Opinion
05 Civ. 6459 (GEL).
April 12, 2006
Sherry Bender, pro se.
Michael J. Garcia, United States Attorney for the Southern District of New York, Brian M. Feldman, Assistant United States Attorney, for defendants General Services Administration, United States Department of Justice, United States Social Security Administration, Daniel Levy, Jose Aybar, Robert Baldassano, Stephen J. Bekesy, and Richard Matos.
OPINION AND ORDER
Plaintiff Sherry Bender, acting pro se, sues a number of defendants, including the United States General Services Administration ("GSA"), the United States Department of Justice ("DOJ"), the United States Social Security Administration ("SSA"), Daniel Levy, Jose Aybar, Robert Baldassano, Stephen J. Bekesy, and Richard Matos (collectively, the "federal defendants"), alleging various causes of action arising out of her arrest following an altercation at the New York office of the Social Security Administration. Plaintiff seeks relief in the form of damages, costs, and attorney's fees, though she appears pro se. On December 23, 2005, this Court referred the case to the Hon. Ronald L. Ellis, United States Magistrate Judge, for general pre-trial supervision. The federal defendants moved to dismiss on a variety of grounds on March 9, 2006, and simultaneously sought an order staying discovery pending resolution of the motion to dismiss. On March 14, 2006, Judge Ellis effectively denied the motion for a stay, ordering discovery completed by July 14, 2006. The federal defendants then appealed Judge Ellis's discovery order to this Court, arguing that it was error to order the federal defendants to participate in discovery pending resolution of certain issues in the motion to dismiss. Under Local Rule 6.1, a response to the federal defendants' motion to dismiss was due on March 23, 2006. Because the Court has received neither a response to the motion nor a request for an extension of time to file one, the motion will be considered fully submitted. For the reasons set forth below, the federal defendants' motion to dismiss will be granted in part and denied in part, and the objection to Magistrate Judge Ellis's discovery order will be overruled as moot.
Plaintiff's claims against other defendant's are not at issue here.
The motion to dismiss the claims against the GSA, SSA, and DOJ (the "federal agency defendants") must be granted with respect to most of plaintiff's claims for lack of subject matter jurisdiction. The federal agency defendants are not independently suable entities, but are merely agencies and instrumentalities of the United States, which is immune from suit for damages under the doctrine of sovereign immunity, except insofar as it has waived that immunity. See Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003).
To the extent that plaintiff asserts claims in tort, the complaint gives no indication that plaintiff has complied with the requirements for exhaustion of administrative remedies of the Federal Tort Claims Act ("FTCA"), which waives sovereign immunity only to the extent that the Act's requirements are met. 28 U.S.C. §§ 2401(b), 2675(a); see also Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999) (noting that the burden is on the plaintiff under the FTCA "to plead and prove compliance" with the Act's exhaustion requirements). To the extent plaintiff asserts claims under the Constitution, sovereign immunity has not been waived at all. King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999); See also Armstrong v. Sears, 33 F.3d 182, 195 (2d Cir. 1994) ("[A] damages claim against the United States [is] barred by the doctrine of sovereign immunity [where] Congress has not acted to waive the immunity of the United States."). Finally, to the extent plaintiff seeks to bring claims under 18 U.S.C. §§ 6(a), 241, 242, 1001, and 1512(d)(4) (See Compl. 1-2), the Court also lacks jurisdiction because none of those statutes allow for a private civil action. See, e.g., Clements v. Miller, No. MO-97-CA-160, 2005 WL 2085497, at *3-*4 (D. Colo. Aug. 29, 2005) (holding that there is no private right of action under 18 U.S.C. §§ 241, 242, 1001 or 1512); Ippolito v. Meisel, 958 F. Supp. 155, 161 (S.D.N.Y. 1997) (holding that there is no private right of action under 18 U.S.C. §§ 241 and 242); Gipson v. Callahan, 18 F. Supp. 2d 662, 668 (W.D. Tex. 1997) (holding that there is no private right of action under 18 U.S.C. §§ 241, 242 or 1512); Dugar v. Coughlin, 613 F. Supp. 849, 852 n. 1 (S.D.N.Y. 1985) (holding that there is no private right of action under 18 U.S.C. §§ 241 and 242); see also House v. Hastings, 91 Civ. 3780 (JSM), 1992 WL 44370, at *1 n. 1 (S.D.N.Y. Feb. 21, 1992) (noting that 18 U.S.C. § 1001 "do[es] not readily provide for a private right of action").
Although the government is correct that the above-cited statutes do not provide a private remedy, the government's assertion that "plaintiff does not have standing to bring a civil action based on criminal statutes" (Mem. Motion to Dismiss at 8 n. 4) may overstate the extent to which private remedies are unavailable for violations of criminal law. See, e.g., Alaji Salahuddin v. Alaji, 232 F.3d 305, 307-12 (2d Cir. 2000) (discussing, in the context of the Child Support Recovery Act, the circumstances under which a criminal statute may be read as creating a private civil remedy).
