Opinion
10 Civ. 1887 (KBF)
04-10-2012
KEVIN ERIC SCOTT a/k/a NAZEER M. BEY, Plaintiff, v. CITY OF WHITE PLAINS, et al., Defendants.
MEMORANDUM AND ORDER
:
Pro se plaintiff Kevin Eric Scott, a Jamaican national, brings this federal civil rights action against the City of White Plains, Detectives Kittlestade and Munroe (the "White Plains Defendants"), Immigration and Customs Enforcement ("ICE") Officers Diaz, Sayad, Rances, Owens and Galindo, and the United States of America (collectively the "Federal Defendants").
On May 9, 2011, Scott filed a fourth amended complaint, asserting Section 1983 claims against the White Plains Defendants and Bivens and Federal Tort Claims Act ("FTCA") claims against the Federal Defendants. The Court assumes the parties' familiarity with the factual allegations and the procedural history. For context, however, Scott alleges, inter alia, that he was falsely arrested and maliciously prosecuted by the White Plains defendants in March 2009, in connection with his friend, Jed Connelly's, attempted purchase of a car with fraudulent identification. (4th Am. Compl. ¶¶ 12-15.) With regard to the Federal Defendants, Scott alleges that he was falsely imprisoned by ICE from April to June and August to September 2009 on the basis of a 2005 deportation order ("Twelfth Cause of Action"), and from December 2009 until February 2011 on the basis of the 2005 order as well as a 2009 expedited removal order ("Thirteenth Cause of Action"). (See id. ¶¶ 35-38.) He also alleges that certain of the ICE officers physically assaulted him. (Id. ¶¶ 27-28.)
On November 15, 2011, this Court dismissed the claims against the White Plains Defendants in their entirety and against the United States in part, refusing to dismiss Scott's FTCA claim for civil assault and battery. (Memorandum and Order at 12 (Docket No. 81) ("Dismissal Order").) With regard to false imprisonment, the Court explicitly considered only the allegations underlying Scott's Twelfth Cause of Action and referred to a false imprisonment "claim," singular, throughout. (Id. at 10-12 (emphasis added).) The Court did not direct entry of a final judgment for defendants on any of the dismissed claims. The same day as the Dismissal Order, this action was transferred to the undersigned. (See Docket No. 82.)
The Court also dismissed Scott's deliberate indifference claim against ICE Officer Owens (Dismissal Order at 9) and due process claim against ICE Officer Galindo (id. at 10), but declined to dismiss Scott's excessive force claim against ICE Officers Diaz, Sayad and Rances (id. at 7-9).
On November 28, 2011, Scott appealed the dismissal of the White Plains Defendants and of his Twelfth Cause of Action against the United States. (Docket No. 85.) On November 29, 2011, Scott filed a timely motion for reconsideration of the same parts of the Dismissal Order, pursuant to Local Rule 6.3. (Docket No. 84.) Scott's appeal and motion for reconsideration do not address his Thirteenth Cause of Action, also for false imprisonment, because in Scott's view the Dismissal Order did not dismiss that claim.
On December 16, 2011, the Court indicated that notwithstanding Scott's notice of appeal, it would retain jurisdiction to decide the pending motion for reconsideration, consistent with Federal Rule of Appellate Procedure 4. (See Docket at Dec. 16, 2011); see also Fed. R. App. P. 4(a)(4)(B)(i); Tamayo v. City of New York, No. 02 Civ. 8030(HB), 2004 WL 725836, at *2 (S.D.N.Y. Mar. 31, 2004). The Court also asked the parties for letters regarding whether it should enter final judgment on the dismissed claims, pursuant to Federal Rule 54(b), in the event that it denied the motion for reconsideration. (See Docket at Dec. 16, 2011.)
The parties submitted extensive briefing on the merits of the motion for reconsideration, including - with permission from the Court - a sur-reply (Docket No. 108) and a sur-sur-reply (id. No. 114) on Scott's false arrest claim against the White Plains Defendants. The Court also heard oral argument on April 4, 2012, regarding the false arrest claim and whether the Dismissal Order included dismissal of the Thirteenth Cause of Action.
Scott raised the question of whether the Thirteenth Cause of Action was included in the Dismissal Order in his 54(b) letter to the Court and orally at the February 15, 2012 conference. This Court exercised its discretion to entertain that question.
Having reviewed the briefing on the motion for reconsideration and the 54(b) letters, and having heard the parties' oral arguments, the Court now DENIES in part and GRANTS in part Scott's motion for reconsideration, modifies its Dismissal Order to dismiss Scott's Thirteenth Cause of Action and declines to enter final judgment on the dismissed claims.
