Oliveras v. Basile

• Decision Date: 25 February 2020
• Docket Number: 16 Civ. 9619 (KPF)
• Citation: 440 F.Supp.3d 365
• Parties: Monet OLIVERAS, Plaintiff, v. United States Department of Homeland Security Investigations Special Response Team Officer Robert BASILE; United States Department of Homeland Security Special Response Team Officer Scott Vogel; and United States Department of Homeland Security Investigations Special Response Team Officer John Doe, Defendants.
• Court: U.S. District Court — Southern District of New York

440 F.Supp.3d 365

Monet OLIVERAS, Plaintiff,

v.United States Department of Homeland Security Investigations Special Response Team Officer Robert BASILE; United States Department of Homeland Security Special Response Team Officer Scott Vogel; and United States Department of Homeland Security Investigations Special Response Team Officer John Doe, Defendants.

16 Civ. 9619 (KPF)

United States District Court, S.D. New York.

Signed February 25, 2020

Duncan Archie Peterson, Malcolm Alastair Anderson, PetersonDelleCave LLP, New York, NY, for Plaintiff.

Rachael Lightfoot Doud, U.S. Attorney Office, New York, NY, for Defendants.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

Plaintiff Monet Oliveras brings this action against two named officers of the United States Department of Homeland Security Investigations Special Response Team, Robert Basile and Scott Vogel, as well as an unnamed John Doe officer (collectively, "Defendants"). Plaintiff alleges that in the early morning of April 27, 2016, Defendants Basile and Vogel used "flash bangs" while executing the arrest of a resident of her apartment building. These explosives threw Plaintiff backwards, injuring and frightening her, and shattered two of her windows. When Plaintiff tried to leave her apartment, the John Doe officer prevented her from doing so.

Plaintiff originally brought her claims against the United States and unnamed DHS officers, but the Court dismissed the claims against the United States for lack of subject matter jurisdiction. See Oliveras v. United States , 371 F. Supp. 3d 105 (S.D.N.Y. 2019). Defendants, now being sued in their individual capacities through a Bivens claim, bring a second motion to dismiss, this time pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants argue that: (i) Plaintiff has not brought a cognizable Bivens claim; (ii) they are entitled to qualified immunity; and (iii) Plaintiff has not alleged a violation of the Fourth Amendment. For the reasons set forth in the remainder of this Opinion, the Court agrees that Plaintiff has not brought a claim on which relief can be granted, and accordingly grants Defendants' motion to dismiss.

BACKGROUND¹

A. Factual Background

Plaintiff resided at all relevant times in a basement apartment at 1649 Taylor Avenue in the Bronx. (FAC ¶ 7). Plaintiff's apartment is part of a multistory building, but her apartment has a separate entrance from the rest of the building. (Id. at ¶¶ 27-28). Plaintiff's apartment is accessed from a separate front door on the side of the building, which door is itself accessible by a stairway running from the street down to the door, whereas all other apartments in the building are accessed through the main front door of the apartment building. (Id. at ¶¶ 29-31). Plaintiff's apartment unit is the only one accessible through that side door. (Id. at ¶ 30).

On April 27, 2016, Plaintiff was asleep in her apartment when she was awakened by a noise from outside at approximately 4:00 a.m. (FAC ¶¶ 11-12). Plaintiff got out of bed to shut the window when there was a flash and explosion outside. (Id. at ¶¶ 13-14). The explosion threw Plaintiff backwards, causing her to hit her head and back against the wall, and shattered a window in her apartment. (Id. at ¶¶ 15-16). A second flash and explosion followed, shattering an additional window. (Id. at ¶¶ 18-19). The explosions emanated from flash bangs² that Defendants Basile and Vogel had thrown during their execution of an arrest warrant on the first floor of Plaintiff's building. (Id. at ¶¶ 20, 26). The flash bangs detonated in the areaway outside of Plaintiff's basement apartment. (Id. at ¶ 33).

Plaintiff experienced numerous aftereffects from the explosions, including a ringing in her ears and dizziness from hitting her head. (FAC ¶¶ 21-22). Plaintiff also had trouble catching her breath, and her eyes began to sting from the residual vapor and fumes from the explosions. (Id. at ¶¶ 22-23). Plaintiff went to her front door and found the John Doe DHS officer outside in full tactical gear, with his gun drawn. (Id. at ¶ 24). The unnamed officer informed Plaintiff that she could not leave her apartment. (Id. at ¶ 25). None of the Defendants provided Plaintiff with any explanation as to what was occurring, exacerbating Plaintiff's fearful state of mind. (Id. at ¶¶ 34-35).

