Opinion
Civil Action No. 03-120 (RWR).
March 31, 2005
MEMORANDUM OPINION
Isidoro Rodriguez ("Rodriguez") brought this lawsuit on behalf of himself and his minor son, Isidoro Rodriguez-Hazbun ("Isidoro") against a number of individuals, organizations, and agencies, alleging that these defendants conspired to deprive him of his constitutional rights and committed violations of the Federal Tort Claims Act. Plaintiffs also petition for a writ of mandamus directing the Department of State to keep Isidoro safe in Colombia, assure Rodriguez access to Isidoro, and seek Isidoro's return to the United States. The federal defendants have moved for dismissal of the complaint under Rules 12(b)(1), (2), (4), (5), and (6) of the Federal Rules of Civil Procedure, alleging lack of subject matter and personal jurisdiction, insufficient process and service, and failure to state a claim, respectively. The private defendants have moved for dismissal pursuant to Rules 12(b)(1) and 12(b)(6).
In Counts One and Two, plaintiffs allege constitutional violations under the First, Fifth, and Ninth Amendments. Because plaintiffs have failed to serve process on the federal individual defendants in their individual capacities, and because these individuals are entitled to sovereign immunity from suits for money damages against them in their official capacities, the constitutional claims against these individuals will be dismissed. Because the federal organizations have sovereign immunity from suits for money damages, the constitutional claims will also be dismissed as to these defendants. Because the private organizations and some of the private individuals are not proper defendants under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the constitutional claims will be dismissed as to them. For the remaining individual private defendants, the constitutional claims will be dismissed as to them because, even if they are proper Bivens defendants, plaintiffs have not stated a claim against those defendants that would withstand qualified immunity.
In Count Three, plaintiffs allege a number of violations of the Federal Tort Claims Act. Because the United States has not waived sovereign immunity with respect to constitutional torts, because plaintiffs failed to present certain of their alleged non-constitutional tort violations at the agency level, and because, with regard to the alleged tort violation they did present at the agency level, they fail to state a claim upon which relief can be granted, plaintiffs' claims under the Federal Tort Claims Act must be dismissed.
In Count Four, plaintiffs allege, pursuant to 42 U.S.C. §§ 1985(3) and 1986, the existence of a conspiracy to violate their constitutional rights. Because plaintiffs fail to sufficiently state a claim that any alleged conspiracy was based on racial or other class-based animus, plaintiffs' claims under these statutes will be dismissed.
Because plaintiffs have failed to show that their right to a writ of mandamus, which they seek in Count Five and in a separately filed motion, is clear and indisputable, the request to issue a writ of mandamus will be denied.
Finally, plaintiffs filed a motion to disqualify me, pursuant to 28 U.S.C. § 455(b)(5)(i), along with an amended complaint adding me, among others, as a defendant. Because plaintiffs' motion and amended complaint are merely a transparent attempt at judge-shopping and forum-shopping, the motion to disqualify will be denied and the amended complaint will be stricken in its entirety.
BACKGROUND
I. PLAINTIFFS AND PREVIOUS LAWSUITSAccording to the facts alleged in the complaint, Rodriguez is an attorney admitted to the bar in Virginia who traveled to and resided in Colombia between 1987 and 1999. (Compl. at 28, 30.) He fathered a child, Isidoro, in 1989. (Compl. at 31.) Rodriguez subsequently returned to live in the United States in 1999. (Compl. at 34.) Isidoro and his mother, Amalin Hazbun Escaf ("Hazbun"), remained in Colombia. After Rodriguez moved to Virginia, Hazbun and Rodriguez agreed to have Isidoro visit his father in the United States on several occasions. Hazbun Escaf v. Rodriquez, 200 F. Supp. 2d 603, 607 (E.D. Va. 2002), aff'd, Escaf v. Rodriguez, No. 02-487, 52 Fed. Appx. 207, 2002 WL 31760202 (4th Cir. Dec. 11, 2002), cert. denied, 538 U.S. 1000 (2003). Rodriguez claims that he had a right of "visitation and right of access to Isidoro" based on a verbal divided custody agreement and written joint custody agreement he entered with Hazbun. (Pl.'s Omnibus Resp. at 4.)
Isidoro's third trip to visit Rodriguez in Virginia occurred during the months of June and July, 2001. Hazbun Escaf, 200 F. Supp. 2d at 607. On July 13, 2001, the day before Isidoro's scheduled return to Colombia, Rodriguez informed Hazbun that Isidoro would be remaining in the United States. Id. On the same day, Rodriguez filed a petition to modify the custody agreement between himself and Hazbun in the Juvenile and Domestic Relations Court of Fairfax County, Virginia. (Compl. Ex. 3a.) On August 15, 2001, Hazbun filed a Hague Convention Return Application with the Colombian Civil Authority, seeking Isidoro's return to Colombia under the Hague Convention on the Civil Aspects of International Child Abduction Act. Hazbun Escaf, 200 F. Supp. 2d at 607. Subsequently, on December 20, 2001, Hazbun filed a suit in the United States District Court for the Eastern District of Virginia seeking the return of Isidoro to Colombia under the Hague Convention, as implemented in the United States by the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601- 11610. See Hazbun Escaf, 200 F. Supp. 2d at 608. Rodriguez alleges that the defendants "conspired to file [the Hague Convention action], seeking and causing the expeditious shanghaiing of Isidoro against his wishes . . . from the United States to Colombia." (Compl. ¶ 38.)
On May 6, 2002, United States District Judge T.S. Ellis, III, of the Eastern District of Virginia issued a memorandum opinion holding that Rodriguez's retention of Isidoro in the United States violated Hazbun's custody rights, that Isidoro was not in grave risk of harm, that Isidoro's stated desire to remain in the United States did not bar his return to Colombia, and that ICARA and the Hague Convention required Isidoro's return to Colombia.See Hazbun Escaf v. Rodriquez, 200 F. Supp. 2d 603 (E.D. Va. 2002). On December 11, 2002, the United States Court of Appeals for the Fourth Circuit affirmed the district court's ruling and also concluded that "the proceedings in district court did not violate either Rodriguez's or Isidoro's rights." Escaf v. Rodriguez, No. 02-487, 52 Fed. Appx. 207, 2002 WL 31760202 (4th Cir. Dec. 11, 2002), cert. denied, 538 U.S. 1000 (2003).
Rodriguez subsequently filed the instant action alleging that various defendants conspired to deprive him and his son of their constitutional rights.
II. FEDERAL DEFENDANTS
With regard to the following federal defendants, plaintiffs allege that each "ha[s] and continues to engage in a custom, policy, or practice of disregarding and thereby violating the fundamental rights of United States citizens vis-a-vis their application and administration of the [Hague] Convention." (Compl. ¶¶ 58, 77, 103.) Plaintiffs also claim generally that "Defendants employees and agents intentionally conspired to deprive Rodriguez and Isidoro to their rights to equal protection and due process in whole or in part because of their being Hispanic." (Compl. ¶¶ 59, 78, 104.)
