminated in favor of the plaintiff; (3) there was no probable cause for the proceeding; and (4) the proceeding was instituted with malice." Allen v. City of New York, 480 F. Supp. 2d 689, 712 (S.D.N.Y. 2007). Here, Scott pleads no facts to support his allegations that the White Plains Defendants acted with malice. Scott contends that the White Plains Defendants filed bogus charges against him because of his national origin. (Compl. ¶ 13.) That bare assertion does not suffice. See Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555).
III. Federal Defendants
A. Bivens Claims
To the extent that Scott purports to assert Bivens claims against ICE, such claims are dismissed because sovereign immunity deprives this Court of jurisdiction over Bivens claims asserted against a federal agency. See Papadopoulus v. Astrue, 10 Civ. 7980 (RWS), 2011 WL 5244942, at *10 (S.D.N.Y. Nov. 2, 2011).
1. Excessive Force Claims Against Defendants Diaz, Sayad, and Rances
When a prisoner accuses officials of violating the Eighth Amendment's prohibition of cruel and unusual punishment, courts employ a two-component inquiry. See Hudson v. McMillan, 503 U.S. 1, 7-8 (1992); see also Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009). The first component is subjective and "requires a showing that the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct." Wright, 554 F.3d at 268 (internal quotation marks omitted). This wantonness inquiry turns on whether "force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7; see also Wright, 554 F.3d at 268.
The second component is objective and focuses on the harm done in light of "contemporary standards of decency." Hudson, 503 U.S. at 8 (internal quotation marks omitted); see also Wright, 554 F.3d at 268. When officials maliciously and sadistically cause harm, "contemporary standards of decency always are violated." Hudson, 503 U.S. at 9; Wright, 554 F.3d at 269. This holds true whether or not the prisoner sustained a "significant injury." Wright, 554 F.3d at 269. However, "the Eighth Amendment's prohibition against cruel and unusual punishment does not extend to de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Baskerville v. Mulvaney, 411 F.3d 45, 48 (2d Cir. 2005).
Scott adequately pleads an excessive force claim. He alleges that Diaz directed a nearby officer to turn a surveillance camera away before he and the other officers forcibly fingerprinted him. (Compl. ¶ 28.) Construing all reasonable inferences in Scott's favor, Defendants' purposeful concealment of the incident plausibly suggests that they were acting "maliciously and sadistically to cause harm." Cf. Wright, 554 F.3d at 270. Although Scott admits that he resisted efforts to fingerprint him, that alone does not preclude an inference that Diaz, Sayad, and Rances acted maliciously. See Ninortey v. Shova, 05 Civ. 542 (SHS) 2008 WL 4067107, at *10 (S.D.N.Y. Sept. 2, 2008) (prisoner's admitted assault on defendant-officer does not preclude an excessive force claim) (citing Griffen v. Crippen, 193 F.3d 89, 92 (2d Cir. 1999)).
Because "contemporary standards of decency always are violated" when officials act maliciously, Scott also alleges adequate facts to satisfy the objective component. Hudson, 503 U.S. at 9; see also Griffen, 193 F.3d at 92 ("the fact that [plaintiff] suffered only minor injuries does not warrant dismissal."). Scott alleges that Diaz, Sayad, and Rances purposely applied pressure behind his ear, causing him so much pain he thought his ear was bleeding. (Compl. ¶ 30); cf. Alster v. Goord, 745 F. Supp. 2d 317, 337 (S.D.N.Y. 2010) (finding force to be de minimus as a matter of law where plaintiff suffered no pain). He further alleges that he developed a severe headache for which he received pain medication. (Compl. ¶ 30); see Prescott v. Rikers Island Med. Staff, 09 Civ. 255 (SAS), 2011 WL 1435218, at *6 (S.D.N.Y. Apr. 12, 2011) (finding objective component not satisfied when prisoner did not require pain medication).
Further, the Federal Defendants cannot prevail on the grounds of qualified immunity. "The doctrine of qualified immunity shields public officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). An Eighth Amendment right to be free from excessive force is a clearly established constitutional right. See Hope v. Pelzer, 536 U.S. 730, 737 (2002); see also Edmonds v. Greiner, 2002 WL 368446, at *12 (S.D.N.Y. Mar. 7, 2002). Thus, the remaining question is whether it was "objectively reasonable for [defendants] to believe their acts did not violate those rights." Minter v. County of Westchester, 08 Civ. 7726 (WHP), 2011 WL 856269, at *11 (S.D.N.Y. Jan. 20, 2011). Again, Scott alleges that Diaz, Sayad, and Rances purposefully hid their conduct from surveillance cameras before they inflicted pain on him. That allegation is sufficient to infer that it was not objectively reasonable for them to believe their acts did not violate Scott's Eighth Amendment rights. See Pierre Antoine v. City of New York, 04 Civ. 6987 (GEL), 2006 WL 1292076, at *6 (S.D.N.Y. May 9, 2006) (denying defendants qualified immunity because a reasonable officer would know that repeatedly punching plaintiff violated a constitutional right).
