Reyes-Herrera v. Flaitz

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

__________________________________________

MACARIO GILBERTO REYES-HERRERA,

Plaintiff,

v.

DECISION AND ORDER

JASON J. FLAITZ, 6:19-CV-06257-MAT

BARBARA M. CROSBY,

and MARCI A. TRIMBLE,

Defendants.

__________________________________________

INTRODUCTION

Plaintiff Macario Gilberto Reyes-Herrera (“Plaintiff”) brings

this action against defendants Jason J. Flaitz, Barbara M. Crosby,

and Marci A. Trimble (collectively, the “Defendants”), alleging

violations of 42 U.S.C. § 1983. Docket No. 1.

Presently before the Court is Defendants’ motion to dismiss

Plaintiff’s complaint for failure to state a claim, pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure, and for a

stay of discovery. Docket No. 13. For the reasons set forth

below, Defendants’ motion is denied.

BACKGROUND

The following allegations, which the Court accepts as true

when considering Defendants’ motion to dismiss, are taken from

Plaintiff’s complaint (Docket No. 1). Plaintiff’s complaint stems

from his arrest on June 29, 2017, during a routine traffic stop

while Plaintiff was traveling to work. Docket No. 1 at ¶ 3.

Plaintiff is a citizen of Mexico and “presents as Hispanic and a

person of color,” and was living in Penn Yann, New York, at the

time of his arrest. Id. at ¶¶ 2, 5, 6. Plaintiff moved to the

United States in 1991 to work as a farm worker, and has three

children, all of whom are United States citizens. Id. at ¶ 12.

On June 29, 2017, Plaintiff was traveling to work in

Jerusalem, New York, as a passenger in a truck. Id. at ¶ 16. He

was traveling with two co-workers, Daniel Blauvelt and Hector

Virgilio Aguilar-Valdez. Id. Mr. Blauvelt, who “presents as

Caucasian and is English speaking,” was driving the vehicle. Id.

at ¶¶ 18, 19. Defendant Flaitz, a New York State Trooper, stopped

the truck for Mr. Blauvelt’s failure to wear a seatbelt. Id. at

¶ 18. Mr. Aguilar-Valdez, who presents as Hispanic and speaks

primarily Spanish, also was not wearing a seatbelt. Id. at ¶¶ 20,

21. Officer Flaitz issued Uniform Traffic Tickets to Mr. Blauvelt

and Mr. Aguilar-Valdez for not wearing their seatbelts. Id. at

¶ 21. Plaintiff, who was wearing his seatbelt, was not ticketed.

Id.

During the encounter, defendant Flaitz approached the vehicle

and asked Mr. Blauvelt for his driver’s license, which Mr. Blauvelt

provided. Id. at ¶ 22. Defendant Flaitz did not ask Mr. Blauvelt

any further questions. Id. at ¶ 23. Defendant Flaitz began

walking back to his vehicle, but before reaching it, turned around

and approached the truck for a second time. Id. at ¶ 24.

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Defendant Flaitz questioned Plaintiff and Mr. Aguilar-Valdez

regarding their names and identification, and asked these questions

in an “abrupt and threatening manner.” Id. at ¶¶ 25, 26.

Plaintiff answered defendant Flaitz’s questions regarding his name

and address. Id. at ¶ 27. Neither Plaintiff, nor Mr. Aguilar-

Valdez, revealed their immigration status to defendant Flaitz. Id.

When defendant Flaitz asked Plaintiff and Mr. Aguilar-Valdez for

identification, they responded that they did not have

identification on them, and Plaintiff informed defendant Flaitz

that he had left his New York State driver’s license in his

vehicle, which was parked at his place of employment. Id. at ¶ 28.

Defendant Flaitz went back to his vehicle, and remained there

for approximately five to ten minutes. Id. at ¶ 29. During that

time, three more New York State Trooper vehicles arrived on scene,

including defendant Crosby, who also was employed as a New York

State Trooper. Id. at ¶¶ 8, 29.

