Opinion
10-CV-0141S
08-01-2014
SHARIFF ABBAS Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
DECISION and ORDER
INTRODUCTION
Plaintiff Shariff Abbas commenced this pro se action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., and other federal laws, alleging violation of his rights while detained at the Buffalo Federal Detention Facility ("BFDF") in Batavia, the Albany County Jail and the Perry County Correctional Center ("PCCC") in Uniontown, Alabama. Currently before the Court for review pursuant to 28 U.S.C. § 1915(e)(2)(B) is plaintiff's amended complaint, submitted in response to the Court's Order filed on August 16, 2013 ("August 16 Order") (Docket No. 6), which reviewed plaintiff's original complaint (Docket No. 4), dismissed several of the claims asserted therein, and granted plaintiff leave to file an amended complaint. For the reasons set forth below, plaintiff's FTCA claims against the United States related to his treatment at the BFDF may proceed and his remaining claims will be dismissed.
Plaintiff's amended complaint is accompanied by two voluminous bound volumes of exhibits captioned "Exhibit's [sic] Part 1", containing a Table of Contents and exhibits 1-18 and "Exhibit Part 2", containing a Table of Contents and exhibits 19-40. Given the voluminous nature of the exhibits, numbering hundreds of pages, and the manner in which they are bound, which would make scanning them very difficult, the Court has not required the Clerk's Office to scan them into the court's electronic filing system. They will instead be maintained in paper form in a separate file in the Clerk's Office. See note to Docket No. 6.
DISCUSSION
A. Bivens Claims
The August 16 Order directed, inter alia, that plaintiff's FTCA claims stemming from his detention at the Albany County Jail and the PCCC be dismissed; that plaintiff be granted leave to file an amended complaint adding Bivens or other federal claims against individual deportation officers and other personnel at BFDF who he alleges violated his rights; and that in the even he failed to timely file an amended complaint as directed, the Court would issue an Order directing service of the complaint upon the United States as the sole defendant to his medical malpractice claims brought under the FTCA. (Docket No. 5).
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).
The August 16 Order noted that in addition to his FTCA claims, plaintiff's original complaint asserted a variety of violations of his constitutional rights by individual deportation officers and other personnel during his periods of detention at BFDF and that these claims would be actionable against individual defendants under the Bivens doctrine, which allows a plaintiff to pursue constitutional claims against federal officials in their individual capacities for actions taken under color of federal law. See Lombardi v. Whitman, 485 F.3d 73, 78 (2d Cir. 2007) ("[W]here an individual 'has been deprived of a constitutional right by a federal agent acting under color of federal authority,'the individual may bring a so-called Bivens action for damages against that federal agent in an individual capacity, provided that Congress has not forbidden such an action and that the situation presents 'no special factors counseling hesitation in the absence of affirmative action by Congress.'") (internal citations omitted) (quoting Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006). The Court determined, however, that the Bivens claims could not proceed because of plaintiff's failure to name the individual custody officers and other officials who are alleged to have violated his rights as defendants in the caption of the complaint, as required by Rule 10(a) of the Federal Rules of Civil Procedure:
The Court cannot allow such Bivens claims to proceed, however, because of plaintiff's failure to name the individual custody officers and other officials who are alleged to have violated his rights as defendants in the caption of the complaint. Rule 10 of the Federal Rules of Civil Procedure provides that "[t]he title of the complaint must name all the parties" Fed. R. Civ. P. 10(a). Therefore, a party that is not named in the caption of a complaint or amended complaint is not a party to the action.(August 16 Order at 16) (citations omitted). The Court proceeded to note that plaintiff's failure to name in the caption of the complaint the individual defendants against whom he wished to assert Bivens claims would make it infeasible for the Court to determine which of the individual custody officers mentioned in the body of the complaint should be deemed to be defendants to such claims, given the often ambiguous nature of his reference to such individuals. (Id. at 16-17). The Court therefore concluded that "[t]he way to remedy plaintiff's failure to name as defendants in the caption of his complaint those individuals against whom he may seek to assert Bivens claims, as suggested by the allegations set forth in the body of the complaint, is to afford him leave to file an amended complaint which conforms to the requirements of Rule 10(a)." (Id. at 17) (citations omitted). "Accordingly, plaintiff will be afforded the opportunity to file, as directed below, an amended complaint in which he shall name in the caption of the complaint, each of the individuals against whom he intends to assert a Bivens claim or claims, in a manner that conforms to the requirements of Rules 8(a) and 10(a) of the Federal Rules of Civil Procedure." (Id.).
The Court accordingly directed, in the Conclusion of the August 16 Order, that plaintiff be given leave to file an amended complaint conforming to the requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure, and the Court again explicitly advised plaintiff of his duty to list all defendants in the caption of the complaint:
Plaintiff is reminded, as explained above, that if he wishes to assert Bivens or other claims against defendants other than the United States in the amended complaint, he must name those individuals in the caption of the amended complaint and set forth specific allegations with respect to how those individuals violated his rights.(Id. at 21). (emphasis added).
