Wassouf et al v. U.S. Department of Homeland Security Immigration and Customs Enforcement et al

Filing 4

Judge Joseph L. Tauro: ORDER entered granting 2 Motion for Leave to Proceed in forma pauperis; denying without prejudice 3 Motion to Appoint Counsel. If the plaintiff would like to proceed with this action, he must, within sixty (60) days of the date of this memorandum and order, show good cause in writing why this action should not be dismissed. Failure to comply with this directive will result in dismissal of the action. (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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GEORGE WASSOUF
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al. ,
Defendants.

C.A. No. 11-10555-JLT

MEMORANDUM AND ORDER
August 16, 2011
TAURO, J.
For the reasons stated below, the Court (1) grants the plaintiff’s motion to proceed in forma
pauperis; (2) denies the motion for appointment of counsel; and (3) directs the plaintiff to show
cause why this action should not be dismissed
Background
Approximately ten years ago, George Wassouf was convicted in the United States District
Court for the District of New Hampshire of bank fraud. See United States v. Wassouf, Crim. No.
01-00001 (D.N.H.). He was sentenced to 33 months in prison and a 5-year period of supervised
release.
Following the completion of his prison sentence and unsuccessful appeal of his conviction,
he was ordered removed and ultimately was removed to Syria, where he now resides. On March
28, 2011, Wassouf brought this action–the fourth action he has brought in this Court challenging
his removal in one way or another. See Wassouf v. United States, C.A. No. 09-11738-RWZ;
Wassouf v. United States Immigration and Customs Enforcement, C.A. No. 10-10367-JLT;

Wassouf v. United States Dep’t of Justice, C.A. No. 10-11169-JLT. The present action is against
the United States Department of Homeland Security (“DHS”), Immigration and Customs
Enforcement (“ICE”), ICE employees involved in his detention and removal, the immigration
judge who ordered him removed, counsel for the United States in the removal proceedings, DHS
Secretary Janet Napolitano, former DHS Secretary Michael Chertoff, United States Attorney Eric
Holder, former United States Attorney Michael Mukasey, and the United States Department of
Justice.1 Wassouf also filed motions to proceed in forma pauperis and for appointment of counsel.
I.

Factual Allegations
The Court summarizes the facts as alleged in the complaint.
After being arrested on or about January 1, 2011 on the aforementioned bank fraud charge,

Wassouf appeared in front of Magistrate Judge Robert B. Collings of this Court for a bond hearing.
See United States v. Wassouf, M.J. No. 01-00402 (D. Mass.). Wassouf was released on a bond
secured by his mother’s residence bond and he was required to surrender his passport.
In August 2001, Wassouf was convicted of bank fraud after having pled guilty of the same.
He was sentenced in November 2001, at which time he sent a letter to Judge Collings asking for
the return of his “collateral.” Judge Collings sent a letter back to Wassouf indicating that “in a
[sic] ordinary case the plaintiff would have to file a motion, BUT stated that he issued an order and
or directed his clerk to return Plaintiff’s property.” Compl. ¶ 5. The “house papers” were
returned, but “somehow the respondents took ‘stole’ the Petitioner’s Passport, and it remained with
them since that time.” Id.

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Wassouf also refers to the defendants as “respondents.”
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On October 10, 2003, when Wassouf was no longer incarcerated, he was arrested by the
DHS and placed in immigration detention. He was released on bond the next month. On March
24, 2004, the immigration proceedings were terminated without prejudice because the direct
appeal of his federal bank fraud conviction was still pending.
On June 5, 2006, ICE Special Agent Gregory Nevano requested a “travel package” for
Wassouf, even though there were no removal proceedings pending against him and a new arrest
warrant had not been issued. Compl. ¶ 8. On October 5, 2006, Nevano issued a second arrest
warrant for Wassouf. The same day, Nevano “used” Wassouf’s passport to request travel
documents for Wassouf from the Syrian embassy. Id. ¶ 9. At this point, Wassouf had not yet been
arrested again or ordered to appear in front of an immigration judge.
On June 5, 2007, Wassouf was arrested by the DHS and placed in detention at the Suffolk
County House of Correction in Boston.2 He was not allowed to contact anyone, including an
attorney, for four days. Immediately thereafter, he was transferred to El Paso, Texas, to undergo
removal proceedings in front of Immigration Judge Robert S. Hough. These proceedings were
also dismissed without prejudice on August 15, 2007, despite Wassouf’s position that they should
have been dismissed with prejudice. Later on, media reported that, at the time Judge Hough was
hired by the Department of Justice, the hiring of immigration judges was inappropriately political.
Wassouf remained detained after August 15, 2007, even though a third arrest warrant had
not issued. On August 23, 2007, a new arrest warrant issued. Between August 15, 2007 and

