Opinion
Civil Action No. 03-CV-6833-LDD.
September 30, 2004
MEMORANDUM AND ORDER
I. INTRODUCTION
Presently before the Court are Defendants' Motion to Dismiss Amended Complaint as to Official Defendants for Lack of Jurisdiction and Failure to State a Claim (Doc. No. 6), filed on March 8, 2004, and Plaintiff's Motion to Hold Complaint in Abeyance (Doc. No. 12), filed on September 8, 2004.
II. FACTUAL AND PROCEDURAL HISTORY
Pro se Plaintiff Billy G. Asemani ("Plaintiff") filed the instant action against Defendants Tom Ridge, Secretary of the Department of Homeland Security ("DHS"); Asa Hutchison, as Undersecretary of DHS; Michael Garcia, as Assistant Secretary for the Bureau of Immigration and Customs Enforcement ("BICE"); Theodore Nordmark, as Acting Philadelphia District Director of the BICE (hereinafter, Ridge, Hutchison, Garcia, and Nordmark are collectively identified as the "Official Defendants"); an Unknown Deportation Officer, Philadelphia BICE; and an Unknown York County Prison Transportation Officer (hereinafter, the two unknown officers are collectively identified as the "Unidentified Defendants").
The facts, taken from Plaintiff's Amended Complaint and Complaint (incorporated into the Amended Complaint at Pl. Amend. Compl. 1 (Doc. No. 2)) and viewed in the light most favorable to Plaintiff, establish the following: Plaintiff, a native of Iran, is presently incarcerated in Berks County Prison pending resolution of proceedings to remove him back to Iran following a criminal conviction in the United States. According to Exhibit Eight of Plaintiff's Complaint, Plaintiff was indicted on various federal criminal charges relating to fraud in his dentistry practice, but departed the United States for Iran in October 1999 to avoid federal prosecution. He voluntarily returned to the United States on or about October 12, 2000. He was subsequently convicted in federal district court in Mississippi and sentenced to thirty months imprisonment. Pl. Compl., Exh. 8 (Doc. No. 1).
In April 2003, Plaintiff obtained a decision from the United States District Court for the District of Columbia adjudicating him to be a U.S. "national" for the purpose of pursuing a torture claim against the government of Iran under the Foreign Sovereign Immunities Act ("FSIA"). See Pl. Compl., Exh. 4 (Asemani v. Islamic Republic of Iran et al., 266 F. Supp. 2d 24 (D.D.C. 2003)). Despite this determination that Plaintiff was a U.S. national for FSIA purposes and in light of his conviction for an Aggravated Felony, removal proceedings were instituted against Plaintiff. Pl. Compl., Exh. 8. Plaintiff alleges that he was arrested on July 23, 2003, following a removal hearing in Philadelphia. Pl. Compl. at 4.
In the instant case, Plaintiff alleges that because of the prior determination of his status as a U.S. national for FSIA purposes, his detention by the DHS constitutes false arrest and false imprisonment. Moreover, Plaintiff brings several causes of action based on alleged mistreatment he has suffered during his incarceration. In his Amended Complaint Plaintiff alleges a litany of conclusory complaints not supported by any averments in the text.
On March 8, 2004, the Official Defendants filed a Motion to Dismiss Amended Complaint as to Official Defendants for Lack of Jurisdiction and Failure to State a Claim (Doc. No. 6). On March 17, 2004, Plaintiff filed a Response to the Government's Motion to Dismiss and Motion for Placement of this Civil Action in Abeyance Pending Court of Appeals' Resolution of the Underlying U.S. Nationality Issue (Doc. No. 8). On July 15, 2004, and August 19, 2004, the Court issued Orders requiring that Plaintiff show cause why the Unidentified Defendants should not be dismissed from this action pursuant to Fed.R.Civ.P. 4(m) for failure to effectuate proper service upon these individuals (Docs. No. 10 11). On September 8, 2004, Plaintiff responded by again filing a Motion to Hold Complaint in Abeyance (Doc. No. 12). Plaintiff's contention that the District of Columbia District Court's decision that he is a U.S. National for FSIA purposes renders him a U.S. national for the purpose of immigration and entitles him to residence in this country is presently pending before the Third Circuit.
