Opinion
21-CV-9296 (AJN) (KHP)
03-22-2022
JESUS MENDOZA, Plaintiff, v. USCIS, Defendant.
THE HONORABLE ALISON J. NATHAN, United States District Judge
REPORT & RECOMMENDATION ON A MOTION TO DISMISS
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Jesus Mendoza, proceeding pro se, brings this action against U.S. Citizenship and Immigration Services (“USCIS”) asserting, what appears to be, a request directing USCIS to investigate various family members who allegedly are committing fraud, abuse, and other “illegal activities, ” including “drugg[ing] him with medication, for years.” (ECF No. 1.) Defendant has moved to dismiss the Complaint pursuant to 28 U.S.C. § 1915(e)(2), and Federal Rules of Civil Procedure (“FRCP”) 8, 12(b)(1) and 12(b)(6). For the reasons discussed below, I respectfully recommend that Defendant's motion to dismiss (ECF Nos. 14-16) be granted in its entirety.
BACKGROUND
On or about September 13, 2021, pro se Plaintiff Jesus Mendoza filed a complaint in the Supreme Court of the State of New York (“New York State Supreme Court”), naming USCIS as the Defendant. (ECF No. 1-1.) The Court construes the Complaint as seeking an order compelling USCIS to investigate the plaintiff's family for fraud, abuse, and involvement in illegal activities, including allegedly drugging him with medication and committing identity theft. Id. Plaintiff also added that he is suing USCIS because his family has been using fake social security numbers from dead people and is suing USCIS for $350,000 for damages for letting his family use fake social security identities. Id.
On November 10, 2021, Defendant removed this case to federal court pursuant to 28 U.S.C. § 1442(a)(1). (ECF No. 1.) On November 17, 2021, Defendants filed a motion to dismiss the case as frivolous pursuant to 28 U.S.C. § 1915(e)(2) and for lack of subject matter jurisdiction pursuant to FRCP 12(b)(1). (ECF Nos. 4-5.) On November 19, 2021, the Honorable Alison J. Nathan informed Plaintiff that he had 21 days after the service of a motion to amend the complaint once as a matter of course. (ECF No. 7.)
On December 3, 2021, Plaintiff filed a First Amended Complaint (“FAC”). (ECF No. 13.) The allegations center on Mendoza's mother (Natividad Simet) and aunt (Isabel Simet). Id. Plaintiff claims that both his mother and aunt are not lawfully present in the United States and that USCIS's failure to remove them from the United States has caused Mendoza harm warranting an award of $350,000. Id. Plaintiff states that his license was suspended in 2007 because he got sick taking care of his mom and that all of his disability money went to pay for medical bills and rent. Id. Plaintiff elaborates that in 2017 he got a stomach ache and they took him to the hospital and had to “put me a colonoscopy bag.” Id. When asked to describe his injuries, Plaintiff wrote that he has to drink quetiapine fumarate 50 mg to sleep, that he is bipolar, allergic to lithium medication, lithium has caused him constipation, and he has a colonoscopy bag. Id. As a result, he has not worked for six years, and he has a hernia that could get worse. Id. Plaintiff is “suing for $350,000, because [he] owes $6,000. Because colonscopy(sic) bag [he] threw out of [his] bed which cost $1,800, true religion pants (10) $400 each, $200, my Jordan sneakers, $700 (5) shoes, $300 each.” Id.
On December 17, 2021, Defendants filed another motion to dismiss asserting the same arguments. (ECF Nos. 14-16.) On December 20, 2021, the Honorable Alison J. Nathan referred this case to me for a report and recommendation on Defendant's motion. (ECF No. 17.)
On January 11, 2022, Defendant's motion was served on Plaintiff. (ECF No. 18.) On January 18, 2022, the undersigned ordered Plaintiff to respond to Defendant's motion by March 15, 2022. (ECF No. 20.) On February 8, 2022, the undersigned held an initial case management conference whereby the Court reminded Plaintiff (who was present in person) that he needed to respond to Defendant's pending motion to dismiss by March 15, 2022. (ECF No. 25.) The Plaintiff also provided his current address (which was the same address to which the motion was sent). Plaintiff did not file an opposition to Defendant's motion.
Plaintiff's failure to oppose Defendant's motions does not preclude the court from recommending disposition of its motion. See, e.g. White v. Mitchell, 2001 WL 64756, at *1 (E.D.N.Y. Jan. 18, 2001). Because a motion to dismiss tests only the legal sufficiency of a plaintiff's complaint, the court can determine a complaint's sufficiency as a matter of law based on its own reading of the complaint and knowledge of the relevant case law. McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000).
LEGAL STANDARD
Defendant moves to dismiss this case because it is frivolous pursuant to 28 U.S.C. § 1915(e)(2), it failed to comply with FRCP 8, the complaint lacks subject matter jurisdiction pursuant to FRCP's 12(b)(1), and the complaint fails to state a claim pursuant to FRCP 12(b)(6). Jurisdiction is a threshold inquiry. When presented with a motion under 12(b)(1), the Court must first determine if it has subject matter jurisdiction necessary to consider the merits of the action, before it considers the viability of the claim(s). Graham v. Select Portfolio Servicing, Inc., 156 F.Supp.3d 491, 499 (S.D.N.Y. 2016).
Federal courts have the inherent power under Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss claims in which it lacks subject matter jurisdiction. Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). “A federal court has subject matter jurisdiction over a cause of action only when it has authority to adjudicate the cause pressed in the complaint.” McIntosh v. United States, 2018 WL 1275119, at *4 (S.D.N.Y. Mar. 7, 2018) (quoting Bryant v. Steele, 25 F.Supp.3d 233, 241 (E.D.N.Y. 2014)). “A claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Morrison, 547 F.3d at 170. On a Rule 12(b)(1) motion the plaintiff, who invokes the Court's jurisdiction, bears the burden of proof to demonstrate that jurisdiction exists. McIntosh, 2018 WL 1275119, at. at 3-4. If the court determines that it lacks subject-matter jurisdiction, the court must dismiss the action. Fed.R.Civ.P. 12(h)(3).
