1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KEITH H. RUTMAN (CSB #144175) 501 West Broadway, Suite 1650 San Diego, California 92101-3541 Telephone: (619) 237-9072 Facsimile: (760) 454-4372 email: krutman@krutmanlaw.com Attorney for Plaintiff ARDIT FERIZI UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ARDIT FERIZI, ) Case No. ) Plaintiff, ) COMPLAINT FOR DAMAGES ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ) COMES NOW Plaintiff, by and through his attorney of record, and hereby alleges: This lawsuit for money damages is brought pursuant to the provisions of the Federal Tort Claims Act (28 U.S.C. §§ 2671-80). INTRODUCTION 1. ARDIT FERIZI was charged on January 21, 2021 in Northern District of California Case No. 3:21-CR-00027-WHA (N.D. Cal.) in a five-count indictment with conspiracy, wire fraud, possessing an unauthorized access device, transfer of a stolen identification document, and aggravated identity theft (the “NDCA case”). The alleged criminal conduct took place in February 2018, while Mr. FERIZI was housed by the Bureau of Prisons (“BOP”) at USP Terre Haute in Indiana, serving a 20-year prison sentence for a 2016 conviction from the Eastern District of Virginia in Case No. 1:16-CR-00042-LMB (the “EDVA case”). 2. The Government’s accusation was that Mr. FERIZI had a Google Drive account that contained databases of stolen personally identifiable information (“PII”) and Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 1 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 online account access data and, in 2018 while in prison, provided his Google credentials to his brother abroad, who downloaded all the data for the alleged purpose of engaging in fraud. 3. Although Mr. FERIZI had told the FBI personally about the existence of the Google Drive contents in 2016, and although the FBI knew as of 2018 that Mr. FERIZI had asked his brother to keep his Google Drive account active, the Government nonetheless did not charge him with a crime until January 2021, when a criminal complaint was filed in the Northern District of California, a district where Mr. FERIZI has never stepped foot in, and where neither the account holders or even the FBI case agent who swore out the criminal complaint reside. 4. The Government’s delayed charge was not due to newly discovered and unavailable evidence. Instead, this criminal prosecution was motivated by the fact Mr. FERIZI had been granted compassionate release in the EDVA case on December 3, 2020, and the Honorable Leonie M. Brinkema had ordered Mr. FERIZI be remanded into immigration custody immediately so he could be promptly removed to his native Kosovo. 5. Having never mentioned any allegation of criminal activity by Mr. FERIZI while in the BOP as it was contesting his compassionate release motion, and having been denied a stay of the compassionate release order by both Judge Brinkema and the Fourth Circuit Court of Appeals, the Government instead decided to file a criminal complaint on the other side of the country to evade Judge Brinkema’s mandate and ensure Mr. FERIZI would not be released from jail. 6. There is only one word to describe the Government’s actions in this case: vindictive. This prosecution sought to punish Mr. FERIZI for successfully filing for compassionate release and succeeded. By filing the complaint on the other side of the country, taking three months to transport Mr. FERIZI into the NDCA, and burying him under a mountain of discovery, the Government was able to 2 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 2 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 keep Mr. FERIZI in custody during the eleven months the Fourth Circuit took to deny on the Government’s appeal of Mr. FERIZI’s compassionate release request. 7. The NDCA Case was dismissed on the eve of a hearing on motions to dismiss the indictment for vindictive prosecution and to suppress evidence under Franks v. Delaware, 438 U.S. 154 (1978). 8. The Government’s decision to punish Mr. FERIZI for exercising his statutory right to seek compassionate release violated his Fifth Amendment right to due process and give rise to a Federal Tort Claim Act case for, among other claims, Vindictive/Malicious Prosecution, as alleged herein. JURISDICTION 9. Federal jurisdiction is founded upon the existence of a federal question. The claims for relief arise under the provisions of the Federal Tort Claims Act (“FTCA”), over which this Court has jurisdiction under 28 U.S.C. § 1346(b)(1). VENUE 10. Venue in the Northern District of California is proper under 28 U.S.C. § 1391(e). A majority of the events complained of occurred in this district. a. Divisional Assignment: Pursuant to Civil L.R. 3-2(c), this case should be assigned to the San Francisco Division of the Court because that is where the underlying criminal prosecution took place. PARTIES 11. Plaintiff ARDIT FERIZI (hereinafter “FERIZI”) is citizen and current resident of Kosovo. 