Watson v. Estrada

Filing

OPINION, reversing in part and affirming in part, by RAK, Ch.J., DJ, DAL, C.JJ., FILED.[2089420] [16-655, 16-1357]

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16-655(L)
Watson v. United States

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2016

(Argued: April 6, 2017

Decided: July 31, 2017)

Docket Nos. 16-655 (L), 16-1357 (XAP)
- - - - - - - - - - - - - - - - - - - -x
DAVINO WATSON,
Plaintiff-Appellant-Cross-Appellee,
- v.UNITED STATES OF AMERICA,
Defendant-Appellee-Cross-Appellant,
JUAN ESTRADA, MICHAEL ORTIZ, TIMOTHY GUNTHER, JOHN DOES, 1-8,
Defendants.
- - - - - - - - - - - - - - - - - - - -x

Before:

KATZMANN, Chief Judge, JACOBS, and LIVINGSTON,
Circuit Judges.

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Davino Watson, a United States citizen, was improperly held in
immigration detention for more than three years because the government
mistakenly believed that he was a deportable alien. He sued under the Federal
Tort Claims Act in the United States District Court for the Eastern District of New
York (Weinstein, J.), asserting four claims: (1) false imprisonment, (2) malicious
prosecution, (3) negligent investigation into his citizenship status, and (4)
negligent failure to issue a certificate of citizenship until years after his release.
The district court found the government liable to Watson on the false
imprisonment claim, dismissed the malicious prosecution claim and negligent
investigation claim on motion, and entered judgment for the government on the
negligent delay claim post-trial.
We reverse the judgment with respect to the false imprisonment claim,
which is time-barred. We affirm the judgment in all other respects. The
malicious prosecution claim fails because the government did not act with
malice, the negligent investigation claim fails for lack of a private analogue, and
the negligent delay claim fails because Watson suffered no cognizable damages.
Chief Judge Katzmann concurs in part and dissents in part in a separate
opinion.
MARK A. FLESSNER (Robert J. Burns on
the brief), Holland & Knight LLP, Chicago,
IL, for Plaintiff-Appellant-Cross-Appellee
Davino Watson.
JOSEPH A. MARUTOLLO (Varuni Nelson,
James R. Cho, and Elliot M. Schachner on
the brief), for Robert L. Capers, United
States Attorney for the Eastern District of
New York, Brooklyn, NY, for DefendantAppellee-Cross-Appellant United States of
America.

2

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Trina Realmuto, National Immigration
Project of the National Lawyers Guild,
Boston, MA; Mary Kenney, American
Immigration Council, Washington, DC, for
amici curiae National Immigration Project
of the National Lawyers Guild; American
Immigration Council, in support of Davino
Watson.
JACOBS, Circuit Judge:
Davino Watson, a United States citizen, was held in immigration custody
for three-and-a-half years on the mistaken belief that he was a deportable alien.
He sued under the Federal Tort Claims Act (the “FTCA”) in the United States
District Court for the Eastern District of New York (Weinstein, J.), asserting false
imprisonment, malicious prosecution, and two negligence claims. One
negligence claim is that immigration officials conducted a negligent investigation
into Watson’s citizenship status; the other is that the government negligently
failed to deliver a certificate of citizenship to Watson in a timely manner.1
After a bench trial, the district court found the government liable on the
false imprisonment claim, though the district court limited damages to the first
twenty-seven days of Watson’s detention. The district court had previously
dismissed on motion the malicious prosecution claim as barred by 28 U.S.C.
§ 2680(h), as well as the negligent investigation claim for want of a state-law
analogue. After trial, the district court entered judgment against Watson on his
claim that the government negligently delayed delivery of his certificate of
citizenship, concluding that Watson had not demonstrated negligence and had
suffered no damages.