III. PLAINTIFF'S MOTION TO HOLD CLAIM IN ABEYANCE
In his Motion to Hold Complaint in Abeyance (Doc. No. 12, filed September 8, 2004,), Plaintiff contends that this action should be placed in suspense pending the outcome of his Appeal to the Third Circuit on the question of his status as a U.S. national. In support of his motion, Plaintiff notes that the Honorable Ronald L. Buckwalter, United States District Court Senior Judge for the Eastern District of Pennsylvania, issued an Order on March 19, 2004, staying proceedings in three other actions in which Mr. Asemani is the Plaintiff. On the facts before this Court, however, Plaintiff's argument is not persuasive. As discussed below, all of Plaintiff's claims can decided independent of the outcome of his appeal or his status as a U.S. national. Therefore, in the interest of timeliness and judicial economy, Plaintiff's Motion to Hold Complaint in Abeyance (Doc. No. 12) is DENIED.
IV. FEDERAL RULE OF CIVIL PROCEDURE 4(m)
Plaintiff's claims against the two Unidentified Defendants implicate Federal Rule of Civil Procedure 4(m), which states, "If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court upon . . . its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant[.] Plaintiff filed his Complaint in this matter on December 22, 2003. The Court gave notice to Plaintiff as required by Fed.R.Civ.P. 4(m) in its Orders of July 15, 2004 (Doc. No. 10), and August 19, 2004 (Doc. No. 11), demanding that Plaintiff show cause why the complaint against the unknown, unserved Defendants should not be dismissed. In lieu of a response, Plaintiff filed a motion to place this case in abeyance (Doc. No. 12), discussed above. Accordingly, this Court finds that Plaintiff failed to serve the summons and complaint upon the Unidentified Defendants within 120 days and, therefore, now dismisses Plaintiff's complaint as to the Unidentified Defendants without prejudice.
V. OFFICIAL DEFENDANTS' MOTION TO DISMISS
A. Standard of Law
Dismissal for failure to state a claim is appropriate when it clearly appears that plaintiff can prove no set of facts in support of the claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). Such a motion tests the legal sufficiency of a claim while accepting the veracity of the claimant's allegations. See Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987); Winterberg v. CNA Ins. Co., 868 F. Supp. 713, 718 (E.D. Pa. 1994), aff'd, 72 F.3d 318 (3d Cir. 1995). Furthermore, a "pro se complaint, 'however inartfully pleaded,' must be held to 'less stringent standards than formal pleadings drafted by lawyers' and can only be dismissed for failure to state a claim if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (quotations omitted)); Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981). A court may also consider any document appended to and referenced in the complaint on which plaintiff's claim is predicated. See Fed.R.Civ.P. 10(c); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); In re Westinghouse Sec. Litig., 90 F.3d 696, 707 (3d Cir. 1996). A court, however, need not credit conclusory allegations or legal conclusions in deciding a motion to dismiss.See General Motors Corp. v. New A.C. Chevrolet, Inc., 263 F.3d 296, 333 (3d Cir. 2001); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A claim may be dismissed when the facts alleged and the reasonable inferences therefrom are legally insufficient to support the relief sought. See Pennsylvania ex rel. Zimmerman v. PepsiCo., Inc., 836 F.2d 173, 179 (3d Cir. 1988).
B. Discussion
Plaintiff's amended complaint contains four categories of claims: (1) constitutional claims under Bivens, Pl. Amend. Compl. at 1; (2) common law intentional torts under the Federal Tort Claims Act (FTCA), Id.; (3) Civil Rights claims under 42 U.S.C. § 1983, Id. at 2; and (4) a claim for compensation under EAJA in connection with his immigration court proceedings, Id. at 1.