A. United States Department of State, The Office of Children's Issues, Bureau of Consular Affairs
Plaintiffs allege that defendants Office of Children's Issues, Bureau of Consular Affairs, and the U.S. Department of State are the entities responsible for the administration of the Hague Convention and ICARA. (Compl. ¶ 46.) The only specific act he alleges that these entities engaged in was "assist[ing] in the filing" of Hazbun's Convention action on December 20, 2001. (Compl. ¶ 74.)
B. Mary B. Marshall
Defendant Mary B. Marshall, whom plaintiffs sue in her individual and official capacities, is an employee and director of the Office of Children's Issues of the United States Department of State. (Compl. 23.) Plaintiffs appear to allege that Marshall "assisted in filing" Hazbun's Hague Convention action. (Compl. ¶ 74.) Plaintiffs also allege that Marshall sent letters to Fairfax Family Court on January 3, 2002 and to Judge Ellis on March 15, 2002. (Compl. ¶ 75.) They claim that these letters violated 42 U.S.C. §§ 11603- 11604 "by negligently seeking to circumvent" Rodriguez's family court action and by concealing information regarding Colombia. (Id.) Finally, plaintiffs claim that Marshall acted negligently by improperly authorizing the alleged conspiracy, allowing interference in Rodriguez's family court action, failing to train and properly supervise employees, and failing to assure access and communication between Rodriguez and Isidoro. (See Compl. ¶ 123.)
C. Robert McCannell, Knute E. Malmborg, Office of Legal Adviser for Consular Affairs
Plaintiffs allege that Robert McCannell is the Executive Director of the Office of Legal Adviser for Consular Affairs. (Compl. ¶ 24.) Plaintiffs allege that Knute E. Malmborg is an attorney adviser at the Office of Legal Adviser for Consular Affairs. (Compl. ¶ 25.) Plaintiffs sue McCannell and Malmborg in their individual and official capacities. Plaintiffs also name the Office of Legal Adviser for Consular Affairs, of the U.S. Department of State, as a defendant. (Compl. ¶ 21.) The only specific factual allegations made with regard to these defendants are that McCannell and Malmborg responded to Rodriguez's alleged FOIA request "only in response to express concerns" of the Fairfax Family Court, released to Rodriguez Hazbun's Hague Convention application only in Spanish, and "in violation of Rodriguez's right to petition the government, . . . refused to meet with Rodriguez." (Compl. ¶¶ 98-100, 102.) Rodriguez also asserts, apparently on the basis of the above alleged facts, that these defendants "conspired to conceal documents and provide falsely dated official documents." (Compl. ¶ 101.) Finally, plaintiffs claim that McCannell and Malmborg acted negligently by improperly authorizing the alleged conspiracy, allowing interference in Rodriguez's family court action, failing to train and properly supervise employees, and failing to assure access and communication between Rodriguez and Isidoro. (See Compl. ¶ 123.)
III. PRIVATE DEFENDANTS
With regard to the following private defendants, plaintiffs allege that each "ha[s] and continues to engage in a custom, policy, or practice [of disregarding] and thereby violating the fundamental rights of United States citizens vis-a-vis their application and administration of the [Hague] Convention." (Compl. ¶ 69; see Compl. ¶¶ 84, 96, 116.) Plaintiffs also claim generally that these defendants, or their employees and agents, "intentionally conspired to deprive Rodriguez and Isidoro to their rights to equal protection and due process in whole or in part because of their being Hispanic." (Compl. ¶¶ 70, 97, 117;see Compl. ¶ 85.)
A. National Center for Missing and Exploited Children, Guillermo Galarza, Nancy Hammer, Ernie Allen
The National Center for Missing and Exploited Children ("NCMEC") is a nonprofit corporation which plaintiff alleges acts as an instrumentality or agency of the United States. (Compl. ¶ 10.) Defendants Guillermo Galarza and Nancy Hammer are employees of the NCMEC. (Compl. ¶ 12, 13.) Plaintiffs allege that "[u]pon information and belief during the months of August and September 2001 . . . Galarza, and other unnamed and unknown employees of Defendant NCMEC began conspiring to act as fiduciary and/or attorneys for Hazbun." (Compl. ¶ 64.) Specifically, plaintiffs appear to claim that Galarza, on or about August 6, 2001, left a telephone message with Hazbun and Isidoro regarding Hazbun seeking the return of Isidoro to Colombia. (Compl. ¶ 61.) Additionally, Galarza and other unknown employees of NCMEC sent e-mails and telefaxes "advising and exerting influence on the Colombian Central Authority to quickly submit the Convention application" in an attempt to stop the suit in the Fairfax Family Court "and to restrict consideration under the more limited review of the Convention in the Federal Court. . . ." (Compl. ¶ 65.)
Plaintiffs also appear to allege that the NCMEC took some unspecified action that resulted in Hazbun's application "falsely alleg[ing] that Rodriguez had retained Isidoro against his will, and failed to advise of the dangers of the `zone of war' throughout Colombia" and that the NCMEC, Malmborg and McConnell falsified a document, apparently a supplement to Hazbun's Convention application. (See Compl. ¶¶ 66, 68.) Plaintiffs also claim that these defendants rejected Rodriguez's request to meet with them. (Compl. ¶ 67.) Finally, plaintiffs contend that NCMEC employees and unnamed individuals "talked with and sat behind Hazbun expressing obvious support to the Court of her action. . . ." (Compl. ¶ 107.)
Plaintiffs name Ernie Allen, President and Chief Executive Officer of the NCMEC, as a defendant, but do not allege any specific facts with regard to him. (See Compl. ¶ 11.) Plaintiffs only state that Allen, along with Hammer and Galarza, acted negligently by improperly authorizing the alleged conspiracy, allowing interference in Rodriguez's family court action, failing to train and properly supervise employees, and failing to assure access and communication between Rodriguez and Isidoro. (See Compl. ¶ 123.)
B. Patrick H. Stiehm
Defendant Patrick Stiehm is an attorney who provides volunteer legal services for the NCMEC. (Compl. ¶ 19.) Plaintiff specifically alleges that Stiehm made statements in open court at a Fairfax Family Court status hearing that he was there on behalf of NCMEC and would be filing a complaint in federal court to enforce the Hague Convention. (Compl. ¶ 80.) Plaintiffs also claim that Stiehm filed the federal district court action to enforce the Convention "as part of a conspiracy with NCMEC to develop a legal strategy based on sophistry and to use every `gaming' and sharp attorney practice to block and assume away the arguments presented regarding Isidoro and Rodriguez's fundamental rights . . . as well as to prevent information being placed into the court record regarding the dangerous situation in Colombia for U.S. citizens." (Compl. ¶ 83.) Finally, plaintiffs claim that Stiehm "filed various motions with both the Fourth Circuit and the District Court, to seek the immediate arrest of Isidoro by law enforcement. . . ." (Compl. ¶ 110.)
