Quinoy et al v. Pena et al

Filing 52

OPINION AND ORDER re: 45 MOTION for Reconsideration re: 44 Memorandum & Opinion filed by The United States Of America. For the reasons stated above, the Government's motion for reconsideration is GRANTED in part and DENIED in part. Plaintiffs' malicious prosecution claim can only be based on the theory that Agent Pena intentionally destroyed 1D-4; she is immune for her alleged false grand jury testimony. Plaintiffs' malicious prosecution and loss of co nsortium claims against the Government survive. The Government is ordered to file an answer by September 4, 2014. The Clerk of Court is respectfully requested to terminate this motion (Doc. No. 45). SO ORDERED. (Signed by Judge Nelson Stephen Roman on 8/12/2014) (mml)

vehicle for ... presenting the case under new theories ... or otherwise taking a ‘second bite at the
apple ....’” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)
(quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998); see also Nat’l Union Fire
Ins. Co. of Pittsburgh, PA v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001) (in moving for
reconsideration, “‘a party may not advance new facts, issues, or arguments not previously
presented to the Court.’”) (quoting Polsby v. St. Martin's Press, 2000 WL 98057, at *1 (S.D.N.Y.
Jan. 18, 2000) (Mukasey, J.)). They “‘will generally be denied unless the moving party can point
to controlling decisions or data that the court overlooked.’” Analytical Surveys, 684 F.3d at 52
(quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Reconsideration of a
Court’s previous order is “an extraordinary remedy to be employed sparingly in the interests of
finality and conservation of scarce judicial resources.” In re Initial Pub. Offering Sec. Litig., 399
F.Supp.2d 298, 300 (S.D.N.Y. 2005) (internal citation and quotation omitted), aff’d sub nom.
Tenney v. Credit Suisse First Boston Corp., Nos. 05 Civ. 3430, 05 Civ. 4759, & 05 Civ. 4760,
2006 WL 1423785, at *1 (2d Cir. 2006).
DISCUSSION
I.

Basis for Denying the Government’s Prior Motion to Dismiss Malicious
Prosecution Claim

The Court’s May Order permitted plaintiffs’ claim of malicious prosecution and the
attendant claim of loss of consortium to survive. The May Order analyzed Quinoy’s Bivens
claim against the Government for malicious prosecution under the Federal Tort Claims Act. The
Court denied the Government’s motion to dismiss Quinoy’s malicious prosecution claim because
the Court found questions of fact as to “whether and how Pena motivated the prosecution.” May
Order at 19. Specifically, the Court was unable to “make factual determinations as to grand jury
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testimony and the contents of 1D-4.” Id. Such questions pertain to both the elements of lack of
probable cause and actual malice requisite to a claim for malicious prosecution, id. at 15, and
whether the malicious prosecution claim is barred because control of the prosecution has passed
to the prosecutor, id. at 18.
The Government asks the Court to reconsider its decision in light of, among other factors,
a recent Second Circuit decision dated May 16, 2014. The Government argues that the decision
contradicts this Court’s analysis of Rehberg immunity and its application to the instant case.
Specifically, the Government says that the new decision bars any theory of liability arising from
Pena’s alleged false grand jury testimony. Mem. of Law in Supp. of Def. United States of
America’s Mot. for Recons. (“Govt. Br. in Supp. of Mot. for Recons.”) at 7-9.
After this Court issued the May Order, the Second Circuit decided Morales v. City of
New York, 752 F.3d 234, 237, 2014 WL 1978764, at *2 (2d Cir. May 16, 2014), finding that a
federal agent was entitled to absolute immunity from Bivens liability for his alleged false grand
jury testimony. Morales explicitly extends absolute immunity to a defendant federal agent’s
grand jury testimony in a Bivens suit. Id. (“In Rehberg v. Paulk, –––U.S. ––––, 132 S.Ct. 1497,
182 L.Ed.2d 593 (2012), the Supreme Court held that a grand jury witness was entitled to
absolute immunity in a § 1983 action based on his grand jury testimony. Id. at 1506. We have
since applied Rehberg to actions under § 1983 and the Federal Tort Claims Act, but not yet to a
Bivens action. See Marshall v. Randall, 719 F.3d 113 (2d Cir. 2013); Vidro v. United States, 720
F.3d 148 (2d Cir. 2013). We now hold that [defendant] is entitled to absolute immunity from
Bivens liability for his grand jury testimony.”)

