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Abdelazim v. Holmes Simmons

United States District Court, M.D. North Carolina

March 2, 2018



          L. Patrick Auld United States Magistrate Judge.

         This matter comes before the undersigned United States Magistrate Judge on the Application to Proceed in District Court Without Prepaying Fees or Costs (the “Application”) (Docket Entry 1) filed by Mohamed Abdelazim (the “Plaintiff”) in conjunction with his pro se Complaint (Docket Entry 2) against Judge Theresa Holmes Simmons (“Judge Simmons”), “DHS/Office of Chief Counsel” (the “Government Attorney”), the Board of Immigration Appeals (the “BIA” and, collectively, the “Government Defendants”), and Christopher Greene (“Greene”) (id. at 2-3).[1] The undersigned will grant the Application for the limited purpose of recommending dismissal of this action.


         “The federal in forma pauperis statute, first enacted in 1892 [and now codified at 28 U.S.C. § 1915], is intended to guarantee that no citizen shall be denied access to the courts solely because his poverty makes it impossible for him to pay or secure the costs.” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th Cir. 1995) (en banc) (internal quotation marks omitted). “Dispensing with filing fees, however, [i]s not without its problems. . . . In particular, litigants suing in forma pauperis d[o] not need to balance the prospects of successfully obtaining relief against the administrative costs of bringing suit.” Nagy v. FMC Butner, 376 F.3d 252, 255 (4th Cir. 2004). To address this concern, the in forma pauperis statute provides that “the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous[, ] . . . (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).

         As to the first of these grounds, “a complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “The word ‘frivolous' is inherently elastic and not susceptible to categorical definition. . . . The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim.” Nagy, 376 F.3d at 256-57 (some internal quotation marks omitted). In determining frivolousness, the Court may “apply common sense.” Nasim, 64 F.3d at 954.

         As to the second ground, a plaintiff “fails to state a claim on which relief may be granted, ” 28 U.S.C. § 1915(e)(2)(B)(ii), when the complaint does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotation marks omitted). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. In other words, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.[2]

         The final ground generally applies to situations in which doctrines established at common law or by the United States Constitution immunize governments and/or government personnel from liability for monetary damages. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (discussing sovereign immunity of states and state officials under the Eleventh Amendment); Pierson v. Ray, 386 U.S. 547 (1967) (describing interrelationship between 42 U.S.C. § 1983 and common-law immunity doctrines, including judicial immunity); cf. Allen v. Burke, 690 F.2d 376, 379 (4th Cir. 1982) (noting that, even where “damages are theoretically available under [certain] statutes . . ., in some cases, immunity doctrines and special defenses, available only to public officials, preclude or severely limit the damage remedy” (internal quotation marks omitted)).

         Furthermore, federal courts possess limited jurisdiction, such that they may “exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). No presumption of jurisdiction applies, Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999); instead, federal courts must determine if a valid jurisdictional basis exists and “dismiss the action if no such ground appears, ” Bulldog Trucking, 147 F.3d at 352; see also Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 480 (4th Cir. 2005) (“A federal court has an independent obligation to assess its subject-matter jurisdiction, and it will ‘raise a lack of subject-matter jurisdiction on its own motion.'”); Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Facts supporting jurisdiction must appear in the complaint, Pinkley, 191 F.3d at 399, and the party asserting federal jurisdiction bears the burden of “show[ing] that jurisdiction does, in fact, exist, ” Davis v. Pak, 856 F.2d 648, 650 (4th Cir. 1988) (internal quotation marks omitted). The Court may consider subject-matter jurisdiction in assessing frivolity under Section 1915(e)(2)(B)(i). See Cummings v. Rahmati, No. 1:17cv196, 2017 WL 1194364, at *1 (M.D. N.C. Mar. 30, 2017), recommendation adopted, slip op. (M.D. N.C. Apr. 20, 2017).


