Opinion
5:16-CV-00997 (NAM/TWD)
09-13-2016
MITCHELL RIVERA, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al. Defendants.
APPEARANCES: MITCHELL RIVERA Plaintiff pro se 117 Irving Ave. Liverpool, New York 13088
APPEARANCES: MITCHELL RIVERA
Plaintiff pro se
117 Irving Ave.
Liverpool, New York 13088 THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER AND REPORT-RECOMMENDATION
The Clerk has sent to the Court for initial review pursuant to 28 U.S.C. § 1915(e)(2)(B) two complaints filed in one action at the request of pro se Plaintiff Mitchell Rivera. (Dkt. Nos. 1 and 1-1.) The first complaint alleges claims for violation of Plaintiff's civil rights under Bivens and 42 U.S.C.§ 1983 and has been submitted on a complaint form entitled "Complaint for Violation of Civil Rights." (Dkt. No. 1.) The second complaint contains essentially the same allegations of wrongdoing by Defendants and has been submitted on a complaint form entitled "Complaint and Request for Injunctive Relief." (Dkt. No. 1-1.)
The Court will treat the two complaints as a single pleading for purposes of this initial review.
Plaintiff has also filed two applications to proceed in forma pauperis ("IFP application") one short form and one long form which have been consolidated by the Court for consideration. (Dkt. Nos. 2 and 2-1.) For the following reasons, the Court will grant Plaintiff's consolidated IFP application (Dkt. Nos. 2 and 2-1), and recommend that Plaintiff's complaints be dismissed on the following grounds: (1) sovereign immunity; (2) failure to state a claim; and (3) frivolous claims, and that the dismissal be in part with prejudice and in part without prejudice.
I. IFP APPLICATION
A court may grant in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's consolidated IFP application, the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's consolidated IFP application (Dkt. Nos. 2 and 2-1) is granted.
II. LEGAL STANDARDS FOR INITIAL REVIEW
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id . In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id .
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
III. PLAINTIFF'S COMPLAINTS
A. Allegations of Wrongdoing
In his two complaints, Plaintiff has sued the Federal Bureau of Investigation ("FBI"); FBI Director James B. Comey, Jr. ("Comey"); FBI Special Agent in Charge Andrew Vale ("Vale"); and FBI Assistant Directors Diego Rodriguez ("Rodriguez") and George Venizelos ("Venizelos"); and Eric T. Schneiderman, New York State Attorney General/NYPD/SuffolkPolice/Onondaga Sheriff ("Schneiderman"). (Dkt. Nos. 1 at 1-4; 1-1 at 1-3.) Plaintiff claims that Defendants are "involved directly or indirectly in a supervisory position in the deprivation of [his] rights" in violation of Bivens and 42 U.S.C. § 1983. (Dkt. No. 1 at 6.)
Plaintiff has not indicated in the complaints whether he is suing the individual defendants in their individual or official capacity or both. In light of Plaintiff's pro se status, for purposes of initial review, the Court will deem Plaintiff's Bivens claim against Comey, Vale, Rodriguez, Venizelos, and § 1983 claim against Schneiderman to have been asserted against them in both their individual and official capacities.
Plaintiff has alleged that since at least 2006, and possibly since 1999, he has been under investigation by the FBI for insurance fraud arising out of a $50,000 insurance policy on his late mother's life under which he was the sole beneficiary. (Dkt. Nos. 1 at 7-8; 1-1 at 6.) According to Plaintiff, investigation of the alleged fraud fell under the jurisdiction of the FBI because of multi-state involvement. (Dkt. No 1-1 at 6.) Plaintiff has alleged that in 2008, an unidentified FBI agent told him that they would get him. Id. at 7.
Plaintiff, who has described himself as "Afro Puerto Rican," claims that the FBI probably already knew his family because his father was the first Puerto Rican Director at Citibank; his maternal uncles had cartel ties and served time in the 1980s, and one uncle was being probed by the FBI for murder; and Plaintiff has friends who are associated with famous musicians like Eminem and 50 Cent. (Dkt. No. 1 at 6-7; 1-1 at 7-8.)