1. Bivens Claims
In his Amended Complaint, Plaintiff asserts that "this is aBivens-type civil rights action." Pl. Amend. Compl. at 1. ABivens action is a civil rights suit for damages brought for constitutional violations against individual government agents in their individual capacity for acts taken under color of federal law. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), (holding that an individual injured by a federal agent's alleged violation of the Fourth Amendment may bring an action for damages against the agent). More recent cases have extended the Bivens holding to other constitutional violations committed by federal agents. See, e.g., Davis v. Passman, 442 U.S. 228, 248-249 (1979) (implying a Bivens cause of action under the Fifth Amendment). However, official capacity suits are, in fact, suits against an agency, Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (cited with approval in Christy v. Pennsylvania Turnpike Comm'n, 54 F.3d 1140, 1143n. 3 (3d Cir. 1995)), and the Supreme Court has held that Bivens claims may not be brought against an agency, FDIC v. Meyers, 510 U.S. 471, 484-85 (1994). Therefore,Bivens claims may not be asserted against individuals solely in their official capacity or against a government agency. See also Chinchello v. Fenton, 805 F.2d 126, 130 n. 4 (3d Cir. 1986) (noting that District Court correctly concluded that sovereign immunity barred official capacity Bivens claim).
As there is no evidence in either the original or the Amended Complaint that Plaintiff had any direct contact with the Official Defendants, Plaintiff's Bivens claims against the Official Defendants are barred. As to the two Unidentified Defendants, presumably, though Plaintiff does not explicitly say so, Plaintiff intends to assert that he has been falsely arrested and imprisoned in violation of his Fifth Amendment rights. However, as the suit against the Unidentified Defendants was dismissed above, see supra Part IV, the Court finds that Plaintiff's claims under Bivens cannot stand. Therefore, Plaintiff's claims under Bivens must be dismissed for failure to state a claim upon which relief can be granted.
2. Claims under the Federal Tort Claims Act
In his Amended Complaint, Plaintiff asserts a cause of action against the Defendants under the Federal Tort Claims Act. Pl. Amend. Compl. at 1, 3-9. Under the doctrine of sovereign immunity, federal courts do not have jurisdiction over suits against the United States unless Congress, via a statute, expressly waives immunity. U.S. v. Bein, 214 F.3d 408, 412 (3d Cir. 2000). The FTCA waives the sovereign immunity of the United States in civil actions for money damages arising from the negligence or a wrongful act of an employee of the United States acting within the scope of his or her employment and provides for liability under the same circumstances as private persons in accordance with the law of the place where the conduct occurred.Bradley v. United States, 856 F.2d 575, 577-78 (3d Cir. 1988);Anderson v. United States, 744 F. Supp. 641, 643 (E.D. Pa. 1990). It is only under the FTCA that the United States consents to be sued, and thus, the jurisdiction of the federal district courts is defined. Bialowas v. United States, 443 F.2d 1047, 1048-49 (3d Cir. 1971). The FTCA provides that
an action shall not be instituted upon a claim against the United States for money damages for injury or loss of property . . . 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.A. § 2675(a). McNeil v. United States, 508 U.S. 106, 107 (1993) (An action may not be commenced under the FTCA unless the claimant has first exhausted his administrative remedies prior to filing suit.); Livera v. First Nat'l State Bank, 879 F.2d 1186, 1194 (3d Cir. 1989) (The fact that an administrative complaint under 28 U.S.C. § 2675(a) must first be presented to the proper agency is a jurisdictional requirement that is not subject to waiver by the government and which must be strictly construed.) cert. denied, 493 U.S. 937 (1989).
Plaintiff has failed to satisfy the prerequisites essential to federal court jurisdiction under the FTCA. Plaintiff has not offered any demonstrable evidence of having filed an initial FTCA claim with DHS, nor does DHS have a record of receiving such a complaint. See Affidavit of Scott A. Whitted, Assistant Principal Legal Advisor for DHS. In the absence of any assertion that Plaintiff filed a timely claim with the appropriate administrative agency, Plaintiff's claims under FTCA in the instant action fail. Plaintiff has not satisfied the prerequisites of bringing a FTCA action and, therefore, Plaintiff's FTCA claims must be dismissed for lack of subject matter jurisdiction.