While plaintiff's amended complaint contains allegations that would support Bivens claims (see Amended Complaint, ¶¶ 17-42 passim), it does not name in the caption of the complaint any individuals against whom plaintiff is seeking to assert Bivens clams, nor does the section of the complaint captioned "PARTIES" list any individual defendants. While plaintiff does, in the section of the amended complaint captioned "CONCLUSION", set forth a list of "Federal Employees from (BFDF) Health Division" (Amended Complaint ¶ 57), which includes individuals mentioned elsewhere in the amended complaint in connection with plaintiff's allegations that would be relevant to Bivens claims, the individuals named therein are not listed as defendants in the caption of the amended complaint or in plaintiff's recital of the parties to this action at the beginning of the amended complaint; as noted supra, plaintiff lists only one defendant-the United States-in the complaint caption and in his recital of the parties. Moreover, plaintiff's statement of relief sought at the end of the amended complaint (captioned "PRAYER") demands judgment "against the defendant." (Id. at p. 16) (emphasis added).
Plaintiff divides his claims into two sections of the amended complaint, namely "Medical Malpractice" (Amended Complaint, p. 3-5, ¶¶ 8-16), which contains allegations supportive of his FTCA claims, and "U.S. D.H.S.-ICE Federal Agency and Custody Officers Abuses" (Id. at p.5-14, ¶¶ 17-56), which contains allegations supportive of his Bivens constitutional claims. The Court notes, however, that a number of the allegations set forth in the "Federal Agency and Custody Officers Abuses" section of the complaint are relevant to his FTCA malpractice claims. See, e.g., Amended Complaint, ¶ 21.
Plaintiff's failure to include in the caption of the amended complaint the names of any defendants against whom he is asserting Bivens claims is not the only instance of his disregard of the Court's directives regarding the form and content of his amended complaint. The August 16 Order noted that many of the Bivens claims that plaintiff's allegations would support against individuals identified in the body of the complaint appeared to be barred by the statute of limitations. August 16 Order at 18. The Court accordingly directed as follows:
In the amended complaint that plaintiff will be given leave to file, as provided below, in which he must demonstrate either that his Bivens claims stemming from his incarceration at BFDF are timely or, if any such Bivens claims are untimely, he must allege facts demonstrating why equitable tolling should be applied to the statute of limitations periods for such claims.(August 16 Order at 19). As noted supra, the August 16 Order provided that plaintiff would be given leave to file an amended complaint with respect to his Bivens claims, and plaintiff was further advised, in this regard, "that he should address the timeliness of any Bivens claims that he asserts in the amended complaint and any argument as to why the limitations period applicable to such claims should be equitably tolled." (August 16 Order at21). However, plaintiff's amended complaint does not address the timeliness issue or offer any basis for equitable tolling of the limitations period. Given the Court's dismissal herein of the Bivens claims based upon plaintiff's failure to identify the defendants against whom he seeks to assert such claims, the Court need not further address the timeliness issue.
Plaintiff further disregarded the August 16 Order to the extent that he reasserts claims stemming from his detention at the Albany County Jail from February 21, 2006-March 21, 2006, and the Perry County Correctional Center ("PCCC") in Uniontown Alabama from August 5, 2006-February 9, 2007. (Amended Complaint at ¶¶ 14, 15, 28-40). The August 16 Order dismissed the claims stemming from plaintiff's incarceration at those facilities pursuant to 28 U.S.C. § 1406(a) for improper venue. (August 16 Order at 13-14). Those claims remain dismissed.
The Court's duty to construe liberally the pleadings of pro se litigants does not absolve pro se litigants from the duty to comply with the requirements of the Federal Rules of Civil Procedure and court orders issued pursuant to those rules. See, e.g., Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) (noting that pro se litigants are required to familiarize themselves with procedural rules and comply with such rules); McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988) ("[W]hile pro se litigants may in general deserve more lenient treatment than those represented by counsel, all litigants, including pro ses, have an obligation to comply with court orders. When they flout that obligation they, like all litigants, must suffer the consequences of their actions.")). As discussed supra, this Court's previous order explained to plaintiff the requirement of Rule 10(a) that all defendants to an action be named and identified as such in the caption to the complaint, and the Court afforded him the opportunity to cure the defect in his initial complaint by filing an amended complaint naming all defendants. Plaintiff has inexplicably failed to comply with the Court's order and the requirement of Rule 10 (a). Accordingly, to the extent that plaintiff seeks to bring Bivens claims against individual Custody Officers and other BFDF officials, see Amended Complaint, ¶ 58 ("Plaintiff want [sic] this Court to bring Justice against Federal Agency Employees who Violate constitutional law against Plaintiff's rights"), such claims must be dismissed in light of his failure to name those individuals as defendants in the caption of the amended complaint. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1262-63 (9th Cir. 1992) (dismissing action for refusal to comply with court orders to name defendants in the caption as required by Rule 10(a)).
