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Atangana v. Khan

United States District Court, D. New Jersey

September 27, 2019

MOHAMED KHAN, et al., Defendants.


          Madeline Cox Arleo, District Judge

         This matter has been opened to the Court by Plaintiffs filing of an Amended Complaint. (ECF No. 5.) The Court previously granted Plaintiffs application to proceed in forma pauperis, see 28 U.S.C. § 1915, permitted Plaintiff leave to submit an Amended Complaint, and directed the Clerk of the Court to change the nature of suit to 560 Prisoner Petitions.[1]

         Under the PLRA, district courts must review complaints in those civil actions in which a person is proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B). The PLRA directs district courts to sua sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. "The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)." Schreane v. Seana, 506 Fed.Appx. 120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)). At this stage, the Court need decide whether Plaintiffs' claims are facially plausible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "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." Id. (internal citations and quotation marks omitted).

         Plaintiffs Amended Complaint (ECF No. 5) is subject to screening under 28 U.S.C. § 1915(e)(2)(B). The Court has reviewed the Amended Complaint and has determined that the entire Amended Complaint shall not subject be dismissed at this time.

         At the time he filed his Complaint and Amended Complaint, Plaintiff was detained by the Department of Homeland Security ("DHS").[2] The Amended Complaint asserts violations of his constitutional rights arising from his arrest and subsequent detention by Immigration and Customs Enforcement ("ICE") during his removal proceedings.[3] Plaintiffs claims arise under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), [4] which, under certain circumstances, creates a cause of action against the federal actors analogous to a § 1983 action against the state actors.[5] Because a government official may only be held personally liable under Bivens "for his or her own misconduct," the plaintiff must allege that "each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676.

         In the Amended Complaint, Plaintiff first asserts that Deportation Officer Mohamed Khan, a resident of New Jersey, interfered with his legal mail on two occasions in 2017 by taking numerous documents that Plaintiff needed to prove his asylum case and show he should be released on bond. (ECF No. 5, Amended Complaint at 2.) Plaintiff asserts that he lost his asylum case in September 2017 because he failed to provide sufficient proof. (Id. at 3.) The Court liberally construes Plaintiff to assert that Defendant Khan, through these actions, interfered with Plaintiffs legal mail and denied him access to the courts in violation of his constitutional rights. Both convicted prisoners and pretrial detainees retain a right of access to the courts. See Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008); Prater v. City of Philadelphia, 542 F. App'x. 135, 138 (3d Cir. 2013). The right of access to the courts is an aspect of the First Amendment right to petition, see McDonald v. Smith, 472 U.S. 479, 482 (1985), and assures citizens access to courts to present allegations that fundamental constitutional rights have been violated. See Wolff v. McDonnell, 418 U.S. 539, 579 (1974). To establish a claim for denial of access to the courts, a plaintiff must allege that his access to the courts was impaired, and that he suffered actual injury because of Defendants' actions. Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006). Actual injury results when a prisoner "has been hindered in an effort to pursue a nonfrivolous legal claim," id., which includes "the loss or rejection of a legal claim." Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir. 1997); see also Lewis v. Casey, 518 U.S. 343, 349-51 (1996). At this time, the Court shall proceed the legal mail and access to the courts claims against Defendant Khan.[6]

         Plaintiff also asserts that "a fabricated police report [was] submitted by DHS/ICE counsel Wen Ting Cheng in immigration court in New York as an Interpol Warrant during Plaintiffs Bond hearing on September 27, 2017[.]" (ECF No. 5, Amended Complaint at 7.) Plaintiff has not identified Wen Ting Cheng as a Defendant in this action or explained whether this individual fabricated the police report or even knew that the document was fabricated. (See ECF No. 5, Amended Complaint at 9.) Other than the vague allegations discussed above, Plaintiff has provided no facts to suggest that Wen Ting Cheng violated his constitutional rights. As such, the Court will dismiss without prejudice any civil rights claims arising from these bare allegations. See Iqbal, 556 U.S. at 678.