Eventually, Plaintiff was permitted to leave her apartment. (FAC ¶ 36). Although Plaintiff asked Defendants for medical attention, she was ignored and instead forced to call an ambulance for herself. (Id. at ¶¶ 37-38). At the hospital, Plaintiff suffered from burning in her eyes, ringing in her ears, pain in her back, a migraine, and chest pains that required attention from a cardiologist. (Id. at ¶¶ 39-40). As a result of the damage to her home, Plaintiff had to stay with family for three weeks. (Id. at ¶ 41). Moreover, Plaintiff continued to suffer from irritation to her eyes, migraines, chest pains, and psychological injury as a result of her ordeal. (Id. at ¶¶ 42-44).

B. Procedural Background

On December 13, 2016, Plaintiff filed this suit, naming as defendants New York City and unknown police officers. (Dkt. #1). On December 29, 2017, after gaining further information regarding the raid, Plaintiff filed an amended complaint against the United States, DHS, and unnamed DHS officers. (Dkt. #25). On March 6, 2017, Plaintiff filed a second amended complaint, dropping her claims against DHS. (Dkt. #36).

On April 13, 2018, Plaintiff proposed, and the Court accepted, Plaintiff's third amended complaint. (Dkt. #41-42). The third amended complaint brought claims against two unnamed DHS officers under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for false imprisonment and excessive force, and numerous Federal Tort Claims Act ("FTCA") claims against the United States. (Dkt. #41). On May 18, 2018, the Government filed a motion to dismiss the FTCA claims against it (Dkt. #48-49), with briefing completed on June 22, 2018 (Dkt. #50-51). On March 4, 2019, the Court issued an Opinion and Order dismissing the FTCA claims against the Government, but providing Plaintiff with the opportunity to continue with her claims against the DHS officers in their individual capacities. (Dkt. #53).

On March 8, 2019, Plaintiff informed the Court that she wished to proceed with her claims against the DHS officers in their individual capacities and requested identification of the then-unnamed officers in order to allow for proper service and amendment of her complaint. (Dkt. #54). On April 25, 2019, Plaintiff filed her FAC — which is the operative complaint — bringing claims under 42 U.S.C. § 1983 and Bivens for (i) false imprisonment and false arrest against Defendant John Doe and (ii) excessive use of force against Defendants Basile and Vogel. (Dkt. #61). Defendants filed their motion to dismiss under Rule 12(b)(6), with accompanying memorandum and declaration, on September 23, 2019. (Dkt. #70-72). Plaintiff filed her opposing brief on October 25, 2019. (Dkt. #73). Defendants filed their reply brief on November 8, 2019. (Dkt. #74).

DISCUSSION

A. Plaintiff Has Failed to Raise a Cognizable Bivens Claim

1. Applicable Law

a. Motions to Dismiss Under Rule 12(b)(6)

Defendants raise numerous arguments, but principally argue that Plaintiff has failed to allege a viable claim under Bivens . (Def. Br. 1-2).³ Rule 12(b)(6) provides a defense to parties when the plaintiff has failed "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must "draw all reasonable inferences in Plaintiff's favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co. , 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted); see also Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A plaintiff is entitled to relief if she alleges "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; see also In re Elevator Antitrust Litig. , 502 F.3d 47, 50 (2d Cir. 2007) ("While Twombly does not require heightened fact pleading of specifics, it does require enough facts to nudge plaintiff's claims across the line from conceivable to plausible." (internal quotation marks omitted) (citing Twombly , 550 U.S. at 570, 127 S.Ct. 1955 )).

"Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). Moreover, "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." Id.

b. The Bivens Standard

Before the Court can determine whether Plaintiff has adequately alleged a false arrest or excessive force violation, it must first determine whether Plaintiff is able to make use of the implied remedy that is Bivens . Although Congress in 1871 provided plaintiffs with a remedy for money damages if a state official violates their constitutional rights, see 42 U.S.C. § 1983, Congress has never created a similar remedy for unconstitutional acts by federal officials. Nevertheless, in 1971 the Supreme Court created an implied damages remedy to compensate a petitioner who suffered injury as a result of federal agents' violation of his rights under the Fourth Amendment. See Bivens , 403 U.S. at 397, 91 S.Ct. 1999. The Court noted that while the Fourth Amendment "does not in so many words provide for its enforcement by an award of...