12. Defendant UNITED STATES OF AMERICA (hereinafter “UNITED STATES”) is a sovereign entity which has waived sovereign immunity in certain cases as set forth in the Federal Tort Claims Act (28 U.S.C. §§ 1346, 2671-80) 13. The filing of an administrative claim is a prerequisite to filing any claims under the Federal Tort Claims Act. Plaintiff timely submitted a claim on the 3 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 3 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 designated form to the appropriate federal agency (U.S. Department Of Justice 1 ) on July 11, 2022. More than six months have elapsed without a written decision and therefore the matter is ripe for adjudication at this time. 14. Qualified immunity does not apply in a California law-based FTCA case. Cousins v. Lockyer, 568 F.3d 1063, 1072 (9th Cir. 2009); Ogborn v. City of Lancaster, 101 Cal.App.4th 448, 460 (2002); Venegas v. County of Los Angeles, 153 Cal.App.4th 1230 (2007). 15. Nor do any other California law based immunities, such as Government Code § 821.6, apply. United States v. Muniz, 374 U.S. 150, 164-66 (1963); Indian Towing Co. v. United States, 350 U.S. 61 (1955); Stuart v. United States, 23 F.3d 1483, 1488 (9th Cir. 1994). 16. The discretionary function exception to the FTCA (28 U.S.C. § 2680(a)) was intended to preclude tort claims arising from decisions by executives or administrators when such decisions require policy choices. Dalehite v. United States, 346 U.S. 15, 35-36 (1953). The decision whether or not to prosecute a given individual is a discretionary function for which the United States is typically immune from liability. See Smith v. United States, 375 F.2d 243 (5th Cir. 1967), cert. denied, 389 U.S. 841. However, the conduct of a law enforcement in implementing that decision, including the nature of his testimony before a grand jury, is not immune as a discretionary function. Driscoll v. United States, 525 F.2d 136, 138 (9th Cir. 1975); Wright v. United States, 719 F.2d 1032 (9th Cir. 1983); Myles v. United States, 47 F.4th 1005, 1007 (9th Cir. 2022). STATEMENT OF FACTS 17. In 2015 Mr. FERIZI—a citizen of Kosovo then living in Malaysia—hacked into 1 Addressed to James G. Touhey, Jr., Director, Torts Branch U.S. Department of Justice. 4 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 4 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a database of an American online retailer, took a database of customer records and extracted approximately 1,300 email and password combinations appearing to belong to Government and military employees. He then shared that information online with an individual purporting to be associated with ISIS. No one was harmed or attacked because of the information shared by Mr. FERIZI. 18. In January 2016, Mr. FERIZI was extradited to the United States after he was indicted in the EDVA for providing material support to ISIS, 18 U.S.C. § 2339B, and unauthorized computer access, 18 U.S.C. § 1030(a)(2)(c). Mr. FERIZI ultimately entered a guilty plea in Eastern District of Virginia Case No. 1:16-CR-00042-LMB with a plea agreement and on September 23, 2016 was sentenced by Judge Leonie M. Brinkema to serve 20 years in the Bureau of Prisons (“BOP”). 19. In 2020, Mr. FERIZI filed a pro se request for “compassionate release” under 18 U.S.C. § 3582(c), citing his susceptibility to serious illness from COVID-19 due to his obesity and asthma. 20. Judge Brinkema granted the request on December 3, 2020 and ordered Mr. FERIZI immediately released from the BOP with direction he be “promptly deported to Kosovo.” On December 16, 2020, Judge Brinkema denied the EDVA USAO’s request that she stay her release order pending appeal. On December 18, 2020, the Fourth Circuit Court of Appeals also denied a stay of the release order pending a Government appeal. (United States v. Ferizi, 20-7830 (4 th Cir. 2020). Although Judge Brinkema had ordered Mr. FERIZI to be “promptly deported to Kosovo,” he remained in immigration custody into the new year. 21. On January 11, 2021, FBI Special Agent Dustin Reid of the Jacksonville, Florida FBI office, swore out a criminal complaint in the Northern District of California accusing Mr. FERIZI of wire fraud, 18 U.S.C. § 1343 and aggravated identity theft, 18 U.S.C. § 1028A. The complaint was signed by then NDCA Assistant 5 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 5 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S. Attorney William Frentzen. 22. The complaint alleged that in 2018, while Mr. FERIZI was housed at USP Terre Haute in Indiana, he provided his Google credentials to his brother abroad and asked him to download all the data in the account for the alleged purpose of engaging in fraud. The primary source of information in the complaint were statements made by Jasper Knabb, an inmate housed with Mr. FERIZI at Terre Haute. a. Knabb, the former CEO of Pegasus Wireless Corporation, was serving a 253 month sentence following his convictions in the Northern District of California for securities fraud and conspiracy. See United States v. Knabb, 4:11-CR-00009-JSW; see generally Bob Egelko, “Ex-Pegasus CEO gets 21-year sentence for fraud,” San Francisco Chronicle, Jun. 8, 2012. 