Ward v. United States

JAMES P. WARD, Plaintiff, v. UNITED STATES OF AMERICA and MIANKANZE BAMBA, Defendant.

No. 20-CV-5676 (JPO)

United States District Court, S.D. New York

August 30, 2021

OPINION AND ORDER

J. PAUL OETKEN, DISTRICT JUDGE

James P. Ward, a former employee of the United States Department of Homeland Security, brings suit against the United States and his former colleague, Miankanze Bamba, in his individual capacity. Ward asserts claims of malicious prosecution against both Defendants and a claim of false arrest against the Government, seeking damages pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq. (“FTCA”). The Government moves to substitute itself for Bamba and then to dismiss Ward's claims based on lack of subject matter jurisdiction and on Ward's failure to state a claim upon which relief can be granted. For the reasons that follow, the Government's motion is granted.

I. Background

James P. Ward was previously employed as Risk Management Branch Chief/Law Enforcement Specialist for the Federal Protective Service (“FPS”), a component of DHS. (Comp ¶¶ 11-12.) Ward was stationed at the FPS office in New York City. (Comp. ¶ 12.) In March 2018, Ward entered the office of a subordinate, Financial Analyst Miankanze Bamba, accompanied by another employee, Jason Martinez. (Comp. ¶¶ 14, 16.) At the time he entered

The following facts, drawn from the operative complaint, are presumed true for purposes of this motion. (See Dkt. No. 1 (“Comp.”).) Bamba's office, Ward, who is right-handed, was wearing an agency-issued firearm holstered near the right rear pocket of his pants. (Comp ¶ 23.) Ward's aim was to discuss Bamba's apparent refusal to assign funding for a particular project. (Comp. ¶ 14.) When Bamba insisted that he could not assign the funding, the exchange grew confrontational. (Comp. ¶¶ 17-19.) The confrontation reached its crescendo when Bamba began shouting that Ward was threatening him with a firearm, then called 911 to report this allegation. (Comp. ¶¶ 21, 24.) After Bamba hung up, Ward instructed him to leave the office to go meet police officers who would be responding to the 911 call. (Comp. ¶ 25.) Bamba did not heed Ward's instruction and tried to call 911 again, at which point Ward blocked Bamba's call by holding down the receiver button on Bamba's desk phone. (Comp. ¶¶ 25-26.) NYPD officers responding to Bamba's initial 911 call spoke with Bamba and Martinez, who had witnessed the entire confrontation. (Comp. ¶¶ 29-30.) Martinez informed the NYPD officers that Ward had not threatened Bamba and that the latter had a history of making false allegations against co-workers and supervisors; the officers left, stating that they considered the incident an internal federal government issue. (Id.) Three weeks later, DHS launched an internal investigation, led by Special Agent Steven

Familio, into the confrontation between its two employees. (Comp. ¶ 32.) Bamba alleged during the investigation that Ward had placed “his left hand on a gun at his left side, ” had “never [taken] his hand off his gun, ” had “pushed [Bamba] in the chair, ” had “spun [Bamba] around, ” and had “grabbed [Bamba's] phone.” (Comp. ¶ 1, 22, 27.) Special Agent Familio concluded his investigation in August, recommending that DHS seek a New York warrant and grand jury indictment against Ward. (Comp. ¶ 33.) The warrant and indictment were obtained, and Ward was arrested that month. (Comp. ¶ 36.) Although two NYPD detectives took Ward into custody, Special Agent Familio was present, and is listed on the NYPD arrest report as the arresting officer. (Comp. ¶ 37.) A few hours after the arrest, Special Agent Familio filed a misdemeanor information against Ward for violation of Sections 120.14(1), 120.15, and 145.00(4)(a) of the New York State Penal Code - Menacing in the Second Degree, Menacing in the Third Degree, and Criminal Mischief in the Fourth Degree, respectively. (Comp. ¶ 42.) A week later, Bamba filed a superseding information for violation of these same sections. (Comp. ¶ 44.) As a direct result of the information against him, Ward lost his security clearance and was placed on indefinite suspension by DHS. (Comp. ¶ 49.) In May 2019, nine months after his arrest, all charges against Ward were dismissed. (Comp. ¶¶ 47-48.)

