LAOYE v. UNITED STATES

Filing 22

MEMORANDUM ORDER granting 18 Pltf's Motion to Reopen Case; that the Clerk shall re-open this matter for consideration of Pltf's Third Amended Complaint; that Pltf's Third Amended Complaint is hereby DISMISSED WITH PREJUDICE; that Plt f's unrelated claim asserting denial of medical care occurring in February 2014 is severed from this action without prejudice to Pltf filing a new and separate lawsuit based on this claim; closing case. Signed by Judge Michael A. Shipp on 5/30/2014. (gxh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

AKINTOYE LAOYE,
Civil Action No. 12-965 (MAS)
Plaintiff,

v.

MEMORANDUM ORDER

UNITED STATES,
Defendant.

THIS MATTER comes before the Court by motion filed by Plaintiff, Akintoye Laoye,
seeking to re-open this case (ECF No. 18), which was dismissed without prejudice in a
Memorandum Order issued by this Court on March 12, 2013, (ECF No. 11.), and again by
Memorandum Order dated January 30, 2014, after this Court's consideration and dismissal of
Plaintiffs Second Amended Complaint. (ECF No. 17.) This motion is being considered on the
papers pursuant to Rule 78 of the Federal Rules of Civil Procedure, and it appearing that:
1. On February 17,2012 and April 18,2012, Plaintiff filed a Complaint and Amended
Complaint asserting only conclusory allegations that false statements and fraud by Bureau of
Immigration and Customs Enforcement ("ICE") officers have caused Plaintiff pain and suffering,
and damages are warranted. (ECF No. 1, Complaint; ECF No.2, Amended Complaint.)
2. On March 12, 2013, this Court issued an Order dismissing Plaintiffs action without
prejudice. (ECF No. 11.) In that Order, this Court had observed that Plaintiff asserted these
same claims in an earlier action, Laoye v. United States Dep 't of Homeland Sec., et al., Civil No.
09-1990 (MLC).

In a Memorandum Opinion and Order entered on March 16, 2010, the

Honorable Mary L. Cooper, U.S.D.J., granted Defendants Motion to Dismiss the action on the

grounds that Plaintiffs claims asserted under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971) and the Federal Tort Claims Act ("FTCA") were time-

barred, and no basis for equitable tolling existed. See Laoye v. United States Dep 't of Homeland
Sec., et al., Civil No. 09-1990 (MLC), 2010 WL 1009891 (D.N.J. Mar. 16, 2010). Judge Cooper

also ruled that Plaintiffs request for a "cease and desist" against the ICE was moot due to the
fact that Plaintiffs petition for review of the Bureau of Immigration Appeals' final order of
removal was denied by the Court of Appeals. 1 See Laoye, Civil No. 09-1990 (MLC) (Mem. Op.,
ECFNo. 21).
3. Accordingly, on March 12, 2013, this Court dismissed the Complaint and Amended
Complaint filed in this action because Plaintiff failed to assert enough facts to determine whether
or not his claims were duplicative of his earlier action, or to show that his claims are facially
plausible. The dismissal was without prejudice to Plaintiff filing a Second Amended Complaint
within 45 days from the date of entry of the Court's Order. (ECF No. 11.)
4.

On June 20, 2013, Plaintiff filed a motion to re-open his case, together with a

proposed Second Amended Complaint.

(ECF No. 14.)

The Second Amended Complaint

generally alleged continuing torts by ICE officers, namely perjury, false statements, malicious
prosecution and personal injury, since March 2011 through 2013, that allegedly "have no
bearings [sic] on his case from 2010." (ECF No. 14-1, Second Amended Complaint at 1.)
Plaintiff asserted his action under the FCTA.
5. In a Memorandum Order issued on January 30, 2014, this Court found that the Second
Amended Complaint lacked sufficient factual allegations to show that Plaintiffs general tort
claims are facially plausible. The Court determined that the Second Amended Complaint was
1

The United States Court of Appeals for the Third Circuit affirmed Judge Cooper's ruling in an
Opinion filed on October 4, 2010. See Laoye, Civil No. 09-1990 (MLC)(ECF No. 30-1).
2

