United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
a civil rights action filed by a pro se litigant who
indicates that he is an immigration detainee. 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.
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).
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).
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.).
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.
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)).
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.
Employee Defendants-official capacity
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 ...