Tigano v. United States

• Decision Date: 22 March 2021
• Docket Number: 19-CV-3337 (PKC) (PK)
• Citation: 527 F.Supp.3d 232
• Parties: Joseph TIGANO, III, Plaintiff, v. UNITED STATES of America, Terrance P. Flynn, in his individual capacity as the U.S. Attorney for the Western District of New York, William J. Hochul, Jr., in his individual capacity as the U.S. Attorney for the Western District of New York, John/Jane Doe #1, in his/her individual as an employee of the United States Marshals Service, and John/Jane Doe #2, in his/her individual capacity as an employee of the Court Reporters of the Western District of New York, Defendants.
• Court: U.S. District Court — Eastern District of New York

527 F.Supp.3d 232

Joseph TIGANO, III, Plaintiff,

v.UNITED STATES of America, Terrance P. Flynn, in his individual capacity as the U.S. Attorney for the Western District of New York, William J. Hochul, Jr., in his individual capacity as the U.S. Attorney for the Western District of New York, John/Jane Doe #1, in his/her individual as an employee of the United States Marshals Service, and John/Jane Doe #2, in his/her individual capacity as an employee of the Court Reporters of the Western District of New York, Defendants.

19-CV-3337 (PKC) (PK)

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

Signed March 22, 2021

Elise H. Langsam, Langsam Law LLP, New York, NY, for Plaintiff.

Seth D. Eichenholtz, Dara A. Olds, United States Attorneys Office, Brooklyn, NY, for Defendants.

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

This case arises out of the seven-year pre-trial detention of PlaintiffJoseph Tigano, III.On January 23, 2018, after ordering Plaintiff released, the Second Circuit issued a decision finding that his right to a speedy trial had been violated by this extraordinarily long pre-trial period.After the Circuit reversed Plaintiff's conviction, Plaintiff brought this suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2674 et seq. , andBivens v. Six UnKnown named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619(1971)(" Bivens "), against the United States of America, Terrence P. Flynn, and William J. Hochul, Jr., U.S. Attorneys for the Western District of New York(collectively, "Defendants").¹Defendants now move to dismiss Plaintiff's Amended Complaint.For the reasons set forth herein, the Court grants Defendants’ motion to dismiss.

BACKGROUND²

I.Factual Background

The Amended Complaint, as well as the Second Circuit's decision in United States v. Tigano , 880 F.3d 602, 605–10(2d Cir.2018), details the extensive pre-trial history of Plaintiff's criminal case.The Court therefore assumes the parties’ familiarity with this history.In brief, however, Plaintiff and his father, Joseph Tigano, Sr., were arrested on July 11, 2008 at their home on charges related to a marijuana growing enterprise.(Am. Compl., Dkt. 14, ¶ 14.)Plaintiff was remanded into custody, while his father was subsequently released on bail.(Id.¶¶ 15, 23.)Plaintiff insisted verbally on the record at multiple court conferences over the ensuing years that he desired a trial and did not waive his right to speedy trial.(Seeid. , ¶¶ 23, 25, 53.)Nevertheless, his case faced delay after delay, including (non-exhaustively) the following:

• In 2009, the district court granted Plaintiff's father's request for an extension on pretrial motions filed by the father and the corresponding motion hearing without alerting Plaintiff.(Id.¶ 24.)Plaintiff then commenced a hunger-strike when he was not transported to court on the original hearing date because he believed the district court had forgotten him.(Id. )

• Plaintiff was forced to undergo three separate competency evaluations, each of which concluded that Plaintiff was fit to stand trial.(Seeid.¶¶ 25–29;id.¶¶ 33–36;id.¶¶ 55–61).Two of the examinations were ordered sua sponte by the presiding judge and the third was requested by Plaintiff's defense counsel.(Id. )All appear to have been prompted by Plaintiff's commitment to going to trial.(Id. )

• Plaintiff also experienced delays in his transportation to and from the competency evaluations: the United States Marshals Service ("USMS") took over 20 days to transport Plaintiff to his initial evaluation and more than a month to return him from that evaluation (id.¶¶ 26, 29), and later took 45 days to transport Plaintiff to his third evaluation (id.¶ 57).Then, in 2014, while Plaintiff was awaiting transfer following the third evaluation, and after Plaintiff had already been in detention for almost six years, "[t]he USMS seem[ed] to have lost track of [Plaintiff] ..., such that two pretrial conferences were held without any movement on the case and another was adjourned because [Plaintiff] was absent and the date of his return [from the facility where the third evaluation was conducted] remained uncertain."Tigano , 880 F.3d at 610.Plaintiff was finally returned to the court on July 30, 2014, three months after he was released from medical hold on May 2, 2014.Id.;(see alsoAm. Compl., Dkt. 14, ¶ 61).

• The presiding district judge referred Plaintiff's pre-trial motions to multiple magistrate judges, causing confusion and delay in their resolution as the judges were unclear of who was responsible.(Id.¶¶ 37–41.)There were also a variety of other pretrial motion and discovery delays, as well as multiple delays due to the court's congested schedule.(Id.¶¶ 42, 46);Tigano , 880 F.3d at 615.

