Opinion
No. EP-05-CA-0233-FM.
July 26, 2005
ORDER
On this day, the Court considered the status of the above captioned case. On June 21, 2005, Plaintiffs filed their motion to proceed in forma pauperis. Plaintiffs' motion to proceed in forma pauperis was granted. The Court now considers the merits of this action.
STANDARD
A District Court may dismiss a complaint filed in forma pauperis at any time if it determines that, "the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915 (e)(2)(B). An action is frivolous if it lacks an arguable basis in either fact or law. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A dismissal under § 1915(e)(2)(B)(ii) and Rule 12(b)(6) are analyzed under the same standards. Newsome v. EEOC, 301 F.3d 227, 331 (5th Cir. 2002). An action fails to state a claim if "taking the facts alleged in the complaint as true, it appears certain that the plaintiff cannot prove any set of facts that would entitle it to the relief it seeks." C.C.Port, Ltd. v. Davis-Penn Mortgage Co., 61 F.3d 288, 289 (5th Cir. 1995). In deciding whether the complaint fails to state a claim the District Court accepts as true those well-pleaded factual allegations in the complaint. Id. It must appear beyond a doubt that the plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (alterations and citations omitted). In applying this standard, it must be noted that a pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
ANALYSIS
The predominant facts giving rise to Plaintiffs' lawsuit took place on January 8, 2005 at a port of entry in El Paso, Texas. Plaintiffs' complaint presents this Court with a situation in which individuals suffer substantial anguish and distress but for which there is no remedy at law. At the human level there is no belittling Plaintiffs' feelings, yet this Court is limited to consider cases and controversies for which the law provides a remedy. For the reasons set forth below Plaintiffs' claims must be dismissed.
I. Mariana Zuniga's Claims —
This action is brought by Jonathan Bazemore, a person not licensed to practice law, on behalf of himself and Mariana Zuniga. It is well settled that in all courts of the United States the parties may plead and conduct their own cases personally or by counsel. 28 U.S.C. § 1654 (2003). Therefore, Mr. Bazemore may clearly represent himself. However, individuals who do not have a license to practice law may not represent other parties in federal court. Weber v. Garza, 570 F.2d 511, 514 (5th Cir. 1979). Thus, Mr. Bazemore cannot represent Ms. Zuniga. Ms. Zuniga's claims should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failing to comply with Federal Rule of Civil Procedure 11 and Local Rule 7(a). II. Bazemore's Claims against The City of El Paso, the State of Texas, And U.S. Embassy in Cuidad Juarez
After parsing Bazemore's complaint it is clear all violations Bazemore [hereinafter referred to solely as Plaintiff] asserts took place at inspection points along the border between the United States and Mexico. Plaintiff asserts that "Defendants D.H.S., I.C.E/C.B.P. obtained significant assistance from the State of Texas, the city of El Paso AFGE, NTEU, and their organs in depriving Plaintiffs of their rights. Defendants State of Texas, The U.S. Juarez Embassy, the City of El Paso, AFGE, and NTEU by their inaction and negligence, failed to or refused to prevent or aid in preventing the conspiracy and acts in furtherance of the conspiracy." [Rec. No. 1].
Plaintiff's claim is frivolous because it lacks an arguable basis in fact and does not support that he has been injured in any way by either the State of Texas, the City of El Paso or the U.S. Embassy in Cuidad Juarez, Chichuahua, M.X. Plaintiff's claims should therefore be dismissed as frivolous against these Defendants.
III. Analysis of Claims 1-21 Claim 1 -
Plaintiff alleges that the federal government, federal agencies and governmental employees harassed him when they "rub[ed] Plaintiff Bazemore's civil rights in the dirt, demand[ed] answers to demeaning questions designed to provoke and annoy him, and then pugnaciously await[ed] a response, hoping to formally arrest him on the flimsiest pretext." [Rec. No. 1].
The federal government, federal agencies and employees acting in their official capacities cannot be sued for monetary damages unless Congress has waived immunity or the government has consented to suit. Price v. United States, 69 F.3d 46, 49 (5th Cir. 1995); Brown v. General Services Administration, 425 U.S. 820, 826-27 (1976). Sovereign immunity is waived only where the text of the statute creating the right unequivocally waives said right. Lane v. Pena, 518 U.S. 187, 192 (1996). The Court lacks subject matter jurisdiction to consider any claim against a federal agency or employee unless sovereign immunity has been waived. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982). There is no statute or constitutional amendment that unequivocally waives sovereign immunity for what Plaintiff claims constitutes harassment which generally means persistent annoyance. Thus, the Court lacks subject matter jurisdiction to consider Plaintiff's claim for harassment.
