Salemo v. Hasting et al
Filing
40
OPINION re: 20 MOTION to Dismiss filed by Marcello Bravo, Bethanne Dinkins, Maureen Murphy, 30 MOTION for Reconsideration filed by George Salemo. George Salemo, proceeding pro se, brings numerous constitutional and other tor claims arising from h is investigation and eventual arrest by U.S. Secret Service Special Agent Maureen Murphy, U.S. Department of Agriculture Assistant Special Agent-in-Charge Bethanne Dinkins, and U.S. Probation Officer Marcela Bravo. The remaining defendants move to di smiss the complaint. There motion is granted. Defendants' motion to dismiss is granted and, accordingly, Salemo's complaint is dismissed in its entirety. Salemo's Motion for Reconsideration is denied. This opinion resolves the motions listed under document numbers 20 and 30 on the docket of case 11 Civ. 2525. (Signed by Judge Thomas P. Griesa on 9/27/2012) (ja)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
GEORGE SALEMO
:
Plaintiff,
:
:
v.
:
:
UNITED STATES SECRET SERVICE
:
AGENT MAUREEN MURPHY, et al.,
:
:
Defendants.
:
:
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11 Civ. 2525
OPINION
George Salemo, proceeding pro se, brings numerous constitutional and
other tort claims arising from his investigation and eventual arrest by U.S.
Secret Service Special Agent Maureen Murphy, U.S. Department of Agriculture
Assistant Special Agent-in-Charge Bethanne Dinkins, and U.S. Probation
Officer Marcela Bravo.
Salemo brings this action against several federal officers and agencies. The
action originally included as defendants Warden Hastings of the Metropolitan
Correctional Center (“MCC”), the Federal Bureau of Prisons, “United States
Marshals Service SDNY,” “Chief United States Marshal,” Special Agent Murphy,
ASAC Dinkins, and Officer Bravo. The complaint was previously dismissed as
to the Federal Bureau of Prisons, Warden Hastings, “United States Marshals
1
Service SDNY,” and “Chief United States Marshal”, leaving Special Agent
Murphy, ASAC Dinkins, and Officer Bravo as defendants.
The remaining defendants move to dismiss the complaint. Their motion is
granted.
Background
Salemo’s complaint provides little context for his allegations but, drawing
from the complaint as well as the exhibits attached to Salemo’s opposition, a
somewhat clearer picture emerges:
Salemo was suspected (and ultimately convicted) of presenting a forged
$2.25 Million U.S.D.A. Farm Service Agency grant agreement as collateral for a
loan to be paid to the Global Alliance for International Advancement (“GAIA”).
Salemo claims that GAIA was a non-profit corporation of which he served as
CEO.
But Salemo alleges that defendants pursued their investigation recklessly,
repeatedly abusing their powers due to their personal contempt for him. In so
doing, the officers are said to have taken and encouraged others to take
documents and hard drives from GAIA headquarters without a warrant.
Defendants then allegedly replaced Salemo in his role at GAIA with another
GAIA employee, Troy Sargent, and then had Salemo locked out of his own
offices. Defendants then allegedly allowed Sargent and others to gain
unauthorized access to GAIA’s bank accounts. When Salemo attempted to
2
initiate civil and criminal proceedings against Sargent and other GAIA
employees, he claims that defendants interfered.
Salemo also alleges that defendants orchestrated attacks on his reputation:
he claims that they authorized Sargent to contact Salemo’s business associates
as well as the website Rip-Off Report, informing them that Salemo’s enterprises
were fraudulent.
This investigation, however, was not Salemo’s first legal problem; he had
previously been convicted of other financial crimes and was under supervised
release when these events took place. In the course of defendants’
investigation, it was discovered that Salemo was violating the terms of his
release and he was arrested. Ultimately, Salemo was sentenced to an
additional 15 months in prison for this violation of his supervised release. And
when these 15 months were over, the defendants were ready to arrest him in
connection with the fraud they had been investigating.