• Court reporters took an extremely long time to provide transcripts,³ including, in one instance, 2,194 days to produce the transcript of Plaintiff's arraignment, and, in another, 117 days to produce a transcript that the parties needed in order to complete briefing on a motion, thus delaying the filing of motion papers by roughly four months.(Am. Compl., Dkt. 14, ¶¶ 44–45);Tigano , 880 F.3d at 608, 614 n.3.

• The government requested multiple adjournments for the purpose of plea negotiations, and repeatedly failed to provide a written agreement despite promising one.(Am. Compl., Dkt. 14, ¶¶ 48–51.)Ultimately, the "government waited nearly a year to present [Plaintiff with] a written plea offer," in part because the Assistant United States Attorney ("AUSA") assigned to Plaintiff's case "was involved in a major criminal trial" and Plaintiff's case "had taken a definitive back seat within the U.S. Attorney's office."Tigano , 880 F.3d at 609.Plea negotiations also dragged because the government demanded that Plaintiff and his father plead in a "two-for-one" deal, a condition the government ultimately abandoned.(Am. Compl., Dkt. 14, ¶¶ 48–51.)

Plaintiff also moved to have his case severed from his father's so that he could get a speedy trial, but the district court denied his motion.(Id.¶ 33.)In January 2015, Plaintiff's case was transferred to Judge Elizabeth A. Wolford, United States District Judge for the Western District of New York.(Id.¶ 65.)Plaintiff was finally tried in May of that year and convicted on five of the six counts charged.(Id.¶¶ 18–19);Tigano , 880 F.3d at 605.He had been incarcerated in local jails from the time of his arrest until his conviction.(Am. Compl., Dkt. 14, ¶ 16.)Plaintiff was sentenced to 20 years’ imprisonment, the mandatory minimum.(Id.¶ 19.)Plaintiff appealed, and on November 15, 2017, the Circuit overturned his conviction and ordered him released, following up with a full decision on January 23, 2018.(Am. Compl., Dkt. 14, ¶¶ 20–21.)The Circuit's opinion overturning Plaintiff's conviction on speedy-trial grounds noted that the pretrial detention

appears to be the longest ever experienced by a defendant in a speedy trial case in the Second Circuit.[Plaintiff]’s experience is an extreme outlier even among the severe examples found within Sixth Amendment case law.Yet no single, extraordinary factor caused the cumulative seven years of pretrial delay.Instead, the outcome was the result of countless small choices and neglects, none of which was individually responsible for the injustice suffered by [Plaintiff], but which together created this extreme instance of a Sixth Amendment violation.A review of the procedural history reveals that [Plaintiff] was the victim of poor trial management and general indifference at every level toward this low-priority defendant in a straightforward case.

Tigano , 880 F.3d at 606.

II.Procedural History

On June 5, 2019, roughly a year-and-a-half after his release, Plaintiff filed this case, bringing a variety of BivensandFTCA claims against Defendants.(See generallyComplaint, Dkt. 1.)On August 19, 2019, Defendants filed a pre-motion conference letter seeking to dismiss the Complaint (Dkt. 10), and the Court held a pre-motion conference on October 11, 2019, at which it set a schedule for Plaintiff to file his amended complaint and for Defendants to file their motion to dismiss(10/11/19 Minute Entry).Plaintiff filed the Amended Complaint on October 29, 2019, alleging nine claims against the United States under the FTCA and six Bivens claims each against Defendants Flynn and Hochul, as well as against a John or Jane Doe employee of the USMS, and a John or Jane Doe employee of the Court Reporters of the Western District of New York, for a total of thirty-three claims.(Am. Compl., Dkt. 14, ¶¶ 70–281.)After several extensions, the instant motion to dismiss was fully briefed on May 29, 2020.(Dkts. 22–25.)

LEGAL STANDARD

I.Motions UnderFed. R. Civ. P. 12(b)(1)

"A case is properly dismissed for lack of subject matter jurisdiction under [Federal Rule of Civil Procedure] 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it."Makarova v. United States , 201 F.3d 110, 113(2d Cir.2000)."When a defendant moves to dismiss for lack of standing, our standard of review depends on whether the defendant brings a ‘facial’ challenge, ‘based solely on the allegations of the complaint’ or a ‘fact-based’ challenge, ‘proffering evidence beyond the [p]leading.’ "Sonterra Capital Master Fund Ltd. v. UBS AG , 954 F.3d 529, 533(2d Cir.2020)(quotingCarter v. HealthPort Techs., LLC , 822 F.3d 47, 56–57(2d Cir.2016) )."In a fact-based challenge, a defendant must proffer evidence beyond what is alleged in or attached to the complaint."Amaya v. Ballyshear LLC , 340 F. Supp. 3d 215, 219(E.D.N.Y.2018)(citingRobinson v. Gov't of Malaysia , 269 F.3d 133, 140 n.6(2d Cir.2001) )."In opposition to such a motion, the plaintiff[ ] will need to come forward with evidence of [his] own to controvert that presented by the defendant ...."Carter , 822 F.3d at 57.Or, a plaintiff"may...