Castro v. U.S.
| Decision Date | 02 September 1994 |
| Docket Number | D,No. 1516,1516 |
| Citation | 34 F.3d 106 |
| Parties | Maria CASTRO, Plaintiff-Appellant, v. UNITED STATES of America, Don Abrams, Jason Davs, Daniel Bologna, Defendants-Appellees. ocket 93-6344. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert J. Krys, Amsterdam, NY, submitted a brief for appellant.
Richard A. Olderman, Dept. of Justice, Washington, DC (Frank W. Hunger, Asst. Atty. Gen., Gary L. Sharpe, U.S. Atty., Barbara L. Herwig, Attorney, Appellate Staff, Washington, DC, on the brief), for appellee.
Before: OAKES, KEARSE, and MAHONEY, Circuit Judges.
Plaintiff Maria Castro appeals from a judgment of the United States District Court for the Northern District of New York, Thomas J. McAvoy, Judge, dismissing her claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ("Bivens "), and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346, 2671-2680 (1988), for damages resulting from a narcotics raid directed at her apartment by mistake. The district court, emphasizing that the complaint alleged that defendants' actions were negligent, and finding that defendants had qualified immunity, dismissed the complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that it failed to state a claim on which relief could be granted. On appeal, Castro contends that the district court erred in concluding that she had not stated a claim. For the reasons below, we agree, and we vacate the judgment and remand for further proceedings.
The present suit concerns a narcotics raid conducted by federal and local officers on October 29, 1990, on Castro's home in Amsterdam, New York. The individual defendants are Jason Davs (sic--hereafter "Daus") and Don Abrams, who were agents of the United States Drug Enforcement Administration ("DEA"), and Daniel Bologna, who was an agent of the United States Customs Service (collectively the "federal agents").
On the evening of October 29, 1990, Castro, an elderly widow, was at home in her Amsterdam apartment when the individual defendants, without a warrant and without warning, broke into her apartment. The officers searched Castro for a weapon and proceeded to search her apartment, overturning furniture, removing mattresses, and emptying containers. After 15-20 minutes, the officers left, realizing that they had entered the wrong apartment.
Castro alleged that, as a result of these events, she "became frightened, experienced heart palpitations and was subjected to extreme embarrassment, humiliation and social opprobrium" (Complaint p 22), and that she "lost her peace of mind and has suffered greatly" (id. p 23).
The complaint alleged that "the activity of defendants arose out of the negligent and wrongful execution of their acts [ ]at the home of the plaintiff, rather than at the correct home where the entry and search was [sic ] supposed to occur" (id. p 11); that "solely through the negligence and carelessness of defendants did their actions arise and were carried out in the entry and searching of the wrong home" (id. p 12); and that "the home/apartment of plaintiff was improperly Castro initially brought suit in 1991 against the United States, Montgomery County, New York, and the county sheriff. Her complaint against the United States was dismissed because she had not complied with the FTCA's administrative exhaustion requirements. Castro settled her claims against the county and the sheriff for $5,000.
identified by defendants in the pursuit of the search and seizure" (id. p 19).
After complying with the FTCA administrative prerequisites, Castro commenced the present action in October 1992, seeking $70,000 in damages against the federal agents and the United States, jointly and severally, under the FTCA and Bivens.
In February 1993, defendants moved jointly to dismiss the complaint for failure to state a claim, or, in the alternative, for summary judgment, based on affidavits of Abrams, Daus, and Bologna. Bologna stated in his affidavit that he had received information from a confidential informant that heroin was being sold in the Amsterdam area, that Bologna had passed that information to DEA, and that DEA had relayed it to the Montgomery County sheriff's department. All of the affidavits stated that the local authorities took primary responsibility for the investigation. The federal agents were assigned to assist the local authorities.
According to the federal agents' affidavits, the local authorities decided that a raid would be conducted and that the confidential informant, wearing a wire, would enter the apartment where the narcotics were being sold and would signal the officers once he saw the heroin. The federal agents asserted (1) that the local officers had control over the investigation, including the decision to enter and search Castro's apartment; (2) that the duty of the federal agents during the raid was solely to remain outside the residence and observe the doors and windows; and (3) that the federal agents never entered Castro's apartment and had no input into the sheriff's targeting of her apartment. In addition to the federal agents' affidavits, the motion attached a purported affidavit in the name of the Montgomery County sheriff, echoing the federal agents' description of the events and the local authorities' responsibility. This document, however, was unsigned and unexecuted. Although the motion included the representation that a signed and executed original would be forthcoming, apparently none was ever submitted.
Defendants' motion was also accompanied by a summary that was described as a statement of material facts pursuant to Local Rule 10(j), which requires a short, concise statement of the material facts as to which the moving party contends there is no genuine issue. The statement submitted by defendants, however, in addition to not being in a concise form suitable to permit the opposing party to respond as envisioned by that Rule, did not assert that the facts on which defendants relied either were not disputed or presented no genuine issue for trial.
In opposition to defendants' motions, Castro submitted an affidavit stating, inter alia, that a large number of persons had entered her apartment on the night in question; some of them wore clothing bearing indications that they were county officers; others wore dark jackets with white or yellow letters, and Castro believed the latter individuals were federal agents. She suggested that the forcible entry into her apartment by mistake had been unreasonably negligent, stating on information and belief that "the apartment in which drug trafficking is alleged to have occurred had been under surveillance for a month or longer." (Affidavit of Maria Castro dated April 1, 1993, p 3.) Castro also stated that her requests of DEA and the sheriff's department for information had been ignored, and she requested more time in which to conduct discovery.
In a transcribed ruling dated October 12, 1993 ("Decision"), the district court granted defendants' motions to dismiss. The court stated that it would not resolve the question of whether or not the federal agents had entered Castro's apartment, but would instead dismiss the action under Rule 12(b)(6). Noting that, under the FTCA, claims of constitutional violations could not be maintained The court noted that the FTCA provides that the United States may be liable for personal injury and property damage caused by the negligent or wrongful act or omission of its employee acting within the scope of his 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. Sec. 1346(b). The court thus looked to the law of New York. It stated that although the officers in the present case had no search warrant for Castro's apartment or for any other apartment, the circumstances were analogous to the mistaken entry of a claimant's apartment when officers did have a valid warrant for a different apartment. The court stated that under New York law, "if law enforcement officers act under a facially valid warrant that contains a mistaken address, the officers have limited immunity from liability for negligence." Decision at 4-5. The court stated that "[l]iability in such a case can only attach if the officers act in bad faith or use unreasonable conduct in acquiring or carrying out the warrant." Decision at 5 (citing Kolko v. City of Rochester, 93 A.D.2d 977, 461 N.Y.S.2d 650 (4th Dep't 1983)). The court ruled that since Castro had not alleged that the officers entered her apartment in bad faith, they, and derivatively the United States, were entitled to the state-law immunity:
against the United States, and common-law tort claims could not be maintained against the individual defendants, the court considered (a) whether the complaint stated a claim under the FTCA against the United States for nonconstitutional torts, and (b) whether the complaint stated constitutional claims against the individuals. It answered both questions in the negative.
In this case the plaintiff has not alleged that the officers acted in bad faith or used unreasonable conduct. Rather, she has stated that solely through the negligence and carelessness of the defendants did their actions arise and were carried out in the entry of the wrong home. Therefore, without such allegations of bad faith or unreasonable conduct, the individual defendants could not be held liable for negligence under New York law and so neither can the United States under the FTCA.
Decision at 5. The court found that the absence of a warrant did not make the present case materially different from Kolko v. City of Rochester because it found that...
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