Therefore, when Salemo was formally released from the MCC, instead of
being actually freed as he had expected, he was delivered into the custody of
the U.S. Marshals and finally arrested by defendants. Salemo claims, however,
that in the course of his arrest defendants conspired to have him illegally
detained for approximately two hours before actually arresting him.
Salemo claims that these events ultimately culminated in GAIA’s
bankruptcy. He seeks compensatory and punitive damages in connection with
these alleged constitutional violations totaling $55 million.
3
Procedural History
Salemo initiated this action by filing a form civil complaint on April 6,
2011. On May 9, 2011, Salemo’s claims against the United States Marshalls
Service SDNY, the Bureau of Prisons (“BOP”), Warden Hastings, and the “Chief
United States Marshall” were dismissed pursuant to 28 U.S.C. § 1915A.
The instant motion to dismiss Salemo’s complaint was filed by the
remaining defendants on November 30, 2011. Salemo then, on February 24,
2012, filed his opposition to defendants’ motion to dismiss as well as a motion
for reconsideration of the May 9, 2011 order dismissing his complaint in part.
Defendants replied to Salemo’s opposition on March 28, 2012 to which Salemo
further replied on July 19, 2012.
Salemo’s opposition and reply, however, include allegations not included in
his original complaint. His opposition, in particular, consists of a 36 page
statement of facts. In general, a party is not permitted to use its reply to a
dispositive motion as a vehicle for amending its complaint. See Wright v. Ernst
& Young LLP, 152 F.3d 169, 178 (2d Cir.1998). And although courts afford pro
se plaintiffs a fair measure of procedural latitude, see, e.g., Graham v.
Lewinsky, 848 F.2d 342, 344 (2d Cir. 1988), this latitude typically does not
extend so far as permitting a plaintiff to supplement the claims in his
complaint with additional allegations in his motion papers. See, e.g., Shah v.
Helen Hayes Hosp., 252 F. App’x 364, 366 (2d Cir. Oct 29, 2007).
4
Therefore, though a pro se plaintiff’s supplemental statement might be
considered, the court declines to do so here because it is so excessively lengthy
and because it is a confused mixture of claims against federal officers and
various private parties not named in the complaint. A pro se plaintiff is
certainly entitled to a liberal construction of his pleadings, but Salemo’s
supplemental statement goes beyond what even a pro se plaintiff can be
permitted.
Therefore, only the allegations contained in Salemo’s April 6, 2011
complaint will be considered on the current motion which is a motion
addressed to that complaint. However, on one point, to be noted later in this
opinion, the court will rely on an admission made in Salemo’s opposition brief,
supported by documents he provides.
The Complaint
Salemo’s complaint presents a lengthy narrative describing numerous
alleged constitutional violations and other torts perpetrated against him by
defendants.
Salemo’s first claim relates to his detention by defendants after he was
nominally released from the MCC November 19, 2010, after completing a 15month sentence for violating the terms of his supervised release. After signing
his release papers, Salemo was informed that he was not in fact free to leave
but that, instead, he was to be transported to the courthouse with other
5
inmates. He alleges that he was then locked in a room at the MCC for
approximately 45 minutes and, after he was transported to the courthouse,
held in a cell for another 30 minutes.
Eventually, Salemo was taken to Special Agent Murphy who informed him
that he was under arrest. Generously read, Salemo’s complaint alleges that
Special Agent Murphy and ASAC Dinkins orchestrated these events with the
cooperation of unnamed BOP officials.
Salemo alleges that he was held for a total of approximately two hours,
during which time he claims that officers informed him that neither a detainer
nor a warrant had been issued for his detention. The court takes judicial
notice, however, that this statement, if it was made, was incorrect: a warrant
for Salemo’s arrest had indeed been issued the day before.
The next count in the complaint relates to defendants’ alleged removal of
documents from GAIA offices. In May 2009 Salemo alleges that a GAIA
employee, Troy Sargent, took documents from GAIA offices with defendants’
encouragement, and delivered them to defendants. The defendants then, a few
days later, came to the GAIA offices themselves where they interviewed
employees and removed additional files, hard drives, and other evidence.
