Kouyate v. U.S. Customs and Border Protection

Filing 12

ORDER: For the reasons discussed in the attached, the Complaint is dismissed and Plaintiff's motions [5, 10, 11] are denied as moot. Plaintiff is granted thirty (30) days from the date of this Order to file an amended complaint. If Plaintiff does not file an amended complaint within thirty (30) days, judgment dismissing the case shall enter. Ordered by Judge Pamela K. Chen on 10/23/2017. (Hess, Alexandra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SEKOU KOUYATE,
Plaintiff,

MEMORANDUM AND ORDER
17-CV-4716 (PKC)

-againstU.S. CUSTOMS AND BORDER PROTECTION,
Defendant.
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PAMELA K. CHEN, United States District Judge:
On July 3, 2017, Plaintiff filed this action in the Supreme Court of the State of New York,
Queens County. On August 11, 2017, Defendant U.S. Customs and Border Protection (“CBP”)
filed a “Notice of Removal,” removing this action from state court. (Dkt. 1.) By letter dated
August 15, 2017, Defendant asked that this action be dismissed sua sponte by the Court or, in the
alternative, that the Court set a pre-motion conference to establish a briefing schedule for
Defendant’s motion to dismiss. (Dkt. 3). Plaintiff opposes removal (Dkt. 5, at 5-6, 34-36), and
filed a motion seeking summary judgment on August 28, 2017 (Dkt. 5). He also filed a motion
for “summary judgment by default” on October 11, 2017. (Dkts. 10, 11.) For the reasons discussed
below, the Complaint is dismissed and Plaintiff’s motions are denied as moot. Plaintiff is granted
thirty (30) days from the date of this Order to file an amended complaint.
BACKGROUND
Plaintiff states that he is an American citizen and that on or about January 20, 2017, he
traveled from John F. Kennedy Airport (“JFK”) to Guinea, West Africa, “because my lawful wife
that I married[, the] mother of my two (2) kids[, . . .] put the black magic or woodoo or voodoo on
me[] to get me kill[ed] on January 22, 2017.” (Dkt. 5, at 39). He alleges that unidentified CBP

officers discriminated against him on that date and also on February 14, 2017, when he returned
home on a flight to JFK. (Id.) Specifically, on these two occasions—as well as “every time” he
returned from abroad—agents improperly stopped him, pulled him off of the customs line, and
questioned him in a separate room in the airport. (Id. at 42, 60.) He also alleges that he is on “the
terrorist list . . . without any evidence.” (Id. at 52.)
On June 29, 2017, Plaintiff filed a Freedom of Information/Privacy Act (“FOIA”) Request
with U.S. Citizenship and Immigration Services (“USCIS”) seeking information from “his file” as
to why he is “always” stopped by CBP officers when he travels. (Id. at 57.) By letter dated July
13, 2017, USCIS acknowledged receipt of Plaintiff’s FOIA request, which is still pending. (Id. at
61.)
Plaintiff alleges discrimination, fraud, defamation, attempted murder, violation of his
constitutional rights, and a “set-up.” (Id. at 30). He seeks: (1) damages in the range of $999 trillion
to $999 quadrillion (id. at 30, 53); (2) his “file report” from USCIS under FOIA (id. at 51, 60); (3)
a jury trial (id. at 50); and (4) remand of his case back to state court (id. at 51-53).
STANDARD OF REVIEW
The Court is mindful that “[a] document filed pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks and citations omitted). However, a complaint must still contain “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “[A] plaintiff's obligation to provide the ‘grounds’ of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do. . . . Factual allegations must be enough to raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and citations omitted).
The district court has “inherent authority to dismiss frivolous actions” sua sponte. Abrams
v. Sprizzo, 201 F.3d 430, 430 (2d Cir. 1999); see also Mallard v. U.S. Dist. Court for S. Dist. of
Iowa, 490 U.S. 296, 307–08 (1989) (noting that even though a statute “authorizes courts
to dismiss a ‘frivolous or malicious’ action, . . . there is little doubt [courts] would have power to
do so even in the absence of [a statute]”); Leonhard v. U.S., 633 F.2d 599, 609 n.11 (2d Cir. 1980)
(noting that the district court had the power to dismiss a complaint sua sponte for failure to state a
claim). Because Plaintiff names a defendant that is immune to suit, namely, CBP, the Court finds
the suit to be frivolous. See Abrams, 201 F.3d at 430 (“An action is frivolous as a matter of law
when . . . ‘the claim is based on an indisputably meritless legal theory or when a dispositive defense
clearly exists on the face of the complaint.’”) (quoting Livingston v. Adirondack Beverage Co.,
141 F.3d 434, 437 (2d Cir. 1998)); Baker v. Dir. U.S. Parole Comm’r., 916 F.2d 725 (D.C. Cir.
1990) (holding sua sponte dismissal appropriate where “it is patently obvious that [plaintiff] could
not prevail”). The Court, however, grants Plaintiff leave to amend.
DISCUSSION
A. Constitutional Claim
Plaintiff alleges unspecified constitutional violations by Defendant CBP, a federal agency.
These claims are barred by sovereign immunity. “Sovereign immunity shields the Federal
Government and its agencies,” FDIC v. Meyer, 510 U.S. 471, 475 (1994), as well as federal
government officials acting in their official capacity, from suit, Kentucky v. Graham, 473 U.S.
159, 166-67 (1985); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994).
Sovereign immunity may be waived only if the government consents to suit. Presidential Gardens