1

Watson also brought two claims pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which the district
court dismissed. Watson does not challenge that ruling on appeal.
3

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Watson appeals the adverse rulings on his malicious prosecution claim and
both negligence claims, and also appeals the district court’s decision to limit the
government’s damages on the false imprisonment claim. The government crossappeals the district court’s judgment on the false imprisonment claim,
contending that the claim is time-barred by the FTCA’s two-year statute of
limitations.
It is arresting and disturbing that an American citizen was detained for
years in immigration proceedings while facing deportation, but Watson’s claims
for damages are foreclosed by precedent. Watson’s false imprisonment claim is
untimely, and we reverse the judgment to that extent. We otherwise affirm.
Watson’s malicious prosecution claim fails because no government official acted
with malice; his negligent investigation claim fails because there is no analogous
tort under New York law, as required by the FTCA; and his claim that the
government negligently delayed delivery of his certificate of citizenship fails
because Watson did not suffer cognizable damages.
In sum, we reverse the judgment of the district court on the false
imprisonment claim, affirm the judgment in all other respects, and dismiss as
moot Watson’s appeal from the limitation on damages for false imprisonment.
I
At the time of his birth in Jamaica, neither of Watson’s parents were U.S.
citizens. When Watson was thirteen years old in 1998, he entered the United
States as a lawful permanent resident to live with his father, who was then a
lawful permanent resident of the United States. Watson’s father was naturalized
on September 17, 2002, and there is no longer any dispute that Watson
automatically became a U.S. citizen at the same time as his father. However, for
most of the relevant period, the government had reason to believe that Watson
was not a U.S. citizen. As will be shown, that misunderstanding resulted in part
from the fact that Watson’s father (Hopeton Ulando Watson) and his mother
(Dorette McFarlane) never married. The relevant statutes governing Watson’s
citizenship status are set out in the margin.2
2

A child born outside of the United States automatically becomes a citizen
of the United States when all of the following conditions have been
4

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A
In 2007, Watson pleaded guilty in New York state court to selling cocaine.
While serving his prison sentence, Immigration and Customs Enforcement
(“ICE”) agents investigated Watson’s citizenship status to determine whether he
was deportable.
The investigation was beset by errors. From the beginning, ICE agents
were presented with information strongly suggesting that Watson was a citizen
based on his father’s naturalization, but the agents did not competently pursue
the leads. For example, during Watson’s first interview with ICE, he claimed
U.S. citizenship, told the ICE agents the names of his father and step-mother, and
gave their telephone number to assist the investigation. The ICE agents did not
call the telephone number, despite writing a note to do so in order “to verify
fulfilled:
(1) At least one parent of the child is a citizen of the United
States, whether by birth or naturalization.
(2) The child is under the age of eighteen years.
(3) The child is residing in the United States in the legal and
physical custody of the citizen parent pursuant to a lawful
admission for permanent residence.
8 U.S.C. § 1431(a). For purposes of that provision, “child” is defined as:
an unmarried person under twenty-one years of age and includes a
child legitimated under the law of the child’s residence or domicile,
or under the law of the father’s residence or domicile, whether in the
United States or elsewhere, . . . if such legitimation . . . takes place
before the child reaches the age of 16 years . . . and the child is in the
legal custody of the legitimating . . . parent . . . at the time of such
legitimation . . . .
8 U.S.C. § 1101(c)(1).
5

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status.” App’x at 206, 500. There may be reason to suspect a proffered phone
number, but the call was never made, even though Watson’s pre-sentencing
report, a copy of which ICE received, indicated that he was a U.S. citizen, listed
the names of his father and step-mother, and gave the same phone number that
Watson had provided.
Although they did not call his father and step-mother, ICE agents did
attempt to learn more about them as part of the investigation into Watson’s
citizenship. Importantly, Watson’s father’s name is “Hopeton Ulando Watson”
and his step-mother’s name is “Clare Watson.”3 When ICE agents searched an
ICE database for “Hopeton Watson” and “Clare Watson,” they found a
“Hopeton Livingston Watson” and a “Calrie Watson.” Because these two persons
were born in Jamaica and lived near New York, ICE agents assumed that they
were Watson’s parents.
The agents might be forgiven for making that assumption: “Hopeton”
might seem like an unusual name, and “Calrie” is within a typo of “Clare.” But
the ICE agents also ignored or failed to recognize flags that these people were not
related to Watson. Aside from the fact that Hopeton Livingston Watson had the
wrong middle name, his file also reflected that he lived in Connecticut (rather
than New York), did not have a child named Davino, and became a lawful
permanent resident three years after the date of Davino Watson’s lawful
permanent residency. Evidently, the ICE officers also failed to look at the
affidavit that Watson’s actual father (Hopeton Ulando Watson) had submitted in
connection with Davino’s application for legal permanent residency in 1998.
That affidavit contained Hopeton Ulando Watson’s date of birth, alien number,
and social security number, none of which matched the corresponding file data
for Hopeton Livingston Watson.
Nonetheless, the government assumed that Hopeton Livingston Watson
was Davino’s father. And since Hopeton Livingston Watson was not a citizen,
ICE agents believed that Watson similarly lacked citizenship and was subject to
deportation.