Plaintiff, who makes music, claims that unidentified FBI agents have: (1) illegally blocked two songs he had at SONY in 2011, and he has still not received them; (2) tried to get information to investigate 50 Cent or Plaintiff's lawyer without telling Plaintiff anything; (3) started hacking Plaintiff's on-line business because it was doubling profits too quickly in 2008 and forced Plaintiff out of business; (4) rerouted his internet search results; (5) admittedly posed as tenants, roommates, and landlords in order to illegally torture Plaintiff; (6) threatened and harassed artists so that they would not purchase anything from Plaintiff without notice; (7) deleted Plaintiff exes' and friends' Facebook accounts over and over again and blocked his Facebook messages and friend requests strategically, while having the police play dumb; (8) told prospective employers Plaintiff committed fraud so they would not hire him; (9) somehow been involved in Plaintiff being unable to get his cavities taken care of the by his dentist; (10) illegally blocked Plaintiff's paid advertising and confiscated business materials; (11) assaulted Plaintiff; (12) had Plaintiff illegally removed from stores and blocked him from suing Dollar General and other stores for illegally aiding the FBI; (13) and attempted to force Plaintiff to admit guilt for something he did not do. (Dkt. No. 1 at 7-8; 1-1 at 7-9.)
Plaintiff claims that Defendant New York State Attorney General Eric Schneiderman is responsible for overseeing civil rights for New York State. (Dkt. No. 1 at 5.) Plaintiff has alleged that his "suit originates with a (sic) FBI probe from 06 - Present so state officials have been under FBI instruction in the states he has resided in since then," including New York. Id.
B. Claimed Injuries
Plaintiff claims that he has been injured in the following ways by the alleged wrongdoing of the Plaintiffs: (1) has sleep apnea, poor sinus drainage, and un-removed cavities as a result of being forced to see a different dentist; (2) been blacklisted in the music business by Defendants' lies and destruction of businesses, and of songs he had with former SONY artists; (3) destroyed his relationship with his daughter, a girl from high school, and his sister; (4) forced exes not to talk to him by deleting their social media accounts over and over; (5) made his entertainment lawyer go from wanting to represent him to blocking Plaintiff without the two even talking; (6) illegally froze his on-line activities causing irreparable harm; (7) destroyed Plaintiff's relationships with several cousins, close friends, ex-girl friends, and his brother and father by forcing Plaintiff to talk to an agent who is supposed to represent a murdered figure, without notice; and (8) pretending to involve Plaintiff in drug and internet security probes that do not involve him. (Dkt. Nos. 1 at 7; 1-1 at 10.)
C. Relief Requested
Plaintiff has not specifically requested relief in the form of money damages in either complaint. (See Dkt. Nos. 1 at 8; 1-1 at 11.) Plaintiff has requested injunctive relief directing unidentified FBI agents to: (1) stop living in the same building as Plaintiff or posing as his landlord; (2) stop tampering with his on-line business, advertising, and communication; (3) stop talking behind his back; (4) give Plaintiff his mother's Freedom of Information Act ("FOIA") records; (5) stop talking to Plaintiff's potential employers; (6) stop preventing Plaintiff from obtaining a part-time job as a result of the stress due to the FBI agents and their false fraud probe; (7) stop interfering with Plaintiff and any industry without notice; (8) stop trying to prevent Plaintiff from complaining about law enforcement to doctors in order to make suing the FBI agents more difficult; and (9) stop blocking Plaintiff from obtaining counsel to represent him on the claims being pursued in this action. Id.
IV. ANALYSIS
A. Official Capacity Bivens Claims
In his civil rights complaint (Dkt. No. 1), Plaintiff has alleged claims for violation of his constitutional rights against Federal Defendants the FBI, FBI Director Comey, Vale, Rodriguez, and Venizelos under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). (Dkt. No. 1.) More specifically, Plaintiff alleges that Defendants violated his constitutional rights under the First, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth Amendments to the Constitution. Id.
