Pascual v. U.S. Immigration and Customs Enforcement et al, No. 1:2011cv07075 - Document 37 (S.D.N.Y. 2013)

Court Description: OPINION re: 30 MOTION to Dismiss filed by all Defendants. For the reasons set forth above, the Defendants' motion to dismiss is granted with prejudice. (Signed by Judge Robert W. Sweet on 1/28/2013) (cd)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -- -- --x MINERVA PASCUAL, Plaintiff t 11 Civ. 7075 against OPINION S.A. MICHAEL FERNANDEZ, ET AL., Defendants. -- -- -- -- -- -- -- -- -- -- -- X A P PEA RAN C E S: Plaintiff Pro Se MINERVA PASCUAL Inmate No. 64735 053 FPC Route 37 DanburYt CT 06811 Attorney for Defendants UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK 86 Chambers Streett 3 rd Floor New York, New York 10007 By: Louis A. Pellegrino Assistant U.S. Attorney Sweet, D.J. The defendants Special Agent Michael Fernandez ("Agent Fernandez") Lattuca") I Special Agent John Lattuca ("Agent Special Agent Freddy Gomez I ("Agent Gomez") I Agent Joseph Jerla ("Agent Jerla"), Special Agent Pat Special cia pI i val ("Agent Pliva" ), Special Agent Joseph Magil ton ("Agent Magilton") I Special Agent Kyle Bowdy ("Agent Bowdy") and Special Agent Gonzalez ("Agent Gonzalez" ) (collectively, "Defendants") have moved to dismiss plaintiff Minerva Pascual's ("Plaintiff" or "Pascual") amended complaint pursuant to Fed. R. Civ. P. 12 (b) (1) 12(b) (1)", I (b) (5) and (b) (6) ("Rule "Rule 12(b) (5)" and "Rule 12(b) (6)", respectively) For the reasons set forth below, Defendants I motion is granted, and the amended complaint is dismissed with prejudice. Pascual's complaint misspells Agent Pliva's surname as "Pelva. 1I To avoid confusion, the correct spelling of Agent Pliva's name will be used herein. 1 1 Prior Proceedings On September 14, 2011, Pascual filed a complaint in the Eastern District of New York alleging various constitutional violations arising from her interactions with federal agents during the course of, and in the hours following, her arrest on September 16, 2008, as part of a "controlled delivery" of narcotics that occurred in New York City. The complaint named as defendants several federal agencies, as well as a number of individual federal agents. The case was transferred to this District on October 7, 2011, and on November 17, 2011, Chief Judge Preska issued an order in which she found that Pascual failed to state a viable claim against any of the defendants, and directed Pascual to file an amended complaint within 60 days. See Dkt. No. 8 ("Order to Amend") . On January 11, 2012, Pascual filed an amended complaint. As opposed to the initial complaint, the amended complaint did not name any federal agencies as defendants, but did name as defendants the same individual agents who were named in the initial complaint { as well as several additional 2 agents. The amended complaint (hereinafter, "Complaint") alleged violations of Pascual's rights under the Fourth, Eighth and Fourteenth Amendments as well as under 42 U.S.C. § 1983. The allegations of the Complaint are set forth below and are assumed to be true for the purposes of the instant motion to dismiss. See , No. 12 e . . , Musah v. Hous Civ. 3207 (RWS) , 2012 WL 5835293, at *2 (S.D.N.Y. Nov. 16, 2012) . On September 16, 2008, plaintiff Minerva Pascual drove her cousin to a location in northern Manhattan to meet with a Peruvian drug dealer. See Compl. ~~ 3,7. When they arrived, Pascual waited in her car and her cousin went to meet the drug dealer. Pascual's cousin was subsequently arrested by federal agents (the "Agents") while he was participating in a "rooftop rendevous [sic] with [the] Peruvian [sic] drug courier. II Id. at ~ 7. Following the arrest of Pascual's cousin, the Agents approached Pascual's car and arrested Pascual. Id. During the course of Pascual's arrest, a male agent, 3 Agent Fernandez, dragged her out of the car by grabbing her neck and forced her face into the car, and then handcuffed her very tightly. Id. at ~ 9. Pascual was then driven to an alley around the corner from the location of her arrest, whereupon Agent Fernandez conducted a pat-down search of Pascual which involved touching Pascual's "breast, buttocks, and inner thighs. H Id. Pascual requested to have an opportunity to relieve herself, but was told that she could not do so until she had been brought back to the Agents' headquarters. Id. at ~ 11. Pascual was then driven to the Narcotics Smuggling Unit located in Queens, New York (the "NSU