Whaley v. Lopez
| Decision Date | 30 July 2012 |
| Docket Number | 12-CV-2889(SJF)(ARL) |
| Parties | JOHN WHALEY and ANTONIO RIVERA, Plaintiffs, v. DETECTIVE GREGORY LOPEZ, Shield #1187 of the Suffolk County Police Department, SPECIAL AGENT WILLIAM E. BRUST of the Department of Homeland Security or Immigration Customs Enforcement, ASSISTANT UNITED STATES ATTORNEY DEMETRI M. JONES, ASSISTANT UNITED STATES ATTORNEY GENERAL JOHN COTTON RICHMOND, ELSA GARCIA, FLORFIDIA ALFARO, CESIA NOEMI HERNANDEZ, JESSY CONTRERAS HERNANDEZ, MARINA RIQUELME GARCIA, ALMA YANORY ANDRADE DIAZ, LESLIE RUBIDELIA HERNA SANTOS, KEYBY JULISSA OCHOA ANTUNEZ, TRACEY E. GAFFEY, GLENN A. OBEDIN, individually and in their official capacities, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
I. Introduction
On June 7, 2012, incarcerated pro se plaintiffs John Whaley ("Whaley") and Antonio Rivera ("Rivera") (collectively, "plaintiffs") filed a complaint pursuant to 42 U.S.C. §§ 1981, 1983 and 1985 and 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"), against Detective Gregory Lopez ("Lopez"), Shield #1187 of the Suffolk County Police Department; Special Agent William E. Brust ("Brust") of the Department of Homeland Security or Immigration Customs Enforcement; Assistant United States Attorney Demetri M. Jones ("Jones"); Assistant United States Attorney General John CottonRichmond ("Richmond"); "government witnesses" Elsa Garcia ("E. Garcia"), Florfidia Alfaro ("Alfaro"), Cesia Noemi Hernandez ("C. Hernandez"), Jessy Contreras Hernandez ("J. Hernandez"), Marina Riquelme Garcia ("M. Garcia"), Alma Yanory Andrade Diaz ("Diaz"), Leslie Rubidelia Hernandez Santos ("Santos"); Keyby Julissa Ochoa Antunez ("Antunez"); Tracey E. Gaffey, Esq. ("Gaffey"), of the Federal Defenders of New York; and Glenn A. Obedin ("Obedin") (collectively,"defendants"), each in their individual capacity, accompanied by applications to proceed in forma pauperis and for the appointment of pro bono counsel. On June 12, 2012, plaintiffs filed an amended complaint against defendants.
Plaintiffs' financial status, as set forth in their declarations in support of their applications to proceed in forma pauperis, qualifies them to commence this action without prepayment of the filing fees. 28 U.S.C. § 1915(a)(1). Accordingly, plaintiffs' applications to proceed in forma pauperis are granted. However, for the reasons set forth below, the amended complaint is sua sponte dismissed in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) and plaintiffs' applications for the appointment of pro bono counsel are denied as moot.
II. Background
On May 26, 2011, Rivera was convicted in this Court, upon a jury verdict, of one (1) count of conspiracy to commit sex trafficking by means of force, fraud and coercion in violation of, inter alia, 18U.S.C. §§371 and 1591(a), effective October 28,2000 to December 22, 20081 ; one (1) count of conspiracy to commit sex trafficking by means of force, fraud and coercion in violation of, interalia, 18 U.S.C. §§ 1594(c), effective December 23, 2008, and 1591(a), as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"), Pub. L. 110457, 122 Stat. 5044, Title II, § 222(b)(5), enacted on December 23 , 20082 ; four (4) counts of sex trafficking by means of force, fraud and coercion in violation of, inter alia, 18 U.S.C. § 1591(a) (2000); two (2) counts of sex trafficking by means of force, fraud and coercion in violation of, inter alia, 18 U.S.C. § 1591(a) (2009); one (1) count of conspiracy to commit forced labor in violation of, inter alia, 18 U.S.C. §§ 371 and 1589, effective October 28, 2000 to December 22, 20083 ; one (1) count of conspiracy to commit forced labor in violation of, inter alia, 18 U.S.C. §§ 1589(d), as amended by the TVPRA,4 effective December 23, 2008, and 1594(b), effective December 23, 2008; seven (7) counts of forced labor in violation of, inter alia, 18 U.S.C. § 1589 (2000); four (4) counts of forced labor in violation of, inter alia, 18 U.S.C. §1589 (2009); one (1) count of conspiracy to transport and harbor aliens in violation of, inter alia, 8 U.S.C. § 1324(a)(1); seven (7) counts of transportation of aliens within the United States in violation of, inter alia, 8 U.S.C. § 1324(a)(1); and seven (7) counts of alien harboring in violation of, inter alia, 8 U.S.C. § 1324(a)(1). On that same date, Whaley was convicted in this Court, upon a jury verdict, of one (1) count of conspiracy to commit sex trafficking by means of force, fraud and coercion in violation of, inter alia, 18 U.S.C. §§ 371 and 1591(a) (2000); one (1) count of conspiracy to commit sex trafficking in violation of,inter alia, 18 U.S.C. §§ 1594(c) and 1591(a) (2009); one (1) count of conspiracy to commit forced labor in violation of, inter alia, 18 U.S.C. §§ 371 and 1589 (2000); one (1) count of conspiracy to commit forced labor in violation of, inter alia, 18 U.S.C. §§ 1589(d) and 1594(b) (2009); four (4) counts of forced labor in violation of, inter alia, 18 U.S.C. § 1589 (2009); one (1) count of conspiracy to transport and harbor aliens in violation of, inter alia, 8 U.S.C. § 1324(a)(1); five (5) counts of transportation of aliens within the United States in violation of, inter alia, 8 U.S.C. § 1324(a)(1); and five (5) counts of alien harboring in violation of, inter alia, 8 U.S.C. § 1324(a)(1).