Plaintiff has also alleged claims under 18 U.S.C. §§ 241, 242, 245, 247, and 249; 15 U.S.C. §§ 2, 13; and 17 U.S.C. §§ 5, 11. The civil rights provisions of Title 18 of the U.S. Code (sections 241-248) do not allow private rights of action. See Tsabbar v. Booth, 293 F. Supp. 2d 328, 335 (S.D.N.Y. 2003). Even with the most liberal construction, neither of Plaintiff's complaints can be construed to state a claim under Title 15 of the U.S.C., which deals with antitrust violations, or Title 17 of the U.S.C., which deals with copyright. The Court finds Plaintiff's claims under Titles 15, 17, and 18 of the U.S.C. to be frivolous and recommends dismissal with prejudice as against all Defendants.
Plaintiff alleges the same violation of his constitutional rights in both complaints. (Dkt. Nos. 1 at 5; 1-1 at 4.) The Second Amendment protects the right to keep and bear arms. U.S. Const. amend. II. There are no allegations in either of Plaintiff's complaints alleging infringement on that right by Defendants. The Third Amendment prohibits the quartering of soldiers in any house during time of peace without consent of the owner, U.S. Const. amend. III, and is clearly irrelevant to Plaintiff's claims. The Eighth Amendment protects against excessive bail and fines and the infliction of cruel and inhuman punishments. U.S. Const. amend. VIII. The protection from cruel and inhuman punishment applies only to convicted prisoners and is, therefore, inapplicable to Plaintiff. See Graham v. Connor, 490 U.S. 386, 392 n.6 (1989). The Ninth Amendment, which provides that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained by the people, is a rule of construction and does not give rise to individual rights. U.S. Const. amend IX; Jenkins v. C.I.R., 483 F.3d 90, 92 (2d Cir. 2007). The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Const. amend. X. There is no private right of action under the Tenth Amendment. See Lopez-Mejia v. Lynch, No. 1:16-CV-549 (TSB), 2016 WL 2937479, at * 3 n.6 (S.D. Ohio, Western Division May 20, 2016). The Court therefore recommends that Plaintiff's claims under the Second, Third, Eighth, Ninth, and Tenth Amendments to the Constitution be dismissed with prejudice.
"A Bivens action is a judicially-created remedy designed to provide individuals with a cause of action against federal officials who have violated their constitutional rights," Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (citing Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1981)). "The only remedy available in a Bivens action is an award of monetary damages from defendants in their individual capacities." Id. Since a court may award only money damages on a Bivens claim, claims for injunctive relief are unavailable. See Kurzberg v. Ashcroft, 619 F.3d 176, 179 n.2 (2d Cir. 2010); Higazy, 505 F.3d at129.
Bivens money damages claims may not be brought against the United States, federal agencies, or federal agents in their official capacities. See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994) (confirming that under Bivens, a "direct action against the Government [is] not available," and further declining to recognize a "Bivens-type cause of action directly against a federal agency"); Kentucky v. Graham, 473 U.S. 159, 166 (1985) ("A]n official capacity suit is, in all respects other than name, to be treated as a suit against the entity"); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (a Bivens action "must be brought against the federal officers involved in their individual capacities. Under the doctrine of sovereign immunity, an action for damages will not lie against the United States absent consent. Because an action for money damages against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are barred under the doctrine of sovereign immunity, unless such immunity is waived.") (citing Meyer, 510 U.S. 471).
Because sovereign immunity is jurisdictional in nature, the Court recommends that Plaintiff's Bivens claims be dismissed with prejudice against the FBI, and against Comey, Vale, Rodriguez and Venizelos in their official capacities, for lack of subject matter jurisdiction. See Wake v. United States, 89 F.3d 53, 57 (2d Cir. 1996) (sovereign immunity is jurisdictional in nature).
B. Individual Capacity Bivens Claim
Plaintiff has failed in both of his complaints to identify the FBI agents he claims committed unconstitutional acts against him. (See generally Dkt. Nos. 1 and 1-1.) Plaintiff alleges that the individual Federal Defendants violated his constitutional rights under Bivens because they were involved "directly or indirectly in a supervisory position in the deprivation of rights to force an outcome, use me against my will, and cover up contract violations." (Dkt. No. 1 at 6.)