The Court granted Scott's motion to amend his reply at a conference on February 15, 2012 (Feb. 15, 2012 Conf. Tr. at 21-22) and has considered that amended reply in deciding this motion.
DISCUSSION
A party seeking reconsideration, pursuant to Local Rule 6.3, faces a heavy burden. Taggart v. Moody's Investors Serv., No. 06 Civ. 3388 (PKC), 2007 WL 2809846, at *1 (S.D.N.Y. Sept. 26, 2007). Reconsideration is an "extraordinary remedy to be employed sparingly in the interests of finality and conservation of judicial resources." In re Health Mgmt. Sys. Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000). Generally, a motion for reconsideration will only be granted where "the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Local Civ. R. 6.3. Controlling decisions are only those of the Second Circuit Court of Appeals or the U.S. Supreme Court. Ivan Visin Shipping, Ltd. v. Onego Shipping & Chartering b.v., 543 F. Supp. 2d 338, 339 (S.D.N.Y. 2008).
1. FTCA Claim for False Imprisonment
To state a claim for false imprisonment under New York law, a plaintiff must show that "his confinement was not otherwise privileged." E.g., Caban v. United States, 728 F.2d 68, 70-71 (2d Cir. 1984); see also 28 U.S.C. § 1346(b) (applying the tort law of the place where the alleged act occurred). Because no court has invalidated Scott's 2005 deportation order, this Court held, Scott failed to plead that element of his claim. (Dismissal Order at 10.)
The Court also found that Scott was precluded by Heck v. Humphrey, 512 U.S. 477 (1994), from challenging his deportation order through the FTCA. (Dismissal Order at 10-11.) Heck dictates that a plaintiff may not use a tort action to attack the validity of his underlying conviction (i.e. to bring an action that, if successful, would necessarily demonstrate the invalidity of that conviction) unless he can show that the
conviction . . . has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.512 U.S. at 486-87. An exception to Heck applies, as this Court recognized, if a plaintiff "was never confined or was in confinement for so brief a time that filing a habeas petition was impracticable." (Dismissal Order at 11 (citing Leather v. Eyck, 180 F.3d 420, 423-24 (2d Cir. 1999); Dallas v. Goldberg, 143 F. Supp. 2d 312, 323-24 (S.D.N.Y. 2001)).) Accordingly, because Scott "was in custody and had an abundance of time to file a habeas petition," the Court concluded, Scott could not avail himself of the Heck exception. (Dismissal Order at 11.)
Scott now moves for reconsideration of that conclusion. He argues that the Heck exception should apply to him based on the REAL ID Act, which bars habeas corpus review of deportation orders. (Pl.'s Mot. for Reconsideration (Docket No. 84) at 3-5; Pl.'s Amended Reply to U.S.'s Response (Docket No. 102)); see also 8 U.S.C. § 1252(a)(5). According to Scott, "the recurring theme" in cases recognizing exceptions to Heck, or finding Heck inapplicable, "is that the plaintiffs could not avail themselves of the writ." (Pl.'s Mot. for Reconsideration at 4 (citing Leather, 180 F.3d 420; Jenkins v. Haubert, 179 F.3d 19, 21 (2d Cir. 1999); Morse v. Nelson, No. 3:08cv1757 (SRU), 2010 WL 466157, at *4 (D. Conn. Feb. 9, 2010); Jean-Laurent v. Hennessy, No. 05-CV-1155(JFB)(LB), 2008 WL 5274322, at *3 (E.D.N.Y. Dec. 18, 2008)).) Thus, Scott asserts, because the REAL ID Act prevented him from challenging his 2005 deportation order through habeas corpus, he should be able to maintain his FTCA claim, (Pl.'s Mot. for Reconsideration at 3-5; Pl.'s Amended Reply to U.S.'s Response.)
While Scott is correct that he was statutorily barred from filing a habeas petition to challenge his 2005 deportation order (see 8 U.S.C. § 1252(a)(5)), the REAL ID Act provided him with another scheme for challenging that order, of which he did not avail himself (see 4th Am. Compl. ¶ 25). A deportation order becomes final when it is (1) affirmed by the Board of Immigration Appeals ("BIA"); or (2) the period in which the alien is permitted to seek review of the order by the BIA expires. Id. § 1101(a)(47)(B). By regulation, an alien has 3 0 days from the date of the Immigration Judge's entry of the removal order to appeal to the BIA. 8 C.F.R. § 1003.38(b). If the BIA affirms the order, the alien may within 3 0 days seek judicial review (called a "petition for review") in the appropriate U.S. Court of Appeals. See 8 U.S.C. §§ 1252(a)(5), (b)(1). Such petition is the exclusive mechanism for judicial review, to the exclusion of habeas corpus. Id. § 1252(a)(5).
