Gonzalez v. United States, 16-CV-1494(KAM)
| Decision Date | 31 March 2018 |
| Docket Number | 16-CV-1494(KAM) |
| Parties | JOSE ANTONIO TRAD GONZALEZ, Plaintiff, v. UNITED STATES OF AMERICA, SPECIAL AGENT STEPHEN MICHAEL LEE, individually and in his capacity as an agent of the Department of Homeland Security, and "JOHN DOES 1-10" (names being Presently unknown and intended to be the law enforcement personnel involved in detention, battery, arrest, imprisonment, and prosecution of plaintiff), Defendants. |
| Court | U.S. District Court — Eastern District of New York |
In an amended complaint ("Compl." or the "complaint," ECF No. 27), plaintiff Jose Antonio Trad Gonzalez (the "plaintiff"), brings fifteen claims against the United States of America (the "United States"), Department of Homeland Security Special Agent Stephen Michael Lee ("SA Lee," and together with the United States, "defendants"), and ten unidentified John Doe 1-10 defendants, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., and Bivens v. Six Unknown Named Agents ("Bivens", 403 U.S. 388 (1971), in connection with his March 28, 2013 arrest and subsequent detention and prosecution.
Before the court is defendants' motion to dismiss this action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure ("Rule") 12(b)(1) and for failure to state a claim under Rule 12(b)(6).
For the reasons set forth below, the court dismisses plaintiff's FTCA claims against the United States alleging negligence and violation of plaintiff's right to due process and Bivens claims against SA Lee and the John Doe defendants alleging negligent infliction of emotional distress, negligence/gross negligence, and violation of plaintiff's rights under the New York State Constitution, for lack of subject matter jurisdiction. Additionally, the court dismisses plaintiff's remaining claims for failure to state a claim upon which relief can be granted.
The following well-pleaded factual allegations are taken from the complaint and assumed to be true for the purposes of this motion. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (). The court also considers a Memorandum Opinion and Order dated September 19,2013 by the Honorable Laura Taylor Swain of the United States District Court for the Southern District of New York, which is annexed as Exhibit A to the complaint. ("SDNY M&O," ECF No. 27-1.) Plaintiff, a Mexican citizen and municipal government employee in Mexico, has lived at the same publicly-listed address in the border city of Reynosa, Tamaulipas, Mexico, since the 1970s. (Compl. ¶¶ 25-27.)
Plaintiff formerly possessed a border crossing card that incorporated B-1 and B-2 visas, which plaintiff regularly used to cross the border into the United States to provide golf lessons and play golf, until the card and visas expired in November 2010. (Id. ¶¶ 28-29.) At some point prior to 2010, plaintiff's border crossing card became mutilated such that it was not machine-readable, but plaintiff was nevertheless able to continue crossing the border with the card until his visas expired in November 2010. (Id. ¶¶ 30-31.) Plaintiff made approximately fifty border crossings between Mexico and the United States between 2007 and 2010. (Id. ¶ 45.) As noted by Judge Swain, the United States did not have a record of plaintiff's crossings from May 8, 2007 through 2010, perhaps due to plaintiff's mutilated border crossing card, and considered plaintiff a fugitive. (SDNY M&O at 8-9.)
In 2006, plaintiff traveled to the United States with a man he knew as Roberto Gonzalez, also known to the UnitedStates as Jose Zumaya ("Zumaya"). (Id. ¶ 34.) During this visit to the United States, plaintiff opened a Bank of America account using his true name and address. (Id. ¶¶ 35-36.) In May 2007, Zumaya and an individual named Johnny Jacob ("Jacob"), were arrested, in connection with an investigation of an alleged narcotics conspiracy in which Zumaya and Jacob were allegedly co-conspirators. (Id. ¶ 37-38.) Plaintiff was aware of the Zumaya arrest in May 2007. (Id. ¶¶ 38, 45.) SA Lee was the supervisory agent for the investigation of the alleged narcotics conspiracy, and the John Doe defendants are other government employees and agents who participated in the investigation and subsequent arrests and prosecutions. (Id. ¶¶ 39.)
