ABDELAZIM v. SIMMONS et al

Filing 5

MEMORANDUM OPINION, AND ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 3/2/2018. ORDERED that Plaintiff's Application (Docket Entry 1 ) is GRANTED for the limited purpose of considering this recommendati on of dismissal. RECOMMENDED that this action be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for being frivolous, failing to state a claim on which relief may be granted, and seeking monetary damages from immune defendants.(Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MOHAMED ABDELAZIM,
Plaintiff,
v.
JUDGE THERESA HOLMES SIMMONS,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

1:18cv15

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

matter

comes

before

the

undersigned

United

States

Magistrate Judge on the Application to Proceed in District Court
Without Prepaying Fees or Costs (the “Application”) (Docket Entry
1) filed by Mohamed Abdelazim (the “Plaintiff”) in conjunction with
his pro se Complaint (Docket Entry 2) against Judge Theresa Holmes
Simmons (“Judge Simmons”), “DHS/Office of Chief Counsel” (the
“Government Attorney”), the Board of Immigration Appeals (the “BIA”
and, collectively, the “Government Defendants”), and Christopher
Greene (“Greene”) (id. at 2-3).1

The undersigned will grant the

Application for the limited purpose of recommending dismissal of
this action.

1 Citations herein to Docket Entry pages utilize the CM/ECF
footer’s pagination. For readability purposes, this Opinion uses
standardized capitalization and spelling in all quotations from
Plaintiff’s materials.

IN FORMA PAUPERIS PRINCIPLES
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts solely because
his poverty makes it impossible for him to pay or secure the
costs.”
Cir.

Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th

1995)

(en

banc)

(internal

“Dispensing

with

filing

fees,

quotation

however,

[i]s

marks
not

omitted).

without

its

problems. . . . In particular, litigants suing in forma pauperis
d[o] not need to balance the prospects of successfully obtaining
relief against the administrative costs of bringing suit.” Nagy v.
FMC Butner, 376 F.3d 252, 255 (4th Cir. 2004).

To address this

concern, the in forma pauperis statute provides that “the court
shall dismiss the case at any time if the court determines that
. . . the action . . . (i) is frivolous[,] . . . (ii) fails to
state a claim on which relief may be granted[,] or (iii) seeks
monetary relief
relief.”

against

a

defendant

who

is

immune

from

such

28 U.S.C. § 1915(e)(2)(B).

As to the first of these grounds, “a complaint, containing as
it

does

both

factual

allegations

and

legal

conclusions,

is

frivolous where it lacks an arguable basis either in law or in
fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

‘frivolous’

is

inherently

elastic

and

not

“The word

susceptible

to

categorical definition. . . . The term’s capaciousness directs

2

lower courts to conduct a flexible analysis, in light of the
totality of the circumstances, of all factors bearing upon the
frivolity of a claim.”

Nagy, 376 F.3d at 256–57 (some internal

quotation marks omitted).

In determining frivolousness, the Court

may “apply common sense.”

Nasim, 64 F.3d at 954.

As to the second ground, a plaintiff “fails to state a claim
on which relief may be granted,” 28 U.S.C. § 1915(e)(2)(B)(ii),
when the complaint does not “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) (emphasis

added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

“Where

a

complaint

pleads

facts

that

are

merely

consistent with a defendant’s liability, it stops short of the line
between possibility and plausibility of entitlement to relief.”
Id. (internal quotation marks omitted).
more

than

accusation.”

an

unadorned,

Id.

This standard “demands

the-defendant-unlawfully-harmed-me

In other words, “the tenet that a court must

accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.
elements of

a

cause

of

Threadbare recitals of the

action, supported

statements, do not suffice.”

by

mere

conclusory

Id.2

2 Although the United States Supreme Court has reiterated
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
3

The final ground generally applies to situations in which
doctrines

established at

common

law

or

by the

United States

Constitution immunize governments and/or government personnel from
liability for monetary damages.

See, e.g., Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89 (1984) (discussing sovereign
immunity

of

Amendment);

states
Pierson

and
v.

state
Ray,

officials

386

U.S.

