Salemo v. Hasting et al
Filing
57
OPINION re: 52 MOTION for Extension of Time to File Response/Reply as to 50 MOTION to Dismiss filed by George Salemo, 50 MOTION to Dismiss filed by Marcello Bravo, Bethanne Dinkins, Maureen Murphy. The motion to dismiss is granted, and the comp laint is dismissed in its entirety. Salerno's motion for extension of time to oppose the motion to dismiss, document number 52, is granted. This opinion resolves the motions listed as document numbers 50 and 52 in case 11 Civ. 2525. (Signed by Judge Thomas P. Griesa on 2/28/2014) Copies Mailed By Chambers. (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GEORGE SALEMO,
Plaintiff,
11 Civ. 2525
v.
OPINION
U.S. SECRET SERVICE AGENT
MAUREEN MURPHY et al.,
Defendants.
George Salemo, proceeding pro se, brings this action alleging that U.S.
Secret Service Agent Maureen Murphy, U.S. Department of Agriculture Agent
Bethanne Dinkins, and U.S. Probation Officer Marcela Bravo violated his
constitutional rights during their investigation and arrest of him.
On September 27, 2012, the court dismissed Salemo’s complaint but
granted leave to amend. Salemo then filed his amended complaint on March
27, 2013. Defendants now move to dismiss the amended complaint.
The motion to dismiss is granted.
The Complaint
Salemo was suspected—and ultimately convicted—of presenting a forged
$2.25-million U.S. Department of Agriculture Farm Service Agency grant
agreement as collateral for a loan to his company, Global Alliance for
1
International Advancement, Ltd. (“GAIA”). In his complaint, Salemo alleges
that he was the founder, incorporator, investor, and CEO of GAIA.
Salemo alleges that defendants pursued their investigation recklessly
because of their personal contempt for him. For example, he alleges that
defendants took and encouraged others to take documents and hard drives
from GAIA headquarters without a warrant. Salemo alleges that when
defendants did get a warrant, they “falsely applied for” it because the warrant
listed “Intro World” as residing in the same office as GAIA. Defendants
allegedly replaced Salemo in his role at GAIA with another GAIA employee, Troy
Sargent, and had Salemo locked out of GAIA’s offices. Defendants then
allegedly allowed Sargent and others to gain unauthorized access to Salemo’s
and GAIA’s bank accounts. When Salemo attempted to initiate civil and
criminal proceedings against Sargent and other GAIA employees, defendants
allegedly interfered and had the charges dismissed.
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.
Salemo contends that these events culminated in GAIA’s bankruptcy.
Defendants also allegedly interfered with his personal property and
housing in three ways. First, Salemo alleges that defendants harassed his
landlord until she gave them clothes from his apartment. He alleges that
2
defendants did not return all of this property. Second, he alleges that
defendants told another landlord that Salemo was “an undesirable person” and
then the landlord would not rent another apartment to him. Third, he alleges
that Agent Dinkins confiscated his personal effects when Salemo was booked
but never returned those items.
Additionally, Salemo alleges that defendants interfered with his Fifth
Amendment right to liberty while he was in prison. He alleges that defendants
kept him from being transferred to a halfway house because they informed
prison officials that he would soon be indicted for forgery. He also alleges that
defendants falsely told prison officials that he harassed a woman, which
resulted in Salemo being moved to disciplinary housing for ten days.
Finally, Salemo claims that Dinkins and Murphy “suborned” evidence at
Salemo’s trial. Although it is very difficult to determine what Salemo intends to
allege in this section of the complaint, he appears to list a series of allegations
relating to evidence at his criminal trial that was either falsified or not
appropriately disclosed by defendants.
He seeks compensatory and punitive damages totaling $58 million based
on these alleged constitutional violations by federal agents under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
In Salemo’s papers opposing the motion to dismiss, he not only repeats
allegations from the complaint, but also adds new allegations. And many of
these new allegations do not relate to defendants named in the complaint. In
3
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 the court’s opinion dated September 27, 2012,
alerted Salemo that the court would not allow him to supplement his complaint
by adding extensive allegations in his opposition papers. Thus, the court
declines to consider these additional allegations.
