Salamone v. United States of America et al
MEMORANDUM OPINION AND ORDER re: 32 MOTION to Dismiss or for Summary Judgment. filed by Lionel Benjamin, Dominick Vitale, Thomas Robertson, United States of America, Anthony Duboise, 40 LETTER MOTION for Extension of Time to File Local Civil Rule 56.1 Statement or for Waiver of Requirement addressed to Judge John G. Koeltl from Jennifer Jude dated 3/1/22. filed by Lionel Benjamin, Dominick Vitale, Thomas Robertson, United States of America, Anthony D uboise. The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the arguments are either moot or without merit. For the foregoing reasons, the defendants' motion to dismiss the FTCA claims is granted. Those claims are dismissed without prejudice for lack of subject matter jurisdiction. The defendants' motion to dismiss the Bivens claim with prejudice is granted. The defendants' motion for summary judgement is denied without p rejudice as moot. The Clerk is directed to enter judgment and to close this case. The Clerk is also directed to close all pending motions. SO ORDERED. (Signed by Judge John G. Koeltl on 8/1/2022) (ks) Transmission to Orders and Judgments Clerk for processing.
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 1 of 15
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FRANK D. SALAMONE,
- against -
UNITED STATES OF AMERICA ET AL.,
JOHN G. KOELTL, District Judge:
The plaintiff, Frank D. Salamone, brought this case against
--the United States of America and four Customs and Border
Protection ("CBP") officers - Thomas Robertson, Lionel Benjamin,
Anthony Duboise, and Dominick Vitale
as well as twelve John
Does. The plaintiff's claims arise out of his detention at the
Manhattan Passenger Ship Terminal (the "Terminal") on his return
from a cruise to the Bahamas. The defendants now move to dismiss
the Amended Complaint or for summary judgment dismissing all of
the plaintiff's claims. For the following reasons, the
defendants' motion to dismiss is granted, and the defendants'
motion for summary judgment is denied as moot.
The following facts are taken from the plaintiff's Amended
Complaint, ECF No. 20, as well as his arrest warrants, which are
public records and incorporated by reference into the Amended
Complaint. See, e.g., Bryant v. Rourke, No. 15-cv-5564, 2017 WL
1318545, at *3 (E.D.N.Y. Feb. 8, 2017), report and
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 2 of 15
recommendation adopted, 2017 WL 1317009 (E.D.N.Y. Mar. 17,
In 2010, two warrants were issued for the plaintiff's
arrest: one for aggravated harassment in the second degree, and
one for criminal mischief in the third degree. Hillgardner Deel.
Exs. 1, 2, ECF Nos. 37-2, 37-3. The warrants were signed by a
City Judge in Yonkers, New York. Id. The warrants were not
endorsed by a Judge of the Criminal Court of the City of New
York sitting--in-fhe County ofNew--York:Id.; Am. Compl.-'l[-34. In
2014, the statute underlying the aggravated harassment warrant
was held unconstitutional as void for vagueness. Id. 'II 32;
People v. Golb, 15 N.E.3d 805, 813 (N.Y. 2014). The plaintiff
claims that this rendered the warrant void. Id. 'II 34.
On May 11, 2018, the plaintiff embarked on a cruise from
Manhattan to the Bahamas. Id. 'II 11. On May 19, 2018, the
plaintiff returned from the cruise to the Terminal. Id. 'II 12.
While the plaintiff was in his cabin preparing to disembark, one
of the defendant CBP officers knocked on his door. Id. 'II 13. The
plaintiff's companion opened the door, and one of the officers
asked the plaintiff's companion to ask the plaintiff to step out
of the room. Id.
14-15. The plaintiff complied. Id. 'II 17. One
of the officers asked the plaintiff if he was Frank D. Salamone.
Id. 'II 18.
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 3 of 15
When the plaintiff confirmed that he was, the defendants
informed the plaintiff that they had a warrant for his arrest
and ordered the plaintiff to turn around and put his hands
behind his back. Id.