Claim 2 -
Unlike Plaintiff's claim for harassment, the Court may consider Plaintiff's second claim alleging false imprisonment. The Federal Tort Claims Act specifically waives sovereign immunity for investigative or law enforcement officers of the United States Government for claims alleging false imprisonment. 28 U.S.C. § 2680(h). The substantive law of the state in which the wrongful conduct occurred controls. Carlson v. Green, 100 S.Ct. 1468, 1474 (1980). The alleged acts occurred in the state of Texas. Thus, Plaintiff may only recover if he establishes he is entitled to damages under Texas law.
Under Texas law, false imprisonment requires: (1) willful detention; (2) without consent; and (3) without authority of law. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). "A detention may be accomplished by violence or threats, or by any other means that restrains a person from moving from one place to another." Id. at 644-45.
On January 13, 2005, Plaintiff attempted to return into the United States and was stopped by border agents who directed Plaintiff to pull into an inspection lane and produce his driver's license. This constitutes willful detention without consent because Plaintiff was not free to move form one place to another. However, Plaintiff cannot establish the third element of his claim. U.S. border patrol agents possess the authority to enforce immigration laws. See 8 U.S.C. § 1324(c). Agents at the border inspecting Plaintiff and his vehicle were acting under and within the authority of the immigration laws. Thus, Plaintiff cannot establish the third element of his claim. Claim 3 -
Similar to claim two, The Federal Tort Claims Act specifically waives sovereign immunity for investigative or law enforcement officers of the United States Government for claims alleging intentional infliction of emotional distress. 28 U.S.C. § 2680(h). The substantive law of the state in which the wrongful conduct occurred controls. Carlson v. Green, 100 S.Ct. 1468, 1474 (1980). The alleged acts occurred in the state of Texas. Thus, Plaintiff may only recover if he establishes he is entitled to damages under Texas law.
Under Texas law, to state a claim for intentional infliction of emotional distress, Plaintiff must show: (1) the agents acted intentionally or recklessly; (2) that the agents' conduct was extreme and outrageous; (3) that the agents' actions caused him emotional distress; and (4) that the emotional distress was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). To be extreme and outrageous, the defendants' conduct must have gone `beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized society." Wornick v. Casas, 856 S.W.2d 732, 734 (Tex. 1993). The Court finds that taking the facts as true, Plaintiff cannot establish that the agents' conduct was extreme or outrageous.
Claim 4 -
Plaintiff claims that Defendants should be held liable for willful misconduct. Even assuming that Plaintiff's vague statements constituted willful misconduct, as stated in its analysis of claim one, the government is immune from such claims.
Claim 5 -
Plaintiff's fifth claim alleges that Defendants engaged in a conspiracy pursuant to 42 U.S.C. § 1985 and a pattern and practice of violating his civil rights under 42 U.S.C. § 14141. To state a claim under § 1985(3), Plaintiff must allege that two or more persons conspired to directly, or indirectly, deprive him of the equal protections of the laws or equal privileges and immunities under the laws." Green v. State Bar of Texas, 27 F.3d 1083, 1089 (5th Cir. 1994). Furthermore, Plaintiff must allege that the conspirators were motivated by race. See Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978). Under Texas law, the elements of a conspiracy are "(1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result. Peavy v. WFAA TV, Inc., 221 F.3d 158, 172 (5th Cir. 2000) ( quoting Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983) ). Plaintiff merely alleges that by sharing data, prioritizing response, and being non responsive to questioning Defendants conspired to violate his rights. This is not sufficient to allege the elements of a conspiracy as no affirmative agreement has been or could be shown. Moreover, Plaintiff has not established any pattern or practice of unlawful activities required under 42 U.S.C. § 14141. Claim 6 - Plaintiff claims that Defendants should be held liable for fraud defined as false representations made by the defendants who gained something by making such false representations. See United States ex rel. Russell v. Epic Healthcare Mgt. Group, 193 F.3d 304, 308 (5th Cir. 1999 ). As stated in its analysis of claim 1, the government is immune from such claims. Claim 7 - Plaintiff's seventh claim alleges a violation of civil rights under 42 U.S.C. § 1988. Section 1988 does not provide a separate cause of action. Rather, it establishes fees recoverable under civil rights statutes and to what extent statutory provisions and the common law is applicable. Thus, Plaintiff cannot recover under this provision.
Claim 8 -
Plaintiff alleges that Defendants conspired to violate Zuniga's rights. For reasons already discussed, Zuniga's claims cannot be pled by Plaintiff Bazemore.
Plaintiff's claim alleges a conspiracy by federal agents to conceal civil rights violations by failing to respond to his complaints and "passing the buck." For the same reasons that claim five fails, Plaintiff has shown no facts that in any way corroborate that an agreement was formed between two or more people to conspire to violate his rights. Furthermore, even if Plaintiff could show that a conspiracy has taken place, Plaintiff has suffered no damages nor have any conceivable civil rights been violated.
