Diaz v. Mercurio

Decision Date05 March 2020
Docket Number19 Civ. 1319 (AT)
Citation442 F.Supp.3d 701
Parties Edon Miguel BUENO DIAZ, Plaintiff, v. Joseph MERCURIO, Defendant.
CourtU.S. District Court — Southern District of New York

Edon Bueno Diaz, New York, NY, pro se.

Alexander James Hogan, United States Attorney's Office, New York, NY, for Defendant.


ANALISA TORRES, District Judge:

Plaintiff pro se , Edon Miguel Bueno Diaz, alleges that Defendant, Joseph Mercurio, an agent of the United States Drug Enforcement Administration (the "DEA"), was among several DEA officers who arrested Plaintiff pursuant to a warrant. Compl. at 6–7,1 ECF No. 1. Plaintiff claims that the officers beat him, and that Defendant spat in his face. Id. at 4, 7. Now before the Court is Defendant's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 14. For the reasons stated below, the motion is GRANTED in part and DENIED in part.

I. Facts

The following facts are taken from the complaint and "are presumed to be true for purposes of considering a motion to dismiss for failure to state a claim." Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC , 783 F.3d 395, 398 (2d Cir. 2015).

On July 27, 2017, at approximately 7:40 p.m., Plaintiff was parking his car in front of his residence on East 173rd Street in the Bronx, when at least four DEA agents surrounded his vehicle. Compl. at 3–4, 6–8. The agents brandished guns and banged on the windows in an apparent attempt to break them. Id. at 4, 8. Plaintiff's mother, girlfriend, and children were also in the vehicle, and began screaming. Id. at 8. Plaintiff opened his car door, and the agents pulled him out of the vehicle. Id. at 4, 7. The officers began beating him: punching, kicking, choking, and hitting Plaintiff with the butts of their pistols, to the point where Plaintiff urinated on himself. Id. Plaintiff alleges that, as he was being beaten, he was in handcuffs, in front of his family, who were "hysterical and scared." Id. at 4. Plaintiff claims he was taken to the agents' vehicle, where he was asked, "Dominican, fucking Dominican where are the drugs," and that at this question, Defendant spat in his face. Id. at 4, 7.

The day after his arrest, Plaintiff had an initial appearance before the Honorable Katharine H. Parker. Id. at 9. He alleges that Judge Parker noticed his injuries and asked, "Why ha[sn't] he been taken to a hospital?" Id. Plaintiff claims that he suffered fractured ribs, for which he was hospitalized and prescribed pain medication, as well as bruises and minor cuts. Id. at 4.

Plaintiff alleges that the events surrounding the arrest caused him mental and physical pain. Id. He states that that his children are traumatized, unable to sleep and function, and that his mother's health has deteriorated due to stress from the incident. Id. at 9.

Plaintiff brings this action suit seeking compensation for pain and suffering, invoking 42 U.S.C. § 1983. Id. at 5, 7.

II. Procedural History

On January 29, 2018, Plaintiff, at the time a pretrial detainee housed at the Metropolitan Correctional Center in Manhattan ("MCC"), delivered the instant complaint to MCC prison authorities for mailing. Compl. at 5, 7. On May 23, 2018, Plaintiff's complaint was received and docketed by the Pro Se Office of the United States District Court for the Eastern District of New York. Id. at 1. On February 8, 2019, the Honorable LaShann DeArcy Hall directed the Clerk of Court to transfer the action to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1404(a). ECF No. 5 at 2. On February 19, 2019, the action was assigned to this Court. On June 24, 2019, Defendant filed a motion to dismiss. ECF No. 14. Plaintiff did not file opposition papers.

I. Legal Standard

To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter ... to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the non-movant. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd. , 493 F.3d 87, 98 (2d Cir. 2007). A plaintiff is not required to provide "detailed factual allegations," but must assert "more than labels and conclusions." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. Ultimately, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. Pleadings cannot survive by making "naked assertions devoid of further factual enhancement," and a court is not "bound to accept as true a legal conclusion couched as a factual allegation." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks and citations omitted).