The REAL ID Act was enacted on May 11, 2005 and went into effect immediately. REAL ID Act § 106; see also Ruiz-Martinez v. Mukasey, 516 F.3d 102, 112-13 (2d Cir. 2008). Accordingly, it applied to Scott's 2005 deportation order issued on August 24, 2005. (4th Am. Compl. ¶ 25, Ex. G.)
The Second Circuit has recognized that the above procedures establish "a substantial, comprehensive, and intricate remedial scheme." Arar v. Ashcroft, 585 F.3d 559, 572 (2d Cir. 2009) (en banc), cert. denied, 130 S. Ct. 3409 (2010). While, as a general matter, the Suspension Clause of the U.S. Constitution prohibits the suspension of the writ of habeas corpus, except "when in Cases of Rebellion or Invasion the public safety may require it," U.S. Const. art. I § 9, cl. 2, "the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute [] suspension," Swain v. Pressley, 430 U.S. 372, 381 (1977). It is well established that, facially, the petition for review procedure in the REAL ID Act provides such an adequate and effective substitute for the writ of habeas corpus. Ruiz-Martinez v. Mukasey, 516 F.3d 102, 105-06, 114-17 (2d Cir. 2008); see also Luna v. Holder, 637 F.3d 85, 92 (2d Cir. 2011); Muka v. Baker, 559 F.3d 480, 484-85 (6th Cir. 2009) (recognizing that numerous other Circuits have found that "a petition for review provides an alien with the availability of the same scope of review as a writ of habeas corpus").
Like in the Suspension Clause context, the cases recognizing an exception to Heck where habeas corpus is unavailable should not apply where an effective substitute for habeas exists. Those cases "evince[] a primacy of concern as to the practical availability of effective review" or for the opportunity to "mount[] a meaningful challenge" to a conviction. See Dallas v. Goldberg, 143 F. Supp. 2d 312, 323-24 (S.D.N.Y. 2001). While the Second Circuit in Jenkins and Leather addressed only the availability of habeas relief specifically, not of an effective review vehicle more generally, those decisions involved state court convictions, for which habeas corpus is the only available form of federal judicial review. See Jenkins, 179 F.3d 19; Leather, 180 F.3d 420. Thus, the proper reading of those decisions is that there must be at least one meaningful mechanism for challenging a conviction or order, not as circumscribing the form of that mechanism. Put another way, there is nothing in those decisions (or any of the others Scott cites) that is inconsistent with a finding that Heck applies where a plaintiff had an adequate and effective substitute for habeas corpus.
This Court followed the U.S. District Court for the District of Connecticut in assuming that Heck applies to FTCA claims in the immigration context. (Dismissal Order at 11 (citing El Baldrawi, 579 F. Supp. 2d 249, 273 n.24 (D. Conn 2008)).) Scott has not contested that assumption in his motion for reconsideration. But even if he had, he would not be able to point to any controlling law to prevail on his motion because the Second Circuit has not yet addressed the application of Heck to FTCA claims. See, e.g., El Baldrawi, 579 F. Supp. 2d at 273 n.24.
In this case, Scott had such an adequate and effective substitute in the form of an administrative appeal to the BIA and a petition for review to the Courts of Appeals. See Ruiz-Martinez v. Mukasey, 516 F.3d at 105-06, 114-17. But he "opted" not to take advantage of those procedures. (See 4th Am. Compl. ¶ 25.) Consequently, Scott's detainment in 2009 was pursuant to a deportation order that could have been adequately challenged for Heck purposes but was not. Thus, notwithstanding the REAL ID Act's bar on habeas relief, Scott is not excepted from Heck on that basis.
Scott's amended reply makes three additional, fact-based arguments in favor of his position that the Heck exception should apply to him. First, Scott argues that his claim is really about his confinement in 2009, not about the 2005 deportation order, and that he could not have challenged his confinement under the REAL ID Act's remedial scheme because when a challenge would have been timely under that scheme, he was not confined, and when he was confined, a challenge was not timely. (Pl.'s Amended Reply to U.S.'s Response at ¶ 8); see also 8 U.S.C. §§ 1101(a)(47)(B), 1252(b)(1). The Court considered the timing of Scott's confinement (see Dismissal Order at 10), however, and Scott fails to point to any controlling decisions of law that the Court overlooked that justify reconsideration.
Prior to the enactment of the REAL ID Act, an alien held in custody pursuant to a removal order affirmed by the BIA had the option of petitioning for habeas corpus, under 28 U.S.C. § 2241, at any time. See Ruiz-Martinez, 516 F.3d at 113; Luya Liu v. INS, 293 F.3d 36, 40-41 (2d Cir. 2002). As discussed above, the Second Circuit has held that the REAL ID Act's elimination of such relief - in favor of a strictly time-limited petition for review - does not facially violate the Suspension Clause. See Ruiz-Martinez, 516 F.3d at 105-06, 114-17. That precedent, if anything, counsels against Scott's argument at this stage of the proceedings.