The Court recognizes Plaintiff's pro se status and its obligation to construe the pleadings and allegations liberally for the purposes of deciding motions pursuant to Rules 12(b)(1) and 12(b)(6). See McKithen v. Brown, 481 F.3d 89, 96 (2d. Cir. 2007). The submissions of a pro se litigant should be interpreted to “raise the strongest arguments that they suggest.” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Finally, when a motion to dismiss is granted, the usual practice is to dismiss the claims without prejudice and grant plaintiff leave to amend the complaint. Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave [to amend] when justice so requires.”). Leave to amend should be granted unless there is evidence of undue delay, bad faith, undue prejudice, or futility. See Foman v. Davis, 371 U.S. 178, 182 (1962).
DISCUSSION
Plaintiff's claim of injuries allegedly emanating from Defendant's lack of enforcement of immigration law to remove his mother and aunt from the country - are liberally construed as raising a claim under the Federal Tort Claims Act (“FTCA”) against the United States, as the USCIS is not a proper defendant. See generally, Dockery v. Tucker, 2006 WL 5893295, at *7 (E.D.N.Y. Sept. 6, 2006) (adding the United States as a defendant, sua sponte, in a Federal Tort Claims Act claim brought by a pro se plaintiff); Shivcharan v. United States, 2005 WL 408046, at *1 (E.D.N.Y. Feb. 15, 2005) (“[u]nder the FTCA, ‘only the United States may be held liable for torts committed by a federal agency, and not the agency itself'”); Southeast Grand Street Guild Housing Devel. Fund Co., Inc. v. U.S. Dept. of Housing and Urban Devel., 1992 WL 73419, *7 (S.D.N.Y. Mar. 31, 1992) (“Individual agencies may not be sued directly on tort claims cognizable under the statute[, ] 28 U.S.C. § 2679(a)” and “[t]hus, on the tort claims asserted in the present action, the United States rather than [the agency] would be the proper defendant.”).
Under the principle of sovereign immunity, the United States may not be sued without its consent. United States v. Mitchell, 463 U.S. 206, 212 (1983). In the absence of an express waiver of immunity, an action against the United States or its agencies (including USCIS) does not fall within the judicial power of the federal courts. See Glidden Co. v. Zdanok, 370 U.S. 530 (1962). A waiver of this immunity, with respect to the claim asserted, is a prerequisite to subject matter jurisdiction. Up State Fed. Credit Union v. Walker, 198 F.3d 372, 374 (2d Cir. 1999). The Plaintiff bears the burden of establishing that his claims fall within an applicable waiver. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
Here, the FAC fails to allege any such waiver. While Plaintiff checks the box for “federal question” in his FAC, Plaintiff fails to assert or identify any relevant federal statute. Even construing his complaint liberally as raising a claim under the Federal Tort Claims Act (“FTCA”), no FTCA claim can be brought in federal court without first filing an administrative claim with the USCIS. See 28 U.S.C. § 2675(a); Decl of Quan K. Luong ¶ 4. Exhaustion of the claim with the relevant agency is mandatory. Collins v. United States, 996 F.3d 102, 109 (2d Cir. 2021). There is no indication that Plaintiff fulfilled this requirement, and because Plaintiff has failed to do so, the Court lacks subject matter jurisdiction over this action.
Importantly, the FTCA says that it can waive sovereign immunity under circumstances where a private person, not the United States, would be liable. United States v. Olson, 546 U.S. 43, 45-46 (2005). This means that the United States government waives sovereign immunity for torts committed by its employees “under the circumstances where the United States, . . . would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). For this liability to arise, a plaintiff's cause of action must be “comparable to a cause of action against a private citizen recognized in the jurisdiction where the tort occurred, and his allegations, taken as true, must satisfy the necessary elements of that comparable state cause of action.” Chen v. United States, 854 F.2d 622, 625-26 (2d Cir. 1988).
In this case, Plaintiff asserts that he was injured because USCIS did not enforce immigration laws and remove his mother and aunt from the United States. This conduct or lack thereof is not comparable to a cause of action against a private citizen. A private individual is not empowered to remove others from the United States because this is exclusively a governmental function. See Akutowicz v. United States, 859 F.2d 1122, 1125 (2d Cir. 1988) (“Where a private individual cannot engage in the relevant conduct because it is exclusively of a governmental nature, or is governed exclusively be federal law, then there is no jurisdiction under the FTCA.”) As articulated in Defendant's brief, the power of removal of a person not authorized to be here from the United States belong uniquely to the federal government. (ECF No. 16.)
In sum, Plaintiff fails to meet his burden to show this court maintains subject matter jurisdiction to adjudicate his FTCA claim relating to the alleged failure to remove his mother and aunt from the United States. Accordingly, I respectfully recommend granting Defendant's motion to dismiss pursuant to FRCP 12(b)(1). I also recommend it be dismissed with prejudice because any proposed amendments would be futile given that any additional facts would not confer this court with jurisdiction.
Given that subject matter jurisdiction has not been established, I do not reach Defendant's other arguments for dismissal under 28 U.S.C. § 1915(e)(2), FRCP 8, and 12(b)(6).
CONCLUSION
For the reasons set forth above, I respectfully recommend that Defendant's motion to dismiss (ECF No. 14.) be granted in its entirety with prejudice. The Clerk of Court is respectfully requested to mail a copy of this Report & Recommendation to Plaintiff at the address on file.