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Although Morales was decided after the May Order, “‘[t]he general rule of long standing
is that judicial precedents normally have retroactive as well as prospective effect.’” Kremer v.
Chemical Const. Corp., 623 F.2d 786, 788 (2d Cir. 1980) (quoting National Association of
Broadcasters v. FCC, 554 F.2d 1118, 1130 (D.C. Cir. 1976). Morales constitutes a change in
law sufficient to warrant reconsideration of the Court’s determination that Pena could not claim
immunity for allegedly false grand jury testimony. The FTCA provides that “the United States
shall be entitled to assert any defense based on judicial or legislative immunity which otherwise
would have been available to the employee of the United States whose act or omission gave rise
to the claim.” 28 U.S.C. § 2674. The Court reconsiders the May Order, now foreclosing
plaintiffs’ theory of malicious prosecution based on allegedly false grand jury testimony and thus
more narrowly construing plaintiffs’ malicious prosecution claim.
However, Morales has no effect on the potential liability arising from Pena’s alleged
destruction of exculpatory evidence on 1D-4. The Court’s inability to determine questions as to
“the contents of 1D-4” at the pleading stage is a factor contributing to its decision not to dismiss
the malicious prosecution charge. May Order at 19. The destruction of 1D-4 may be enough to
show that Pena exerted control over the prosecution, implicating malicious prosecution. Given
the “factual determinations” that the Court cannot make at the pleadings stage, the destruction of
1D-4 is potentially sufficient to show that Pena tainted the grand jury indictment. The Court
finds that even without Pena’s alleged false testimony, Pena’s intentional destruction of evidence
raises a potential malicious prosecution claim. The malicious prosecution claim still survives,
albeit based only on Pena’s destruction of evidence.

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In the State of New York, the success of a claim for malicious prosecution under Bivens
depends upon proof of each of the following elements: “(1) the initiation or continuation of a
criminal proceeding against plaintiff; (2) termination of the proceedings in plaintiff’s favor; (3)
lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for
defendant’s actions.” Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010); see
May Order at 15. The May Order found that the first two required elements (initiation of a
criminal proceeding and termination of the proceeding in the plaintiff’s favor) were satisfied.
With regard to the third element, the Court observed that “[b]ased on a review of the evidence
submitted, Quinoy has not met the heavy burden of rebutting the presumption of probable cause
[created by a grand jury indictment].” Id. at 17. The Court did not explicitly address whether
Quinoy adequately plead actual malice. See Id. at 17 (observing only that “Plaintiffs’ pleading
of actual malice is limited to Pena”). Nevertheless, the Court found that questions of fact
remained as to “whether and how Pena motivated the prosecution” and concluded that the
malicious prosecution claim against the Government should survive the motion to dismiss. Id. at
19.
The Court’s decision was based on its inability to resolve factual issues surrounding
Agent Pena’s destruction of the contents of 1D-4, which bears on probable cause and actual
malice. Id. Plaintiffs speculate that Pena falsely testified before the grand jury, and that the
indictment was the product of that testimony. Am. Compl. at ¶¶ 5, 43. Defendants counter that
such speculation is mere conjecture and does not state a claim. Pena Reply at 2. In addition,
Plaintiffs speculate that the destroyed conversation on 1D-4 contained exculpatory information
provided by Officer D’Alessandro refuting the allegation that Quinoy used excessive force
during the Gomez arrest. Am. Compl. ¶¶ 63-64. The Government responds that there is no harm
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caused by the loss of 1D-4 because the grand jury heard D’Alessandro testify on September 15,
2008 “that Jose Quinoy did not kick Gomez during the Gomez arrest.” While Plaintiffs may not
ultimately prove their malicious prosecution claim on the basis of Pena’s fraudulent destruction
of 1D-4, the sufficiency of this claim is difficult to ascertain at the pleading stage. The Court
denied the Government’s motion to dismiss so that discovery may further illuminate Pena’s
destruction of 1D-4.
II.