18-19. The plaintiff complied, and an
unknown individual in a law enforcement uniform handcuffed the
20. The defendant CBP officers escorted the
plaintiff off the ship and took him to an office in the
Terminal, where he was detained against his will for about two
20, 23. At some point during this time, the
plaintiff was searched. Id.
The defendant CBP officers did not tell the plaintiff what
the criminal charges underlying the warrant were, despite his
22. The plaintiff alleges that his arrest was
based on the warrants issued in 2010. See id.
plaintiff does not allege that the defendant CBP officers knew
that either warrant was void. The plaintiff alleges that the
- --- ------ - -------
defendant CBP officers had not received a request or permission
to arrest the plaintiff, and that they were not deputized to do
Eventually, two New York City police officers arrived and
escorted the plaintiff to the police station, where he was
detained for over an hour. Id.
26-27. Two Yonkers police
officers then arrived and escorted the plaintiff to the Yonkers
City Jail. Id.
29-30. The plaintiff remained in the Yonkers
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City Jail until May 21, 2018, when he was brought to the Yonkers
City Court and arraigned on charges of criminal mischief in the
third degree and aggravated harassment in the second degree
allegedly committed in 2010. Id. 11 30-32. The plaintiff was
then released, and the charges and warrants were later
dismissed. Id. 11 33, 35. The plaintiff alleges that he
presented his claim for money damages to CBP, and that six
months later, CBP had not responded to his claims. Id. 11 37-38.
Based on these allegations, the plaintiff brings claims for
false arrest, negligent hiring, and negligent training pursuant
to the Federal Tort Claims Act, 28 U.S.C.
The FTCA provides a limited waiver of sovereign immunity for
claims arising out of:
the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his
office or employment, under circumstances where the
United States,-- if a private person, ·would oe liable to
the claimant in accordance with the law of the place
where the act or omission occurred.
1346(b) (1) . 1 As the defendants point out without
objection, only the United States is a proper party under the
FTCA. See id.; F.D.I.C. v. Meyer, 510 U.S. 471, 475-77
Hamm v. United States, 483 F.3d 135, 137
(2d Cir. 2007). For
Unless otherwise specified, this Memorandum Opinion and Order omits all
internal alterations, citations, footnotes, and quotation marks in quoted
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 5 of 15
this reason, and because the plaintiff does not appear to allege
these claims against the individual defendants in any event, the
Court construes these claims as being alleged only against the
United States. The plaintiff also brings a Bivens claim against
individual defendants Robertson, Benjamin, Duboise, and Vitale.
The plaintiff does not bring claims against the New York City or
Yonkers police officers, and his claims are therefore based only
on the period of his detention by the CBP officers. Because the
Johri Doe defendants are-ric,-t named a-s defendarifi,-in the Bivens
claim, the plaintiff also does not bring any claims against the
John Doe defendants.
The defendants move to dismiss the Bivens claim for failure
to state a claim upon which relief can be granted under Rule
12 (b) ( 6) . The defendants also move to dismiss the false arrest
FTCA claim for failure to state a claim upon which relief can be
granted under Rule 12(b) (6) and move to dismiss the negligent
- -- -
tr a in ing and supervision FTCA claims for lack of subject matter
jurisdiction under Rule 12 (b) (1).
The Supreme Court indicated in Brownback v. King, 141 S.
(2021), that because the doctrine of sovereign immunity
is jurisdictional in nature, "in the unique context of the
FTCA," id. at 749, where sovereign immunity is waived only to
the extent "a private person would be liable," 28 U.S.C.
1346(b) (1), "all elements of a meritorious claim are also
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 6 of 15
. That means a plaintiff must plausibly
allege that 'the United States, if a private person, would be
liable to the claimant' under state law both to survive a merits
determination under Rule 12(b) (6) and to establish subjectmatter jurisdiction." Brownback, 141 S. Ct. at 749. If a claim
"fail [s] to survive a Rule 12 (b) (6) motion to dismiss, the
United States necessarily retain[s] sovereign immunity, also
depriving the court of subject-matter jurisdiction." Id.