Defendant Flaitz returned to the truck and issued Mr. Blauvelt

two Uniform Traffic Tickets, including one for failing to wear and

seatbelt and one for operating a truck with an out-of-class

license. Id. at ¶ 30. Defendant Flaitz then ordered Plaintiff and

Mr. Aguilar-Valdez out of the truck, without indicating a reason

for doing so. Id. at ¶ 31. The men cooperated and exited the

vehicle. Id. Defendant Flaitz called Customs and Border Patrol

(“CBP”) and gave the phone to Plaintiff, to speak with CBP Agent

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Julio Leon-Gonzalez in Spanish. Id. at ¶ 32. Plaintiff did not

disclose his immigration status to the agent. Id. at ¶ 33. After

speaking with Agent Leon-Gonzalez, Plaintiff returned the phone to

defendant Flaitz. Id. at ¶ 34.

According to the incident report prepared by defendant Flaitz,

he contacted defendant Trimble, a Sergeant for the New York State

Police, who advised him to take Plaintiff into state custody. Id.

at ¶¶ 9, 35. Defendant Crosby placed Plaintiff in handcuffs and

put him in her vehicle. Id. at ¶ 36. Mr. Aguilar-Valdez was also

arrested. Id.

The incident report labels the incident as “Immigration - Non-

Criminal Investigation,” and states that defendant Flaitz detained

Plaintiff as an illegal entrant, in violation of 8 U.S.C. § 1325,

“Improper Entry by an Alien.” Id. at ¶¶ 37, 38. At the time of

Plaintiff’s arrest, none of the defendants had any evidence of

Plaintiff’s immigration status. Id. at ¶¶ 38, 39. Rather, the

only information Defendants had was that Plaintiff “appeared

Hispanic and primarily spoke Spanish.” Id. at ¶ 40. Defendants

Flaitz and Crosby did not inform Plaintiff of the reason for his

arrest, nor did they read him his Miranda rights. Id. at ¶ 45.

Plaintiff alleges that defendant Flaitz “conducted the

improper investigation as to [Plaintiff’s] immigration status

pursuant to a personal animus against immigrants and Hispanics.”

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Id. at ¶ 41. The complaint contains the following three

allegations regarding defendant Flaitz:

42. On November 24, 2018, Officer Flaitz posted a video

to his personal Facebook page depicting refugees

along the Mexican-Guatemalan border titled,

“#Refugee #Invasion.” A Facebook friend commented

on the video on Officer Flaitz’s Facebook page,

“That chopper should have just fucken shot every

one of them fucken assholes.” Officer Flaitz liked

this comment. Upon information and belief, this

indicates his endorsement of the message.

43. On December 16, 2018, Officer Flaitz made a status

on his personal Facebook page titled, “History

Lesson on Your Social Security Card,” where he

accused immigrants of taking public benefits away

from American citizens without “paying a dime.”

44. On February 11, 2019, Officer Flaitz shared and

voiced his agreement with a video from Breitbart

endorsing the building of the wall along the

southern border and blaming the drug crisis in the

United States on immigrants.

Id. at ¶¶ 42-44.

Defendant Crosby transported Plaintiff to the police barracks

in Dundee, New York. Id. at ¶ 46. Plaintiff was “handcuffed to a

desk alone in a room,” and was never charged with a crime, nor

issued a ticket. Id. at ¶ 47. Plaintiff alleges that during this

time he suffered severe emotional distress. Id. at ¶ 48. While in

custody, Plaintiff called his oldest son to pick him up from the

station. Id. at ¶ 49. Plaintiff was released from custody before

his son arrived. Id. at ¶ 50. Upon release, Plaintiff was

questioned regarding his immigration status by Agent Leon-Gonzalez,

who was waiting for him in the parking lot at the police barracks.

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Id. at ¶ 51. At that time, Plaintiff admitted that he did not have

legal status in the United States. Id. Plaintiff was arrested and

taken to the Rochester CBP office and fingerprinted. Id. at ¶¶ 51,

52. The fingerprint identification system revealed that Plaintiff

had previously been deported from the United States in 2006. Id.

at ¶ 52.

Plaintiff was charged with violation of 8 U.S.C. § 1326(a),

unlawful re-entry of a previously deported or removed alien. Id.

at ¶ 53. The affidavit in support of the criminal complaint

“indicate[d] that Officer Flaitz contacted CBP to assist with two

subjects in a traffic stop.” Id. at ¶ 54. Plaintiff also alleges

that the accounts prepared by defendant Flaitz and CBP regarding

when they became aware of Plaintiff’s immigration status are

inconsistent:

55. While the incident report prepared by Officer

Flaitz indicated that CBP knew of [Plaintiff’s]

immigration status at the time of the traffic stop,

the affidavit in support of CBP’s criminal

complaint indicates that [Plaintiff] asserted his

right to withhold his immigration status from Agent

Leon Gonzalez and CBP did not know [Plaintiff’s]

immigration status until after he was released from

New York State custody.