The Government’s Remaining Arguments for Reconsideration

A. Probable Cause
“[T]he existence of probable cause is a complete defense to a claim of malicious
prosecution in New York.” Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003); see also
Boyd v. City of New York, 336 F.3d 72, 75 (2d Cir. 2003) ([I]f there was probable cause for the
prosecution, then no malicious prosecution claim can stand.”). Furthermore, “indictment by a
grand jury creates a presumption of probable cause.” Id. That presumption may be rebutted only
“by evidence that the indictment was procured by ‘fraud, perjury, the suppression of evidence or
other police conduct undertaken in bad faith.’” Id. (quoting Colon v. City of New York, 60
N.Y.2d 78, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983)). Thus, the fraudulent behavior of a law
enforcement officer may contribute to a showing that no probable cause existed in a malicious
prosecution case. “Like a prosecutor’s knowing use of false evidence to obtain a tainted
conviction, a police officer’s fabrication and forwarding to prosecutors of known false evidence
works an unacceptable ‘corruption of the truth-seeking function of the trial process.’” Ricciuti v.
N.Y.C. Transit Authority, 124 F.3d 123, 130 (2d Cir. 1997) (quoting United States v. Agurs, 427
U.S. 97, 104 (1976)).
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The Government argues that the Court should have dismissed plaintiffs’ malicious
prosecution claim as a direct consequence of its observation that Quinoy “has not met the heavy
burden of rebutting the presumption of probable cause.” May Order at 17. The Government
interprets this to mean that the third element of the malicious prosecution claim had “clearly not
been met.” Govt. Br. in Supp. of Mot. for Recons. at 7. The Court now clarifies the comment
regarding Quinoy’s failure to rebut the presumption of probable cause created by a grand jury
indictment. A grand jury indictment creates a presumption of probable cause and the presence of
probable cause is a complete defense to malicious prosecution that would bar Quinoy’s claim.
However, the Court subsequently discussed factual issues surrounding the indictment process.
See May Order at 19. The Court still allowed the malicious prosecution claim to survive because
factual questions remain as to whether the grand jury indictment was tainted by fraud.
Even absent the allegation of false testimony, Pena’s destruction of 1D-4 in bad faith
prior to the indictment may be enough to show that the indictment was procured by “fraud,
perjury, the suppression of evidence or other police conduct undertaken in bad faith.” Savino,
331 F.3d at 72 (quoting Colon v. City of New York, 60 N.Y.2d 78, 83, 468 N.Y.S.2d 453, 455
N.E.2d 1248 (1983)) (emphasis in original). The Court declined to find that plaintiffs sufficiently
rebutted the presumption of probable clause because such a finding is premised on factual
determinations whose resolution was inappropriate at the pleading stage. Additionally, malice
may be inferred from the absence of probable cause.
B. Actual Malice
The Government argues that the Court overlooked plaintiffs’ failure to allege actual
malice, the fourth required element of an FTCA malicious prosecution claim. Govt. Br. in Supp.
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of Mot. for Recons. at 13-14. “New York law considers the lack of probable cause and the
presence of malice closely related,” and “[a] lack of probable cause generally creates an
inference of malice.” Beckett v. Incorporated Village of Freeport, 2014 WL 1330557, at *15
(E.D.N.Y. Mar. 31, 2014) (internal citations omitted); see, e.g., Maxwell v. City of New York,
156 A.D.2d 28, 29 (N.Y. App. Div. 1990) (“A jury may infer the existence of actual malice
from the absence of probable cause”).
The Government asserts that “[b]ecause the Court held that ‘Quinoy has not met the
heavy burden of rebutting the presumption of probable cause,’ it should also have concluded that
Plaintiffs had failed to adequately allege any actual malice by the Government.” Govt. Br. in
Supp. of Mot. for Recons at 14 (quoting May Order at 17). In support of its assertion the
Government cites a recent district court decision, Beckett v. Incorporated Village of Freeport,
No. 11 Civ. 2163, 2014 WL 1330557 at *15 (E.D.N.Y. Mar. 31, 2014), which it says held that
“plaintiff’s failure to allege probable cause supported a conclusion that none of the defendants
were motivated by actual malice.” Govt. Br. in Supp. of Mot. for Recons. at 14. In Beckett, the
court had already reached the legal conclusion that there was no question of probable cause since
the plaintiff pleaded no facts showing that his indictment had been procured fraudulently.
Beckett, 2014 WL 1330557 at *14. Thus, this case is not on point.
C. Subject Matter Jurisdiction
The Government states that the Court erred in failing to dismiss plaintiffs’ malicious
prosecution claim against the Government “to the extent that claim arose out of Agent Pena’s
allegedly false grand jury testimony because Plaintiffs’ administrative tort claim failed to place
the FBI on notice on [sic] this theory of liability.” Govt. Br. in Supp. of Mot. for Recons. at 4.
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The Government admits that it raised this issue in its briefs in support of dismissal. See Mem. of
Law in Supp. of Mot. to Dismiss the Am. Compl. against Def. United States of America (“Govt.
Br. in Supp. of Mot. to Dismiss”) at 11; Reply Mem. of Law in Supp. of Mot. to Dismiss the
Am. Compl. against Def. United States of America at 2-8. It alleges the Court mischaracterized
the basis for its jurisdiction in “overly broad terms as being ‘premised…on Pena’s alleged acts
and omissions,’ which was an imprecise description that led the Court to assume jurisdiction
over unexhausted claims of Agent Pena’s allegedly false grand jury testimony, which Plaintiffs
never asserted in their administrative tort claim.” Govt. Br. in Supp. of Mot. for Recons. at 5.
The Government characterized plaintiffs’ administrative tort claim as focused solely on
Pena’s “intentional destruction of exculpatory evidence.” Govt. Br. in Supp. of Mot. to Dismiss
at 11. The question is whether plaintiffs’ tort claim was sufficient to put the Government on
notice of the alleged false testimony. A recent decision from the Eastern District of New York
states “a claim may be sufficient even if it does not present the claimant’s specific theories of
liability or the facts underlying those theories.” Young v. United States, 12-CV-2342 ARR SG,
2014 WL 1153911, at *8 (E.D.N.Y. Mar. 20, 2014). “[D]istrict courts in this circuit have found
that plaintiffs properly presented claims that a reasonable government investigation should have
revealed, even if the claim forms did not include the specific facts necessary to support the
claim.” Id.; see also Johnson by Johnson v. United States, 788 F.2d 845, 848-49 (2d Cir. 1986)
(finding that a claim form alleging sexual assault by a postal service employee was sufficient to
put the agency on notice of a claim for negligent supervision), overruled on other grounds by
Sheridan v. United States, 487 U.S. 392 (1988). Under this view, plaintiffs’ argument would be
that a claim of malicious prosecution against Pena premised on allegations that she intentionally

