Bey v. Fernandez et al

Filing 44

MEMORANDUM & ORDER: For the reasons stated in the attached Memorandum and Order, Defendants' 42 motion to dismiss for lack of subject matter jurisdiction and 42 motion for summary judgment are both granted. The Clerk of Court is directed to enter judgment for Defendants and terminate this action. Ordered by Judge Pamela K. Chen on 9/5/2018. (Cuevas Ingram, Joanna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TEHUTI BAT’Z ELOHIM BEY,
a/k/a ZACKARY HOWARD BLACK,
#18509-111,
Plaintiff,

NOT FOR PUBLICATION
MEMORANDUM & ORDER
15-CV-7237 (PKC) (ST)

- againstMICHAEL FERNANDEZ, JAMES HOLT,
and THE DEPARTMENT OF HOMELAND
SECURITY,
Defendants.
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PAMELA K. CHEN, United States District Judge:
Plaintiff Tehuti Bat’z Elohim Bey, a/k/a Zackary Howard Black (“Bey” or “Plaintiff”),
appearing pro se and proceeding in forma pauperis, brings this action, pursuant to 42 U.S.C.
§ 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), against Defendants Michael Fernandez (“Fernandez”), James Holt (“Holt”), and the
Department of Homeland Security (“DHS”). Plaintiff alleges violations of his Fourth, Fifth, and
Fourteenth Amendment rights to be free from unreasonable seizure, false arrest, false
imprisonment, and malicious prosecution in connection with his July 2, 2013 arrest and subsequent
prosecution for methylone (“Molly”) related charges. Pending before the Court is Defendants’
motion to dismiss the Amended Complaint in its entirety, with prejudice, pursuant to Fed. R. Civ.
P. 12(b)(1) and (6), or in the alternative, a motion for summary judgment pursuant to Fed. R. Civ.
P. 56. For the reasons stated herein, the Court grants Defendants’ motion for summary judgment,
and dismisses this case.

BACKGROUND
I.

Statement of Facts1
On April 24, 2013, a package from China arrived at a United States Postal Service

(“USPS”) facility at John F. Kennedy International Airport (“JFK”). (Ex. 1 at ECF 6, ¶ 2.)2 Upon
inspecting the package, custom agents at JFK found methylone (“Molly”). (Ex. 1 at ECF 6, ¶ 3.)
On April 29, 2013, DHS Homeland Security Investigations (“HSI”) arranged a controlled delivery
of the package to a United Parcel Service (“UPS”) store on 115th Street between Broadway and
Riverside Drive in Manhattan. (Id. at ¶ 4.)
On April 24, 2013, Plaintiff rented a blue Mustang from Thrifty Rental Car Company
(“Thrifty”) in Windsor Lock, Connecticut. (FAC and SAC, at ¶ 2.) Five days later, on April 29,
Plaintiff drove the blue Mustang to the aforementioned UPS store with two other individuals.
(FAC and SAC, at ¶ 1.) Plaintiff exited the vehicle and went into the UPS store, as the other two
individuals drove the vehicle around the block. (Ex. 1 at ECF 8, ¶¶ 9-10.) Shortly thereafter, one
of the individuals (“Individual 1”) left the car and entered the UPS store. (Id. at ¶¶ 10-11.) Plaintiff
and Individual 1 did not acknowledge each other in the store. (Id. at ¶ 11.) Plaintiff left the UPS
store first and saw several federal agents pursue Individual 1 after he left the store. (FAC and
SAC, at ¶¶ 12-19; Ex. 1 at ECF 9, ¶ 12.) Upon witnessing this, Plaintiff turned and left the area
on foot. (Id.) Plaintiff abandoned the blue Mustang at the scene and traveled to California. (FAC
and SAC, at ¶¶ 18-20, 25, 32-34.)