C. Proskauer Rose, LLP; Warren L. Dennis; Susan Brinkerhoff
These defendants are outside legal counsel for the NCMEC. (Compl. ¶ 86.) Plaintiffs generally assert that these defendants "intentionally conspired to develop a legal strategy . . . to block and prevent information" from being placed on the court record regarding the dangerous situation in Colombia, and conspired with the NCMEC to avoid his family court suit. (Comp. ¶¶ 87, 92). They appear to claim that specific acts that are evidence of the conspiracy are that Dennis and Proskauer Rose wrote a letter to Rodriguez making "false, defamatory, and libelous statements" regarding Rodriguez's attempts to meet with various other defendants; that Dennis wrote a letter to Rodriguez that did not address a notice Rodriguez sent to NCMEC regarding the alleged violations of his constitutional rights and his request for a meeting; that Dennis, Brinkerhoff, and Proskauer Rose referred to Rodriguez's family court action, in some unspecified forum or document, as "`Dad was petitioning for custody of the minor child,' so to obfuscate consideration" of plaintiffs' fundamental rights; and that they in some manner "assisted Defendant Stiehm in the conspiracy to file" the action in federal district court. (Compl. ¶¶ 88, 90, 93, 94.)
D. Miles Stockbridge, Stephen John Cullen
Plaintiffs allege that defendant Miles Stockbridge, LLP is a law partnership, that defendant Stephen Cullen is an attorney with Miles Stockbridge, and that each provides volunteer legal services for the NCMEC. (Compl. ¶¶ 17-18.) Plaintiffs claim that "throughout the Federal Convention Action, in furtherance of the conspiracy to apply the legal sophistry that the Convention effectively amend the fundamental rights of Rodriguez and Isidoro under the Constitution, Defendants . . . intentionally conspired with Defendant NCMEC." (Compl. ¶ 106.) Specifically, plaintiffs allege that these defendants entered a pro hac vice appearance on behalf of Hazbun on April 10, 2002, that Cullen made a statement in open court regarding plaintiffs' fundamental rights, that Cullen received a volunteer of the year award from the NCMEC, and that these defendants filed various motions with the Fourth Circuit and the district court. (Compl. ¶¶ 105, 108, 109, 110.)
DISCUSSION
Before a court may address the merits of a complaint, it must assure that it has jurisdiction to entertain the claims. See Scott v. England, 264 F. Supp. 2d 5, 8 (D.D.C. 2002) (citingSteel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)). Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a claim based on the court's lack of jurisdiction over the subject matter, and the plaintiff bears the burden of establishing that the court has subject matter jurisdiction. See Forrester v. United States Parole Comm'n, 310 F. Supp. 2d 162, 167 (D.D.C. 2004); see also McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936) (noting that the plaintiff "must carry throughout the litigation the burden of showing that he is properly in the court"). Because subject matter jurisdiction focuses on the court's authority to hear the claim, a court must "conduct a careful inquiry and make a conclusive determination whether it has subject matter jurisdiction or not," 5A Charles A. Wright Arthur R. Miller,Federal Practice Procedure: Civil 2d § 1350 (1990), by examining the complaint and, "where necessary, . . . [by] consider[ing] the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts."Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation omitted). If a defendant facially challenges the basis for subject matter jurisdiction, the plaintiffs' factual allegations are assumed to be true, though a defendant's challenge to the jurisdictional facts requires a resolution of those disputed facts. See Wright Miller, supra, § 1350; see also Artis v. Greenspan, 223 F. Supp. 2d 149, 154 (D.D.C. 2002). If the jurisdictional ground pled in the complaint is "`insufficient or entirely lacking but there are facts pleaded in the complaint from which jurisdiction may be inferred, then the [Rule 12(b)(1)] motion must be denied.'" Minebea Co., Ltd. v. Papst, 13 F. Supp. 2d 35, 38 n. 2 (D.D.C. 1998) (quoting Wright Miller, supra § 1350).A motion to dismiss for failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6) should be granted only where it appears that there is no set of facts in support of the claims which would entitle a plaintiff to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "To that end, the complaint is construed liberally in the plaintiff's favor, and . . . plaintiff [receives] the benefit of all inferences that can be derived from the facts alleged."Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). "However, the court need not accept inferences drawn by plaintiff if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Id. Thus, if plaintiff fails to allege sufficient facts to support a claim, that claim must be dismissed.
I. CONSTITUTIONAL CLAIMS
In Counts One and Two, Rodriguez charges that each of the defendants conspired to deprive him and his son of their rights to due process, equal protection, and access to the courts, and their right to petition the government under the First, Fifth, and Ninth Amendments. The gravamen of the complaint is that the defendants took actions in furtherance of an alleged conspiracy which allegedly resulted in the frustration of his custody suit in Juvenile and Domestic Court in Virginia. Specifically, plaintiffs claim that "due to Defendants `bad motive' and conspiracy," plaintiffs have been deprived of "the fundamental rights of both Rodriguez as Father, and Isidoro as a Son in their respective society and companionship, and their rights as U.S. citizens to be safe and remain in the United States without government interference pursuant to the Constitution. . . ." (Compl. ¶ 128.) Rodriguez asserts that he has stated a Bivens claim. (Compl. ¶ 2.) Under Bivens, the federal courts may recognize a cause of action for damages against an individual personally for unconstitutional conduct committed by the individual as a federal official acting under color of law.Bivens, 403 U.S. at 392-97. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001); Browning v. Clinton, 292 F.3d 235, 250 (D.C. Cir. 2002).
The federal defendants have moved to dismiss these claims arguing, inter alia, that plaintiffs' claims against the individual federal defendants in their personal capacities must be dismissed for lack of service of process, and that claims against the federal organizations and individual defendants in their official capacities must be dismissed because there has been no waiver of sovereign immunity for such claims. (Mem. Supp. Fed. Def.'s Mot. to Dismiss at 14, 25.) The private defendants have moved to dismiss these claims, arguing, inter alia, that the complaint fails to state a claim because it asserts only conclusory allegations, unsupported by alleged facts, of a conspiracy to deprive plaintiffs of their constitutional rights, that none of the private defendants are proper Bivens defendants, and even if the individual defendants were properBivens defendants, they would be entitled to qualified immunity from such claims. (Private Def.'s Mot. at 16-18.)