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Assocs. v. U.S. ex rel. Sec’y of Hous. & Urban Dev., 175 F.3d 132, 139 (2d Cir. 1999). “The
doctrine of sovereign immunity is jurisdictional in nature, and therefore to prevail, the plaintiff
bears the burden of establishing that [his] claims fall within an applicable waiver.” Makarova v.
U.S., 201 F.3d 110, 113 (2d Cir. 2000) (citations omitted). No such waiver is applicable in this
case.
Plaintiff may, however, choose to bring a Bivens action against the individual(s) personally
responsible for the alleged deprivation of his constitutional rights. Meyer, 510 U.S. at 486. Bivens
permits recovery for certain constitutional violations by federal agents, even in the absence of a
statute conferring such a right. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971); Carlson v. Green, 446 U.S. 14, 18 (1980). To state a Bivens claim, Plaintiff
must allege that “each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Specifically, to establish his
discrimination claim, Plaintiff “must plead and prove that the [individual agents who detained him]
acted with discriminatory purpose.” Id. at 677.
B. Federal Tort Claims Act
In light of plaintiff’s pro se status, the Court has considered whether his claims could be
brought under the Federal Tort Claims Act (“FTCA”). The FTCA waives sovereign immunity and
permits certain suits for damages against the United States “for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). In order to bring a
claim in federal district court pursuant to the FTCA, a claimant must first exhaust his

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administrative remedies by filing a tort claim with the federal agency, in this case, CBP, see 28
U.S.C. § 2675(a); Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir.
2005), and he must name the United States as the defendant. Plaintiff has not indicated that he has
exhausted his administrative remedies within the agency or that he received a final agency
decision. Therefore, any potential FTCA claim is not yet ripe.
C. Freedom of Information/Privacy Act
To the extent Plaintiff seeks to bring a claim under FOIA against USCIS, his claim fails.
Although Plaintiff has not currently named USCIS as a defendant, even if he had, Plaintiff cannot
file a complaint in this court seeking documents from a federal agency without first exhausting his
administrative remedies pursuant to FOIA. Robert v. Dep’t of Justice, 193 F. App’x 8, 9 (2d Cir.
2006) (summary order) (holding that Plaintiff “failed to exhaust administrative remedies. FOIA
provides that request denials may be appealed to the heads of agencies, 5 U.S.C. § 552(a)(6)(A)(i),
and requesters are required to exhaust this administrative remedy before turning to litigation—
although they may be deemed to have exhausted constructively if the agency fails to make a timely
response to the initial request”); Sussman v. United States Dep’t of Justice, No. 03 CV 3618, 2006
WL 2850608, at *4 (E.D.N.Y. Sept. 30, 2006) (“The purpose of the [exhaustion] requirement is to
allow the agency the opportunity to exercise its expertise and develop a record for review.”). 1

Although Plaintiff alleges that he has not received the documents he requested, (Dkt. 30,
at 51, 60), he received a timely response from USCIS on July 13, 2017, and his request is currently
pending. “Once the agency has responded to the request, the petitioner may no longer exercise his
option to go to court immediately. Rather, the requester can seek judicial review only after he has
unsuccessfully appealed to the head of the agency as to any denial and thereby exhausted his
administrative remedies.” Sussman, 2006 WL 2850608, at *5. Plaintiff does not state that his
request has been denied or that he has properly appealed any such denial pursuant to FOIA.
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D. Leave to Amend
Although the Complaint fails to state a claim as currently stated, in light of Plaintiff’s pro
se status, Plaintiff may file an amended complaint within thirty (30) days from the date of this
Order, if he intends to continue with this action. See Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000)
(holding pro se plaintiff should be afforded opportunity to amend complaint prior to dismissal).
Plaintiff must comply with Fed. R. Civ. P. 8 by naming proper defendant(s) and must demonstrate
each defendant’s “direct participation” or “personal involvement” in the actions that are alleged to
have caused the deprivation of Plaintiff’s constitutional rights. Victory v. Pataki, 814 F.3d 47, 67
(2d Cir. 2016) (citing Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)).
Specifically, Plaintiff should: (1) identify the individuals whom he believes to have been
responsible for the alleged deprivation of his constitutional rights 2 and (2) also provide the date
and location of each relevant event. Should Plaintiff assert a claim under the FTCA, he must name
the United States as a defendant and provide information about any efforts he has made to exhaust
his administrative remedies, such as a copy of his tort claim filed with the relevant agency and any
correspondence from the agency sent to him regarding his tort claim.

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Even if Plaintiff does not know the names of these individuals, he may identify each of
them as “John Doe or Jane Doe U.S. Customs and Border Protection Agent” or something similar,
and should identify their positions and the role each of them played in the alleged incidents.
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CONCLUSION
For the reasons discussed, the Complaint is dismissed and Plaintiff’s motions are denied
as moot. Plaintiff is granted thirty (30) days from the date of this Order to file an amended
complaint. If Plaintiff does not file an amended complaint within thirty (30) days, judgment
dismissing the case shall enter.

SO ORDERED.

/s/Pamela K. Chen______________
PAMELA K. CHEN
United States District Judge
Dated: Brooklyn, New York
October 23, 2017

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