Pursuant to Local Civ. R. 56.1, these facts are taken from Plaintiff’s First and Second
Amended Complaints (“FAC”, Dkt. 20, and “SAC”, Dkt. 32), Plaintiff’s Exhibit 1 (“Ex. 1”, Dkt.
19-1, at ECF 5-11), and Defendants’ Brief (“Defs.’ Br.”, Dkt. 42-2). Exhibit 1 contains the sealed
Complaint and Affidavit in Support of the Arrest Warrant against Tehuti Bat’z Elohim Bey, a/k/a
Zackary Howard Black, in U.S. v. Black, No. 13-CR-316 (DLI)(CLP).
1

“ECF” refers to the pagination generated by the CM/ECF docketing system and not the
document’s internal pagination.
2

2

Defendant Fernandez, an HSI Special Agent, was present at the scene of the UPS store on
April 29, 2013, conducting surveillance during the controlled delivery. Acting as lead agent,
Fernandez directed Defendant Holt, another HSI Special Agent, to conduct a search of the blue
Mustang after observing Plaintiff and the other two individuals arrive on the scene in the Mustang,
and after observing the controlled delivery. (Ex. 1 at ECF 8, ¶¶ 9-10, 13; FAC and SAC at ¶¶ 2227.) A Thrifty Rental Car Company receipt for the vehicle was recovered during the search. (FAC
and SAC at ¶ 23.)
On June 10, 2013, Defendant Fernandez submitted a sworn affidavit detailing the
controlled operation at the UPS store on April 29, 2013. (Ex. 1 at ECF 5-11.) The affidavit stated
that Plaintiff’s companions were arrested at the scene, but that Plaintiff had “evaded arrest and left
the scene on foot.” (Id. at ECF 9, ¶ 12.) Defendant Fernandez indicated in the affidavit that he
was present at the UPS store conducting surveillance during the controlled delivery and had
confirmed Plaintiff’s presence at the UPS store by reviewing surveillance video from the store and
comparing both his personal observations and the surveillance video to Plaintiff’s passport and
driver’s license. (Id. at ¶ 13.)
On June 10, 2013, based on Defendant Fernandez’s affidavit, the Honorable Vera M.
Scanlon, Magistrate Judge in the Eastern District of New York, signed a warrant for Plaintiff’s
arrest. (United States v. Black, 13-CR-316 (DLI)(CLP), Dkt. 1.) On July 2, 2013, Plaintiff was
arrested in California and extradited to the Eastern District of New York. (FAC and SAC at ¶¶ 32,
34.) Plaintiff was charged with four counts of Molly-related trafficking crimes: conspiracy to
import, importation, conspiracy to possess with intent to distribute, and attempted possession with
intent to distribute methylone or “Molly”. (Black, 13-CR-316, Dkt. 13.)3 Two of the four Molly-

The controlled substance “3,4-methylenedioxy-N-methylcathinone”, also referred to as
“methylone” in the original and superseding indictments, was referred to colloquially in Plaintiff’s
criminal trial as “Molly”, a Schedule I controlled substance under 21 U.S.C. §§ 841(a)(1) and 846.
3

3

related charges were subsequently dropped from the indictment, but charges relating to other drugtrafficking activity, were added. (Id., Dkts. 55, 120.) At trial, Plaintiff was acquitted of the
remaining two Molly-related charges, but convicted of conspiracy to distribute and possess with
intent to distribute marijuana, and conspiracy to commit money laundering. (Id., Dkts. 176, 179,
207.) On May 18, 2017, the United States Court of Appeals for the Second Circuit affirmed
Plaintiff’s convictions. (Id., Dkt. 239.)
II.

Procedural History
On October 7, 2015, Plaintiff filed his initial pro se complaint in this action against

Defendants Fernandez and Holt, Assistant United States Attorney (“AUSA”) Kevin Trowel, and
an unidentified Thrifty employee (John Doe) for violating his constitutional rights under the
Fourth, Fifth and Fourteenth Amendments, in connection with his arrest and prosecution for the
Molly-related charges.4 (Dkt. 1 at ¶ 43.) In response to the Court’s March 2, 2016 order dismissing
the complaint without prejudice (Dkt. 16), Plaintiff filed the FAC on June 13, 2016 (Dkt. 20).5 On
December 13, 2016, Plaintiff filed a motion to amend the FAC (Dkt. 25) and filed the SAC (Dkt.
32). The Court granted Plaintiff’s Motion to amend the FAC and file the SAC on December 21,

(See Black, 13-CR-316, Dkts. 13, 55, 120, and Dkt. 215, Criminal Trial Transcript, 27:16-21
(“Methylone is an illegal drug that’s chemically similar to MDMA, the main ingredient in the club
drug ec[s]tasy, and it goes by the street name Molly.”).)
4