During and subsequent to this search of the GAIA offices, Salemo also
claims that GAIA employees looted and vandalized the offices and (with
defendants’ knowledge) gained unauthorized access to GAIA’s online banking
accounts. When Salemo attempted to bring civil and criminal actions against
6
GAIA employees in connection with these events, Salemo claims that
defendants interfered by contacting the attorneys involved and claiming to have
taken over the cases. He does not, however, provide any other information
about the disposition of these cases.
Additionally, subsequent to the search of the premises, Salemo claims that
Special Agent Murphy somehow installed Sargent as a new officer of GAIA (and
another organization operating out of the same offices, American Unclaimed
Properties, Inc.) and arranged for Salemo to be locked out of the GAIA offices.
Salemo claims that not only was he the C.E.O. of GAIA, but that he also had
personally guaranteed the lease of the premises. He does not claim, however,
that he was the lessee.
Salemo finally alleges that Sargent, with defendants’ authorization, emailed
a number of Salemo’s business associates alerting them to Salemo’s criminal
activity and inviting them to contact defendants for more information.
Similarly, Salemo alleges that on another occasion, sometime in the first
quarter of 2010, defendants in some sense authorized Sargent to make a post
on the website Ripoff Report inviting the Internet-browsing public to contact
ASAC Dinkins or Special Agent Murphy about Salemo’s criminal activity.
Salemo claims that his business, GAIA, has ultimately gone bankrupt as a
result of these events.
7
Discussion
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, a complaint must plead sufficient facts to state a claim for
relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 677-78
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Where a plaintiff
is proceeding pro se, the complaint is held to a less stringent standard, and the
court must construe the plaintiff's pleadings liberally. Erickson v. Pardus, 551
U.S. 89, 94 (2007); Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006). In
deciding a motion under Rule 12(b)(6), a court must accept as true the facts
alleged in the complaint, drawing all reasonable inferences in the plaintiff's
favor, and may consider documents attached to the complaint, incorporated by
reference into the complaint, or known to and relied on by the plaintiff in
bringing the suit. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98
(2d Cir. 2007). Though a court ordinarily will not allow a plaintiff to
supplement his pleadings through his motion papers in response to a motion
to dismiss, the court may take cognizance of admissions made in an opposition
brief that are inconsistent with the allegations in the complaint. See, e.g.,
Nuevo Mundo Holdings v. Pricewaterhouse Coopers LLP, 03 Civ. 0613, 2004
WL 112948 (S.D.N.Y. Jan. 22, 2004); Owens v. Morgan Stanly & Co., Inc., 96
Civ. 9747, 1997 WL 403454 (S.D.N.Y. July 17, 1997).
A motion under Rule 12(b)(6) should be granted where “the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.”
8
Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985) (internal quotations
omitted). It should also be granted where an affirmative defense or other
reason barring relief is apparent from the face of the complaint. Conopco, Inc.
v. Roll Int'l et al., 231 F.3d 82, 86–87 (2d Cir. 2000).
As a preliminary matter, the court notes that Salemo describes most of his
causes of action as arising under 42 U.S.C. § 1983. Section 1983, however,
provides a remedy only for constitutional violations committed under the color
of state law. It therefore is applicable only to actions taken by state
government officials, not federal officers such as defendants. Kingsley v.
Bureau of Prisons, 937 F.2d 26, 30 n.4 (2d Cir. 1991). This is an
understandable and easily corrected mistake: the court instead construes
Salemo’s complaint as a Bivens action, which provides a largely analogous
cause of action for constitutional violations perpetrated by federal officials.
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971). Because “federal courts have typically incorporated § 1983 law
into Bivens actions,” none of the substance of Salemo’s complaint is likely to be
lost in the translation. See Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995).
