
    Ali PARTOVI, Plaintiff, v. James MATUSZEWSKI, et al., Defendants.
    Civil Action No. 08-1445 (ESH).
    United States District Court, District of Columbia.
    Aug. 21, 2009.
    
      Ali Partovi, Florence, AZ, pro se.
    Kenneth Adebonojo, U.S. Attorney’s Office, Washington, DC, for Defendants.
   MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

This matter is before the Court on defendants’ motion to dismiss. The motion will be granted, and this action will be dismissed with prejudice.

BACKGROUND

Plaintiff finds himself in the custody of the U.S. Immigration and Customs Enforcement (“ICE”), a component of the United States Department of Homeland Security, as a result of these events:

On October 22, 2001, Petitioner Ali Partovi, who claims to have been born in Iran, arrived in the United States from Japan and applied for admission as a visitor under the Visa Waiver Program using a fraudulent Italian passport bearing the name Michelle Franchini. Partovi was accompanied by Farzon Hatami Aghdam. The United States Immigration and Naturalization Service (“INS”) detained both Partovi and Aghdam and determined that they were using false passports. Upon being interviewed, both claimed to be refugees from Tehran, Iran. Partovi stated he was Armenian Catholic and, due to his religious beliefs, could not return to Iran.
As a result to his use of a false passport, Partovi was paroled into the United States for prosecution, and due to his claims of fear of returning to Iran, Partovi was placed into removal proceedings to adjudicate his application for asylum, withholding and protection under the Convention Against Torture.
On January 7, 2002, Partovi submitted to the INS an Application for Asylum and for Withholding of Removal. In the Application, Partovi identified his present nationality as Iranian and identified his religion as Roman Catholic. He sought asylum or withholding of removal based on his religion and the Convention Against Torture.
On April 17, 2002, Partovi pleaded guilty to one count of False Use of a Passport under 18 U.S.C. § 1543.
On May 3, 2002, the Immigration Court held a hearing on Partovi’s application for asylum, withholding of removal and protection under the Convention Against Torture. At the conclusion of the hearing, Immigration Judge Dayna Dias denied Partovi’s request for asylum, noting that the “application is frivolous.” The judge also denied Partovi’s request for withholding of removal and found him ineligible for deferral of removal under the Convention Against Torture. Partovi reserved appeal and the Order indicates that the appeal was due by June 3, 2002. Partovi did not appeal the Order.

Partovi v. Ashcroft, No. 03-CV-1098, 2005 WL 6348997, at *2, 2005 U.S. Dist. LEXIS 32520, at *3 (D.Ariz. Oct. 18, 2005) (Magistrate Judge Report and Recommendation) (internal citations omitted), adopted, 2005 WL 6348997, at *1, 2005 U.S. Dist. LEXIS 32510, at *2 (D.Ariz. Dec. 8, 2005). Plaintiff filed a petition for a writ of habeas corpus in the United States District Court for the District of Arizona. See id. That court denied the habeas petition in part and transferred to the United States Court of Appeals for the Ninth Circuit the portion of the petition deemed to be a challenge to the Immigration Judge’s decision. See id. The Ninth Circuit concluded that it lacked jurisdiction over plaintiffs claim due to his “failure to seek review from the [Bureau of Immigration Appeals] the [Immigration Judge’s] denial of his asylum application [which] constitutes a failure to exhaust administrative remedies.... ” Partovi v. Gonzales, 239 Fed.Appx. 397, 398 (9th Cir.2007).

Plaintiff brought this action against two Immigration Officers who allegedly “use[d] deception in an attempt to get [plaintiffs] signature on a deportation and removal document.” (Compl. at 4.) According to plaintiff, Officers Matuszewski and Drink-water informed him that he would be released from custody if he could identify a person to provide him with a residence and employment. Id. Plaintiff supplied this information, at which point he “was ask[ed] to sign paper work that would finalize [his] release[.]” Id. When he “discovered that the paperwork had nothing whatsoever to do with realing [sic][him],” plaintiff refused to sign the papers. Id. While plaintiff merely “refused to become a victim of deception,” he has been “accused of refusing to cooperate with deportation travel documents and electronic monitoring device program....” Id. He has demanded unspecified “injunctive relief, as deemed necessary and just by the Court, as well as compensatory damages in the amount of $5,000,000.00[ ] for the suffering] that was causefd] by defendants, in violation of plaintiff’s] constitutional rights.” Id. at 5.

DISCUSSION

Plaintiff brings this civil rights action against Matuszewski and Drinkwater in both their official and individual capacities under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). (Compl. at 1-2.) Defendants have moved to dismiss the complaint on the grounds that: (1) the court lacks subject matter jurisdiction, (2) the court lacks personal jurisdiction, (3) venue is improper, (4) service of process is insufficient, and (5) failure to state a claim upon which relief can be granted. (See generally Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss [“Defs.’ Mot.”].) For purposes of this Memorandum Opinion, the Court presumes without deciding that it has personal jurisdiction, that venue is proper, and that service of process is sufficient.

A. The Court Lacks Subject Matter Jurisdiction Over Plaintiffs Claims Against Matuszewski and Drinkwater in their Official Capacities.