Plaintiff does not allege any claims in this action with regard to his prosecution and
conviction on the money laundering and marijuana conspiracy charges. (See Black, 13-CR-316,
Dkts. 55, 120, 176, 179, 207, and 239.)
5

Plaintiff amended the Complaint to name Fernandez and Holt as the only Defendants.
(Dkt. 20 at ¶ 3.) In accordance with the Court’s May 31, 2017 Memorandum and Order (Dkt. 28),
Defendants were served with Plaintiff’s Amended Complaint dated June 13, 2016 (Dkt. 20). The
Court denied Plaintiff’s request to stay this action pending disposition of a Federal Tort Claims
Act administrative claim that he purportedly submitted to the Department of Homeland Security
regarding the same set of underlying events. (Dkt. 28.) At that time, the Court also notified
Plaintiff that he could seek leave to further amend his complaint upon proper exhaustion of any
FTCA claims (id.), but Plaintiff has not done so.
4

2016. (Dkt. 26.) Although the SAC technically supersedes the FAC, in light of Plaintiff’s pro se
status, the Court construes Plaintiff’s Operative Amended Complaint to include both his FAC and
SAC. (Dkts. 20, 32.)
Defendants served their motion to dismiss, supporting documents, and required notices
pursuant to Local Civ. R. 12.1 and 56.2 on Plaintiff on January 26, 2018. (Dkts. 40, 42, 42-2, 423.) Plaintiff failed to serve his response. On March 13, 2018, Defendants requested that the Court
deem their motion to dismiss “unopposed and fully submitted, or alternatively, that Plaintiff be
provided with a brief extension of time to serve and file his opposition.” (Dkt. 41.) The Court
granted Defendants’ leave to file the motion to dismiss, but also granted Plaintiff an additional
thirty days to file a response, with the warning that if he failed to do so, “his opposition will be
deemed forfeited.” (March 13, 2018 ECF Order.) Defendants subsequently filed their motion to
dismiss for lack of jurisdiction and failure to state a claim under Fed. R. Civ. P. 12(b)(1) and
12(b)(6), respectively. (Dkt. 42.) On May 3, 2018, the Court found that Plaintiff had forfeited his
right to file an opposition due to his failure to comply with the Court’s March 13, 2018 order, and
declared Defendants’ motion to be fully briefed. (See May 3, 2018 ECF Order.)
STANDARDS OF REVIEW
I.

Federal Rule of Civil Procedure 12(b)(1)
A claim must be dismissed under Fed. R. Civ. P. 12(b)(1) for lack of subject matter

jurisdiction “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). “Where jurisdictional facts are
placed in dispute, the court has the power and obligation to decide issues of fact by reference to
evidence outside the pleadings, such as affidavits,” Tandon v. Captain’s Cove Marina of
Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (quoting APWU v. Potter, 343 F.3d 619, 627
(2d Cir. 2003)), in which case, “the party asserting subject matter jurisdiction ‘has the burden of

5

proving by a preponderance of the evidence that it exists.’ ” Id. (quoting Makarova, 201 F.3d at
113).
As a preliminary matter, in the Second Circuit, a Rule 12(b)(1) motion generally “cannot
be converted into a Rule 56 motion.” Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.
1986); see also Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004) (same); Ireland v. Suffolk
Cnty. of N.Y., 242 F. Supp. 2d 178, 185 (E.D.N.Y. 2003) (same). “When challenging subject
matter jurisdiction under Rule 12(b)(1), defendants may present evidence ‘by affidavit or
otherwise’ without converting their motion into one for summary judgment.” Xian Yong Zeng on
behalf of Tie Liu v. Kerry, 266 F. Supp. 3d 645, 647 (E.D.N.Y. 2017) (quoting Kamen, 791 F.2d
at 1011 (citation omitted)); see also All. For Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436
F.3d 82, 88 n.8 (2d Cir. 2006) (“The presentation of affidavits on a motion under Rule 12(b)(1) . .
. does not convert the motion into a motion for summary judgment under Rule 56.”).
II.