Additionally, an alien need not be in custody or confined in order to challenge his deportation order under the REAL ID Act, unlike with a habeas petition. See 8 U.S.C. §§ 1101(a)(47)(B), 1252(a)(5). Indeed, Scott tried to challenge his removal order in 2005 before he was confined, erroneously filing a habeas petition in this Court on December 27, 2005. The Court converted his habeas petition into a petition for review and transferred it to the Court of Appeals, staying his removal in the process. (See Pl.'s Amended Reply to U.S.'s Response at ¶ 7, Ex. B.) Under such circumstances and the existing case law, Scott has not shown that reconsideration is warranted.
Second, Scott argues that he was effectively deprived of any adequate review under the REAL ID Act's scheme since any appeal of his 2005 deportation order to the BIA and to the Second Circuit would have been denied because of improper governmental interference with his removal proceedings. (Id. at ¶ 8.) In 2004, Scott moved to re-open his prior removal case, based on his 1996 deportation order, which order had led to his deportation to Jamaica in 2001. (4th Am. Compl. at ¶¶ 23-24.) "The end result [of that motion to re-open] was that another order was issued on August 24, 2005" - the 2005 deportation order at issue here. (Id. at ¶ 25.)
On the instant motion, Scott asserts that the immigration judge in the re-opening proceeding lacked jurisdiction to issue the 2005 deportation order because Scott's motion to reopen was subsequent to his departure from the United States in 2001. (Pl.'s Amended Reply to U.S.'s Response at ¶ 8 (citing 8 C.F.R. § 1003.23(b)(1)).) But to establish the invalidity of that deportation order, Scott argues, he would have had to prove that he was physically removed from the United States before he filed his motion to re-open. He was unable to do that because the Government "willfully refused to provide the proof of [his] physical removal i.e. form 205." (Pl.'s Amended Reply to U.S.'s Response at ¶ 8.) Due to that governmental misconduct, Scott asserts, "the BIA and the Second Circuit would have denied [his] appeal and subsequent Petition for Review," depriving him of an effective habeas substitute. (Id.)
Putting aside the merits of Scott's argument with regard to the validity of his 2005 deportation order - which merits are not properly before the Court - Scott has again failed to cite any controlling law that would alter this Court's decision on the motion to dismiss. See generally Shrader, 70 F.3d at 257 (requiring for reconsideration that controlling law "alter the conclusion reached by the court"). To the contrary, the Second Circuit in holding that the REAL ID Act's remedial scheme constitutes an adequate and effective substitute for habeas corpus, both facially and as applied, has demonstrated confidence in its own judicial review to address and rectify due process violations, including alleged governmental misconduct. See Luna, 637 F.3d at 94-95, passim (concluding that the REAL ID Act's scheme, including the statutory right to move to reopen, provides an adequate and effective forum for addressing the fundamental fairness of removal proceedings, including allegations of governmental misconduct and ineffective assistance of counsel); see also Ruiz-Martinez, 516 F.3d at 105-06.
Third, and finally, Scott argues that independent of whether the Heck exception applies to him or not, his 2005 removal order was, in fact, called into question by the issuance of a writ of habeas corpus. (Pl.'s Amended Reply to U.S.'s Response at ¶¶ 10-11.) To attack via a tort action the validity of his underlying removal order, Scott must show that the order was "called into question by a federal court's issuance of a writ of habeas corpus." Heck, 512 U.S. at 486-87 (emphasis added). Scott has failed to establish, however, that a writ of habeas corpus actually issued, invalidating his 2005 deportation order.
In support of his argument, Scott relies on habeas corpus proceedings he initiated in the U.S. District Court for the District of New Jersey related to his 2009 expedited removal order, which proceedings, he asserts, also challenged and called into question his 2005 removal order by implication. (Pl.'s Amended Reply to U.S.'s Response at ¶¶ 10-11.) Specifically, Scott cites two orders - one requiring the Government to respond to his habeas petition and the other granting the Government's request to stay the proceedings - as evidence that the judge actually issued a writ of habeas corpus. (Id. at ¶¶ 10-11, Ex. D.) Neither of those orders, however, amount to the issuance of a writ: A decision not to dismiss Scott's petition summarily, without asking for a response, is not the equivalent of granting the petition. Nor does granting a stay resolve the merits of the petition.
Unlike ordinary removal orders, expedited removal orders issued without a hearing may be challenged by petition for habeas corpus. See 8 U.S.C. § 1252(e)(2).