The Court may have jurisdiction to consider plaintiff's claim that certain agency defendants — most importantly, the SSA — violated her right to financial privacy under 12 U.S.C. § 3402 (Compl. ¶¶ 48-49); see 12 U.S.C. § 3402 (restricting the government's authority to access or obtain "information contained in the financial records of any customer from a financial institution"); see also 12 U.S.C. § 3417 ("Any agency or department of the United States or financial institution obtaining or disclosing financial records or information contained therein in violation of this chapter is liable to the customer to whom such records relate. . . ."); 12 U.S.C. § 3416 ("An action to enforce any provision of this chapter may be brought in any appropriate United States district court. . . ."). However, the complaint fails to state a claim under 12 U.S.C. § 3402, because it does not allege that any defendant actually obtained (or attempted to obtain) protected information from plaintiff's financial records without her consent. The most that the complaint can be read to allege is that defendants (1) insisted, unsuccessfully, that plaintiff disclose her bank number, and (2) later obtained the number for the purpose of depositing money into plaintiff's account. There is no indication, however, that defendants sought to use the bank number to obtain any information from the bank account. Indeed, plaintiff admits that the money was never even deposited through direct deposit, but rather sent in the mail. (Compl. ¶ 50.) Thus, it appears that defendants never made any use of the bank number they allegedly obtained.
The motion to dismiss is also granted with respect to defendant Levy, and Assistant United States Attorney, because plaintiff alleges no facts sufficient to state any claim against him. Moreover, to the extent plaintiff sues Levy for actions he took as a prosecutor in the initiation or prosecution of a criminal proceeding, the suit is barred by absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 269-70 (1993). But cf. Zahrey v. Coffey, 221 F.3d 342, 346 (2d Cir. 2000) ("Actions taken [by a prosecutor] as an advocate enjoy absolute immunity, while actions taken as an investigator enjoy only qualified immunity." (citations omitted)).
Plaintiff also fails to state any viable claim against defendants, Aybar and Baldassano. To the extent she sues for various common-law torts (such as assault, battery, false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress), these claims are barred by the Federal Tort Claims Act, which does not permit such suits to be brought against individual federal officers acting within the scope of their employment (and even construing plaintiff's pro se complaint liberally, there is no allegation that these defendants were acting outside the scope of their employment). See 28 U.S.C. § 2679; Rivera v. United States, 928 F.2d 592, 608-09 (2d Cir. 1991). Plaintiff's claim for damages based on violation of due process also fails, because such claims cannot be based on a denial of Social Security benefits. See Schweiker v. Chilicky, 487 U.S. 412 (1987). Moreover, plaintiff alleges no prejudice to the filing of her application for reconsideration of the denial of her benefits application; on the contrary, she concedes that the challenged findings of the Administrative Law Judge were overturned sometime in 2004. (Compl. ¶ 48.) Thus, she presents no claim of deprivation of liberty or property that could sustain a due process claim in connection with the processing of her application for Social Security benefits.
Defendants Aybar and Baldassano are also entitled, as a matter of law, to qualified immunity on plaintiff's claims that they violated her alleged constitutional rights "to be served with respect and dignity," "to be free . . . from harassment, threats, and intimidation," and to "financial privacy." (Compl. ¶ 47.) These allegations, on the facts of this complaint, do not assert violations of clearly established constitutional rights. See Velez v. Levy, 401 F.3d 75, 100 (2d Cir. 2005).
To the extent plaintiff alleges that Aybar and Baldassano violated 18 U.S.C. §§ 6(a), 241, 242, 1001, and 1512(d)(4), the action is dismissed because these statutes do not provide a private cause of action. See supra. With respect to 12 U.S.C. § 3402, plaintiff has failed to state a claim for the reasons described in the context of the federal agency defendants. See supra.
The two remaining federal defendants, Bekesy and Matos, seek dismissal primarily on the ground that they have not been properly served pursuant to the requirements of Rule 4 of the Federal Rules of Civil Procedure. Indeed, Bekesy and Matos, who reside in Florida, claim to have received no papers from plaintiff. This defense is pointlessly hypertechnical. Both of these defendants manifestly have received notice of the allegations of the complaint. So has the United States Attorney, which has appeared to represent them. Since the principal purpose of the service requirement is to assure such notice, Hanna v. Plumer, 380 U.S. 460, 462 n. 1 (1965); In re Initial Public Offering Secs. Litig., 358 F. Supp. 2d 189, 209 (S.D.N.Y. 2004), the defendants' position lacks equity. It is particularly disappointing that the Government, which ought to be accountable to its citizens, takes this position against a pro se plaintiff, and even goes so far as to urge dismissal, which would effectively preclude relief against these individual federal defendants regardless of the merits of the action, since the complaint was brought on the last day possible before the running of the statute of limitations. (Mem. Motion to Dismiss at 6); see Kronisch v. United States, 150 F.3d 112, 123 (2d Cir. 1998).