Federal Rule of Civil Procedure 56
Summary judgment pursuant to Fed. R. Civ. P. 56 “is warranted when, after construing the

evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences
in its favor, there is no genuine issue as to any material fact.” Sledge v. Kooi, 564 F.3d 105, 108
(2d Cir. 2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 255 (1986)). The
party opposing summary judgment must set forth evidence demonstrating a genuine issue for trial,
and may not rely solely on allegations in its pleadings. Salahuddin v. Goord, 467 F.3d 263, 273
(2d Cir. 2006). With respect to Defendants’ summary judgment motion, the Court construes the
facts in the light most favorable to the nonmoving party and resolves all ambiguities and draws all
reasonable inferences against the movant. Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.
2008). Nonetheless, “conclusory statement, conjecture, or speculation by the party resisting the
motion will not defeat summary judgment.” Kulak v. City of N.Y., 88 F.3d 63, 71 (2d Cir. 1996).

6

When a non-movant fails to respond to a motion for summary judgment, “[t]he fact that
there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted
automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, the Court must (1)
determine what material facts, if any, are disputed in the record presented on the motion, and (2)
assure itself that, based on those undisputed material facts, the law indeed warrants judgment for
the moving party. Id.; see Vermont Teddy Bear Co. v. 1–800 Beargram Co., 373 F.3d 241, 242
(2d Cir. 2004) (“Fed. R. Civ. P. 56, governing summary judgment motions, does not embrace
default judgment principles. . . . Even when a motion for summary judgment is unopposed, the
district court is not relieved of its duty to decide whether the movant is entitled to judgment as a
matter of law.”). In addition, “[a]lthough the failure to respond may allow the district court to
accept the movant’s factual assertions as true, see Local Civ. R. 56.2,” Vermont Teddy Bear, 373
F.3d at 246, the district court “must be satisfied that the citation to evidence in the record supports
the assertion.” Id. at 244.
DISCUSSION
As an initial matter, the Court liberally construes Plaintiff’s pro se Fourth Amendment
false arrest, Fifth Amendment malicious prosecution, and Fourteenth Amendment due process
claims against Defendants Fernandez and Holt as an action pursuant to Bivens, 403 U.S. 388.
Bivens governs violations by persons acting under color of federal law and is analogous to 42
U.S.C. § 1983, which governs actions against persons acting under color of state law. See Tavarez
v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) (“[F]ederal courts have typically incorporated § 1983 law
into Bivens actions.”); see also Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) (“A plaintiff
bringing a claim under Bivens must allege that he has been deprived of a constitutional right by a
federal agent acting under color of federal authority.”). “In a Bivens action, alleged victims of
constitutional violations by federal officials may recover damages despite the absence of any

7

statute specifically conferring such a cause of action.” Robinson v. Overseas Military Sales Corp.,
21 F.3d 502, 510 (2d Cir. 1994).
I.

Defendants’ Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1)
A.

Plaintiff’s Claims Against DHS Lack Subject Matter Jurisdiction

In his Second Amended Complaint, Plaintiff alleges that Defendant DHS is “directly and
vicariously liable” for the actions of Defendants Fernandez and Holt. (SAC, ¶ 41.) DHS is a
federal agency and is thus immune from this action. “A Bivens claim against a federal agency is
precluded, as an action against a federal agency is essentially a suit against the United States, and
Bivens actions against the United States [are] barred under the doctrine of sovereign immunity.”
Gault v. Social Security Administration, No. 17-CV-703 (PKC), 2017 WL 1655192, at *2
(E.D.N.Y. May 2, 2017); see also Robinson, 21 F.3d at 510. DHS has not waived their sovereign
immunity, nor has Plaintiff alleged any such waiver in his FAC or SAC. (Defs.’ Br., Dkt. 42-2, at
ECF 13); see also Purcell for Estate of Tyree v. Bureau of Alcohol, Tobacco, & Firearms, No. 17CV-2742 (PKC)(RLM), 2017 WL 3700894, at *3 (E.D.N.Y. Aug. 25, 2017) (dismissing claims
against federal Defendants because they did not waive their sovereign immunity and Plaintiff
failed to raise any applicable waiver). Accordingly, DHS is immune from suit, and any claims for
damages against it must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
B.