Id. at ¶ 55.

In January 2018, Plaintiff was deported to Mexico after being

sentenced to time served. Id. at ¶ 56. Plaintiff alleges that he

“is unable to find work in Mexico and is in poor health.” Id. at

¶ 57. His children, who are United States citizens, remain in the

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United States, and one child is still a minor. Id. at ¶ 58. The

children are “struggling emotionally and financially in dealing

with the absence of their father.” Id.

Plaintiff further alleges that Defendants violated New York

State Trooper Policy, Executive Memorandum 14-48, which “forbids

state officers from using resources to detect and apprehend aliens

suspected or wanted merely for violating civil immigration

offenses.” Id. at ¶ 62. Executive Memorandum 14-48 provides that

state officers do not have authority to inquire into a passenger’s

immigration status during a traffic stop, unless there is a reason

to believe that the passenger is involved in criminal activity or

has committed an infraction. Id. at ¶ 63. Executive Memorandum

14-48 also provides that a state officer does not have the

authority to take police action solely because a person is an

“illegal alien,” including identifying, questioning, and detaining

that person. Id. at ¶ 64. Plaintiff alleges that defendants

Flaitz, Crosby, and Trimble’s actions violated Executive Memorandum

14-48. Id. at ¶¶ 65-69.

Plaintiff alleges causes of action of false arrest (against

all Defendants) and Equal Protection (against defendant Flaitz).

Id. at 9-11, ¶¶ 70-82.

PROCEDURAL HISTORY

Plaintiff filed his complaint on April 5, 2019, alleging

causes of action for false arrest and violation of the Equal

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Protection clause, in violation of 42 U.S.C. § 1983. Docket No. 1.

Defendants filed an answer on June 19, 2019. Docket No. 6. On

August 19, 2019, the Court issued a scheduling order, requiring

that Defendants file their motion to dismiss no later than

September 13, 2019. Docket No. 12.

Defendants’ filed their motion to dismiss on September 13,

2019. Docket No. 13. Plaintiff filed response papers on October

11, 2019. Docket No. 16. The motion is ready for a decision. See

Docket No. 18.

DISCUSSION

I. Standard

To withstand a Rule 12(b)(6) motion to dismiss, the complaint

must plead facts sufficient “to state a claim for 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). “The plausibility

standard is not akin to a ‘probability requirement,’ but it asks

for more than a sheer possibility that a defendant has acted

unlawfully.” Id. Thus, “[w]here a complaint pleads facts that are

merely consistent with a defendant’s liability, it stops short of

the line between possibility and plausibility of entitlement to

relief.” Id. (internal citations and quotation marks omitted).

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Determining whether a complaint meets the plausibility standard is

“context-specific” and requires that the court “draw on its

judicial experience and common sense.” Id. at 679.

The Court notes that Defendants have styled their motion a

“Motion to Dismiss For Failure to State a Claim,” brought pursuant

to Fed. R. Civ. P. 12(b)(6). See Docket No. 13. The Federal Rules

of Civil Procedure provide that such a motion “must be made before

pleading if a responsive pleading is allowed.” See Fed. R. Civ. P.

12(b). Defendants filed an answer on June 19, 2019, prior to

filing the instant motion to dismiss. See Docket No. 6. In their

answer, Defendants assert seven affirmative defenses, including

failure to state a claim and that they are entitled to qualified

immunity. See id. at 3. Accordingly, their motion is technically

one for judgment on pleadings. See U.S. v. Pelt, No. 11-cv-

06156(ADS), 2013 WL 1173898, at *2 (E.D.N.Y. Mar. 18, 2013)

(“Though the Defendant has styled her motion as a motion to dismiss

under Rule 12(b), because the Defendant filed an answer before

filing her motion to dismiss, the motion must be deemed a motion

for judgment on the pleadings pursuant to Rule 12(c).”); Doe v.

