MEMORANDUM AND ORDER 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. 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. 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.
