United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
LEO T. SOROKIN, District Judge.
I. The Instant Action
On October 14, 2013, Plaintiff Mohammed Ahmed Hassan Abdallah Omran ("Omran"), then a pretrial detainee at the Caddo Parish Correctional Center in Shreveport, Louisiana, filed this self-prepared civil complaint asserting claims under Bivens and the Federal Tort Claims Act ("FTCA") against a number of federal Defendants, and his landlady, a private citizen. Specifically, these Defendants include: (1) Karen Bisson (landlady); (2) Philip Bleezarde, an agent with the Bureau of Immigration and Customs Enforcement ("ICE") and stationed in New Hampshire; (3) Kevin Clothier, an ICE agent stationed in New Hampshire; (4) Brendan Galway, an agent employed by the Federal Bureau of Investigation ("FBI") and stationed in New Hampshire; (5) Dan Catchins, an ICE agent and property officer stationed in the Commonwealth of Massachusetts; (6) the FBI; (7) ICE; and (8) the United States of America. Additionally, Omran names two other Defendants of unknown identity: (1) the person responsible for the custody of Omran's computer after seizure; and (2) the ICE Director of the Office of Professional Responsibility. He contends that all of the federal Defendants acted in their official and individual capacities and are not entitled to qualified immunity.
The relevant background information is as follows. On August 30, 2012, Omran was arrested by ICE agents at his work in Barrington, New Hampshire. Thereafter, he was detained at the Strafford County Department of Correction in Dover, Massachusetts. On September 5, 2012, Omran was indicted for two counts of False Claim of Citizenship. Omran alleges that 19 days later, on September 24, 2012, ICE Agent Bleezarde and FBI agent Galway visited his home in Methuen, Massachusetts, and conducted a warrantless search and seizure. They seized Omran's personal computer, which was password protected. The next day, these two agents visited a house in New Durham, New Hampshire belonging to one of Omran's friends. Omran had stored some of his personal property at that location. He alleges that these two Defendants conducted another warrantless search and seizure, opening closed boxes and locked suitcases, and seizing personal property.
Subsequently, on October 10, 2012, ICE Officer Bleezarde applied for a search warrant in order to bypass Omran's computer password and search the content of his computer. Omran alleges the search warrant was issued based on fabricated statements by Officer Bleezarde.
Next, Omran claims that Defendant ICE Officer Clothier searched the contents of his computer, exceeding the authority provided by the search warrant, thereby violating Omran's privacy rights. He further alleges that the unknown Defendant who was responsible for the custody of the computer permitted other, unauthorized individuals to view the contents of the computer, thereby exceeding the scope of the search warrant.
On March 11, 2013, the Indictment was dismissed,  and Omran was transferred to the Suffolk County House of Correction in Boston, Massachusetts. He contends that a friend delivered a suitcase to the ICE Regional Office in Burlington, Massachusetts. The suitcase contained Omran's important documents, clothes, wallet and other personal items. The ICE property office in Burlington searched the contents of the suitcase and seized some of the documents without a search warrant. These items included Omran's driver's license and social security card. Thereafter, Omran was transferred to a detention center in Alabama, and later, to several different facilities in Louisiana. He claims that he has made several requests from ICE's regional office in Burlington concerning his missing documents. He received some of the documents while detained at the Tensas Detention Center in Louisiana, but other documents still are missing.
Omran filed an internal complaint against Officer Bleezarde with the Office of Professional Responsibility of ICE. As of the time of filing of the instant Complaint, he did not know whether any investigation took place and/or whether there was any decision or disciplinary action taken.
Omran alleges violations of the Fourth Amendment based on alleged unreasonable searches and seizures, as well as Fifth Amendment due process and equal protection violations, and violations of his right to privacy. He contends he has suffered extreme emotional distress, and has attempted suicide more than once as a result of the Defendants' actions. As relief, Omran seeks $5 million in damages, a declaratory judgment, and an injunction directing that all of his alleged illegally seized property be returned to him. He also seeks an order for the destruction of all copies made of his documents, digital storage media, and computer hard discs in such a manner that future recovery of the data would be impossible. He requests a jury trial on his Bivens claims "before a decision or a judgment is entered with regard to the Federal Tort Claim. Compl. at 1.
Along with the Complaint, Omran filed a Motion for Leave to Proceed in forma pauperis (Docket No. 2) accompanied by a certified prison account statement.