Discussion
To survive a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), 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). In deciding a motion under Rule
12(b)(6), a court must accept as true the facts alleged in the complaint. Id.
But the court 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). A pro se plaintiff “is entitled to a particularly liberal reading” of
his complaint. Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir. 2011).
But even a pro se plaintiff must plead enough facts to state a claim for relief
that is plausible on its face. Johnson v. City of New York, 669 F. Supp. 2d
444, 448–49 (S.D.N.Y. 2009).
4
Claims from Original Complaint
The bulk of the claims in Salemo’s amended complaint merely reiterate
the claims in the original complaint. The court previously dismissed Salemo’s
claims based on the allegations that: (1) defendants orchestrated the removal of
documents from GAIA’s offices; (2) defendants locked him out of GAIA’s offices;
(3) defendants disclosed Salemo’s criminal history or defamed him in other
ways; (4) defendants caused GAIA’s bankruptcy; (5) defendants interfered with
ongoing criminal and civil actions against GAIA employees; (6) defendants
orchestrated the election of a new CEO at GAIA; and (7) defendants accessed or
allowed access to GAIA’s and Salemo’s bank accounts. Claims based on these
allegations are again dismissed for the reasons stated in the court’s opinion
dated September 27, 2012.
False Statements in the Search Warrant Affidavit
Salemo alleges that defendants Dinkins and Murphy “improperly and
falsely applied for” the warrant that they used to search the hard drives and
documents seized from GAIA, thus violating Salemo’s Fourth Amendment
rights. He alleges that the affidavit states that “Intro World” was operated out
of the same offices as GAIA, but that no such company exists. He further
alleges that the affidavit falsely states that the seizure of evidence was
necessary to prevent its destruction. Salemo attached the search warrant to
the complaint and relied on it in making the allegations.
5
To show that false statements in a search warrant affidavit constitute a
Fourth Amendment violation, a plaintiff must allege (1) that the false statement
was made knowingly and intentionally or with reckless disregard for the truth
and (2) that the false statement was necessary to the finding of probable cause.
Franks v. Delaware, 438 U.S. 154, 155–56 (1978).
Here, accepting that the statements in the affidavit were false, Salemo
does not contend that these false statements were necessary to the finding of
probable cause or that the warrant would not have issued without these
allegedly false statements. He only offers the conclusory allegation that
defendants improperly applied for the warrant. Even construing his claims
liberally, Salemo has not stated a plausible claim that the affidavit violated his
Fourth Amendment rights.
Seizure of Personal Belongings from Salemo’s Apartment
Salemo alleges that defendants conducted a warrantless seizure of his
property in violation of the Fourth Amendment by convincing his landlord to
give them clothes and documents from Salemo’s apartment. But the exhibits
attached to Salemo’s complaint show that Salemo had abandoned all personal
property that he left in the apartment. Salemo’s lease had expired and the
landlord had leased the apartment to a new tenant, but Salemo and his son
had ignored the landlord’s requests to collect his belongings. The landlord told
Salemo that she would throw away any property left in the apartment after
6
December 26, 2010, and it was only after this deadline passed that the
landlord gave the belongings to defendants.
A plaintiff cannot show a Fourth Amendment violation based on the
search or seizure of abandoned property. Gudema v. Nassau County, 163 F.3d
717, 722 (2d Cir. 1998). Likewise, a plaintiff has no Fourth Amendment
interests in property left after his rental period has expired. Cf. Abel v. United
States, 362 U.S. 217, 241 (1960); United States v. Parizo, 514 F.2d 52, 54 (2d
Cir. 1975). Accordingly, Salemo fails to state a claim for a Fourth Amendment
violation based on the search and seizure of the property he abandoned after
his lease expired.
