Tyus v. Newton

GERJUAN TYUS, Plaintiff, v. ROGER NEWTON, et al., Defendants.

No. 3:13-cv-1486 (SRU)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

September 9, 2015

RULING ON FEDERAL DEFENDANTS' MOTION TO DISMISS

Gerjuan Tyus is currently incarcerated at Northern Correctional Institution in Somers, Connecticut. In October 2013, in both this Court and the Connecticut Superior Court for the Judicial District of New London, the plaintiff filed a civil rights action against defendants City of New London, County of New London, City of New London Police Department, Chief of New London Police Department Margaret Ackley, Lieutenants Brian Wright and Todd Bergeson, Sergeants Christina and Kevin McBride, Officers Roger Newton, Todd Lynch, Zelinski, Timothy Henderson, Liachenko, Marcaccio, Pelchat, Melissa Schafranski, Darrin Omara, Lamontagne and Alcohol, Tobacco, Firearms and Explosives ("ATF") Agents Wheeler, Scott Riordan, Robert Harrison, Dennis Turman and Guy Thomas. On November 19, 2013, the Superior Court defendants removed the state court action to this court. (See Tyus v. City of New London, et al., 3:13-cv-1726 (SRU), Pet. Removal, Doc. No. 1).

On January 6, 2014, the present case was consolidated with the action that had been removed to this Court by the defendants, Tyus v. City of New London, et al., 3:13-cv-1726 (SRU). The present case is the lead case, and the member case, Tyus v. City of New London, et al., 3:13-cv-1726 (SRU), has been closed.

On April 29, 2014, the court granted the plaintiff leave to file an amended complaint,denied without prejudice the motion to dismiss filed by the New London defendants, and dismissed the Sixth Amendment claims in Count I of the Amended Complaint and the conspiracy claims contained in Count V of the Amended Complaint pursuant to 28 U.S.C. § 1915A(b)(1). Thus, all claims in Count I and the conspiracy claims in Count V of the Amended Complaint have been dismissed. The remaining federal claims under the Fourth, Fifth and Fourteenth Amendments and state law tort and constitutional claims as set forth in Counts II, III(a), III(b), IV, V, VI, VII, VIII, IX, X, XI and XII¹ remain pending against the ATF defendants and the New London defendants in their individual and official capacities.

In June 2014, the New London defendants moved to dismiss some claims against them. On March 31, 2015, the court granted in part and denied in part the motion to dismiss filed by the New London defendants.²

The ATF defendants have moved to dismiss the claims against them pursuant to Rule 12(b)(1) and 12(b)(6). For the reasons set forth below, the motion is granted.

I. Standard of Review

A federal court must ensure the presence of subject matter jurisdiction as a threshold matter before proceeding to the merits of a case. See, e.g., Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir. 2001). The plaintiff bears the burden of proving, by a preponderance of evidence, that the court has subject matter jurisdiction. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

In reviewing a Rule 12(b)(1) motion to dismiss, the court takes the "facts alleged in the complaint as true and draws all reasonable inferences in favor of the plaintiff." Natural Resources Defense Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (citation and internal quotation marks omitted). When the existence of subject matter jurisdiction is challenged, the court may properly consider evidence outside of the pleadings submitted on this issue to determine whether subject matter jurisdiction exists. See State Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007).

When deciding a motion to dismiss for failure to state a claim upon which relief may be granted under Rule 12(b)(6), the court accepts as true all factual allegations in the complaint and draws inferences from those allegations in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Flores v. Southern Peru Copper Corp., 343 F.3d 140, 143 (2d Cir. 2003). The court's review is limited to "the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken." Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993). Thecourt considers not whether the plaintiff ultimately will prevail, but whether he has asserted sufficient facts to entitle him to offer evidence to support his claim. See York v. Association of the Bar of the City of New York, 286 F.3d 122, 125 (2d Cir. 2002).