Claim 9 - Plaintiff alleges violation of 42 U.S.C. § 1983 for violation of his freedom to worship. Section 1983 does not provide a cause of action against federal officials acting under color of federal law. Zernial v. United States , 714 F.2d 431, 435 (5th Cir. 1988). The actions of U.S. border patrol agents were taken pursuant to federal law. Thus, Plaintiff cannot allege a § 1983 action. However, because Plaintiff appears pro se , the court construes this claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971). Under Bivens, Plaintiff may recover damages for any injuries suffered as a result of federal agents, not federal agencies, violating Plaintiff's constitutional rights. Channer v. Hall , 112 F.3d 214, 216 (5th Cir. 1987). Plaintiff's claims must fail because Plaintiff does not assert that his religious freedom was in any way encroached upon. His main objection was the alleged intrusive questioning about whether he practices any religion at all. Plaintiff would have us believe that this was an invasion of his privacy. However, Plaintiff did not have a privacy interest while he was at a United States inspection station trying to cross into the United States. Plaintiff was not the subject of an unreasonable search and seizure because he could have no subjective expectation of privacy such that society is prepared to recognize as reasonable. See United States v. Cardoza-Hinojosa , 140 F.3d 610 (5th Cir. 1998). Claim 10 - Claim 11 - Plaintiff alleges that the government Defendants violated his Fourteenth Amendment rights. The Fourteenth Amendment applies to state actors and not federal actors. See Bolling v. Sharpe , 347 U.S. 497, 499 (1954). Therefore, Plaintiff's Fourteenth Amendment claim against all federal actors must be dismissed. Claim 12 - Claim 13 - Plaintiff asserts that Defendants were negligent. As stated in its analysis of claim 1, the governmental Defendants are immune from such claims. Claim 14 - Claim 15 - Claim 16 - Plaintiff asserts a claim for battery. Like claims two and three, the Federal Tort Claims Act waives sovereign immunity of the government for battery. 28 U.S.C. § 2680(h). Under Texas law, "a person commits a battery if he intentionally or knowingly causes physical contact with another when he knows or should reasonably believe the other person will regard the contact as offensive or provocative." Baily v. C.S. , 12 S.W.3d 159, 162 (Tex.App.-Dallas, 2000, no pet.). Plaintiff does not allege that there was any physical contact between the agents and himself. Rather, he alleges they used verbal intimidation and other oral threats. Therefore, Plaintiff cannot state a claim for battery. Claim 17 - Like claims two, three and sixteen, the Federal Tort Claims Act waives sovereign immunity of the government for assault. 28 U.S.C. § 2680(h). Under Texas law a person commits an assault if he or she "intentionally or knowingly threatens another with imminent bodily injury." Hutchinson v. Brookshire Brothers, Ltd. , 284 F. Supp. 2d 459, 474 (E.D. TX 2003). Taking the facts as true, the evidence does not support that Plaintiff was threatened with imminent bodily injury because there is no showing of "proof of intent that the accused acted to intimidate the victim." Edwards v. State , 57 S.W.3d 677, 680 (Tex.App.-Beaumont 2001, pet. ref'd.). Instead, it appears that the border patrol agent was merely acting in her capacity as a border patrol agent facilitating the inspection. Claim 18 - Claim 19 - Plaintiff Bazemore alleges that the border patrol agents interfered with his attendance at the University of Texas at El Paso for which he receives federal financial assistance. The statute Plaintiff seeks relief under is a criminal statute. It is the United States Attorney's sole discretion whether to bring criminal actions. "Criminal statutes can neither be enforced by a civil action nor by private parties." Hassell v. United States , 203 F.R.D. 241, 244 (N.D. Tex. 1999). Thus, Plaintiff's claim must be dismissed as frivolous. Claim 20 - Plaintiff alleges that Defendants violated his Fifth and Fourteenth Amendment Rights. As noted above, Plaintiff may not bring a cause of action against federal defendants under the Fourteenth Amendment to the United States Constitution. Furthermore, the Fifth Amendment's guarantee not to be compelled to bear witness against oneself is only applicable in a criminal proceeding. U.S. CONST. amend. V. Thus, this claim must be dismissed as frivolous. Claim 21 - Plaintiff appearing pro se is not entitled attorney's fees pursuant to 42 U.S.C. § 1988. Cofield v. Atlanta, 648 F.2d 986988 (holding that "section 1988 is not to compensate a worthy advocate but to enable and encourage a wronged person to retain a lawyer"). IT IS THEREFORE ORDERED that Plaintiff's complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2).