Green-Page v. United States

OPINION AND ORDER GRANTING THE UNITED STATES OF AMERICA'S MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT AND CROSS-CLAIMS ASSERTED BY CO-DEFENDANTS (DOC. 23)

Christina Reiss, District Judge United States District Court

Plaintiffs, Gertetta Green-Page and Ka'Sean Anthony, bring this action against the United States of America (the "USA") and others alleging violations of their constitutional rights as well as state law tort claims arising out of the execution of a search warrant at their residence.

Pending before the court is the USA's motion to dismiss the state law tort claims asserted against it in the Fourth through Ninth Causes of Action in Plaintiffs' Amended Complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), or, in the alternative, to dismiss the Amended Complaint for improper service of process pursuant to Fed.R.Civ.P. 12(b)(5). The USA also moves to dismiss any cross-claims asserted against it by its co-Defendants County of Erie, Erie County Sheriffs Department, City of Buffalo, and Buffalo Police Department (collectively, the "Municipal Defendants").

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On June 23, 2021, Plaintiffs opposed the motion to dismiss, and on June 30, 2021, the USA filed a reply, at which time the court took the pending motion under advisement. The Municipal Defendants take no position on the pending motion. Plaintiffs are represented by Steven M. Cohen, Esq. The USA is represented by Assistant United States Attorney Mary K. Roach. Defendants County of Erie and Erie County Sheriffs Department are represented by Thomas J. Navarro, Esq. Defendants City of Buffalo and Buffalo Police Department are represented by Maeve Eileen Huggins, Esq. and Christopher R. Poole, Esq.

I. Procedural Background.

On September 13, 2019, Plaintiffs submitted a Notice of Claim to the Federal Bureau of Investigation ("FBI"), the Drug Enforcement Administration ("DEA"), and the Municipal Defendants. The Notice of Claim set forth the time, place, nature, and manner in which the Plaintiffs' claims arose but did not contain a request for a sum certain of damages. On September 27, 2019, the DEA advised Plaintiffs' counsel of its receipt of the Notice of Claim and informed counsel that a SF 95 Form containing a sum certain of damages must be completed. A copy of the SF 95 Form was forwarded to Plaintiffs' counsel but was not filled out and returned. On June 18, 2020, Plaintiffs filed their Complaint in New York State Supreme Court. On July 6, 2020, the FBI and DEA removed the action to federal court.

On October 26, 2020, the FBI and DEA moved to substitute the USA as a Defendant in their place and to dismiss Plaintiffs' Complaint for improper service of process, lack of subject matter jurisdiction, and failure to state a claim upon which relief could be granted. On May 10, 2021, this court issued an Opinion and Order (Doc. 20) granting the motion to substitute and dismiss, finding that Plaintiffs failed to properly serve the USA, Plaintiffs' constitutional claims (First and Second Causes of Action)^[1]were barred by sovereign immunity, and Plaintiffs' state law tort claims (Fourth through Ninth Causes of Action) were barred because Plaintiffs failed to satisfy the Federal Tort

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Claims Act's (the "FTCA") presentment requirement which requires that a Notice of Claim include a sum certain of damages. The court granted Plaintiffs leave to amend their Complaint and noted that it would reconsider Plaintiffs' request for an extension of time in which to perfect service of process in the event Plaintiffs filed an Amended Complaint.

On May 28, 2021, Plaintiffs filed an Amended Complaint.^[2] In their Fourth through Ninth Causes of Action in the Amended Complaint, Plaintiffs assert the same state law tort claims against the USA which the court previously dismissed.^[3]