To bring a Bivens suit against a federal official a plaintiff must establish
specific facts demonstrating that defendant's personal involvement in the
constitutional violations alleged. See McKinnon v. Patterson, 568 F.2d 930,
934 (2d Cir.1977). A plaintiff may demonstrate the requisite personal
involvement either by proof of the defendant's direct participation in the alleged
9
violation, or by that defendant's having acted as a supervisory official who
either: (a) failed to remedy the violation once it was reported to him; (b) created
a policy or custom that gave rise to the constitutional violation or permitted it
to endure; or (c) demonstrated gross negligence in managing the subordinates
at whose hands the violation occurred. See Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir.1995); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986). The
Second Circuit has defined “direct participation” as “personal participation by
one who has knowledge of the facts that rendered the conduct illegal.” Provost
v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001).
I. A C TI ON S A GA I N S T D E F E NDA N T S
I N T HE I R
O F F I CI A L C A P A CI T I E S
Each of the remaining defendants is a federal official. However, Salemo
does not indicate whether he intends to bring claims against defendants in
their official capacities, individual capacities, or both. It is essential to
disambiguate between these possibilities, however, because the law imposes
requirements that differ on this basis.
In light of this court’s responsibility to read Salemo’s complaint liberally, it
considers Salemo to have asserted each of his claims against each of the three
remaining defendants in both capacities.
However, suits brought against federal officials in their official capacities
are, in essence, suits against the United States itself. And because the
doctrine of sovereign immunity prevents courts from exercising subject matter
10
jurisdiction over the United States itself, suits against officers in their official
capacities are typically barred as well. FDIC v. Meyer, 510 U.S. 471, 475
(1994); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d
Cir.1994). It is true that the United States has consented to be sued in certain
circumstances, but the United States has not consented to be held liable for
constitutional torts such as those alleged by Salemo. See Meyer, 510 U.S. at
477-78 (1994). Therefore, Salemo’s claims against defendants in their official
capacities are dismissed for lack of subject matter jurisdiction.
The court must still, however, consider Salemo’s claims against defendants
in their personal capacities.
II. R E M OVA L
OF
F I LE S
F R OM
GAIA O F F I C E S
Salemo contends that the warrantless removal of documents, both by
Sargent with defendants’ encouragement, and by defendants personally,
violated the Sixth and Fourteenth Amendments. In light of Salemo’s pro se
status, the court not only takes his factual allegations to be true but also
endeavors to construe his legal allegations generously. Thus, the court
construes Salemo’s charge that these acts violate the Sixth and Fourteenth
Amendments as, in fact, presenting a claim under the Fourth Amendment. For
while the court can identify no provision of the Sixth or Fourteenth
Amendments that these actions might reasonably be said to violate, they stray
11
much closer to the Fourth Amendment’s prohibition of unreasonable searches
and seizures.
Defendants argue that, with respect to the receipt of documents provided
by Sargent, the Fourth Amendment is inapplicable as well because it
proscribes only state action. However, because Salemo alleges that defendants
encouraged Sargent to remove the documents and did not merely receive it, the
analysis is not so simple. See, e.g., United States v. Knoll, 16 F.3d 1313, 1320
(2d Cir.1994) (“The government may become a party to a search through
nothing more than tacit approval.”) But there is no need to pursue this line of
inquiry further because even assuming, for the sake of argument, that Sargent
was acting as an agent of the government when he removed the documents,
neither this search nor the search personally conducted by defendants was
unreasonable.
Though the existence of a valid warrant is the best known means by which
law enforcement may conduct a legal search under the Fourth Amendment,
there are also other circumstances that can render a search “reasonable” and,
therefore, permissible under the Fourth Amendment. See U.S. v. Simmons,
661 F.3d 151, 156-57 (2d Cir. 2011). In the absence of a warrant, a court
determines whether a search is reasonable by weighing “(1) the weight and
immediacy of the government interest, (2) the nature of the privacy interest
that is compromised by the search, (3) the character of the intrusion imposed
12
by the search, and (4) the efficacy of the search in advancing the government
interest.” Dickerson v. Napolitano, 604 F.3d 732, 750-51 (2d Cir. 2010).
In this case, it appears undisputed that defendants initiated their search of
the GAIA offices in order to prevent the possible destruction of evidence.