wholly conclusory and subject to dismissal under Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Moreover, the Court noted that Plaintiffs Second Amended Complaint also was subject to
dismissal because Plaintiff failed to allege any facts that he had satisfied the jurisdictional notice
requirements of the FTCA before bringing this lawsuit? Accordingly, the Second Amended
Complaint was dismissed without prejudice to Plaintiff filing an amended complaint alleging
facts to show that he had satisfied the jurisdictional notice requirements under the FTCA. (See
ECF No. 17.)
6. On March 18,2014, Plaintiff filed this motion to re-open his case. (ECF No. 18.) He
requested additional time to file a Third Amended Complaint, which he then filed on May 13,
2014. (ECF No. 21.) According! y, this Court will direct the Clerk of the Court to re-open this
case for consideration of Plaintiffs Third Amended Complaint.
7. Because Plaintiff is proceeding as an indigent in this matter, the Court must review the
Third Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2) to determine whether the
amended pleading should be dismissed as frivolous or malicious, for failure to state a claim upon
As a jurisdictional prerequisite to filing certain types of civil suits against federal agents the
FTCA requires a claimant to place the government on notice, within ninety days of the accrual of
such claim. 28 U.S.C.A. § 1346(b) et seq. The FTCA provides that, to exhaust a claim, a
claimant "shall," before filing a lawsuit, "present[] the claim to the appropriate Federal agency."
See 28 U.S.C. § 2675(a). The purpose of this requirement is to ensure that the relevant agency
has notice of the claim, so that "it may investigate the claim and respond either by settlement or
by defense." Martin v. Unknown US. Marshals, --- F. Supp.2d ----, 2013 WL 4431789, *24
(D.N.J. Aug. 15, 2013) (quoting Tucker v. US.P.S., 676 F.2d 954, 958 (3d Cir.1982)). The
Attorney General has promulgated regulations that govern the presentation of administrative
claims under 28 U.S.C. § 2675(a); among them is 28 C.F.R. § 14.2, which provides:
2

For the purposes of the provisions of28 U.S.C. 2401(b), 2672, and 2675, a claim shall be
deemed to have been presented when a Federal agency receives from a claimant ... an
executed Standard Form 95 or other written notification of an accident, accompanied by a
claim for money damages in a sum certain for injury to or loss of property, personal
injury, or death alleged to have occurred by reason of the incident.. ..
28 C.F.R. § 14.2(a) (emphasis added). These FTCA requirements are "strictly construed."
Martin, supra (quoting Livera v. First Nat'! Bank ofNJ, 879 F.2d 1186, 1194 (3d Cir. 1989)).
3

which relief may be granted, or because it seeks monetary relief from a defendant who is
immune from such relief.
8. The Court finds that Plaintiffs latest amendment again fails to allege any facts to
show that Plaintiff satisfied the jurisdictional notice requirements under the FTCA before filing
his lawsuit. The third amendment also makes broad and conclusory allegations as to his general
tort claims of fraud, negligence, etc., without providing any specific facts in support of his
general claims. Plaintiff has been afforded three opportunities to cure the deficiencies of his
pleading as directed, and he has been unable to do so. Therefore, the Third Amended Complaint
is dismissed with prejudice.
9. The Court further notes that Plaintiff is attempting to add a new claim that alleges
denial of medical care in February 2014. He attaches to his Third Amended Complaint, a
January 20, 2014 letter from Michael A. Steinle, DMD advising that Plaintiff was scheduled for
corrective jaw surgery on February 11, 2014 and that Plaintiff needed to have his electronic
monitoring device removed before surgery. (ECF No. 21 at page 11.) Plaintiff also attaches his
February 13, 2014 letter addressed to the Office of Inspector General complaining that the ICE
agents never responded to Dr. Steinle's letter? (ECF No. 21 at pages 12-15.) Plaintiffs letter
then reiterates his general allegations previously made in his Second Amended Complaint.
Plaintiffs new denial of medical care claim clearly is unrelated to Plaintiffs FTCA claims of
continuing torts by ICE officers, namely perjury, false statements, malicious prosecution and
personal injury, allegedly occurring from March 2011 through 2013.
10. Because Plaintiffs new claim is wholly unrelated to the present action, and the
present action is dismissed with prejudice, the new claim shall be severed from this action and
3

Plaintiff also seeks to add his wife as a Plaintiff in his new claim. (ECF No. 21 at pages 1215.)
4

Plaintiff must file a new and separate complaint should he wish to pursue the severed claim. The
Court does not address the merits of Plaintiffs new claim here.
THEREFORE, BASED ON THE FOREGOING,
IT IS ON THIS

.:£)

day of

, 2014

ORDERED that Plaintiffs motion tore- pen this case (ECF No. 18) is GRANTED, and
the Clerk of the Court shall re-open this matter for consideration of Plaintiffs Third Amended
Complaint (ECF No. 21 ); and it is further
ORDERED that Plaintiffs Third Amended Complaint is hereby DISMISSED WITH
PREJUDICE, for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii); and it is further
ORDERED that Plaintiffs unrelated claim asserting denial of medical care occurring in
February 2014 is severed from this action without prejudice to Plaintiff filing a new and separate
lawsuit based on this claim; and it is finally
ORDERED that the Clerk of the Court shall serve this Order on Petitioner by regular
mail and shall close this matter accordingly ..

United States District

5