A. Service of Process on Defendants Marshall, McCannell, and Malmborg
In a Bivens action against a federal official in his or her individual capacity, the defendant must be served pursuant to rules that apply to individual defendants. See Simpkins v. District of Columbia Gov't, 108 F.3d 366, 369 (D.C. Cir. 1997); Delgado v. Fed. Bureau of Prisons, 727 F. Supp. 24, 26 (D.D.C. 1989); Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C. 1978). It is a plaintiff's responsibility to establish personal jurisdiction, and the plaintiff must ensure that service is properly effectuated by remedying any known defect in service.See Reuber v. United States, 750 F.2d 1039, 1049, 1052 (D.C. Cir. 1984), abrogated on other grounds by Kauffman v. Anglo-American School of Sophia, 28 F.3d 1223 (D.C. Cir. 1994);Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987).
Defendants contend in their motion to dismiss that plaintiffs failed to personally serve process on Marshall, McCannell, and Malmborg. (Mem. Supp. Fed. Def.'s Mot. to Dismiss at 14.) Plaintiffs moved for a declaratory judgment as to service of process on these defendants, alleging that service was accomplished by delivery of a summons and complaint to an employee from the Department of State's Office of Legal Advisor. (See Docket Entry #26.) In ruling on plaintiff's motion, the court noted that plaintiff's belief during the first month of litigation that personal service on these three defendants was effective in their personal capacities was not wholly unwarranted, and that plaintiff had moved promptly to resolve the status of this service issue after the effectiveness of the service was challenged. The court's Order gave plaintiff 85 days from March 10, 2004 to serve process upon Marshall, McCannell, and Malmborg in their individual capacities. (See Docket Entry #116.) To date, plaintiff has not provided notice that these defendants have been served in their individual capacities. As such, the plaintiffs' Bivens claims against Marshall, McCannell, and Malmborg in their individual capacities will be dismissed.
B. Sovereign Immunity for Bivens Claims Against Federal Organizations and Individuals in their Official Capacities
Plaintiffs, in Counts One and Two, also appear to be seeking recovery against the United States, the United States Department of State and its offices — The Office of Children's Issues and The Office of Legal Adviser for Consular Affairs — as well as the individual federal defendants — Marshall, McCannell, and Malmborg — in their official capacities.
Sovereign immunity bars all suits against the United States, including suits against federal officers in their official capacities, except when there has been a statutory waiver of such immunity. See United States v. Mitchell, 445 U.S. 535, 538 (1980) (explaining that the United States, as sovereign, is immune from suit except where it consents to be sued, and that a waiver of sovereign immunity cannot be implied but must be expressed with clear congressional intent); Kentucky v. Graham, 473 U.S. 159, 166 (1985) (an official-capacity suit is to be treated as a suit against the government entity itself). The United States has not waived its sovereign immunity with respect to constitutional tort claims. Clark v. Library of Congress, 750 F.2d 89, 103 n. 31, 104 (D.C. Cir. 1984) (in suit against Library and Librarian of Congress for violation of First Amendment rights, court held that sovereign immunity barred suit for money damages against Library and Librarian acting in his official capacity); Laswell v. Brown, 683 F.2d 261, 268 (8th Cir. 1982) (holding that, as to constitutional tort claim, the United States and its agencies were not proper defendants because of sovereign immunity, and explaining that Bivens does not waive sovereign immunity for actions against the United States). Furthermore, even where sovereign immunity has been waived, Bivens has not been extended to permit suit against a federal agency. See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994). "`[T]he purpose ofBivens is to deter the officer,' not the agency." Corr. Servs. Corp., 534 U.S. at 69 (quoting FDIC v. Meyer, 510 U.S. at 485).
Accordingly, any Bivens claims asserted against the United States, federal agencies, and individual defendants in their official capacities are barred by the doctrine of sovereign immunity and will be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1).
C. Private Entities Engaged in Alleged Constitutional Deprivation
The Supreme Court has held that there is no private right of action, pursuant to Bivens, for damages against private entities acting under color of federal law. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (in action alleging constitutional deprivation against private operator of halfway house, Supreme Court rejected the request to extend Bivens liability to new category of defendants); see also Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223, 1224 (D.C. Cir. 1994) (holding that an entity that is not a federal agency, but that is constrained by the Constitution in some or all of its acts solely because of lesser links to the federal government, is equally exempt from Bivens liability); Meuse v. Pane, 322 F. Supp. 2d 36, 38-39 (D. Mass. 2004) (holding that plaintiff could not sustain a Bivens action against broadcast network because "a Bivens claim is simply not available against a private entity even if that entity is acting under the color of federal law").
Plaintiffs assert that NCMEC "is a nonprofit corporation operating in all the States acting as an instrumentality or agency of the United States." (Compl. ¶ 10.) Plaintiffs thus seem to be asserting inconsistently that the NCMEC is both a nonprofit corporation, which NCMEC claims to be, and a government agency. Assuming that NCMEC is a nonprofit corporation, whether or not NCMEC was acting under the color of federal law, plaintiffs have no right of action for damages against it, and thus the constitutional claims for damages against NCMEC must be dismissed. Alternatively, construing the complaint to allege that the NCMEC is a government agency and accepting such a claim as true, the NCMEC has sovereign immunity from such claims as is explained above.
Plaintiffs also assert that defendants Proskauer Rose, LLP and Miles Stockbridge, LLP are law partnerships, each of which provides legal counsel or legal service to NCMEC. (Compl. ¶¶ 14, 17.) As to these private entities as well, whether or not they were acting under the color of federal law, plaintiffs have no private right of action for damages for alleged constitutional violations.
D. Alleged Constitutional Violations by Allen, Hammer, Galarza, Stiehm, Dennis, Brinkerhoff, and Cullen
Several defendants argue that the Bivens claims against them should be dismissed because they are private actors not acting under the color of federal law, and thus are not proper Bivens defendants. (Private Def.'s Mot. to Dismiss at 32.) "Critical to a successful Bivens claim" is that defendants "must have acted `under color of [federal] authority.'" Browning v. Clinton, 292 F.3d 235, 250 (D.C. Cir. 2002) (quoting Bivens, 403 U.S. at 389). "To be `under color of authority,' the conduct must be `cloaked with official power [and the official must] purport to be acting under color of official right.'" Id. (quoting Lopez v. Vanderwater, 620 F.2d 1229, 1236 (7th Cir. 1980)).
Proskauer Rose attorneys Warren Dennis and Susan Brinkerhoff, Miles Stockbridge attorney Stephen Cullen, and solo practitioner Patrick Stiehm, are private attorneys. Plaintiffs' complaint does not allege that any of these individuals or their firms are employees or officers of the United States, that they are government actors, or that they acted under the color of federal law. As such, they are not proper Bivens defendants.See Van Leeuwen v. United States, 868 F.2d 300, 301-02 (8th Cir. 1989) (affirming district court's ruling that plaintiffs did not state Bivens claim or § 1983 claim against certain defendants, because none was a government actor or in conspiracy with a government actor). Cf. Polk County v. Dodson, 454 U.S. 312, 318 (1981) (noting that "the Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor `under color of state law' within the meaning of § 1983"); McCord v. Bailey, 636 F.2d 606, 613 (D.C. Cir. 1980) ("In their capacities as representatives of a client in court, private counsel do not act under color of state law.").