Moreover, as explained in the August 16 Order (pp. 14-15), constitutional claims under Bivens cannot be brought against the only defendant named in the complaint, the United States. See Robinson v. United States Bur. Of Prisons, 244 F. Supp. 2d 57, 66 (N.D.N.Y. 2003) ("[A] Bivens action may not be maintained against the United States.") (citing Washington v. DEA, 183 F.3d 868, 872 n.8 (8th Cir. 1999). Nor can constitutional claims be asserted against the United States underthe FTCA. See Washington, 183 F.3d at 873; Russ v. United States, 62 F.3d 201, 204 (7th Cir. 1995) ("[C]onstitutional wrongs cannot be remedied through the FTCA,") (citing FDIC v. Meyer, 510 U.S. 471, 476, 114 S. Ct. 996, 1001-02 (1994)).
Plaintiff having thus having failed to name a proper defendant to his Bivens claims, the Court concludes that his Bivens claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim on which relief can be granted.
B. Treaty Claims
The Conclusion section of the amended complaint invokes, as a basis for relief against defendant United States not raised in plaintiff's original complaint, treaties to which the United States is a signatory. Specifically, the amended complaint states "At such time and places the United States violates International Laws as A [sic] result the United States are not in compliance with Refugee Convention Requirements or The United Nations Convention against Torture Prohibitions." (Amended Complaint, § 57). It is well established that the United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027, ("CAT") does not give rise to a private right of action. Renkel v. United States, 456 F.3d 640, 644 (6th Cir. 2006) ("As the Articles [of CAT] are not self-executing, they do not create private rights of action; therefore, any private lawsuit seeking to enforce the United States' obligations under the Convention must be based on domestic law."); Wolinski v. Junious, 2012 U.S. Dist. LEXIS 65889, at *18-19 (E.D. Cal. May 10, 2012) ("The CAT does not give rise to a private right of action because it is not self-executing.) (citing Akhtar v. Reno, 123 F. Supp. 2d 191, 196 (S.D.N.Y. 2000).
The United Nations Convention Relating to the Status of Refugees, adopted July 28, 1951, art. 26, 19 U.S.T. 6259, 6576, 189 U.N.T.S. 150, 172 ("Refugee Convention") likewise does not create a private right of action. United States v. Casaran-Rivas,311 Fed. Appx. 269, 272 (11th Cir. 2009) (unpublished) ("[A]rgument that the indictment violated the refugee Convention and CAT Treaty is without merit, as the Refuge[e] Convention and CAT Treaty are not self-executing, or subject to relevant legislation, and, therefore, do not confer upon aliens a private right of action to allege a violation of their terms."); Reyes-Sanchez v. Ashcroft, 261 F. Supp. 2d 276, 288-89 (S.D.N.Y. 2003) ("Because the Refugee Convention is not self-executing, it does not create individual rights.").
Accordingly, plaintiff's claims against the United States under CAT and Refugee Convention are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim on which relief may be granted.
C. FTCA Claims
The medical malpractice-related claims under the FTCA asserted by plaintiff in the amended complaint and stemming from his detention at BFDF may go forward against defendant United States.
As explained in the August 16 Order, plaintiff's allegations of medical malpractice and the failure to properly treat his serious medical condition are clearly cognizable under the FTCA when asserted against the United States. (August 16 Order at 6).
ORDER
IT IS HEREBY ORDERED, that plaintiff's Bivens claims are dismissed with prejudice;
FURTHER, that plaintiff's claims under CAT and the Refugee Convention are dismissed with prejudice;
FURTHER, that the Clerk of the Court is directed to complete, on plaintiff's behalf, and to issue, a summons for service of process on defendant United States of America;
FURTHER, the Clerk of the Court is directed to send copies of the Summons, Amended Complaint, and this Order by certified mail to the following, pursuant to Rule 4(i) of the Federal Rules of Civil Procedure:
As explained in n. 1, supra, plaintiff's voluminous exhibits to the amended complaint are maintained in paper form in a separate file folder in the Clerk's Office.
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• Attorney General of the United States, Main Justice Building, 10th and Constitution Avenues N.W., Washington, DC 20530;
• Civil Process Clerk, United States Attorney for the Western District of New York, United States Attorney's Office, USAO/WDNY, 138 Delaware Avenue, Buffalo, New York 14202.
SO ORDERED Dated: 8/1, 2014
Buffalo, New York
/s/_________
WILLIAM M. SKRETNY
Chief Judge
United States District Court