Salemo concedes as much in his opposition to this motion. And preventing the
destruction of evidence is a government purpose recognized as justifying an
exception to the warrant requirement. See Kentucky v. King, 131 S. Ct. 1849,
1857-58 (2011) (“[W]arrantless entry to prevent the destruction of evidence is
reasonable and thus allowed.”).
Salemo argues that there was no actual need to prevent him from
destroying evidence. The test for reasonableness, however, turns not on the
actual likelihood that the evidence would be destroyed, but on the facts as they
were knows to the officers conducting the search. “The core question is
whether the facts, as they appeared at the moment of entry, would lead a
reasonable, experienced officer, to believe that there was an urgent need to
render aid or take action.” United States v. Klump, 536 F.3d 113, 117–18 (2d
Cir. 2008). Salemo does not contend that defendants did not believe that the
search was necessary to preserve evidence; in fact, to the contrary, he provides
emails sent amongst the officers demonstrating their belief that evidence might
be destroyed, and that this belief was reasonably formed in light of warnings
they received from multiple GAIA employees.
13
Thus, with respect to Salemo’s constitutional claims relating to the search
of and removal of documents from the GAIA offices, defendants’ motion to
dismiss is granted.
III. T HE L O CK O U T
Salemo also alleges that defendants arranged for him to be locked out of
the GAIA offices. He does not, however, identify which provision of the U.S.
Constitution this alleged lock-out violates, and the court is not aware that such
conduct has ever been recognized to constitute an actionable constitutional
violation. However, in light of Salemo’s pro se status, the court is willing to
entertain the possibility (without deciding) that this lock out constituted an
unlawful seizure of Salemo’s property.
“A ‘seizure’ of property occurs when there is some meaningful interference
with an individual's possessory interests in that property.” United States v.
Jacobsen, 466 U.S. 109, 113 (1984). Salemo’s complaint may fairly be read as
asserting that he held a property interest in the GAIA premises. He alleges, in
addition, that Special Agent Murphy was personally involved in excluding him
from this property. And while his allegations that this seizure was
unreasonable are sparse, he does assert that this was done without a warrant,
and defendants for their part have provided no explanation for the lock out.
Thus emerge the broad outlines of a possible Fourth Amendment violation.
14
But in the context of a Bivens action seeking monetary damages from
federal officers in their personal capacities, significantly more is required. A
federal officer, sued in her personal capacity, enjoys a qualified immunity from
suit such that she cannot be held liable unless a plaintiff can demonstrate the
violation of “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,
231 (2009). As the court has already remarked, this sort of office lock out
appears never to have been recognized as an actionable constitutional
violation. This being the case, it cannot be considered a violation of rights of
which a reasonable person would have known.
This conclusion is bolstered by some factual complications.
They were private security officers who physically excluded Salemo from his
office, not government officials. Even if they did so at Special Agent Murphy’s
suggestion, does this indicate the level of official involvement required for a
constitutional violation? See Jacobsen, 466 U.S. at 113. (“This Court has also
consistently construed this protection as proscribing only governmental
action….”)
Salemo has alleged that he guaranteed GAIA’s lease of the premises and
served as its C.E.O. But if GAIA itself was the actual lessee, does this give rise
to the required property interest in Salemo personally?
The court includes these observations not to cast doubt on Salemo’s factual
assertions (which, at this stage, it must regard as true) but to demonstrate just
15
how unclear the legal issue is. And, more to the point, they demonstrate just
how unclear the legal issue would have seemed to Special Agent Murphy or to
any other “reasonable person” at the time.
Therefore the court concludes that even if Special Agent Murphy did violate
Salemo’s constitutional rights by arranging to lock him out of his office (and it
does not conclude that she did), any right that she may have violated was
neither clearly established nor one of which a reasonable person would have
known. Therefore, Special Agent Murphy is immune from suit in her personal
capacity relating to Salemo’s exclusion from his office and, accordingly, this
claim is dismissed. See Pearson, 555 U.S. at 231.