In his opposition on the motion to dismiss, Scott indicates that the stay was prompted by ICE issuing a new Notice to Appear in Removal Proceedings. (See Pl.'s Opp. Federal Defs.' Mot. To Dismiss (Docket No. 69) at Ex. 6; see also id. ¶ 11.) He also asserts that following the issuance of the Notice to Appear, the Government released him on parole and abandoned the expedited removal order, which events prompted the judge to dismiss Scott's habeas petition as moot. (See id. ¶ 11, Exs. 6-8.) While the fourth amended complaint contains none of those assertions (see 4th Am. Compl.), the Court may take judicial notice of the fact that a regulatory or court filing contains certain information on a motion to dismiss, see, e.g., Staehr v. Hartford Fin. Servs. Group, Inc., 547 F.3d 406, 425 (2d Cir. 2008). Accordingly, the Court may consider, among other things, what information was contained in Scott's new Notice to Appear, including the inclusion of Scott's arrival at JFK Airport on December 13, 2009 as an alleged basis for removal. See Letter from Resp'ts Requesting a Stay of Proceedings, Scott v. U.S. Dep't of Homeland Security, et al., 2:10-cv-04449-PGS (D.N.J. Feb. 28, 2011); (see also 4th Am. Compl. ¶¶ 37-38 (indicating that Dec. 13, 2009 arrival was a basis for Scott's expedited removal order)).
Upon such consideration, it is evident that the District of New Jersey's dismissal of Scott's habeas petition as moot did not amount to the issuance of a writ of habeas corpus or other favorable termination that would call into question the expedited removal order (let alone the underlying 2005 order) for Heck purposes. See generally Wallace v. Kato, 549 U.S. 384, 392 (2009) ("In Heck . . . [w]e analogized [a challenge to the fact of confinement] to [a claim for] malicious prosecution, an element of which is the favorable termination of criminal proceedings."); Nelson v. Campbell, 541 U.S. 637, 646-47 (2004) (characterizing Heck as imposing a "'favorable termination' requirement"); see also Heck, 512 U.S. at 484-86. Abandonment of Scott's expedited removal proceeding in favor of a new removal proceeding based, in part, on the same alleged conduct is not a favorable termination. See, e.g., Murphy v. Lynn, 118 F.3d 938, 948-49 (2d Cir. 1997) (where the termination "may not end the state's pursuit of the accused on the same charges" or if "a renewed prosecution may be commenced" it is "not sufficiently favorable to the accused to be indicative of innocence"); Restatement (2d) Torts § 660(d). (Compare Letter from Resp'ts Requesting a Stay of Proceedings, Scott, 2:10-cv-04449-PGS with 4th Am. Compl. ¶¶ 37-38.)
Thus, despite the REAL ID Act's bar on habeas relief, Scott has not demonstrated that he qualifies for an exception from Heck or has satisfied its requirements. Accordingly, reconsideration of the Court's dismissal of Scott's Twelfth Cause of Action is not warranted. See Shrader, 70 F.3d at 257.
2. Thirteenth Cause of Action for FTCA False Imprisonment
Scott's Thirteenth Cause of Action is also for false imprisonment, based on his confinement beginning in December 2009, pursuant to the 2005 order and the expedited removal order. (See 4th Am. Compl. ¶¶ 37-38.) Scott has argued that the Court did not clearly dismiss that cause of action and so it should remain a live claim, (See, e.g., Pl.'s Letter of Jan. 26, 2012 at 1.) The United States has conceded that the Dismissal Order "only addresses one false imprisonment claim" but has argued that "for the same reasons [the Court] dismissed one of the false imprisonment claims, the other false imprisonment claim should also be dismissed." (Feb. 15, 2012 Conf. Tr. at 11.) While the Court agrees that the Dismissal Order is unclear, it also agrees that the reasoning in that Order applies to Scott's Thirteenth Cause of Action as well, and so it clarifies and supplements the Order accordingly. See generally United States v. LoRusso, 695 F.2d 45, 53 (2d Cir. 1982) ("A district court has the inherent power to reconsider and modify its interlocutory orders prior to the entry of judgment.").
The Dismissal Order provides the following clues about the extent of its breadth with respect to Scott's false imprisonment allegations:
• The introductory paragraph states; "[T]he Federal Defendants' Motion is granted in part and denied in part." (Dismissal Order at 1.)
• The section entitled "False Imprisonment" states: "Scott fails to plead that his confinement was not otherwise privileged. In 2009, Scott was confined pursuant to the 2005 order. No court has invalidated it. Moreover, Scott cannot challenge the 2005 order through the FTCA." (Id. at 10 (emphasis added).)