2. Claim Against Defendant Owens
"[A]ll law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence." Thompson v. Tracy, 00 Civ. 8360 (CM) (FM), 2008 WL 190449, at *6 (S.D.N.Y. Jan. 17, 2008) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). "An officer who fails to intercede is liable for the preventable harm caused . . . where that officer observes . . . that excessive force is being used." Anderson, 17 F.3d at 557. "[F]or liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring." Anderson, 17 F.3d at 557. Although Scott adequately pleads an excessive force claim against Diaz, Sayad, and Rances, he fails to state a claim against Owens. The Complaint alleges only that Owens "neglected to interfere, say or do anything to prevent . . . Diaz, Sayad, and Rances' action." (Compl. ¶ 29.) It sets forth no facts suggesting that Owens had a realistic opportunity to intervene or was even in the vicinity.
3. Claim Against Defendant Galindo
Scott's due process claim against Galindo is bereft of any facts. Scott alleges that Galindo "caused [Scott's] physical deportation" while knowing that the deportation order was without legal force. This conclusory allegation is insufficient to state a claim. See Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555).
To the extent that Scott purports to bring FTCA claims against the individual ICE Officers or ICE, the United States is substituted as the proper defendant. See 28 U.S.C. § 2679(d)(1) ("the United States shall be substituted as the party defendant" in FTCA actions); see also Liriano v. ICE/DHS, 10 Civ. 6196 (NRB), 2011 WL 5082399, at *1 n.1 (S.D.N.Y. Oct. 5, 2011).
1. False Imprisonment
To state a false imprisonment claim under New York law, Scott must show that "(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." Curry v. City of Syracuse, 316 F.3d 324, 335 (2d Cir. 2003).
Scott fails to plead that his confinement was not otherwise privileged. In 2009, Scott was confined pursuant to the 2005 order. No court has invalidated it.
Moreover, Scott cannot challenge the 2005 order through the FTCA. Heck v. Humphrey, 512 U.S. 477 (1994), dictates that a plaintiff may not use a tort action to attack the validity of his underlying conviction unless he can show that the "conviction...has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." See Heck, 512 U.S. at 486-87: see also El Badrawi, 579 F. Supp. 2d 249, 273 (D. Conn. 2008) (applying Heck bar to immigration detainee pursuing a FTCA claim). However, a plaintiff need not show that his conviction has been invalidated if he was never confined or was in confinement for so brief a time that filing a habeas petition was impracticable. See Leather v. Eyck, 180 F.3d 420, 423 (2d Cir. 1999) (finding Heck does not apply where plaintiff was never in custody); see also Dallas v. Goldberg, 143 F. Supp. 2d 312, 323-24 (S.D.N.Y. 2001) (finding Heck applied where plaintiff was in custody long enough for "practical availability of effective review").
Here, Scott cannot avail himself of the Heck exception because he was in custody and had an abundance of time to file a habeas petition. Accordingly, this claim is dismissed without prejudice unless and until Scott can show the invalidity of the 2005 order. See Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) (disposition on Heck grounds "warrants only dismissal without prejudice" (emphasis in original)).
2. Civil Assault and Battery
Under New York law, an assault is the "intentional placing of another person in fear of imminent harmful or offensive contact. A battery is an intentional wrongful physical contact with another person without consent." Gerden v. Sandals Int'l, 262 F.3d 195, 203 (2d Cir. 2001) (internal quotations omitted). To prevail, a "plaintiff must demonstrate that the amount of force used was objectively unreasonable." Kramer v. City of New York, 04 Civ. 106 (HB), 2004 WL 2429811, at *11 (S.D.N.Y. Nov. 1, 2004) (internal quotations omitted). Construing the facts in Scott's favor, Scott has stated a claim for assault and battery. Cf. Kramer, 2004 WL 2429811, at *11 (dismissing assault and battery claim where plaintiff did not allege she sustained any injury from a "push" out of her apartment); Aderonmu v. Heavy, 2001 WL 77099, at *3 (S.D.N.Y. Jan. 26, 2001) (dismissing assault claim where plaintiff failed to allege use of any physical force); Sulkowska v. City of New York, 129 F. Supp. 2d 274, 290-91 (officers were reasonable in placing plaintiff in handcuffs and putting her in patrol car, even though plaintiff complained about tightness of handcuffs).
For the foregoing reasons, the City of White Plains, Detectives Kittlestade and Munroe, ICE, and Officers Owens and Galindo's motion to dismiss is granted in its entirety. The United States' motion to dismiss is granted in part and denied in part. Specifically, the United States' motion to dismiss the FTCA claim for false imprisonment is granted, but its motion to dismiss the FTCA claim for civil assault and battery is denied. Finally, Officers Diaz, Sayad, and Rances' motion is denied. Dated: November 15, 2011
New York, New York
WILLIAM H. PAULEY III
U.S.D.J. Copies mailed to: Kevin Eric Scott
119-11 Guy R. Brewer Blvd.
Jamaica, NY 11434
Plaintiff Pro Se Christopher Kendrick Connolly
United States Attorney's Office
Southern District of New York
86 Chambers Street
New York, NY 10007
Counsel for Federal Defendants Joseph Anthony Maria
Joseph A. Maria, P.C.
301 Old Tarrytown Road
White Plains, NY 10603
Counsel for City of White Plains Defendants