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 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.
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.
Embassy of Haiti
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.
Employee Defendants Tyon, Crane, Phillips, Juanita, Hochul,
Martinez, and Mitchell-Official Capacity
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.