Grant v. The United States of America
Filing
28
ORDER for 13 Motion to Dismiss filed by The United States of America, 27 Report and Recommendations. For the reasons stated above, the R&R is adopted in its entirety, and Defendant's motion to dismiss is granted. The Clerk of the Cour t is directed to terminate the motion (Dkt. No. 13), and to close this case. The Clerk of the Court is further directed to mail a copy of this order via certified mail to pro se Plaintiff Andre Everton Grant, 44 Barber Street, Windsor, CT 06095. (As further set forth in this Order.) (Signed by Judge Paul G. Gardephe on 7/25/2018) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
)
ZS: lj
DATE FILED:
11
ANDRE EVERTON GRANT,
Plaintiff,
- against -
ORDER
17 Civ. 2172 (PGG)
THE UNITED STATES OF AMERICA,
Defendant.
PAUL G. GARDEPHE, U.S.D.J.:
In this action brought under Section 1983 and the Federal Tort Claims Act, pro se
Plaintiff Andre Grant alleges that the U.S. Citizenship and Immigration Services ("USCIS") and
Immigration and Customs Enforcement ("ICE") violated his rights by failing to properly
investigate his claims to citizenship and in denying his application for citizenship. (See Cmplt.
(Dkt. No. 1) at 6-12)
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Defendant has moved to dismiss the Complaint pursuant to Fed. R. Civ.
P. 12(b)(l) and 12(b)(6). (Mot. (Dkt. No. 13) at 1)
On March 28, 2018, this Court referred Defendant's motion to Magistrate Judge
Gabriel Gorenstein. (See Order (Dkt. No. 23)) On June 15, 2018, Judge Gorenstein issued a
Report and Recommendation ("R&R"), recommending that Defendant's motion to dismiss be
granted. (See R&R (Dkt. No. 27)) For the reasons stated below, the Court will adopt the R&R
in its entirety, and Defendant's motion to dismiss will be granted.
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The page numbers of documents referenced in this Order correspond to the page numbers
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designated by this District's Electronic C~se Filing (' ECF") system.
BACKGROUND
This action was filed on March 16, 2017. (See Cmplt. (Dkt. No. 1)) The
Complaint alleges claims under Section 1983 and the Federal Tort Claims Act ("FTCA") against
USCIS and ICE in connection with Plaintiff's application for citizenship. (See id. at 6-12)
Plaintiff contends that (1) ICE's lodging and withdrawal of numerous immigration detainers
concerning Plaintiff constitutes negligent infliction of emotional distress; (2) USCIS was
negligent in denying Plaintiff's request for derivative citizenship; (3) USCIS was negligent in
failing to attach adeq~ate postage to its notice informing Plaintiff that his N-600 application for a
certificate of citizenship had been denied; (4) USCIS' s negligence caused the death of Plaintiff's
son, who died in Jamaica of a disease that Plaintiff asserts is curable in the United States; (5)
USCIS was negligent in denying Plaintiff citizenship and in re-opening removal proceedings
against him; (6) USCIS was negligent "when it failed to properly interpret" United States and
Jamaican law; (7) USCIS violated his "rights as a United States citizen to seek gainful
employment and or go to school"; and (8) ICE was negligent when it failed to follow the "Hayes
Memorandum" and "fully investigate" all of his claims to citizenship. (Id. at 1, 6-7) Plaintiff
also asserts a cause of action under 42 U.S.C. § 1983, alleging that ICE and USCIS violated his
Fourth Amendment rights when these agencies illegally detained him. (Id. at 7, 12-14)
Defendant moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(l) and 12(b)(6)
(Mot. (Dkt. No. 13) at 1), arguing - inter alia- that Plaintiff's FTCA claims must be dismissed
for lack of subject matter jurisdiction because (1) Plaintiff has not exhausted his administrative
remedies; (2) Plaintiff's FTCA claims relate to removal proceedings; and (3) Plaintiffs
negligence claims relate to the adjudication of his citizenship application. (Def. Br. (Dkt. No.