Plaintiff’s Due Process Claims Against Defendants Fernandez and Holt
Lack Subject Matter Jurisdiction

Plaintiff’s due process claims under the Fourteenth Amendment also fail as a matter of law.
This Circuit has consistently held that a due process claim under the Fourteenth Amendment “is
untenable where the allegation is against federal agents acting under color of federal law.”
Mahoney v. Nat’l Org. for Women, 681 F. Supp. 129, 132 n.6 (D. Conn. 1987); see also Shapiro
v. Goldman, No. 14-CV-10119 (NRB), 2016 WL 4371741, at *15 (S.D.N.Y. Aug. 15, 2016)
(“[P]laintiff cannot assert a due process claim against the Government employee defendants under
8

the Fourteenth Amendment, which constrains the conduct of states, not the Federal Government.”).
Because Defendant Fernandez and Holt are federal agents who were acting under color of federal
law, the Court lacks subject matter jurisdiction for any due process claim against them.
II.

Conversion of Defendants’ Rule 12(b)(6) Motion to Dismiss to a Rule 56 Motion for
Summary Judgment
On January 26, 2018, Defendants properly served Plaintiff with a motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(1), and a motion to dismiss under 12(b)(6), or in the alternative,
a motion for summary judgment, pursuant to Fed. R. Civ. P. 56. (Dkt. 40.) “If, on a motion under
Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P.
12(d). Attached to Defendants’ motion was the required Notice under Local Civ. R. 12.1,
informing Plaintiff that if he failed to respond to the motion on time by filing sworn affidavits as
required by Rule 56(c) and/or other supporting documents, the Court could convert Defendants’
12(b)(6) motion into one for summary judgment under Fed. R. Civ. P. 56. (Dkts. 42, 42-3); see
McPherson v. Coombe, 174 F.3d 276, 281 (2d Cir. 1999) (“[A] district court need not advise a pro
se litigant as to the nature of summary judgment where an opposing party has already provided the
litigant with the requisite notice . . . or where the record otherwise makes clear that the litigant
understood the nature and consequences of summary judgment.”) (quoting Vital v. Interfaith
Medical Ctr., 168 F.3d 615, 621 (2d Cir. 1999)); see also Groden v. Random House, Inc., 61 F.3d
1045, 1052 (2d Cir. 1995) (allowing the Court to convert a motion to dismiss into a motion for
summary judgment where there was “sufficient notice to [the] opposing party and an opportunity
for the party to respond”). Because Plaintiff has failed to respond to Defendants’ motion, despite
having received the required Local Civ. R. 12.1 Notice, the Court converts Defendants’ 12(b)(6)
motion into one for summary judgment. See In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir.

9

1985) (conversion is appropriate where non-moving party “should reasonably have recognized the
possibility that the motion might be converted into one for summary judgment”).
A.

Unreasonable Seizure and False Arrest/False Imprisonment

Plaintiff asserts a Bivens claim against Defendants Fernandez and Holt for unreasonable
seizure and false arrest/false imprisonment6 in violation of the Fourth Amendment. Fourth
Amendment “[c]laims for false arrest, whether brought under § 1983, pursuant to Bivens, or under
state law, are analyzed pursuant to the same standards as the applicable state law’s false arrest
tort.” Nzegwu v. Friedman, 605 F. App’x 27, 29 (2d Cir. 2015). A plaintiff alleging false arrest
under Bivens and applicable standards in New York must therefore establish that “(1) the defendant
intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did
not consent to the confinement and (4) the confinement was not otherwise privileged.” Ackerson
v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (per curiam) (quoting Broughton v. State
of New York, 37 N.Y.2d 451, 456 (1975)). A confinement is privileged if probable cause existed
at the time of the arrest. Nzegwu, 605 F. App’x at 29 (citing Jocks v. Tavernier, 316 F.3d 128, 135
(2d. Cir. 2003)). Here, Defendants do not dispute that Plaintiff has established the first three
elements of his false arrest claim. Plaintiff’s claim, however, fails on the fourth element, because
probable cause existed for his arrest on the Molly-related charges.
1. Probable Cause
The Second Circuit has held that probable cause to arrest is a complete defense to a false
arrest claim. See Ackerson, 702 F.3d at 19; see also Gonzalez v. United States, No. 16-CV-1494
(KAM), 2018 WL 1597384, at *10 (Mar. 31, 2018) (“Probable cause is a complete defense to both

“Under New York law, false arrest is considered to be a species of false imprisonment,
and the two claims have identical elements.” Mejia v. City of N.Y., 119 F. Supp. 2d 232, 252
(E.D.N.Y. 2000).
6