IV. D I SC L OSU R E S
OF
S A LE M O ’ S C R I M I NA L A C TI VI TI E S
Salemo alleges that defendants violated his constitutional rights (though he
does not specify which) when they disclosed, or authorized others to disclose,
Salemo’s criminal background.
As with the documents removed from GAIA offices, it is far from clear that
Sargent’s actions were so motivated by defendants’ conduct that they might be
considered attributable to the state, a prerequisite to finding any constitutional
violation. But as before, we need not pursue this question because, even if
Sargent was acting as an agent of the government, there was no constitutional
violation.
16
Quite simply, damage to one’s reputation caused by “[d]efamation by the
government is not alone a violation of a constitutional right of the defamed
person and an action therefor cannot be maintained pursuant to Bivens.”
McMillan v. Togus Reg’l Office, Dept. of Veterans Affairs, 120 Fed.Appx. 849,
852 (2d Cir. 2007).
Pursuant to the court’s duty to read Salemo’s pro se complaint generously,
it must also consider whether it could entertain these allegations as state law
defamation claims. But it could not. Given the dismissal of all federal claims
with which these state law claims share a common nucleus of operative facts, it
must dismiss any related state law claim as well for lack of subject matter
jurisdiction. See, Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697
(2d Cir. 2000).
Therefore, defendants’ motion to dismiss with respect to these claims is
granted and the claims dismissed.
V. S A L E M O ’ S D E T E N TI O N
BY
BOP O F F I CE R S
A ND
S U B SE QU E N T A R R E S T
BY
S P E CI A L A GE N T M U R P HY
Salemo alleges that his two-hour detention after his release from MCC on
November 19, 2010 was a false arrest, a violation of his Fourth Amendment
right to be free from arrest without probable cause.
While it is generally the case that, in considering a motion to dismiss, a
court must limit itself only to the factual allegations in the plaintiff’s complaint,
17
a court may also take “judicial notice” of certain facts. Brass v. Am. Film
Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). Such matters include facts
“generally known within the trial court's territorial jurisdiction” or those that
“can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201. That a warrant was
actually issued for Salemo’s arrest the day before he was arrested falls
comfortably within this definition. See, e.g., Guerrier v. Quillian, 10 Civ. 9453,
2011 WL 4916295, at *3 (S.D.N.Y. Oct. 14, 2011).
With this additional information at hand, it is clear that Salemo’s false
arrest claim cannot proceed. “It is well-established that where an individual's
arrest is effectuated pursuant to a warrant, there can be no claim for false
arrest.” Williams v. Young, 769 F. Supp. 2d 594, 602 (2d Cir. 2011). See also,
Singer v. Fulton County Sheriff, 63 F.3d 110, 118-19 (2d Cir.1995) (“There can
be no federal civil rights claim for false arrest where the arresting officer had
probable cause.”)
It may be the case that, as Salemo alleges, there were a wide variety of
other legal procedures that may have been used to arrest him more efficiently
at the MCC. Salemo has not presented any argument, however, that the
Fourth Amendment requires officers to make arrests according to any of these
other possible procedures. It guarantees, in this context, only freedom from
unreasonable imprisonment, a right that cannot be infringed by merely an
inefficient arrest when it was made pursuant to a valid warrant.
18
Salemo’s claim of false imprisonment in violation of his Fourth Amendment
rights must therefore be dismissed.
VI. GAIA’ S B A N K R U P T C Y
Finally, Salemo claims that his business, GAIA, has gone bankrupt as a
result of defendants’ behavior and that this is a violation of his constitutional
rights. Salemo does not specify which constitutional provision he believes to be
implicated by GAIA’s bankruptcy. But, read generously, Salemo’s complaint
can be understood to argue that GAIA’s bankruptcy amounts to a deprivation
of property without due process in violation of the Fifth Amendment.
But, while the Fifth Amendment surely protects business assets and other
traditional forms of property, a businessperson has no property interest in the
activity of doing business itself. Coll. Sav. Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999); see also Olesen v.