Defendants argue that the doctrine of sovereign immunity deprives the Court of subject matter jurisdiction over plaintiffs claims against Matuszewski and Drinkwater in their official capacities. (See Defs.’ Mot. at 4-5.)

A suit against a government official in his official capacity “generally represents] only another way of pleading an action against an entity of which an officer is an agent,” such that “an official capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (citations omitted). As Immigration Officers, Matuszewski and Drinkwater are ICE employees. Insofar as plaintiff sues Matuszewski and Drinkwater in their official capacities, the Court proceeds as if these claims were brought against the United States itself. See, e.g., Eastridge v. United States, No. 06-CV-448, 2007 WL 495797, at *10 (D.D.C. Feb. 12, 2007) (construing claim against former Assistant United States Attorneys for the District of Columbia in their official capacities as one brought directly against the United States).

“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Such consent may not be implied, but must be “unequivocally expressed.” United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). The United States has not waived its sovereign immunity for constitutional tort claims, see Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 477, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (stating that sovereign immunity precludes damage claims against the United States government for constitutional violations brought under the Federal Tort Claims Act), and sovereign immunity extends to governmental agencies and to their employees where such employees are sued in their official capacities. See id. at 483-86, 114 S.Ct. 996. Thus, absent a waiver of sovereign immunity, the plaintiff cannot prevail in his claims for damages against any federal government official sued in his official capacity. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. at 475, 114 S.Ct. 996; Settles v. United States Parole Comm’n, 429 F.3d 1098, 1106 (D.C.Cir. 2005); Clark v. Library of Congress, 750 F.2d 89, 101-02 (D.C.Cir.1984); Meyer v. Reno, 911 F.Supp. 11, 18 (D.D.C.1996).

Nothing in plaintiffs complaint suggests that the United States has waived sovereign immunity rendering itself amenable to suit under the circumstances in this case. Accordingly, the Court will grant defendants’ motion to dismiss the complaint as against them in their official capacities under the doctrine of sovereign immunity. See, e.g., Ranger v. Tenet, 274 F.Supp.2d 1, 6 (D.D.C.2003) (concluding that sovereign immunity bars § 1983 claims for monetary damages against the Central Intelligence Agency and its Director in his official capacity).

B. The Complaint Fails to State a Claim Upon Which Relief Can Be Granted.

1. Standard for dismissal under Rule 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests[.]’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). A motion under Rule 12(b)(6) does not test a plaintiffs likelihood of success on the merits; rather, it tests whether a plaintiff properly has stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

When ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), courts must first assume the veracity of all “well-pleaded factual allegations” contained in the complaint. Ashcroft v. Iqbal, — U.S. ---, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009); see also Atherton v. Dist. of Columbia Office of Mayor, 567 F.3d 672, 681 (D.C.Cir. 2009); cf. Iqbal, 129 S.Ct. at 1949-50 (clarifying when courts are not required to assume truth of allegations). Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a plaintiff must offer “more than labels and conclusions” to provide “grounds” of “entitlefment] to relief.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Courts need not accept as true “ ‘naked assertion[s]’ devoid of ‘further factual enhancement,’ ” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955), or “legal conclusions cast in the form of factual allegations.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994).

Next, courts must determine whether the well-pleaded allegations “plausibly give rise to an entitlement to relief’ by presenting “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,” in that “the court [can] draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1950. A complaint alleging facts which are “ ‘merely consistent with’ a defendant’s liability, ... ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ’ ” Id. (quoting Twombly 550 U.S. at 557, 127 S.Ct. 1955) (brackets omitted).

2. The complaint fails to state a claim under 42 U.S.C. § 1983.

Section 1983 provides, in pertinent part, that:

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects ... any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]

42 U.S.C. § 1983 (2006) (emphasis added). In order to state a claim under § 1983 for a violation of a constitutional right, a complaint must allege facts sufficient to support a reasonable inference that (1) a person (2) acting under color of state, territorial, or District of Columbia law (3) subjected the plaintiff or caused the plaintiff to be subjected (4) to the deprivation of a right secured by the Constitution or laws of the United States. See, e.g., City of Oklahoma City v. Tuttle, 471 U.S. 808, 829, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985).

It is settled that a plaintiff cannot maintain a § 1983 action against the United States or its officers because the provision “does not apply to federal officials acting under color of federal law.” Settles v. United States Parole Comm’n, 429 F.3d at 1104. It follows, then, that the complaint fails to state a § 1983 claim against Matuszewski and Drinkwater in their official capacities, or against the United States itself, upon which relief can be granted. See Williams v. United States, 396 F.3d 412, 414-15 (D.C.Cir.2005) (affirming grant of summary judgment in favor of special policeman employed by Government Printing Office, a federal agency with headquarters in Washington, D.C., because policeman did not act under color of D.C. law for purposes of § 1983 when he arrested plaintiff); Ranger v. Tenet, 274 F.Supp.2d 1, 6 (D.D.C.2003) (concluding that, even if § 1983 authorized a lawsuit against the CIA, “the CIA, as an agency of the federal government, was presumably acting under color of federal statutes and agency procedures when it allegedly violated [plaintiffs] Fifth and Fourteenth Amendment rights”); Richardson v. United States Dep’t of Interior, 740 F.Supp. 15, 20 (D.D.C.1990) (dismissing § 1983 claim against U.S. Park Police officer under Rule 12(b)(6) because the officer was not acting under color of D.C. law when he arrested the plaintiff).

