Selvam v. United States of America

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KAMALADOSS SELVAM,

Plaintiff, MEMORANDUM AND ORDER

v. 20-CV-3299 (RPK)

UNITED STATES OF AMERICA, PATRICK

CONNOR, FOOD AND DRUG

ADMINISTRATION, and UNKNOWN

DEFENDANT(S),

Defendants.

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RACHEL P. KOVNER, United States District Judge:

Plaintiff Kamaladoss Selvam was arrested in 2019 on federal charges related to the

importation of misbranded controlled substances. After prosecutors dropped those charges, Mr.

Selvam brought this lawsuit. He alleges that Special Agent Patrick Connor lied to obtain the

warrant for his arrest. Based principally on that alleged conduct, Mr. Selvam brings ten claims

against defendants Agent Connor and unknown federal officers. In addition, he brings five Federal

Tort Claims Act (“FTCA”) claims against the United States. Defendants have filed a motion to

dismiss. For the reasons set out below, the motion is granted.

BACKGROUND

The following facts are taken from Mr. Selvam’s complaint and briefs, and from the

warrant application integral to Mr. Selvam’s claims. Mr. Selvam’s allegations are assumed true

for the purposes of this order. Because Mr. Selvam comes to this Court pro se, the Court considers

not only the facts in Mr. Selvam’s complaint but also “the facts and allegations contained in [Mr.

Selvam’s] additional submissions.” Manley v. New York City Police Dep’t, No. 05-cv-679 (FB)

(LB), 2005 WL 2664220, at *1 (E.D.N.Y. Oct. 19, 2005).

In the fall of 2019, Special Agent Patrick Connor of the Food and Drug Administration

(“FDA”) obtained warrants for the arrest of Mr. Selvam, a relative of Mr. Selvam, and eight others.

Pl.’s Mem. in Opp’n 5, 9, 11 (Dkt. #14). In his application for a warrant, Agent Connor alleged

that Mr. Selvam and the others had conspired to distribute the drug Tramadol illegally from a

warehouse in Queens, and to launder the proceeds. See Compl. & Aff. in Supp. of Appl. for Arrest

Warrants, Defs.’ Ex. A, in Decl. of Ass’t U.S. Att’y Ekta R. Dharia ¶¶ 2, 11, 49-54 (Dkt. #13-2)

(“Criminal Complaint” or “Crim. Compl.”). Mr. Selvam was held for eight days before

prosecutors dropped the charges against him. Compl. 4 (Dkt. #1).* After Mr. Selvam was released,

Agent Connor contacted bank and credit card companies that maintained accounts of Mr. Selvam’s

that were allegedly involved in the drug-distribution scheme. According to Mr. Selvam, those

companies then closed the accounts. Compl. 11.

Mr. Selvam now brings this lawsuit. He principally alleges that Agent Connor “knowingly

and maliciously made sworn false statements” to obtain the warrant for Mr. Selvam’s arrest and

then caused the closure of Mr. Selvam’s bank and credit card accounts in retaliation for Mr.

Selvam’s exercise of First Amendment rights. Id. at 3, 11. Mr. Selvam brings eight claims against

Agent Connor and unknown federal officers, invoking 42 U.S.C. § 1983 and Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971): committing malicious

prosecution, fabricating evidence, committing false arrest, violating the equal protection clause,

violating the due process clause, causing physical pain and suffering, intentionally inflicting

emotional distress (“IIED”), and engaging in retaliation in violation of the First Amendment.

Compl. 7-11.

* Since only the paragraphs in the first seven pages of the Complaint are numbered, all citations to the complaint are

to page numbers.

Under Section 1983 alone, Mr. Selvam also brings claims against Agent Connor and the

unknown federal officers for negligence and gross negligence and future loss of income and

medical expenses. Compl. 9, 11.

Finally, Mr. Selvam brings claims against the United States under the FTCA based on

malicious prosecution, false arrest, negligent infliction of emotional distress (“NIED”), IIED, and

negligence. Compl. 12-15.

Defendants have moved to dismiss Mr. Selvam’s claims under Rules 12(b)(1) and 12(b)(6).

See Pls.’ Notice of Mot. to Dismiss (Dkt. #13). To their motion, they attached a copy of Agent

Connor’s Complaint and Affidavit in Support of Application for Arrest Warrants. See Crim.

Compl.

STANDARD OF REVIEW

When a defendant moves to dismiss a lawsuit based on lack of subject-matter jurisdiction,

the plaintiff must show that the Court has “the statutory or constitutional power to adjudicate” the

action. Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 417 (2d Cir.

2015). Where, as here, the facts bearing on jurisdiction are not in dispute, “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); see 5B Charles Alan Wright & Arthur R. Miller, Federal Practice

& Procedure § 1350 (3d ed. 2021).

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may also move to dismiss a

complaint based on “failure to state a claim upon which relief can be granted.” To avoid dismissal

on that basis, a complaint 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 has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(discussing Fed. R. Civ. P. 8). The facial “plausibility standard is not akin to a ‘probability

requirement.’” Ibid. (quoting Twombly, 550 U.S. at 556, 570). But it requires a plaintiff to allege

sufficient facts to enable the court to “draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ibid. In evaluating a motion to dismiss under Rule 12(b)(6), the court

must accept all facts alleged in the complaint as true. Ibid. But it need not adopt “[t]hreadbare

recitals of the elements of a cause of action” that are “supported by mere conclusory

statements.” Ibid.

When a plaintiff is proceeding pro se, the plaintiff’s complaint must be “liberally

construed, and . . . however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)

(quotations and citations omitted). “Nonetheless, a pro se complaint must state a plausible claim

for relief.” Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020).

Agent Connor’s Criminal Complaint is properly considered in adjudicating defendants’

motion to dismiss. A document outside the pleadings may be considered in evaluating a motion

to dismiss when the document is “incorporated . . . by reference” and “integral” to the complaint.

United States v. Strock, 982 F.3d 51, 63 (2d Cir. 2020) (internal quotations omitted); see Roth v.

Jennings, 489 F.3d 499, 509 (2d Cir. 2007). Applying this principle, courts often consider warrant

affidavits when evaluating motions to dismiss that involve challenges to a warrant’s validity.

Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 284 (S.D.N.Y. 2015); Vessa v. City of White

Plains, No. 12-cv-6989 (ER), 2014 WL 1271230, at *4 n. 9 (S.D.N.Y. Mar. 27, 2014), aff’d, 588

F. App’x 9 (2d Cir. 2014); Brodeur v. City of New York, No. 99-cv-651 (WHP), 2002 WL 424688,

at *2 (S.D.N.Y. Mar. 18, 2002). In doing so, a court may consult the warrant application “only to

establish [its] existence and legal effect, [and] to determine what statements [it] contained . . . not

for the truth of the matters asserted.” Liang v. City of New York, No. 10-cv-3089 (ENV) (VVP),

2013 WL 5366394, at *5 (E.D.N.Y. Sept. 24, 2013) (internal quotation omitted), aff’d sub nom.

Liang v. Zee, 764 F. App’x 103 (2d Cir. 2019).