18) at 11-17) As to Plaintiffs Section 1983 claim, Defendant argues that this Court lacks subject
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matter jurisdiction, because Plaintiffs claims are barred by sovereign immunity. (Id. at 17-18)
In the alternative, Defendant contends that all of Plaintiffs claims should be dismissed for
failure to state a claim. (See id. at 18-22)
On March 28, 2018, this Court referred Defendant's motion to Magistrate Judge
Gorenstein for an R&R. (See Order (Dkt. No. 23)) On April 13, 2018, Judge Gorenstein granted
Plaintiff leave "to submit such materials and any other evidence he has as to his assertion that he
filed an administration claim." (Order (Dkt. No. 25) at 1) Judge Gorenstein directed that any
such submission be made by April 27, 2018. (Id.) Plaintiff did not file any materials by the
deadline. Given Plaintiffs prose status, on May 4, 2018, Judge Gorenstein sua sponte granted
Plaintiff an extension through May 25, 2018 to make such a submission. (Order (Dkt. No. 26))
Plaintiff never submitted any such documentation.
On June 14, 2018, Judge Gorenstein issued an R&R recommending that
Defendants' motion to dismiss for lack of subject matter jurisdiction be granted. (See R&R
(Dkt. No. 27) at 8-13) Judge Gorenstein concluded that (1) Plaintiff had not exhausted his
administrative remedies with respect to his FTCA claims; and (2) Plaintiffs Section 1983 claim
is barred by the doctrine of sovereign immunity. (Id. at 8-13)
A copy of the R&R was sent to Plaintiff on June 14, 2018, and posted on this
District's ECF system on June 15, 2018. (See id. at 14) The R&R recites the requirement that
the parties must file objections to the R&R within fourteen days of service, pursuant to Rule 72
of the Federal Rules of Civil Procedure, and explains the consequences of a failure to timely
object: "Pursuant to 28 U.S.C. § 636(b)(l) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of
this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). A
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party may respond to any objections within 14 days after being served.... If a party fails to file
timely objections, that party will not be permitted to raise any objections to this Report and
Recommendation on appeal." (Id.) No objections to the R&R were submitted to this Court.
DISCUSSION
Title 28 U.S.C. § 636(b)(l)(C) provides that, "[w]ithin fourteen days after being
served with a copy, any party may serve and file written objections to [a magistrate judge's]
proposed findings and recommendations .... " 28 U.S.C. § 636(b)(l)(C); see also Fed. R. Civ. P.
72(b)(2) ("[w]ithin 14 days after being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the proposed findings and
recommendations").
In reviewing an R&R, a district court "may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.
§ 636(b)(l)(C). Where a timely objection has been made to a magistrate judge's R&R, the
district court judge "shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made." Id. A "party
generally waives judicial review of an issue[, however,] when he or she fails to make timely
objection to a magistrate judge's report, as long as all parties receive clear notice of the
consequences of their failure to object." DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000)
(citing Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)); see also
Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive
clear notice of the consequences, failure timely to object to a magistrate's report and
recommendation operates as a waiver of further judicial review of the magistrate's decision.")
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Here, despite clear warning that a failure to file objections would result in a
waiver of judicial review (see R&R (Dkt. No. 27) at 14), Plaintiff did not file objections to Judge
Gorenstein's R&R. Accordingly, Plaintiff has waived judicial review. See Spence v.
Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 174 (2d Cir. 2000) ("Failure
to timely object to a report generally waives any further judicial review of the findings contained
in the report."). This rule is non-jurisdictional, however, and because "its violation may be
excused in the interests of justice," DeLeon, 234 F.3d at 86 (citing Roldan v. Racette, 984 F.2d
85, 89 (2d Cir. 1993)), this Court will go on to consider whether there is any "'clear error on the
face of the record"' that precludes acceptance of the magistrate judge's recommendation.
Wingate v. Bloomberg, No. 11 Civ. 188 (JPO), 2011 WL 5106009, at* 1 (S.D.N.Y. Oct. 27,
2011) (quoting Fed. R. Civ. P. 72(b) advisory committee note; citing Nelson v. Smith, 618 F.
Supp. 1186, 1189 (S.D.N.Y. 1985) ("To accept the report and recommendation of a magistrate,
to which no timely objection has been made, a district court need only satisfy itself that there is
no clear error on the face of the record.")).
As discussed above, Defendant contends, inter alia, that Plaintiffs claims must be
dismissed under Fed. R. Civ. P. 12(b)(l) for lack of subject matter jurisdiction. (See Mot. (Dkt.
No. 13)) "'It is a fundamental precept that federal courts are courts oflimitedjurisdiction' and
lack the power to disregard such limits as have been imposed by the Constitution or Congress."
Durant, Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir.
2009) (quoting Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365,374 (1978)). "'[T]he
party asserting subject-matter jurisdiction ... has the burden of proving its existence by a
preponderance of the evidence."' Chen v. Sun, No. 13 Civ. 00280 (ALC) (KNF), 2016 WL
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270869, at *1 (S.D.N.Y. Jan. 21, 2016) (quoting Garanti Finansal Kiralama A.S. v. Aqua Marine
& Trading Inc., 697 F.3d 59, 65 (2d Cir. 2012)).
