ALLEN v. HOLDER et al
Filing
7
OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 8/16/16. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DONALD ALPHANSO ALLEN,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 13-5736 (JBS-JS)
v.
ERIC HOLDER, et al.,
OPINION
Defendants.
APPEARANCES:
Donald Alphanso Allen, Plaintiff Pro Se
SBI#225415C
South Woods State Prison
#784713
215 Burlington Road South
3h-6-2 Left - 2006 Down
Bridgeton, NJ 08302
SIMANDLE, Chief District Judge:
INTRODUCTION
Plaintiff Donald Alphanso Allen seeks to bring a civil
rights complaint pursuant to Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against the
Bureau of Immigration & Customs Enforcement (“ICE”), former
Attorney General Eric Holder, and various immigration officials
for an alleged unlawful deportation in 2006. Complaint, Docket
Entry 1; Amended Complaint, Docket Entry 2. Plaintiff also cites
the Administrative Procedure Act (“APA”) and Federal Tort Claims
Act (“FTCA”) and seeks injunctive relief.
At this time, the Court must review the complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2) and 1915A to determine whether it
should be dismissed as frivolous or malicious, for failure to
state a claim upon which relief may be granted, or because it
seeks monetary relief from a defendant who is immune from such
relief. For the reasons set forth below, the Court will dismiss
the complaint.
II.
BACKGROUND
Plaintiff, a Jamaican citizen, entered the United States in
1994 to attend the University of Bridgeport in Connecticut.
Complaint at 3-4. He was arrested in New York for attempted
possession of a controlled dangerous substance in January 1998.
Id. at 4. He pled guilty to the charge on November 28, 1999, and
was sentenced to five years of probation. Id. He later violated
his probation and was sentenced to one year imprisonment. Id.
Immigration authorities detained him upon his release in
2006. A final administrative removal order was issued on March
6, 2006, Amended Complaint at 7, and Plaintiff was deported on
June 1, 2006 pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Id.;
Complaint at 4. Plaintiff alleges he was improperly placed in
the “expedited removal” category and did not receive his notice
to appear. Complaint at 4. He further argues he should not have
been deported as he was pursuing an appeal of his violation of
probation charge at the time. Id. at 5. He contends his removal
2
was also unlawful as his conviction was not an aggravated felony
and had a pending criminal matter in the State of New Jersey
with sentencing scheduled for June 25, 2006. Id. at 7. He
further asserts immigration officers put incorrect information
in his file, such as his date of entry into the United States.
Amended Complaint at 2-3. At some point in time, Plaintiff
returned to the United States and entered the custody of the New
Jersey Department of Corrections.1
Plaintiff argues the immigration officials violated his
Fifth and Fourteenth Amendment rights by unlawfully deporting
him, and asserts violations of the APA and FTCA. He asks the
Court to remove the detainer lodged against him and to cancel
the removal order. He also seeks $5,000,000 in damages.
Complaint at 11.
III. STANDARD OF REVIEW
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)
(“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42 U.S.C. § 1997e. The
1
The circumstances of Plaintiff’s return to the United States
and New Jersey conviction are unclear.
3
PLRA directs district courts to sua sponte dismiss any claim
that is frivolous, is malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. This action is subject
to sua sponte screening for dismissal under 28 U.S.C. §
1915(e)(2)(B) and 1915A because Plaintiff is a prisoner
proceeding in forma pauperis and is seeking relief from
government officials.
According to the Supreme Court’s decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will
not do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte
screening for failure to state a claim, the complaint must
allege “sufficient factual matter” to show that the claim is
facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210
(3d Cir. 2009) (citation omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
4
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). However,
“pro se litigants still must allege sufficient facts in their
complaints to support a claim.”
Mala v. Crown Bay Marina, Inc.,
704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).
B. Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics
In Bivens, the Supreme Court created a federal counterpart
to the remedy created in 42 U.S.C. § 1983. See Egervary v.
Young, 366 F.3d 238, 246 (3d Cir. 2004) (“Bivens actions are
simply the federal counterpart to § 1983 claims brought against
state officials”), cert. denied, 543 U.S. 1049 (2005). In order
to state a claim under Bivens, a plaintiff must allege: (1) a
deprivation of a right secured by the Constitution and laws of
the United States; and (2) that the deprivation of the right was
caused by a person acting under color of federal law. See Couden
v. Duffy, 446 F.3d 483, 491 (3d Cir. 2006); see also Collins v.