DISCUSSION

Defendants’ motion to dismiss is granted in its entirety. While the Court has jurisdiction

over Mr. Selvam’s FTCA claims, the standalone Section 1983 claims lack a valid cause of action,

as do the fabrication-of-evidence, First Amendment, IIED, and physical-pain-and-suffering claims

brought under Bivens. The remaining Bivens claims and FTCA claims are also dismissed as

insufficiently plead.

I. Mr. Selvam’s Claims Under Section 1983 Are Dismissed

Mr. Selvam’s claims under Section 1983 are dismissed. Section 1983 authorizes recovery

only against persons acting “under color of any [law] . . . of any State or Territory or the District

of Columbia.” 42 U.S.C. § 1983. It “does not provide a cause of action against federal

defendants.” McCarthy v. Cuomo, No. 20-cv-2124 (ARR), 2020 WL 3286530, at *6 (E.D.N.Y.

June 18, 2020); see Dotson v. Griesa, 398 F.3d 156, 162 (2d Cir. 2005) (“This court has long

construed the phrase ‘under color of state law’ as used in related civil rights statutes, notably 42

U.S.C. § 1983, to apply only to state actors, not federal officials.”). Since the individual

defendants—Agent Connor and unnamed individuals “employed by defendant USA”—are federal

agents, Compl. 2, Section 1983 cannot sustain his claims against them. Accordingly, Mr. Selvam’s

claims under Section 1983 are dismissed for want of a valid cause of action. See Lubrano v. United

States, 751 F. Supp. 2d 453, 455 (E.D.N.Y. 2010), aff’d, 448 F. App’x 159 (2d Cir. 2012).

II. Mr. Selvam’s Claims Under Bivens Are Also Dismissed

Mr. Selvam has failed to state a claim under Bivens. Even assuming that Bivens supplies

a cause of action for malicious prosecution, qualified immunity bars it. Moreover, Mr. Selvam

does not state a claim for false arrest or for equal protection or due process violations. Finally,

Bivens does not extend to his fabrication-of-evidence, First Amendment, IIED, or physical-pain-

and-suffering claims.

A. Qualified immunity bars the malicious-prosecution claim.

Mr. Selvam’s most developed Bivens claim is for malicious prosecution. Courts have

reached differing conclusions regarding whether malicious prosecution claims may be brought

under Bivens. Compare Powell v. United States, No. 19-cv-11351 (AKH), 2020 WL 5126392, at

*11-12 (S.D.N.Y. Aug. 31, 2020) (permitting such a claim) with Butler v. Hesch, No. 16-cv-1540

(MAD) (CFH), 2020 WL 1332476, at *12-13 (N.D.N.Y. Mar. 23, 2020) (declining to permit such

a claim) (collecting cases). But even assuming that Bivens provides a cause of action, qualified

immunity bars Mr. Selvam’s claim.

Qualified immunity shields law enforcement officers from suit for money damages for

constitutional or statutory violations arising in the course of their duties, so long as “it was

objectively reasonable for them to believe that their acts did not violate those rights.” Golino v.

City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991); see Ganek v. Leibowitz, 874 F.3d 73, 80 (2d

Cir. 2017) (Qualified immunity is “‘an immunity from suit,’ not simply from liability.” (citing

White v. Pauly, 137 S. Ct. 548, 551 (2017)). In the context of malicious prosecution, a claim only

lies in the absence of probable cause. See Kee v. City of New York, 12 F.4th 150, 161-62 (2d Cir.

2021). Accordingly, an officer enjoys qualified immunity so long as “it was objectively reasonable

for the officer to believe that probable cause existed.” Carrillos v. Incorporated Village of

Hempstead, 87 F. Supp. 3d 357, 377 (E.D.N.Y. 2015) (citing Golino, 950 F.2d at 870).

The issuance of a warrant by a judicial officer upon a finding of probable cause creates a

presumption that the officer’s action in executing the warrant was reasonable. Ganek, 874 F.3d at

81 (citing Golino, 950 F.2d at 870). To defeat this presumption and the qualified immunity it

entails, a plaintiff must adequately plead that the officer “(1) ‘knowingly and deliberately, or with

a reckless disregard of the truth,’ procured the warrant, (2) based on ‘false statements or material

omissions,’ that (3) ‘were necessary to the finding of probable cause.’” Ibid. (citing Velardi v.

Walsh, 40 F.3d 569, 573 (2d Cir. 1994)). “To determine whether a false statement was necessary

to a finding of probable cause, [the court] consider[s] a hypothetical corrected affidavit, produced

by deleting any alleged misstatements from the original warrant affidavit and adding to it any

relevant omitted information.” Id. at 82. “[I]f probable cause remains after the warrant is

corrected, [the] plaintiff has suffered no violation of Fourth Amendment rights.” Ibid (internal

quotations omitted).

Mr. Selvam’s claim does not overcome qualified immunity because probable cause persists

even when the statements that Mr. Selvam asserts are false are struck from the warrant affidavit.

Agent Connor’s warrant application provides a detailed description of a conspiracy to import and

distribute misbranded Tramadol. It describes an investigation that included controlled buys, drug

seizures, and the execution of an electronic search warrant that recovered what appeared to be

“daily ledgers detailing the names, addresses, drugs, pill size, and pill amounts ordered by

customers throughout the United States.” Crim. Compl. ¶ 43; id. ¶¶ 5-10, 41-43. The investigation

also involved surveillance of the warehouse that appeared to be the conspiracy’s nerve center. Id.

¶¶ 11-25. Based on the warehouse surveillance and review of business records, Agent Connor

concluded that a company named “Hosea Express, Inc.,” which leased office space at the

warehouse, “operate[d] as [a] front business[] primarily engaged in drug trafficking.” Id. ¶ 38. He

observed that Hosea Express and another entity operated out of “different room[s] at the

Warehouse,” and that “based on personal observations and surveillance at the Warehouse, it

appears that the primary activity in each room is the unpacking, organization, storage, repacking,

labeling, and shipping of controlled substances.” Ibid. Bank records variously identified Ezhil

Sezhian Kamaldoss as Hosea Express, Inc.’s president, vice-president, or sole owner. Id. ¶ 39.

Agent Connor identified financial and other links between Mr. Selvam and the apparent

conspiracy. First, Agent Connor explained, Mr. Selvam was a co-signer for an entity apparently

linked to Hosea Express—“Hosea Worldwide Express Inc.”—a company that listed Mr.

Kamaldoss and Mr. Kamaldoss’s wife as proprietors. Ibid. Second, Agent Connor identified

evidence that Mr. Kamaldoss “regularly transferred money” from Indian accounts “into at least

one U.S. bank account in the name of” Mr. Selvam. Id. ¶ 52. Mr. Selvam then transferred those

funds “to pay down the balance on an American express account held jointly by” Mr. Kamaldoss

and Mr. Selvam. Ibid. The sums involved were quite large: the complaint describes transfers of

$60,000, $30,000, and $25,000 to Mr. Selvam’s bank account, which preceded payments of

$45,000, $31,725.27, and $23,851.29 to the joint American Express account. Ibid. Agent Connor

further states that the American Express account held jointly by Mr. Selvam was then “regularly

used to pay Federal Express bills in the name of Hosea.” Ibid. Based on review of the electronic

ledger reflecting apparent drug transactions, and the pattern of payments, Agent Connor concluded

that the payments to the American Express account were “used to pay for the purchase of additional

Tramadol pills.” Ibid.

