D'Alessandro v. Chertoff et al

Filing 81

DECISION AND ORDER: For the reasons set forth herein, Plaintiff's motion for reconsideration and leave to amend the complaint is denied. The complaint filed in this case is dismissed, and the Clerk's office shall take all steps to close the case. SO ORDERED. Signed by Hon. Richard J. Arcara on 12/21/2023. (LAS)Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

GIUSEPPE D'ALESSANDRO,
Plaintiff,
v.
MICHAEL CHERTOFF, JANET NAPOLITANO,
MICHAEL B. MUKASEY, ERIC HOLDER, JR.,
JULIE L. MEYERS, JOHN P. TORRES,
MICHAEL T. PHILLIPS, MARTIN HERRON,
CHARLES MULE, SEAN GALLAGHER,
EARL DELONG, KEVIN OETINGER,
DARREL CROTTER, and BRENDA BAILEY,

DECISION AND ORDER
10-CV-927-RJA

Defendants.

INTRODUCTION
On March 27, 2013, this Court granted (Dkt. No. 72) Plaintiff Giuseppe
D’Alessandro’s motion (Dkt. Nos. 61, 62, 63) for reconsideration of its December 12,
2011, Decision and Order (Dkt. No. 59) that granted Defendants’ parallel motions to
dismiss (Dkt. Nos. 37, 38) the Complaint under Federal Rule of Civil Procedure
(“Rule”) 12(b)(6). In that same filing, Plaintiff also moves for leave to file an
amended complaint under Rule 15(a)(2). Defendants have filed opposition papers
(Dkt. No. 66), and the parties subsequently filed various notices of supplemental
authority (see Dkt. Nos. 65, 67, 69-71, 73, 77, 79). Plaintiff appealed (Dkt. No. 68)
the December 12, 2011, Decision and Order but that appeal has been stayed
pending a ruling by this Court on Plaintiff’s motion. See Docket No. 12-576 (2d Cir.).
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This Court originally granted dismissal of the Complaint in its entirety for
failure to state a claim under Bivens v. Six Unknown Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), relying primarily on a Ninth Circuit case, Mirmehdi v.
United States, 662 F.3d 1073 (9th Cir. 2011), and holding relief under Bivens is not
available in the context of “wrongful immigration custody pending removal.” As
such, the Court deemed “consideration of defendants’ other arguments for dismissal
[as] unnecessary.”
Upon due consideration, and for the following reasons, the Court: (1) reaffirms
its prior determination that Plaintiff’s Bivens actions are subject to dismissal; and (2)
concludes that since the FTCA claims raised in the above-captioned lawsuit are
duplicative to those in Plaintiff’s still-pending 2013 lawsuit, the FTCA claims raised in
this lawsuit are—in order to avoid duplicative litigation—dismissed, without
prejudice. Curtis v Citibank, N.A., 226 F3d 133, 138 (2d Cir 2000); see also
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817
(1976). Accordingly, Plaintiff’s motion for reconsideration and leave to amend the
complaint is denied, and the complaint filed under 10-CV-927-A is dismissed without
prejudice.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff’s underlying criminal and immigration proceedings, as well as his
unlawful civil detention that led to this Court granting Plaintiff’s petition for habeas
corpus relief under 28 U.S.C. § 2241, have been comprehensively addressed in
prior decisions, and the Court sees no need to readdress them here. See, e.g.,
D’Alessandro v. Chertoff et al., 10-CV-927A, 2011 WL 6148756, 2011 U.S. Dist.
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LEXIS 142421, *4-7 (W.D.N.Y. Dec. 12, 2011); D’Alessandro v. Mukasey, 628 F.
Supp. 2d 368 (W.D.N.Y. 2009); People v. D’Alessandro, No. 8175-90, 2010 N.Y.
Slip. Op. 75591 (App. Div. 1st Dep’t June 29, 2010) (unpublished), lv. denied 909
N.Y.S.2d 28 (Table) (N.Y. Sept. 29, 2010).
Plaintiff brought the instant lawsuit pursuant to Bivens (Dkt. No. 1, pp. 1-2)
and against essentially two sets of defendants: those who worked at the Buffalo
Federal Detention Facility in Batavia, New York, i.e., Brenda Bailey, Darrel Crotter,
Earl Delong, Sean Gallagher, Martin Herron, Charles Mule, Kevin Oetinger, and
Michael T. Phillips; and those who worked for either the Department of Justice or
the Department of Homeland Security in Washington, D.C., i.e., Michael Chertoff,
Eric Holder, Jr., Julie L. Meyers, Michael B. Mukasey, Janet Napolitano, and John P.
Torres. Plaintiff also instituted a 2013 federal lawsuit (“the 2013 action”) against the
same defendants as those in the instant suit but including the United States of
America as a defendant and bringing the action pursuant to the Federal Torts
Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq. (see 13-CV-416, Dkt. No.
1).
Both the instant lawsuit and the 2013 action arise from Plaintiff’s wrongful
detention at the Buffalo Federal Detention Facility from November 19, 2007, to April