------Accordingly; if the FTCA-claims fail-to state a -cla-im upon
which relief can be granted under Rule 12(b) (6), the Court lacks
subject matter jurisdiction over the claims and will dismiss
them pursuant Rule 12(b) (1). The standard for a motion to
dismiss for failure to state a claim pursuant to Rule 12(b) (6)
is well established. The allegations in the complaint are
accepted as true, and all reasonable inferences are drawn in the
plaintiff's favor. McCarthy v. Dun
Bradstreet Corp., 482 F.3d
184, 191 (2d Cir. 2007). The Court may aiso consider-documents
incorporated by reference into the complaint and public records
such as arrest warrants. See, e.g., Bryant, 2017 WL 1318545, at
This standard is also applicable to the Bivens claim,
which, because it is brought against the individual defendants,
does not implicate the sovereign immunity of the United States,
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 7 of 15
and does not implicate the subject matter jurisdiction of the
The plaintiff brings a claim for false arrest against the
United States under the FTCA. The applicable law under the FTCA
is the "the law of the place where the act or omission
occurred," 28 U.S.C. § 1346(b) (1) -
in this case, New York. The
requirements of a false arrest claim under New York law are, in
any event, ___ '_'substantially _the __ same" as those __under federal law. ___ _
Posr v. Doherty, 944 F.2d 91,
96 (2d Cir. 1991); Sanchez v. Port
Auth. of N.Y. & N.J., No. 08-cv-1028, 2012 WL 1068078, at *4
(E.D.N.Y. Mar. 29, 2012). Under New York law, as under federal
law, a claim for false arrest exists where "(1) the defendant
intended to confine the plaintiff,
conscious of the confinement,
(2) the plaintiff was
(3) the plaintiff did not consent
to the confinement and (4) the confinement was not otherwise
privileged." Liranzo v. United States, 690 F.3d 78, 95 (2d Cir.
2012); Sanchez, 2012 WL 1068078, at *4. The defendants do not
dispute that the plaintiff has pleaded the first three
requirements. See Am. Compl.
42-44. The defendants argue,
however, that the confinement was privileged.
The existence of probable cause to arrest constitutes
justification and is a complete defense to a charge of false
arrest under federal and New York state law. Weyant v. Okst, 101
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 8 of 15
F.3d 845, 952
(2d Cir. 1996). "Probable cause existed if at the
moment the arrest was made the facts and circumstances within
the officers' knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man
in believing that the suspect had violated the law." Zellner v.
Summerlin, 494 F.3d 344, 370 (2d Cir. 2007). "An arrest
authorized by a judicial warrant is generally presumed to be
supported by probable cause." Mara v. Rilling,
921 F.3d 48, 73
(2d Cir. 2019): In this case, the praTntiff was aTYested
pursuant to two warrants, but argues that his detention was
nonetheless not privileged for three reasons. None of these
arguments has merit.
First, the plaintiff argues that the arrest was not
privileged because one of the warrants pursuant to which he was
arrested was invalid. The plaintiff was arrested pursuant to two
-warrants: - one for aggravated harassment in the second degree,
and one for criminal mischief in the third degree. The plaintiff
claims that in 2014, the statute underlying the aggravated
harassment warrant was held unconstitutional as void for
vagueness, and that the warrant was therefore void and could not
support the defendants' claim of privilege.
However, the defendants' claim of privilege in this case is
based on probable cause, and in the context of "a claim for
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 9 of 15
. it is not relevant whether probable cause
existed with respect to each individual charge." Jaegly v.
Couch, 439 F.3d 149, 154 (2d Cir. 2006). Rather, the "focus [is]
on the validity of the arrest," such that if there is one valid
basis for probable cause, the existence of another, invalid
basis for arrest does not support a claim for false arrest. See
id. Because the plaintiff does not dispute the validity of the
criminal mischief warrant, the invalidity of the aggravated
o.6e-s not affi,-ct- the existence of probable
cause and does not defeat the defendants' claim of privilege.