3

When ICE agents asked Watson for his mother’s name, he apparently gave
them the name of his step-mother.
6

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A supervisory ICE officer, relying on this conclusion without undertaking
more investigation, drafted a “Notice to Appear,” which initiates deportation
proceedings. In the words of the district court, another supervisory officer
“mindlessly signed” the Notice to Appear and forwarded it to the ICE office
responsible for taking Watson into custody.
B
After Watson completed his state prison sentence, he was arrested by ICE
agents, and placed in custody despite Watson’s insistence that he was a citizen.
Watson’s Notice to Appear was formally filed nineteen days later, and he first
appeared before an immigration judge about one month afterward.
C
Watson actively sought to prove his citizenship throughout his
immigration detention. Early on, he applied to the United States Citizenship and
Immigration Services (“USCIS”) for a certificate of citizenship (a document that
evidences the bearer’s U.S. citizenship). USCIS denied his request on the basis of
In re Hines, 24 I. & N. Dec. 544 (BIA 2008), decided by the Board of Immigration
Appeals (“BIA”) twenty-eight days after Watson was detained.
Hines dealt with the requisites of “legitimation” under Jamaican law. That
issue was critical to Watson because he could derive citizenship from his father
only if he had been “legitimated” by his father. See 8 U.S.C. §§ 1101(c)(1),
1431(a). In Hines, the BIA stated that it “will deem a child born out of wedlock in
Jamaica to have had his or her paternity established ‘by legitimation’ only upon
proof that the child’s parents married at some time after the child’s birth.” 24 I. &
N. Dec. at 548. Because Watson’s parents never married, he was not deemed to
have been “legitimated,” and consequently was ineligible for derivative
citizenship under the BIA’s then-current interpretation of Jamaican law.
Ultimately, Hines led to the denial of Watson’s application for a certificate of
citizenship by USCIS, the issuance of an order of removal by the immigration
judge, and the affirmance of Watson’s order of removal by the BIA.

7

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D
In a prior appeal, Watson petitioned this Court to review the immigration
judge’s order of removal. We denied his petition, but in so doing we declined to
consider whether the BIA correctly concluded that Watson had not been
“legitimated;” rather, we relied on the BIA’s alternative ruling that Watson had
not produced evidence showing that his father had legal custody over him,
which would preclude derivative citizenship regardless of legitimation. See 8
U.S.C. § 1431(a)(3). However, after Watson filed an emergency petition in this
Court, we recalled our mandate and reinstated Watson’s original petition. We
then asked the BIA to clarify and justify its “legitimation” analysis. Watson v.
Holder, 643 F.3d 367 (2d Cir. 2011) (per curiam).
After our remand, ICE apparently began to suspect that Hines might not
apply to Watson, and that Watson might be a U.S. citizen under the BIA’s preHines precedent. The government’s precise views on the application of Hines to
Watson’s case are somewhat obscure.4 In any event, ICE released Watson in
November 2011 into rural Alabama (where he knew nobody), without money,
4

