El Bey v. United States Department of Homeland Security-Transportation Security Administration et al

Filing 4

MEMORANDUM AND ORDER: For the foregoing reasons, plaintiffs application for IFP status is denied. In any event, the complaint is dismissed to the extent that plaintiff seeks damages from TSA and its employees in their official capacities. Plaintiff is, however, granted leave to cure the deficiencies in his IFP application, and thereby proceed with his claims against the individual defendants, in their individual capacities, as long as he does so within 30 days of the date this Order is entered on the docket. The Court certifies, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith and therefore IFP status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed.2d 21 (1962). Ordered by Judge Eric N. Vitaliano on 8/15/2015. c/m to pro se pltf. (Fernandez, Erica)

FILED
'tt!' IN CLERK'i!i OFFICE
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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tiKOOr,Lt I~ L'i·, .... :

AL! SHAMAN EL BEY,

Plaintiff,
MEMORANDUM & ORDER
-against-

15-CV-3188 (ENV)(VMS)
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY-TRANSPORTA TJON
SECURITY ADMINISTRATION; BILL HILTON,
Security Supervisor, AND UNNAMED SECURITY
SUPERVISOR(S),
Defendants.

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VITAL!ANO, DJ.
On May 28, 2015, prose plaintiff Ali Shaman El Bey ("El Bey"), "an indigenous Taino
Native, of Moorish ancestry," filed this civil rights complaint seeking damages for the allegedly
"arbitrary, capricious, and unprofessional" enforcement of security screening procedures by the
Transportation Security Administration ("TSA"), Security Supervisor Bill Hilton, and several

unidentified TSA employees at John F. Kennedy airport ("JFK"). El Bey has also filed an
application to proceed in forma pauper is ("IFP"), pursuant to 28 U.S.C. § 1915. His application,
however, is deficient. For the following reasons, plaintiffs application for IFP status is denied,
and plaintiffs damages claims against TSA and its employees, in their official capacities, are, in
any event, dismissed. Plaintiff, though, may proceed in prosecuting this action against the
individual defendants in their individual capacities if he files a qualifying IFP application, or
pays the $400 filing fee, within 30 days of the entry of this Order on the docket.

I

Background
According to the complaint, El Bey was born in New York, but he now lives in Puerto
Rico. (Compl., ECF No. 1, at 'i[ 7). He pleads that, since 2000, he had been able to travel
between Puerto Rico and New York without incident. Then, in 2010, it took him ten months to
procure identification acceptable to TSA screening agents at JFK. (Id. at 'i['i[ 1, 7). Specifically,

on three discrete occasions, plaintiff claims, his "Native Tribal photo identification" and other
ordinary forms of valid proof were rejected by TSA agents, causing him to miss his flights. (Id.
at 'i['i[ 8-29). I-le claims that as a result ofTSA and its employees' failure to obey the law, his
ability to take care of his personal and business affairs suffered, his property was vandalized, and
he could not obtain timely care for a particular medical condition. (Id. at ~,-i 30-31 ). El Bey now
demands $10 million in compensatory damages. (Id. at ,-i 32).
Discussion
I.

Sovereign Immunity

Courts must liberally construe prose pleadings and must interpret them to raise the
strongest arguments they suggest. Weixel v. Bd. o.f Educ. of the City of N. Y, 287 F.3d 138, 146
(2d Cir. 2002). Yet, under 28 U.S.C. § 1915(e)(2), a court must dismiss a complaint if it is
frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
relief against a defendant who is immune from damages. Abbas v. Dixon, 480 F.3d 636, 639 (2d
Cir. 2007). Notwithstanding, a district court should not finally dismiss a complaint "unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).
El Bey's claims for damages against TSA and its employees, in their official capacity, are
barred by the edicts of sovereign immunity. Robinson v. Overseas Military .~ales Corp., 21 F .3d

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502, 510 (2d Cir. 1994) (citation omitted) ("[ A]n action against a federal agency or federal
officers in their official capacities is essentially a suit against the United States, [and] such suits
are ... barred under the doctrine of sovereign immunity, unless such immunity is waived.").
TSA, being a federal agency, is immune from suits for damages, and Congress has not created a
waiver of that immunity to allow a constitutional claim for money damages against the United
States or any federal agencies. See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 72, 122
S. Ct. 515, 151 L Ed. 2d 456 (2001); FDIC v. Meyer, 510 U.S. 471, 486, 114 S. Ct. 996, 127 L
Ed. 2d 308 (1994). Plaintiff, however, is not precluded from bringing his civil rights claims
against TSA employees in their individual capacities. Robinson, 21 F.3d at 510 (holding a
plaintiff may make a Bivens claim against a federal employee if it is brought against him in his
individual capacity). Any such complaint must plausibly plead that claim, and, based on what El
Bey has thus far alleged, such pleading will be a herculean task.
11.

Plaintiffs IFP Application

Under 28 U.S.C. § 1915, litigants are permitted to proceed IFP in order to ensure that
indigent persons have equal access to the judicial system. Davis v. N Y C. Dep 't of Educ., No.
I O-CV-3812, 20 I 0 WL 3419671, at *I (E.D.N. Y. Aug. 27, 2010). Of course, whether a plaintiff
qualifies for IFP status is a determination that falls within the sound discretion of the intake
court. DiGianni v. Pearson Educ., No. 1O-CV-206, 20 I 0 WL 17413 73, at *I (E.D.N.Y. Apr. 30,
2010). El Bey's IFP application, in this case, is deficient because it does not indicate whether he
is indigent. Specifically, he has answered "O" or "NIA" for all of the pertinent questions,
including inquiries about his wages, income sources, bank accounts, and financial obligations. It
is inconceivable that he has literally no assets whatsoever, yet he can still live and travel.
Furthermore, it is not El Bey's prerogative to decide what is relevant to disclose on his IFP

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application. See Jones v. Deutsche Bank Nat. Trust

C~o.,

No. 13-CV-293, 2013 WL 789860, at

*4 (E.D.N.Y. Mar. 1, 2013) (holding IFP application insufficient where plaintiff filled in "zero"
for every inquiry-"[t]he court finds it difficult to believe that [p]laintiffhas no income, no
money and no expenses, and can still survive"). To proceed with this action, El Bey is directed
to either pay the proper filing fee or submit a revised application with accurate and detailed
information as to his income, including government benefits, and his monthly expenses. See id.
El Bey is also warned that failure to comply with the direction set forth in this Order can result in
dismissal of his action entirely. Fed. R. Civ. P. 4l(b); Spencer v. Doe, 139 F.3d 107, 112-13 (2d
Cir. 1998).
Conclusion
For the foregoing reasons, plaintifrs application for IFP status is denied. In any event,
the complaint is dismissed to the extent that plaintiff seeks damages from TSA and its employees
in their official capacities. Plaintiff is, however, granted leave to cure the deficiencies in his IFP
application, and thereby proceed with his claims against the individual defendants, in their
individual capacities, as long as he does so within 30 days of the date this Order is entered on the
docket.
The Court certifies, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order
would not be taken in good faith and therefore IFP status is denied for the purpose of an appeal.

Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed.2d 21 (l 962).
So Ordered.
Dated: Brooklyn, New York
August 15, 2015

Eric N. Vitaliano
ERIC N. VITA LIANO
United States District Judge

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