In his opposition papers, Mr. Selvam contends that notwithstanding the magistrate’s

issuance of arrest warrants based on a finding of probable cause, probable cause was lacking

because four statements that Agent Connor made in seeking those warrants were false. First, Mr.

Selvam challenges the criminal complaint’s statement that “[t]he only defendant law enforcement

agents have not regularly observed moving or supervising the movement of boxes that contain, or

are believed to contain, drugs into the Warehouse’s loading dock or from the loading dock to

vehicles, including USPS vehicles that drive to the Warehouse for pickup, is” Mr. Selvam. Id.

¶ 13. Mr. Selvam contends that this sentence is false because he never visited the warehouse. Pl.’s

Mem. in Opp’n 2-3 (citing Crim. Compl. ¶ 13). Second, Mr. Selvam objects to the statement that

“defendants regularly communicated with each other through email, sharing cloud-based

documents and using online messaging applications such as WhatsApp.” Id. at 8 (citing Crim.

Compl. ¶ 41). Mr. Selvam alleges that statement is incorrect because in fact he only communicated

with Mr. Kamaladoss, and did so exclusively by e-mail. Ibid. Third, Mr. Selvam disputes Agent

Connor’s description of the American Express account as an “account held jointly” by Mr. Selvam

and Mr. Kamaldoss, stating that the account was not a “joint account,” but rather an “authorized

user account.” Id. at 9-10 (citing Crim. Compl. ¶ 52). As a result, Mr. Selvam alleges, his family

member (Mr. Kamaldoss) could use the card but was not liable for balances. Finally, Mr. Selvam

disputes Agent Connor’s statement that American Express records indicate Mr. Selvam himself

“paid numerous bills, including Federal Express bills, associated with Hosea.” Id. at 8-9 (citing

Crim. Compl. ¶ 39). But assuming Mr. Selvam’s statements in his opposition to be true, they

would fall short of the required preliminary showing that Agent Connor intentionally or recklessly

made “false statements” “necessary to the finding of probable cause.” Ganek, 874 F.3d at 81

(internal quotations omitted).

Two statements that Mr. Selvam challenges do not appear false at all, even assuming the

truth of Mr. Selvam’s account. Contrary to Mr. Selvam’s suggestion, Agent Connor’s discussion

of warehouse surveillance is not best read as representing that Mr. Selvam had been seen at that

location. Agent Connor contrasted named defendants who had been “regularly observed moving

or supervising the movement of boxes that contain, or are believed to contain, drugs” into the

warehouse with Mr. Selvam, who had not. Crim. Compl. ¶ 13. In its context, the statement to

which Mr. Selvam objects simply indicates that Mr. Selvam was not among the named defendants

who had been regularly seen at the warehouse.

Mr. Selvam’s objection to Agent Connor’s description of communications among subjects

of the investigation is similarly flawed. Agent Connor’s statement that “defendants regularly

communicated with each other through email, sharing cloud-based documents and using online

messaging applications such as WhatsApp,” id. ¶ 41, is most plausibly read to indicate only that

the named defendants, as a group, used e-mail and online messaging to communicate with each

other. It is not best read as representing that every defendant communicated with every other

defendant using each of the means described.

The remaining assertions in Mr. Selvam’s opposition brief do conflict with Agent Connor’s

account, but crediting Mr. Selvam’s account would not strip the warrant affidavit of probable

cause. Mr. Selvam disputes Agent Connor’s description of the American Express account as “held

jointly” by Mr. Selvam and Mr. Kamaldoss, stating that the account was not a “joint account,” but

rather an “authorized user account.” Pl.’s Mem. in Opp’n 9-10 (citing Crim. Compl. ¶ 52). But

this alleged inaccuracy is immaterial—whether Mr. Kamaldoss would be liable for balances on

the American Express account has scant bearing on probable cause.

Mr. Selvam’s remaining factual challenge strips the complaint of one inculpatory

allegation. Mr. Selvam disputes that he himself “paid numerous bills, including Federal Express

bills, associated with Hosea”—although he does not dispute that someone used the shared account

to pay such bills, or that he himself paid the balances on the American Express card. See Pl’s

Mem. in Opp’n 8 (“Plaintiff has never paid any bill, let alone a federal express bill, for Hosea

Exp[r]ess Inc.”); see id. at 9.

But the complaint would still establish probable cause even were that statement (and the

joint-account statement) struck. With those statements removed, the complaint is not much

changed. It alleges that federal agents identified an alleged drug and money-laundering enterprise,

including by tracking and intercepting packages containing misbranded Tramadol. Mr. Selvam

was in contact with one of the key figures in that enterprise, his relative. He held an American

Express card that was used to pay bills of the Tramadol distribution enterprise. Crim. Compl. ¶ 53.

When the card was used in that way, Mr. Selvam’s relative wired him tens of thousands of dollars.

Id. ¶ 52. And Mr. Selvam himself used those funds to pay down the balance. Ibid. Taken together,

these allegations suffice to support probable cause that Mr. Selvam was a knowing participant in

the drug and money-laundering conspiracies described in the complaint. To be sure, they do not

foreclose the possibility that Mr. Selvam’s apparent actions in support of the conspiracies were

unwitting. But Mr. Selvam’s ties to a key member of the conspiracy, and his role in the

conspiracy’s finances, would warrant a person of reasonable caution in believing that Mr. Selvam

was a knowing conspirator. “[T]he fact that an innocent explanation may be consistent with the

facts alleged . . . does not negate probable cause.” Fabrikant v. French, 691 F.3d 193, 216 (2d

Cir. 2012) (internal quotations omitted). Accordingly, Mr. Selvam has not adequately pleaded that

false statements by Agent Connor were “were necessary to the finding of probable cause”

underlying the warrant for his arrest. Ganek, 874 F.3d at 81. Mr. Selvam’s malicious-prosecution

claim is therefore dismissed.

B. Mr. Selvam has also failed to plead a claim for false arrest.

Mr. Selvam’s claim for false arrest must also be dismissed. Assuming that Bivens permits

false-arrest claims of the sort pressed by Mr. Selvam, Mr. Selvam fails to plead false arrest for

several reasons. First, false-arrest claims are directed at detentions without legal process.

Broughton v. State, 37 N.Y.2d 451, 457 (N.Y. 1975). Where “some sort of prior judicial

proceeding” has occurred, malicious prosecution, not false arrest, is the proper remedy. Ibid.

Because a judge’s issuance of a warrant qualifies as a prior judicial proceeding, “an unlawful arrest

made pursuant to an arrest warrant sounds not in false arrest but in malicious prosecution.” Assegai

v. Bloomfield Bd. of Ed., 165 F. App’x 932, 934-35 (2d Cir. 2006) (citing Singer v. Fulton County

Sheriff, 63 F.3d 110, 117 (2d Cir. 1995)). Second, “[t]he existence of probable cause to arrest

constitutes justification and is a complete defense to an action for false arrest.” Weyant v. Okst,

101 F.3d 845, 852 (2d Cir. 1996) (internal quotations omitted). As explained above, Mr. Selvam

was arrested based on a magistrate’s determination of probable cause. See pp. 6-11, supra. And

Mr. Selvam has not adequately pleaded that probable cause was wanting despite that

determination. While Mr. Selvam alleges that certain statements in the warrant affidavit were

false, those statements were not necessary to the magistrate’s probable-cause finding. Ibid.