Barrett, No. 3:01cv519(PCD), 2006 WL 3741825, at *3 (D. Conn.

Dec. 19, 2006) (“where a defendant files an answer before a motion

to dismiss, federal courts are free to treat the motion to dismiss

as a motion for judgment on the pleadings.”). A motion for

judgment on the pleadings is evaluated pursuant to the same

standard as a motion to dismiss. See Bank of N.Y. v. First

Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (“The same

standard applicable to Fed. R. Civ. P. 12(b)(6) motions to dismiss

applies to Fed. R. Civ. P. 12(c) motions for judgment on the

pleadings.”). Accordingly, Defendants’ motion is converted to one

for judgment on the pleadings, but the Court evaluates it pursuant

to the same standard as a motion to dismiss.

II. Defendants’ Motion is Denied.

Defendants contend that Plaintiff’s complaint should be

dismissed because Plaintiff’s § 1983 claims are barred by the

Supreme Court case of Heck v. Humphrey, which held that a plaintiff

asserting a false arrest claim must show that the underlying

criminal case was terminated in his favor. See Docket No. 13-1 at

5. In the alternative, Defendants contend that they are entitled

to qualified immunity. Id. at 6. Defendants also request a stay

of discovery. See Docket No. 13.

A. Plaintiff’s False Arrest Claim

To state a claim for false arrest, a plaintiff must allege the

following: “‘(1) the defendant intended to confine the plaintiff,

(2) the plaintiff was conscious of the confinement, (3) the

plaintiff did not consent to the confinement and (4) the

confinement was not otherwise privileged.’” Hernandez v. United

States, 939 F.3d 191, 199 (2d Cir. 2019) (quoting McGowan v. United

States, 825 F.3d 118, 126 (2d Cir. 2016)).

Defendants contend that Plaintiff cannot state a claim for

false arrest because he does not plead that his conviction was

invalid. See Docket No. 13-1 at 5-6. To that end, pursuant to the

Supreme Court case of Heck v. Humphrey, “in order to recover

damages for allegedly unconstitutional conviction or imprisonment,

or for other harm caused by actions whose unlawfulness would render

a conviction or sentence invalid, a § 1983 plaintiff must prove

that the conviction or sentence 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[.]” Heck v.

Humphrey, 512 U.S. 477, 486-87 (1994). In response, Plaintiff

argues that the Second Circuit has repeatedly held that claims for

unlawful arrest do not fall within the Heck rule, as “‘[a] wrongful

arrest claim, like many Fourth Amendment claims, does not

inevitably undermine a conviction because a plaintiff can wage a

successful wrongful arrest claim and still have a perfectly valid

conviction.’” See Docket No. 16 at 10 (quoting Covington v. City

of N.Y., 171 F.3d 117, 123 (2d Cir. 1999)).

The Court agrees with Plaintiff. Defendants misconstrue the

allegations contained in Plaintiff’s complaint. Plaintiff does not

challenge the validity of his arrest by CBP and his subsequent

criminal conviction for unlawful re-entry. Indeed, Plaintiff

alleges that he “admitted to Agent Leon-Gonzalez that he did not

have legal status in the United States.” Docket No. 1 at ¶ 51.

Rather, as is made clear by his complaint, Plaintiff challenges the

arrest made by the state police defendants. See id. at ¶ 37

(“[Defendants] had no evidence of illegal activity when they

arrested [Plaintiff], as he was not driving and was wearing his

seat belt.”); id. at ¶ 39 (“[Defendants] did not have any evidence

of [Plaintiff’s] immigration status when they arrested him, as he

asserted his right to withhold this information from them.”).

Plaintiff alleges that the arrest made by CBP - not the state

police defendants - resulted in his criminal conviction. See id.