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2, 2009, with this case asserting violations of Plaintiff’s rights under the United
States Constitution, 1 and the 2013 action asserting tort claims under the FTCA. 2
On June 18, 2019, Judge Michael A. Telesca, to whom both cases were
reassigned for a period, issued a Decision and Order in the 2013 action (13-CV-416,
Dkt. No. 67) that dismissed with prejudice all individual defendants, with the sole
remaining defendant being the United States of America. Within that Decision and
Order, Judge Telesca summarized at length the procedural history of the case at
bar, including the parties’ positions on the issues currently before the Court (see 13CV-416, Dkt. No. 67, pp. 2-10). Again, for sake of efficiency, the Court sees no
need to duplicate those efforts, and will refer to them only as necessary to explain its
reasoning herein.
DISCUSSION
Plaintiff moves for reconsideration of the Court’s Decision and Order pursuant
to Rule 59(e).

The five causes of action in the Complaint are: (1) denial of due process under the
Fifth Amendment; (2) unreasonable seizure of Plaintiff’s person in violation of the Fourth
Amendment, through a detention that persisted without required custodial reviews; (3)
deliberate indifference to Plaintiff’s liberty interest in violation of the Eighth Amendment,
stemming from failure to conduct the required custodial reviews; (4) deliberate
indifference to Plaintiff’s serious medical needs and denial of medical care that required
attention beyond what he received in immigration custody in violation of the Eighth
Amendment; and (5) implementing customs and policies in violation of his Fourth, Fifth,
and Eighth Amendment rights.
1

The five causes of action in the 2013 action are: (1) negligent continued imprisonment
and detention; (2) failure to provide proper medical treatment; (3) false imprisonment;
(4) intentional infliction of emotional distress; and (5) abuse of process.
2

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“Under Fed. R. Civ. P. 59(e), a court may grant reconsideration where the
party moving for reconsideration demonstrates an ‘intervening change in controlling
law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.’” Wiltshire v. Williams, 10 Civ. 6947, 2012 WL 899383, 2012 U.S.
Dist. LEXIS 36119, *5 (S.D.N.Y. Mar. 15, 2012). “It is well-settled that Rule 59 is not
a vehicle for relitigating old issues, presenting the case under new theories, securing
a rehearing on the merits, 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)
(internal quotation marks and citation omitted). Rather, “[t]he standard for granting a
motion for reconsideration is strict, and reconsideration will generally be denied
unless the moving party can point to controlling decisions or data that the court
overlooked.” United States v. Bright, 22-1644-cr, 2023 WL 3830783, 2023 U.S.
App. LEXIS 13985, *5-6 (2d Cir. June 6, 2023) (internal quotation marks and citation
omitted). “Even if a court grants a motion for reconsideration, it can reaffirm on
other grounds the conclusion reached in its previous opinion.” Wiltshire, 2012 U.S.
Dist. LEXIS 36119, at *8.
Plaintiff’s primary argument is that this Court, in rendering its decision,
“overlooked” several of Plaintiff’s arguments raised in response to Defendants’
motion to dismiss, as well as “supporting, controlling case law” that required denial
of Defendants’ motion. Plaintiff argues that Second Circuit case law runs contrary to
Mirmehdi, and Mirmehdi is nevertheless distinguishable and unpersuasive as its
holding was limited to circumstances inapplicable here.

