Gjidija v. United States Of America et al

Filing 45

REPORT & RECOMMENDATION re: 27 MOTION to Dismiss filed by U.S. Department Of Justice, Deputy Director Thomas D. Homan of DHS, Federal Bureau of Prisons, Department of Homeland Security ("DHS"), Immigration and Cus toms Enforcement, Warden in Charge of USP McCreary, United States Of America, Secretary of the DHS, Attorney General Jeff Sessions. For the foregoing reasons, I respectfully recommend that Defendants' Motion to Dismiss Plaintiffs Compla int be GRANTED. In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also FED. R. CIV. P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, Pro Se Intake Un it, United States Courthouse, 500 Pearl Street, Room 200, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. (See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 23738 (2d Cir. 1983)). The Clerk of Court is directed to mail a copy of this Report and Recommendation to Plaintiff. (Objections to R&R due by 7/10/2019.) (Signed by Magistrate Judge Ona T. Wang on 6/26/2019) (rro) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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NAIM GJIDIJA,
:
:
Plaintiff,
:
:
-against:
:
:
UNITED STATES OF AMERICA, et al.,
:
Defendants.
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:
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18-CV-0259 (LAK) (OTW)
REPORT & RECOMMENDATION

ONA T. WANG, United States Magistrate Judge:
To the Honorable Lewis A. Kaplan, United States District Judge:
Plaintiff Naim Gjidija brought this action, primarily alleging negligence and false
imprisonment under the Federal Tort Claims Act, 28 U.S.C. § 1346, against Defendants the
United States of America, the Federal Bureau of Prisons (“BOP”), the U.S. Department of Justice
(“DOJ”), the Department of Homeland Security (“DHS”), Immigration and Customs Enforcement
(“ICE”), four individuals in their official capacities, and four unnamed John Does. Plaintiff, who
claims to be a United States citizen, alleges that Defendants negligently and unlawfully held him
in two immigration detention facilities for over two years. Before me for Report and
Recommendation is Defendants’ Motion to Dismiss Plaintiff’s Complaint in accordance with
Fed. R. Civ. P. 12(b)(1), for lack of subject-matter jurisdiction, and Fed. R. Civ. P. 12(b)(6), for

1

failure to state a claim upon which relief can be granted. (ECF 27). For the reasons that follow, I
recommend that Defendants’ Motion to Dismiss be GRANTED.1
I.

Background
A.

Facts 2

Plaintiff was born in the former Yugoslavia in 1965. (See Plaintiff’s Opposition to Motion
to Dismiss (ECF 31) (“Plaintiff’s Opp.”) at 25). 3 On April 22, 1968, Plaintiff, his parents, and his
six siblings entered the United States. (Id. at 3, 21-22). Plaintiff became a lawful permanent
resident (“LPR”) in 1971. (Id. at 25; Declaration of Richard Brooks dated October 10, 2018 (ECF
29) (“Brooks Decl.”), Ex. F). His father, Musli Gjidja, became a United States citizen in 1976. (See
Plaintiff’s Opp. at 19). Plaintiff claims that because his father’s naturalization occurred before
Plaintiff’s eighteenth birthday, Plaintiff automatically derived United States citizenship through
his father. (See Plaintiff’s Opp. at 3-4; Compl. ¶ 14; Brooks Decl., Ex. F).
On April 12, 2001, Plaintiff was convicted in New York state court for unlawful
possession of marijuana. (Brooks Decl. ¶ 4). On April 28, 2003, ICE issued Plaintiff with a Notice
to Appear (“Notice to Appear”), the charging instrument that signals the initiation of removal

Plaintiff, while originally represented by counsel, is now pro se. This Court granted Plaintiff’s counsel’s
motion to withdraw at the Initial Conference held on May 30, 2018. Plaintiff filed a Notice of Pro Se Appearance on
August 8, 2018, (ECF 24), and he has proceeded pro se since that time.
1

2
The following facts are drawn from the Complaint, Plaintiff’s submissions in opposition to Defendants’
motion to dismiss, and the Declaration of Richard Brooks (“Brooks Decl.”). (ECF 1, 29). See Gill v. Mooney, 824 F.2d
192, 195 (2d Cir. 1987) (considering pro se plaintiff’s affidavit in opposition to motion to dismiss); Cortec Indus., Inc.
v. Sum Holding L.P., 949 F.2d 42, 46-48 (2d Cir. 1991) (district court may consider exhibits omitted from a plaintiff's
complaint but attached as exhibits to a defendant's motion papers where “there was undisputed notice to plaintiffs
of their content and they were integral to plaintiff's claim.”).
3

Citations to Plaintiff’s opposition (ECF 31) that specify a page number refer to the ECF page number
located at the top of each.

