United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
LEO T. SOROKIN, District Judge.
Plaintiff Mohammed Ahmed Hassan Abdallah Omran ("Omran") filed this action under, inter alia, 42 U.S.C. §§ 1985 and 1986, Bivens and the Federal Tort Claims Act ("FTCA"), against a number of federal actors, as well as his landlady, a private citizen. This Court detailed the background of this case in the Memorandum and Order (Docket No. 11) issued on March 31, 2015. To sum: on August 30, 2012, Omran was arrested by ICE agents and later indicted for two counts of False Claim of Citizenship. He alleges that on September 24, 2012, Defendant ICE Agent Bleezarde and Defendant FBI agent Galway visited his home in Methuen, Massachusetts, and conducted a warrantless search and seizure of his personal, password-protected, computer. The next day, these two agents visited a house in New Durham, New Hampshire that belonged to one of Omran's friends. There, they conducted another warrantless search and seizure. Thereafter, 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 scope of authority provided by the search warrant, thereby violating Omran's privacy rights.
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, which contained Omran's important documents, clothes, wallet and other personal items. He also claims that the ICE property officer (unidentified) searched the contents of the suitcase and seized some of the documents without a search warrant, including his driver's license and social security card. Thereafter, Omran was transferred to different detention facilities outside of Massachusetts. 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, but other documents still are missing. Additionally, Omran filed an internal complaint against Officer Bleezarde with the Office of Professional Responsibility of ICE, but was unaware of any action taken on his complaint.
In the prior Memorandum and Order, this Court granted Omran's in forma pauperis motion and directed him to file both an Amended Complaint and a Show Cause Response demonstrating why this action should not be dismissed based on the numerous legal deficiencies noted in the Memorandum and Order. These deficiencies included the failure to set forth plausible claims in accordance with Rule 8 of the Federal Rules of Civil Procedure, because, inter alia: (1) it was unclear whether Omran intended to assert FTCA claims against all of the federal Defendants; (2) he made no factual allegations supporting a claim against his landlady, Karen Bisson, a private citizen; (3) he failed to state the "when, where, and why" information necessary to set forth a claim against Defendant Nicole Roy; (4) he failed to set forth a basis for any state causes of action; (5) he failed to set forth underlying facts to support claims of corruption and conspiracy; and (6) he failed to state the basis for liability for the United States Marshal Service. Further, the United States Marshal Service was entitled to sovereign immunity from an FTCA damages suit, and could not be held liable under Bivens on a respondeat superior theory.
Apart from the Rule 8 pleading deficiencies, this Court questioned whether this judicial district was the proper venue for this action in view of New Hampshire litigation, and also questioned whether there was personal jurisdiction over some of the Defendants. The Court noted that if this action were permitted to proceed, the issues of venue and personal jurisdiction were matters that may be briefed by the parties.
Next, this Court noted that Omran failed to set forth plausible claims under 42 U.S.C. § 1983 because only federal action, not state action, was alleged. With respect to the FTCA claims, this Court noted the various problems in that: (1) it was unclear whether his claims were duplicative of those in his New Hampshire litigation or those in the United States Court of Federal Claims; (2) it was unclear whether he had administratively exhausted all of his FTCA claims; (3) the only proper Defendant in an FTCA action is the United States, not the federal agencies; (4) Omran could not assert constitutional tort claims against the individual Defendants under the FTCA (rather, those claims may asserted under Bivens); (5) the waiver of sovereign immunity under the FTCA did not apply to "discretionary functions" such as the alleged actions or inactions of the ICE Director of the Office of Professional Responsibility regarding Omran's internal complaint against any ICE agents; and (6) there was an exception to the FTCA waiver of sovereign immunity for claims arising out of the detention of property by "any officer of customs or excise or any other law enforcement officer." Ali v. Federal Bureau of Prisons, 552 U.S. 214, 215 (2008).
On April 27, 2015, Omran filed an Amended Complaint (Docket No. 14) and a Response to the Order to Show Cause (Docket No. 15).
I. The Show Cause Response
In his Show Cause Response, Omran first argues that, with respect to his claims pursuant to 42 U.S.C. § 1985 and § 1986, Officers Bleezarde and Galway conspired among themselves to conduct a warrantless search and seizure. Thereafter, Officer Clothier conspired with Officer Bleezarde and Galway to view the contents of his computer beyond the scope of authority. He alleges these actions were based on his ethnicity and national origin. Next, Omran claims Officer Nicole Roy, of the United States Marshal Service, conspired with the government computer expert to access his seized computer, depriving him of his Fourth and Fifth Amendment rights. Again, he alleges this was based only on his racial ethnicity and national origin. He asserts that there is no other reason the Defendants would have acted as they did, except for his ethnicity and national origin.
With respect to his Bivens claims, he alleges all the individual federal officers violated a clearly established right (the Fourth and Fifth Amendments) by the unlawful search and seizures on September 24, 2012 and September 25, 2012, except that Omran again asserts the Director of the Office of Professional Responsibility violated his constitutional rights by not investigating his complaint.
Next, with respect to the FTCA claims, Omran claims that he made administrative presentments to ICE, based on the wrongful acts of its employees (Officers Bleezarde and Clothier, Property Custodian Clothier, and the Director of the Office of Professional Responsibility). He also contends that he made a presentment to the FBI and to the United States Marshal Service (for the wrongful acts of Nicole Roy). He submits that the FTCA claims are viable because under he asserts Massachusetts state law claims of invasion of privacy, negligence, discrimination, damage and loss of property, unreasonable search and seizure, and abuse of process by the individual federal Defendants. Show Cause Response (Docket No. 15 at 4). Omran further contends that the discretionary function exception does not apply in this case.
II. The Amended Complaint
In Omran's Amended Complaint, he identifies the same individual Defendants, and correctly substitutes the United States as a Defendant in connection with his FTCA claims, in lieu of the federal agencies ( i.e., FBI, ICE, United States Marshal Service). Additionally, he essentially asserts the same claims as contained in his original Complaint, including his allegations with respect to the warrantless searches and seizures, the fabricated statements in support of a search warrant for his computer, the search of his computer beyond the scope of the warrant, and the ...