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It appears that this arrest occurred just after Wassouf completed a six-month period of
incarceration for violation of the terms of his supervised released. See United States v. Wassouf,
Crim. No. 06-10300-NMG; see also Rodi v. Southern New England Sch. of Law, 389 F.3d 5, 19
(1st Cir. 2004) (courts may take judicial notice of proceedings in other relevant cases).
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August 23, 2007, the government obtained the records of Wassouf’s conviction necessary to
support its position that Wassouf was removeable.
On December 3, 2007, Judge Hough ordered that Wassouf be removed. Pending his
removal, Wassouf unsuccessfully sought release on bond. The government “used” Wassouf’s
passport to obtain travel documents. Compl. ¶ 14. Wassouf was deported to Syria on August 23,
2008.
II.

Legal Claims
The complaint is in 18 counts. It appears that all of the claims are asserted against all of

the defendants.
Count One is a claim for negligence and malicious prosecution under the Federal Tort
Claims Act, 28 U.S.C. §§ 2679 et seq. (“FTCA”). Wassouf claims that he was deprived of “a fair
and legal Immigration judge, causing his unlawful incarceration, and his unlawful deportation.”
Compl. ¶ 32. Wassouf represents that he presented an administrative claim to the Department of
Homeland Security, and that the claim was denied on October 14, 2010.
Counts Two, Five, Six, Nine, Fifteen, Sixteen, and Seventeen concern the plaintiff’s
passport. Count Two is a claim for “Unlawful Property Seizure” and “Invasion of Privacy,” in
which Wassouf alleges that the defendants violated his right to due process and his right under the
Fourth Amendment by unlawfully keeping his passport for years, “using” the passport after the
immigrations proceedings were dismissed twice “without any prior federal court approvals,
initiating any removal proceedings, and without the petitioner’s consent.” Id. ¶ 38. Wassouf
alleges that, as a result of the misuse of his passport, he was unlawfully removed from the United
States. In Count Five, Wassouf brings a claim for a violation of his Fifth Amendment right to due

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process on the ground that the unlawful detention and use of his passport was the result of the
defendants’ failure to adopt, promulgate, and implement appropriate policies. Count Six is a claim
for “Unlawful Confiscation of Personal Property,” in which Wassouf alleges that his passport was
unlawfully seized from him when he was taken in custody, that it should have been returned to him
when his bond money was returned or when the first or second immigration proceedings were
terminated. In Count Nine, Wassouf alleges that the defendants “adopted, promulgated, and
implemented a policy and practice of deliberately depriving Plaintiff of his personal property
[passport] without providing them with any remedy to recover that property.” Id. ¶ 85. He further
alleges that the defendants intentionally refused to return his passport, and that “they knew that by
the time these facts are discovered, then, this petitioner is no longer within the United States, and it
would be impossible for him to ask this Honorable court or any other court to intervene with his
case.” Id. ¶ 86.3 Count Fifteen contains a claim under the FTCA for trespass and “intentional
negligent supervision.” Wassouf asserts there in that the defendants “intentionally obtained and
used the petitioner’s passport, [w]ithout any courts’ [sic] approvals, consent, and or in a violation
of any procedures or any legal justifications.” Id. ¶ 121.
In Count Sixteen, labeled “Unreasonable Seizure, Abuse of Process; and negligence
Supervision [sic],” Wassouf alleges that the defendants unlawfully used his passport and refused to