2

proceedings. (Brooks Decl., Ex. A). The Notice to Appear alleged that Plaintiff, an LPR, applied
for admission to the United States on or about August 28, 2002 in Buffalo, New York, and
charged Plaintiff with removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II), which makes
inadmissible any alien convicted of a law “relating to a controlled substance,” based on
Plaintiff’s prior marijuana conviction. (Id.).
Six months later, on October 21, 2003, Plaintiff was arrested and charged with
conspiracy/attempt to commit robbery (18 U.S.C. § 1951), being a felon in possession of a
firearm (18 U.S.C. § 922(g), 4 and mail fraud (18 U.S.C. § 1341). (See Plaintiff’s Opp. at 38).
Plaintiff pleaded guilty to those crimes on March 29, 2004. (See U.S. v. Gjidija, 03 Cr. 1256
(JFK)). On July 8, 2004, as Plaintiff awaited sentencing, the New York Immigration Court
administratively closed Plaintiff’s removal proceedings. (See Brooks Decl., Ex. D). Plaintiff was
subsequently sentenced to 132 months’ imprisonment. (Compl. ¶ 15).
Plaintiff served his sentence at various correctional facilities and completed it at
McCreary-FCI. (Id. ¶¶ 17-18). On May 20, 2014, the day of Plaintiff’s scheduled release,
Defendants took Plaintiff into custody and transferred him to Lasalle ICE Processing Center in
Louisiana. (Id. ¶ 23). ICE had determined that Plaintiff was subject to mandatory detention
under 8 U.S.C. 1226(c)(1)(B), which mandates detention of aliens deportable by reason of
having committed certain criminal offenses. (Id. ¶¶ 19, 20, 23; Brooks Decl. ¶ 8). On June 5,
2014, Defendants filed a motion to re-calendar Plaintiff’s removal proceedings—which had
been administratively closed since July 8, 2004—and a motion to transfer venue from New York

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Judge Keenan’s Memorandum Opinion and Order on Plaintiff’s motion to vacate his sentence, (see ECF
168), notes that Plaintiff’s prior felony was a July 28, 1983 conviction in Bronx County Supreme Court of attempted
burglary in the third degree, for which he was sentenced to one year of imprisonment.