Shortly before Watson was released from custody, an ICE memo suggested
that Hines should not be applied retroactively. If so, Watson would be a citizen
because, under the pre-Hines precedent In re Clahar, 18 I. & N. Dec. 1 (BIA 1981),
Watson would have been deemed legitimate pursuant to the BIA’s interpretation
of Jamaican law. App’x at 402-03. The BIA did not appear to rely on that
reasoning when it formally terminated Watson’s removal proceedings more than
a year later. Instead, the BIA’s unpublished opinion reasoned that Hines dealt
with the statutory phrase “paternity by legitimation,” and thus did not implicate
the statutory term “legitimated,” which was the relevant term in Watson’s case.
App’x at 457; see also 8 U.S.C. § 1432(a)(3) (2000), repealed by Child Citizenship
Act of 2000, Pub. L. No. 106-395, § 103, 114 Stat. 1632-33. In any event, the
government conceded that Watson had been “legitimated” under Jamaican law,
and the BIA concluded that Watson consequently “derived citizenship through
his father’s naturalization.” App’x at 457. The BIA’s shifting interpretations of
Jamaican law did not end, however: it has since overruled Hines in its entirety,
returning to the interpretation first expressed in Clahar. See In re Cross, 26 I. &
N. Dec. 485, 485-86 (BIA 2015).
8

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and without being told the reason for his release. Removal proceedings
technically continued for more than a year, ending at last when the BIA,
responding to this Court’s remand, issued an unpublished decision concluding
that Hines did not apply to Watson’s case. The BIA determined that Watson
“was legitimated” under Jamaican law, deduced that Watson “derived
citizenship through his father’s naturalization,” and accordingly terminated
Watson’s removal proceedings. App’x at 457.
Watson later moved to reopen his application for a certificate of
citizenship, which he received after a long delay. The certificate states that
Watson has been a citizen since the date of his father’s naturalization.
E
Watson filed an administrative claim for damages with DHS on October
30, 2013, which was denied approximately one year later. He initiated this
lawsuit in the Eastern District of New York on October 31, 2014.
II
The district court found the government liable to Watson on his claim of
false imprisonment. The government’s argument that the claim was untimely
was rejected on alternative grounds. First, the court ruled that the statute of
limitations for the false imprisonment did not begin to run until the day Watson
received his certificate of citizenship (November 26, 2013). Second, even if
Watson’s claims were filed after the limitations period had expired, the district
court ruled that Watson would be entitled to equitable tolling until the day that
Watson was informed by his lawyer of his right to bring an FTCA claim (July 31,
2014). Since both events post-dated the filing of Watson’s administrative claim,
the false imprisonment claim would be timely.
We disagree. Watson’s false imprisonment claim is untimely, and the
judgment of the district court is reversed to the extent it held the government
liable on Watson’s false imprisonment claim.

9

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A
Watson brought his claim pursuant to the FTCA, which imposes a twoyear statute of limitations:
A tort claim against the United States shall be forever barred unless
it is presented in writing to the appropriate Federal agency within
two years after such claim accrues . . . .
28 U.S.C. § 2401(b). Since Watson’s administrative claim for false imprisonment
was filed on October 30, 2013, it is untimely if it accrued before October 30, 2011.
The question, then, is when Watson’s claim accrued.5
The district court (erroneously) held that this question was governed by
Heck v. Humphrey, 512 U.S. 477 (1994).6 But Watson concedes on appeal (and
we agree) that the proper framework is provided by Wallace v. Kato, 549 U.S. 384
(2007). Wallace held that “[l]imitations begin to run against an action for false
imprisonment when the alleged false imprisonment ends.” Id. at 389 (quoting 2
H. Wood, Limitations of Actions § 187d(4), p. 878 (rev. 4th ed. 1916)). It is of

5

The district court’s denial of the government’s motion for summary
judgment based on the claim’s accrual date is reviewed de novo. See Buttry v.
Gen. Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995).
6