C. Mr. Selvam has failed to plead Equal Protection or Due Process violations.

Mr. Selvam’s claims that Agent Connor and the unknown defendants violated his equal

protection and due process rights are also deficient. Assuming the availability of causes of action

for these claims under Bivens, the claims are too conclusory to survive. Mr. Selvam simply alleges

that his “equal protection and due process rights were violated by defendant Patrick Connor and

Unk[]nown defendant(s), acting under color of law, in their individual capacities, that resulted in

Plaintiff’s loss of liberty and loss of privacy and ultimately resulted in permanent irrepar[]able

damages to Plaintiff.” Compl. 9. These conclusory statements do not plead an equal protection

violation, because to state “a violation of the Equal Protection Clause, a plaintiff must demonstrate

that he was treated differently than others similarly situated as a result of intentional or purposeful

discrimination.” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005). Here, plaintiff has not

made any allegation that defendants treated him differently from any similarly situated individuals.

By that same token, Mr. Selvam does not explain with any specificity what conduct he believes

violated his due process rights, and why. The complaint therefore does not “give the defendant

fair notice of what” the alleged due process violation “is and the grounds upon which it rests.”

Twombly, 550 U.S. at 555. Because the complaint does not adequately plead a due process or

equal protection violation, this count of the complaint is dismissed.

D. Bivens does not extend to plaintiff’s remaining constitutional or tort claims.

Bivens does not provide Mr. Selvam a cause of action for his fabrication-of-evidence, First

Amendment, IIED, or physical-pain-and-suffering claims.

1. Bivens provides no cause of action for fabrication of evidence.

Bivens does not provide an avenue for Mr. Selvam to pursue his fabrication-of-evidence

claim. The causes of action that may be pursued under Bivens are limited. In Bivens itself, the

Supreme Court recognized an implied damages action against federal narcotics officers for a

Fourth Amendment violation arising from a warrantless arrest of a man in his own home. Bivens,

403 U.S. at 389. It recognized two more implied damages actions during the decade that followed.

In 1979, the Court recognized an implied action against members of Congress under the Fifth

Amendment for employment discrimination on the basis of sex. Davis v. Passman, 442 U.S. 228,

249-50 (1979). The following year, the Court recognized an implied damages action against

federal prison officials for an Eighth Amendment violation arising from the denial of medical care

to a prisoner resulting in death. Carlson v. Green, 446 U.S. 14, 16 (1980). Those decisions, the

Supreme Court has explained, “were the products of an era in which the Court routinely inferred

‘causes of action’ that were ‘not explicit’ in the text of the provision that was allegedly violated.”

Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020) (citation omitted). But “[i]n later years,” the

Supreme Court “came to appreciate more fully the tension between this practice and the

Constitution’s separation of legislative and judicial power.” Ibid. Since then, the Supreme Court

has “recognized that Congress is best positioned to evaluate whether, and the extent to which,

monetary and other liabilities should be imposed upon individual officers and employees of the

Federal Government based on constitutional torts.” Id. at 742 (internal quotations omitted). It has

described the “expansion of Bivens” as “a disfavored judicial activity,” and “gone so far as to

observe that if ‘the Court’s three Bivens cases had been decided today, it is doubtful that [the

Court] would have reached the same result.” Id. at 742-43 (brackets, ellipses, and internal

quotations omitted).

The Supreme Court has instructed courts to engage in a “two-step inquiry” in determining

whether a Bivens claim is viable today. First, the court should “inquire whether” the claim being

pressed “arises in a new context or involves a new category of defendants.” Id. at 743 (internal

quotations omitted). A context is “new if it is different in a meaningful way from previous Bivens

cases decided by” the Supreme Court. Ibid. (internal quotations omitted). Meaningful differences

include:

the rank of the officers involved; the constitutional right at issue; the generality or

specificity of the official action; the extent of judicial guidance as to how an officer should

respond to the problem or emergency to be confronted; the statutory or other legal mandate

under which the officer was operating; the risk of disruptive intrusion by the Judiciary into

the functioning of other branches; or the presence of potential special factors that previous

Bivens cases did not consider.

Ziglar v. Abbasi, 137 S. Ct. 1843, 1859-60 (2017).

If “a claim arises in a new context,” a court must ask “whether there are any special factors

that counsel hesitation” about extending Bivens to the new claim. Hernandez, 140 S. Ct. at 743

(internal quotations and brackets omitted). “[S]eparation-of-powers principles” are “central” to

that inquiry. Ibid. (quoting Ziglar, 137 S. Ct. at 1857). A court must ask “whether the Judiciary

is well suited, absent congressional action or instruction, to consider and weigh the costs and

benefits of allowing a damages action to proceed.” Ziglar, 137 S. Ct. at 1858. A court may

consider whether the judiciary possesses the capacity to assess the impact of liability “on

governmental operations” if liability were created, and whether “the case arises in a context in

which Congress has designed its regulatory authority in a guarded way, making it less likely that

Congress would want the Judiciary to interfere.” Ibid. If any factor gives a court “reason to pause”

when considering whether to recognize a cause of action, Bivens may not be extended. Hernandez,

140 S. Ct. at 743. The threshold here—“‘counsel[ing] hesitation’— is remarkably low.” Arar v.

Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009) (citation omitted).

Bivens is unavailable for Mr. Selvam’s fabrication-of-evidence claim under these

principles. Mr. Selvam alleges that Agent Connor violated his Fifth Amendment rights by

“intentionally filing [a] false affidavit[]” to initiate his prosecution. Compl. 7-8. This claim

matches none of the contexts recognized in Bivens, Davis, and Carlson, and it has likewise never

been recognized by the Second Circuit. See Powell v. United States, No. 19-cv-11351 (AKH),

2020 WL 5126392, at *8 (S.D.N.Y. Aug. 31, 2020) (surveying cases). The Fourth, Fifth, and

Eighth Circuits have expressly rebuffed such claims. See Annappareddy v. Pascale, 996 F.3d 120,

137 (4th Cir. 2021) (declining to recognize cause of action for fabrication of evidence under

Bivens); Cantú v. Moody, 933 F.3d 414, 421 (5th Cir. 2019) (same), cert. denied, 141 S. Ct. 112,

(2020); Farah v. Weyker, 926 F.3d 492, 502 (8th Cir. 2019) (same).

Moreover, several factors counsel hesitation about extending Bivens to this context. First,

an implied cause of action for the fabrication of evidence of the sort that Mr. Selvam seeks would

“require courts to interfere in the executive branch’s investigative and prosecutorial functions.”