"When a motion to dismiss is unopposed, the failure to oppose itself does not justify dismissal." Howard v. City of New York , No. 11 Civ. 5899, 2012 WL 5816976, at *4 (S.D.N.Y. Nov. 14, 2012). Instead, a court must assess the sufficiency of the complaint "based on its own reading of the pleading and knowledge of the law." Goldberg v. Danaher , 599 F.3d 181, 184 (2d Cir. 2010) (internal quotation marks and citation omitted). "If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal." McCall v. Pataki , 232 F.3d 321, 323 (2d Cir. 2000).

Pro se plaintiffs receive special solicitude from courts. Courts must "liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest." Bertin v. United States , 478 F.3d 489, 491 (2d Cir. 2007) (internal quotation marks and citations omitted).

II. Analysis
A. Section 1983

Defendant argues that Plaintiff fails to state a claim pursuant to 42 U.S.C. § 1983, because the cause of action applies to state, not federal officers. Def. Mem. at 1, ECF No. 15. Defendant is alleged to be a federal officer—specifically, a DEA agent. "[A]n action brought pursuant to 42 U.S.C. § 1983 cannot lie against federal officers." Davis v. United States , No. 03 Civ. 1800, 2004 WL 324880, at *10 (S.D.N.Y. Feb. 19, 2004) (internal quotation marks, citation, and alterations omitted). Accordingly, Plaintiff's § 1983 claim is DISMISSED.

B. Bivens

Next, the Court considers whether Plaintiff is entitled to damages, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for allegations of excessive force in contravention of the Fourth Amendment. See Tavarez v. Reno , 54 F.3d 109, 109–10 (2d Cir. 1995) (noting that the district court properly considered an action brought under § 1983 as an action under Bivens ); Spinale v. U.S. Dep't of Agric. , 621 F. Supp. 2d 112, 119 (S.D.N.Y. 2009) ("Where a plaintiff brings a Section 1983 claim against federal defendants in error, the proper course of action is to construe the complaint as stating a cause of action under [ Bivens ]."). Defendant argues that such a claim is foreclosed by Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 198 L.Ed.2d 290 (2017). Def. Mem. at 2–11. The Court disagrees, and concludes that Abbasi does not compel the adoption of Defendant's unduly narrow reading of Bivens .

1. The Abbasi Framework

Since passing a statute later codified at 42 U.S.C. § 1983 that allowed for damages for constitutional violations by officials acting under color of state law, and in the one hundred years leading up to Bivens , Congress has not enacted an analogous statute for federal officials. Abbasi , 137 S. Ct. at 1854. Against this backdrop, the Supreme Court in 1971 decided Bivens . In Bivens , the Supreme Court held that the petitioner, a man handcuffed in his home without a warrant by unnamed narcotics officers, had a right of action under the Fourth Amendment's prohibition of unreasonable searches and seizures. 403 U.S. at 397, 91 S.Ct. 1999. The Supreme Court held that damages could lie against the federal officials for constitutional violations, absent statutory authorization, because such a remedy could be judicially implied under the Constitution. See Bivens , 403 U.S. at 399, 91 S.Ct. 1999 (Harlan, J., concurring).

Subsequently, the Supreme Court has recognized only two additional contexts for Bivens remedies: one in a case of sex discrimination brought by a federal employee under Fifth Amendment due process, see Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and the second in a case where prison officials' failure to treat an inmate's asthma

led to his death, for violations of the Eighth Amendment's prohibition on cruel and unusual punishment, see

Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). The Supreme Court emphasized in Abbasi that "[t]hese three casesBivens , Davis , and Carlson —represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself." 137 S. Ct. at 1855.

Following Bivens, Davis , and Carlson , the Supreme Court has retreated from recognizing implied damages remedies under the Constitution. See id. at 1855–56 (collecting cases). The Supreme Court now cautions against creating additional implied remedies as a matter of course, "no matter how desirable that might be as a policy matter, or how compatible with the statute" or the constitutional provision invoked. Id. at 1856 (internal quotation marks and citation omitted). "Given the notable change in the Court's approach to recognizing implied causes of action, ... the Court has made clear that expanding the Bivens remedy is now a disfavored judicial activity." Id. at 1857 (internal quotation marks and citation omitted).

In Abbasi , the Supreme Court clarified the two-step framework for determining whether a Bivens remedy may properly be...

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