Although plaintiffs appear to allege that these private attorneys conspired with government actors, plaintiffs' conclusory allegations of a conspiracy, unsupported by the alleged facts, are insufficient to recognize a cause of action against these private individuals under Bivens. See Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977); Meyer v. Reno, 911 F. Supp. 11, 15 (D.D.C. 1996) (dismissing plaintiff's claims for failure to state a claim upon which relief can be granted, as plaintiff failed to assert any factual basis to support the conclusion that a conspiracy existed) (citing Martin v. Malhoyt, 830 F.2d 237, 258 (D.C. Cir. 1987)).
Defendants Allen, Hammer, and Galarza are employees of the NCMEC, a nonprofit corporation. (See Compl. ¶¶ 10-13.) The defendants argue that "[a]lthough the NCMEC carries out certain Hague Convention and ICARA functions on behalf of the State Department, the NCMEC is simply a private non-profit corporation that has contracted with the Department of Justice and the State Department via a Cooperative Agreement to perform those functions." (Private Def.'s Mot. to Dismiss at 33.)
Whether Allen, Hammer, and Galarza acted under color of federal authority need not be resolved, however, because even if they did, the claims of constitutional violations against these defendants do not withstand the defense of qualified immunity. Under Bivens, the federal courts may recognize a cause of action for damages for unconstitutional conduct committed by a federal official acting under color of law. 403 U.S. at 392-97. Government officials performing discretionary functions, however, generally have "qualified immunity" from civil damages liability unless their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity "focuses on the objective legal reasonableness" of the action as measured by legal rules that were "clearly established" at the time the action was taken.Id. at 819.
Supreme Court decisions have recognized two kinds of immunity defenses. "For officials whose special functions or constitutional status requires complete protection from suit, [the Supreme Court has] recognized the defense of `absolute immunity.'" Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). For example, absolute immunity applies to legislators in their legislative functions, judges in their judicial functions, and certain officials of the Executive Branch. Id. "For executive officials in general, however, . . . qualified immunity represents the norm. . . . [H]igh officials require greater protection than those with less complex discretionary responsibilities." Id. Furthermore, the Supreme Court has recognized that while judicial and legislative functions, for example, require absolute immunity, this protection extends only to acts legislative or judicial in nature, and not to other acts of judges and legislators, even when taken in their official capacities. Id. at 811.
Whether an official has qualified immunity is resolved by a two-step inquiry. See Saucier v. Katz, 533 U.S. 194, 201 (2001); Maye v. Reno, 231 F. Supp. 2d 332, 336 (D.D.C. 2002). The threshold question is whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right[.]" Saucier, 533 U.S. at 201 (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. If a violation could be made out, the second inquiry is "whether the [constitutional] right was clearly established."Id.
In assuming the truth of the facts plaintiffs have alleged, construing the complaint liberally in the plaintiffs' favor, and giving the plaintiffs the benefit of all inferences that can be derived from the facts alleged, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint [or] accept legal conclusions cast in the form of factual allegations." Kowal, 16 F.3d at 1276. Furthermore, "complaints containing only `conclusory,' `vague,' or `general allegations' of a conspiracy to deprive a person of constitutional rights will be dismissed."Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977) (holding that plaintiffs' unsupported allegations did not suffice to state a claim of governmental conspiracy to deprive plaintiffs of their constitutional rights, explaining that the complaint failed to show a nexus between an alleged pattern of harassment and acts of defendants). "Diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct." Id. Cf. Contemporary Mission, Inc. v. United States Postal Serv., 648 F.2d 97, 106-08 (2d Cir. 1981) (where plaintiff sued Postal Service and its officials for interference with constitutional rights, court affirmed grant of summary judgment, without discovery, to defendants where plaintiff merely "colored its complaint with conclusory allegations of a wide-ranging conspiracy to deprive it of its constitutional right to due process and free exercise of religion" and when required to furnish affidavits demonstrating existence of genuine issue of material fact, "plaintiff responded by presenting immaterial factual inconsistencies and by reiterating its conclusory allegations of conspiracy").
Here, plaintiffs' complaint contains merely conclusory allegations that employees of the NCMEC were engaged in a conspiracy to deprive plaintiffs of their fundamental rights. For example, plaintiffs allege that these defendants "have and continue to engage in a custom, policy, or practice of a conspiracy to disregard and thereby violat[e] the fundamental rights of United States citizens," and that "in furtherance of its unlawful custom, policy or practice . . . Defendants employees and agents intentionally conspired to deprive [plaintiffs] to their rights. . . ." (See Compl. ¶¶ 69, 70.) Plaintiffs make many other broad-brush allegations, including that defendants "surreptitiously through legal sophistry use[d] the Convention to supercede the fundamental rights" of plaintiffs, that "[i]t is presumptively unconstitutional and violative of due process and access to the courts by a broad conspiracy to use political clout with the federal courts and to systematically take official action design[ed] to frustrate Isidoro suit in the Fairfax Family Court. . . ." (See Compl. ¶ 129). However, plaintiffs allege no specific facts which would be evidence of the existence of any such alleged conspiracy, or upon which an inference that such a conspiracy existed could be drawn.
To the extent that plaintiffs do make specific fact allegations regarding Galarza, Hammer, and Allen, they merely claim that Galarza left a telephone message with Hazbun regarding Isidoro, that Galarza sent e-mails and faxes to the Colombian Central Authority allegedly advising it to quickly submit Hazbun's Convention application, and that Hammer refused to meet with Rodriguez. They also claim that these defendants allowed interference in Rodriguez's family court action, failed to train and properly supervise employees regarding plaintiffs' rights, and failed to assure access and communication between Rodriguez and Isidoro. These alleged facts do not allege either a conspiracy to deprive plaintiffs of their rights or the deprivation of any constitutional right at all. Nor do the results of these alleged actions support an inference that they were undertaken as part of an actionable conspiracy. Plaintiffs were not deprived of due process, access to the courts, a right to petition the government, or a father/son relationship. Rodriguez was heard by both the U.S. District Court for the Eastern District of Virginia and the U.S. Court of Appeals for the Fourth Circuit. See Hazbun Escaf v. Rodriguez, 200 F. Supp. 603 (E.D. Va. 2002); Escaf v. Rodriguez, 52 Fed. Appx. 207, 2002 WL 31760202 (4th Cir. 2002) (unpublished), cert. denied, 538 U.S. 1000 (2003). Judge Ellis and the Fourth Circuit fully considered plaintiffs' custody claims and decided them. The Fourth Circuit also decided that the district court proceedings did not violate Rodriguez's parental rights or Isidoro's due process rights. Escaf v. Rodriguez, 52 Fed. Appx. 207 at 209. To the extent that plaintiffs are seeking relitigation of those issues, their claims are barred by the doctrine of collateral estoppel. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327-33 (1979) (holding that petitioners were collaterally estopped from relitigating question of whether proxy statement was false and misleading, because petitioners had "full and fair" opportunity to litigate their claims in a prior action brought by the SEC); Otherson v. Dep't of Justice, 711 F.2d 267, 273 (D.C. Cir. 1983) (collateral estoppel, or issue preclusion, is established when an issue was actually litigated and submitted for judicial determination in an earlier case, the issue was "actually and necessarily determined by a court of competent jurisdiction" in the first case, and preclusion in the second case does not cause any unfairness).
