Salim v. Holder et al
Filing
12
ORDER to Dismiss in Part and to Draw Case by Judge Lewis T. Babcock on 2/25/14. Federal Bureau of Investigation is dismissed. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03175-BNB
MAMDOUH SALIM,
Plaintiff,
v.
ERIC HOLDER, U.S. Att. Gen.,
FEDERAL BUREAU OF INVESTIGATION (FBI),
CHARLES SAMUELS, JR., BOP Director, and
DAVID BERKEBILE, ADX Warden,
Defendants.
ORDER TO DISMISS IN PART AND TO DRAW CASE
Plaintiff, Mamdouh Salim, is a prisoner in the custody of the Federal Bureau of
Prisons at the ADX in Florence, Colorado. He initiated this action by submitting pro se a
Prisoner Complaint asserting a deprivation of his constitutional rights pursuant to 28
U.S.C. § 1331 and Bivens v. Six Unkown Named Agents, 403 U.S. 388 (1971).
On December 2, 2013, Magistrate Judge Boyd N. Boland reviewed the
Complaint and determined that it was deficient because Mr. Salim failed to allege the
personal participation of all named Defendants in a deprivation of his constitutional
rights. Magistrate Judge Boland directed Mr. Salim to file an Amended Complaint within
thirty days. Plaintiff filed an Amended Complaint on January 31, 2014. (ECF No. 9).
The Amended Complaint omits two formerly named Defendants, but adds a new
Defendant--the Federal Bureau of Investigation (FBI).
The Court must construe the Amended Complaint liberally because Mr. Salim is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not
act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110.
Mr. Salim has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915. Pursuant to § 1915(e)(2)(B)(i), the Court must
dismiss the action if Mr. Smith’s claims are frivolous or malicious. A legally frivolous
claim is one in which the plaintiff asserts the violation of a legal interest that clearly does
not exist or asserts facts that do not support an arguable claim. See Neitzke v.
Williams, 490 U.S. 319, 327-28 (1989). Subsection (e)(2)(B)(iii) of § 1915 requires a
court to dismiss at any time an action that seeks monetary relief against a defendant
who is immune from such relief. For the reasons stated below, the Court will dismiss
this action, in part, and draw the remainder to a presiding judge and, if appropriate, to a
magistrate judge.
Mr. Salim alleges in the Amended Complaint that he was arrested in Germany in
December 1998 and extradited to the United States based upon his alleged involvement
in the embassy bombings in Tanzania and Kenya. On November 1, 2000, while
detained in the Metropolitan Correctional Facility in New York awaiting trial, he stabbed
a correctional officer in the eye and later pleaded guilty to a charge of attempted
murder. Plaintiff is now serving a life sentence based on the attempted murder
conviction. Mr. Salim alleges that he has been subject to Special Administrative
Measures (SAMs) since January 1999.1 He alleges that Defendants Holder, Samuels,
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SAMs may be imposed as “reasonably necessary to protect persons against the risk of death or
serious bodily injury.” 28 C.F.R. § 501.3(a). With the Attorney General's approval, each SAM may be
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and Berkebile imposed or renewed the SAMs each year, without affording him
procedural due process. Mr. Salim asserts that the SAMs violate his First Amendment
rights because they restrict his access to the mail, the media, the telephone, and
visitors. He further claims that the renewal of the SAMs each year violates his
procedural due process rights because the removal form does not provide him with any
information concerning how he can have the restrictions removed. Applicant also
asserts an equal protection violation. He seeks declaratory and injunctive relief.
Mr. Salim may not maintain his constitutional claims against the FBI. “Absent a
waiver, sovereign immunity shield the Federal Government and its agencies from suit.”
Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). General jurisdictional
statutes such as 28 U.S.C. § 1331 do not waive the Government's sovereign immunity.
Lonsdale v. United States, 919 F.2d 1440, 1443-44 (10th Cir. 1990). Nor does the
declaratory judgment statute, 28 U.S.C. § 2201, itself confer jurisdiction on a federal
court where none otherwise exists. New Mexico v. Regan, 745 F.2d 1318, 1323 (10th
Cir.1984). Accordingly, the FBI will be dismissed as an improper party to this action
pursuant to 28 U.S.C. § 1915(e)(2)(B) because the federal agency is immune from suit
for constitutional claims.
After review pursuant to D.C.COLO.LCivR 8.1(b), the Court has determined that
imposed for up to one year. § 501.3(c). They may be extended in one-year increments, and modified from
year to year. Id. The inmate must be provided with written notification of the restrictions imposed and the
basis for these restrictions. § 501.3(b). However, “[t]he notice's statement as to the basis may be limited
in the interest of prison security or safety or to protect against acts of violence or terrorism.” Id.
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Mr. Salim’s claims against Defendants Holder, Samuels, and Berkebile do not appear to
be appropriate for summary dismissal and that the case should be drawn to a presiding
judge, and, if appropriate, to a magistrate judge. See D.C.COLO.LCivR 8.1(c).
Accordingly, it is
ORDERED that the Federal Bureau of Investigation is DISMISSED from this
action. It is
FURTHER ORDERED that Plaintiff’s claims against Defendants Holder, Samuels
and Berkebile shall be drawn to a presiding judge and, if appropriate, to a magistrate
judge, pursuant to D.C.COLO.LCivR 40.1(a).
DATED at Denver, Colorado, this 25th day of
February
, 2014.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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