H minutes. Id. at ~ ), a trip that lasted 45 12. Upon arriving at the NSU, Pascual again asked to use the bathroom, and in response was "threatened and verbally abused H by Agent Fernandez, who told Pascual that she would not be allowed to use the bathroom until she signed a consent form permitting a search of her car. Id. at ~ 13. Pascual then gave consent for her car to be searched, and immediately thereafter Agent Fernandez ordered Agent Bowdy to take Pascual to the bathroom. Id. at ~ 14. Agents Bowdy and Gonzalez then 4 drove Pascual to a building and brought her to a "holding cell/place" where there was a toilet. rd. Agent Bowdy removed Pascual's handcuffs and "allowed [Pascual] no privacy" whi she used the toi outside of the room. , while Agent Gonzalez remained rd. After Pascual used the bathroom, she was handcuffed and escorted by Agents Bowdy and Gonzalez to the NSU office, where she was subjected to a "cavity search/strip search" by Agent Pliva. rd. Pascual was subsequently indicted for her e in the drug transaction, and on January 23, 2009, moved to suppress property seized from her car (the "Car Evidence") on the grounds that her consent to search the car was involuntary and the result of coercion. rd. at ~ 19. The Court held a hearing in April 2009, and ruled that the consent was voluntary and therefore deni suppression. ensuing trial resulted in a mistrial. rd. Pascual's rd. On June 9, 2010, Pascual moved to have the Car Evidence suppressed at her second trial, but the Court denied the motion. rd. at ~ 20. At the conclusion of the second 5 trial on October 20, 2010, Pascual was convicted. 21. However, Pascual remained out rd. at ~ prison pending her motion to reconsider the Court's denial of her motion to suppress the Car Evidence. rd. On November 3, 2010, the Court granted Pascual's motion to reconsider, and st that it could not conclude that Pascual voluntarily consented to the search her car, and there Order to Amend at 2-3. withdrew that finding. However, the Court went on to state that it nonetheless "s[aw] no basis to suppress" Evidence. rd. at 3. Car Following this ruling, Pascual was sentenced on July 7, 2011. rd. The instant motion was taken on submission on October I, 2012. Applicable Standard On a motion to dismiss pursuant to Rule 12(b) (6), all factual allegations in the complaint are accepted as true, and I inferences are drawn in favor of ~p~o~l~a~r~M~o~I ¢. =~==~~~~, pleader. Mills v. 12 F.3d 1170, 1174 (2d Cir. 1993). The issue "is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support 6 the claims.1t Villager Pond l Inc. v. Town of Darien l 56 F.3d 375 1 378 (2d 232 / 235-36 r. 1995) (quoting Scheuer v. Rhodes I 416 U.S. (1974)). To survive a motion to dismiss pursuant to Rule 12 (b) (6) "a compl I accepted as true l must contain sufficient factual matter l to 'state a claim to relief that is plausible on its face. S.Ct. 1937 1 550 U.S. 544 III 1949 (2009) 1 Ashcroft v. I (quoting I 556 U.S. 662 1 129 I Atl. Corp. v. Twombly 570 (2007)). if I must allege sufficient facts to "nudge [ ] their claims across the line from conceivable to plausible." ______ ~I the court must accept the factual as true l 550 U.S. at 570. Though ions of a complaint I it is "not bound to accept as true a legal conclusion couched as a factual allegation. 1t (quoting Twombly I ~~_I 556 U.S. at 678 550 U.S. at 555) When a litigant is proceeding pro se l "h[er] submissions will [ ] be liberally construed and read to raise the strongest argument they suggest. F.3d 75 1 79 (2d Cir. 1996). 1I Graham v. Henderson l 89 In addition l the submissions pro se litigants are held to "less stringent standards than formal pleadings drafted by lawyers / 7 ll Hughes v. Rowel 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980), and courts "apply[] a more flexible standard to evaluate their sufficiency tha[n] when reviewing a complaint submitted by counsel," Lerman v. Bd. of =E=l=e=c=t=l='o=n~s~i=n~C=l='~~-=o=f-=N=.=Y~., 232 F.3d 135, 139 40 (2d Cir. 2000) . That being said, "pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law." F.3d 471, 477 Triestman v. Fed. Bureau of Prisons, 470 (2d Cir. 2006) (internal citation and quotation marks omitted) . The Claims Against the Defendants are Dismissed Pascual purports to assert Bivens claims 2 under the Fourth, Eighth and Fourteenth Amendments, as well as 42 U.S.C. § 1983. See Compl. ~~ 2, 5. However, Pascual's allegations are limited to events that occurred incident to her arrest, such as unreasonable seizure and the use of excessive force. Pursuant to the Supreme Court's decision in Bivens v. Six Unknown Fed. Narcotics s, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), "a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights." Camreta v. Greene, 131 S.Ct. 2020, 2031 (2011) . 