II. CLAIMS UNDER FEDERAL TORT CLAIMS ACT
Plaintiffs allege in Count Three that the acts of defendants Marshall, McCannell, Malmborg, Allen, Hammer, Galarza and other unknown individuals violated the Federal Tort Claims Act ("FTCA"), in that their actions violated plaintiffs' rights to the society and companionship of the father-son relationship and access to the courts, and constituted an "illegal shanghaiing of Isidoro from the United States," negligent supervision, intentional infliction of emotional distress, violation of freedom to petition the government, falsification of official documents, and invasion of privacy. (Compl. ¶¶ 139-142.) The federal defendants contend that the FTCA claims against them should be dismissed for failure to exhaust administrative remedies and for failure to state a valid claim under the FTCA. (Mem. in Support of Fed. Def.'s Mot. to Dismiss at 27-29.) The private defendants contend that only the United States is a proper defendant to an FTCA claim, and that the claim is foreclosed in any event by failure to file an administrative complaint against these defendants. (Private Def.'s Mot. to Dismiss at 35-37.)
The federal government, its agencies, and federal officials when sued in their official capacities, are shielded from tort actions for damages unless sovereign immunity has been waived.United States v. Testan, 424 U.S. 392, 399 (1976); United States v. Mitchell, 445 U.S. 535, 538 (1980). The FTCA provides for a limited waiver of sovereign immunity for common law torts when the government's employees act negligently within the scope of their employment.
However, the FTCA does not waive sovereign immunity with respect to constitutional torts. See FDIC v. Meyer, 510 U.S. 471, 477-78 (1994) ("the United States simply has not rendered itself liable under [28 U.S.C.] § 1346(b) for constitutional tort claims"); Laswell v. Brown, 683 F.2d 261, 267-68 (8th Cir. 1982); Birnbaum v. United States, 588 F.2d 319, 327-28 (2d Cir. 1978); Zakiya v. United States, 267 F. Supp. 2d 47, 56 (D.D.C. 2003); Meyer v. Fed. Bureau of Prisons, 929 F. Supp. 10, 13-14 (D.D.C. 1996); Kline v. Republic of El Salvador, 603 F. Supp. 1313, 1317 (D.D.C. 1985). Thus, plaintiffs' constitutional claims for access to the courts, to petition the government, violation of their rights to society and companionship of the father-son relationship, and any other of these charges which could be construed as constitutional torts, must be dismissed as there is no applicable waiver of sovereign immunity.
Plaintiffs claim a right to society and companionship in the father-son relationship under the Fifth Amendment. Plaintiffs' articulation of this right is vague at best. The private defendants' motion speculates that plaintiffs allege a fundamental Due Process Clause right of parents in the care and custody of their children. However, whether this right of companionship that plaintiffs claim is an established constitutional right need not be decided.
A prerequisite to filing a civil tort action under the FTCA is the requirement of presentment pursuant to 28 U.S.C. § 2675(a). A claimant must present his claim to the appropriate administrative agency, and the claim must be denied by the agency, before the claimant may institute an action for that claim under the FTCA. 28 U.S.C. § 2675(a); see GAF Corp. v. United States, 818 F.2d 901, 917-18 (D.C. Cir. 1987). Section 2675(a) requires a claimant to file with the agency: "(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum-certain damages claim." GAF Corp., 818 F.2d at 919. This notice requirement enables the agency "to investigate and ascertain the strength of a claim" and "to determine whether settlement or negotiations to that end are desirable." Id. at 920.
Rodriguez filed an administrative claim for relief with the United States Department of State on January 7, 2002. (Compl. ¶ 142; see Compl. Ex. 13, 22.) The complaint was denied on August 1, 2002. (Complaint ¶ 142; Ex. 21.) (See Compl. Ex. 23.) Plaintiff's administrative claim, in the form of a letter to Marshall, complains of actions violating his and his son's "fundamental Constitutional rights" and specifically alleges the following injuries: 1) that a letter from Marshall to Judge Valentine (of the Virginia Juvenile Domestic Court) misstated facts regarding Rodriguez's family court action and was "designed to obfuscate" Rodriguez's and Isidoro's fundamental rights "to modify the custody agreement"; 2) that Patrick Stiehm entered an appearance on behalf of the NCMEC in Rodriguez's family court action and stated that he would be filing a complaint in U.S. District Court under the Hague Convention and would be seeking a dismissal of the family court action, also allegedly "designed [to] obfuscate" Isidoro's fundamental rights; and 3) that Rodriguez "could only obtain telephone contact" with the NCMEC staff and Ms. Espie of Marshall's staff. (Compl. Ex. 13.) Plaintiff's letter also states that these acts "have caused emotional distress and apprehension of the possible forced return and detention of [Isidoro] in Colombia." (Compl. Ex. 13.)
After this denial, on September 15, 2002, plaintiff filed an amendment to his administrative complaint (see Compl. ¶ 142, Ex. 22), which was not considered by the Department of State as it was deemed untimely. (See Compl. Ex. 23.) Under the regulations to the FTCA, 28 C.F.R. § 14.2(c), an administrative claim "may be amended by the claimant at any time prior to final agency action. . . ."
This administrative complaint fails to present to the administrative agency all of the putative tort claims plaintiffs currently raise before the Court in Count Three of their complaint. Rodriguez's administrative complaint does not, and cannot reasonably be construed to, raise claims of "illegal shanghaiing of Isidoro from the United States," negligent supervision, falsification of official documents, or invasion of privacy. Thus, these claims must be dismissed as plaintiffs have failed to comply with the requirement of 28 U.S.C. § 2675. See Kline, 603 F. Supp. at 1317 (because plaintiffs failed to comply with 28 U.S.C. § 2675(a), their suit was barred).