Here, this Court lacks subject matter jurisdiction over Plaintiffs FTCA claims
because of Plaintiffs failure to demonstrate that he exhausted his administrative remedies. See,
~ , Lassie v. Hudson River Health Care, Inc., No. 13 Civ. 2547 (RPP), 2013 WL 3929633, at
*2 (S.D.N.Y. July 29, 2013) ("[T]o establish that jurisdictional requirements have been met,
Plaintiff must show that, prior to the initiation of the instant action, she exhausted her
administrative remedies by filing a claim with [the relevant agency]." (citing 28 U.S.C. §
2675(a); Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (acknowledging that in a
FTCA claim, "a plaintiff asserting subject matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists")). Although the FTCA "waive[s] the sovereign
immunity of the United States for certain torts committed by federal employees," F.D.I.C. v.
Meyer, 510 U.S. 471,475 (1994), "compliance with the conditions under which the government
has agreed to waive sovereign immunity is necessary for subject matter jurisdiction to exist."
Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991). The FTCA's exhaustion requirement
is thus "jurisdictional and cannot be waived." Celestine v. Mount Vernon Neighborhood Health
Ctr., 403 F.3d 76, 82 (2d Cir. 2005).
Despite multiple invitations from Judge Gorenstein (see Orders (Dkt. Nos. 25,
26)), Plaintiff did not submit documentation demonstrating that he had exhausted his
administrative remedies. By contrast, Defendant submitted declarations from senior officials at
USCIS and ICE stating that a search of ICE and USCIS records revealed no record of any claim
submitted by Andre Everton Grant. (See Luong Deel. (Dkt. No. 15) ,i,r 1, 3; Tanke Deel. (Dkt.
No. 16) ,r,r 1-2) Given this evidence, this Court agrees with Judge Gorenstein that Plaintiff has
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not "met his burden of showing that an administrative claim was presented to any government
agency," and, accordingly, this Court lacks subject matter jurisdiction over Plaintiffs FTCA
claims. (See R&R (Dkt. No. 27) at 11)
This Court also lacks subject matter jurisdiction over Plaintiffs Section 1983
claim. As an initial matter, Section 1983 applies to constitutional violations committed by state
actors, and Plaintiffs' claims concern federal agencies. Lubrano v. United States, 751 F. Supp.
2d 453,455 (E.D.N.Y. 2010) ("Based on the statute's reference to state actors, it is well-settled
that Section 1983 does not provide an avenue to assert causes of action against the federal
government or its agents. See,~. Weise v. Syracuse University, 522 F.2d 397 (2d Cir.1975)
(' § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), have no applicability to federal
action.'). Therefore, to the extent that the plaintiff asserts a cause of action pursuant to Section
1983, the Court also dismisses this claim."), affd, 448 F. App'x 159 (2d Cir. 2012).
To the extent that Plaintiff asserts a claim against the United States premised on
the alleged violation of his Fourth Amendment, that claim is barred by sovereign immunity. The
FTCA only waives the United States' sovereign immunity for claims "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). In other words, the FTCA's waiver of
sovereign immunity is limited to common law claims, see Offor v. Mercy Med. Ctr., No. 17 Civ.
1872 (NRB), 2018 WL 2947971, at *5 (S.D.N.Y. May 31, 2018), and the "United States has not
waived its sovereign immunity with respect to claims that its employees have committed
constitutional torts." Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994); Offor, 2018 WL
2947971, at *5 (same). Because the United States has not waived its sovereign immunity with
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respect to Plaintiffs Fourth Amendment claim, this Court lacks subject matter jurisdiction over
that claim.
Having conducted a review of the record, this Court finds that there is no clear
error in Judge Gorenstein's R&R. Indeed, the R&R is in all respects a proper application of the
law to the facts.
CONCLUSION
For the reasons stated above, the R&R is adopted in its entirety, and Defendant's
motion to dismiss is granted. The Clerk of the Court is directed to terminate the motion (Dkt.
No. 13), and to close this case. The Clerk of the Court is further directed to mail a copy of this
order via certified mail to prose Plaintiff Andre Everton Grant, 44 Barber Street, Windsor, CT
06095.
Dated: New York, New York
July 25, 2018
SO ORDERED.
Paul®i!p~
United States District Judge
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