A Bivens cause of action has been found to be the federal analog of a suit against state officials under 42 U.S.C. § 1983. Iqbal, 556 U.S. at 675-76. "Because vicarious liability [respondeat superior] is inapplicable to Bivens . . . suits, a plaintiff must plead that each Government-official defendant, through the official's own actions, has violated the Constitution. Id. at 676. Supervisory officials are not liable under Bivens based solely on the alleged misconduct of their subordinates. Sash v. U.S., 674 F. Supp. 2d 531, 543 (S.D.N.Y. 2009).
Prior to Iqbal, the Second Circuit held that personal involvement of supervisory defendant may be shown by evidence that "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see also Vazquez-Mentado v. Buitron, 995 F. Supp. 2d 93, 96 (N.D.N.Y. 2014) (finding Colon factors applicable to Bivens claims). The Second Circuit has thus far expressly declined to determine whether Iqbal heightened the requirements for showing a supervisor's personal involvement with regard to certain constitutional violations. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013). The Court need not reach the issue of Iqbal's impact on Colon because Plaintiff has not plead the Federal Defendants' personal involvement even under Colon.
Plaintiff's civil rights complaint is devoid of factual allegations describing any personal involvement of Defendants Comey, Vale, Rodriguez, and Venizelos with respect to any of the alleged violations of Plaintiff's constitutional rights described in the complaint. Moreover, Plaintiff is not seeking monetary damages, the only remedy available in a Bivens action. See Higazy, 505 F.3d at 169. Therefore, the Court recommends that Plaintiff's Bivens claims against Defendants Comey, Vale, Rodriguez, and Venizelos be dismissed. However, in light of Plaintiff's pro se status, and because the Court cannot rule out the possibility that Plaintiff may decide to seek monetary damages from the federal Defendants in their individual capacities, the Court recommends that dismissal of the Bivens claims against those Defendants be without prejudice, and that Plaintiff be granted leave to amend to set forth facts plausibly showing the personal involvement of the individual Federal Defendants in the violation of his constitutional rights.
C. Section 1983 Claim Against Schneiderman
The sole allegation against New York State Attorney General Schneiderman in Plaintiff's civil rights complaint is that he is the attorney general overseeing civil rights for the State of New York, and his suit "originates with a (sic) FBI probe from 06-Present so state officials have been under FBI instruction in the states I have resided in since then." (Dkt. No. 1 at 5.) Section 1983, which itself creates no substantive rights, is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights and rights under the laws of the United States. See Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). State officials have immunity under the Eleventh Amendment for § 1983 claims for money claims asserted against them in their official capacity. See Severino v. Negron, 996 F.2d 1439, 1441 (2d Cir. 1993).
There are no allegations in the complaints plausibly suggesting that Plaintiff has a claim against Schneiderman in his individual capacity, or that Plaintiff intended to assert such a claim.
The Eleventh Amendment does not bar official capacity claims seeking prospective relief. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984); Adler v. Pataki, 204 F. Supp. 2d 384, 390 (N.D.N.Y. 2002) . However, the defendant must have the authority to perform the act required. Adler, 204 F. Supp. 2d at 390. The injunctive relief Plaintiff seeks in his civil rights actions involved alleged wrongful acts of unidentified FBI agents, and there are no allegations in the complaint suggesting that Schneiderman, who has allegedly been under FBI instruction, has the authority to enforce the injunctive relief Plaintiff is seeking against the FBI, Comey, Vale, Rodriguez and Venizelos. (See Dkt. No. 1.)
As with Bivens claims, a plaintiff alleging an individual capacity claim under § 1983 must show personal involvement by the Defendant in the alleged violation of the plaintiff's constitutional rights. See Colon, 58 F.3d at 873 ("It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.") Plaintiff has alleged no facts in his complaint showing any personal involvement by Schneiderman, supervisory or otherwise, in the alleged violation of Plaintiff's constitutional rights by unidentified FBI agents. Therefore, the Court recommends that Plaintiff's § 1983 claim against Defendant Schneiderman be dismissed.
In his complaint requesting an injunction, Plaintiff alleges that "[t]he persons I listed as defendants [including Schneiderman] oversee people both at a federal and state level via joint federal/state probes." (Dkt. No. 1-1 at 6.) That conclusory assertion is insufficient to state a claim for supervisory liability against Schneiderman under any of the Colon factors. See Colon, F.3d at 873.