23. Agent Reid also applied for a search warrant in the NDCA on January 1, 2021. It was based entirely on Knabb’s statements. As a result, Agent Reid and the Government were able to obtained Mr. FERIZI’s online account information from Google and Microsoft. Agent Reid and the Government later obtained search warrants for account information from Google and Microsoft concerning Mr. FERIZI’s brother, who lived abroad and was alleged to have conspired with Mr. FERIZI to, in the words of Knabb, “cash[] out from his crimes.” 24. Although Reid obtained these warrants in 2021, he had been aware of Knabb’s allegations since late 2017, and had been monitoring Mr. FERIZI’s BOP correspondence throughout 2018. The EDVA USAO was aware of Knabb’s allegations but never informed Judge Brinkema of them while it was opposing Mr. FERIZI’s motion for compassionate release in 2020. 25. On January 21, 2021, a NDCA grand jury returned a five count indictment charging Mr. FERIZI with conspiracy to commit wire fraud, 18 U.S.C. § 1349, wire fraud, 18 U.S.C. § 1343, possession of an unauthorized access device, 18 U.S.C. § 1029(a)(3), transfer of stolen identification documents, 18 U.S.C. § 6 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 6 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1028(a)(2), and aggravated identity theft, 18 U.S.C. § 1028A. 26. At the time of the indictment, Mr. FERIZI was in immigration custody in Pennsylvania and after appearing in the Middle District of Pennsylvania sometime in January 2021, was ordered detained and removed to the NDCA. It then took three months for the U.S. Marshal Service (“USMS”) to bring Mr. FERIZI to the NDCA for his initial appearance, which occurred on April 13, 2021. 27. On February 15, 2022, Mr. FERIZI filed a motion to dismiss the indictment, alleging that the prosecution was vindictive in violation of the Fifth Amendment right to due process, and intended to retaliate against him for successfully exercising his statutory right to compassionate release in his EDVA case. 28. The Government opposed the request and a motion hearing was scheduled for on March 22, 2022 before Judge Alsup. 29. As Mr. FERIZI was dealing with the NDCA case, prosecutors from the EDVA pursued an appeal of the compassionate release order before the Fourth Circuit. On November 16, 2021, the Fourth Circuit remanded the case back to Judge Brinkema to have her “consider in the first instance how the new charges, or other relevant evidence revealed since the district court’s order of release, impact the discretionary § 3553(a) analysis for compassionate release.” United States v. FERIZI, 2021 WL 5320860, at *1 (4th Cir. Nov. 16, 2021). 30. On the morning of the NDCA motion hearing, Defendant UNITED States filed a notice of dismissal of the NDCA case 2 . Mr. FERIZI was ordered immediately 2 Mr. FERIZI had also filed a motion to suppress and request for Franks hearing in the NDCA case, arguing the search warrant affidavit recklessly omitted information undermining Knabb’s credibility, and the search warrant was overbroad and unparticular. The Government never filed an opposition to that motion as it dismissed the case before their deadline to respond to the motion. 7 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 7 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 released by Judge Alsup over the Government’s objection. 31. Mr. FERIZI was released from USMS custody on March 29, 2022, and transferred into immigration custody. 32. Hours after the NDCA case was dismissed, Judge Brinkema issued an order to show cause to the Government, directing it to explain why her compassionate release order should not be affirmed, and set a hearing on March 31, 2022 in order for “the Government to provide a clear explanation as to how the decision was made to bring the California charges,” which “effectively did an end run around both this Court and the Fourth Circuit’s decisions not to stay execution of the Order granting defendant’s Second Motion for Compassionate Release. 33. At that hearing, EDVA AUSA Danya Atiyeh explained that Mr. Frentzen had left the NDCA USAO and the prosecutors in the EDVA “haven’t been able to get in touch with him3 to get his insights on what evidence he believed there was or what communications he might have had with FBI or anything. That, to us, is a black box at this point, Your Honor, and I don’t know that we have a way to get that information.” 34. She elaborated that “at the beginning of January of this year, a new case team at NDCA came onto the case... and, at that point, they began to assess the evidence in the case.” She stated when the new NDCA prosecutors “looked at that evidence, they believed that they did not have sufficient evidence on the mens rea prong of four of the five charges. And this was something that developed between January, when I first got a call from them asking about discovery, because it appears that there had been a substantial amount of discovery from the prior case in EDVA that had never been reviewed by the NDCA office.” Concerning the fifth count, “the transfer of identification information count, they 3 An attorney search at the California State Bar webpage reveals he is currently working at Morrison & Foerster in San Francisco. 