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Juste v. Embassy of Haita

United States District Court, D. South Carolina

February 24, 2017

Andre Juste, #078-367-619, Plaintiff,
v.
Embassy of Haiti, Todd L. Tyon, Jeffery L Crane, Michael T. Phillips, Payman Juanita, William J. Hochul, Jr., Gail Y. Mitchell, 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 the embassy issued travel documents while Plaintiff's removal proceedings were still pending. Plaintiff alleges he has lived in the U.S. since his entry date in 1993 and is a descendant of Holland, not Haiti. He says he has this same case pending in other courts. His allegations involve fraud, forgery, and unlawful reproduction of identification documents. Plaintiff cites 18 U.S.C. § 1001(a)(2), 18 U.S.C. § 18, 18 U.S.C. § 1546, 18 U.S.C. § 1621, 18 U.S.C. § 1581, 8 U.S.C. § 1324C, 28 U.S.C. § 1917, 5 U.S.C. § 551, Bivens, and Eighth and Fourth Amendment violations. As for injuries, he states emotional distress and anxiety. He requests monetary damages. He states he has a Second Circuit Court of Appeals Docket No. 15-3430. Plaintiff appealed his order of removal on October 16, 2015, to the Second Circuit. On February 18, 2016, the Second Circuit Court of Appeals granted a motion to dismiss and the case was terminated.

         Plaintiff attached the following documents: “ Notice of Intent to Issue a Final Administrative Removal Order;” “Final Administrative Removal Order;” Warrant of Removal/Deportation;” a letter from I.C.E. to the Embassy of Haiti; documents in a foreign language; and birth certificate. Plaintiff states that: he is detained in New York; Defendant Embassy is located in Washington, D.C; Defendants Tyon, Crane, Phillips, Juanita, Hochul, and Mitchell are located in New York; and Defendant Martinez is located in West Virginia. Plaintiff seeks monetary damages.

         DISCUSSION

         Defendant Embassy of Haiti

         Plaintiff states the Embassy issued travel documents without his knowledge. An embassy is a foreign state for purposes of the Foreign Sovereign Immunities Act (FSIA)(28 U.S.C. § 1602, et sq.). Howe v. Embassy of Italy, 68 F.Supp.3d 26, 31 (D. D.C. Sept. 11, 2014). In suits brought pursuant to FSIA, the traditional tenets of personal jurisdiction do not apply in the same way; because foreign sovereigns are not persons the court does not determine if exercise of personal jurisdiction conforms to constitutional limits. In deciding whether to exercise jurisdiction over a foreign state pursuant to the FSIA, courts must conduct a two-pronged inquiry to determine: “(1) whether service of the foreign state was accomplished properly, and (2) whether one of the statutory exceptions to sovereign immunity applies.” Abur v. Republic of Sudan, 437 F.Supp.2d 166, 171-72 (D.D.C. 2006); see also 28 U.S.C. §§ 1330(a)-(b). The question is whether there is an applicable exception to 28 U.S.C. § 1604 jurisdictional immunity under 28 U.S.C. § 1605. Plaintiff has not pleaded sufficient facts of an exception to jurisdictional immunity for Defendant Embassy of Haiti, and thus, Defendant Embassy of Haiti is subject to summary dismissal for a lack of personal jurisdiction.

         Federal Employee Defendants Tyon, Crane, Phillips, Juanita, Hochul, Martinez, and Mitchell-Official Capacity

         The remaining Defendants are individual federal employees. Plaintiff's 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 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. ...


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