Annappareddy, 996 F.3d at 137. Mr. Selvam’s claim arises against the backdrop of a complex,

multi-agency federal investigation with international components. Crim. Compl. ¶¶ 2, 11-20, 41,

49-54; Pl.’s Mem. in Opp’n 2-3. Recognizing a Bivens cause of action arising from an agent’s

description of such an investigation would intrude more deeply into Executive Branch functioning

than recognizing a cause of action pertaining to a single warrantless search and seizure by narcotics

officers. Cf. Annappareddy, 996 F.3d at 137-38 (indicating hesitation about extending Bivens to

fabrication allegations that arose out of “a complex and multi-agency investigation” spanning

several states); Cantú, 933 F.3d at 424 (indicating hesitation about extending Bivens into

fabrication allegations arising out of “a multi-jurisdictional investigation into transnational

organized crime”). Moreover, assessing a claim for fabrication of evidence would require inquiry

into whether the asserted fabrication was “likely to influence a jury’s decision,” and whether “the

plaintiff suffer[ed] a deprivation of life, liberty, or property as a result.” See Garnett v. Undercover

Officer C0039, 838 F.3d 265, 278-80 (2d Cir. 2016) (internal quotations omitted). Inquiry into

those matters implicates separation-of-powers considerations because it would require a “a wide-

ranging dive into . . . all evidence available to investigators, prosecutors, judges, and juries.”

Annappareddy, 996 F.3d at 138 (citation omitted). Such inquiries “encroach on the usual secrecy

of charging decisions” that is the discretionary domain of the executive branch. Farah, 926 F.3d

at 501.

Finally, Congress “has long been on notice that the Supreme Court is disinclined to extend

Bivens to new contexts.” Cantú, 933 F.3d at 423 (citing Ziglar, 137 S. Ct. at 1857). Rather than

establish a Bivens-style cause of action for fabrication of evidence, Congress has instead created

other, more limited statutory mechanisms that allow victims of fabrication to recover in certain

cases. One such enactment permits “courts to award attorney fees to criminal defendants who

prevail against ‘vexatious, frivolous, or bad-faith’ positions taken by the government,” Farah v.

Weyker, 926 F.3d 492, 501 (8th Cir. 2019) (discussing 18 U.S.C. § 3006A note), and another

permits those wrongfully convicted and sentenced to sue the government for damages, ibid.

(discussing 28 U.S.C. § 1495). Against this backdrop, Congress’s “failure” to provide a Bivens-

style remedy here indicates “more than mere oversight.” Cantú, 933 F.3d at 423 (quoting Ziglar,

137 S. Ct. at 1862). Because several factors counsel judicial hesitation, whether to create a

damages action against individual federal officers for fabrication of evidence “is a decision for

Congress to make, not the courts.” Ziglar, 137 S. Ct. at 1860.

2. Plaintiff’s First Amendment claim cannot be pursued under Bivens.

Bivens also supplies no cause of action for plaintiff’s claim that Agent Connor (and

unknown defendants) retaliated against him in violation of the First Amendment by contacting

plaintiff’s banks regarding plaintiff’s suspected illegal activity. The Supreme Court has cautioned

that it has “never held that Bivens extends to First Amendment claims.” Reichle v. Howards, 566

U.S. 658, 663 n.4 (2012); see Iqbal, 556 U.S. at 675. And a rough consensus has emerged in the

lower courts that “there is no Bivens remedy available for violations of the First Amendment.”

Davila v. Gutierrez, 330 F. Supp. 3d 925, 939 (S.D.N.Y. 2018) (collecting cases), aff’d, 791 F.

App’x 211 (2d Cir. 2019); but see Boule v. Egbert, 980 F.3d 1309, 1317 (9th Cir. 2020)

(recognizing a First Amendment retaliation claim), reh’g en banc denied, 998 F.3d 370 (9th Cir.

2021); Boule, 998 F.3d at 998 F.3d (Bumatay, J., dissenting from denial of reh’g) (observing that

in recognizing the claim, the Ninth Circuit is “an outlier among [its] sister courts” and collecting

Second, Fourth, Sixth, and D.C. Circuit cases declining to extend Bivens to First Amendment

contexts). I follow the weight of existing precedent.

Several factors counsel hesitation before extending Bivens to the context of First

Amendment retaliation. Whether a claim exists depends on whether defendants took actions

“motivated or substantially caused by” the plaintiff’s exercise of a First Amendment right. Curley

v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001). A judicially created Bivens claim turning on

an inquiry into the motives of law enforcement officers for otherwise lawful actions raises

separation-of-powers concerns. See Hernandez, 140 S. Ct. at 743. And caution may be

particularly warranted where, as here, Bivens liability would be premised on a government actor’s

speech. “[T]he government has speech interests of its own.” Storms v. Shinseki, 319 F. Supp. 3d

348, 355 (D.D.C. 2018), aff’d, 777 F. App’x 522 (D.C. Cir. 2019). The government’s interest in

“speak[ing] for itself, without facing unique court-imposed liability regimes” counsels caution in

extending Bivens here. Ibid. Given these factors counseling hesitation, “Congress is better suited

than the Judiciary to determine whether a damages action should arise.” Ibid.

3. Bivens does not support Mr. Selvam’s IIED claims.

Mr. Selvam’s IIED claim against the individual defendants is also dismissed because it is

not viable under Bivens. At minimum, to bring a claim under Bivens, a plaintiff “must allege that

he has been deprived of a constitutional right.” Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir.

2006). Mr. Selvam’s IIED allegations fail to satisfy this requirement, because IIED is a common-

law claim, not a constitutional one. See, e.g., Ojo v. United States, No. 15-cv-6089 (ARR) (LB),

2018 WL 3863441, at *7 (E.D.N.Y. Aug. 14, 2018). Accordingly, Mr. Selvam cannot bring an

IIED claim under Bivens.

4. Mr. Selvam cannot pursue a claim for “physical pain and suffering”

under Bivens.

Mr. Selvam’s Fourth Amendment physical-pain-and-suffering claim against the individual

defendants also fails to state a claim under Bivens. In that claim, Mr. Selvam alleges that “[a]s a

result [of] the defendant[s’] violation of the above civil rights, Plaintiff was caused to endure . . .

physical and emotional pain.” Compl. 9-10. He elsewhere characterizes his pain and suffering as

“damages” “directly and proximately caused” by the defendants “actions or inactions.” Id. at 3-4.

Mr. Selvam’s claim of physical pain and suffering thus appears to be a request for damages

resulting from the constitutional violations pleaded elsewhere in the complaint. Accordingly, this

Bivens claim rises or falls with those underlying allegations. Because Mr. Selvam has not validly

pleaded an underlying constitutional violation cognizable under Bivens, see pp. 6-18, supra, he

cannot recover damages associated with his underlying Bivens claims.

III. Mr. Selvam’s FTCA Claims Are Dismissed

While defendants are mistaken in contending that the Court lacks jurisdiction over

plaintiff’s FTCA claims, those claims are dismissed because each claim is either inadequately

pleaded or barred by the probable cause established by the warrant affidavit.

A. The Court possesses subject-matter jurisdiction over plaintiff’s claims.

Contrary to defendants’ arguments, the Court has subject-matter jurisdiction over Mr.

Selvam’s FTCA claims.

1. The discretionary-function exception does not apply.

Defendants contend that the FTCA’s discretionary-function exception bars jurisdiction

over plaintiff’s malicious-prosecution and false-arrest claims. That exception provides that the

FTCA’s waiver of sovereign immunity does not apply to “any claim . . . based upon the exercise

or performance or the failure to exercise or perform a discretionary function or duty on the part of

a federal agency or an employee of the Government.” 28 U.S.C. § 2680(a). It covers acts that

“involve an element of judgment or choice” and are “based on considerations of public policy.”