         The Court will also dismiss the false arrest claims against Deportation Officer H. Folajaiye, Deportation Officer R. Valbrun, and Deportation Officer Bacchus, who are residents of New York. Plaintiff appears to assert that he was falsely arrested by these individual defendants on August 10, 2017. (ECF No. 5, Amended Complaint at 5-6.) The Court construes Plaintiff to assert that these Defendants violated his rights under the Fourth Amendment, which provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. Amend. IV.

         Government seizure of an individual only violates the Fourth Amendment if the seizure was unreasonable. United States v. Coleman, 383 F. App'x. 180, 184 (3d Cir. 2010). Ordinarily. a seizure must be conducted pursuant to a warrant based on probable cause to be reasonable under the Fourth Amendment. Id. at 182-183. It is typically reasonable for an officer to assume that a warrant has been issued for probable cause. Berg v. Cnty. of Allegheny, 219 F.3d 261, 272 (3d Cir. 2000). In Bivens, the Supreme Court recognized an implied private right of action for damages against federal officials who have violated a person's Fourth Amendment rights. 403 U.S. 388.

         Plaintiff bases his false arrest claim on two factual allegations: 1) he had committed no crimes to justify his arrest by ICE and 2) he had an asylum application pending at the time of his arrest by ICE. The Court relies on the exhibits filed with Plaintiffs initial Complaint and in his habeas case previously before this Court in assessing Plaintiffs Fourth Amendment claim. Plaintiff is a native and citizen of Cameroon, and was admitted to the United States as a nonimmigrant for a period not to exceed August 17, 2015. Plaintiff was initially detained pursuant to DHS's discretionary detention authority under 8 U.S.C. § 1226(a), which provides that an alien may be arrested and detained pending a decision on whether he is to be removed from the United States. (See generally ECF No. 1-1 at 30-39, Government's Answer to habeas petition.) Here, Plaintiff was not arrested and detained by ICE because he committed crimes that rendered him removable and/or required his detention under 8 U.S.C. § 1226(c); rather, he was arrested and detained because he overstayed his visa and was subjected to discretionary detention pursuant to 8 U.S.C. § 1226(a). The fact that Plaintiffs asylum application was pending when he was arrested by ICE does not make his arrest unlawful, and Plaintiff has not provided any other facts to suggest that the Deportation Officers arrested him without probable cause. As such, the claims of unlawful arrest are dismissed without prejudice.[7]

         Plaintiff also asserts civil rights claims against Deportation Officer P.L. Zaner, who resides in Alabama. According to the Amended Complaint, Defendant Zaner removed Plaintiff from the Hudson County Correctional Facility to Etowah County Jail in Alabama. On September 11, 2018, Defendant Zaner gave Plaintiff form I-229(a) Warning of Failure to Depart and Instruction Sheet to Detainee Regarding Requirement to Assist in Removal. Both documents were dated September 6, 2018. Plaintiff allegedly did not receive a Notice of Custody Review, and believed he was entitled to a custody review because he had been detained under a final order of removal for more than 90 days. Defendant Zaner allegedly told Plaintiff that he would not receive a custody review and would not be released from immigration detention while his petition for review was pending before the Second Circuit. Defendant Zaner also told Plaintiff that he would not be released from ICE custody because Plaintiff had a warrant from Switzerland and then told Plaintiff: "GET OUT OF MY FACE[.]" He also allegedly told Plaintiff his petition for review would be denied by the Second Circuit and Plaintiff would be deported to Cameroon. (ECF No. 5, Amended Petition at 6-7.) Based on the documents attached to Plaintiffs original complaint, Plaintiff received a "Decision to Continue Detention" letter dated September 17, 2018, indicating that Plaintiffs custody status had been reviewed and it was determined that he would not be released from detention. (See ECF No. I -1, at 20.) Although Defendant Zaner may have behaved unprofessionally and/or provided inaccurate information about Plaintiffs custody review, this type of misconduct, without more, did not violate Plaintiff's constitutional rights.

         Plaintiff further asserts that Defendant Zaner treated Plaintiff differently based on Plaintiffs race. (ECF No. 5, Amended Complaint at 6-7.) Plaintiffs equal protection claim-to the extent he asserts one-is dismissed without prejudice as ...

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