8 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 8 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 believed that the defendant’s guidelines were commensurate with the length of time he had already served incarcerated pretrial, and they believed that in the interest of prosecutorial discretion, it was appropriate to dismiss all of the charges.” 35. Judge Brinkema was not impressed; she found “it certainly is pretty clear to me that there were other members of the Department of Justice who were dissatisfied with the decision that not only I made, but the Fourth Circuit by not granting a stay had also given a preliminary look at the situation and had also ruled that way. So this, in my view, was an attempt to do an end-run around two courts’ decisions that there was no appropriate basis to stay the deportation of this – release and deportation of this defendant. So it is very troubling what happened here.” 36. Concerning the fact that the entire criminal case was built around the word of Knabb, AUSA Atiyeh also told Judge Brinkema she was aware of the allegations made by Knabb against Mr. FERIZI at the time of the compassionate release litigation but did “not put that before Your Honor because there was no additional information to validate or verify it.” Or as Judge Brinkema characterized it, Knabb was “unreliable.” 37. AUSA Atiyeh explained the EDVA USAO had “a lot of discussion” with the FBI to facilitate Mr. FERIZI’s removal following Judge Brinkema’s decision to grant Mr. FERIZI compassionate release, and that the FBI was “upset” about the decision to release Mr. FERIZI and “wanted to know if there was anything that could be done.” 38. But Judge Brinkema found that “very troubling,” explaining that the NDCA charge “evidenced to me a mindset that two different courts...decided that there was no basis to stay this man’s deportation, it didn’t sit well with the powers that be, and so they were going to do an end-run around it.” 39. At the end of the hearing, Judge Brinkema reaffirmed her order granting Mr. 9 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 9 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FERIZI compassionate release. She found the NDCA charges were “an absolute nullity” and said “I don’t believe there’s any sufficient evidence of any misconduct while this man was in custody.” She also found “the way he’s been treated and the fact that he’s spent more than a year of additional time in custody because of what happened here...appalling.” 40. She concluded by admonishing the EDVA USAO that “you’ve got an FBI agent working behind the scenes who’s not playing by the rules, ultimately it comes back to bite the AUSA or the AUSA’s office.” AUSA Atiyeh responded “I wholeheartedly agree, and I think there may be some conversations going on behind the scenes as to that issue.” The next day, Judge Brinkema issued a written order explaining her reasoning in more detail. After hearing from AUSA Atiyeh and considering the “meritorious arguments” raised in Mr. FERIZI’s NDCA motion to dismiss, Judge Brinkema found “there were elements within the Department of Justice who were so dissatisfied with this Court’s decision to release defendant, and with both this Court’s and the Fourth Circuit’s decisions not to stay his release and removal to Kosovo, that they purposely tried to evade these decisions by filing very weak new charges against the defendant, all of which have since been summarily dismissed.” 41. Regarding the merits of the NDCA case, she found “that much of the information in the affidavit supporting the California criminal complaint relied on an inmate with an established record of unreliability, which the affidavit failed to acknowledge” and “had a Franks hearing been held, that affidavit would have been difficult to defend.” 42. She concluded “it would set a terrible precedent to reverse the decision to release a defendant based on a change of circumstances caused by the Government’s manipulation of the criminal justice system to create a delay that enabled the new circumstances to rise. The lack of respect for an orderly judicial process demonstrated by certain entities within the Department of Justice and the 10 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 10 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 resulting waste of judicial resources expended in the California litigation should not be rewarded.” She reaffirmed her decision to grant Mr. FERIZI compassionate release. 43. The EDVA USAO filed a protective notice of appeal but ultimately voluntarily dismissed its appeal on May 5, 2022. 44. Mr. FERIZI was removed from the United States and returned to Kosovo on May 12, 2022 where he is currently residing. FIRST CLAIM FOR RELIEF MALICIOUS PROSECUTION 45. Plaintiff refers to and incorporates by reference Paragraphs 1 through 44 as though fully set forth herein. 