The only of plaintiffs' common law tort claims in Count Three arguably raised at the agency level is intentional infliction of emotional distress. Intentional infliction of emotional distress "requires conduct so `"outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."'" Browning v. Clinton, 292 F.3d 235, 248 (D.C. Cir. 2002) (quoting Bernstein v. Fernandez, 649 A.2d 1064, 1075 (D.C. 1991) (quoting Restatement (Second) of Torts § 46 cmt. d (1965))). However, none of the factual allegations in the complaint that arguably were presented to the agency — which include misstating facts, entering an appearance in court, and declining to meet with Rodriguez — is so outrageous in character or so extreme in degree as to go beyond all possible bounds of decency. Thus, appellant can prove no set of facts in support of the intentional infliction of emotional distress claim. See Browning, 292 F.3d at 241, 248 (holding that where plaintiff made intentional infliction of emotional distress claim, relying upon threats and statements made which included terms such as "scurrilous" and "garbage," situation could have been disturbing to plaintiff but did not go beyond all possible bounds of decency or qualify as "utterly intolerable in a civilized community"); Rogala v. District of Columbia, 161 F.3d 44, 57-58 (D.C. Cir. 1998) (where plaintiff alleged emotional distress based on police officer's actions of threatening to arrest her, yelling at her, laughing at her, and detaining her for an unnecessarily length of time at a police station, the court found that the officer's "conduct did not approach the level of egregiousness necessary to sustain a claim for intentional infliction of emotional distress").
Plaintiffs appear to concede that they are not raising any common law tort claims in Count Three. In their opposition to the defendants' motions to dismiss, plaintiffs state that the defendants "are confused — the FTCA claim was based on . . . the negligent actions to violate the rights under the Treaty and ICARA of the right of Isidoro to have the Fairfax Family Court hear the Treaty claim" and that the defendants' actions were "designed to deprive Rodriguez and Isidoro of their fundamental rights — so to prevent a determination that the Treaty was unconstitutional as to efforts to take Isidoro out of the United States." (Pl.'s Omnibus Resp. in Opp. to Def.'s Motions to Dismiss at 29-30.)
III. CLAIM OF CONSPIRACY TO VIOLATE CIVIL RIGHTS UNDER 42 U.S.C. § 1985(3) AND ACTION FOR NEGLECT TO PREVENT UNDER § 1986
In Count Four, plaintiffs allege that "some or all of the [d]efendants and others" conspired to violate their constitutional rights based on a discriminatory animus towards United States Hispanic men, in violation of 42 U.S.C. §§ 1985(3) and 1986. Specifically, plaintiffs claim that "there was a Meeting of the Minds among [the defendants] regarding their desire to violate and deprive Rodriguez and Isidoro based on being Hispanic United States citizens of the equal privileges and immunities under fundamental constitutional civil rights in the society and companionship in the father/son relationship, access to the Courts, and for Isidoro to stay in the United States." (Compl. ¶ 144.) Plaintiffs incorporate by reference all other facts alleged in their complaint in support of their conspiracy claim. (See Compl. ¶ 143.)
Section 1985(3) prohibits conspiracies to deprive any person of the equal protection of the law. 42 U.S.C. § 1985(3). Plaintiffs' §§ 1985(3) claim against the federal defendants must be dismissed because it is barred by the doctrine of sovereign immunity. See Hohri v. United States, 782 F.2d 227, 245 n. 43 (D.C. Cir. 1986) (holding that § 1985, by its terms, does not apply to actions against the United States), vacated on other grounds, 482 U.S. 64 (1987); Brug v. Nat'l Coalition for the Homeless, 45 F. Supp. 2d 33, 40 (D.D.C. 1999); Graves v. United States, 961 F. Supp. 314, 318 (D.D.C. 1997).
The private defendants argue for dismissal on the ground that plaintiffs failed to allege facts that would demonstrate that the defendants acted out of racial animus. Plaintiffs "suing under § 1985(3) must allege: (1) a conspiracy; (2) for the purpose of depriving any person or class of persons of the equal protection of the laws, or of privileges and immunities under the law; (3) motivated by some class-based, invidiously discriminatory animus; (4) whereby a person is either injured in his person or property, or is deprived of any right or privilege of a citizen of the United States." Brug, 45 F. Supp. 2d at 40 (citing Graves, 961 F. Supp. at 320.)
Moreover, "[t]o sufficiently state a cause of action the plaintiff must allege some facts that demonstrate that his race [or other class-based animus] was the reason for the defendant[s'] [actions]. [A] failure to allege such facts render[s] [a] discrimination claim under . . . § 1985 incomplete." Jaffree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982) (where plaintiff's amended petition seeking writ of mandamus alleged that defendant had not investigated plaintiff's charges because of his race, and the only facts underlying that claim were that "the plaintiff is `Brown'" and "that his charges have not been investigated," court affirmed dismissal of the claim on the basis that allegations were conclusory); see Beran v. United States, 759 F. Supp. 886, 893 (D.D.C. 1991) (dismissing plaintiff's § 1985 claim in light of fact that plaintiff presented no facts to indicate that alleged conspiracy was prompted by racial or classbased animus); Maye v. Reno, 231 F. Supp. 2d 332, 339 (D.D.C. 2002) (holding that plaintiff failed to allege the requisite elements of a claim under any section of § 1985, for, among other reasons, plaintiff "provided insufficient allegations that he was treated differently from other similarly situated individuals"); Thomas v. News World Communications, 681 F. Supp. 55, 69 (D.D.C. 1988) (where plaintiffs claimed that alleged torts were motivated by religious animus, court held that plaintiffs failed to allege with sufficient specificity that defendants were motivated by discriminatory animus; where plaintiffs did expressly allege that defendants were motivated by religious animus, they also alleged other, non-actionable motivation, and "fail[ed] to specify any evidence that would support any of these allegations"). Here, plaintiffs claim that defendants conspired against them "in whole or in part because of their being Hispanic," and that they neglected to prevent violations of plaintiffs' fundamental rights "based on invidious discriminatory animus against Rodriguez and Isidoro as U.S. citizens Hispanic men," but plaintiffs allege no facts, which if taken as true, would support such a claim.
Section 1986 provides a right of action for damages against a person who, "having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this Title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed. . . ." 42 U.S.C. § 1986. "The language of this provision establishes unambiguously that a colorable claim under § 1985 is a prerequisite to stating an adequate claim for neglect to prevent under § 1986." Thomas, 681 F. Supp. at 72 (citing Mollnow v. Carlton, 716 F.2d 627, 632 (9th Cir. 1983)); see Dowsey v. Wilkins, 467 F.2d 1022, 1026 (5th Cir. 1972). Here, since plaintiffs have failed to state a claim under § 1985, plaintiffs' claims under 42 U.S.C. § 1986 will be dismissed.