United States v. Gaubert, 499 U.S. 315, 322-23 (1991) (internal quotations omitted).

Defendants contend that this exception encompasses Mr. Selvam’s malicious-prosecution

and false-arrest claims because law-enforcement activities are discretionary and grounded in

considerations of policy. Defs.’ Mem. in Supp. 21-22. But while the discretionary-function

exception sometimes cloaks law-enforcement officers in immunity, see, e.g., Caronia v. United

States, No. 13-cv-5758 (FB) (LB), 2015 WL 4872558, at *5 (E.D.N.Y. Aug. 13, 2015), aff’d sub

nom. Caronia v. Orphan Med., Inc., 643 F. App’x 61 (2d Cir. 2016), it does not do so here.

As defendants note, the FTCA’s law-enforcement proviso counterbalances the

discretionary-function exception. See 28 U.S.C. § 2680(h). This proviso waves immunity to

claims arising from certain intentional torts committed by law enforcement officers, including false

arrest and malicious prosecution. Ibid.; see Millbrook v. United States, 569 U.S. 50, 57 (2013).

Defendants argue that they enjoy immunity under the FTCA notwithstanding the law-enforcement

proviso because the section containing that waiver grants immunity to prosecutors for these same

torts, and that immunity extends to law enforcement officers who serve as prosecutorial adjuncts.

See Defs.’ Mem. in Supp. 22-23; Reply 8-9. This argument fails. While officers partake of

prosecutorial immunity when assisting prosecutorial activities directly, see Caronia, 2015 WL

4872558, at *5, “the exception does not protect investigative and law enforcement agents . . .

where the actions of those agents are sufficiently separable from the protected discretionary

decision to prosecute.” Morales v. United States, No. 94-cv-4865 (JSR), 1997 WL 285002, at *1

(S.D.N.Y. May 29, 1997) (internal quotations omitted). And “a federal investigator’s decision to

lie under oath is separable from the discretionary decision to prosecute.” Reynolds v. United States,

549 F.3d 1108, 1113 (7th Cir. 2008) (collecting cases); see Barone v. United States, No. 12-cv-

4103 (LAK), 2014 WL 4467780, at *11 (S.D.N.Y. Sept. 10, 2014); Wang v. United States, No.

01-cv-1326 (HB), 2001 WL 1297793, at *4 (S.D.N.Y. Oct. 25, 2001), aff’d, 61 F. App’x 757 (2d

Cir. 2003).

Because Mr. Selvam alleges that Agent Connor lied in the arrest-warrant affidavit, e.g.,

Compl. 3; Pl.’s Mem. in Opp’n 3, this Court possesses jurisdiction to hear the claim, despite the

immunity prosecutors enjoy.

2. Nor is the malicious-prosecution claim unripe.

There is no greater merit to defendants’ argument that the Court lacks subject-matter

jurisdiction over plaintiff’s malicious-prosecution claim because the claim is unripe. See Defs.’

Mem. in Opp’n 23-24. Defendants assert that the favorable-termination element of a malicious

prosecution claim is not simply an element of the claim but a jurisdictional ripeness requirement.

See ibid. And they argue that since plaintiff’s complaint was dismissed without prejudice—

leaving the government free to reinstitute the charges—no favorable termination could have

occurred. See ibid.

But plaintiff has adequately pleaded favorable termination here—even assuming that

favorable termination bears on ripeness. To plead favorable termination, a plaintiff must “plead

that the termination of the prosecution[] against him affirmatively indicated his innocence.”

Lanning v. City of Glens Falls, 908 F.3d 19, 28 (2d Cir. 2018) (affirming a judgment that a claim

was inadequately pleaded where the plaintiff alleged only that the underlying charges were

“dismissed” without more, and later indicated the dismissal was made “in the interests of justice

based on jurisdictional issue [sic],” id. at 23 n.1 (quoting the pleadings and briefings)). Contrary

to defendants’ contentions, whether an action may be reinstituted is not determinative of that

question. See Spak v. Phillips, 857 F.3d 458, 463-64 (2d Cir. 2017) (holding that “a nolle prosequi

constitutes a ‘favorable termination’” even though “it does not prevent a prosecutor from re-

charging the same defendant for the same criminal conduct at some point in the future”); accord

W Page Keeton et al., Prosser & Keeton on Torts § 119 (5th ed. 1984). While dismissals

inconsistent with innocence do not suffice for favorable termination, some dismissals without

prejudice do. Smith-Hunter v. Harvey, 95 N.Y.2d 191, 198 (N.Y. 2000) (“A dismissal without

prejudice qualifies as a final, favorable termination if the dismissal represents ‘the formal

abandonment of the proceedings by the public prosecutor.’” (quoting Restatement (Second) of

Torts § 659 cmt. c (Am. L. Inst. 1977)). If the disposition does not address the merits, a plaintiff

may still plead favorable termination by alleging “that the action was abandoned under

circumstances which fairly imply [his] innocence.” Castro v. E. End Plastic, Reconstructive &

Hand Surgery, P.C., 850 N.Y.S.2d 483, 485 (N.Y. App. Div. 2008) (internal quotations omitted);

accord Ying Li v. City of New York, 246 F. Supp. 3d 578, 610 (E.D.N.Y. 2017) (declining to

dismiss where a plaintiff “sufficiently alleged favorable termination” even without “alleg[ing] the

specific disposition of the case”) (collecting cases).

Mr. Selvam has pleaded that the proceedings against him were terminated under

circumstances which indicate his innocence, and he has set forth facts to support his account. See

Pl.’s Mem. in Opp’n 10-11, 12-15. Defendants correctly state that a dismissal of a criminal

complaint for facial insufficiency does not establish favorable termination because it offers “no

indication that the prosecutor abandoned charges,” Defs.’ Mem. in Supp. 24 (quoting Smith-

Hunter, 95 N.Y.2d at 198 (discussing MacFawn v. Kresler, 88 N.Y.2d 859, 860 (N.Y. 1996))), but

those are not the allegations here. Mr. Selvam’s allegations are sufficient to state a ripe claim and

to survive a motion to dismiss. See Birch v. Danzi, No. 18-cv-839 (PKC) (LB), 2018 WL 3613016,

at *6 (E.D.N.Y. July 26, 2018) (finding that allegations that the government dropped charges “due

to a lack of evidence and the falsified confession” adequately pleaded favorable termination)

(citing Ying Li, 246 F. Supp. 3d at 661); Mamakos v. United Airlines, Inc., No. 14-cv-7294 (SJF)

(AKT), 2020 WL 6319126, at *9 (E.D.N.Y. Sept. 22, 2020) (declining to dismiss because the

plaintiff had adequately pleaded favorable termination).

B. Mr. Selvam has not adequately pleaded malicious prosecution or false arrest

under the FTCA.

Turning to the merits, Mr. Selvam has not adequately pleaded malicious-prosecution or

false-arrest claims under the FTCA. The FTCA permits suit against the United States for the

tortious actions of its employees “under circumstances where the United States, if a private person,

would be liable to the claimant in accordance with the law of the place where the act or omission

occurred.” 28 U.S.C. § 1346; id. § 2674. Accordingly, to state a claim under the FTCA, Mr.