46. The prior action, UNITED STATES v. ARDIT FERIZI, Northern District of California Case No. 3:21-CR-00027-WHA (N.D. Cal.) was a criminal proceeding commenced by or at the direction of Defendant UNITED STATES. 47. The prior action, UNITED STATES v. ARDIT FERIZI, Northern District of California Case No. 3:21-CR-00027-WHA (N.D. Cal.) was pursued to a legal termination in plaintiff's favor. 48. The prior action, UNITED STATES v. ARDIT FERIZI, Northern District of California Case No. 3:21-CR-00027-WHA (N.D. Cal.) was brought without probable cause. 49. The prior action, UNITED STATES v. ARDIT FERIZI, Northern District of California Case No. 3:21-CR-00027-WHA (N.D. Cal.) was initiated by Defendant UNITED STATES with malice. 50. Defendant UNITED STATES is liable for the conduct of its law enforcement agents under the Federal Torts Claim Act, and no immunities apply to its conduct. 51. The actions described herein legally, proximately, foreseeably and actually caused Plaintiff to suffer damages in the form of emotional distress, pain and 11 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 11 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 suffering, and further damages according to proof. SECOND CLAIM FOR RELIEF BANE ACT: CALIFORNIA CIVIL CODE § 52.1 52. Plaintiff refers to and incorporates by reference Paragraphs 1 through 44 as though fully set forth herein. 53. The California Legislature declared that it violates our state civil rights for any person to interfere with the exercise or enjoyment by an individual of his/her rights secured by the United States Constitution or state or federal law. This includes any interference of these rights by threats, intimidation, coercion, or attempted threats, intimidation, or coercion. a. ARDIT FERIZI has a right under the Fifth Amendment to the United States Constitution to Due Process of Law. b. The Government violates a criminal defendant’s Fifth Amendment’s right to due process when it brings criminal charges “to penalize [him] for exercising a protected statutory or constitutional right.” United States v. Jenkins, 504 F.3d 694, 699 (9th Cir. 2007). “After all, penalizing a person for doing what the law plainly allows him to do ‘is a due process violation of the most basic sort.’” United States v. Burt, 619 F.2d 831, 836 (9th Cir. 1980) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)). It is “the appearance of vindictiveness, rather than vindictiveness in fact, which controls.” United States v. Groves, 571 F.2d 450, 453 (9th Cir. 1978). And “it is the Government’s attempt or threat to ‘up the ante’ by bringing new or more serious charges in response to the exercise of protected rights that violates the due process guarantee.” United States v. Robison, 644 F.2d 1270, 1273 (9th Cir. 1981). c. Vindictiveness is shown by “producing direct evidence of the prosecutor’s punitive motivation;” alternatively, a defendant “is entitled to a presumption of vindictiveness” if he can show “charges ‘were filed 12 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 12 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because [he] exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness.’” Jenkins, 504 F.3d at 699 (quoting United States v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir. 1982)). No “bad faith” or malice is required; instead a defendant need only show “a reasonable likelihood that the government would not have brought” the charge but for the defendant’s exercise of a legal right. Jenkins, 504 F.3d at 700. The “filing of the initial indictment can provide the basis for a charge of vindictive prosecution” when the defendant shows “vindictiveness on the part of those who made the charging decision.” United States v. McWilliams, 730 F.2d 1218, 1221 (9th Cir. 1984) (quoting United States v. Hooton, 662 F.2d 628, 634 (9th Cir. 1981)(“mere filing of an indictment can support a charge of vindictive prosecution.”)). d. ARDIT FERIZI has a right under the Fourth Amendment to the United States Constitution to be free from an unreasonable seizure. 54. Defendant UNITED STATES interfered with Plaintiff’s rights to Due Process of Law and to be free from an unreasonable seizure by the intentional filing of false criminal charges, without probable cause and with malice. 55. This interference with Plaintiff’s rights was perpetrated in violation of Article I, sections 7 & 13 of the California Constitution, and is the proper subject of a cause of action under California Civil Code § 52.1 insofar as there has been a waiver of sovereign immunity. 56. Defendant UNITED STATES is liable for the conduct of its law enforcement agents under the Federal Torts Claim Act, and no immunities apply to its conduct. 57. The actions described herein legally, proximately, foreseeably and actually caused Plaintiff to suffer damages in the form of emotional distress, pain and suffering, and further damages according to proof. 13 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 13 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD CLAIM FOR RELIEF FALSE ARREST 58. Plaintiff refers to and incorporates by reference Paragraphs 1 through 44 as though fully set forth herein. 