at ¶¶ 50, 51 (“[Plaintiff] was . . . released from New York State

custody before his son arrived to come pick him up,” and “[u]pon

release, [Plaintiff] exited the police barracks and was immediately

questioned as to his immigration status by Agent Leon-Gonzalez, who

was waiting for him in the parking lot of the New York State Police

barracks.”); id. at ¶ 55 (“the affidavit in support of CBP’s

criminal complaint indicates that [Plaintiff] asserted his right to

withhold his immigration status from Agent Leon Gonzalez and CBP

did not know [Plaintiff’s] immigration status until after he was

released from New York State custody.”) (emphasis added). Per the

allegations in the complaint, the evidence on which Plaintiff’s

conviction for unlawful re-entry is based was obtained by CBP after

his arrest by Defendants, to whom he did not disclose his

immigration status. See id. at ¶ 39 (Plaintiff asserted his right

to withhold information regarding his immigration status from

Defendants); c.f. id. at ¶ 51 (“It was not until [the confrontation

with CBP Agent Leon-Gonzalez] that [Plaintiff] admitted . . . that

he did not have legal status in the United States. Agent Leon-

Gonzalez then arrested [Plaintiff.]”). See Covington, 171 F.3d at

123 (a plaintiff may have a successful wrongful arrest claim, but

have a valid conviction, “if there were independent evidence upon

which a conviction could be obtained that was not in any way

tainted by the unlawful arrest.”). Accordingly, Plaintiff’s false

arrest claim is not barred by Heck. See Fifield v. Barrancotta,

353 F. App’x 479, 480–81 (2d Cir. 2009) (“Fourth Amendment claims

for unlawful arrest . . . do not ordinarily fall within the Heck

rule, since a finding for the plaintiff would not necessarily

demonstrate the invalidity of any outstanding criminal judgment

against the plaintiff, at least unless the conviction was dependent

on evidence obtained as a result of the arrest.”) (internal

quotations and citation omitted); Colon v. City of Rochester,

No. 17-CV-6160L, 2019 WL 6629276, at *5 (W.D.N.Y. Dec. 6, 2019)

(“The Second Circuit has held . . . that in some circumstances

success on a false arrest claim would not necessarily imply the

invalidity of a conviction resulting from the criminal proceedings

instituted against the plaintiff based on the arrest.”); Glasgow v.

Beary, 2 F. Supp. 3d 419, 426-27 (E.D.N.Y. 2014) (Heck doctrine did

not apply, where the plaintiff’s Section 1983 suit “d[id] not call

into question a criminal conviction.”).

As explained above, Plaintiff challenges the validity of his

arrest by the state police defendants - not his arrest by CBP and

the resulting criminal conviction. He has alleged, in detail, that

the evidence supporting his criminal conviction is separate from

any information possessed by the state police defendants at the

time of his arrest. Accordingly, Defendants’ motion to dismiss

Plaintiff’s claim for false arrest due to Plaintiff’s failure to

plead that his criminal conviction is invalid and accordingly, is

denied.

B. Qualified Immunity

“Qualified immunity shields public officials, including police

officers, from an action for civil damages, to the extent that

their challenged acts do not violate ‘clearly established statutory

or constitutional rights of which a reasonable person would have

known.’” Williams v. Goodfriend, 347 F. Supp. 3d 169, 180 (W.D.N.Y.

2018) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see

also McGowan, 825 F.3d at 118 (“The doctrine of qualified immunity

protects government officials from liability for civil damages

unless a plaintiff pleads facts showing (1) that the official

violated a statutory or constitutional right, and (2) that the

right was clearly established at the time of the challenged

conduct.”) (internal quotations and citation omitted). “A clearly

established right is one that is sufficiently clear that every

reasonable official would have understood that what he is doing

violates that right. . . . We do not require a case directly on

point, but existing precedent must have placed the statutory or

constitutional question beyond debate.” Mullenix v. Luna, 136 S.

Ct. 305, 308 (2015) (internal quotations and citations omitted).

“An official is therefore entitled to immunity if his action was

‘objectively legally reasonable in light of the legal rules that

were clearly established at the time it was taken.’” Taravella v.

Town of Wolcott, 599 F.3d 129, 133 (2d Cir. 2010) (quoting X-Men

Security, Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999)).

Defendants advance two arguments in support of their position

that they are entitled to qualified immunity: (1) they did not

violate a clearly established right, and (2) they had arguable

probable cause to arrest Plaintiff for suspected criminal activity,

based on the totality of the circumstances. Docket No. 13-1 at 11.