In July and August of 2011, plaintiffs separately challenged their convictions by filing motions pursuant to Rule 29(c)(2) and/or Rule 33 of the Federal Rules of Criminal Procedure to set aside the jury verdict and enter a judgment of acquittal or for a new trial, respectively, in the criminal proceedings against them. See United States v. Rivera, No. 09-CR-619 (Doc. Nos. 241 and 242). By order dated June 19, 2012, inter alia: (a) the branch of Whaley's motion seeking to set aside the verdict pursuant to Rule 29 of the Federal Rules of Civil Procedure was granted to the extent that so much of the verdict as found plaintiffs guilty of counts one (1) and six (6) of the superceding indictment was vacated and those counts of the superceding indictment were dismissed as against plaintiffs as multiplicitous, and Whaley's motion was otherwise denied; and (b) Rivera's motion was denied in its entirety.
In November 2011, plaintiffs again challenged their convictions by separately filing motions pursuant to 28 U.S.C. § 2255 ("the 2255 proceedings"). Whaley v. United States of America, No. 11-CV-5471; Rivera v. United States of America. No. 11-cv-5579. By orders dated February 1, 2012, plaintiffs' 2255 motions were denied without prejudice as premature since they have not yet been sentenced upon their convictions. Plaintiffs' subsequent motions seeking leave to reopen the2255 proceedings were denied by orders dated February 27, 2012 and March 13, 2012, respectively. In addition, Whaley's motion seeking, in essence, reconsideration of the February 1, 2012 order was denied by order dated March 9, 2012.
On June 12, 2012, plaintiffs filed the instant action against defendants pursuant to Sections 1981,1983 and 1985 and Bivens. In their amended complaint, plaintiffs allege, inter alia: (1) that defendants conspired to deprive them of their constitutional rights to due process, equal protection of the laws and a fair trial in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution ); (2) that Lopez and Brust falsely arrested them and denied them their right to a fair trial and to the equal protection of the laws in violation of their Fourth, Fifth, Sixth and Fourteenth Amendment rights (Claim Two as against Lopez and Brust; Amend. Compl., ¶ 108); (3) that Gaffey and Obedin, counsel who represented Whaley and Rivera, respectively, during the criminal trial, (a) committed attorney malpractice and were negligent in violation of their Sixth Amendment right to the effective assistance of counsel (Claim Three as against Gaffey and Obedin), and (b) denied them their right to equal protection of the laws, a fair trial and due process in violation of the First, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, (Amend. Compl., ¶ 109); (4) that Jones and Richmond, the prosecutors in the criminal action, (a) denied them their rights to due process and a fair trial in violation of the Fifth and Sixth Amendments to the United States Constitution (), and (b) denied them their right to indictment by a Grand Jury and equal protection of the laws in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, (Amend. Compl., ¶ 110); (5) that Lopez, Brust, Jones and Richmond selectively prosecuted them and denied them their right to equal protection of the laws in violationof the Fourteenth Amendment to the United States Constitution and 42 U.S.C. §§ 1981 and 1985 (); and (6) that the government witnesses, who testified against plaintiffs during the criminal trial, deprived them of their rights to a fair trial and "to probable cause forthe[ir] arrest," (Amend. Compl., ¶¶ 106,111), in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution ().
With respect to their conspiracy claim against all defendants, plaintiffs allege, inter alia: (a) that Lopez "pressed" Brust into bringing federal criminal charges against them after he failed to obtain evidence of prostitution or any violation of the New York State penal law during his raids on Rivera's two (2) bars; (b) that Brust sought arrest and search warrants solely "to further [his] own personal goals in arrest," (Amend. Compl., ¶ 41(B)); (c) that Lopez, Brust, Jones and Richmond (i) agreed to question the...
To continue reading
Request your trial