F.B.I., Civ. No. 10–3470, 2011 WL 1627025, at *6 (D.N.J. Apr.
28, 2011) (“The Third Circuit has recognized that Bivens actions
are simply the federal counterpart to § 1983 claims brought
against state officials and thus the analysis established under
one type of claim is applicable under the other.”).
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IV. DISCUSSION
Plaintiff asks this Court to find that the decision to
deport him violated his Due Process and Equal Protection rights,
to cancel the order of removal, and to remove the immigration
detainer. Judicial review of certain claims by aliens
challenging removal decisions and actions by the Attorney
General is limited by statute, however.
A. Order of Removal
To the extent Plaintiff asks the Court to “cancel” the
final administrative removal order, the Court lacks jurisdiction
to do so in a Bivens action. Section 1252(g), as amended by the
REAL ID Act. Pub. L. No. 10943, 119 Stat. 231 (2005), explicitly
bars judicial review by district courts of three classes of
actions and decisions committed to the Government's discretion:
“the ‘decision or action to [(a)] commence proceedings, [(b)]
adjudicate cases, or [(c)] execute removal orders.’” Chehazeh v.
Att'y Gen., 666 F.3d 118, 134 (3d Cir. 2012) (quoting Reno v.
American–Arab Anti–Discrimination Comm., 525 U.S. 471, 482
(1999)). Section 106(a) “substituted petitions for review, filed
with the courts of appeals within the first 30 days after
issuance of an order of removal, as the sole vehicle whereby
aliens could challenge their removal.” Kolkevich v. Attorney
Gen. of U.S., 501 F.3d 323, 326 (3d Cir. 2007); see also
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Gonzalez-Lora v. Warden Fort Dix FCI, 629 F. App'x 400, 401 (3d
Cir. 2015).
“[F]raming the issue as a due process challenge to removal
proceedings does not remove the claim from the realm of the REAL
ID Act . . . .” Reeves v. Holder, No. 15-1689, 2015 WL 1268306,
at *2 (D.N.J. Mar. 17, 2015); see also Verde-Rodriguez v.
Attorney Gen. U.S., 734 F.3d 198, 206 (3d Cir. 2013)
(“[P]rocedural due process claims arising from a removal hearing
are properly contained in a petition for review.”). Plaintiff
“alleges errors ‘on which the validity of the final order [are]
contingent,’ and the relief he seeks would clearly be
inconsistent with the order of removal.” Verde-Rodriguez, 734
F.3d at 206 (alteration in original) (quoting I.N.S. v. Chadha,
462 U.S. 919, 938 (1983)); see also Gonzalez-Lora, 629 F. App’x
at 401 (“Because Gonzalez–Lora's claims ‘directly challenge the
lawfulness of the removal order and are intertwined with the
IJ's decision,’ the District Court did not err in concluding
that it lacked jurisdiction to review these claims . . . .”).
Thus to the extent Plaintiff challenges his upcoming removal or
seeks a stay or other delay of that removal, this Court is
without subject matter jurisdiction to hear those claims. See
Debeato v. Attorney Gen. of U.S., 505 F.3d 231, 234–35 (3d Cir.
2007) (holding jurisdiction to review reinstatement of a removal
order lies in courts of appeals).
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This Court also may not remove the detainer against
Plaintiff. An immigration detainer “is a request for notice of a
prisoner's release,” Galarza v. Szalczyk, 745 F.3d 634, 641 (3d
Cir. 2014), and may be issued “[i]n the case of an alien who is
arrested by a Federal, State, or local law enforcement official
for a violation of any law relating to controlled substances . .
. .” 8 U.S.C. § 1357(d). The Court cannot order the removal of a
valid request for notice. To the extent Plaintiff’s challenge to
the detainer is in fact another challenge to the validity of the
final order of removal, this Court lacks subject matter
jurisdiction for the previously stated reasons.
B. Bivens Claims
To the extent Plaintiff seeks relief under Bivens, and it
is not clear that he may do so,2 his claims are barred by the
statute of limitations.3 “[A] Bivens claim in which the plaintiff
2
See Alvarez v. U.S. Immigration & Customs Enf't, 818 F.3d 1194,
1208 (11th Cir. 2016) (holding “a plaintiff cannot recover
damages under Bivens for constitutional violations that caused
him to endure a prolonged immigration detention”); De La Paz v.