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Wassouf alleges that when he “contacted the court and the defendants after his release, in
2003, requiring about his passport, no one seem [sic] to know anything about it,” and that he “just
discovered the truth and these new facts, after his unlawful deportation, after it was illegally used
to secure his unlawful deportation from the United States.” Id. ¶ 9. He claims that, through a
recent request under the Freedom of Information Act (“FOIA”), on or about May 2010, he
obtained documents showing that the government requested travel documents for him even in the
absence of a final order of removal. See Id. ¶¶ 8, 9, 116 & Exhibits G-1 and G-2. He implies that,
prior to receiving the papers requested under FOIA, he did not know that the government was still
in possession of his passport or that his passport had been “used” to request travel documents.
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offer him just compensation for it. He also complains that the defendants “did not attempt to use
peaceful means to resolve this case or defend its illegal actions” but instead “ignored the
petitioner’s requests.” Id. ¶ 126. The plaintiff also claims that he was “prevented by
circumstances beyond his control” from “fil[ing] a petition with this Honorable court to get his
property [passport] back” and from filing timely petitions for review, “which would have been an
automatic reversal of his unlawful removal order.” Id. ¶ 124. He claims that, as a result of these
“‘intentional’ negligent errors,” he would not have been removed. Id. ¶ 127. In Count Seventeen,
Wassouf repeats his allegations that the defendants misused his passport and then failed to provide
him appropriate compensation.
Counts Three, Four, and Seven are claims for illegal detention. Wassouf alleges that he
was wrongfully detained for one week (presumably from August 15 to August 23, 2007, between
the termination of the second and third immigration proceedings) “without a valid, signed warrant
or [Notice to Appear].” Id. ¶ 45. He claims that he had been promised by Judge Hough and the
government’s attorney that he would be released after the termination of the second immigration
proceeding, but that he was instead detained so that his unlawful removal could be assured. He
further claims that he was kept in illegal detention “based on his race, religion, and/or ethnic or
national origin.” Id. ¶ 73.
In Count Eight, Wassouf claims that he was denied his right to assistance of counsel
because he “was held for extensive periods of time in what is tantamount to criminal detention
without allowing him to contact [his] counsel or anyone, for over four days,” and then was
transferred to a different state, “forcing him to plea his own cause” without the assistance of
counsel. Id. ¶ 78. He further alleges that he was not brought to trial within a reasonable period of

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time, “resulting in oppressive and lengthy pretrial incarcerations,” and that, when he was brought
to trial, “his case was stated and assigned to unlawful [sic] Immigration judge.” Id. ¶ 79. In Count
Thirteen, Wassouf alleges that his Fifth Amendment rights were violated when the defendants
detained him “without allowing him to contact his attorney . . . or his consulate for four days, and
then transferring his case to a different states [sic], forcing him to plea his own case, and
subjecting him to a ‘communications blackout’ and other measures while in DHS detention that
interfered with is due process ‘abuse’, his access to lawyers and the courts.” Id. ¶ 110.
In Counts Ten and Twelve, Wassouf brings claims under the Alien Tort Claims Act, 28
U.S.C. § 1350 (“ATS”). In Count Ten, he claims that his “arbitrary detention” was in violation of
“customary international law” as “defined in multilateral treaties and other international
instruments, international and domestic judicial decisions, and other authorities.” Id. ¶ 92. He
does not identify the detention in question. In Count Twelve, he alleges that all of the misconduct
alleged in the complaint constituted “cruel, inhuman or degrading treatment in violation of the law
of nations.” Id. ¶ 105. Wassouf does not cite specific treaties or sources of international law in
either Count.
In Count Eleven, Wassouf brings a claim under Article 36 of the Vienna Convention of
Consular Relations, Apr. 24, 1963, 27 U.S.T. 77, T.I.A.S. No. 6820 (“Vienna Convention”), and a
claim for “Consular Notification.” He alleges that, although he was notified by arresting authority
of his rights under the Vienna Convention, he was not actually able to contact the Syrian consulate
because he was placed “in one facility, but the defendants claim to have him in a different facility .
. . where the phones were not working within that facility.” Compl. ¶ 98. He also claims that it
was a violation of his rights under the Vienna Convention and his right to due process for the

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defendants to request travel documents for Wassouf from the Syrian Consulate prior to initiating
removal proceedings.
Count Fourteen is a claim under the FTCA for intentional and negligent infliction of
emotional distress. Wassouf alleges that, in or around May 2010, he discovered that: (1) Judge
Hough was “illegal”; (2) the defendants “intentionally and fraudulently conceal[ed] the petitioner’s
final judgments on that very same case”; and (3) the defendants had stolen and illegally used his
passport. Count Fifteen contains a claim under the FTCA for trespass and “intentional negligent
supervision.” Wassouf asserts there in that the defendants “intentionally obtained and used the
petitioner’s passport, [w]ithout any courts’ [sic] approvals, consent, and or in a violation of any
procedures or any legal justifications.” Id. ¶ 121.
Count Eighteen is a not claim for relief. Wassouf asks therein for the Court to “consider
additional issues outside the pleading,” “not to dismiss this complaint for not stating what exact
action caused this or that violation,” “create its’ [sic] own cause of action,” and consider claims
that would otherwise be barred by the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231,
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Discussion
I.

Motion for Leave to Proceed In Forma Pauperis
Upon review of the plaintiff’s motion for leave to proceed in forma pauperis, the Court

concludes that the plaintiff lacks fund to prepay the filing fee. The Court therefore grants the
motion.

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II.

Screening of the Complaint
A.

Court’s Authority to Screen the Complaint

Where, as here, a plaintiff is allowed to proceed without prepayment of the filing fee,
summons do not issue until the Court reviews the complaint and determines that it satisfies the
substantive requirements of 28 U.S.C. § 1915. This statute authorizes federal courts to dismiss a
complaint sua sponte if the claims therein are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief against a defendant who is immune from such relief.
See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b). Further, a court has an obligation to inquire
sua sponte into its own subject matter jurisdiction. See McCulloch v. Velez, 364 F.3d 1, 5 (1st
Cir. 2004). In conducting this review, the Court liberally construes the complaint because the
plaintiff is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
B.

Challenges to Removal Proceedings or Execution of Removal

As this Court has already explained to Wassouf, see, e.g., Wassouf v. United States, C.A.
No. 09-11738, document #5, at 5 (D. Mass. Nov. 2, 2009), whether Wassouf’s claims are
interpreted as a direct or indirect challenge to his removal, or a direct attack on alleged misconduct
that resulted in his removal, the Immigration and Nationality Act, as amended by the REAL ID
Act, stripped this Court of jurisdiction to entertain such claims. Under the REAL ID Act, this
Court is without jurisdiction to entertain a challenge, even an indirect one, to his removal order.
Judicial review of an order of removal is only available before the appropriate court of appeals.
See 8 U.S.C. § 1252(a)(5). This is true whether the claim is brought under the Federal Tort Claims
Act or other federal statute, the United States Constitution, or state law. This is also true whether
Wassouf is attacking the government’s allegedly fraudulent conduct before the immigration court,

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the allegedly illegal hiring of Judge Hough, the use of Wassouf’s passport to obtain travel
documents, or any other alleged misconduct that led to Wassouf’s removal. That the plaintiff
alleges that the defendants’ conduct was outrageous does not alter the jurisdictional limitations of
this Court imposed by Congress.
Even if some of Wassouf’s claims concerning the immigration proceedings are distinct
from a challenge to a removal order, the Court is still without subject-matter jurisdiction over most
of his claims. In enacting 8 U.S.C. § 1252(b)(9), Congress attempted to direct challenges to
removal proceedings--not just to removal orders--through defined administrative channels. This
statute, entitled “Consolidation of questions for judicial review,” reads in pertinent part:
Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action taken
or proceeding brought to remove an alien from the United States . . . shall be
available only in judicial review of a final order under this section. Except as
otherwise provided in this section, no court shall have jurisdiction, by habeas
corpus under Section 2241 of Title 28 or any other habeas corpus provision . . . or
by any other provision of law (statutory or nonstatutory), to review such an order or
such questions of law or fact.
8 U.S.C. § 1252(b)(9). The Supreme Court has characterized this provision as a “general
jurisdictional limitation” and as an “unmistakable ‘zipper’ clause.” Reno v. Am.-Arab. AntiDiscrimination Comm., 525 U.S. 471, 482-83 (1999). The First Circuit has observed that the
expanse of the statute is “breathtaking,” Aguilar v. U.S. Immigration & customs Enforcement, 510
F.3d 1, 9 (1st Cir. 2007), as it encompasses “all questions of law and fact” and extends to both
“constitutional and statutory challenges,” 8 U.S.C. § 1252(b)(9). “As its text makes manifest, that
proviso was designed to consolidate and channel review of all legal and factual questions that arise
from the removal of an alien into the administration process, with judicial review of those
decisions vested exclusively in the courts of appeals.” Id. Thus, where a claim concerning a
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removal proceeding can “effectively be handled through the available administrative process,” it is
subject to the limitations on judicial review set forth in § 1252(b)(9). Id. at 11.
C.

Claim Under the Vienna Convention

Claim Eleven under Article 36 of the Vienna Convention4 fails because of the jurisdictional

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Article 36 of the Vienna Convention provides:

1.

With a view to facilitating the exercise of consular functions relating to
nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the
sending State and to have access to them. Nationals of the sending State
shall have the same freedom with respect to communication with and access
to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State if, within its
consular district, a national of that State is arrested or committed to prison
or to custody pending trial or is detained in any other manner. Any
communication addressed to the consular post by the person arrested, in
prison, custody or detention shall also be forwarded by the said authorities
without delay. T he said authorities shall inform the person concerned
without delay of his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a national of the sending
State who is in prison, custody or detention, to converse and correspond
with him and to arrange for his legal representation. They shall also have
the right to visit any national of the sending State who is in prison, custody
or detention in their district in pursuance of a judgment. Nevertheless,
consular officers shall refrain from taking action on behalf of a national who
is in prison, custody or detention if he expressly opposes such action.

2.

The rights referred to in paragraph 1 of this Article shall be exercised in
conformity with the laws and regulations of the receiving State, subject to
the proviso, however, that the said laws and regulations must enable full
effect to be given to the purposes for which the rights accorded under this
Article are intended.

Vienna Convention, Art. 36, 21 U.S.T. at 100-01, 596 U.N.T.S. at 292-94. The “sending State” is
the nation of the arrested foreign national, and the “receiving State” is the arresting nation.
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limits discussed above. Further, Article 36 does not provide a private right that is enforceable in
federal courts. See Gandara v. Bennett, 528 F.3d 823, 829 (11th Cir. 2008) (Vienna Convention
does not confer enforceable individual rights); Mora v. New York, 524 F.3d 183, 195 (2d Cir.
2008) (Article 36(1)(b)(third) does not provide for rights that can be vindicated through a civil
rights action or action under the ATS); Cornejo v. County of San Diego, 504 F.3d 853, 860 (9th
Cir. 2007) (Article 36 of the Vienna Convention does not create judicially enforceable rights that
may be vindicated in an action under 42 U.S.C. § 1983); United States v. Emuegbunam, 268 F.3d
377, 394 (6th Cir. 2001) (“[T]he Vienna Convention does not create a right for a detained foreign
national to consult with the diplomatic representatives of his nation that the federal courts can
enforce.”); cf. United States v. Li, 206 F.3d 56, 66 (1st Cir. 2000) (noting evidence of “a belief
among Vienna Convention signatory nations that the treaty’s dictates simply are not enforceable in
a host nation’s criminal courts,” and holding that suppression of evidence is not a remedy available
for violation of Article 36 of the Vienna Convention); United States Ademaj, 170 F.3d 58, 67 (1st
Cir. 1999) (“[T]he Vienna Convention itself prescribes no judicial remedy or other recourse for its
violation, let alone vacatur of a conviction.”); Anziani v. United States, 2007 WL 1959212, at *3
(D. Mass. July 5, 2007) (denying 2255 motion where litigant argued that he had been denied
access to consulate; “In any event, in the view of most courts, the Vienna Convention confers no
private right of enforcement on foreign nationals.”); but see Jogi v. Voges, 480 F.3d 822, 835-36
(7th Cir. 2007) (Article 36 does provide private right enforceable in a civil rights action). Further,
Wassouf does not allege how his inability to call the Syrian consulate actually injured him or that
the Syrian consulate attempted to contact him but was unable to do so because he was not
reachable by phone or because he had been moved to a different facility.

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D.

Claims Under the Alien Tort Statute

Wassouf’s claims under the ATS (Counts Ten and Twelve) for arbitrary detention and for
unspecified cruel, inhuman or degrading treatment fail to state a claim for relief. The ATS
provides, “The district courts shall have original jurisdiction of any civil action by an alien for a
tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C.
§ 1350. However, a claim under the ATS for federal employees acting within the scope of their
employment is barred by the Federal Employees Reform and Tort Compensation Act of 1988, or
the “Westfall Act,” 28 U.S.C. § 2679(b). This statute provides that an action against the United
States under the FTCA is the exclusive remedy “for injury or loss of property, or personal injury or
death arising or resulting from the negligent or wrongful act or omission of any employee of the
Government while acting within n the scope of his office.” 28 U.S.C. § 2679(b)(1). This
limitation does not apply to a civil action against an employee of the government “(A) which is
brought for a violation of the Constitution of the United States; or (B) which is brought for a
violation of a statute on the United States under which such action against an individual is
otherwise authorized.” 28 U.S.C. § 2679(b)(2). A claim under the ATS does not fit under either
exception. By definition, a claim under the ATS is not a claim for a constitutional violation, but
for a “violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. Further,
the ATS is not a statutory exception under (B), as the ATS is jurisdictional and does not create a
right of action. See Mohammed v. Rumsfeld, – F.3d–, 2011 WL 2462851, at *8 (D.C. Cir. June
21, 2011) (slip opinion) (claim under ATS did not fit under 28 U.S.C. § 2679(b)(2)(B)); cf. Sosa v.
Alvarez-Machain, 542 U.S. 692, 724 (2004) (“the ATS is a jurisdictional statute creating no new
causes of action”).

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E.

Claims Under the FTCA

To the extent that any of Wassouf’s claims under the FTCA are not precluded by the REAL
ID Act, he has failed to allege facts to support a claim under the FTCA. The United States
(including its various branches, departments, and agencies) enjoys immunity from suit except in
those instances in which it has expressly consented to be sued. See FDIC v. Meyer, 510 U.S. 471,
475 (1994). By passing the FTCA, Congress waived the sovereign immunity of the United States
for claims that fall within the purview of the statute. See 28 U.S.C. §§ 1346(b), 2671-2680;
Barrett ex rel. Estate of Barrett v. United States, 462 F.3d 28, 36 (1st Cir. 2006). However, a
plaintiff may not institute a claim under the FTCA in a federal district court until (1) the plaintiff
has filed an administrative claim with the appropriate Federal agency “within two years after such
claim accrues”; and (2) the agency finally denies the administrative claim or six months pass
without a final denial of the administrative claim--whichever comes first. 28 U.S.C. §§ 2401(b),
2675(a). Timely filing of an administrative claim and exhaustion of administrative remedies are
jurisdictional prerequisites to filing suit under the FTCA. See Roman-Cancel v. United States, 617
F.3d 37, 42 (2010).
Here, Wassouf alleges that he filed this action within six months of receiving the denial of
his administrative claim, but he does not identify the date on which he presented his administrative
claim. He does allege that he “timely” presented his claim with the Department of Homeland
Security, but the Court is not required to credit this conclusory allegation. See Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949-50 (2009).
F.

Claims for Violations of Constitutional Rights

To the extent that Wassouf’s claims under the United States Constitution for the retention

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of his passport and allegedly illegal detention can be considered to be separate from his challenge
to his removal, he has failed to state a claim for relief.
Under the doctrine enunciated in Bivens v. Six Unknown Namted Agents fo the Federal
Bureau of Narcotics, 403 U.S. 388 (1971), a plaintiff may “vindicate certain constitutionally
protected rights through a private cause of action for damages against federal officials in their
individual capacities.” DeMay v. Nugent, 517 F.3d 11, 14 (1st Cir. 2008). State law establishes
the statute of limitations for a Bivens claim. See Barrett ex rel. Estate of Barrett v. United States,
462 F.3d 28, 38 (1st Cir. 2006). Under Massachusetts law, a plaintiff bringing a claim for personal
injury or for a violation of his civil rights must file his complaint within three years of accrual of
the claim. See M.G.L. ch. 260, § 2A (actions for personal injuries must be brought within three
years of the time the claim accrued); M.G.L. ch. 260, § 5B (actions for civil rights actions must be
brought within three years of the time the claim accrued). Wassouf’s Bivens claims accrued when
he knew or had reason to know “of the existence and cause of the injury which is the basis of his
action.” Barrett, 462 F.3d at 38-39.5
With regard any Bivens claim that Wassouf was illegally detained from August 15-August
23, 2007, the plaintiff has not alleged any facts from which the Court may reasonably infer that the
claim did not accrue until March 28, 2008–three years prior to the filing of his lawsuit and six
months after the detention in question had ended. Wassouf suggests that, at the time the detention
occurred, he believed it was illegal because he had been told by the immigration judge and the