II. Allegations in the Amended Complaint.

Plaintiff Page is the grandmother of Plaintiff Anthony. At approximately 6:00 a.m. on June 19, 2019, Plaintiffs were "asleep in their bedrooms in their home located at 43 Schauf Street, Lower in Buffalo, New York" when they were awakened by the sound of "an unknown No. of agents or officers of Defendants busting through the front door with a battering ram." (Doc. 21 at 4, ¶¶ 24-25.) Plaintiff Anthony alleges that he "got out of bed to investigate and saw agents or officers of Defendants rushing into the home" wearing "body armor [and] masks and carrying what Plaintiff Anthony believed[] to be assault rifles." Id. at 4-5, ¶¶ 26-27. Defendants directed Plaintiff Anthony to put his hands up and directed Plaintiff Page to come out of her bedroom. Plaintiffs were told to sit in chairs in or near the living room of their house, and their hands were "zip-tied behind their backs[.]" Id. at 5, ¶ 30. Plaintiff Anthony's hands were allegedly tied "so tight[ly] that his wrists began bleeding." Id. at 5, ¶ 35. "Plaintiffs were tied to their chairs and forced to watch while the[ir] home was torn apart" by Defendants. Id. at 5, ¶ 34.

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Plaintiffs allege Defendants told them they were in possession of a search warrant, but it was not shown to them. Defendants allegedly "forcibly, violently, and negligently ransack[ed] Plaintiffs' home," which caused damage to it as well as to Plaintiffs' personal property. Id. at 5, ¶ 33. Plaintiffs were eventually released from the zip-ties and informed that the search warrant was for a person named '"Guy Burt[, ]'" who is "not known by either Plaintiff." (Doc. 21 at 5, ¶ 37.) "At no point did Plaintiffs attempt to resist" Defendants "or become violent in any way." Id. at 5, ¶ 38.

In their First Cause of Action in the Amended Complaint, Plaintiffs allege the Municipal Defendants engaged in an unreasonable seizure and deprived them of liberty without due process of law. In their Second Cause of Action, Plaintiffs allege the Municipal Defendants violated their civil rights through an excessive use of force. In their Third Cause of Action, Plaintiffs allege the Municipal Defendants violated their civil rights through "punishment without due process of law[.]" Id. at 8, ¶ 56. In their Fourth through Ninth Causes of Action against the Municipal Defendants and the USA, Plaintiffs allege state law tort claims of battery; false arrest; false imprisonment; intentional infliction of emotional distress; negligent infliction of emotional distress; and negligent hiring, training, and supervision.

III. Conclusions of Law and Analysis.

A. Whether Plaintiffs' State Law Tort Claims (Fourth through Ninth Causes of Action) Should be Dismissed for Lack of Subject Matter Jurisdiction.

"[A] district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) if it 'lacks the statutory or constitutional power to adjudicate it.'" Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). "In resolving the question of jurisdiction, the district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002).

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In its May 10, 2021 Opinion and Order, the court held that Plaintiffs' state law tort claims against the USA were barred because Plaintiffs failed to satisfy the jurisdictional presentment requirement of the FTCA. In their Amended Complaint, Plaintiffs allege the same state law tort claims previously dismissed by this court; however, they now assert, without explanation, that this court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 1491; the Constitution of the State of New York Article VI, § 19; and 28 U.S.C. § 1367.

28 U.S.C. § 1491 provides, in relevant part, that:

(a)(1) The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1) (emphasis supplied). According to its plain language, Section 1491 confers jurisdiction on the United States Court of Federal Claims, not a United States District Court. Moreover, the statute confers jurisdiction only for claims "not sounding in tort." Id. It thus does not provide subject matter jurisdiction for Plaintiffs' state law tort claims against the USA. To the contrary, if a party seeks to assert a tort claim against the USA, the FTCA is the "exclusive" remedy. F.D.I.C. v. Meyer, 510 U.S. 471, 476 (1994) (noting that if a suit is cognizable under 28 U.S.C. § 1346(b), the FTCA remedy is exclusive and the federal agency cannot otherwise be sued in its own name).

Neither Article VI § 19 of the New York State Constitution nor 28 U.S.C. § 1367 confers subject matter jurisdiction over Plaintiffs' tort claims against the USA. Article VI provides for the transfer of actions and proceedings between the state courts of New York and has no bearing on the subject matter jurisdiction of a federal District Court. NY. Const, art. VI, § 19. 28 U.S.C. § 1367 governs supplemental jurisdiction and states in relevant part:

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by