MEMORANDUM OPINION AND ORDER

LAURA TAYLOR SWAIN, District JudgePage 2

Pro se plaintiff Miguel Quiles ("Plaintiff") has filed this action pursuant to 42 U.S.C. § 1983 and 1988, seeking compensation for alleged violations of his constitutional rights arising from his arrest, questioning by the police on January 16, 1997 in Coamo, Puerto Rico, and subsequent prosecution on murder charges. The only remaining defendants in this action are the City of New York, Detectives Joseph Miraglia and Gilbert Lugo of the New York City Police Department (hereinafter "City Defendants"), and the United States. The City of New York and Detectives Miraglia and Lugo have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The United States has moved to dismiss Plaintiff's complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, both motions are granted and Plaintiff's action is dismissed in its entirety.

BACKGROUND

On October 16, 1995, a cousin of Pito informed Detective Miraglia that he had been in the pool hall when Pito was shot and had seen "Skinny Mike" run out of the pool hall with a gun in his hand. The cousin also identified a photo of Miguel Quiles as depicting "Skinny Mike." See Ex. M to City Defs.' Notice of Mot. for Summ. J. On October 10, 1995, a witness told the police that, in early 1991, he had heard Miguel Quiles, also known as "Skinny Mike," say that he killed Pito. See Ex. N to City Defs.' Notice of Mot. for Summ. J. On October 12, 1995, Detective Miraglia interviewed a witness who stated that, five to six months after Pito's murder, he had heard "Skinny Mike" say that he had killed Pito. The latter witness identified a photo of Miguel Quiles as depicting "Skinny Mike." See Ex. O to City Defs.' Notice of Mot. for Summ. J.

In November 1996, Detective Lugo was assigned to locate and apprehend Miguel Quiles, who was by then wanted for Pito's murder. See Lugo Criminal Trial Testimony, Ex. I to City Defs.' Notice of Mot. for Summ. J. ("Lugo Test.") at 264. After some investigation, Detective Lugo learned that a Miguel Quiles was living in Puerto Rico. See id. at 268. On January 16, 1997, Detectives Lugo and Miraglia, along with a special agent from the Drug Enforcement Agency ("DEA"), flew to Puerto Rico and located Plaintiff in the city of Coamo. See id. at 269. With their guns drawn, the detectives told Plaintiff to freeze and placed him in handcuffs. See Am. Compl. ¶ 4. The detectives had no warrant for Plaintiff's arrest. Id. ¶ 6. The detectives drove Plaintiff to a local police station and brought him into a room for questioning. See id. ¶ 4; Lugo Test. at 271-72. At some time in that room, Detective Miraglia composed a written statement indicating, inter alia, that Plaintiff had confessed to shooting Pito in the pool hall. Detectives Miraglia and Lugo both signed the statement, but Plaintiff did not. See Lugo Test. at 278-80, 285; Ex. P to City Defs.' Notice of Mot. for Summ. J.

The parties present different versions of what transpired during questioning. According to Plaintiff, three persons were in the questioning room with him: Detective Lugo, Detective Miraglia, and the special agent from the DEA. Detectives Lugo and Miraglia started asking Plaintiff questions, but Plaintiff told them that he would not answer any questions without a lawyer present. See Am. Compl. ¶ 4. When the detectives ignored his comment and continued to ask him questions, Plaintiff refused to answer. See id. At one point Plaintiff asked whether he could leave, but the detectives answered "no". See Quiles Dep. at 80-81. Detective Lugo then said: "You know you did it, just say it was self defense." See Am. Compl. ¶ 4. Plaintiff responded that he had not done anything and that they had the wrong person. See id.

Plaintiff further alleges that, when he refused to answer questions, Detective Lugo told him that, if he did not cooperate, the DEA special agent was going to have a seat across from Plaintiff and was not "going to be nice." See id. When Plaintiff kept silent, the DEA agent said to him: "Oh, you want to be a wise guy." See id. The special agent then stood up, handcuffed Plaintiff's hands behind his chair, and said: "So, you don't want to cooperate." See id. Plaintiff replied that he wanted to call his lawyer, upon which the agent began punching Plaintiff in the stomach. When Plaintiff was out of breath and crying, Detective Miraglia told the agent to stop. See id. Detective Lugo removed Plaintiff's handcuffs; Detective Miraglia handed Plaintiff the written statement and told him to sign it. When Plaintiff responded that he would not be tricked into signing anything, Detective Miraglia said, "shut the fuck up and come over here." See id. Detective Miraglia then took Plaintiff to another room, sat him down, and continued to ask him questions. Plaintiff told the detective that he did not want to talk, upon which the detectives finally ceased their questioning. See id.