Defendants Levy, Aybar, and Baldassano also raised defenses based on improper service, but later withdraw them. (See Letter from Michael J. Garcia, United States Attorney (Mar. 29, 2006).)
Despite this lack of equitable appeal, to the extent plaintiff has failed to show compliance with the service requirements of the federal rules, those requirements must be enforced. Megibow v. Clerk of United States Tax Court, 04 Civ. 3321 (GEL), 2004 WL 1961591, at *1 (S.D.N.Y. Aug. 31, 2004); see also Kwon v. Yun, 05 Civ. 1142 (GEL), 2006 WL 416375, at *2 (S.D.N.Y. Feb. 21, 2006) ("The burden on a motion to dismiss for insufficient service of process rests with the plaintiff, who must, through specific factual allegations and any supporting materials, make a prima facie showing that service was proper.") And indeed, plaintiff has not complied with the requirements of Rule 4. Under subsection (i) of the Rule, which governs service in actions against the United States, its agencies, officers, and employees, plaintiff was required either to deliver a summons to the United States Attorney for the district in which the action was brought (or to an employee designated by the United States attorney), or to send a copy of the summons and complaint by registered or certified mail to the civil process clerk at the office of the United States Attorney. Plaintiff was also required to serve the Attorney General of the United States by registered or certified mail. See Fed.R.Civ.P. 4(i). Plaintiff did not comply with these provisions. Moreover, plaintiff does not claim to have personally served defendants Bekesy or Matos; nor does plaintiff claim to have attempted delivery of a summons to these defendants' home or place of business, or to have effected service on a properly designated agent. Thus, plaintiff has also failed to comply with Federal Rule 4(e) and with the state rules that Rule 4(e) incorporates. See Fed.R.Civ. R. 4(e); N.Y.C.P.L.R. §§ 308, 311; Fla. Stat. Ann. § 48.031.
It does not follow, however, that the claims against Bekesy and Matos must be dismissed. Where service has not been proper, the Court has broad discretion either to dismiss the action or to quash the improper service and extend the time for service. See Tishman v. Associated Press, 05 Civ. 4278 (GEL), 2005 WL 3466022, at *1 (S.D.N.Y. Dec. 16, 2005). Here, the interests of justice counsel against dismissal, at least for those claims which are not, on their face, manifestly futile. Plaintiff is a lay person contending against the entire United States Government. Her claims, to the extent they have any merit, should be heard. Dismissal, as noted above, would put an end to the litigation, notwithstanding any merit the claims might have. And the defendants clearly have not been prejudiced in any way, since they have all received actual notice of the lawsuit. Accordingly, the motion to dismiss with respect to defendants Bekesy and Matos will be denied, except to the extent described below; the improper service will be quashed; and plaintiff will be given thirty days to effectuate proper service.
Though the Court will not dismiss the claims against Bekesy and Matos in their entirety, certain claims against them may, in the interest of judicial economy, be disposed of immediately. The Court's analysis of the claims against other defendants has already made clear, for example, that plaintiff's claims are manifestly futile to the extent they allege common-law torts, violation of 18 U.S.C. §§ 6(a), 241, 242, 1001, 1512(d)(4), and 12 U.S.C. § 3402, and violation of plaintiff's alleged constitutional rights "to be served with respect and dignity," "to be free . . . from harassment, threats, and intimidation," and to "financial privacy." (Compl. ¶ 47.) Nothing in the record or in the law would justify a different conclusion with respect to defendants Bekesy and Matos, and accordingly, to the extent plaintiff asserts such claims against Bekesy and Matos, the motion to dismiss will be granted. However, the Court will refrain from addressing the merits of plaintiff's additional claims against Bekesy and Matos — namely, the constitutional false arrest and malicious prosecution claims against Bekesy, and the constitutional excessive force claim against both Bekesy and Matos — until such time as defendants Bekesy and Matos are properly made parties to the suit.
Though the complaint does not make clear whether plaintiff alleges an excessive force claim specifically under the Fourth Amendment, the allegations may be read as including such a claim.Cf. McEachin v. McGuinnis, 357 F.3d 197, 199 n. 2 (2d Cir. 2004) ("It is well-established that the failure in a complaint to cite a statute, or to cite the correct one, in no way affects the merits of a claim. Factual allegations alone are what matters." (citation and internal quotation marks omitted)).
Accordingly, the federal defendants' motion to dismiss is granted as to the General Services Administration, the United States Department of Justice, the United States Social Security Administration, Levy, Aybar, and Baidassano. As to Bekesy and Matos, the motion to dismiss is granted except to the extent plaintiff alleges constitutional claims for malicious prosecution, false arrest, and excessive force. Plaintiff shall have until May 12, 2006, to effect proper service on Bekesy and Matos; failure to effect service by that date will lead to dismissal of the action as to those defendants as well. If plaintiff effects proper service, Bekesy and Matos shall have sixty days from the date of service to submit an answer or other response. The motion to stay discovery pending resolution of the motion to dismiss is denied as moot, as the motion to dismiss has now been decided.
SO ORDERED.