If the Court were to limit its consideration solely to the single allegation in the civil rights complaint arguably involving Schneiderman that New York State officials were under FBI jurisdiction when Plaintiff resided in New York, it would recommend dismissal with prejudice. However, given the conclusory allegation in the complaint for an injunction that there was a joint federal/state probe of Plaintiff regarding his alleged insurance fraud (Dkt. No. 1-1 at 6), the Court recommends that the dismissal against Schneiderman be without prejudice.
D. Claim for Injunctive Relief Against Federal Defendants
As discussed above, injunctive relief is not available on Bivens claims. Higazy 505 F.3d at 129. In light of the liberality with which pro se complaints are to be construed, the Court is compelled to assess whether the waiver of sovereign immunity set forth in Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702, applies to Plaintiff's claim for injunctive relief against the federal defendants inasmuch as he is alleging violation of his constitutional rights, thereby giving the federal court subject matter jurisdiction under 28 U.S.C. § 1331.
Section 702 provides in part that
A person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.5 U.S.C. § 702. The Second Circuit has read § 702 "as a waiver of immunity where a proper action is brought under 28 U.S.C. § 1331," the general federal question jurisdiction statute. Sprecher v. Graber, 716 F.2d 968, 973-74 (2d Cir. 1983); see also Beller v. Middendorf, 632 F.2d 788, 797 (9th Cir. 1980) (section 702 waives sovereign immunity not only for suits brought under the APA, but also for constitutional claims brought under the general federal question jurisdiction statute), overruled on other grounds, Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008). Because the waiver under § 702 extends only to suits asking for other than monetary relief, the waiver does not apply where monetary relief is sought in addition to equitable relief. See Polanco v. U.S. Drug Enforcement Admin., 158 F.3d 647, 652 (2d Cir. 1998) ("Section 702 waives sovereign immunity in an action seeking equitable relief from wrongful agency action, except where . . . the action also seeks monetary relief.") The waiver is also unavailable where there "is an adequate remedy at law." Id. As noted above, Plaintiff has not asked for monetary relief in either complaint. (Dkt. Nos. 1 and 1-1.)
If Plaintiff were granted leave to amend his complaint to plead a Bivens claim for money damages against the Federal Defendants, and he thereafter filed an amended complaint seeking money damages, he would not be entitled to the waiver of sovereign immunity under § 702 for purposes of his claim for injunctive relief. Polanco, 158 U.S. at 652. --------
Courts have recognized the availability of the § 702 waiver in actions against the FBI and its officials for various alleged constitutional violations. See, e.g., Platsky v. C.I.A., 953 F.2d 26 (2d Cir. 1991) (court found it not beyond doubt that plaintiff could prove no set of facts in support of his claim for interference with the constitutional right to free association based upon the CIA. and FBI depriving him of the opportunity to join a political organization of his choice and harassing him in applications for government services, on his job, and in every day life, and on one occasion approaching plaintiff's landlord to have him evicted from his home); Raz v. Lee, 343 F.3d 936 (8th Cir. 2003) (recognizing waiver of sovereign immunity for plaintiff's claim for injunctive relief prohibiting the FBI from continuing violation of his constitutional rights by surveillance activities based upon his expression of unpopular political beliefs, including tapping his phone and placing electronic tracers in his car; issuing alerts to other law enforcement agencies; causing him to be ostracized by issuing warnings to stores and other businesses he frequented; hog-tying and beating him; turning his acquaintances into spies against him; causing him severe stress and deterioration of health; and destroying relationships with friends).
Plaintiff has alleged the violation of his rights under the First, Fourth, and Fifth Amendments in both of his complaints. (Dkt. Nos. 1 at 5; 1-1 at 4.) However, other than conclusory allegations that the individual Defendants have been acting in a supervisory capacity with regard to the wrongdoing alleged in Plaintiff's complaints, the complaints are devoid of allegations showing specific involvement or wrongdoing against the Federal Defendants from 2006 to the present. Moreover, the allegations in the complaints are all entirely too vague and conclusory as to such things as time frames; persons and businesses involved; businesses harmed; and factual detail regarding the circumstances of the various instances of alleged wrongdoing, to state a plausible claim for injunctive relief for the alleged violation of his constitutional rights. See Twombly, 550 U.S. at 570 (conclusory statements without any supporting factual allegations are insufficient to state a claim).