City Defendants deny Plaintiff's allegations as to what transpired during questioning. See Ans. of Defs. Joseph Miraglia and Gilbert Lugo ¶ 4; Ans. of Def. City of New York ¶ 4. According to City Defendants, Plaintiff voluntarily made incriminating statements implicating himself in Pito's murder. These statements were recorded in the written statement signed by

Detectives Miraglia and Lugo. See City Defs.' Mem. of Law in Supp. of Mot. for Summ. J. at 4.

What transpired after the questioning is undisputed. On January 17, 1997, a warrant for Plaintiff's arrest was issued in New York. See Ex. D to City Defs.' Notice of Mot. for Summ. J. On that same day, Plaintiff was indicted in Bronx County for Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree. See Ex. E to City Defs.' Notice of Mot. for Summ. J. Plaintiff, who had been brought before a judge in Puerto Rico and had been given a lawyer, waived extradition and was brought to New York on or about February 1997. See Quiles Dep. at 121. After Plaintiff had been appointed an attorney and was released on bail, the Bronx County District Attorney's Office moved successfully to have Plaintiff remanded on January 6, 1999. See Remand Hearing, Ex. R to City Defs.' Notice of Mot. for Summ. J. On November 21, 2000, following a jury trial, Plaintiff was acquitted on all charges. See Ex. S to City Defs.' Notice of Mot. for Summ. J. On October 29, 2001, Plaintiff initiated this civil action.

DISCUSSION

I. Plaintiff's claims against City Defendants

In his complaint, Plaintiff asserts the following claims against the City Defendants: (1) a claim pursuant to 42 U.S.C. § 1983 against Detectives Miraglia and Lugo for violating Plaintiff's constitutional rights when they arrested and questioned him on December 16, 1997; (2) a claim pursuant to 42 U.S.C. § 1983 against the City of New York for violating Plaintiff's constitutional rights through its policies or customs that exhibit deliberate indifference to the constitutional rights of persons in New York; (3) state law claims for false arrest and false imprisonment against Detectives Miraglia and Lugo; and (4) a state law claim for assault and battery against Detectives Miraglia and Lugo. See Am. Compl. ¶¶ 2, 10-22.

Plaintiff's complaint asserts generally that the action is brought pursuant to, inter alia, the Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the Constitution, speaks in terms of "unreasonable seizure of the person," "assaul[t] and batter[y]," "no probable cause for . . . arrest," "no legal cause or excuse to seize the person of the plaintiff," violation of "constitutional rights . . . to be free from an unreasonable search and seizure of his person" and "[f]reedom from the use of excessive, unreasonable and unjustified force against his person," "false arrest and illegal imprisonment," and "[l]oss of his physical liberty," but does not, apart from one reference to the Fourth and Fourteenth Amendments to the Constitution in conjunction with a search and seizure issue, specify the manner in which the conduct complained of is alleged to have violated rights under particular constitutional provisions. See Am. Compl. ¶¶ 1-2, 6, 8-9, 16. Because Plaintiff is acting pro se, the Court must "read his supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Accordingly, the Court construes Plaintiff's section 1983 claims against both the City of New York and Detectives Miraglia and Lugo as claims of false arrest and false imprisonment in violation of Plaintiff's rights under the Fourth and Fourteenth Amendments, and of excessive use of force in violation of Plaintiff's rights under the Fifth and Fourteenth Amendments.

In addition, Plaintiff complains that the Bronx County District Attorney's Office improperly moved to have Plaintiff's bail revoked in that the Office failed to produce, at the remand hearing on January 6, 1999, allegedly intimidated witnesses for cross-examination by Plaintiff pursuant to New York Criminal Procedure Law section 530.60(2)(a). See Am. Compl. ¶ 19(a). However, the Bronx County District Attorney's Office is not a party in this case because Plaintiff was never granted leave to further amend his Amended Complaint so as to name the District Attorney's Office as a defendant. See Order of Magistrate Judge Katz dated December 23, 2002 at 2. Therefore, the Court construes Plaintiff's complaint about the improper bail revocation as a 42 U.S.C. § 1983 claim against the City of New York.