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to Louisiana. (Brooks Decl. ¶ 9). Both motions were granted, and removal proceedings
commenced in Oakdale, Louisiana Immigration Court. (Id.). Plaintiff remained detained
throughout the pendency of his removal proceedings. (Compl. ¶¶ 26-27).
On July 23, 2014, DHS issued Additional Charges of Inadmissibility/Deportability, Form I261 (“I-261”), to supplement its April 28, 2003 Notice to Appear. (See Brooks Decl., Ex. B). In the
I-261, DHS charged Plaintiff as removable pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien
who has been convicted of “a crime involving moral turpitude.” (Id.). The I-261 cited Plaintiff’s
2004 federal convictions as support. (Id.). On September 23, 2019 and December 10, 2014,
Plaintiff admitted all the allegations contained within the Notice to Appear and I-261. (See
Brooks Decl. ¶ 12; Brooks Decl., Ex. D, at 2). Based on those admissions, Plaintiff was found
removable as charged. (Id.). On April 29, 2015, DHS issued a second Form I-261 alleging that
Plaintiff is a native of Yugoslavia and is thus stateless. (See Brooks Decl., Ex. C).
On August 26, 2015, Plaintiff filed a motion to terminate his removal proceedings,
claiming he had derived United States citizenship through his father. (See Brooks Decl, Ex. D at
2). In a written decision dated September 23, 2015, the Immigration Judge (“IJ”) denied
Plaintiff’s motion to terminate. (See id. at 5). The IJ concluded that Plaintiff failed to meet his
burden in substantiating his derivative citizenship claim pursuant to former Section 321(a)(3) of
the Act, which requires “[t]he naturalization of the parent having legal custody of the child
when there has been a legal separation of the parents.” 8 U.S.C. § 1432(a) (2000). (Id. at 3). The
IJ found that although Plaintiff sufficiently demonstrated that both his admission to the United
States as an LPR and his father’s naturalization occurred before Plaintiff’s eighteenth birthday,
Plaintiff failed to establish by a preponderance of credible evidence that his parents were
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legally separated by judicial decree, as required in the Fifth Circuit. (Id.). Moreover, even
assuming the parents’ legal separation, Plaintiff failed to establish that he was in his father’s
legal custody when his father became a United States citizen. (Id. at 5). Thereafter, at a
September 24, 2015 hearing, the IJ found Plaintiff to be removable as charged and designated
Kosovo as the country of removal. (See Brooks Decl. Ex. E, at 3).
Plaintiff appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). (See
Brooks Decl., Ex. F). On March 8, 2016, the BIA affirmed the IJ’s decision, concluding that
Plaintiff had not satisfied the statutory requirements for automatic acquisition of United States
citizenship under former section 321(a) of the INA. (Id.). The BIA’s decision was sent to Plaintiff
and served to Plaintiff’s counsel with an attached letter, which expressly notified Plaintiff that
“any petition for review of the [BIA] decision must be filed with and received by the appropriate
court of appeals within 30 days of the date of the decision.” (Id. at 1).
On June 6, 2016, DHS released Plaintiff from ICE custody on an order of supervision. (See
Brooks Decl., Ex. G). The Release Notification informed Plaintiff that “[t]his release does not
affect [Plaintiff’s] removal order and does not constitute an admission to the United States.”
(Id). Plaintiff signed and acknowledged the conditions of release under the order of supervision.
(Id). Defendants maintain that Plaintiff was released “following a determination that there was
no significant likelihood of removal in the reasonably foreseeable future because Kosovo
refused to issue travel documents for [Plaintiff].” (Brooks Decl. ¶ 19).
B.

Procedural History

Plaintiff, through counsel, filed the instant action on January 11, 2018. (ECF 1). On May
15, 2018, Plaintiff’s counsel moved to withdraw. (ECF 16). This Court granted the motion to
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withdraw at the Initial Conference held on May 30, 2018, and stayed briefing on Defendants’
then-anticipated motion to dismiss, for Plaintiff to find new counsel. Plaintiff did not obtain
new counsel; instead, he filed a Notice of Pro Se Appearance on August 8, 2018. (ECF 24).
Defendants filed their motion to dismiss on October 10, 2018. (ECF 27). Plaintiff opposed the
motion on October 19, 2018 (and thereafter sent four letters relating to his opposition). (ECF
31-35). Defendants replied on December 3, 2018. (ECF 36).
C.

Plaintiff’s Claims

Plaintiff brings this suit pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §
2671 et seq, which provides a limited waiver of sovereign immunity of United States in limited
circumstances. In relevant part, the FTCA authorizes suits against the government for claims
“arising from the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment . . .” 28 U.S.C. § 2679(b)(1). Plaintiff
maintains that he is a citizen of the United States and thus should never have been detained.
He brings claims for negligence, negligent training, hiring and supervision, false imprisonment,
and “other causes of action available under the [FTCA].” (Comp. ¶ 31-32).
II.

Discussion
A.

The Rule 12(b)(1) Motion

To the extent Plaintiff seeks a judicial determination that he is a United States citizen,
this Court lacks subject matter jurisdiction to adjudicate his claim. Additionally, to the extent
Plaintiff seeks monetary damages for tort claims under the FTCA, this action must be dismissed
for lack of subject matter jurisdiction for two reasons: (1) Plaintiff’s claim falls within the “due

6

care” exception to the FTCA’s general waiver of tort immunity; and (2) Plaintiff has failed to
plead and prove exhaustion of his administrative remedies.
1.