547

under

the

(1967)

Eleventh

(describing

interrelationship between 42 U.S.C. § 1983 and common-law immunity
doctrines, including judicial immunity); cf. Allen v. Burke, 690
F.2d 376, 379 (4th Cir. 1982) (noting that, even where “damages are
theoretically available under [certain] statutes . . ., in some
cases, immunity doctrines and special defenses, available only to
public officials, preclude or severely limit the damage remedy”
(internal quotation marks omitted)).
Furthermore, federal courts possess limited jurisdiction, such
that they may “exercise only the authority conferred by Article III
of the Constitution and affirmatively granted by federal statute.”

marks and citation omitted), the United States Court of Appeals for
the Fourth Circuit has “not read Erickson to undermine Twombly’s
requirement that a pleading contain more than labels and
conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th
Cir. 2008) (internal quotation marks omitted) (affirming dismissal
of pro se complaint); accord Atherton v. District of Columbia
Office of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se
complaint . . . ‘must be held to less stringent standards than
formal pleadings drafted by lawyers.’
But even a pro se
complainant must plead ‘factual matter’ that permits the court to
infer ‘more than the mere possibility of misconduct.’” (first
quoting Erickson, 551 U.S. at 94; then quoting Iqbal, 556 U.S. at
679)).
4

In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998).
No presumption of jurisdiction applies, Pinkley, Inc. v. City of
Frederick, 191 F.3d 394, 399 (4th Cir. 1999); instead, federal
courts must determine if a valid jurisdictional basis exists and
“dismiss the action if no such ground appears,” Bulldog Trucking,
147 F.3d at 352; see also Constantine v. Rectors & Visitors of
George Mason Univ., 411 F.3d 474, 480 (4th Cir. 2005) (“A federal
court has an independent obligation to assess its subject-matter
jurisdiction,

and

it

will

‘raise

a

lack

of

subject-matter

jurisdiction on its own motion.’”); 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.”).

Facts

supporting jurisdiction must appear in the complaint, Pinkley, 191
F.3d at 399, and the party asserting federal jurisdiction bears the
burden of “show[ing] that jurisdiction does, in fact, exist,” Davis
v. Pak, 856 F.2d 648, 650 (4th Cir. 1988) (internal quotation marks
omitted).

The Court may consider subject-matter jurisdiction in

assessing frivolity under Section 1915(e)(2)(B)(i).

See Cummings

v. Rahmati, No. 1:17cv196, 2017 WL 1194364, at *1 (M.D.N.C. Mar.
30, 2017), recommendation adopted, slip op. (M.D.N.C. Apr. 20,
2017).
BACKGROUND
In his pro se Complaint, Plaintiff asserts claims under Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

5

U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C.
§§

1346(b),

2671-2680

(the

“FTCA”),

against

Greene

and

the

Government Defendants for allegedly improper conduct regarding
Plaintiff’s deportation proceedings.

(See Docket Entry 2 at 4.)

Construed liberally, see Erickson v. Pardus, 551 U.S. 89, 94
(2007), the Complaint asserts the following:
Plaintiff

hired

Greene

to

represent

him

in

immigration

proceedings, including in filing an application for asylum and for
relief under the Violence Against Women Act (the “VAWA”).
Entry 2 at 5-7.)
sexual

(Docket

Greene has since been disbarred for engaging in

relationships

with

his

immigration

clients,

acknowledges “were ‘especially vulnerable’” (id. at 8).

who

he

(See id.

at 8-9; see also id. at 16-22 (disciplinary orders and notices).)
Among other improper acts during his representation of Plaintiff,
Greene failed to file the VAWA application, misappropriated funds
Plaintiff paid him, repeatedly missed appointments, deadlines, and
court dates, “misled [the Immigration] Court” (id. at 5), lied to
Plaintiff, failed to introduce evidence that Plaintiff gathered in
support

of

his

immigration

petitions,

failed

to

explain

the

immigration proceedings and their implications to Plaintiff, and
“targeted

a

vulnerable

immigrant

immigration services” (id. at 9).

by

providing

fraudulent

(See id. at 5-7, 9-11, 13.)

Greene further failed to appeal an adverse immigration decision
from a “final hearing on January 25, 2013,” even though he “assured

6

[Plaintiff] that an appeal would be filed” and collected “$11,000
dollars for [the] appeal and [a] work authorization [application],”
which he also failed to pursue.

(Id. at 6.)3

Greene additionally

failed to inform Plaintiff of a decision granting him “voluntary
departure on June 25, 2013[,] for a period not to exceed 120 days.”
(Id.)