• That section concludes: "Here, Scott cannot avail himself of the Heck exception because he was in custody
and had an abundance of time to file a habeas petition. Accordingly, this claim is dismissed without prejudice unless and until Scott can show the invalidity of the 2005 order." (Id. at 11 (emphasis added).)
• The Conclusion of the Dismissal Order states: "The United States' motion to dismiss is granted in part and denied in part. Specifically, the United States' motion to dismiss the FTCA claim for false imprisonment is granted, but its motion to dismiss the FTCA claim for civil assault and batter is denied." (Id. at 12.)
Thus, nowhere in the Dismissal Order is reference made to false imprisonment claims, plural, or to the allegations or circumstances at issue in Scott's Thirteenth Cause of Action - i.e. to confinement occurring after December 2009 or to the 2009 expedited removal order. (See id.; see also 4th Am. Compl. ¶ 38.)
Like his Twelfth Cause of Action, however, Scott's Thirteenth Cause of Action, if successful, would necessarily imply the invalidity of the removal orders that formed the basis for his detention, thereby implicating Heck. See Heck, 512 U.S. at 487; see also El Badrawi, 579 F. Supp. 2d at 273 (applying Heck to an FTCA claim in the immigration context); (4th Am. Compl. ¶¶ 37-38); cf. Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) (per curiam) (extending Heck to Bivens actions against federal officials). Scott and the United States agree that Scott's detention beginning in December 2009 was based both on the 2009 expedited removal order and - directly or indirectly - on the 2005 deportation order. (See Pl.'s Am. Reply at ¶ 11 ("the validity of the Expedited Removal Order . . . is based on the validity of the 2005 order"); Apr. 4, 2012 Hrg. Tr. at 27, 29, 33.)
As discussed above, Scott's allegations fail to demonstrate that either of those orders have been invalidated for Heck purposes. See supra at 14-16; (see also Dismissal Order at 10-11; 4th Am. Compl. ¶¶ 25, 38). While the United States abandoned the expedited removal order on judicial review in favor of a new removal proceeding, that abandonment does not constitute a favorable termination for Scott. See supra at 15-16; see also Murphy, 118 F.3d at 948-49; (Letter from Resp'ts Requesting a Stay of Proceedings, Scott, 2:10-cv-04449-PGS; 4th Am. Compl. ¶¶ 37-38).
Nor do Scott's allegations indicate that he was unable to challenge his removal orders effectively, thereby excepting him from Heck. In the Dismissal Order, the Court concluded that Scott "[could] not avail himself of the Heck exception" for his 2005 order (Dismissal Order at 10-11), and Scott has not identified any controlling law or facts that the Court overlooked that might reasonably alter that conclusion, see supra Part 1. Scott also may not avail himself of the Heck exception for his 2009 expedited removal order as he could, and did, file habeas petitions seeking to challenge that order. (See 4th Am. Compl. ¶ 38; Pl.'s Am. Reply at ¶¶ 10-11, Ex. D; Pl.'s Opp. to Federal Defs.' Mot. to Dismiss at ¶ 10, Ex. 5); see also 8 U.S.C. § 1252(e)(2); supra note 5.
The Court may consider admissions contained in Mr. Scott's briefs (and the exhibits thereto) on a motion to dismiss. See Purgess v. Sharrock, 33 P.3d 134, 144 (2d Cir.1994) ("A court can appropriately treat statements in briefs as binding judicial admissions of fact"); Rothberg v. Chloe Foods Corp., No. CV-06-5712 (CPS), 2007 WL 2138376, at *17 (E.D.N.Y. July 25, 2007). The Court may also take judicial notice of the fact of Scott's habeas petitions. See Staehr, 547 F.3d at 425.
Accordingly, the Court clarifies and supplements its Dismissal Order to include dismissal of Scott's Thirteenth Cause of Action, based on the analysis contained in that Order and the forgoing reasoning.
3. False Arrest Claim against the White Plains Defendants
While Scott's motion states generally that he "seeks reconsideration of the dismissal of the White Plains defendants" (Dkt No. 84 at 2), he only makes arguments in each of his motion, his reply and his sur-reply with respect to his false arrest claim. Because Scott has failed to identify any controlling decisions or facts that the Court overlooked with respect to his other claims against those defendants, the Court summarily denies Scott's motion for reconsideration to the extent it includes such claims. See Shrader, 70 F.3d at 257.