Ward alleges that Bamba “acted out of malice or otherwise unjustified motives” toward him when Bamba included “knowingly and intentionally” false accusations in the information he filed. (Comp. ¶¶ 27, 45.) Similarly, Ward alleges that Agent Familio “acted out of malice or otherwise unjustified motives” when he carried out an arrest without probable cause. (Comp. ¶¶ 35, 38.) Ward brings suit alleging: (1) false arrest against the Government for Special Agent Familio's conduct, (2) malicious prosecution against the Government for Special Agent Familio's conduct, (3) malicious prosecution against the Government for Bamba's conduct while a Government employee, (4) malicious prosecution against Bamba in his private capacity.

II. Legal Standards

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, “[a] claim may be properly dismissed for lack of subject matter jurisdiction where a district court lacks constitutional or statutory power to adjudicate it.” Kingsley v. BMW of N. Am. LLC, 2012 WL 1605054, at *2 (S.D.N.Y. May 8, 2012). In resolving a motion to dismiss under Rule 12(b)(1) based solely on a facial challenge to the sufficiency of a pleading, “the district court must take all uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain 's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). Nevertheless, the party asserting subject matter jurisdiction bears “the burden of proving by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a plaintiff pleads facts that would allow “the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The Court must accept as true all well-pleaded factual allegations in the complaint, and ‘draw [ ] all inferences in the plaintiffs favor.'” Goonan v. Fed. Reserve Bank of N.Y., 916 F.Supp.2d 470, 478 (S.D.N.Y. 2013) (alteration in original) (quoting Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006)). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

III. Discussion

First, the Government moves to substitute itself for Bamba as a defendant (dismissing Bamba with prejudice). Second, the Government moves to dismiss all claims for lack of subject matter jurisdiction under Rule 12(b)(1). Alternatively, the Government moves to dismiss the claims for failure to state a claim under Rule 12(b)(6). The Court addresses each motion in turn.

A. Motion to Substitute

The FTCA grants plaintiffs a cause of action for “injury or loss of property, . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). The FTCA is a limited waiver of sovereign immunity by the United States and “a claimant's exclusive remedy for nonconstitutional torts by a government employee acting within the scope of his employment is a suit against the government under the FTCA.” Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994) (emphasis added).

Under New York law, ^[1] five factors must be weighed to determine whether Bamba, when he filed a criminal information based on alleged falsehoods, was acting within the scope of his employment: (1) the connection [among] the time, place[, ] and occasion for the act; (2) the history of the relationship between employer and employee as spelled out in actual practice; (3) whether the act is one commonly done by such an employee; (4) the extent of departure from normal methods of performance; and (5) whether the specific act was one that the employer could reasonably have anticipated. Riviello v. Waldron, 47 N.Y.2d 297, 303 (N.Y. 1979).

The first and third factors of the Riviello test suggest that Bamba was acting within the scope of his employment when he filed his complaint. Bamba's criminal information detailed a confrontation that occurred during work hours while Bamba was in his office, and revolved around a work responsibility. Therefore, a clear connection exists between the occasion of Bamba's act and his status as an employee of the Government. See Tomscha v. Poole, 2016 WL 7378974, at *8 (S.D.N.Y. December 20, 2016) (applying the Riviello test to a similar dispute and concluding that a clear connection existed). With respect to the third factor, although it is likely uncommon for DHS employees to file criminal complaints relating to workplace disputes, there is nothing uncommon about filing a criminal complaint when one is threatened with a weapon or believes he is being physically prevented from seeking help. In Riviello itself, the complained-of facts were highly uncommon: a waiter accidentally stabbed a patron in the eye with a knife he was showing the patron. Yet the Riviello court looked not at the precise occurrences that led to the complaint, but rather at whether those occurrences happened within the context of...