Greene

also

failed

to

“utilize

an

interpreter”

in

communicating with Plaintiff, even though he “was unsure what
[Plaintiff] understood” regarding the immigration proceedings.
(Id.)
Relatedly, Judge Simmons’s “failure to have an interpreter
directly ask [Plaintiff] if he, indeed, needed foreign language
interpreters”

injured

Plaintiff,

as,

“[i]n

the

absence

of

a

translator/interpreter, [Plaintiff] was guided by his attorney”
(id. at 10), who engaged “in ex parte communications [with Judge
Simmons] that compromised [Plaintiff’s] case . . . and discredited
Plaintiff’s case in Immigration Court” (id. at 4).

“Due to

[Greene’s] fraud and ineffective counsel, Judge [Simmons] ordered
[Plaintiff] removed.”

(Id. at 5.)

More particularly, Greene’s

“[m]ultiple fabrications led [Judge Simmons] to order [Plaintiff’s]
removal.”

(Id.)

“The conduct of counsel and the Immigration

Court’s willingness to believe his fabrications poses a great
threat to an immigrant’s belief in fairness and integrity in the

3 “This [wa]s the last fee of what amounted to more than
$30,000, [Plaintiff’s] life’s savings.” (Id. at 5.)
7

judicial system.” (Id.) Judge Simmons and the BIA further “failed
to

consider

whether”

Greene’s

“ineffective

representations

. . . accounted for his perceived evasiveness, inconsistencies, or
demeanor in [Greene’s] statements to [Judge Simmons]” or the
“ostensible inconsistencies [that] the BIA rel[ied] upon to sustain
[Judge Simmons’s] adverse credibility finding.”
Ultimately,

Greene’s

decision

“to

lie

and

(Id. at 13.)

[Judge

Simmons’s]

decision to accept his lies . . . as facts, could cost [Plaintiff
his] life.”

(Id.)

In short, “the government failed to protect Plaintiff, and
individuals who lacked the proper training and oversight violated
Plaintiff’s

constitutional

rights,

causing

physical and psychological injuries.”
(“argu[ing]

that

the

Immigration

Plaintiff

profound

(Id. at 4; see also id.

Court

empowered

individual

officials to violate the immigrant’s constitutional rights”).)

As

such, Plaintiff seeks $45,000 in damages from Greene, as well as
“$45,000 for pain and suffering from [Greene] and the United States
Government.”

(Id. at 13.)

Plaintiff further seeks an order

reopening his immigration proceedings (see id.), which apparently
culminated in a BIA decision in or around September 2017 (see id.
at 23-24 (presenting notice dated September 28, 2017, of BIA
decision)). In that regard, Plaintiff asks that the defendants “be
ordered [(i)] to adjust [his] status as Plaintiff believes he is
entitled” and (ii) to engage in “fair and unbiased adjudication for

8

application to prevent removal.”

(Id. at 11.)

Finally, Plaintiff

asks “the Court to grant an Emergency Stay of Removal.”

(Id. at

14.)
ANALYSIS
I. Bivens Claims
The United States Supreme Court has recognized an implied
private right of action for violations of constitutional rights by
federal officials in certain circumstances.
at 389, 395-97.
that

“a

See Bivens, 403 U.S.

To state a Bivens claim, Plaintiff must allege

federal

agent

acting

under

color

of

his

[federal]

authority” violated Plaintiff’s constitutional rights. Id. at 389;
see also Conner v. Hart, No. 7:10cv17, 2010 WL 149893, at *1 (W.D.
Va. Jan. 14, 2010) (“To state a claim under Bivens, a plaintiff
must allege that a federal officer acted under federal law to
deprive

plaintiff

of

a

constitutional

right.”).

Moreover,

Plaintiff cannot pursue Bivens claims “against officials sued in
their official

capacity

only.”

Howard

v. Federal

Bureau

of

Prisons, No. 99-6708, 198 F.3d 236, 1999 WL 798883, at *1 (4th Cir.
1999) (unpublished); see also Randall v. United States, 95 F.3d
339, 345 (4th Cir. 1996) (“Bivens did not abolish the doctrine of
sovereign immunity of the United States.
is

against

federal

officials

Any remedy under Bivens

individually,

government.”).

9

not

the

federal

Construed liberally, the Complaint asserts that Greene and the
Government Defendants violated Plaintiff’s “constitutional [rights]
of due process and equal protection of the law.”
at 4.)

(Docket Entry 2

However, Plaintiff selected only the “Official capacity”

option in identifying the capacity in which he sued each defendant.
(See

id.

at

2-3

(checking

“Official

capacity”

box,

but

not

“Individual Capacity” box, for each defendant).) Because Plaintiff
cannot pursue only official capacity claims under Bivens, his
Bivens claims fail as a matter of law.