2 8 ~ See id. at 27. Such claims are exclusively analyzed under the Fourth Amendment, rather than the Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386, 394-95 (1989). Moreover, a Bivens claim for a Fourteenth Amendment violation does not exist, as the Supreme Court has, to this date, created Bivens remedies only for violations of the Fourth t Fifth and Eighth Amendments. Arar v. Ashcroft, 532 F.3d 157 t 177 (2d r. 2008), overruled em other grounds, 585 F.3d 559 (2d Cir. 2009) (en banc) , cert. denied, 130 S.Ct. 3409 (2010). In addition, an Eighth Amendment Bivens claim is inappos because the Eighth Amendment only protects against conduct that occurs after a criminal conviction, see Ingraham v. Wright, 430 U.S. 651 t 671 n. 40 (1977), whereas Pascual's allegations concern events that occurred around the time her arrest, which was several years prior to her conviction. Finally, a claim under 42 U.S.C. § 1983 claim is inapposite because that statute applies only to claims of a deprivation a constitutional right by a defendant acting under color of state law, see Bivens v. Six Unknown s of Fed. Bureau of Narcotics, 409 F.2d 718, 720 n. 1 (2d Cir. 1969), revtd on other , 403 U.S. 388 (1971), whereas 9 Pascual asserts claims against federal agents who were acting under color of federal law. Viewing Pascual's claims liberally due to her pro se status, see Graham, 89 F.3d at 79, there allegations are construed as asserting causes of action under the Fourth Amendment. However, as set forth below, allegations in the Complaint fail to state a Fourth Amendment claim against any A. the Defendants. 3 Agent Gomez Pascual alleges that Agent Gomez was present for a portion of her interrogation (during which Agent Fernandez allegedly acted ~~ an abusive nature towards 18 & 22, but does not all ), see Compl. that Agent Gomez acted in an inappropriate or abusive nature towards her. Even if Pascual's allegations are construed liberally as asserting a claim of bystander liability, see Graham, 89 F.3d at 79, the claim fails since an officer is subject to bystander liability Since Pascual's claims I on the ts, Defendants' arguments ng deficient service process, untimeliness, and the applicability of Heck v. , 512 u.s. 477 (1994), are not addressed. 10 3 the face of a constitutional only if he fails to intercede violation. 65, 72 See, e.g., Curley v. Village of Suffern, 268 F.3d (2d Cir. 2001). profanity alone Since "[vlerbal harassment or . no matter how inappropriate, unprofessional, or reprehensible it may seem, does not constitute the violation of any federally protected right" if, as is case here, there was no accompanying injury, Liriano v. ICE/DHS, 827 F. Supp. 2d 264, 271 (S.D.N.Y. 2011), Pascual fails to state a claim against Agent Gomez. B. Lattuca Pascual all s that Agent Lattuca took part in the interrogation in which Agent Fernandez was verbally abusive, and also that Agent Lattuca "made his own comment about my sexual preference." Compl. ~ 22. As explained above, mere verbal abuse by an officer-regardless how reprehensible content may be-does not constitute a constitutional violation. See supra § A. Accordingly, Pascual fails to state a claim against Agent Lattuca. 11 C. Agent Magilton Pascual alleges that (i) Agent Magilton was one the several agents who was present at her arrest (during which Agent Fernandez allegedly used excess force), see Compl. ~ 8, and (ii) that Agent Magilton denied her request to use the bathroom, instead telling her "that she would have to wait until she arrived at the office." Compl. ~ 11. With respect to the former allegation, even if is liberally construed as asserting bystander liability against Agent Magilton for failing to intercede while excessive force was used against Pascual by another agent, Pascual nonetheless fails to state a claim. all As set forth below, Pascual's ions regarding Agent Fernandez's use of excessive force do not rise to the level of a constitutional violation, see infra § H(i), so Pascual's bystander claim against Agent Magilton, which is derivative of her claim against Agent Fernandez, fails as well. With respect to latter