City Defendants have moved for summary judgment. Summary judgment is appropriate only when the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the Court must "view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in its favor." American Casualty Co. of Reading, Pennsylvania v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994). However, even when all disputed facts are construed in Plaintiff's favor, the Court finds that Plaintiff's claims warrant dismissal as a matter of law. Thus, City Defendant's motion for summary judgment is granted for the reasons below. A. Plaintiff's section 1983 claims against the City of New York

Plaintiff's section 1983 claims against the City of New York must be dismissed. For a municipality to be held liable under 42 U.S.C. § 1983, the municipality must be found to have actually caused the tort. Monell v. Dept. of Social Services, 436 U.S. 658, 692 (1978). Thus, a plaintiff must demonstrate: (1) the existence of a municipal policy or custom; and (2) the existence of a causal connection between the policy or custom and the deprivation of the plaintiff's constitutional rights. Sarus v. Rotundo, 831 F.2d 397, 400 (2d Cir. 1987). Plaintiff's complaint includes general allegations that the wrongs he suffered were committed pursuant to policies and customs of the City of New York but he has not, in responding to the City Defendants' summary judgment motion, proffered any evidence of a municipal policy or custom, let alone of a causal connection between such a policy or custom and the deprivation of his constitutional rights.

To defeat a motion for summary judgment, a plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[T]he nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely . . . on the basis of conjecture or surmise.Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (1992). A party opposing a motion for summary judgment "may not rest on the pleadings, but must further set forth specific facts in the affidavits, depositions, answers to interrogatories, or admissions showing that a genuine issue exists for trial." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); see also Fed.R.Civ.P. 56(c) and (e). The only evidence that Plaintiff offers in support of his claims against the City concerning police misconduct is his bare assertion that New York police officers frequently "make accusations and try to beat the admission out of a person. . . ."See Quiles Dep. at 145. Indeed, Plaintiff himself admits that he does not know whether the City of New York has any policy that encourages police misconduct. See id. In addition, Plaintiff has offered no evidence whatsoever in support of his claim against the City concerning the improper bail revocation. Plaintiff has thus failed to come forward with evidence showing the existence of a genuine issue of material fact as to whether the City of New York is liable for any injury he suffered. Under these circumstances, the City of New York is entitled to summary judgment in its favor as a matter of law, and Plaintiff's claims against it are therefore dismissed in their entirety.

B. Plaintiff's section 1983 excessive force claim

Plaintiff's section 1983 claim of excessive force against Detectives Miraglia and Lugo is barred by the applicable statute of limitations. For statute of limitations purposes, claims under section 1983 are best characterized as personal injury actions. Wilson v. Garcia, 471 U.S. 261 (1985). In New York, the personal injury statute of limitations that applies to section 1983 actions is three years. Owens v. Okure, 488 U.S. 235, 251 (1989). While state law supplies the statute of limitations for claims under section 1983, federal law determines when a federal claim accrues. Connolly v. McCall, 254 F.3d 36, 41 (2d Cir. 2001). A section 1983 claim accrues when the plaintiff knows or has reason to know of the harm. Id. In the instant case, Plaintiff alleges that he was punched in the stomach on January 16, 1997, when he refused to answer the questions of Detectives Miraglia and Lugo. As Plaintiff was immediately aware of the harm allegedly done to him, his excessive force claim accrued on January 16, 1997, and, absent any indication that tolling is required, the three-year limitations period expired on January 17, 2000. Because Plaintiff did not file his original complaint in this action until October 29, 2001, and he has proffered no facts that would provide an appropriate basis for equitable tolling, his excessive force claim is time barred.

C. Plaintiff's section 1983 claims of false arrest and false imprisonment

Plaintiff's section 1983 claims of false arrest and false imprisonment against Detectives Miraglia and Lugo must also be dismissed because, on the undisputed facts, the detectives had probable cause to arrest Plaintiff. The tort of false arrest is a species of false imprisonment.Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). A section 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations omitted). Under New York law, a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him without his consent and without justification. Id. The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, id. (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)), and false imprisonment,see Loria v. Gorman, 306 F.3d 1271, 1287-88 (2d Cir. 2002). That Plaintiff was ultimately found to be not guilty of murder has no bearing on the validity of Plaintiff's claim. See Singer, 63 F.3d at 118 ("a favorable termination of the proceedings is not an element of [the] tort [of false arrest]").

Probable cause to arrest exists when the arresting police officers have knowledge or reasonably trustworthy information of facts and circumstances that is sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime. Weyant, 101 F.3d at 852. The question of whether or not probable cause existed may be determined as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers. Id.