59. A false imprisonment claim “consists of the ‘nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.’” Fermino v. Fedco, Inc., 7 Cal. 4th 701, 715 (1994). “The only mental state required to be shown to prove false imprisonment is the intent to confine, or to create a similar intrusion” and “the intent element of false imprisonment does not entail an intent or motive to cause harm . . .” Id. at 716 60. A false imprisonment claim does not end when the claimant is ultimately released from confinement; it ends when the confinement is “pursuant to lawful process.” Asgari v. City of Los Angeles, 15 Cal. 4th 744, 757 (1997). 61. Generally “the “[f]iling of a criminal complaint immunizes investigating officers...from damages suffered thereafter because it is presumed that the prosecutor filing the complaint exercised independent judgment in determining that probable cause for an accused’s arrest exists at that time.” Harper v. City of Los Angeles, 533 F.3d 1010, 1027 (9th Cir. 2008) 62. However, a plaintiff can “rebut this presumption” with “substantial” evidence “that the [prosecuting] attorney was pressured or caused by the investigating officers to act contrary to his independent judgment,” or that a prosecutor’s “legal conclusion that probable cause existed...was based almost entirely on the police investigation adjudged to be deficient.” Id. 63. While Agent Reid authored the complaint and AUSA Frentzen appeared to have signed off on it with little review or oversight; once he left the NDCA USAO and a new set of prosecutors took over the case, they quickly determined there was insufficient evidence for the case to proceed and promptly dismissed the action. That determination was not made on new evidence obtained by the 14 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 14 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Government after the complaint and indictment were filed. In other words, then, the deficiencies with the case were present at the moment Mr. FERIZI was arrested on the complaint. This evidence, in part, rebuts the presumption identified in ¶ 63. 64. Defendant UNITED STATES acted intentionally or recklessly in causing the false arrest of Mr. FERIZI. 65. Defendant UNITED STATES is liable for the conduct of its law enforcement agents under the Federal Torts Claim Act, and no immunities apply to its conduct. 66. The actions described herein legally, proximately, foreseeably and actually caused Plaintiff to suffer damages in the form of emotional distress, pain and suffering, and further damages according to proof. FOURTH CLAIM FOR RELIEF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 67. Plaintiff refers to and incorporates by reference Paragraphs 1 through 44 as though fully set forth herein. 68. The actions of Defendant UNITED STATES in causing the malicious prosecution of Mr. FERIZI were outrageous and extreme. 69. Defendant UNITED STATES acted intentionally or recklessly and their actions caused Plaintiff severe emotional distress. 70. The actions of Defendant UNITED STATES constituted the tort of intentional infliction of emotional distress under the laws of the State of California. 71. Defendant UNITED STATES is liable for the conduct of its law enforcement agents under the Federal Torts Claim Act, and no immunities apply to its conduct. 72. The actions described herein legally, proximately, foreseeably and actually caused Plaintiff to suffer damages in the form of emotional distress, pain and suffering, and further damages according to proof. 15 Case 3:23-cv-02250-TSH Document 1 Filed 05/09/23 Page 15 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIFTH CLAIM FOR RELIEF NEGLIGENCE 73. Plaintiff refers to and incorporates by reference Paragraphs 1 through 44 as though fully set forth herein. 74. Defendant UNITED STATES owed a duty of care to Plaintiff. 75. Its actions as described above violated that duty of care. 76. Defendant UNITED STATES is liable for the conduct of its law enforcement agents under the Federal Torts Claim Act, and no immunities apply to its conduct. 77. The actions described herein legally, proximately, foreseeably and actually caused Plaintiff to suffer damages in the form of emotional distress, pain and suffering, and further damages according to proof. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against Defendant UNITED STATES as follows: 1. For general and special compensatory damages against Defendant UNITED STATES in the amount of $5,000,000; 2. To the extent allowed by law, for the statutory civil penalties set forth in California Civil Code § 52.1; 3. For costs of suit; and 4. For such other and further relief as the Court deems proper. Respectfully Submitted, Dated: May 9, 2023 s/Keith H. Rutman KEITH H. 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RUTMAN, CSB 144175 501 WEST BROADWAY. STE 1650 SAN DIEGO CA 92101 619.237.9072; krutman@krutmanlaw.com FTCA - 28 U.S.C. §§ 2671-2680 MAILIOUS PROSECUTION, BANE ACT, FALSE ARREST, NEGLIGENCE 5,000,000.00 William H. Alsup. 3:21-CR-00027-WHA 05/08/2023 s/KEITH H. 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