On March 30, 2015, Omran filed a Motion to Amend Civil Complaint (Docket No. 10) seeking to add two more Defendants: (1) Nicole Roy, United States Marshal; and (2) the United States Marshal Service. An Amended Complaint was attached as an Exhibit (Docket No. 10-1), and it is substantially similar to his original. Omran contends Nicole Roy asked him to provide her with an address to ship his property, and made him sign a document stating that he received his property. He claims that signature is invalid and was made under duress and threat of violence. Further, he alleges that she allowed someone to access his computer and tamper with the hard drive before it was shipped to New Hampshire. As a result, he lost valuable personal files, family photographs, private e-mails, and private journals. He now seeks $10 million in damages.
II. Civil Litigation in the State of New Hampshire
Apart from the instant civil rights lawsuit, Omran filed another related Bivens civil rights action in the State of New Hampshire. Omran v. United States, Civil Action No. 1:14-505-DBH. See Omran, supra, 2015 WL 570723. Also included in that action were claims arising under the FTCA, the Civil Rights Act, and unidentified related state causes of action.
That civil action also stemmed from Omran's criminal prosecution, and included, inter alia, claims against Officer Bleezarde for allegedly making false statements in a search warrant application to the effect that Omran's roommate/landlady (Karen Bisson) informed law enforcement about the existence of incriminating files on Omran's computer after she conducted her own search of the computer in Omran's absence. Omran disputed the truth of that statement on the grounds that his computer was password protected and unknown to his roommate. Omran, 2015 WL 570723 at *3. As in the instant action, Omran claimed he suffered severe emotional distress, and sought declaratory relief and $5 million in damages.
On December 30, 2014, the United States Magistrate Judge recommended dismissal of Omran's action. On February 10, 2015, after a de novo determination, United States District Judge Brock Hornby issued an Order Affirming Recommended Decision of the Magistrate Judge. Id. at 9. As part of the decision, the Court found Omran failed to state a plausible equal protection claim based on his ethnicity and national origin because he did not identify any alleged facts from which discriminatory intent reasonably could be inferred. All that he had alleged was that he was an Egyptian National. Id. at 8. Further, the Court found that Omran had not suffered any due process or equal protection claims based on the allegation of the failure of the New Hampshire Attorney Discipline Office to investigate and to do their job. The Court found there was no right to compel a state to do something "to" someone else, and thus Omran lacked standing to assert a constitutional claim. Id. at 7.
Finally, with respect to Omran's claims under the FTCA, the Court noted that the Government does not waive its sovereign immunity with respect to the exercise or performance or failure to exercise or perform a discretionary function. Id. at 9 citing 28 U.S.C. § 2680(a).
III. Civil Litigation in the United States Court of Federal Claims
On February 26, 2015, Omran filed a civil complaint pursuant to the FTCA and Civil Rights Act, although the Court docket lists the cause of action as raised pursuant to the Tucker Act, 28 U.S.C. § 1491. Omran v. United States, Civil Action No. 1:15-00186-LB. Once again, his claims arise out of his criminal prosecution in New Hampshire. He takes issue with his court-appointed counsel's performance in that case, and again alleges that Officer Bleezarde fabricated his statements in order to obtain a search warrant, and that Officer Clothier searched his computer exceeding the scope of the search warrant. On February 26, 2015, Onmar was directed to pay the filing fee or file an application to proceed in forma pauperis. The action remains pending.
I. The Motion for Leave to Proceed In Forma Pauperis
Omran's detainee status ( i.e., whether he is a prisoner, pretrial detainee, or alien detainee) is unclear. At the time he filed the instant Complaint, however, he stated that he was a pretrial detainee awaiting trial. Thus, for purposes of determining in forma pauperis status, this Court deems him to be a "prisoner" as defined by 28 U.S.C. § 1915(h).
Upon review of Omran's financial affidavit and prison account statement from Caddo Parish Correctional Center in Louisiana, this Court finds that he lacks funds to pay the $400.00 filing fee for this action. Nevertheless, because he is a prisoner, he is obligated to pay the filing fee in installments pursuant to the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915 (the in forma pauperis statute).
Accordingly, Omran's Motion for Leave to Proceed in forma pauperis (Docket No. 2) is ALLOWED, and he is Ordered ...