Plaintiff does not dispute that, by the time Detectives Miraglia and Lugo arrested Plaintiff on January 16, 1997, at least four witnesses had linked Plaintiff to the murder of Pito on December 21, 1990. Two witnesses who had been in the pool hall when Pito was shot identified "Skinny Mike" as the shooter. They also identified a photo of Miguel Quiles as one of "Skinny Mike." Two other witnesses informed the police that they had heard "Skinny Mike" say that he had killed Pito. Of those witnesses, one stated that "Skinny Mike" was also known as Miguel Quiles, while the other identified a photo of Miguel Quiles as one of "Skinny Mike." Moreover, the description given by other witnesses to the shooting, including the pool hall employee, matched the features of Plaintiff. The Court finds as a matter of law that, based upon the undisputed facts as to the information provided by these witnesses, Detectives Miraglia and Lugo had probable cause to arrest Plaintiff. Therefore, summary judgment will be entered in favor of Defendants Miraglia and Lugo on Plaintiff's federal claims, and Plaintiff's federal claims of false arrest and false imprisonment are therefore dismissed. D. Plaintiff's state law claims

Plaintiff's only remaining claims against City Defendants are his state law claims against Detectives Miraglia and Lugo for false arrest and false imprisonment, and assault and battery. However, these claims must also be dismissed because they are time barred. Under New York law, an assault and battery claim accrues on the date of the assault or battery.See Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980) (assault); Corcoran v. New York Power Authority, 202 F.3d 530, 544 (2d Cir. 1999) (battery). Claims for false arrest and false imprisonment accrue as soon as an arrestee is released from confinement, such as when the arrestee is released on bail. See Singleton, 632 F.2d at 191 (citingDailey v. Smiley, 65 A.D.2d 915 (1st Dep't 1978)); Hoffman v. County of Delaware, 41 F. Supp.2d 195 (N.D.N.Y. 1999) (citing, e.g., Ragland v. New York City Housing Auth., 201 A.D.2d 7, 9 (2d Dep't 1994) (false imprisonment) and Redding v. County of Westchester, 59 A.D.2d 776 (2d Dep't 1977) (false arrest)). Thus, Plaintiff's assault and battery claim accrued on January 16, 1997, and his claims of false arrest and false imprisonment accrued some time before January 6, 1999, the date on which Plaintiff was remanded after having been released on bail.

Whether the applicable statute of limitations for these claims is provided by New York's Civil Practice Law and Rules section 215 (one-year statute of limitations for, inter alia, assault, battery and false imprisonment), New York's General Municipal Law section 50-i (one year and 90-day statute of limitations for tort claims against a municipality), or Puerto Rico's Civil Code section 5298 (one-year statute of limitations for tort actions) pursuant to New York's Civil Practice Law and Rules 202 (borrowing statute for causes of action that accrue outside New York), the limitations period expired well before Plaintiff filed his original complaint with the Pro Se office of this Court on October 29, 2001, as there is no indication that tolling is required. Because Plaintiff has proffered no facts that would provide an appropriate basis for equitable tolling, his remaining state law claims against City Defendants are dismissed. II. Plaintiff's claim against the United States

In his complaint, Plaintiff also raises a claim of assault and battery against the United States because the DEA special agent allegedly punched Plaintiff in the stomach during questioning. See Am. Compl. ¶ 12-13. However, this claim must be dismissed because the Court lacks subject matter of it. "The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omitted). "A waiver of sovereign immunity `cannot be implied but must be unequivocally expressed.'" United States v. Mitchell, 445 U.S. 535, 538 (1980) (citations omitted).

The Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671-2680, provides a limited waiver of sovereign immunity for certain tort claims against the United States and is the exclusive remedy for torts committed by federal employees within the scope of their employment. See 28 U.S.C.A. §§ 1346(b) (West 1993 Supp. 2003), 2679(b)(1) (West 1994); United States v. Smith, 499 U.S. 160, 163 (1991); Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994). However, "[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies." McNeil v. United States, 508 U.S. 106, 113 (1993). Pursuant to 28 U.S.C. § 2675 (a), a tort action may not be brought against the United States "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." 28 U.S.C. § 2675(a).

Plaintiff makes no allegation and submits no proof of having presented a claim to the DEA or any other federal agency. Accordingly, Plaintiff's claim of assault and battery against the United States is barred by sovereign immunity and must be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Robinson v. Military Overseas Corp., 21 F.3d 502, 509-10 (2d Cir. 1994) (district court lacks subject matter jurisdiction to entertain tort claim not previously presented to appropriate federal agency); Wyler v. United States, 725 F.2d 156, 159 (2d Cir. 1983) (same).

CONCLUSION

SO ORDERED.