3. Civil Rights Act, 42 U.S.C. § 1983
In his Amended Complaint, Plaintiff states that his claims also arise under the Civil Rights Act. Pl. Amend Coml. at 2. The Civil Rights Act provides a statutory cause of action for constitutional violations by individual government agents in their individual capacity for acts taken under color of state law. 42 U.S.C. § 1983. "To establish a valid claim under § 1983, a claimant must show: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Robb v. City of Philadelphia, 733 F.2d 286, 290-91 (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). Moreover, Section 1983 claims must be based on direct, rather than vicarious, liability. See Goode v. Rizzo, 506 F.2d 542, 550 (3d Cir. 1974), rev'd on other grounds, 423 U.S. 362 (1976);Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976).
In his Amended Complaint, Plaintiff fails to make allegations that satisfy the prima facie requirements of § 1983. Even extrapolating from the facts given in Plaintiff's Amended Complaint injuries that satisfy the requirements enunciated inRobb, Plaintiff is still not entitled to relief. As discussed above, a § 1983 claim must be based on direct liability. Nowhere in his Amended Complaint does Plaintiff allege any direct contact with the Official Defendants. Finally, as the suit against the Unidentified Defendants was dismissed above, see supra Part IV, the Court finds that Plaintiff's claims under § 1983 cannot stand. Therefore, Plaintiff's claims must be DISMISSED for failure to state a claim upon which relief can be granted.
4. Equal Access to Justice Act, 28 U.S.C. § 2412
Plaintiff seeks the award of attorney's fees for the costs he has incurred in various removal proceedings. Pl. Amend. Compl. at 1, 31-39.
The award of attorney's fees under the EAJA is available to "[a] party that prevails against the United States in a civil action . . ." provided that, inter alia, "the prevailing party . . . submit to the court an application for fees and expenses 'within thirty days of final judgment in the action.'" Melkonyan v. Sullivan, 501 U.S. 89, 91 (1991) (quoting 28 U.S.C. § 2412).
In his Amended Complaint, however, Plaintiff does not cite to any civil matter in which a final judgment has been issued in his favor against the United States. Moreover, the Court is aware of no such decision. Even if such a matter existed, to the extent the Plaintiff seeks compensation for one or more of his claims brought pro se, compensation under EAJA is not available to him. The Third Circuit has noted that, "after the Kay decision the courts of appeals have denied attorney's fees to pro se attorneys under a variety of fee-shifting statutes, including the Equal Access to Justice Act (EAJA), FOIA, and Title VII." Zucker v. Westinghouse Elec., 374 F.3d 221, 228-229 (3d Cir. 2004) See, e.g., Kooritzky v. Herman, 178 F.3d 1315, 1319 (D.C. Cir. 1999) (denying attorney's fees for pro se attorney under EAJA); Burka v. United States Dep't of Health Human Servs., 142 F.3d 1286, 1290 (D.C. Cir. 1998) (denying attorney's fees for pro se attorney allegedly representing an undisclosed client under FOIA); SEC v. Price Waterhouse, 41 F.3d 805, 808 (2d Cir. 1994) (denying attorney's fees for pro se attorney under EAJA).
Because Plaintiff does not assert, and the Court is not aware of, a final judgment issued in his favor adverse to the United States, particularly not within thirty days prior to the filing of his Complaint, Plaintiff's claim for compensation under EAJA is DISMISSED for failure to state a claim upon which relief can be granted.
CONCLUSION
For all these reasons, it is hereby ORDERED that Defendants' Motion to Dismiss Amended Complaint as to Official Defendants for Lack of Jurisdiction and Failure to State a Claim (Doc. No. 6, filed on March 8, 2004) is GRANTED and Plaintiff's Motion to Hold Complaint in Abeyance (Doc. No. 12, filed on September 8, 2004) is DENIED.
FURTHER, it is hereby ORDERED that Plaintiff's complaint against Defendants identified by Plaintiff as "Unknown Deportation Officer, Philadelphia BICE" and "Unknown York County Prison Transportation Officer" is hereby DISMISSED from this action pursuant to Fed.R.Civ.P. 4(m) for Failure to Effectuate Proper Service Upon these Individuals.
The Clerk of Court is hereby directed to statistically close this matter.