Defendants’ first argument - that Plaintiff does not allege a

violation of a clearly established constitutional right - is

meritless. Plaintiff plainly alleges that Defendants violated his

right to not be arrested, absent probable cause. See, e.g., Docket

No. 1 at ¶ 71 (“Defendants had neither cause to arrest [Plaintiff]

nor legal cause or excuse to seize and detain him.”). “[I]t has

long been clearly established that an arrest without probable cause

is a constitutional violation.” Robison v. Via, 821 F.2d 913, 921

(2d Cir. 1987); Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir. 1997)

(“The right not to be arrested without probable cause is a clearly

established right.”). See also Harewood v. Braithwaite, 64

F. Supp. 3d 384, 399 (E.D.N.Y. 2014) (“Where, as here, the right to

be free from unlawful arrest and [the defendant’s] violation of

such right are already established, qualified immunity turns only

on the second prong of the qualified immunity analysis, i.e.,

whether an objectively reasonable officer faced with the same

factual scenario as [the defendant] would have known that arresting

[the plaintiff] violated [the plaintiff’s] right to be free from

arrest without probable cause.”).

Defendants argue that Officer Flaitz was permitted to question

Plaintiff and ask him to produce identification during the traffic

stop, and his belief that he was able to request this information

was reasonable. See Docket No. 13-1 at 13-14. However, the crux

of Plaintiff’s complaint is not a challenge to defendant Flaitz’s

request for Plaintiff’s name and identification. Rather, Plaintiff

challenges Defendants’ disparate treatment of Plaintiff based on

his ethnicity, as well as Defendants’ taking him into custody,

despite the fact that they had no evidence that Plaintiff had

committed a crime. Accordingly, as the facts are alleged by

Plaintiff in his complaint, Defendants violated a clearly

established constitutional right; that is, his right not to be

arrested, absent probable cause. Defendants’ motion to dismiss the

complaint on this ground is therefore denied.

With regard to Defendants’ latter argument that they had

arguable probable cause to arrest Plaintiff, the Court is cognizant

that “the existence of probable cause is an absolute defense to a

false arrest claim and affords the arresting officer qualified

immunity from litigation.” Caldarola v. Calabrese, 298 F.3d 156,

161 (2d Cir. 2002). Accordingly, the Court “must determine whether

a reasonable officer could conclude that the circumstances here

established the necessary probable cause for [Defendants] to arrest

[Plaintiff]; in short, [the Court] must consider whether a

reasonable officer could have believed that the specific action[s]

taken by [Defendants] w[ere] foreclosed by clearly established

law.” Id. “The qualified immunity test is an objective one. [I]f

officers of reasonable competence could disagree as to whether

probable cause existed, immunity should be recognized.” Zellner v.

Summerlin, 494 F.3d 344, 367 (2d Cir. 2007) (internal quotations

and citations omitted) (alteration on original); see also Daniels

v. D’Aurizo, 564 F. Supp. 2d 194, 199 (W.D.N.Y. 2008) (“With

respect to claims relating to false arrest, an arresting officer is

entitled to qualified immunity if: (a) it was objectively

reasonable for the officer to believe that probable cause existed,

or (b) officers of reasonable competence could disagree on whether

the probable cause test was met.”).

Plaintiff alleges, in detail, that the only information known

to Defendants at the time of Plaintiff’s arrest was the following:

Plaintiff presented as Hispanic and primarily spoke Spanish; he was

traveling as a passenger in a truck with two other men, both of

whom were not wearing seatbelts; Plaintiff’s name and address,

which he disclosed in response to questioning by defendant Flaitz;

and that Plaintiff had left his driver’s license in his vehicle,

parked at his place of employment. See Docket No. 1 at ¶¶ 16, 20,

21, 27, 28. Plaintiff was taken into custody for illegal entry

based on those facts, alone. Id. at ¶¶ 35-40. See Loria v.

Gorman, 306 F.3d 1271, 1291-93 (2d Cir. 2002) (affirming district

court’s denial of qualified immunity to defendant officer, where

the information he had at the time of the plaintiff’s arrest, which

supported only the conclusion that vehicle collision was “a simple

traffic accident,” was not sufficient to support charges for

reckless endangerment or criminal mischief).