The Court found that White Plains Detectives Kittlestade and Munroe had probable cause to arrest Scott and so dismissed Scott's false arrest claim. See Micalizzi v. Ciamarra, 206 F. Supp. 2d 564, 575 (S.D.N.Y. 2002) ("A finding of probable cause is a complete defense to federal and state claims of false arrest."). In reaching that conclusion, the Court reasoned that,
Scott is correct that "mere presence at the scene of a crime . . . does not provide probable cause to arrest." United States v. Rodriguez, 07 Cr. 699 (HB), 2008 WL 52917, at *5 (S.D.N.Y. Jan. 2, 2008). However, Detectives Kittlestade and Munroe were aware of other facts that were "sufficient to warrant a
reasonably cautious person in the belief that an offense" had been committed because they knew that Scott had driven Connelly to the scene of the crime. See Rodriguez, 2008 WL 52917, at *6 (finding probable cause to arrest defendants near scene of crime where police knew that several robbery accomplices had agreed to meet in the area).(Dismissal Order at 5-6 (emphasis added).)
Probable cause is an affirmative defense to a false arrest claim. E.g., Silver v. Kuehbeck, 217 Fed. Appx. 18, 22 (2d Cir. 2007). While an affirmative defense is normally asserted in an answer, a court may grant a pre-answer motion to dismiss on the basis of an affirmative defense when such defense appears on the face of the complaint. E.g., id.; Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998). On a motion to dismiss a false arrest claim, "the question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers." See Wyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
It is well settled that the probable cause inquiry trains on "the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information" "at the moment the arrest was made." Zellner, 494 F.3d at 370 (internal punctuation omitted). Accordingly, even where a complaint states facts that if known to the arresting officers would have established probable cause, finding probable cause on a motion to dismiss is improper if - as here - it is not clear from the face of the complaint that the officers knew such facts at the time of arrest. See Houston v. Nassau Cnty., No. 08-CV-197 (JFB)(WDW), 2011 WL 477732, at *6 (E.D.N.Y. Feb. 2, 2011) (denying motion to dismiss where the court could not "determine from the pleadings what information defendant [] had available at the time of arrest"); Middleton v. City of New York, No. 04-CV-1304 (JFB)(LB), 2006 WL 1720400, at *5 (E.D.N.Y. Jun. 19, 2006) (same where "there [was] no specific information in the plaintiff's complaint which establishe[d] the details regarding what information was available to the police at the time of the arrest"); Caidor v. M & T Bank Corp., No. 5:05-CV-297 FJSGJD, 2006 WL 839547, at *5 (N.D.N.Y. Mar. 27, 2006) (same where "[i]t is . . . impossible to derive from the complaint exactly what information was available to officers . . . at the time of Plaintiff's arrest").
Here, it is not evident from the face of Scott's fourth amended complaint (including the accusatory instruments attached thereto) that defendants Kittlestade and Munroe knew at the time of Scott's arrest that he had driven Connolly to the scene of the crime. (See 4th Am. Compl. ¶¶ 12-13, Exs. A-B.) While the accusatory instrument for Attempted Grand Larceny in the Second Degree states that "[o]n the above date, time, and place [Scott] did aid and abet Jed Connelly" (4th Am. Compl. at Ex. A), it does not conclusively demonstrate that the arresting officers had that knowledge at the time of Scott's arrest, see, e.g., Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007).
On a motion to dismiss, a complaint is deemed to include any written instrument attached to it as an exhibit. E.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
Similarly, the allegations in paragraph 13 of the fourth amended complaint do not establish beyond dispute what information was available to defendants Kittlestade and Munroe when they arrested Scott. (See 4th Am. Compl. ¶ 13); see also Weyton, 101 F.3d at 852. At oral argument, counsel for the White Plains Defendants urged the Court to draw an "inference[]" from Scott's "judicial admission" that he had dropped Connolly off at the dealership, that the arresting officers knew of Scott's conduct. (Apr. 4, 2012 Hrg. Tr. at 15-16; 4th Am. Compl. ¶ 13.) To do so, however, would ignore the limitations imposed on this Court at the motion to dismiss stage, see Pani, 152 F.3d at 74; Weyton, 101 F.3d at 852, particularly in the case of a pro se plaintiff, like Scott, whose complaint must be read with "special solicitude" to raise "the strongest claims [it] suggest[s]," e.g., DiPetto v. U.S. Postal Serv., 383 Fed. Appx. 102, 103 (2d Cir. 2010) (internal punctuation omitted).
In light of the foregoing, reconsideration of Scott's false arrest claim is warranted, and such claim survives dismissal at this stage of the proceedings.
4. Entry of Final Judgment Pursuant to Federal Rule 54(b)
Having decided Scott's motion for reconsideration, his notice of appeal as to his still-dismissed Twelfth Cause of Action for false imprisonment becomes effective. See Fed. R. App. P. 4(a)(4)(B)(i); Tamayo, 2004 WL 725836, at *2. That appeal was of a non-final order, however, and was thus unauthorized. Thus, though effective, the notice of appeal does not divest this Court of jurisdiction to proceed with this matter in its entirety or to direct entry of a final judgment for Scott on his dismissed claims, pursuant to Federal Rule 54(b). See, e.g., Holmes v. Nat'l Broadcasting Co., 133 F.3d 907, at *2 (2d Cir. 1997); United States v. Rodgers, 101 F.3d 247, 251-52 (2d Cir. 1996); SEC v. American Bd. of Trade, Inc., 829 F.2d 341, 344 (2d Cir. 1987).