Therefore, the Court recommends that Plaintiff's claim for injunctive relief against the Federal Defendants for violation of his constitutional rights be dismissed for failure to state a claim, and that the dismissal be without prejudice.
V. CONCLUSION
Based upon the foregoing, the Court has made the following recommendations: (1) Plaintiff's claims under the Second, Third, Eighth, Ninth, and Tenth Amendments and under 15 U.S.C. §§ 2, 13; 17 U.S.C. §§ 5, 11; and 18 U.S.C. §§ 241, 242, 245, 247, and 249 be dismissed with prejudice; (2) Plaintiff's Bivens claim against the FBI and the Federal Defendants in their official capacities be dismissed with prejudice; (3) to the extent, if at all, Plaintiff may have intended to assert a Bivens claim for money damages against Comey, Vale, Rodriguez, and Venizelos in their individual capacities, the claims be dismissed without prejudice; (4) Plaintiff's claim for injunctive relief against the FBI, Comey, Vale, Rodriguez, and Venizelos for violation of his constitutional rights be dismissed without prejudice; and (5) Plaintiff's § 1983 claim against Defendant Schneiderman be dismissed without prejudice for failure to state a claim.
Mindful of the Second Circuit's instruction to liberally construe a pro se plaintiff's pleadings, Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), and to "[give] leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated, Gomez, 171 F.3d at 795, the Court recommends that Plaintiff be granted leave to amend his complaint with regard to a Bivens claim for money damages against Defendants Comey Vale, Rodriguez, and Venizelos in their individual capacities; his claim for injunctive relief against the FBI, Comey Vale, Rodriguez, and Venizelos; and his § 1983 claim against Schneiderman. The Court further recommends that Plaintiff be reminded that should he amend his Bivens claim to seek money damages, sovereign immunity will not be waived under 5 U.S.C. § 702 with regard to his claims for injunctive relief and those claims will be subject to dismissal on sovereign immunity grounds.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's consolidated IFP application be GRANTED (Dkt. Nos. 2 and 2-1); and it is
RECOMMENDED that Plaintiff's complaints (Dkt. Nos. 1 and 1-1) be DISMISSED on initial review under 28 U.S.C. § 1915(e)(2)(B)(i)-(iii) in part on sovereign immunity grounds, in part as frivolous, and in part for failure to state a claim; and it is further
RECOMMENDED that Plaintiff's claims against Defendants under the Second, Third, Eighth, Ninth, and Tenth Amendments and under 15 U.S.C. §§ 2, 13; 17 U.S.C. §§ 5, 11; and 18 U.S.C. §§ 241, 242, 245, 247, and 249, and Bivens claims against the FBI and against Defendants Comey, Vale, Rodriguez, and Venizelos in their official capacities be DISMISSED WITH PREJUDICE; and it is further
RECOMMENDED that the following claims be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND: (1) Bivens claims, if any, for money damages against Comey, Vale, Rodriguez, and Venizelos in their individual capacities; (2) claims for injunctive relief against the FBI, Comey, Vale, Rodriguez, and Venizelos; and (3) Plaintiff's § 1983 claim against Defendant Schneiderman; and it is further
RECOMMENDED that in the event Plaintiff is granted leave to amend that he be instructed to include all of his claims in a single amended complaint which shall supercede and replace his two original complaints in their entirety; and that he include in his amended complaint factual allegations describing the incidents of alleged wrongdoing and the role of each named defendant therein sufficiently to allow the Court to assess whether a plausible claim has been stated against them; and it is hereby
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with a copy of the unpublished decision in Lopez-Media v. Lynch, No. 1:16-CV-549 (T.B.), 2016 WL 2937479 (S.D. Ohio Wester Division May 20, 2016) in accordance with the Second Circuit's decision in LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: September 13, 2016
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge