Felix v. US Department of Homeland Security, US Immigration and Customs Enforcement et al

Filing 31

///ORDER approving 8 Report and Recommendation; denying without prejudice 12 Motion to Amend 1 Complaint for the reasons stated in this order. The Clerk is directed to enter judgment and close the case. So Ordered by Chief Judge Joseph N. Laplante.(cmp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Marc Felix Jr. et al.
v.

Civil No. 13-cv-432-JL

Janet Napolitano, Secretary,
United States Department of
Homeland Security/Immigration
and Customs Enforcement, et al.

O R D E R
Before the court for consideration is the magistrate
judge’s October 25, 2013, report and recommendation (doc. no. 8)
in this matter.

Also pending before the court is plaintiff Marc

Felix’s motion (doc. no. 12) for leave to amend his complaint to
add the signatures of other named plaintiffs to the complaint.
For the reasons stated herein, the court now: (1) approves the
report and recommendation (doc. no. 8); (2) denies the motion to
amend (doc. no. 12); and (3) dismisses the claim pending in this
court as moot.
Background
1.

Failure to Protect Claim
After conducting its preliminary review of the complaint

(doc. no. 1) in this action, the magistrate judge issued an
order (doc. no. 7) directing service of one claim in the

complaint that asserted that Brian Churchill had failed to
protect Felix from harm, in violation of Felix’s Fifth Amendment
right to substantive due process. 1

As to that claim, Felix

sought a stay of deportation and an injunction directing the
defendant to provide him with certain vaccinations prior to his
deportation to Haiti.
After holding a hearing on the requested injunctive relief,
the magistrate judge, on November 18, 2013, issued a report and
recommendation recommending that the requests for stay and an
injunction be denied (doc. no. 23).

That recommendation was

approved and adopted by the district judge the same day.

Felix

was subsequently removed to Haiti.
On November 20, 2013, Felix filed a notice of appeal (doc.
no. 25) of the denial of the stay and preliminary injunction.
On May 22, 2014, the First Circuit issued the following order:
After careful consideration, we dismiss the appeal.
The appellant has already been removed, and we cannot
grant effective relief. Since he has no legally
cognizable interest in the resolution of the appeal,
1

In the report and recommendation issued October 25, 2013
(doc. no. 8), the magistrate judge characterized the claim
against Churchill as arising under Bivens v. Six Unknown Fed.
Narcotics Agents, 430 U.S. 338 (1971). On November 15, 2013,
the court issued an order (doc. no. 19) reframing Felix’s
cognizable claim as “a claim for an injunction, based on the
federal courts’ equity jurisdiction to enforce the dictates of
the [Fifth] Amendment.” Id. (internal quotation marks and
citation omitted).

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the case is moot. We lack jurisdiction to decide moot
cases. . . . The appeal is dismissed.
Felix v. U.S. Dep’t of Homeland Sec., No. 13-2445 (1st Cir. May
22, 2014) (internal citations omitted) (emphasis in original).
The claim served in this matter (doc. no. 1) sought only
injunctive relief directing the government to make certain
vaccines available to plaintiff prior to deportation to Haiti.
Accordingly, because Felix has now been removed, his claim for
pre-removal injunctive relief is moot.

This court, like the

First Circuit, lacks jurisdiction to decide moot cases.

See Am.

Civil Liberties Union of Mass. v. U.S. Conference of Catholic
Bishops, 705 F.3d 44, 52 (1st Cir. 2013) (“The doctrine of
mootness enforces the mandate that an actual controversy must be
extant at all stages of the review, not merely at the time the
complaint is filed.” (internal quotation marks and citation
omitted)); see also Coll. Std. Magazine v. Student Ass’n of the
State Univ. of N.Y., 610 F.3d 33, 35 (2d Cir. 2010) (per curiam)
(mootness is an aspect of subject matter jurisdiction that the
court must raise sua sponte).

The failure to protect claim is

therefore dismissed.

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II.

Other Claims, Plaintiffs, and Defendants
The October 25, 2013, report and recommendation (doc. no.

8) recommended that all of the named plaintiffs other than Felix
(eight individuals detained pending deportation and a “class of
similarly situated individuals”) be dismissed from this action.
The magistrate judge also recommended dismissal of Felix’s
claims to the extent they were asserted under 42 U.S.C. §§ 1981
and 1983, and an equal protection claim arising under Bivens v.
Six Unknown Fed. Narcotics Agents, 430 U.S. 338 (1971).

After

consideration of the relevant objections, the report and
recommendation (doc. no. 8) is approved and the remaining
plaintiffs, defendants, and claims asserted in the action are
dismissed.
III. Motion to Amend
Prior to this action being rendered moot, plaintiff sought
leave to file an amended complaint to include the signatures of
the other named plaintiffs.

Because the claims against Felix

are dismissed by this order, and because no proposed amended
complaint was ever filed that included the signatures of any
plaintiff other than Felix, see LR 15.1(a), the motion to amend
is denied, without prejudice to any individual filing a
complaint on his or her own behalf.

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Conclusion
For the foregoing reasons, the court now orders as follows:
1.

The pending failure to protect claim is dismissed as

moot.
2.

The report and recommendation (doc. no. 8) issued

October 25, 2013, is approved.
3.

The motion to amend (doc. no. 12) is denied without

prejudice to any individual plaintiff, other than Felix, filing
a complaint on his or her own behalf, or to the filing of a
class action.
4.

The clerk is directed to enter judgment and close this

case.
SO ORDERED.

__________________________
Joseph Laplante
United States District Judge
June 5, 2014
cc:

Lawrence A. Vogelman, Esq.
Timothy M. Belsan, Esq.
Christopher W. Dempsey, Esq.

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