The circumstances of Plaintiff’s arrest, as they are alleged

in the complaint, do not establish that Defendants had arguable

probable cause to arrest Plaintiff. Defendants have not provided

controlling authority standing for the proposition that a

reasonable officer, knowing only what Defendants knew about

Plaintiff at the time of his arrest, could have believed that he

had arguable probable cause to arrest Plaintiff. For example,

Defendants cite Estrada v. Rhode Island, where the First Circuit

Court of Appeals held that an officer was entitled to qualified

immunity for Plaintiffs’ claims that they were detained for

immigration offenses without probable cause. See Docket No. 13-1

at 17. However, in Estrada, the arresting officer possessed

additional information regarding a potential criminal offense -

namely, an admission that the plaintiffs were in the country

illegally. See Estrada v. Rhode Island, 594 F.3d 56, 65 (1st Cir.

2010) (“By the time that Officer Chabot demanded that Plaintiffs

follow him to the ICE Providence office, two Plaintiffs had

essentially admitted on their behalf and on the behalf of the rest

of the passengers, that they were in the country illegally. . . .

we are compelled to find that a reasonable defendant in Officer

Chabot’s position would have believed he had sufficient evidence

giving rise to probable cause to support the conclusion that the

1

The complaint further includes allegations that Defendants deliberately

violated New York State Trooper Policy; that is, Executive Memorandum 14-48,

“which forbids state officers from using resources to detect and apprehend aliens

suspected or wanted merely for violating civil immigration offenses.” Docket No.

¶ at 62; see also id. at ¶¶ 63-69. Plaintiff contends that this policy further

supports his contention that Defendants could not have reasonably believed that

their arrest of Plaintiff was lawful. See Docket No. 16 at 21 (“Not only does

the Constitution, the Supreme Court, and the Second Circuit confirm a person’s

established right to not be arrested without probable cause, the defendants’

state trooper policy, which governs a state trooper’s scope of duties, neither

authorizes a state trooper to arrest without probable cause nor authorizes a

van’s occupants had committed immigration violations.”).

Conversely, Plaintiff asserts that Defendants arrested him when

they had “no evidence of illegal activity,” see Docket No. 1 at

¶ 37, and he has provided specific allegations supporting this

assertion, including that he did not disclose his immigration

status during the duration of the traffic stop.

“Whether a defendant officer’s conduct was objectively

reasonable is a mixed question of law and fact.” Zellner, 494 F.3d

at 367. Whether Plaintiff can substantiate his allegations remains

to be seen; however, Defendants are not entitled to qualified

immunity and therefore dismissal of Plaintiff’s complaint at this

stage of the litigation. See McKenna v. Wright, 386 F.3d 432, 436

(2d Cir. 2004) (on 12(b)(6) motion, “the plaintiff is entitled to

all reasonable inferences from the facts alleged, not only those

that support his claim, but also those that defeat the immunity

defense.”).

C. Plaintiff’s Equal Protection Claim

Although they ask the Court “for judgment dismissing the

Complaint in its entirety,” see Docket No. 13 at 1, Defendants do

not make any specific argument as to why dismissal of Plaintiff’s

Equal Protection claim, brought against defendant Flaitz, is

warranted.

The Court has reviewed the allegations contained in

Plaintiff’s complaint and concludes that he has stated a claim for

violation of the Equal Protection clause. To state a claim for

violation of the Equal Protection clause, a plaintiff must allege

“that he was treated differently than others similarly situated as

a result of intentional and purposeful discrimination.” Phillips

v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005). Plaintiff has

alleged that he is Hispanic and a member of a suspect class, and

that he was treated differently than Mr. Blauvelt during the

traffic stop as a result of his race. See Docket No. 1 at ¶ 5

(Plaintiff is a citizen of Mexico, and presents as Hispanic and a

person of color); id. at ¶¶ 19, 24-29 (defendant Flaitz prolonged

the questioning of only Plaintiff and Mr. Aguilar-Valdez, not

Mr. Blauvelt, who presents as Caucasian and is English-speaking);

id. at ¶¶ 27, 31, 32 (Although Plaintiff did not disclose his

immigration status to defendant Flaitz, defendant Flaitz ordered

Plaintiff and Mr. Aguilar-Valdez out of the truck and called CBP);

id. at ¶ 38 (“The incident report states that Officer Flaitz

detained [Plaintiff] as an illegal entrant in violation of 8 U.S.C.