allegation, even if it is liberally construed as a claim for unreasonable seizure, Pascual has failed to state a because "[t]he temporary 12 deprivation of the right to use the toi the absence of serious physical harm or risk of contamination, does not to the level of an objective constitutional violation. u se Mateo v. Alexander, No. 10. Civ. 8427 (LAP) (DCF), 2012 WL 864805, *5 (S.D.N.Y. Mar. 14, 2012) i see also Steele v. of Los Angeles, 117 Fed. Appx. 507, 508-09 (9th Cir. 2004) (holding that detaining individuals for "two to three hours" and refusing them the right to use the bathroom was not unreasonable under the Fourth Amendment) 219 F.3d 825, 831 (8th Cir. 2000) i Hunter v. Namanny, (holding that a detainee does not have a per se right to use the toilet upon request) Since Pascual does not allege that the delay in permitting her to use the toilet resulted in serious physical harm or contamination, she fails to allege a constitutional violation arising from the denial of her request to use the bathroom. D. Agent Jerla Pascual all s Agent Jerla "witnessed the altercation(s) that occurred during her arrest U and therefore "[f]ail[ed] to protect a detainee from unreasonable lure to remedy violations warrantless arrest/seizure and while on the scene./I Compl. ~~ 8, 24. 13 Liberally construed, these allegations assert a bystander liability claim against Agent Jerla with respect to the alleged excessive force used during Pascual's arrest and the allegedly unreasonable search of her vehicle. As explained below, Pascual fails to state an excessive force claim, see infra § H(i), and therefore a bystander liability claim is not viable. In addition, the Court in Pascual's criminal case held that both Pascual's arrest as well as the search of her car were constitutionally . Opp. Ex. p. A-S74. reasonable, see E. Agent Gonzalez Pascual asserts a bystander liability claim against Agent Gonzalez with respect to the excessive force used during her arrest, see Compl. ~~ 8 9, as well as a claim premised upon the refusal to permit her to use the bathroom, see Compl. ~ 12. The bathroom usage claim fails for the reasons stated above, see supra § C, and the excessive force claim fails for the reasons stated below, see infra F. § H(i) . Agent Bowdy With respect to Agent Bowdy, Pascual asserts (i) a 14 bystander liabili claim premised upon the alleged excessive force used during her arrest; (ii) a claim premised upon the refusal to permit her to use the bathroom; and (iii) an invasion of privacy claim premised upon her allegation that Agent Bowdy remained in the bathroom with while she relieved herself. The first two claims 1 for the same reasons that the identical claims asserted against Agent Gonzalez fail. See §§ H(i) & C. The third claim fails because Agent Bowdy's accompaniment Pascual to the bathroom was for a legitimate security purpose, see Compl. ~ 15, and therefore is not a constitutional violation. See, e.g., Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995) (holding that there was no constitutional violation when guards of the opposite sex observed pretrial inmates in the shower and toilets) . Pliva Pascual's aim against Agent her allegation that Agent st 18. iva is based upon iva (who is female) performed a search and body cavity search of Pascua. See Compl. Although a strip search may rise to the level 15 a ~ constitutional violation "in the absence of particularized reasonable suspicion" that the target of the search is "carrying drugs or contraband," Sarnicola v. County of Westchester, 229 F. Supp. 2d 259, 270 (S.D.N.Y. 2002), here there was ample cause for Agent pI Pascual was carrying drugs, s to be suspicious that Pascual had just been arrested for taking part in a drug deal. Furthermore, Pascual acknowledges that the search took place in a private area outside the view of any male agents, and does not the search was conducted See Compl. ~ 19. lege that an unreasonable or abusive manner. Accordingly, Pascual's claim against Agent iva fails. H. Agent Fernandez Pascual alleges Fourth Amendment violations against Agent Fernandez arising from (i) excessive use of force in connection with Pascual's arrest, see Compl. ~ 9; (ii) and inappropriate pat down search following her arresti denial of bathroom access; and (iv) verbal abuse. (iii) For the reasons stated below, Pascual fails to state a claim for any of these alleged violations. 16 (i) Excessive Force Fourth Amendment claims regarding excessive use of force are evaluated under a reasonableness standard. 