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This Court considered and rejected these arguments, which were presented
by Plaintiff at oral argument on the motions to dismiss and in written submissions,
including supplemental, Court-ordered briefing with respect to Mirmehdi. See
CM/ECF Minute Entry, 09/26/2011; Dkt. No. 57. Because the Court did not find
Plaintiff’s arguments persuasive, it did not discuss each argument at length in its
decision. Moreover, the Court concludes that the supplemental authority relied upon
by Plaintiff does not alter its original decision to dismiss the Complaint for failure to
state a claim under Bivens.
Next, Plaintiff argues the Court’s decision overlooked Plaintiff’s request to
automatically substitute the United States as a party defendant in place of
Defendant Brenda Bailey and convert those claims to ones against the United
States under the FTCA pursuant to the Westfall Act’s certification and compulsory
substitution provision, 28 U.S.C. § 2679(d)(1), as triggered by Defendants’
Certification of Scope of Employment (Dkt. No. 37-13) submitted to the Court as part
of Defendants’ motion to dismiss. Plaintiff argues that while the Court’s decision
makes mention of this argument, it was not substantively addressed, and “[t]his
argument is significant, because regardless of the availability of a Bivens claim, the
case should continue against the United States as the substituted party for Bailey
under the FTCA.” Dkt. No. 62, p. 4. In the alternative, Plaintiff requests leave to
serve an amended complaint to include additional causes of action against the
United States under the FTCA “based on the same conduct alleged in the original
Complaint”—asserting this alternative theory of recovery and not adding any new
factual allegations. Plaintiff argues the original Complaint alleged negligence on part
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of Defendants “but did not specifically include the alternative theory for recovery
under the FTCA.”
“Simply stated, the question under Rule 12(b)(6) is whether the facts
supporting the claims, if established, create legally cognizable theories of recovery.”
Beh v. Community Care Companions, 19-CV-1417-JLS-HBS, 2021 U.S. Dist. LEXIS
197316, *2-3 (W.D.N.Y. Feb. 1, 2021) (internal quotation marks and citation
omitted). As discussed at length by Judge Telesca (see 13-CV-416, Dkt. No. 67, pp.
14-24), as in the instant action, “courts have construed complaints specifically
asserting Bivens claims as raising FTCA claims even though the FTCA was not
mentioned by the plaintiffs” (collecting cases); see, e.g., McQueen v. United States,
9:19-CV-0998 (TJM/CFH), 2019 WL 4221545, 2019 U.S. Dist. LEXIS 151149, *5
(N.D.N.Y. Sept. 5, 2019) (“Construing the Complaint liberally, the negligence claim
will be considered filed under the FTCA…”). Like Judge Telesca, this Court
concludes the United States was substituted by statute for Dr. Bailey upon the filing
of Defendants’ Certification, and the Complaint contains facts necessary to assert a
cause of action under the FTCA for alleged negligence in rendering medical care to
Plaintiff.
Even so, the Court would dismiss those claims under the FTCA as duplicative
of those remaining in the 2013 action. “As part of its general power to administer its
docket, a district court may stay or dismiss a suit that is duplicative of another
federal court suit.” Curtis v. Citibank, N.A., 226 F.3d at 138; see Colorado River
Water Conservation Dist., 424 U.S. at 817 (“As between federal district courts . . .
the general principle is to avoid duplicative litigation.”). Again, the 2013 action
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asserting FTCA claims has continued against the United States as the sole
defendant, and thus the two actions would be duplicative.
In the same vein, the Court denies Plaintiff’s motion for leave to amend.
Because Defendants do not consent to Plaintiff amending his Complaint, Plaintiff
may do so “only with . . . the court’s leave.” Fed. R. Civ. P. 15(a)(2). And although
the Rule states that “[t]he court should freely give leave when justice so requires,” it
is well-established that “[d]enial of a motion to amend is . . . permitted when the
requested amendment is futile”—in other words, “[l]eave to amend may be denied
as futile when any newly asserted claims would not withstand a motion to dismiss.”
Gordon v. Niagara Wheatfield Cent. Sch. Dist., 1:22-CV-00172 JLS(MJR), 2023 WL
6520216, 2023 U.S. Dist. LEXIS 147735, *2 (W.D.N.Y. Aug. 21, 2023). Here,
Plaintiff states, “[t]he FAC (First Amended Complaint) asserts claims under the
FTCA for negligence and false imprisonment based on the individual Defendants[’]
tortious actions, done with in the scope of their employment for the United States,
that caused [Plaintiff] to wrongly and negligently detained, and to endure improper
conditions of confinement and medical care.”). Dkt. No. 62, pp. 21-22; see Cichocki
v. United States, 21-CV-1034S, 2022 WL 3030151, 2022 U.S. Dist. LEXIS 136230,
*4 (W.D.N.Y. Aug. 1, 2022) (“FTCA claims asserted directly against federal
employees for conduct taken within the scope of their employment cannot survive.”).

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for reconsideration and leave to
amend the complaint is denied, and the complaint filed under 10-CV-927-A is
dismissed without prejudice.

IT IS SO ORDERED.
s/Richard J. Arcara___________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: December 21, 2023
Buffalo, New York

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