See Howard, 1999 WL 798883,

at *1. To the extent, however, that Plaintiff also seeks to assert
Bivens claims against Greene and the Government Defendants in their
individual capacities, such claims likewise fail, for at least four
reasons.
First, as Plaintiff’s privately hired attorney (see Docket
Entry 2 at 5-6), Greene does not qualify as a federal official for
Bivens purposes.

See, e.g., Conner, 2010 WL 149893, at *1 (“A

private attorney is not is not a federal officer for purposes of a
Bivens

action.”)

(collecting

cases).

Moreover,

because

the

Complaint lacks any non-conclusory allegations of a conspiracy
between Greene and the Government Defendants (see generally Docket
Entry 2), Greene’s actions cannot constitute federal action under
Bivens.

See Pandey v. Freedman, No. 95-1038, 66 F.3d 306, 1995 WL

568490, at *3 (1st Cir. 1995) (unpublished) (“[The plaintiff’s]
wholly conclusory allegations of conspiracy between [his court-

10

appointed defense counsel] and the United States Attorney are not
sufficient to convert the private attorney’s actions into federal
action for purposes of the Bivens claims.”).

Thus, Plaintiff’s

Bivens claim against Greene fails as a matter of law.

See, e.g.,

Conner, 2010 WL 149893, at *1 (“[T]he court finds that [the
plaintiff’s] attempt to impose liability upon his former defense
counsel under Bivens is a meritless legal theory and is dismissed
as frivolous.”).
Second, the Complaint contains no factual allegations against
the unnamed Government Attorney.

(See generally Docket Entry 2.)

Accordingly, it fails to state a claim against this individual.
See Iqbal, 556 U.S. at 678.

Moreover, prosecutorial immunity

shields this Government Attorney from liability for any actions
taken in prosecuting Plaintiff’s immigration proceedings.

See

Partovi v. Beamer, Civ. Action No. 10-689, 2011 WL 6300925, at *8
(D. Haw. Dec. 16, 2011) (“If an action was part of the judicial
process, the prosecutor is entitled to absolute immunity regardless
of whether he violated the civil plaintiff’s constitutional rights.
[The defendant’s] actions taken while prosecuting [the plaintiff’s]
immigration proceedings are clearly covered by the doctrine of
prosecutorial immunity.” (citation and emphasis omitted)); see also
Butz v. Economou, 438 U.S. 478, 515-17 (1978) (concluding “that
agency officials performing certain functions analogous to those of
a prosecutor should be able to claim absolute immunity with respect

11

to such acts,” including the “decision to initiate or continue a
proceeding,” as well as actions taken “in conducting a trial and
presenting

evidence

on

the

record

to

the

trier

of

fact”).4

Accordingly, Plaintiff’s claim against the Government Attorney
cannot proceed.
Third, immunity doctrines also foreclose Plaintiff’s Bivens
claims against Judge Simmons and the BIA.

Plaintiff’s allegations

regarding these defendants relate entirely to their conduct in
adjudicating his immigration proceedings. (See, e.g., Docket Entry
2 at 5 (asserting injury from “counsel[’s decision] to lie and the
Immigration Judge’s decision to accept his lies . . . as facts,” as
well as from “the Immigration Court’s willingness to believe
[counsel’s] fabrications”).)

As such, judicial immunity shields

Judge Simmons and the BIA from Plaintiff’s Bivens claims, including
his request for an order directing the reopening and “fair and
unbiased adjudication” (id. at 11) of his immigration proceedings.
See Clay v. Osteen, No. 1:10cv399, 2010 WL 4116882, at *3-4
(M.D.N.C. Oct. 19, 2010) (analyzing judicial immunity doctrine in
monetary damages and injunctive relief contexts); see also, e.g.,
Pearson v. District Attorney Billy W., No. 5:16-CT-3182, 2017 WL
5163368, at *5 (E.D.N.C. June 26, 2017) (“[J]udges have absolute
immunity from a claim for damages arising out of their judicial

4 Generally, the same immunity doctrines apply to federal
officials in the Bivens context as apply to state officials in the
42 U.S.C. § 1983 context. See Butz, 438 U.S. at 499-504.
12

actions.