         In his pro se Complaint, Plaintiff asserts claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (the “FTCA”), against Greene and the Government Defendants for allegedly improper conduct regarding Plaintiff's deportation proceedings. (See Docket Entry 2 at 4.) Construed liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Complaint asserts the following:

         Plaintiff hired Greene to represent him in immigration proceedings, including in filing an application for asylum and for relief under the Violence Against Women Act (the “VAWA”). (Docket Entry 2 at 5-7.) Greene has since been disbarred for engaging in sexual relationships with his immigration clients, who he acknowledges “were ‘especially vulnerable'” (id. at 8). (See Id. at 8-9; see also id. at 16-22 (disciplinary orders and notices).) Among other improper acts during his representation of Plaintiff, Greene failed to file the VAWA application, misappropriated funds Plaintiff paid him, repeatedly missed appointments, deadlines, and court dates, “misled [the Immigration] Court” (id. at 5), lied to Plaintiff, failed to introduce evidence that Plaintiff gathered in support of his immigration petitions, failed to explain the immigration proceedings and their implications to Plaintiff, and “targeted a vulnerable immigrant by providing fraudulent immigration services” (id. at 9). (See id. at 5-7, 9-11, 13.) Greene further failed to appeal an adverse immigration decision from a “final hearing on January 25, 2013, ” even though he “assured [Plaintiff] that an appeal would be filed” and collected “$11, 000 dollars for [the] appeal and [a] work authorization [application], ” which he also failed to pursue. (Id. at 6.)[3] Greene additionally failed to inform Plaintiff of a decision granting him “voluntary departure on June 25, 2013[, ] for a period not to exceed 120 days.” (Id.) Greene also failed to “utilize an interpreter” in communicating with Plaintiff, even though he “was unsure what [Plaintiff] understood” regarding the immigration proceedings. (Id.)

         Relatedly, Judge Simmons's “failure to have an interpreter directly ask [Plaintiff] if he, indeed, needed foreign language interpreters” injured Plaintiff, as, “[i]n the absence of a translator/interpreter, [Plaintiff] was guided by his attorney” (id. at 10), who engaged “in ex parte communications [with Judge Simmons] that compromised [Plaintiff's] case . . . and discredited Plaintiff's case in Immigration Court” (id. at 4). “Due to [Greene's] fraud and ineffective counsel, Judge [Simmons] ordered [Plaintiff] removed.” (Id. at 5.) More particularly, Greene's “[m]ultiple fabrications led [Judge Simmons] to order [Plaintiff's] removal.” (Id.) “The conduct of counsel and the Immigration Court's willingness to believe his fabrications poses a great threat to an immigrant's belief in fairness and integrity in the judicial system.” (Id.) Judge Simmons and the BIA further “failed to consider whether” Greene's “ineffective representations . . . accounted for his perceived evasiveness, inconsistencies, or demeanor in [Greene's] statements to [Judge Simmons]” or the “ostensible inconsistencies [that] the BIA rel[ied] upon to sustain [Judge Simmons's] adverse credibility finding.” (Id. at 13.) Ultimately, Greene's decision “to lie and [Judge Simmons's] decision to accept his lies . . . as facts, could cost [Plaintiff his] life.” (Id.)

         In short, “the government failed to protect Plaintiff, and individuals who lacked the proper training and oversight violated Plaintiff's constitutional rights, causing Plaintiff profound physical and psychological injuries.” (Id. at 4; see also Id. (“argu[ing] that the Immigration Court empowered individual officials to violate the immigrant's constitutional rights”).) As such, Plaintiff seeks $45, 000 in damages from Greene, as well as “$45, 000 for pain and suffering from [Greene] and the United States Government.” (Id. at 13.) Plaintiff further seeks an order reopening his immigration proceedings (see id.), which apparently culminated in a BIA decision in or around September 2017 (see Id. at 23-24 (presenting notice dated September 28, 2017, of BIA decision)). In that regard, Plaintiff asks that the defendants “be ordered [(i)] to adjust [his] status as Plaintiff ...

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