Coy, 786 F.3d 367, 378 (5th Cir. 2015) (“Here, the implicit but
emphatic message from Congress requires this court to abstain
from subjecting immigration officers to Bivens liability for
civil immigration detention and removal proceedings.”); Mirmehdi
v. United States, 689 F.3d 975 (9th Cir. 2012) (holding Bivens
did not provide remedy for aliens not lawfully in United States
to sue federal agents for monetary damages for wrongful
detention pending deportation).
3 “Although the running of the statute of limitations is
ordinarily an affirmative defense, where that defense is obvious
from the face of the complaint and no development of the record
is necessary, a court may dismiss a time-barred complaint sua
8
is alleging personal injury has a two-year statute of
limitations. A Bivens claim accrues when the plaintiff knows, or
has reason to know, of the injury that forms the basis of the
action.” Wooden v. Eisner, 143 F. App'x 493, 494 (3d Cir. 2005)
(internal citations omitted). The complaint alleges the alleged
Due Process and Equal Protection claims on or before June 1,
2006. Complaint at 4. Assuming a Bivens remedy exists for
Plaintiff’s claims, he would have had to file his complaint by
June 1, 2008, over five years before he submitted the complaint
in September 2013.
Plaintiff acknowledges the statute of limitations concern
in his complaint and asks the Court not to dismiss on that
ground as “the defendant’s has [sic] reinstated the very same
order of deportation that is complaint of [sic] herein as being
defective and violates his Constitutional Rights afforded to
him.” Complaint at 12. This acknowledgement appears to invoke
the continuing violation doctrine as a basis for tolling the
statute of limitations.
“A continuing violation is occasioned by continual unlawful
acts, not continual ill effects from an original violation.”
Cowell v. Palmer Twp., 263 F.3d 286, 293 (3d Cir.2001) (internal
sponte under § 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to
state a claim.” Ostuni v. Wa Wa's Mart, 532 F. App’x 110, 111–12
(3d Cir. 2013) (per curiam).
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quotation marks and citation omitted). “The plaintiff must
identify a wrongful act committed within the limitations period
by each defendant.” Stevens v. Zickefoose, No. 12-3011, 2015 WL
5227446, at *7 (D.N.J. Sept. 8, 2015). Accepting the facts
alleged in the complaint as true, the actions by defendants are
discrete, isolated incidents, e.g., failing to provide a notice
to appear and inputting the wrong date of entry in Plaintiff’s
file. The complaint does not allege any wrongful actions
occurring within the two-year limitations period.4 See Shomo v.
City of New York, 579 F.3d 176, 183-84 (3d Cir. 2009).
Plaintiff’s Bivens claims shall therefore be dismissed without
prejudice as barred by the statute of limitations. Plaintiff may
move to amend his complaint if he is able to give the factual
grounds for extending the two-year deadline for filing his
original complaint in this Court.
C. Federal Tort Claims Act
The Court also cannot assert jurisdiction over any
potential FTCA claims at this time as there is no claim that
Plaintiff has complied with the administrative claim filing
4
To the extent the complaint alleges the reinstatement of the
final administrative removal order was wrongful, it is not clear
when the reinstatement occurred. Moreover, “an order reinstating
a prior removal order is the functional equivalent of a final
order of removal.” Dinnall v. Gonzales, 421 F.3d 247, 251 n.6
(3d Cir. 2005) (internal quotation marks omitted). The Court
would therefore lack jurisdiction to review that order.
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requirements which are a jurisdictional prerequisite to suit
under the Act.
The FTCA “operates as a limited waiver of the United
States's sovereign immunity[,]” White–Squire v. U.S. Postal
Serv., 592 F.3d 453, 456 (3d Cir. 2010), and a FTCA plaintiff
may sue only the United States, CNA v. United States, 535 F.3d
132, 138 n.2 (3d Cir. 2008) (“The Government is the only proper
defendant in a case brought under the FTCA.”). Plaintiff has not
named the United States as a defendant.
Even construing the complaint as being brought against the
United States, Plaintiff must have submitted a FTCA notice to
the offending agency prior to filing this complaint. This notice
must have contained a “sum certain” demand for monetary damages.