Following their arrest, Zumaya and Jacob began cooperating with the United States, and in the course of their cooperation, Zumaya told the defendants that, in 2006, he and plaintiff "had twice flown from McAllen, Texas, to pick up and deliver drugs and cash for Jacob." (Id. ¶ 40.) Based on Zumaya's and Jacob's allegations and other evidence, including airline and hotel receipts and records indicating that plaintiff opened a Bank of America account when plaintiff traveled to New York with Zumaya in 2006, a warrant was issued for plaintiff's arrest on federal narcotics charges on or about February 25, 2009. (Id. ¶¶ 41-43.) The records obtained by the defendants during the investigation of the narcotics conspiracy includedplaintiff's name, address, and telephone number in Mexico. (Id.)
In the course of his investigation and at some point in 2007, SA Lee put a "lookout" alert on plaintiff's immigration file. (Id. ¶ 52.) According to the complaint, the "lookout" would cause a computer-generated e-mail to be sent to SA Lee in the event of any contact between plaintiff and United States officials at any port of entry, including contact resulting from any attempt by plaintiff to enter the United States. (Id. ¶¶ 52-53.) SA Lee and others involved in the investigation of the alleged narcotics conspiracy also began conducting yearly database checks in an effort to locate plaintiff and obtained hotel and bank records relating to plaintiff. (Id. ¶ 48, 54) SA Lee and others involved in the investigation did not make any attempt to determine whether plaintiff resided at the address in Mexico indicated on plaintiff's records, nor did they seek to extradite plaintiff from Mexico despite the existence of an extradition treaty, and of a United States Consulate and a Department of Homeland Security office in the vicinity of Reynosa, the Mexican city where plaintiff was residing. (Id. ¶¶ 25, 48-51.)
In late 2012 or 2013, plaintiff, who had been aware since 2007 that Zumaya had been arrested on drug related charges but was unaware of the warrant for his own arrest, (id. ¶ 44-46), applied for a new visa to enter the United States using his true name and address. (Id. ¶ 46.) As part of the application process, he attended a consular interview in Mexico and had his fingerprints taken. (Id.) Because of the "lookout," SA Lee received electronic notification of plaintiff's visa application. (Id. ¶ 55.) Following an inquiry by unidentified federal government employees, referred to in the complaint as among the John Doe defendants, SA Lee confirmed that the warrant for plaintiff's arrest was still active and valid. (Id.) Plaintiff was subsequently issued a visa for the sole purpose of arresting him upon any attempted entry to the United States. (Id. ¶ 56.)
On March 28, 2013, plaintiff attempted to cross the border into the United States at the McAllen-Reynosa border crossing in McAllen, Texas with his new visa, was arrested, and remained in custody for nearly eight months, until October 18, 2013. (Id. ¶ 57-58.) During this time, plaintiff was in federal custodial facilities in Texas; Oklahoma; Bergen County, New Jersey; and Brooklyn, New York. (Id. ¶ 59.)
In or around March or April of 2013, a grand jury was impaneled in the Southern District of New York and, following presentation of evidence by the defendants, on April 3, 2013, indicted plaintiff on one count of conspiracy to possess cocaine with intent to distribute from October 2006 to May 2007, inviolation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). (Id. ¶ 60, 62.) A second grand jury was subsequently impaneled and, on August 4 or 5, 2013,1 issued a superseding indictment against Plaintiff, which stated the dates of the alleged conspiracy as "2006 to 2007." (Id. ¶ 63; see also SDNY M&O at 5 ().)
Plaintiff alleges that the evidence defendants presented to procure the initial and superseding indictments was "unreliable, misleading, false and/or incomplete." (Id. ¶¶ 61, 64.) Plaintiff relies on an alleged failure by defendants to advise the grand juries that 18 U.S.C. § 3282(a) served to bar the prosecution, trial, or punishment of any person "unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." (Id.) The complaint alleges that the grand juries should have been advised of the five-year statute of limitations because plaintiff's alleged criminal conduct occurred no later than "May 2007" with respect to initial indictment and "2007" with respect to the superseding indictment. (Id.) Therefore, plaintiff'salleged criminal conduct occurred more than five years before the return of the initial and superseding indictments, in April and August 2013, respectively. (See id.)
On or about July 22, 2013, plaintiff's criminal defense counsel moved before Judge Swain to dismiss plaintiff's indictment as time-barred under 18 U.S.C. § 3282(a).2 (Compl. ¶ 65.) The United States opposed plaintiff's motion and argued that plaintiff had been a fugitive from justice, and accordingly the statute of limitations had been tolled by reason of plaintiff's flight from justice pursuant to 18 U.S.C. § 3290. (Id. ¶ 66.) Following an evidentiary hearing, on September 19, 2013, Judge...
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