490 U.S. at 394. Graham, Under this standard, the reasonableness of a particular use of force must be determined from the perspective a reasonable officer at the scene of the incident, rather than with "20/20 vision hindsight." 396. rd. at Relevant factors in this analysis are (1) the severity of the crime at issuei (2) whether the suspect posed an immediate threat to the safety of the officers or others; and (3) whether the subject the use of force is actively resisting arrest or attempting to evade arrest. rd. Additionally, in order to recover under an excessive force claim, a plaintiff must claim to have been injured to some degree. (S.D.N.Y. ~--~------------~ , 884 F. Supp. 788, 799 n. 14 1995). In Pascual's description of her arrest, she alleges that Agent Fernandez "used excessive restraint of movement by physically grabbing me by my neck and forcing my face to the car," and also "put very tight hand cuufs [sic] on me behind 17 my back." Compl. ~ 9. Since Pascual alleges no actual injury resulting from Agent Fernandez's actions, she fails to state a constitutional claim use excessive force. (iiJ Pat-Down Search As a matter of course, an officer may subject an arrestee to a full search incident to the arrest, provided that there was probable cause for the arrest. Robinson, 414 U.S. 218, 235 (1973). U.S. v. Since Pascual was arrested while taking part in a drug deal, there was probable cause for arrest, and therefore Agent Fernandez's decision to conduct a pat down search of Pascual incident to the arrest is reasonable per se under the Fourth Amendment. Pascual complains that Agent Fernandez's search was inappropriate because during the course of the search, Agent Fernandez touched her "breast, buttocks and . . inner thighs area," and that it was completely inappropriate for a male officer to touch her in those areas. the mere Compl. ~ 9. However, that a pat-down search was conducted on a female detainee by a male officer is not sufficient to give rise to a constitutional violation, absent any 18 legation of otherwise improper conduct. See Golden v. County of Westchester, No. Here t 10-CV-8933 (ER) , 2012 WL 4327652, *6 (Sept. 18, 2012). Pascual does not allege any improper conduct, as she merely asserts that Agent Fernandez searched the areas of her body that were covered by clothing, which are precisely the areas that it would be reasonable for an officer to touch in the course of a search.4 ii) Denial of Bathroom Access As explained above, Pascual's allegations regarding the denial her requests to use the bathroom do not rise to the level of a constitutional violation. See supra § C. v) Verbal Abuse As explained above t mere words-no matter how hurtful t intimidating or reprehensible they may be-cannot 4 Pascualts contention that it was unreasonable for Agent Fernandez to search her because her clothing was so minimal that it could not have possibly been hiding contraband is unavailing t as items such as drugs t which are often carried in very small quantities t can be concealed even under the type of clothing that Pascual alleges she was wearing at the time of her arrest. ___ z v. Furtado t 771 F. Supp. 1245, 1256-57 (D. Mass. 1991). 19 serve as the basis for a constitutional claim against an arresting officer. See * * § * When a motion to usual practice . A. * smiss is granted, * "[i]t is the . to allow leave to replead." Schindler v. French, 232 Fed. Appx. 17, 19 (2d Cir. 2007) _I_n_d-,u-,s-,.-,---,In--'c_._v_._S_u_m _ _ _-=<-_P_._P_., _ 1991)). However, Pascual was Cortec 949 F. 2 d 42, 48 ( 2 d Ci r . ready given an opportunity to replead after filing her initi complaint, and was even instructed specifically on the nature of the allegations she lude in order to make her claims viable. needed to Order to Amend. See The fact that Pascual's amended compl any of the Defendants still fails to state a claim indicates that an additional attempt at repleading would futile. Accordingly, leave to replead is denied, and the amended complaint is dismissed with prejudice. Salomon Smith ~~~~~~~-'--'- _ _~L , No. 01 Civ. 9282 at * 3 ( S . D . N . Y. Jan. 30, 2003) See Rivera v. (RWS) , 2003 WL 222249, Mooney v. Vitolo, 435 F.2d 838, 839 (2d Cir. 1970)). 20 Conclusion For the reasons set forth above, the Defendants' motion to dismiss is granted with prejudice. It is so New York, NY January ~~ , 2013 U.S.O.J. 21

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