Second, the plaintiff argues that the arrest was not
privileged because the warrants pursuant to which he was
arrested were not endorsed by a Judge of the Criminal Court of
the City of New York sitting in the County of New York as
required by the New York Criminal Procedure Law. However, the
warrants were signed by a City-Judge of Yonkers. The defendants'
claim of privilege in this case is based on probable cause and
the warrants were signed by a judge. The absence of an
additional signature does not undercut "a prudent man['s]
belie[f] that the [plaintiff] had violated the law." See
Zellner, 494 F.3d at 370. And indeed, several courts have held
in the context of a false arrest claim that failing to meet this
procedural requirement does not defeat probable cause. See,
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 10 of 15
e.g., Mitchell v. Siersma, No. 14-cv-6069, 2018 WL 4566878, at
*3 (W.D.N.Y. Sept. 24, 2018); Youngblood v. City of Mount
Vernon, No. 14-cv-10288, 2017 WL 7804731, at *6 (S.D.N.Y. Dec.
29, 2017), report and recommendation adopted, 2018 WL 1114760
(S.D.N.Y. Feb. 26, 2018). Accordingly, the absence of such an
endorsement does not defeat the defendants' claim of privilege
in this case, and this argument is also without merit.
Third,_ the plaintiff_ argues _that the __ arrest was not _
privileged because the CBP officers were not deputized to make
arrests pursuant to state criminal arrest warrants. But the
plaintiff cites no source for the proposition that any such
requirement exists, and contrary to his contention, CBP officers
do have that authority. 19 U.S.C. § 1582 provides that "all
persons coming into the United States from foreign countries
shall be liable to detention and search by authorized officers
or -agents, "---which includes CBP officers. -See Tabbaa v. Chertoff,
509 F.3d 89,
(2d Cir. 2007). The plaintiff argues that this
authority to "detain" does not confer on the defendants the
authority to "arrest," and that the plaintiff was arrested,
rather than merely detained. But an arrest is plainly a type of
detention, and the Court of Appeals for the Second Circuit has
found detentions of up to six hours to be "entirely consistent
with the CBP's statutory mandate." See id. at 95, 97. The
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 11 of 15
plaintiff's substantially shorter two-hour detention, whether
characterized as an arrest or merely a detention, was therefore
likewise within the CBP's authority to "detain."
Moreover, the absence of deputation would not affect the
officers' belief that the plaintiff had committed a crime, and
thereby the existence of probable cause. See Zellner, 494 F.3d
at 370. And indeed, CBP officers who detain a person with
probable cause that the person committed a state crime are not
liable for-false arresT~---See, e.g., Sa-nchez, 2012 WL 1068078, at
*1, *4-7. Accordingly, the absence of deputation does not defeat
the defendants' claim of privilege in this case, and this
argument is also without merit.
For these reasons, the plaintiff's detention was supported
by probable cause, his arrest was privileged, and he has not
stated a claim for false arrest.
The plaintiff also brings claims for negligent-training and
negligent supervision against the Government under the FTCA.
However, New York law precludes a claim for negligent training
or negligent supervision against an employer for acts taken
within the scope of the employee's employment. See, e.g., Velez
v. City of New York, 730 F.3d 128, 136-37 (2d Cir. 2013);
Hamilton v. City of New York, No. 15-cv-4574, 2019 WL 1452013,
at *31 (E.D.N.Y. Mar. 19, 2019). This principle bars negligent
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 12 of 15
training and supervision claims brought pursuant to the FTCA
because New York state law does not recognize such claims. See,
e.g., Ben v. United States, 160 F. Supp. 3d 460, 476 (N.D.N.Y.
2016); Lassie v. United States, No. 14-cv-9959, 2015 WL 5472946,
at *4 (S.D.N.Y. Sept. 16, 2015), aff'd,
668 F. App'x 395 (2d
Cir. 2016). The plaintiff specifically alleges in the Amended
Complaint that the individual defendants acted within the scope
of their employment.