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destroyed exculpatory evidence was sufficient to put the FBI on notice that Pena may have acted
fraudulently in other instances within the context of the prosecution.
The Court need not reach the Government’s argument that the Court mistakenly found
subject-matter jurisdiction over plaintiffs’ allegations of false grand jury testimony because the
Second Circuit’s subsequent decision in Morales forecloses plaintiffs’ allegations of false grand
jury testimony.
D. Control Over the Prosecution
The Government takes issue with the Opinion’s reliance on Frigerio v. United States
because it does “not address any of the four substantive elements of plaintiff’s malicious
prosecution claim” and therefore does not “rebut the Government’s showing the Amended
Complaint contains no factual allegations to make out a plausible FTCA malicious prosecution
claim.” Govt. Br. in Supp. of Mot. for Recons. at 11. The Government states that Frigerio
implicated “the applicability of the intentional tort exception to the FTCA, which bars all claims
arising out of malicious prosecution and other intentional torts against the Government, except to
the extent those intentional torts arise out of ‘the acts or omissions of investigative or law
enforcement officers.’” Govt. Br. in Supp. of Mot. for Recons. at 11(quoting Frigerio, 2011 WL
3163330, at *10). Whether the Government may invoke this exception in a malicious
prosecution claim depends on whether control has passed to the prosecutor, who is not
considered an “investigative or law enforcement officer[]” for the purposes of the FTCA.
The question of control does not decide whether Quinoy has adequately pled lack of
probable cause and actual malice. Prosecutorial control is obviously relevant to Quinoy’s claim,
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and the Court explicitly stated that it could not make a finding as to whether Pena exerted
sufficient control at the pleading stage because of remaining factual questions. May Order at 19.
The Government’s argument that the Court cannot find control over the prosecution does not
support reconsideration to the extent that it seeks to relitigate issues already decided.
The Government’s subsequent argument that Quinoy has not alleged facts permitting a
plausible inference that Pena exerted sufficient control over the prosecution is without merit in
this motion for reconsideration because it seeks to relitigate an issue already decided. See May
Order at 19 (“This Court finds questions of fact regarding whether and how Pena motivated the
prosecution.”); see also Shrader, 70 F.3d at 257; Bennett v. Watson Wyatt & Co., 156 F. Supp.
2d 270, 272 (S.D.N.Y. 2001) (“Rather than pointing to factual matters or legal decisions the
Court overlooked, plaintiff argues that the Court improperly weighed the facts [and] wrongly
resolved conflicting facts in defendant’s favor… Such arguments are appropriate on appeal but
not on a motion for reconsideration.”)
CONCLUSION
For the reasons stated above, the Government’s motion for reconsideration is GRANTED
in part and DENIED in part. Plaintiffs’ malicious prosecution claim can only be based on the
theory that Agent Pena intentionally destroyed 1D-4; she is immune for her alleged false grand
jury testimony. Plaintiffs’ malicious prosecution and loss of consortium claims against the
Government survive. The Government is ordered to file an answer by September 4, 2014. The
Clerk of Court is respectfully requested to terminate this motion (Doc. No. 45).

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