Subject Matter Jurisdiction

Subject matter jurisdiction “refers to a tribunal’s power to hear a case,” Morrison v.
Nat’l Austl. Bank Ltd., 561 U.S. 247, 254 (2010) (internal quotations and citations omitted), and
“represents ‘the extent to which a court can rule on the conduct of persons or the status of
things.’” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (quoting Black’s Law
Dictionary 870 (8th ed. 2004)). The requirement of subject matter jurisdiction “can never be
forfeited or waived,” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (quoting United States v.
Cotton, 535 U.S. 625, 630 (2002)), and may be raised “at any time.” Cave v. E. Meadow Union
Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008) (citing Liberty Mut. Ins. Co. v. Wetzel, 424 U.S.
737, 740 (1976)); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.”). “A court properly
dismisses an action under Rule 12(b)(1) if the court ‘lacks the statutory or constitutional power
to adjudicate it.’” Scroggins v. Scroggins, 15-CV-9524, 2017 WL 1047356, at *3 (S.D.N.Y. Mar.
16, 2017) (Engelmayer, J.) (quoting Cortlandt St. Recovery Corp. v. Hallas Telecomms. S.A.R.L.,
790 F.3d 411, 416–17 (2d Cir. 2015)).
2.

Legal Standard

“In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all
uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences in favor
of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752
F.3d 239, 243 (2d Cir. 2014). Where, however, a party challenges a court’s jurisdiction, the court
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may “refer to evidence outside the pleadings” in evaluating any disputed jurisdictional fact,
such as affidavits and matters of which judicial notice may be taken. Luckett v. Bure, 290 F.3d
493, 497 (2d Cir. 2002); see also Tandon, 752 F.3d at 243 (“[W]here jurisdictional facts are
placed in dispute, the court has the power and obligation to decide issues of fact by reference
to evidence outside the pleadings, such as affidavits.” (quoting APWU v. Potter, 343 F.3d 619,
627 (2d Cir. 2003); Wolffing v. McLaughlin, 12-CV-189 (JGM), 2013 WL 1702638, at *1 (D. Vt.
Apr. 19, 2013) (considering orders from underlying state and bankruptcy proceedings in a
motion to dismiss for lack of subject matter jurisdiction). If such evidence “’reveal[s] the
existence of factual problems’ in the assertion of jurisdiction,” the plaintiff “will have to come
forward with evidence of [his] own to controvert that presented by the defendant[s].” Carter v.
Healthport Techs, Inc., 822 F.3d 47, 57 (2d Cir. 2016) (quoting Exchange Nat’l Bank of Chic. v.
Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976)). “A plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Ruiz v.
United States, No. 17-CV-6727 (JFK), 2019 WL 952712, at *1 (S.D.N.Y. Feb. 27, 2019) (quoting
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
3.

Dismissal of this Action is Warranted Against the Named Agencies
and Individuals for Lack of Subject Matter Jurisdiction

As a preliminary matter, the FTCA expressly provides that “only the United States may
be held liable for torts committed by a federal agency, and not the agency itself.” C.P. Chemical
Co., Inc. v. U.S., 810 F.2d 34, 37 n.1 (2d Cir. 1987) (citing 28 U.S.C. § 2679(a)); see also Southeast
Grand Street Guild Fund Co., Inc. v. U.S. Dept. of Housing and Urban Devel., No. 91-CV-8358
(TPG),1992 WL 73419, at *7 (S.D.N.Y. Mar. 31, 1992) (dismissing FTCA claim against HUD);
Myers & Myers, Inc. v. U.S. Postal Service, 527 F.2d 1252, 1256 (2d Cir. 1975) (dismissing FTCA
8

claim against two Postal Service employees). There is, therefore, no basis for any claim against
the FBP, the DOJ, the DHS, or ICE, the four individuals named in their official capacities, or the
four unnamed John Does.
4.

This Court Does Not Have Subject Matter Jurisdiction to Adjudicate
Plaintiff’s Citizenship Claim

Defendants are correct that this Court lacks subject matter jurisdiction to adjudicate
Plaintiff’s claim to citizenship. An individual can seek judicial review of a derivative citizenship
claim in only two ways: a § 1503(a) petition in district court or an appeal from a removal order.
See Lainez v. Osuna, No. 17-CV-2278 (HBP), 2018 WL 1274896 (S.D.N.Y. Mar. 8, 2018); Bogle v.
Dubois, 236 F. Supp. 3d 820, 822 (S.D.N.Y. 2017). Neither applies here. First, Plaintiff cannot
bring an action seeking a declaration of citizenship under 8 U.S.C. § 1503(a) because the dispute
over Plaintiff’s citizenship arose and was litigated in Plaintiff’s removal proceedings. See 8 U.S.C.
§ 1503(a) (“no such action may be instituted in any case if the issue of such person’s status as a
national of the United States (1) arose by reason of, or in connection with any removal
proceeding under the provisions of this or any other act, or (2) is in issue in any such removal
proceeding.”). Second, to properly appeal the removal order, Plaintiff needed to petition for
review of the BIA’s decision in the applicable circuit court of appeals. See 8 U.S.C. § 1252(b)(1),
(b)(2) (petition for review of final order of removal must be filed in applicable court of appeals
within 30 days). Plaintiff cannot contest the BIA’s decision in district court. Thus, to the extent