§ 1325, ‘Improper Entry by an Alien.’ However, Officer Flaitz made

no attempt to discern the manner in which [Plaintiff] entered the

United States and [Plaintiff] did not inform Officer Flaitz how he

entered the United States.”); see also id. at ¶¶ 77-82. Further,

Plaintiff alleges that defendant Flaitz conducted an improper

investigation against him due to “a personal animus against

immigrants and Hispanics,” and he provides specific examples from

defendant Flaitz’s social media pages supporting this assertion.

See id. at ¶¶ 41-44. In other words, Plaintiff alleges that

defendant Flaitz arrested him because he is Hispanic, rather than

the fact that he had probable cause to believe that Plaintiff was

in the United States illegally. Plaintiff’s allegations are

sufficient to state a claim for violation of the Equal Protection

clause against defendant Flaitz.

D. Defendants’ Request for a Stay of Discovery

Defendants also request a stay of discovery. See Docket

No. 13. In response, Plaintiff argues that a stay is not

appropriate, as Defendants have already filed an answer, and

Plaintiff’s discovery demands are minimal. See Docket No. 16 at

25-26. Plaintiff represents that discovery requires only “the

scheduling of a few depositions and minimal document production.”

Id. at 26.

Defendants filed their answer to Plaintiff’s complaint on

June 19, 2019. Docket No. 6. Thereafter, on June 20, 2019, the

undersigned referred the case to the Honorable Jonathan W. Feldman,

United States Magistrate Judge for, among other things, supervision

of discovery. Docket No. 7. Plaintiff submitted his Discovery

Plan on August 8, 2019 (Docket No. 10), and Judge Feldman held a

scheduling conference with counsel on August 14, 2019 (Docket

No. 11). The Scheduling/Case Management Order setting deadlines

for factual discovery, amendment of the complaint, disclosure of

experts, dispositive motions, and trial-related conferences and

filings, was filed on August 19, 2019. Docket No. 12. Almost one

month later, on September 13, 2019, Defendants filed the instant

motion seeking a stay of discovery. Docket No. 13. Despite the

fact that they filed an answer and the case has proceeded towards

discovery, Defendants do not explain why a stay of discovery would

be appropriate. See Docket No. 13-1.

“A district court has discretion to stay discovery pursuant to

Rule 26(c) of the Federal Rules of Civil Procedure, upon a showing

of good cause.” Mirra v. Jordan, No. 15-CV-4100(AT)(KNF), 2016 WL

889559, at *2 (S.D.N.Y. Mar. 1, 2016) (citing Hong Leong Finance

Limited v. Pinnacle Performance Limited, 297 F.R.D. 69, 72

(S.D.N.Y. 2013)). “In determining whether good cause exists for a

stay of discovery, three factors are considered: (1) the strength

of the dispositive motion; (2) the breadth of the discovery sought;

and (3) the prejudice a stay would have on the non-moving party.”

Lithgow v. Edelmann, 247 F.R.D. 61, 62 (D. Conn. 2007). “‘The

party seeking a stay of discovery bears the burden of showing good

cause. The pendency of a dispositive motion is not, in itself, an

automatic ground for a stay.’” Mirra, 2016 WL 889559, at *2

(quoting Morien v. Munich Reinsurance America, Inc., 270 F.R.D. 65,

66–67 (D. Conn. 2010)).

The Court has considered the three factors and finds that a

stay of discovery is not warranted. As is evident by its ruling on

the instant motion, Defendants’ motion to dismiss is unsupported.

Plaintiff has plainly stated a claim for violation of his

constitutional rights, and dismissal of the case is not appropriate

at this stage of the litigation. Further, as offered by Plaintiff,

the breadth of discovery sought - “a few depositions and minimal

document production” - is not burdensome. See Mirra, 2016 WL

889559, at *2 (the plaintiff’s 119 document demands were not

voluminous and burdensome). With regard to prejudice, Defendants

filed their answer almost nine months ago, and discovery deadlines

are in place. This case is ready to proceed to the discovery phase

of litigation, and Defendants have failed to offer any reason why

that should not occur. The Court has found that Plaintiff’s

complaint should not be dismissed, discovery should proceed, in

accordance with the above-mentioned scheduling orders. Defendants’

motion for a stay of discovery is denied.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss

Plaintiff’s complaint is denied. Defendants’ motion for a stay of

discovery is also denied.

ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA

United States District Judge

Dated: February 20, 2020

Rochester, New York