Not only are judge[s] immune from claims for monetary

damages, they are immune from requests for injunctive relief.”
(citations omitted)), report and recommendation adopted sub nom.
Pearson v. West, No. 5:16-CT-3182, 2017 WL 5163235 (E.D.N.C. Nov.
7, 2017).

In addition, the Complaint’s conclusory allegations of

wrongdoing by Judge Simmons and the BIA lack “sufficient factual
matter . . . to state a claim to relief that is plausible on its
face.”

Iqbal, 556 U.S. at 678 (internal quotation marks omitted).

Accordingly, the Court must dismiss Plaintiff’s Bivens claims
against Judge Simmons and the BIA.
Fourth, Plaintiff cannot pursue a Bivens action under the
circumstances of this case.

As an implied right of action, a

Bivens claim cannot attach in circumstances where “there is any
alternative,

existing

process

for

protecting

the

plaintiffs’

interests.” Mirmehdi v. United States, 689 F.3d 975, 982 (9th Cir.
2012)

(internal

quotation

marks

omitted).

“‘Congress

has

established a substantial, comprehensive, and intricate remedial
scheme in the context of immigration.’”

Id. (quoting Arar v.

Ashcroft, 585 F.3d 559, 572 (2d Cir. 2009)).5

In addition, a

detained immigrant can pursue habeas corpus relief.

See id.

(citing Rauschenberg v. Williamson, 785 F.2d 985, 987–88 (11th Cir.
1986)).

Given these alternative remedies, Plaintiff cannot bring

5 Among other aspects, this administrative scheme “provides
for review of final orders of removal.” Arar, 585 F.3d at 572.
13

a Bivens claim regarding the defendants’ alleged wrongdoings in his
immigration proceedings.
II. FTCA Claim
Plaintiff

also

pursues

an

FTCA

claim

for

his

asserted

injuries. Representing a limited congressional waiver of sovereign
immunity for injury “caused by the negligent or wrongful act of a
[Federal] Government employee acting within the scope of his or her
employment,” the FTCA “permits the United States to be held liable
in tort in the same respect as a private person would be liable
under the law of the place where the act occurred.”

Medina v.

United States, 259 F.3d 220, 223 (4th Cir. 2001).

Prior to

bringing an FTCA claim in court, however, a plaintiff must “‘have
first presented the claim to the appropriate Federal agency and his
claim shall have been finally denied by the agency in writing.’”
Id. at 223 n.1 (quoting 28 U.S.C. § 2675(a)).
The Complaint does not allege that Plaintiff presented his
claim to the appropriate agency, let alone that the agency issued
a written denial of such claim.

(See generally Docket Entry 2.)

Accordingly, the Court should dismiss Plaintiff’s FTCA claim for
lack of jurisdiction.
(explaining

that

a

See Bulldog Trucking, 147 F.3d at 352
court

must

“dismiss

the

action

if

no

[jurisdictional basis] appears”); Pinkley, 191 F.3d at 399 (“[T]he
facts

providing

the

court

jurisdiction

must

be

affirmatively

alleged in the complaint.”); Davis, 856 F.2d at 650 (explaining

14

that the party asserting jurisdiction must show that it exists).
Ordinarily, such dismissal would occur without prejudice, to permit
“Plaintiff [to] file this claim in district court again, if and
when the jurisdictional prerequisites have been met.”
Reidell, 465 F. Supp. 2d 528, 534 (D.S.C. 2006).

Sheridan v.
However, in

defending against an FTCA claim, “the United States is entitled to
avail itself of any defenses its agents could raise in their
individual capacities.” Medina, 259 F.3d at 225 n.2. As explained
above, all of the Government Defendants possess absolute immunity
regarding Plaintiff’s allegations (and Greene does not qualify as
a

federal

agent).

Accordingly,

the

United

States

possesses

absolute immunity to Plaintiff’s FTCA claim, rendering futile any
exhaustion

of

jurisdictional

prerequisites.

Under

these

circumstances, the Court should dismiss Plaintiff’s FTCA claim with
prejudice.
CONCLUSION
Plaintiff’s Bivens and FTCA claims fail as frivolous, for
failure to state a claim, and/or due to immunity doctrines.
IT IS THEREFORE ORDERED that Plaintiff’s Application (Docket
Entry 1) is GRANTED for the limited purpose of considering this
recommendation of dismissal.
IT IS RECOMMENDED that this action be dismissed with prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B) for being frivolous, failing

15

to state a claim on which relief may be granted, and seeking
monetary damages from immune defendants.
This 2nd day of March, 2018.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

16