Selvam must adequately plead each element of the relevant claim under New York law.

Under New York law, a plaintiff claiming malicious prosecution or false arrest must

establish the absence of probable cause. See Kee, 12 F.4th at 162 (quoting Smith-Hunter, 95

N.Y.2d at 195); Burns v. City of New York, 120 N.Y.S.3d 360, 362 (N.Y. App. Div. 2020). Failure

to do so dooms these claims, since “[p]robable cause to believe that a person committed a crime

is a complete defense to causes of action alleging false arrest and malicious prosecution.” Braxton

v. City of New York, 115 N.Y.S.3d 408, 409 (N.Y. App. Div. 2019), leave to appeal denied, 35

N.Y.3d 906 (2020). “The existence or absence of probable cause becomes a question of law to be

decided by the court . . . where there is no real dispute as to the facts.” Ibid. As described above,

Mr. Selvam has not established “the absence of probable cause.” Kee, 12 F.4th at 162; see Ganek,

874 F.3d at 82. Here, Mr. Selvam has contended that certain assertions in Agent Connor’s warrant

affidavit are false, but probable cause would persist even in the absence of those assertions. See

pp. 6-11, supra. Accordingly, Mr. Selvam has not adequately pleaded the absence of probable

cause here.

Mr. Selvam’s false-arrest claim is also deficient for the further reason that since Mr.

Selvam was arrested pursuant to a warrant, a claim for malicious prosecution, not false arrest, is

the proper remedy for any harm. Broughton, 37 N.Y.2d at 457. Because plaintiff has failed to

allege the necessary elements of the underlying torts of false arrest and malicious prosecution, his

FTCA claims seeking compensation based on those torts must be dismissed.

C. Mr. Selvam’s conclusory pleadings do not sustain an NIED claim.

Mr. Selvam has not adequately pleaded NIED. To plead NIED in New York, a plaintiff

must allege that the defendant breached a “duty of care resulting directly in emotional harm.”

Ornstein v. N.Y.C. Health & Hosps. Corp., 10 N.Y.3d 1, 6 (N.Y. 2008) (citation omitted). This

duty must be “specific to the plaintiff, and not some amorphous, free-floating duty to society.”

Tigano v. United States, 527 F. Supp. 3d 232, 249 (E.D.N.Y. 2021) (internal quotations omitted).

Furthermore, the resulting “mental injury [must be] a direct, rather than a consequential, result of

the breach” and “the claim [must] possesses some guarantee of genuineness.” Id. at 248 (internal

quotations omitted). This “guarantee of genuineness” requires “a specific, recognized type of

negligence that obviously has the propensity to cause extreme emotional distress ‘such as the

mishandling of a corpse or the transmission of false information that a parent or child had died.’”

J.H. v. Bratton, 248 F. Supp. 3d 401, 416 (E.D.N.Y. 2017) (quoting Taggart v. Costabile, 14

N.Y.S.3d 388, 396 (N.Y. App. Div 2015)) (brackets omitted). Alternatively, the breach “‘must

have at least endangered the plaintiff’s physical safety or caused the plaintiff to fear for his or her

own safety.’” Ibid (quoting Taggart, 14 N.Y.S.3d at 396). These stringent requirements “filter

out” most claims. Taggart, 14 N.Y.S.3d at 396.

Mr. Selvam’s pleadings do not meet these requirements. First, he does not identify the sort

of duty cognizable in an NIED claim. While an officer may have duty to perform investigations

diligently, that is “a general duty to society,” not a “specific duty” owed to Mr. Selvam. Lauer v.

City of New York, 95 N.Y.2d 95, 100 (2000) (declining to find that a coroner owed a “specific

duty” to the parents of a dead child where the coroner erroneously listed a child’s cause of death a

homicide, destroying the parents’ marriage and causing substantial emotional harm); see, e.g.,

Kraft v. City of New York, 696 F. Supp. 2d 403, 424 (S.D.N.Y. 2010) (“[W]hile police defendants

may owe a general duty to the public, they did not owe any specific duty to [the] plaintiff” when

they incorrectly transported him to a mental hospital), aff’d, 441 F. App’x 24 (2d Cir. 2011); see

also Hazan v. City of New York, No. 98-cv-1716 (LAP), 1999 WL 493352, at *5 (S.D.N.Y. July

12, 1999); Burroughs v. Mitchell, 325 F. Supp. 3d 249, 285 (N.D.N.Y. 2018); Albert v. City of

New York, No. 17-cv-3957 (ARR) (SMG), 2019 WL 3804654, at *9-11 (E.D.N.Y. Aug. 13, 2019).

Nor has Mr. Selvam asserted “a specific, recognized type of negligence that obviously has

the propensity to cause extreme emotional distress.” Bratton, 248 F. Supp. 3d at 416. The harms

that he alleges—emotional injury and embarrassment resulting from his arrest—are harms

cognizable through the torts of false arrest or malicious prosecution, but not NIED. Dollard v.

City of New York, 408 F. Supp. 3d 231, 238-39 (E.D.N.Y. 2019) (collecting cases). Furthermore,

embarrassment from publicity surrounding his arrest—and just what publicity he is referring to

Mr. Selvam does not say—sounds more in defamation than in NIED’s carefully circumscribed

realm. See Taggart, 14 N.Y.S.3d at 396.

D. Mr. Selvam has not identified sufficiently “outrageous conduct” or alleged

sufficient facts demonstrating intent to give rise to an IIED claim.

Mr. Selvam’s IIED claim under the FTCA fails because the conduct Mr. Selvam alleges

does not meet New York’s “rigorous[] and difficult to satisfy” standard for “extreme and

outrageous conduct.” Conboy v. AT & T Corp., 241 F.3d 242, 258 (2d Cir. 2001) (quoting Howell

v. New York Post Co., 81 N.Y.2d 115, 122 (N.Y. 1993)). To plead IIED, the plaintiff must allege

conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds

of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Chanko v. Am. Broad. Companies Inc., 27 N.Y.3d 46, 56 (N.Y. 2016) (internal quotations

omitted). “The question of whether a complaint adequately alleges such grievous allegations is a

question to be determined by the Court.” Druschke v. Banana Republic, Inc., 359 F. Supp. 2d 308,

314 (S.D.N.Y. 2005) (citing Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir.1999). Setting aside

plaintiff’s conclusory statements, the only conduct he alleges was that Agent Connor made several

non-material false statements on the application for his arrest warrant, resulting in his arrest, which

was allegedly publicized. Pl.’s Mem. in Opp’n 23. Courts have consistently held that such conduct

is simply not “so outrageous . . . and so extreme” to support an IIED claim. See Williams v. City

of Mount Vernon, 428 F. Supp. 2d 146, 160 (S.D.N.Y. 2006) (holding that allegations of false

arrest and excessive force “do not go beyond all possible bounds of decency”); Jones v. City of

New York, 988 F. Supp. 2d 305, 318 (E.D.N.Y. 2013) (concluding that allegations that prosecutors

withheld evidence, prolonged a detention, and manipulated DNA reports do not meet the IIED

standard); Garrison v. Toshiba Bus. Sols. (USA). Inc., 907 F. Supp. 2d 301, 308 (E.D.N.Y. 2012)

(“Generally, defamatory statements are not considered so extreme as to constitute the extreme and

outrageous conduct required to support such a claim.” (internal quotations omitted)).