Under the law of this Circuit, a motion for reconsideration pursuant to Local Rule 6.3 is the functional equivalent of a Rule 59(e) motion, not a Rule 60(b) motion. E.g., Tamayo v. City of New York, No. 02 Civ. 8030(HB), 2004 WL 725836, at *2 (S.D.N.Y. Mar. 31, 2004) (citing cases). Accordingly, the Court need not have requested remand from the Second Circuit before granting Scott's motion for reconsideration on his false arrest claim. See id. at *2 n.6; see generally King v. First Am. Investigators, 287 F.3d 91, 94 (2d Cir. 2002).
Federal Rule 54(b) permits a court, upon express determination that there is "no just reason for delay," to enter a final judgment as to one or more (but fewer than all) of the claims in an action, thereby ending the action as to the finally-adjudged claim(s) and permitting the aggrieved party to take an immediate appeal. Fed. R. Civ. P. 54(b). "Respect for the historic federal policy against piecemeal appeals," however, "requires that the court's power [under Rule 54(b)] be exercised sparingly." E.g., Harriscom Svenska AB v. Harris Corp., 947 F.2d 627, 629 (2d Cir. 1991) (internal quotation marks and citations omitted). Accordingly, "certification under Rule 54(b) should be granted only if there are interests of sound judicial administration and efficiency to be served or, in the infrequent harsh case, where there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal." E.g., id. (internal quotation marks and citations omitted).
Scott makes an equity argument in favor of certification under Rule 54(b). He asserts that direction of final judgment on his dismissed claims is warranted here because he is currently in immigration removal proceedings, and "Defendant could litigate the matter exhaustively until Plaintiff is ordered deported once again." As a result, "he could end up filing an appeal from Jamaica West Indies where there is limited or no access to United States Laws or worse [he] could end up losing standing." (Pl.'s Letter of Jan. 27, 2012 at 1.)
While it is quite possible that removal would make it more difficult for Scott to access materials to aid his prosecution of this matter, he will not lose standing. See, e.g., Bolanos v. Kiley, 509 F.2d 1023, 1025-26 (2d Cir. 1975) (indicating that alien plaintiff's civil rights suit against members of the New York City Police Department would continue following his deportation); Arar v. Ashcroft, 414 F. Supp. 2d 250, 252, 284-88 (E.D.N.Y. 2006) (maintaining jurisdiction over Bivens claim by non-resident alien relating to detention in the United States), aff'd, 585 F.3d 559, 563, 569 (2d Cir. 2009); El Badrawi, 579 F. Supp. 2d 249 (same for various FTCA claims). This Court is aware of the ongoing removal proceedings and has ordered the parties to proceed with discovery, despite the instant motion, on an expedited schedule that will have discovery complete before Scott's May 8, 2012 hearing - after which hearing, Scott has indicated, another immigration-related hearing will be scheduled; he will not be deported at that time. (See Feb 15, 2012 Conf. Tr. at 18-19; Docket Nos. 105, 107.) The Court also directed the parties to engage in discovery on the false arrest claim and the Thirteenth Cause of Action to ensure that Scott would not lose time on those claims during the pendency of this motion. (Feb. 15, 2012 Conf. Tr. at 10, 22; Docket No. 107.)
As discussed above, even if another removal order issued for Scott, he would still be able to challenge that order pursuant to the REAL ID Act's remedial scheme - potentially further delaying any deportation.
Accordingly, the Court cannot conclude that this is "the infrequent harsh case" where injustice will result if the Court does not permit an immediate appeal. Rather, the 54(b) considerations weigh in favor of the Court reaching a final resolution of this case at the earliest possible point, at which time Scott may assert any basis for appeal he wants.
CONCLUSION
In light of the forgoing, Scott's motion for reconsideration is GRANTED in part and DENIED in part. The Court also modifies its Dismissal Order to include dismissal of Scott's Thirteenth Cause of Action and declines to direct an entry of final judgment on his dismissed claims.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal.
The Clerk of the Court is directed to close the motions at Docket Numbers 84 and 102. SO ORDERED Dated: New York, New York
The Clerk of Court is also directed to close the motion to dismiss filed by the County of White Plains at Docket Number 58. Scott subsequently withdrew his claims against the County (see Docket Number 67), so that motion is now moot. --------
April 10, 2012
/s/_________
KATHERINE B. FORREST
United States District Judge