In reviewing the complaint in response to a motion to dismiss, the court applies "a 'plausibility standard,' which is guided by two working principles." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). First, the requirement that the court accept as true the allegations in the complaint "'is inapplicable to legal conclusions,' and '[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949). Second, to survive a motion to dismiss, the complaint must state a plausible claim for relief. Determining whether the complaint states a plausible claim for relief is "'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. (quoting Iqbal, 129 S. Ct. at 1950). Even under this standard, however, the court liberally construes a pro se complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (per curiam) (internal quotation marks and citations omitted).

II. Facts

The court accepts as true the following allegations taken from the Amended Complaint as they relate to the defendants identified as ATF Agents Wheeler, Scott Riordan, Robert Harrison, Dennis Turman and Guy Thomas.

In November 2009, unidentified individuals arrested Tyus on federal criminal charges,including conspiracy and possession and distribution of narcotics. Tyus believes that the arrest resulted from a joint investigation conducted by officers of the New London Police Department and ATF Agents Riordan and Wheeler. On October 6, 2010, a jury in this Court acquitted the Tyus of all federal criminal charges in connection with his November 2009 arrest. See United States v. Muller, et al., 3:09-cr-247 (RNC) (Judgment of Acquittal after Jury Trial, Doc. No. 494).

When Tyus returned to the City of New London, officers within the City of New London Police Department began to follow him on a regular basis. Officers pulled Tyus over on January 18, 2011 and on January 22, 2011 and charged him with several traffic violations, but did not arrest him. On February 5, 2011, New London Police officers pulled Tyus over, searched him, arrested him on charges of possession of a dangerous weapon and transported him to the New London police station. At the station, a body cavity search of the plaintiff allegedly revealed multiple plastic bags of narcotics. New London officers also charged Tyus with possession of narcotics. Officers subsequently released him on bond.

Based on Tyus's February 5, 2011 arrest, ATF Agents Riordan, Wheeler, Turman and Thomas sought a warrant for his arrest on federal drug possession charges. On March 3, 2011, New London Police officers stopped Tyus's vehicle because there was an outstanding federal warrant for his arrest. Officer Newton asked Tyus to exit the vehicle because he said that he smelled the odor of marijuana in the car. During a pat-search, Officer Newton removed cash and a knife from Tyus, arrested him pursuant to the outstanding federal arrest warrant as well as on a state charge of possession of a dangerous weapon, and then transported him to the New London Police station.

On March 4, 2011, ATF Agents Riordan and Wheeler transported Tyus to federal court for a hearing on the drug possession charge for which he was arrested on March 3, 2011. On March 10, 2011, a federal grand jury indicted Tyus on one count of possession of narcotics with intent to distribute in violation of federal criminal statutes 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). See United States v. Tyus, 3:11-cr-45 (EBB) (Doc. No. 9). On April 8, 2011, Tyus pleaded not guilty to the charge at his arraignment before a United States Magistrate Judge. See id. at (Doc. No. 16).

On February 17, 2012, the United States moved to dismiss the federal criminal charges against Tyus after they became aware that on a prior occasion one of the arresting New London Police officers had been identified as having planted drugs on a suspect during an arrest. See id. at (Doc. No. 71). On February 21, 2012, the Court granted the motion to dismiss. (See id. at Doc. No. 72).

On September 17, 2012, Tyus pleaded guilty to one count of carrying a dangerous weapon in connection with his arrest by New London Police officers on March 3, 2011. A Superior Court Judge sentenced the plaintiff to three years of imprisonment. See Connecticut v. Tyus, Docket No. K10K-CR11-0312202-S (Conn. Super. Ct. Sept. 17, 2012).³

III. Discussion

The ATF defendants assert that the claims against them should either be dismissed pursuant to Rule 12(b)(1) or Rule 12(b)(6) of the Federal Rules of Civil Procedure. Because defendants Harrison, Wheeler, Riordan, Turman and Thomas are federal employees, the courtconstrues the action as having been filed against them pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) ("Bivens"). In Bivens, the Supreme Court held that federal officials may be sued for damages in their individual capacities for the violations of a person's constitutional rights. Thus, a Bivens action is the nonstatutory federal counterpart of a civil rights action pursuant to 42 U.S.C. §...