See 28 U.S.C. § 2675(b). “Because the requirements of
presentation and a demand for a sum certain are among the terms
defining the United States's consent to be sued, they are
jurisdictional.” White–Squire, 592 F.3d at 457 (citing United
States v. Sherwood, 312 U.S. 584, 587 (1941)). These
requirements cannot be waived. Id. (citing Bialowas v. United
States, 443 F.2d 1047, 1049 (3d Cir. 1971)). No FTCA case may be
initiated in court unless the claimant first presented a written
claim to the appropriate agency within two years after such
claim accrued, and then suit must be commenced within six months
of the denial of the claim. See 28 U.S.C. §§ 2401(b) & 2675(a).
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Here, there is no indication Plaintiff served the United
States with a FTCA notice before he brought this action. In the
absence of this documentation, the Court cannot determine
whether it has jurisdiction over any potential FTCA claims;
therefore, any FTCA claims cannot proceed at this time. The
Court will dismiss Plaintiff's FTCA claims without prejudice,
but will grant leave to amend in the event Plaintiff is able to
provide facts indicating he presented his tort claims to the
United States within the statutory time period.
D. Administrative Procedure Act
Finally, Plaintiff challenges ICE’s removal polices under
the APA. Complaint at 7. “Under the APA, any ‘person suffering
legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review.’” Smriko v. Ashcroft,
387 F.3d 279, 290 (3d Cir. 2004) (quoting 5 U.S.C. § 702) “The
only exceptions to this general rule are situations in which
‘(1) statutes preclude judicial review; or (2) agency action is
committed to agency discretion by law.’” Id. at 290-91 (quoting
5 U.S.C. § 701(a)). “The form of review must conform with any
relevant ‘special statutory review’ provision in the statutes
governing the agency.” Chehazeh v. Attorney Gen. of U.S., 666
F.3d 118, 127 (3d Cir. 2012).
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It is not clear to the Court what “policies” Plaintiff is
challenging, nor which statutory violation he is claiming.
Moreover, Plaintiff has failed to state a claim under the APA to
the extent he challenges the agency’s actions. As previously
noted, only the Courts of Appeals may review final orders of
removal. “[T]he Court of Appeals may ‘review . . . 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 . . . .’” Id. (emphasis and omissions in original)
(quoting 8 U.S.C. § 1252(b)(9)). The complaint “alleges errors
on which the validity of the final order [are] contingent . . .
.” Verde-Rodriguez v. Attorney Gen. U.S., 734 F.3d 198, 206 (3d
Cir. 2013). The Court is unaware of any statute that would serve
as the basis for his claims seeking judicial review of agency
action in this district court. The APA claim must therefore be
dismissed.
E. Transfer
Whenever a civil action is filed in a court that lacks
jurisdiction, “the court shall, if it is in the interests of
justice, transfer such action . . . to any other such court in
which the action . . . could have been brought at the time it
was filed.” 28 U.S.C. § 1631. Under the REAL ID Act, petitions
for review of a final order of removal must be filed with the
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appropriate court of appeals within thirty days of issuance of
the order of removal. 8 U.S.C. § 1252(b)(1). The final
administrative removal order included with the complaint is
dated March 6, 2006. Amended Complaint at 7. It is not clear
when the order was reinstated; therefore, this Court cannot
determine whether the Third Circuit would have jurisdiction over
the aspects of the complaint that are more appropriately raised
in a petition for review. The Court therefore declines to
transfer the complaint.
F. Leave to Amend
As Plaintiff may be able to allege facts that would address
the deficiencies of his claims as noted by the Court, Plaintiff
may move for leave to file a second amended complaint. Any
motion to amend the complaint must be accompanied by a proposed
second amended complaint, and it must address and cure the
deficiencies noted in this Opinion.
Plaintiff should note that when a second amended complaint
is filed, the original complaint no longer performs any function
in the case and cannot be utilized to cure defects in the
amended complaint, unless the relevant portion is specifically
incorporated in the new complaint. 6 Wright, Miller & Kane,
Federal Practice and Procedure 1476 (2d ed. 1990) (footnotes
omitted). The second amended complaint may adopt some or all of
14
the allegations in the original complaint, but the
identification of the particular allegations to be adopted must
be clear and explicit. Id. To avoid confusion, the safer course
is to file a second amended complaint that is complete in
itself. Id.
V.
CONCLUSION
For the reasons stated above, the complaint is dismissed. An
appropriate order follows.
August 16, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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