The-plaintiff -does not dispute that hfii--ffegligent-training
and supervision claims are precluded if the individual
defendants acted within the scope of their employment. The
plaintiff's only arguments against application of this principle
are that his scope-of-employment allegation was pleaded in the
alternative, and that the United States has not acknowledged
that the individuals were acting within the scope of their
employment. In the reply brief, the defendants expressly
conceded - that the I11di viduai defendants -- were acting within the
scope of their employment. Because the parties agree that the
individual defendants were acting within the scope of their
employment, and New York state law does not recognize such
claims against an employer when the employee was acting in the
scope of employment, the FTCA claims for negligent training and
supervision must be dismissed. See Lassie, 2015 WL 5472946, at
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 13 of 15
For these reasons, the plaintiff has not stated a claim for
negligent training or negligent supervision. Because the
plaintiff has failed to state a claim for false arrest,
negligent training, or negligent supervision, the plaintiff has
not alleged that the United States has waived its sovereign
immunity pursuant to the FTCA with respect to these claims, and
those claims are therefore dismissed for lack of subject matter
The plaintiff also brings claims against CBP Officers
Robertson, Benjamin, Duboise, and Vitale under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), in which the Supreme Court authorized a damages
action against federal officers for certain claims. See id. at
397. But the plaintiff's Bivens claims are squarely foreclosed
by the Supreme Court's recent decision in Egbert v. Boule, 142
S . Ct . 1793 ( 2 0 2 2) .
In Egbert, the Court considered the Fourth Amendment claim
under Bivens brought by the keeper of an inn in Washington
state, a few yards from the Canadian border. Id. at 1800, 1802.
The inn was known to be a smuggling hub, and the defendant
Border Patrol agent had suspicions about a guest of the inn. Id.
at 1800-01. The Border Patrol agent allegedly used excessive
force against the innkeeper in violation of the Fourth
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 14 of 15
Amendment. Id. The Court denied the innkeeper's claim, holding
that "a Bivens cause of action may not lie where, as here,
[W]e ask here whether a
national security is at issue.
court is competent to authorize a damages action not just
against Agent Egbert but against Border Patrol agents generally.
The answer, plainly, is no." Id. at 1805-06. The Court's opinion
therefore makes clear that a Bivens action is not available
against a CBP officer acting within the scope of the officer's
duties at-the border. See Gilson v. -Alvaiez, No. 21"cv"-110, 2022
WL 2373866, at *6 (W.D. Tex. June 30, 2022)
"courts are not competent to authorize a damages action against
Border Patrol agents without affirmative action by Congress").
Because the plaintiff's Bivens claims are brought against four
CBP officers who allegedly detained a suspect at a port of entry
into the United States, it is foreclosed by Egbert. The
defendants' motion to dismiss the plaintiff's Bivens claim for
failure to state a claim is therefore granted.
Because the Court has dismissed all of the plaintiff's
claims, the defendants' motion for summary judgment is denied as
moot. See, e.g., Rahman v. U.S. Dep't of Homeland Sec., No. 20cv-4052, 2022 WL 889005, at *7 (E.D.N.Y. Mar. 24, 2022).
Case 1:21-cv-04528-JGK Document 45 Filed 08/01/22 Page 15 of 15
The Court has considered all of the arguments of the
parties. To the extent not specifically addressed above, the
arguments are either moot or without merit. For the foregoing
reasons, the defendants' motion to dismiss the FTCA claims is
granted. Those claims are dismissed without prejudice for lack
of subject matter jurisdiction. The defendants' motion to
dismiss the Bivens claim with prejudice is granted. The
c:lefendants' -mOtion for summary judgment- is denied--without
prejudice as moot. The Clerk is directed to enter judgment and
to close this case. The Clerk is also directed to close all
New York, New York
August 1, 2022
!.,_,/ John G. Koeltl
United States District Judge
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