In Heck, the Supreme Court held that a prisoner cannot bring a claim against
the government “for allegedly unconstitutional conviction or imprisonment”
unless the plaintiff can prove that the “conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus.” Id. at 486-87. In light of that
ruling, the Supreme Court further held that “a § 1983 cause of action for damages
attributable to an unconstitutional conviction or sentence does not accrue until
the conviction or sentence has been invalidated.” Id. at 489-90. Analogizing to
Heck, the district court determined that Watson’s false imprisonment claim did
not accrue until he received his certificate of citizenship on November 26, 2013.
10

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course possible for the tort of “false imprisonment” to end while physical
detention continues. That is so because of the distinction between the tort of false
imprisonment and the tort of malicious prosecution: false imprisonment is
characterized by “detention without legal process,” while malicious prosecution
involves detention resulting from “wrongful institution of legal process.” Id. at
389-90 (emphases in original). “[F]alse imprisonment ends once the victim
becomes held pursuant to such process--when, for example, he is bound over by a
magistrate or arraigned on charges.” Id. at 389 (emphasis in original).
“Thereafter, unlawful detention forms part of the damages for the ‘entirely
distinct’ tort of malicious prosecution.” Id. at 390 (quoting W. Keeton et al.,
Prosser & Keeton on Law of Torts § 119, p. 885-86 (5th ed. 1984)). In short, a false
imprisonment claim starts to run when a detainee begins to be held pursuant to
legal process.
The timeliness of Watson’s claim therefore depends on when he began to
be held pursuant to legal process. There are several potential dates, including the
day Watson was served with a “Notice to Appear” (which starts removal
proceedings), and the day Watson first appeared before an immigration judge.
But we need not decide the precise date on which Watson was first held
pursuant to legal process because we conclude that Watson was certainly held
pursuant to such process by the time an immigration judge ordered Watson’s
removal, which occurred on November 13, 2008.7 By that point, Watson and the
government had filed opposing briefs on removability, and the immigration
judge weighed the arguments and ruled against Watson, thereby affirming the
government’s right to detain him. The Supreme Court has indicated that a cause
of action for false imprisonment begins at least by the point a criminal defendant
is arraigned on charges, see Wallace, 549 U.S. at 391, and by November 13, 2008,
Watson had gone through an entire trial-like proceeding to determine the

7

It bears emphasis that legal process may attach prior to an immigration
judge’s determination of removability.
11

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lawfulness of his detention. Because that date occurred more than two years
before Watson filed his administrative claim, his cause of action is untimely.8
B
Alternatively, the district court ruled that Watson’s claims were timely on
the ground of equitable tolling. In these circumstances, we review the district
court’s decision to allow equitable tolling for abuse of discretion. See Phillips v.
Generations Family Health Ctr., 723 F.3d 144, 149 (2d Cir. 2013).
“Generally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.” Mottahedeh v.
United States, 794 F.3d 347, 352 (2d Cir. 2015) (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)). In this appeal, the second element is decisive.
Watson’s case is certainly extraordinary in a number of unfortunate ways.
However, “[t]he term ‘extraordinary’ refers not to the uniqueness of a party’s
circumstances, but rather to the severity of the obstacle impeding compliance
with a limitations period.” Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). So:
“[t]o secure equitable tolling, it is not enough for a party to show that he
experienced extraordinary circumstances. He must further demonstrate that those
circumstances caused him to miss the original filing deadline.” Id. (emphasis
added).

8

Watson also contends that, since he was a U.S. citizen, he was not subject to
“legal process” because immigration judges lack jurisdiction to conduct removal
proceedings against U.S. citizens. He cites Ng Fung Ho v. White, 259 U.S. 276,
284 (1922): “Jurisdiction in the executive to order deportation exists only if the
person arrested is an alien. The claim of citizenship is thus a denial of an
essential jurisdictional fact.” Nevertheless, an immigration judge has jurisdiction
to consider a person’s claim to citizenship when the government alleges the
person is an alien; and such jurisdiction is sufficient to allow legal process to
begin.
12