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Although the statute of limitations is an affirmative defense to a Bivens claim, and Fed. R.
Civ. P. 8(a) does not require a plaintiff to plead facts to avoid potential affirmative defenses, a
complaint can be dismissed for failure to state a claim if the allegations therein show that relief is
barred by the relevant statute of limitations. See Bock v. Jones, 549 U.S. 199, 215 (2007).
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prosecutor that he would be released after the second immigration proceeding terminated on
August 15, 2007.
With regard to any Bivens claim that Wassouf’s passport was not timely returned to him,
the Court likewise cannot reasonably infer that the claim did not accrue until March 28, 2008.
According to the complaint, Wassouf believed as early as November 2001 that the government had
wrongfully retained his passport.6 See Schomaker v. United States, 334 F3d. Appx. 336, 338 (1st
Cir. 2009) (Bivens claim for violation of Fourth Amendment arising out of federal officer’s failure
to release plaintiff’s property at the completion of criminal proceedings accrued when plaintiff
“knew or had reason to know that the government’s retention of the property became wrongful”).
Moreover, it does not appear that Wassouf had a right to retain his passport when he was
incarcerated, on supervised release, or undergoing removal proceedings. Immediately following
his release from prison, he was taken into immigration custody to undergo removal proceedings,
and it was reasonable for the government to retain his passport, especially in the absence of any
motion filed by Wassouf for the return of his passport. See Thye v. United States, 1996 WL
575941, at *1 (E.D.N.Y. Oct. 2, 1996) (arrestee not entitled to return of passport where deportation
proceedings were scheduled to take place when plaintiff released from custody); United States v.
Beras, 2003 WL 21136727, at *2 (S.D.N.Y. May 15, 2003) (denying convicted defendant’s motion

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Further, the Court notes that, according to a document filed by the government in a case in
which Wassouf sought a petition for a writ of coram nobis, Wassouf was notified in November
2001 that the Clerk of the United States District Court for the District of New Hampshire had
submitted his passport to the United States Immigration and Naturalization Service. See Wassouf
v. United States, C.A. No. 11-00051, document # 8-11 (D.N.H.) (November 27, 2011 letter from
the Clerk of Court to Immigration and Naturalization Service stating that Wassouf’s expired
Syrian passport was enclosed because Wassouf had recently been convicted of a felony in that
court; letter indicates a copy of the same was being sent to Wassouf).
16

under Fed. R. Crim. P. 41(g) for the return of his passport, which no longer had any evidentiary
value, because disposition of his passport had to await the result of removal proceedings); Berrum
v. United States, 2003 WL 1869248, at *1 (N.D. Ill. Apr. 9, 2003) (where judgment in criminal
case indicated that prisoner was a deportable alien, prisoner not entitled to have passport returned
to him).7
III.

Motion for Appointment of Counsel
Although the Court “may request an attorney to represent any person unable to afford

counsel,” 28 U.S.C. §1915(e)(1), a civil plaintiff lacks a constitutional right to free counsel, see
DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). The Court does not have the funds to pay
attorneys to represent plaintiffs in civil cases, and it is very difficult for the Court to find attorneys
who will accept appointment as pro bono counsel. To qualify for this scarce resource, a party must
be indigent and exceptional circumstances must exist such that the denial of counsel will result in
fundamental unfairness impinging on the party’s due process rights. See DesRosiers, 949 F.2d at
23. To determine whether there are exceptional circumstances sufficient to warrant the
appointment of counsel, a court must examine the total situation, focusing on the merits of the
case, the complexity of the legal issues, and the litigant’s ability to represent himself. See id. at
24.
As discussed above, the REAL ID Act precludes most of the plaintiff’s claim and the
plaintiff has failed to state a claim upon which relief may be granted. Therefore, exceptional
circumstances that would justify appointment of counsel do not exist.

7

The docket of the detention proceedings in front of Judge Collings does not indicate that
Judge Collings ordered the return of his passport.
17

Conclusion
Accordingly:
1.

The motion (#2) for leave to proceed in forma pauperis is GRANTED.

2.

The motion (#3) for appointment of counsel is DENIED.

3.

If the plaintiff would like to proceed with this action, he must, within sixty (60)

days of the date of this memorandum and order, show good cause in writing why this action should
not be dismissed for the reasons state above. Failure to comply with this directive will result in
dismissal of the action.

IT IS SO ORDERED.
8/16/2011
DATE

/s/ Joseph L. Tauro
UNITED STATES DISTRICT JUDGE

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