Failure to Return Personal Property after Booking
Salemo alleges that Agent Dinkins took his personal effects when he was
booked but that Dinkins never returned those items. He alleges that this
violates his Fifth Amendment right to due process.
To sustain an action for deprivation of property without due process of
law, a plaintiff must (1) identify a property right; (2) show that the state has
deprived him of that right; and (3) show that the deprivation was effected
without due process. Local 342, Long Island Pub. Serv. Employees v. Town Bd.
of Town of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994). But even if a
plaintiff makes this showing, “the negligent or intentional deprivation of
property through the random and unauthorized acts of a state or federal
7
employee does not constitute a deprivation of due process if ‘a meaningful
postdeprivation remedy for the loss is available.’” Stuto v. Fleishman, 164 F.3d
820, 825 (2d Cir. 1999) (quoting Hudson v. Palmer, 468 U.S. 517, 533 (1984)).
Here, there can be little doubt that Salemo has a property interest in his
tangible possessions that were allegedly taken by defendants. But Salemo has
at least two post-deprivation remedies available to him—he could have sued
the Government under the Federal Tort Claims Act, see e.g., Friedman v.
Young, 702 F. Supp. 433, 437 (S.D.N.Y. 1988), or he could have moved for the
return of his property under Federal Rule of Criminal Procedure 41(g).
Because Salemo had these remedies available, he cannot make out a claim for
violation of his due-process rights.
Delayed Transfer to Halfway House
Salemo alleges that as a result of defendants’ calls to Salemo’s case
manager in prison, Salemo only received sixty days in a halfway house, rather
than six months. He alleges that this violates his Fifth Amendment rights.
To state a Bivens claim, a plaintiff must have a constitutionally protected
interest that was violated by defendants. But a plaintiff does not have a
constitutionally protected interest in release to a halfway house. See Douvos v.
Quintana, 382 F. App’x 119, 121 (3d Cir. 2009). Accordingly, Salemo did not
have a protected interest in release to a halfway house, and thus he has failed
to state a viable claim based on this allegation.
8
Temporary Transfer to Disciplinary Housing
Salemo alleges that defendants violated his constitutional rights by
falsely informing prison officials that he was harassing a woman, resulting in
Salemo being sent to disciplinary housing for ten days.
Again, Salemo has failed to state a claim because he has not shown that
defendants violated a constitutionally protected interest. The Second Circuit
has held that confinement in disciplinary housing for less than 101 days under
normal conditions does not implicate a cognizable liberty interest. See Bunting
v. Nagy, 452 F. Supp. 2d 447, 455 (S.D.N.Y. 2006) (collecting cases). On this
point, Salemo had no constitutionally protected interest that was violated.
Evidence at Salemo’s Criminal Trial
The court interprets Salemo’s complaint to allege that defendants
falsified evidence or failed to disclose exculpatory evidence at his criminal trial.
But a plaintiff may not assert a Bivens action that necessarily implies that his
criminal conviction was wrongful if his conviction has not been reversed or
invalidated. Heck v. Humphrey, 512 U.S. 477, 487 (1994). Here, Salemo’s
criminal conviction is still valid, see United States v. Salemo, No. 11 Crim. 65
(S.D.N.Y.), so he may not pursue a constitutional tort claim based on falsified
evidence or failure to disclose exculpatory evidence.
9
Conclusion
The motion to dismiss is granted, and the complaint is dismissed in its
entirety. Salerno's motion for extension of time to oppose the motion to
dismiss, document number 52, is granted.
This opinion resolves the motions listed as document numbers 50 and 52
in case 11 Civ. 2525.
So ordered.
Dated: New York, New York
February 28, 2014
Thomas P. Griesa
United States District Judge
10
Mailed from chambers:
George P. Salemo
22891-008
FCI Butner Low
Federal Correctional Institution
P.O. Box 999
Butner, NC 27509
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?