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The district court’s grant of equitable tolling was based on Watson’s lack of
education and legal training, his unawareness that he could bring an FTCA claim
until being advised by appointed counsel, his depression, and “most
significantly,” the fact that government officials told Watson that he was not a
U.S. citizen. App’x at 181-82. None of those reasons justifies equitable tolling.
We begin with the circumstance emphasized by the district court (and by
Watson on appeal), that “the government actively and repeatedly insisted . . . that
he was not a citizen, which made it more difficult for Watson to recognize his
FTCA cause of action.” Watson’s Reply Br. at 35. But making it “more difficult”
for Watson to assert his false imprisonment claim is insufficient. Rather, Watson
must demonstrate that the government’s assertion of his alien status was a
sufficiently “severe” obstacle that “caused” him to miss his filing deadline.
Harper, 648 F.3d at 137.
Watson’s own actions foreclose the argument. He mounted a vigorous
case in the immigration court in the effort to prevent deportation: he obtained
copies of important documents supporting his claim to citizenship, presented
those documents to the immigration judge and other officials, filed a pro se
motion to terminate his removal proceedings, and responded to the
government’s brief in opposition. During his detention, Watson also applied to
USCIS for a certificate of citizenship, proffering documents in support of his
claim of derivative citizenship.
The government’s assertion of Watson’s alienage could not have been so
disheartening as to preclude him from filing an administrative claim for damages
while (at the same time) it did not inhibit him from contesting his citizenship in
an immigration proceeding based on identical facts. The government’s position
therefore did not “cause[] him to miss the original filing deadline” for his
administrative claim. Harper, 648 F.3d at 137.
It is harsh to place the burden on Watson to file a claim for damages while
he is in immigration detention and fighting to prevent his deportation. But the
Supreme Court has stated: “We know of no support . . . for the far-reaching
proposition that equitable tolling is appropriate to avoid the risk of concurrent
13

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litigation.” Wallace, 549 U.S. at 396. The facts of Wallace are demonstrative.
Arrested by Chicago police in 1994, Wallace confessed to murder while in police
custody. Id. at 386. Years later, Illinois state appellate courts vacated the
conviction because Wallace had been arrested without probable cause.
Prosecutors dropped charges in 2002, and a year later Wallace filed a § 1983 suit
seeking damages for false imprisonment. Id. at 387. The Supreme Court held
that the claim for false imprisonment accrued when Wallace appeared before a
magistrate, and because that occurred (many) more than two years before he
filed suit, his claim was untimely.9 Id. at 391-92. Equitable tolling was rejected
notwithstanding that Wallace was either awaiting trial or was imprisoned
pursuant to a then-valid conviction throughout that two-year period. Id. at 39697. Equitable tolling was not warranted even though a district court would have
stayed or dismissed Wallace’s suit pursuant to Heck if Wallace had filed his tort
claim before his conviction had been overturned. Id. at 396-97. In light of
Wallace, we cannot justify the grant of equitable tolling to Watson on the ground
that he was (however understandably) focused on avoiding deportation before
filing his claim for administrative damages.
Watson’s depression cannot justify equitable tolling for similar reasons.
Depression did not prevent him from contesting his citizenship before the
immigration judge, so it could not have prevented him from filing his
administrative claim for damages.
Nor can equitable tolling be premised on Watson’s lack of education, pro
se status, or ignorance of the right to bring a claim. See, e.g., Menominee Indian
Tribe v. United States, 136 S. Ct. 750, 756-57 (2016) (tribe’s mistake of law did not
constitute extraordinary circumstance sufficient to justify equitable tolling);
Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir. 2000) (habeas petitioner’s “pro se
status . . . does not merit equitable tolling”). “Equitable tolling is a rare remedy to

9

The Supreme Court did allow tolling for the time period that Wallace was a
minor. Wallace, 549 U.S. at 390. Such tolling is distinct from equitable tolling,
and has no application to this case.
14