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Plaintiff seeks review of his citizenship claim, this Court is not the proper forum and this action
is not the appropriate means of doing so. 5
5.

Dismissal of this Action is Warranted Due to Lack of Subject Matter
Jurisdiction Because Plaintiff’s Claim Falls Under the “Due Care”
Exception to the FTCA’s General Waiver of Tort Immunity

Section 2860(a) provides, in relevant part, that the FTCA’s waiver of sovereign immunity
“shall not apply to . . . [a]ny claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute of regulation, whether or not
such statute or regulation be valid.” 28 U.S.C. § 2860(a). “To determine whether the due care
exception bars a particular claim, we apply a two-part analysis.” Welch v. U.S., 409 F.3d 646,
652 (4th Cir. 2005) (citing Crumpton v. Stone, 59 F.3d 1400, 1403 (D.C. Cir. 1995). Courts first
ask whether a “federal statute, regulation, or policy specifically prescribes a course of action for
an employee to follow.” Crumpton, 59 F.3d at 1403 (quoting United States v. Gaubert, 499 U.S.
315, 322 (1991)). “Second, if a specific action is mandated, we inquire as to whether the officer
exercised due care in following the dictates of that statute or regulation.” Welch, 409 F.3d at
652. “If due care was exercised, sovereign immunity has not been waived.” Id. at 652.
Here, the Government first detained Plaintiff pursuant to 8 U.S.C. § 1226(c)(1)(B), which
requires the pre-removal-order detention of criminal aliens. See 8 U.S.C. § 1226(c)(1)(B) (“[t]he
Attorney General shall take into custody any alien who . . . is deportable by reason of having

5

Plaintiff may also be collaterally estopped from litigating his claim to United States citizenship based on
the BIA’s final order of removal. See Purdy v. Zeldes, 337 F.3d at 258 (“Under federal law, collateral estoppel
applies when ‘(1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and
decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the
resolution of the issue was necessary to support a valid and final judgment on the merits.’”)(footnotes and citation
omitted); see also Harrison v. Lutheran Med. Ctr., 468 F. App’x 33, 35 (2d Cir. 2012); Marvel Characters, Inc. v.
Simon, 310 F.3d at 288–89 (citing Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir. 1998)).

10

committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title”)
(emphasis added). After Plaintiff admitted the allegations in the Notice to Appear and the I-261
and both an Immigration Judge and the BIA found him removable, Plaintiff remained detained
pursuant to 8 U.S.C. § 1231(a), which controls the detention and removal of an alien subject to
a final order of removal. See 8 U.S.C. § 1231(a)(2) (“During the removal period, the Attorney
General shall detail the alien. Under no circumstance during the removal period shall the
Attorney General release an alien who has been found inadmissible under section 1182(a)(2)
. . . of this title or deportable under section 1227(a)(2) . . . of this title.”). The “shall” language in
both statutes prescribes a mandatory course of action. Thus, because the decision to detain
Plaintiff was statutorily required, the first prong of the Crumpton test is met.
As to the second prong of the Crumpton test—whether the immigration authorities
acted with “due care” in the execution of their statutorily prescribed duty—Plaintiff has not
alleged that ICE officers “carried out their responsibilities in an inappropriate manner, or in any
way deviated from the statute’s requirements.” Welch, 409 F.3d at 652. Instead, Plaintiff’s
“complaint is with the officers’ decision to detain him in the first instance.” Id. Plaintiff
repeatedly asserts that he is a United States citizen and thus should never have been detained;
however, he fails to inform the Court that an Immigration Judge and the BIA had previously
rejected his derivative citizenship claim and found him removable. Plaintiff is thus subject to a
final order of removal. Therefore, “it cannot be said that the officers acted with anything other
than due care.” Id. Because the “due care” exception applies, the United States has not
consented to be sued, and the Court must dismiss the case. See id. (finding that “due care”
exception applied to prevent alien from recovering on false imprisonment theory for his
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detention for more than 420 days while awaiting deportation); Nwozuzu v. United States, No.
14-CV-8589, 2015 WL 4865772 (LGS) (S.D.N.Y. Aug. 12, 2015) (dismissing FTCA claim for lack of
subject matter jurisdiction based on the “due care exception” where Plaintiff, a United States
citizen, was detained pursuant to statute that authorizes the mandatory detention of aliens).
6.