IV. WRIT OF MANDAMUS
Plaintiffs also request a writ of mandamus directing the U.S. Department of State to "keep [Isidoro] safe while in Colombia, assure access and unhindered communication with Isidoro, and to seek [Isidoro's] . . . immediate return to the United States." (Compl. at 38-39.)
A writ of mandamus is "an extraordinary remedy, to be reserved for extraordinary situations." Nat'l Ass'n of Criminal Defense Lawyers, Inc. v. United States Dep't of Justice, 182 F.3d 981, 986 (D.C. Cir. 1999). For a writ of mandamus to issue, "the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires." Kerr v. United States Dist. Court for Northern Dist. of California, 426 U.S. 394, 403 (1976). In addition, the party seeking the writ must satisfy "the burden of showing that [his] right to issuance of the writ is `clear and indisputable.'" Id. (internal quotations omitted). Furthermore, "issuance of the writ is in large part a matter of discretion with the court to which the petition is addressed."Id.
Here, plaintiffs cannot establish that their right to issuance of the writ is "clear and indisputable." Indeed, the writ of mandamus that plaintiffs seek in this district would circumvent the order issued by the court in the Eastern District of Virginia requiring that Isidoro return to Colombia. Plaintiffs have neither presented any authority supporting the power of a district court to aid petitioners in achieving such judicial manipulation, nor established that the judicial process he invoked in Virginia was unavailable to adjudicate his case. The writ will be denied.
V. MOTION TO DISQUALIFY AND AMENDED COMPLAINT
Plaintiff Rodriguez filed a motion to disqualify me from this matter and to appoint a judge outside of the District of Columbia and the Fourth Circuit. Rodriguez claims that since plaintiffs have filed an amended complaint naming me as a defendant, I am required to disqualify myself pursuant to 28 U.S.C. § 455(b)(5)(i).
Section 455(b)(5)(i) states that a judge "shall . . . disqualify himself" when he "[i]s a party to the proceeding. . . ." 28 U.S.C. § 455(b)(5)(i). However, courts have construed this section as not requiring automatic disqualification. Anderson v. Roszkowski, 681 F. Supp. 1284, 1289 (N.D. Ill. 1988) (citations omitted), aff'd, 894 F.2d 1338 (7th Cir. 1990). See, e.g., Tapia-Ortiz v. Winter, 185 F.3d 8, 10 (2d Cir. 1999) (holding that where appellant indiscriminately named all then-current Second Circuit judges as defendants, under the "rule of necessity" the court was not disqualified from resolving the appeal, despite § 455(b)(5)(i)). For example, "courts have refused to disqualify themselves under Section 455(b)(5)(i) unless there is a legitimate basis for suing the judge" in order to prevent plaintiffs from "judge-shopping."Anderson, 681 F. Supp. at 1289 (citing In re Martin-Trigona, 573 F. Supp. 1237, 1243 (D. Conn. 1983)). As one commentator has explained:
A judge who is named as a defendant in a plaintiff's amended complaint is not required to disqualify himself or herself under 28 U.S.C.A. § 455(b)(5)(i) unless there is a legitimate basis for suing the judge. For a judge to be disqualified simply because the plaintiff has sued the judge would be to allow the plaintiff to manipulate the identity of the decision-maker and thus to engage in judge-shopping.
32 Am. Jur. 2d Federal Courts § 149. In Anderson, the plaintiffs filed an amended complaint naming the current judge sitting in the case as a defendant, and renewed a previously filed motion to disqualify all of the judges in the Seventh Circuit and to transfer the case to a judge out of the Seventh Circuit. 681 F. Supp. at 1287-88. The court held that it was not required to disqualify itself under Section 455(b)(5)(i), explaining:
It is apparent to the Court that plaintiffs do not have a legitimate basis for suing me, my secretary, and my minute clerk. None of us were sued in plaintiffs' initial complaint; we were added as defendants only after I dismissed plaintiffs' Complaint. . . . To disqualify myself simply because plaintiffs have sued me would be to allow plaintiffs to manipulate the identity of the decisionmaker and to engage in "judge-shopping". . . . If this Court were to disqualify itself . . . plaintiffs would sue the new district judge and so on and so on. The Court will not allow plaintiffs to impede the administration of justice by suing every district judge . . . until their case is transferred out of the Seventh Circuit.Id. at 1289.
Plaintiffs here have filed an amended complaint naming me, the United States District Court for the District of Columbia, the United States Courts of Appeals for the District of Columbia and Fourth Circuits and some of their judges, the Supreme Court of the United States, the Chief Justice of the United States, as well as other judges, organizations, and individuals. Plaintiffs' amended complaint appears to mirror in substance the original complaint, with a few additional defendants and causes of action. As in Anderson, it is apparent that plaintiffs do not have a legitimate basis for suing me or these other newly-named defendants. Rather, plaintiffs' amended complaint and motion to disqualify are merely transparent attempts to judge-shop and forum-shop. This is all the more evident given plaintiffs' previous motion requesting my recusal in this case pursuant to 28 U.S.C. §§ 144 and 455(a) (see Docket Entry #73), which was denied. (See Docket Entry #114.) Because the thrust of plaintiffs' amended complaint clearly appears to be an effort to forum-shop and judge-shop, it will be stricken it its entirety.
CONCLUSION
Plaintiffs cannot proceed with their claims of constitutional violations under Bivens as to any of the defendants. Plaintiffs failed to serve process on the federal individual defendants in their individual capacities, and these individuals are entitled to sovereign immunity from suits for money damages against them in their official capacities. Additionally, the federal organizations have sovereign immunity from suits for money damages. The court thus does not have subject matter jurisdiction over these claims. As to the private organizations and some of the private individuals, they are not proper Bivens defendants. As to the other individual private defendants, even if they are proper Bivens defendants, plaintiffs have not stated a claim against them that would withstand qualified immunity.The court also lacks subject matter jurisdiction over the plaintiffs' claims of constitutional torts under the Federal Tort Claims Act, as the United States has not waived sovereign immunity with respect to constitutional torts. Additionally, plaintiffs failed to present certain of their alleged non-constitutional tort violations at the agency level, and, with regard to the alleged tort violation they did present at the agency level, they fail to state a claim upon which relief can be granted.
Plaintiffs have also failed to allege facts supporting the existence of a conspiracy based on racial or other class-based animus sufficient to state a claim under § 1985(3). As such, they have also failed to state a claim under § 1986. Furthermore, plaintiffs have failed to show that their right to a writ of mandamus is clear and indisputable.
Finally, plaintiffs' recent motion to disqualify and their amended complaint are nothing more than a transparent attempt at judge-shopping and forum-shopping.
Accordingly, plaintiffs' motion to disqualify will be denied, the amended complaint will be stricken in its entirety, and plaintiffs' original complaint will be dismissed pursuant to Rules 12(b)(1) and 12(b)(6). An Order accompanies this Memorandum Opinion.