10

Fourth Amendment and New York State law claims of false imprisonment.”) (citing Weyant v.
Okst, 101 F.3d 845, 852 (1996)). Probable cause to arrest exists where the evidence available is
“sufficient to warrant a person of reasonable caution in the belief that an offense has been
committed by the person to be arrested.” Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir.
1995) (quoting O’Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir. 1993)). As the Supreme
Court has clearly delineated, probable cause “is not a high bar” because it “requires only a
probability or substantial chance of criminal activity, not an actual showing of such activity.” D.C.
v. Wesby, 138 S. Ct. 577, 586 (2018).
a. Valid Warrant Presumption
Plaintiff was arrested pursuant to an arrest warrant issued by Magistrate Judge Scanlon in
the Eastern District of New York. “Ordinarily, an arrest or search pursuant to a warrant issued by
a neutral magistrate is presumed reasonable because such warrants may issue only upon a showing
of probable cause.” Walczyk v. Rio, 496 F.3d 139, 155-56 (2d Cir. 2007); Golino v. City of New
Haven, 950 F.2d 864, 870 (2d Cir. 1991) (same). A party challenging a warrant on the ground that
it was issued on less than probable cause thus bears a “heavy burden”. Golino, 950 F.2d at 870;
see also Rivera v. U.S., 928 F.2d 592, 602 (2d Cir. 1991).
A plaintiff who seeks to challenge the validity of the warrant must make a “substantial
preliminary showing” that (1) the affiant knowingly and intentionally, or with a reckless disregard
for the truth, made false statements or omissions in his application for a warrant, and (2) such
statements or omissions were necessary or otherwise essential to the finding of probable cause.
Rivera, 928 F.2d at 604 (quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978)); see also
Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994). “Unsupported conclusory allegations of
falsehood or material omission” cannot support a challenge to the validity of the warrant; instead,

11

the plaintiff must make “specific allegations” supported by an offer of proof. Velardi, 40 F.3d at
573.
b. Plaintiff Fails to Rebut the Presumption of Probable Cause
Plaintiff has failed to show that the arrest warrant issued by Judge Scanlon was a “facially
invalid or that it was procured through fraud, perjury, or the misrepresentation or falsification of
evidence.” Vasquez v. Reilly, No. 15-CV-9528 (KMK), 2017 WL 946306, at *7 (S.D.N.Y. Mar.
9, 2017). Thus, Plaintiff cannot overcome the presumption that probable cause existed for his
arrest. See id. Plaintiff does not dispute the facts related to his involvement leading to the
controlled delivery in his FAC or SAC. Instead, he alleges that Defendants mischaracterized
Plaintiff’s conduct on April 29, 2013 as an “evasion”, and that Defendant Fernandez “maliciously”
falsified the rental date of the Mustang, i.e., stating that it was “on or about April 29, 2013”, when
it was April 24, 2013. (FAC and SAC at ¶¶ 29-31.) Defendants respond by arguing that (1)
Defendant Fernandez’s affidavit accurately characterized Plaintiff as having evaded and fled law
enforcement on April 29, 2013, and (2) even if the affidavit incorrectly identified the rental date
as April 29, 2013, this error was of no legal consequence with regard to Judge Scanlon’s finding
of probable cause. (Defs.’ Br. at ECF 22-23.)
First, Plaintiff cannot establish that Defendant Fernandez’s statement that Plaintiff “evaded
arrest and left the scene on foot” (Ex. 1 at ECF 9, ¶ 12) was false or inaccurate. It is undisputed
that Plaintiff entered the UPS store on April 29, 2013; that he walked away from the scene after
seeing federal agents move in to arrest his companion, Individual 1; that Plaintiff abandoned his
rented Mustang, leaving it double-parked in front of the UPS store; and that he left New York soon
thereafter for California, where he was arrested on July 2, 2013. (FAC and SAC at ¶¶ 2-3, 16-20,
25, 32; see also Black, 13-CR-316, Dkt. 39, Transcript of Criminal Cause for Arraignment, at 5:611.) Based on the totality of the circumstances, see Manganiello v. City of N.Y., 612 F.3d 149, 161