Dismissal of this Action is Warranted Due to Lack of Subject Matter
Jurisdiction Because Plaintiff Has Failed to Exhaust His Administrative
Remedies

For this Court to have jurisdiction over Plaintiff's claims, Plaintiff must satisfy all of the
FTCA’s requirements. See In re Agent Orange Prod. Liability Litig., 818 F.2d 210, 214 (2d Cir.
1987); Morales v. United States, 38 F.3d 659, 660 (2d Cir. 1994) (requiring a plaintiff who sues
the United States to “compl[y] with all statutory and regulatory prerequisites to such a suit.”).
“The burden is on the plaintiff to both plead and prove compliance with the statutory
requirements [of the FTCA].” In re Agent Orange, 818 F.2d at 215 (citation omitted). The FTCA
plainly states that “[a] tort claim against the United States shall be forever barred unless it is
presented in writing to the appropriate Federal agency within two years after such claim
accrues or unless action is begun within six months after the date of mailing, by certified or
registered mail, of notice of final denial of the claim by the agency to which it was presented.”
28 U.S.C. §2401(b). Failure to exhaust administrative remedies “foreclose[s]” a plaintiff from
invoking the FTCA to secure jurisdiction over the United States. Millares Guiraldes de Tineo v.
United States, 137 F.3d 715, 719 (2d Cir. 1998); see Celestine v. Mount Vernon Neighborhood
Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005) (characterizing the exhaustion requirement as a
“jurisdictional” prerequisite to suit that “cannot be waived”).

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Here, Plaintiff fails to meet his burden in pleading and proving that he exhausted his
administrative remedies before filing this suit in federal court. Plaintiff has failed to allege that
he sought agency relief from DHS prior to initiating this lawsuit. Accordingly, the matter should
be dismissed for lack of subject matter jurisdiction. See Bellanich v. Doe, 164 Fed. Appx. 193 (2d
Cir. 2006) (affirming district court’s sua sponte dismissal and finding that the “district court
properly concluded that it lacked subject matter jurisdiction over [the plaintiff’s] tort claim
against the Veterans Administration because [the plaintiff] failed to allege or demonstrate that
he had timely exhausted administrative remedies under the FTCA”) (citing Johnson v.
Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999)); see also Wang v. United States, 61 F. App’x
757, 759 (2d Cir. 2003) (finding failure to file an administrative claim within the specified twoyear period “may operate as a jurisdictional bar to proceeding in federal court”); Alkatabi v.
U.S. Dep’t. of Justice I.N.S. Service, 777 F. Supp. 271, 274 (S.D.N.Y. 1991) (dismissing FTCA claim
against the INS where Plaintiffs did not “pursue agency relief prior to initiating this lawsuit”);
Southeast Grand Street Guild Fund Co., Inc. v. U.S. Dept. of Housing and Urban Devel., 1992 WL
73419, *7 (S.D.N.Y. Mar. 31, 1992) (“[Plaintiff’s tort claims] are nonetheless barred because
there has been no administrative claim as required by 28 U.S.C. §2675.”).
B.

The Rule 12(b)(6) Motion

Even assuming, arguendo, that this Court had subject matter jurisdiction over Plaintiff’s
claim, the Court should still dismiss the action under Federal Rule of Civil Procedure 12(b)(6).
Plaintiff has failed to state a plausible claim for relief for negligence, negligent training, hiring
and supervision, false imprisonment, or any other cause of action under the FTCA.

13

1.