Morgan, 06 Civ. 959, 2009 WL 2045682, at *6 (N.D.N.Y. July 8, 2009). Thus,
defendants’ interference with Salemo’s ability to do business is not a
constitutionally cognizable injury in itself. Were it the case that Salemo were
able to show that defendants’ actions violated his constitutional rights in other
ways, it is conceivable that the bankruptcy of his business could be considered
in the computation of damages if the violation could be shown to have caused
the bankruptcy. But in fact Salemo has not demonstrated any such
constitutional violation.
19
Salemo’s claims arising from the bankruptcy of GAIA is, therefore,
dismissed.
VII. S A L E M O ’ S R E M A I NI N G C L A I M S
Salemo also claims that defendants violated his constitutional rights by
interfering in ongoing civil and criminal actions against GAIA employees
accused of looting and vandalizing GAIA offices, electing a new GAIA CEO, and
knowing of Sargent and others’ allegedly unauthorized access to GAIA’s bank
accounts.
In short, the court does not find that any of these allegations adequately
specify the nature of defendants’ personal involvement. It is worth repeating
yet again that, in light of Salemo’s pro se status, his complaint is entitled to a
generous reading. See, e.g., Graham v. Lewinsky, 848 F.2d 342, 344 (2d Cir.
1988). Furthermore, no plaintiff, particularly not a plaintiff proceeding pro se,
is required to provide “specific facts.” Boykin v. KeyCorp, 521 F.3d 202, 215
(2d Cir. 2008). Indeed, the court recognizes that “dismissal of a pro se claim as
insufficiently pleaded is appropriate only in the most unsustainable of cases.”
Id. at 216.
But these three claims rise to this level.
In the case of defendants’ alleged interference with the criminal cases,
Salemo tells the court only that defendants contacted the law enforcement
officers originally investigating his criminal complaints and informed them that
20
they were taking over the case. With respect to the civil cases, Salemo alleges
only that defendants contacted the lawyers involved. In neither case does
Salemo make any allegations regarding the ultimate fates of these cases, let
alone defendants’ specific roles in bringing these outcomes about. On these
facts, the court is unable to identify the constitutional provision that
defendants are alleged to have violated, let alone their personal roles in the
infringement.
The situation is similar with respect to defendants’ alleged role in the
election of new GAIA corporate officers. In support of this allegation Salemo
pleads only that “these agents, and in particular Maureen Murphy with the
security manager of the building actually elected a new officer….” The court is
unsure what Salemo means by this allegation. In the state of New York a new
corporate officer can, of course, only be appointed by a corporation’s board of
directors or in accordance with other procedures specified in its bylaws.
N.Y.C.L. § 715. Perhaps defendants could have purported to have elected a
new corporate officer. But, if so, Salemo has not provided the factual basis for
this allegation with sufficient clarity for the court to assess its legal sufficiency,
much less to provide defendants a fair opportunity to respond. Salemo has
also not suggested any particular constitutional provision that this activity
would violate. While the court has labored to identify the strongest legal
arguments supportable by each of Salemo’s claims, it is aware of none that
21
could be supported by the facts as Salemo provides them with respect to this
claim.
Finally, Salemo’s allegation that defendants knew GAIA employees were
gaining unauthorized access to GAIA bank accounts is insufficient to sustain a
Bivens claim. A non-supervisory government official’s mere knowledge of the
actions of private individuals, without any participation of their own, is simply
not enough. Bivens liability is only available for officials who either became
involved through their supervision of subordinate officers, or who participated
directly themselves. See Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.
1986). And “direct participation” means “personal participation by one who
has knowledge.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir.
2001). Here Salemo has alleged knowledge, but not participation.
Conclusion
Defendants’ motion to dismiss is granted and, accordingly, Salemo’s
complaint is dismissed in its entirety. Salemo’s Motion for Reconsideration is
denied.
This opinion resolves the motions listed under document numbers 20
and 30 on the docket of case 11 Civ. 2525.
22
So ordered.
Dated: New York, New York
September 27, 2012
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
4~(?£~
[Thomas P. Griesa
U.S. District Judge
DOC#: ____________
DATE FILED: Su>\.?-1
!lQ11
23
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