3. The complaint fails to state a Bivens claim.

A Bivens suit “is the federal analog to suits brought against state officials under ... 42 U.S.C. § 1983.” Marshall v. Fed. Bureau of Prisons, 518 F.Supp.2d 190, 193 (D.D.C.2007) (citing Hartman v. Moore, 547 U.S. 250, 254 n. 2, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (internal citation omitted)). Defendants argue that plaintiffs Bivens claim is subject to dismissal because they are protected by qualified immunity. (See Defs.’ Mot. at 11-13.)

“[Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity shields public officials “from undue interference with their duties and from potentially disabling threats of liability,” id. at 806, 102 S.Ct. 2727, and is designed to dispose of “insubstantial lawsuits” on a motion to dismiss, before the point at which the defendant is required to engage in substantial litigation. Id. at 808, 102 S.Ct. 2727. Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The privilege is “an immunity from suit rather than a mere defense to liability; and ... is effectively lost if a case is erroneously permitted to go to trial.” Id. Accordingly, the Supreme Court “repeatedly [has] stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam).

By definition, qualified immunity is not absolute. However, “[a] plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official’s qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue.” Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). The Court considers, “then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show [that] the [Defendant’s] conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. at 201, 121 S.Ct. 2151. If the facts alleged do not show a constitutional violation, the inquiry ends. Id. at 207, 121 S.Ct. 2151.

a) Fifth Amendment

It appears that plaintiff intends to invoke a right to due process under the Fifth Amendment to the United States Constitution. (See Compl. at 4; Plaintiff’s] Response to Defendants^] Motion to Dismiss (“Pl.’s Opp’n”) at 4-5.) “[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (citing Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)). Plaintiff argues that defendants “placed his life in grave Jeopardy by deceiving him into signing the travel documents,” notwithstanding the Immigration Judge’s decision to defer his removal under the Convention Against Torture. (PL’s Opp’n at 4; see id., Ex. 3 (May 3, 2002 Order of the Immigration Judge, Case No. [ AXX-XXX-XXX ]).) Plaintiff neglects to mention that the Immigration Judge ultimately “denied Partovi’s request for withholding of removal and found him ineligible for deferral of removal under the Convention Against Torture.” Partovi, 2005 WL 6348997, at *2, 2005 U.S. Dist. LEXIS 32520, at *3. Plaintiff has no constitutional right to remain in the United States now that his removal order became final. Cf. Harisiades v. Shaughnessy, 342 U.S. 580, 586-87, 72 S.Ct. 512, 96 L.Ed. 586 (1952). Moreover, plaintiffs continued detention is due to his refusal to cooperate with immigration officials in securing travel documents. He “cannot legitimately object to his continued detention when that very detention is caused by his own conduct.” Pelich v. Immigration and Naturalization Serv., 329 F.3d 1057, 1060 (9th Cir.2003); see 8 U.S.C. § 1231(a)(1)(C) (authorizing extension of removal period and continued detention of an alien who “fails or refuses to make timely application in good faith for travel or other documents necessary to the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal”). It follows, then, that defendants’ attempt to secure travel documents for plaintiffs removal does not violate the United States Constitution.

b) Eighth Amendment

Plaintiffs complaint articulates no Eighth Amendment claim (see generally Compl.), and his opposition to defendants’ motion to dismiss merely asserts, with no explanation, that “[t]he Government’s action violated his rights under the United States Convention Against Torture and other cruel, Inhuman or Degrading Teratment [sic] or Punishment.” (PL’s Opp’n at 6.) The allegation is therefore a “ ‘naked assertion[ ]’ devoid of ‘further factual enhancement’ ” and cannot be presumed true. Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). This pleading defect is fatal because the complaint does not contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

Accordingly, the Court concludes that the facts alleged in the complaint, which are accepted as true, fail to show that defendants’ conduct violated a constitutional right. The Court will grant defendants’ motion to dismiss on the ground that, in their individual capacities, they are protected by qualified immunity.

CONCLUSION

The Court will grant defendants’ motion to dismiss because it lacks subject matter jurisdiction over plaintiffs claims against Matuszewski and Drinkwater in their official capacities, and because the complaint fails to state claims against Matuszewski and Drinkwater in their individual capacities.

An Order consistent with this Memorandum Opinion is issued separately on this same date. 
      
      . In the alternative, the Court concludes that the complaint fails to state a claim upon which relief can be granted because there is no causative link between the alleged actions of defendants and his continued detention. Defendants are accused of trying to trick plaintiff into signing deportation and removal papers without which, it appears, he cannot be released from detention; it is his alleged refusal to sign those papers, and not the actions of defendants in allegedly trying to obtain his signature, that have contributed to his continued detention.
     