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be applied in unusual circumstances, not a cure-all for an entirely common state
of affairs.”10 Wallace, 549 U.S. at 396.
In sum, Watson’s false imprisonment claim was untimely and cannot be
saved by equitable tolling. We therefore grant the cross-appeal of the United
States on this issue and reverse the judgment of the district court with respect to
the government’s liability on Watson’s false imprisonment claim.
III
The district court dismissed Watson’s malicious prosecution claim on
motion, concluding that the cause of action was foreclosed by 28 U.S.C. § 2680(h),
which bars FTCA claims that arise out of malicious prosecution unless certain
exceptions apply. App’x at 135. One such exception is a claim for malicious
prosecution “with regard to acts or omissions of investigative or law enforcement
officers of the United States government.” 28 U.S.C. § 2680(h). Watson argues
that the district court failed to recognize that his malicious prosecution claim was
based on acts and omissions by ICE and DHS officers, who (Watson contends)
are “investigative or law enforcement officers” within the meaning of § 2680(h).
Though Watson is correct on this point, see Liranzo v. United States, 690 F.3d 78,
91 (2d Cir. 2012), the district court’s factual findings are fatal to his claim.
To recover under the FTCA, a plaintiff must show that a government
employee committed a tort “under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see also 28

10

The dissent thrice adverts to this quoted passage, drawing the invalid
inference that the majority deems the multi-year detention of an American citizen
as an “entirely common state of affairs.” Dissent at 1, 15, 18. What is “an entirely
common sate of affairs” is Watson’s 11th-grade education and the corollary that
he lacks knowledge of the law. The dissent would rely on those characteristics to
toll the limitations period. But those characteristics, commonplace for pro se
litigants (and for a substantial segment of the population), are wholly insufficient
to justify the “rare remedy” of equitable tolling. Wallace, 549 U.S. at 396.
15

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U.S.C. § 2674. The parties agree that New York law applies to this appeal. In
New York, the elements of malicious prosecution are: “(1) the initiation of a
proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause,
and (4) malice.” Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003).
As the New York Court of Appeals has recently reaffirmed, the tort of
malicious prosecution requires proof of both malice and a lack of probable cause,
which are “independent and indispensable elements.” Torres v. Jones, 26 N.Y.3d
742, 761 (2016) (quoting Martin v. City of Albany, 42 N.Y.2d 13, 17 (1977)). To
prove malice, a plaintiff must show that the defendant acted in bad faith, i.e., on
the basis of “a wrong or improper motive, something other than a desire to see
the ends of justice served.” Id. (quoting Nardelli v. Stamberg, 44 N.Y.2d 500, 503
(1978)). After a bench trial on liability with respect to the claims that survived
dismissal, the district court found that Watson’s “harm was caused by a series of
negligent acts by government officials,” and that “[t]here is no evidence of malice
or intent to harm plaintiff.” App’x at 226. Because Watson cannot demonstrate
malice under New York law, his malicious prosecution claim fails.
IV
Watson asserts two distinct claims of negligence. The first claim is that ICE
agents negligently failed to comply with internal regulations for how to
investigate a suspected alien’s assertion of U.S. citizenship. The district court
dismissed, reasoning that Watson was essentially arguing that ICE agents
conducted a “negligent investigation,” which is not actionable under New York
tort law. We review that decision de novo. Fountain v. Karim, 838 F.3d 129, 134
(2d Cir. 2016).
Under the FTCA’s private analogue requirement, see 28 U.S.C. § 1346(b)(1),
“a plaintiff’s cause of action must be comparable to a cause of action against a
private citizen recognized in the jurisdiction where the tort occurred.” McGowan
v. United States, 825 F.3d 118, 125 (2d Cir. 2016) (internal quotation marks
omitted). And “[u]nder New York law, a plaintiff may not recover under general
negligence principles for a claim that law enforcement officers failed to exercise
the appropriate degree of care in effecting an arrest or initiating a prosecution.”
Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994).
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Watson concedes that there is no New York tort of negligent investigation,
but contends that he is asserting the distinct claim that Watson’s injury was
caused by the failure of ICE to follow its own internal directives. A similar recharacterization was attempted in McGowan; like the plaintiff in McGowan,
Watson has “failed to establish that New York law recognizes a freestanding
duty to abide by private regulations.” 825 F.3d at 127. Although failure to abide
by internal regulations may “constitute[] evidence of negligence,” it does not
demonstrate “negligence in itself.” Id. (emphasis in original). Because New York
does not recognize a duty to follow private regulations, Watson cannot ground
his negligence claim on ICE’s failure to follow its own directives regarding how
to pursue an investigation into a subject’s citizenship.11
This negligence claim consequently fails for lack of a private analogue, and
we affirm the district court’s dismissal of that claim.
V
Watson asserts that USCIS negligently delayed providing him with his
certificate of citizenship for more than two years after he was released from
custody. After a bench trial, the district court entered judgment for the
government for two independent reasons. First, Watson failed to demonstrate
that the government acted negligently. Second, “[e]ven if a duty of care was
violated . . . , plaintiff failed to satisfy his burden of establishing damages caused
by the breach.” App’x at 231.
Specifically, with respect to damages, the district court found that
Watson’s “inability to secure work was a result of his criminal history, drug use,
and general lassitude, not his immigration status,” and that there is “no credible
evidence that plaintiff’s post-release depression was caused by the government’s
failure to provide a certificate of citizenship earlier than it did.” Id. Without

11

Watson also contends that this negligence claim is partially based on the
government’s “failure to act.” Watson’s Reply Br. at 24. But the “failure to act”
that Watson alleges is simply a failure to conduct a non-negligent investigation.
New York law does not recognize such a tort. Bernard, 25 F.3d at 102.
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challenging those findings, Watson argues that the district court found that
Watson had suffered other cognizable harm as a result of his delay in receiving his
certificate of citizenship.
Watson evidently relies on the district court’s “Alternative Damages
Award,” in which the district court provided for conditional damages “in the
event that the Court of Appeals concludes th[e] [district] court erred in limiting
damages to . . . false imprisonment.” App’x at 242. With respect to Watson’s
claim for negligent delay of his certificate of citizenship, the Alternative Damages
Award stated that: “If plaintiff is entitled to damages for the period between his
release from ICE custody and his receipt of a certificate of citizenship, he would
be entitled to $1,000 per day for what amounts to a constructive limitation on his
liberty, and an additional $250 per day for the emotional injury caused by the
government’s failure to timely provide the certificate.” Id. (emphasis added).
Watson contends that this passage is an implicit finding that Watson did suffer
cognizable damage as a result of the delayed delivery of the certificate, of a
nature (emotional damages and a constructive limitation on liberty) distinct from
the damages the district court found unavailable in its primary finding on
damages (i.e., that Watson could not show damages for depression or lost
income).
We disagree with Watson’s reading of the district court’s order. The
district court was quite clear that Watson’s failure to demonstrate damages was a
complete bar to recovery on his negligent delay claim: “[e]ven if a duty of care was
violated by the time it took to issue a certificate of citizenship, plaintiff failed to
satisfy his burden of establishing damages caused by the breach.” App’x at 231.
The district court ordered damages to be awarded in the alternative only if we
disagree with the district court’s threshold conclusion that Watson had failed to
prove damages; we do not.
Accordingly, we affirm the district court’s determination with respect to
Watson’s second negligence claim.12

12

In light of our disposition, we have no need to consider the district court’s
conclusion that Watson’s negligence claim was sufficiently analogous to a claim
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CONCLUSION
In sum, there is no doubt that the government botched the investigation
into Watson’s assertion of citizenship, and that as a result a U.S. citizen was held
for years in immigration detention and was nearly deported. Nonetheless, we
must conclude that Watson is not entitled to damages from the government. His
false imprisonment claim was untimely, his malicious prosecution claim does not
demonstrate malice, his “negligent investigation” claim fails for lack of a proper
analogue in state law, and his claim for negligent delivery of a certificate of
citizenship fails because Watson could not show cognizable damages.
Accordingly, the judgment of the district court is reversed on the false
imprisonment claim and affirmed in all other respects. Watson’s appeal
regarding the amount of damages for false imprisonment is dismissed as moot.

recognized by New York tort law to survive the FTCA’s private analogue
requirement.
19