Legal Standard

When presented with a motion to dismiss under Rule 12(b)(6), a court must accept as
true all non-conclusory factual allegations in the plaintiff’s complaint, together with the
contents of any documents “integral” to the complaint and any matters of which the Court may
take judicial notice, and draw all reasonable inferences in favor of the plaintiff. See Doe v.
Columbia Univ., 831 F.3d 46, 48 (2d Cir. 2016); McCarthy v. Dun & Bradstreet Corp., 482 F.3d
184, 191 (2d Cir. 2007). However, allegations in a complaint that are “contradicted by more
specific allegations or documentary evidence are not entitled to a presumption of truthfulness.”
Frigerio v. United States, No. 10-CV-9086, 2011 WL 3163330, at *6 (S.D.N.Y. July 22, 2011). The
complaint must 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. 602, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations “must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555. If the plaintiff has not
“nudged his claims across the line from conceivable to plausible, [the] complaint must be
dismissed.” Id. at 570.
2.

Dismissal of this Action is Warranted for Failure to State a Claim

Defendants argue that Plaintiff has failed to state a plausible claim for relief because
Plaintiff has been adjudicated not to be a United States citizen. Therefore, according to
Defendants, Plaintiff’s purported FTCA claims, premised on his allegation that he is a United
States citizen, must fail. The Court agrees. As discussed above, Defendants detained Plaintiff
pursuant to 8 U.S.C. § 1226(c)(1)(B), which requires the pre-removal-order detention of criminal
aliens. It directs, in pertinent part, that “[t]he Attorney General shall take into custody any alien
14

who . . . is deportable by reason of having committed any offense covered in section
1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title.” 8 U.S.C. 1226(c)(1)(B) (emphasis added).
Plaintiff’s detention was thus required under the law. Further, Plaintiff admitted the allegations
in the Notice to Appear and the I-261. On the basis of Plaintiff’s admissions, an Immigration
Judge and the BIA found Plaintiff removable as charged. The court can take judicial notice of
these decisions. See Lia v. Sporito, 909 F. Supp. 2d 149, 161 (E.D.N.Y. 2012) (citations omitted).
Once Plaintiff’s removal order became final on March 8, 2016 (the date of the BIA’s decision),
Plaintiff remained detained pursuant to 8 U.S.C. § 1231(a), which controls the detention and
removal of an alien subject to a final order of removal. Because Plaintiff had been adjudicated
removable as charged, the Attorney General unquestionably had the authority to detain him
from March 8, 2016 until his release on June 6, 2016. 6 Indeed, the Attorney General was
statutorily required to do so. See 8 U.S.C. § 1231(a)(2) (“During the removal period, the
Attorney General shall detail the alien. Under no circumstance during the removal period shall
the Attorney General release an alien who has been found inadmissible under section
1182(a)(2) . . . of this title or deportable under section 1227(a)(2) . . . of this title.”). Given these
facts, it is not plausible to read Plaintiff’s Complaint as stating a claim for negligence, negligent
training, hiring and supervision, false imprisonment, or any other cause of action available
under the FTCA. As such, the action should be dismissed for failure to state a claim.

6

Section 1231(a) provides that ordinarily, “when an alien is ordered removed, the Attorney General shall
remove the alien from the United States within a period of 90 days.” 8 U.S.C. § 1231(a). Plaintiff was released
within 90 days of his final order of removal.

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III.

Conclusion
For the foregoing reasons, I respectfully recommend that Defendants’ Motion to Dismiss

Plaintiff’s Complaint be GRANTED.
IV.

Objections
In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), the parties shall have

fourteen (14) days (including weekends and holidays) from receipt of this Report to file written
objections. See also FED. R. CIV. P. 6 (allowing three (3) additional days for service by mail). A
party may respond to any objections within fourteen (14) days after being served. Such
objections, and any responses to objections, shall be filed with the Clerk of Court, Pro Se Intake
Unit, United States Courthouse, 500 Pearl Street, Room 200, New York, New York 10007. Any
requests for an extension of time for filing objections must be directed to Judge Kaplan.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER
OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. (See Thomas v. Arn, 474 U.S. 140,
155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v.
Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir.
1988); McCarthy v. Manson, 714 F.2d 234, 237–38 (2d Cir. 1983)).
The Clerk of Court is directed to mail a copy of this Report and Recommendation to
Plaintiff.
Respectfully submitted,
s/ Ona T. Wang
Ona T. Wang
United States Magistrate Judge

Dated: June 26, 2019
New York, New York

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