Similarly, IIED requires pleading the defendants’ “intent to cause, or disregard of a

substantial probability of causing, severe emotional distress.” Chanko., 27 N.Y.3d at 56. Again,

aside from plaintiff’s “bare assertions” of malice, Iqbal, 556 U.S. at 681, no factual allegations

support the conclusion that defendants acted with the requisite mens rea. See Druschke., 359 F.

Supp. 2d at 314-15 (S.D.N.Y. 2005) (dismissing an IIED claim for, among other reason,

insufficiently pleading allegations of intent); Tigano, 527 F. Supp. 3d at 248 (same). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice,” Iqbal, 556 U.S. at 678, so this claim is dismissed.

E. Mr. Selvam’s FTCA negligence claim is also subject to dismissal.

Mr. Selvam’s negligence claim must also be dismissed. Mr. Selvam asserts that defendants

owed him “a duty . . . to not inflict financial damage,” and that they breached this duty by

negligently “contact[ing] plaintiff’s banks and clos[ing his] Bank Accounts and Credit Cards.”

Pl.’s Mem. in Opp’n 23.

“[T]he threshold question” in any negligence action is whether the defendant owes the

plaintiff a duty of care. In re Agape Litig., 681 F. Supp. 2d 352, 359 (E.D.N.Y. 2010) (internal

quotations omitted). Whether such a duty exists is a question of law. Musalli Factory for Gold &

Jewellry v. JPMorgan Chase Bank, N.A., 261 F.R.D. 13, 27 (S.D.N.Y. 2009), (citing Purdy v.

Public Adm’r of Westchester, 72 N.Y.2d 1, 8 (N.Y.1988)), aff’d sub nom. Musalli Factory for

Gold & Jewellry Co. v. JPMorgan Chase Bank, N.A., 382 F. App’x 107 (2d Cir. 2010). As a

general matter, “actors engaging in conduct that creates a risk to others have a duty to exercise

reasonable care to avoid causing physical harm.” Restatement (Third) of Torts: Phys. & Emot.

Harm § 7 cmt. a (Am. L. Inst. 2016) (emphasis added); see Morgan Stanley & Co. Inc. v. J.P.

Morgan Chase Bank, N.A., 645 F.Supp.2d 248, 257 (S.D.N.Y. 2009) (explaining that under New

York law, “[a]ctionable negligence requires injury to person or property as the proximate result of

the allegedly negligent act” (quoting Greco v. National Transp. Co., 222 N.Y.S.2d 145, 146 (N.Y.

App. Div. 1961)).

In contrast, under the “economic loss” rule, “[i]f the harm is sustained is purely economic,

then a claim of negligence is not actionable, because ‘in the absence of any alleged physical

property damage, the connection between defendants’ activities and plaintiff’s economic

losses . . . is too tenuous and remote to permit recovery on any tort theory.’” Ibid. (quoting

Goldberg Weprin & Ustin, LLP v. Tishman Const. Corp., 713 N.Y.S.2d 57, 58 (N.Y. App. Div.

2000)); see 16 N.Y. Prac., Torts 21:13:10 (“Pursuant to the ‘economic loss rule,’ there can be no

recovery in tort when the only damages alleged are for economic loss.”).

Plaintiff’s claim for financial damages here is for economic losses that do not result from

physical harm. And plaintiff has not asserted any special relationship between defendants and

plaintiff that would trigger a heightened duty. Accordingly, plaintiff has not adequately pleaded a

claim of negligence under the FTCA.

IV. The Discovery and Franks Hearing Requests Are Denied

Mr. Selvam’s requests for discovery, see Pl.’s Mem. in Opp’n 14-16, and for a Franks

hearing, id. at 4, are denied. As a general matter, “discovery is authorized solely for the parties to

develop the facts in a lawsuit in which a plaintiff has stated a legally cognizable claim, not in order

to permit a plaintiff to find out whether he has such a claim.” Podany v. Robertson Stephens, 350

F. Supp. 2d 375, 378 (S.D.N.Y. 2004); see, e.g., Bridgewater v. Taylor, 745 F. Supp. 2d 355, 358

(S.D.N.Y. 2010) (compiling cases). Because Mr. Selvam fails to plead plausible claims, he is not

entitled to discovery to develop those claims.

So too for “jurisdictional discovery.” Pl.’s Mem. in Opp’n 2 & 15. Only when

“jurisdictional facts are placed in dispute” must a court “decide issues of fact by reference to

evidence outside the pleadings” at the motion-to-dismiss stage. LeBlanc v. Cleveland, 198 F.3d

353, 356 (2d Cir. 1999). No such facts are in dispute here. Defendants challenge the Court’s

subject-matter jurisdiction over several of plaintiff’s FTCA claims by contesting the statute’s

applicability to plaintiff’s alleged facts, not the plaintiff’s facts themselves. Defs.’ Mem. in Supp.

21-26. Jurisdictional discovery is not warranted.

For similar reasons, Mr. Selvam is not entitled to a Franks hearing. Franks hearings are

typically made available in criminal cases “to challenge the truthfulness of factual statements made

in an affidavit supporting a warrant.” Franks v. Delaware, 438 U.S. 154, 155 (1978). But even

setting aside that this is a civil case, not a criminal one, a litigant is entitled to a Franks hearing

only after making a substantial preliminary showing that a deliberate falsehood or statement made

with reckless disregard for the truth was necessary to the judge’s finding of probable cause. Id. at

155-156. An alleged falsehood or misstatement is material only if probable cause no longer exists

once the “alleged misstatements” are “delet[ed] . . . from the original warrant affidavit.” Ganek,

874 F.3d at 82 (citing Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993)). As explained above,

Mr. Selvam’s complaint has not made the requisite substantial preliminary showing. Rather,

Agent Connor’s affidavit would establish probable cause even if the statements that Mr. Selvam

contests were removed. See pp. 6-11, supra. Accordingly, even if Franks hearings could be made

available in civil cases, Mr. Selvam has not made the showing for obtaining one.

CONCLUSION

Mr. Selvam’s complaint is dismissed. The requests for a Franks hearing and for discovery

are denied. When a plaintiff is pro se, a district court “should not dismiss without granting leave

to amend at least once when a liberal reading of the complaint gives any indication that a valid

claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Applying these

principles, Mr. Selvam may amend his FTCA claims. Leave to amend is denied with respect to

Mr. Selvam’s claims under Section 1983 and Bivens because amendment would be futile. Plaintiff

has thirty days to file an amended complaint that addresses the defects outlined in this opinion

with respect to his FTCA claims. Otherwise, the Clerk of Court shall enter judgment in favor of

defendants.

Because the parties have agreed that the FDA is not a defendant in this action and should

be dismissed, see Pl.’s Mem. in Opp’n 30; Defs.’ Reply, at 10 n.1; Fed. R. Civ. P. 41(a)(1)(A)(ii),

the Clerk of Court is also directed to dismiss the FDA from this action.

SO ORDERED.

/s/ Rachel Kovner

RACHEL P. KOVNER

United States District Judge

Dated: November 5, 2021

Brooklyn, New York