12

(2d Cir. 2010), Fernandez’s characterization of Plaintiff as having evaded arrest by leaving the
scene on foot on April 29, 2013 was fair and accurate.
Second, Defendant Fernandez’s statement regarding the date on which Plaintiff rented the
Mustang, even if inaccurate, is immaterial to the probable cause determination. The fact that the
rental date was identified in the affidavit as April 29, 2013, as opposed to April 24, 2013, does not
undermine the existence of probable cause, since both dates are consistent with the conclusion that
Plaintiff drove the Mustang to the UPS store on April 29, 2013 to pick up the shipment of Molly.
Furthermore, there is no evidence that any error with respect to the rental date was the product of
malice or a reckless disregard for the truth. Thus, Defendant Fernandez’s alleged misstatement
regarding the rental date did not amount to material “fraud, perjury, or the misrepresentation or
falsification of evidence.” Vasquez, 2017 WL 946306, at *7.
Plaintiff, therefore, cannot demonstrate that Defendant Fernandez’s affidavit contained
false or misleading statements, and has failed to rebut the presumption of probable cause in this
case. Rivera, 928 F.2d at 604. Because “[t]he existence of probable cause is an absolute defense”
to Plaintiff’s claim of false arrest, Valdez v. U.S., No. 08-CV- 4424 (RPP), 2009 WL 2365549, at
*8 (S.D.N.Y. July 31, 2009), this claim is dismissed. See Escalera v. Lunn, 361 F.3d 737, 743 (2d
Cir. 2004) (“Because probable cause to arrest constitutes justification, there can be no claim for
false arrest where the arresting officer had probable cause to arrest the plaintiff.”).
B.

Malicious Prosecution

Plaintiff was prosecuted in the Eastern District of New York, and therefore New York law
applies to his malicious prosecution claim under 28 U.S.C. § 1346(b)(1). For a malicious
prosecution claim to stand, Plaintiff must show: “(1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack of
probable cause for commencing the proceeding; and (4) actual malice as a motivation for

13

defendant’s actions.” Manganiello, 612 F.3d at 161 (quoting Murphy v. Lynn, 118 F.3d 938, 947
(2d Cir. 1997)). Plaintiff must also allege some “post-arraignment deprivation of liberty” that is
made “pursuant to legal process.” Singer, 63 F.3d at 117. The Second Circuit has held that New
York law pertaining to probable cause is the controlling standard for a Bivens action for malicious
prosecution. See Green v. Montgomery, 219 F.3d 52, 60 (2d Cir. 2000). “[T]he existence of
probable cause is a complete defense to a claim of malicious prosecution in New York.” Savino
v. City of N.Y., 331 F.3d 63, 72 (2d Cir. 2003).7
In this case, Plaintiff was indicted by a grand jury (Black, 13-CR-316, Dkts. 13, 55, 120).
It is well established that an “indictment by a grand jury creates a presumption of probable cause.”
Savino, 331 F.3d at 67. This presumption can only be challenged if “a jury could reasonably find
that the indictment was secured through bad faith or perjury”. Boyd v. City of N.Y., 336 F.3d 72,
77 (2d Cir. 2003). Plaintiff provides no evidence, and identifies no instances, of bad faith or false
testimony presented by Defendants in the grand jury in connection with the original and
superseding indictments returned against Plaintiff. (See Black, 13-CR-316, Dkts. 13, 55, 120.)
Plaintiff thus fails to rebut the presumption of probable cause based on his indictment, Savino, 331
F.3d at 72, and his malicious prosecution claim must be dismissed.

Given the undisputed facts underlying Plaintiff’s arrest, the Court finds that Defendants
would also be entitled to summary judgment with regard to qualified immunity, given the existence
of a valid arrest warrant. “Only where the warrant application is so lacking in indicia of probable
cause as to render official belief in its existence unreasonable [, United States v. Leon, 468 U.S.
897, 923 (1984)], will the shield of immunity be lost.” Magnotti v. Kuntz, 918 F.2d 364, 368 (2d
Cir. 1990) (quoting Malley v. Briggs, 475 U.S. 335, 344–45 (1986)). Here, the warrant application
did not lack indicia of probable cause, and thus Defendants would be entitled to qualified immunity
based on its issuance.
7

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CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss and motion for summary
judgment are granted. The Clerk of Court is directed to enter judgment for Defendants and
terminate this action.
SO ORDERED.

/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge

Dated: September 5, 2018
Brooklyn, New York

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