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Juste v. Ottis

United States District Court, D. South Carolina

February 3, 2017

Andre Juste, #078-367-619, Plaintiff,
v.
Lt. Gay T. Ottis, C. Moore, Individual Detention Center Officers, Immigration and Customs Enforcement Agent, U.S. Immigration and Customs Enforcement, I.C.E. Department of Homeland Security, Agent Martinez, Defendants.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action filed by a pro se litigant who indicates that he is an immigration detainee.[1] Because Plaintiff cannot leave the facility where he is detained on his own, in the event that a limitations issue arises, Plaintiff shall have the benefit of the holding in Houston v. Lack, 487 U.S. 266 (1988) (prisoner's pleading was filed at the moment of delivery to prison authorities for forwarding to District Court). Under Local Civil Rule 73.02(B)(2) of the United States District Court for the District of South Carolina, pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.

         STANDARD OF REVIEW

         Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).

         This complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted, ” “is frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolity can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).

         This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint may be subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).

         BACKGROUND

         Plaintiff alleges that he was physically assaulted while handcuffed after he refused to sign some documents. Plaintiff alleges Defendants brutally took his fingerprints and twisted his hands, wrists, and fingers. Plaintiff states that: he is detained in New York; Defendant Ottis is in Florida; Defendant Moore is in Florida; Defendants Individual Officers are in Florida; Defendant ICE agents are in Florida; and Agent Martinez is in West Virginia. Plaintiff states that the event occurred in Florida. Plaintiff seeks monetary damages.

         DISCUSSION

         Federal Agency Defendants

         Plaintiff brings suit against Immigration and Customs Enforcement (ICE) and the Department of Homeland Security(DHS) and as such his constitutional claims are analyzed under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971), which “established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). A Bivens claim is analogous to a claim under 42 U.S.C. § 1983. However, federal officials cannot be sued under § 1983, because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 & n.30 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir.1988) (abrogated on other grounds in Johnson v. Jones, 515 U.S. 304 (1995)).

         Sovereign immunity deprives this court of subject matter jurisdiction over federal agencies, as a Bivens action may not be brought against agencies of the United States. Corr. Servs. Corp v. Malesko, 534 U.S. 61, 69-70, 72 (2001)(“prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP. With respect to the alleged constitutional deprivation, his only remedy lies against the individual.”); FDIC v. Meyer, 510 U.S. 471, 486 (1994); Welch v. U.S., 409 F.3d 646, 650 (4th Cir. 2005). Thus, Defendants ICE and DHS should be summarily dismissed.

         Federal Employee Defendants-official capacity

         “Any remedy under Bivens is against federal officials individually...” Randall v. United States, 95 F.3d 339, 345 (4th Cir.1996). A Bivens action cannot lie against Defendants Ottis, Moore, Martinez, Detention Officers, and ICE Agent in their official capacities. See Doe v. Chao, 306 F.3d 170, 184 (4th Cir.2003). Accordingly, Plaintiff's Bivens claims should be dismissed as to Defendants ...


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