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Omran v. United States

United States District Court, D. Massachusetts

June 1, 2016

MOHAMMED AHMED HASSAN AB OMRAN, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION TO DISMISS AND PLAINTIFF’S MOTION TO AMEND THE COMPLAINT DOCKET NOS. [ 40, 44]

          JENNIFER C. BOAL UNITED STATES MAGISTRATE JUDGE

         Pro se plaintiff Mohammed Ahmed Hassan Abdallah Omran (“Omran”) filed this action under, inter alia, Bivens, [1] the Federal Tort Claims Act (“FTCA”), and 42 U.S.C. §§ 1985 and 1986, against the United States and a number of federal actors, as well as Karen Bisson, his landlady and a private citizen. Docket No. 14. Defendants United States, Philip Bleezarde, Kevin Clothier, Brendan Galway, Dan Catchins, Nicole Roy, and the ICE Director of the Office of Professional Responsibility (collectively, the “Defendants”) have moved to dismiss the Amended Complaint.[2] Docket No. 40.[3] In addition to responding to the motion to dismiss, Omran has filed a motion to amend the complaint, which the Defendants oppose. Docket No. 44. For the following reasons, the Court recommends that the District Judge assigned to this case grant the Defendants’ motion to dismiss and deny Omran’s motion to amend his Complaint.

         I. PROCEDURAL BACKGROUND

         On October 14, 2014, Omran filed the original Complaint in this case. Docket No. 1. He named as defendants (1) Karen Bisson, his landlady; (2) Philip Bleezarde, an agent with the Bureau of Immigration and Customs Enforcement (“ICE”) 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”) stationed in New Hampshire; (5) Dan Catchins, an ICE agent and property officer stationed in Massachusetts; (6) the FBI; (7) ICE; and (8) the United States of America. In addition, Omran named 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 (the “ICE Director”). Omran alleged that all of the federal defendants acted in their official and individual capacities and were not entitled to qualified immunity.

         On March 30, 2015, Omran filed a motion to amend the Complaint. Docket No. 10. On March 31, 2015, the District Court granted Omran’s motion to proceed in forma pauperis and directed him to file both an amended complaint and a show cause response demonstrating why this action should not be dismissed based on numerous legal deficiencies noted in the District Court’s memorandum and order. Docket No. 11. These deficiencies included the failure to set forth plausible claims in accordance with Rule 8 of the Federal Rules of Civil Procedure. Id. at 9-11. The Court also questioned whether the District of Massachusetts was the proper venue for this action in view of related New Hampshire litigation, and also questioned whether there was personal jurisdiction over some of the defendants. Id. at 11-12.

         In addition, the Court noted that Omran had failed to set a plausible claim under 42 U.S.C. § 1983 because only federal action, not state action, was alleged. Id. at 12-13. The Court also noted several deficiencies with respect to Omran’s FTCA claims including that it was unclear whether his claims were duplicative of those in New Hampshire litigation and it was unclear whether Omran had administratively exhausted all of his FTCA claims. Id. at 13-17.

         With respect to Omran’s proposed amended complaint, the District Court found that it suffered from the same impediments as the original complaint. Id. at 18-19. The District Court therefore denied Omran’s motion to amend the complaint. Id.

         On April 27, 2015, Omran filed an Amended Complaint and a Response to the Order to Show Cause. Docket Nos. 14, 15. The Amended Complaint named the same individual defendants and correctly substituted the United States, in lieu of the ICE and the FBI, as a defendant in connection with the FTCA claims. The Amended Complaint essentially asserted the same claims as contained in the original Complaint.

         On May 17, 2015, the District Court issued a Memorandum and Order regarding Omran’s Amended Complaint and Response to the Order to Show Cause. Docket No. 17. The District Court dismissed the claims against Bisson. Id. at 7-9. It found that Omran had failed to state any federal claims against Bisson. Id. The District Court also declined to exercise supplemental jurisdiction over any state law claims against Bisson, to the extent that Omran had intended to bring any such claims. Id. at 9.

         The District Court allowed the case to proceed as to defendants Bleezarde, Clothier, Galway, Catchins, Roy, the ICE Director and the United States. Id. at 6-7. Summons issued as to these defendants. Id. at 9, 12. The District Court also directed the Clerk to correct the docket to terminate the FBI and ICE as defendants, and add as a defendant “John Doe, the custodian of plaintiff’s property after it was seized on September 24 and 25, 2012.” Id. at 7. However, no summons was issued with respect to John Doe. Id. at 10. The District Court stated that “if and/or when Omran discovers the identity of this individual, he may move to amend the Amended Complaint to substitute the proper name of the Defendant, and he may request a summons issue at that time.” Id.

         The Defendants filed the instant motion to dismiss on October 2, 2015. Docket No. 40. On October 19, 2015, Omran filed an opposition. Docket No. 43.

         On December 3, 2015, Omran filed a motion to amend the Complaint. Docket No. 44. The Defendants filed an opposition on December 21, 2015. Docket No. 46.

         On January 7, 2016, Omran filed a motion to supplement his opposition to Defendants’ motion to dismiss. Docket No. 47. The Defendants filed an opposition on January 15, 2016. Docket No. 49.

         On April 25, 2016, Omran filed a motion for a temporary restraining order and preliminary injunction. Docket No. 53. The District Court denied the motion on April 29, 2016. Docket No. 57.[4]

         II. FACTS[5]

         On August 30, 2012, Omran was arrested by ICE agents at his work in Barrington, New Hampshire. Amended Complaint (“AC”) at ¶ 10. Omran was detained at Strafford County Department of Correction in Dover, New Hampshire. Id. On September 5, 2012, Omran was indicted on two counts of “false claim of citizenship.” Id.

         On September 24, 2012, ICE agent Bleezarde and FBI agent Galway visited Omran’s residence in Methuen, Massachusetts. AC ¶¶ 2, 4, 11. Bleezarde and Galway allegedly threatened and coerced Bisson, Omran’s landlady, into allowing them to conduct a warrantless search and seizure. Id. Among the seized items was Omran’s computer, which was protected by a password. Id.

         On September 25, 2012, Bleezarde and Galway visited a house in New Durham, New Hampshire where Omran had stored some of his personal property. AC ¶ 12. The agents coerced the occupant of the house and conducted a warrantless search and seizure. Id. The agents opened closed boxes and locked suitcases, and seized some of Omran’s personal property. Id.

         On October 10, 2012, Bleezarde applied for a search warrant to bypass the computer password and search the contents of the computer. AC ¶ 13. Omran alleges that Bleezarde lied in the search warrant affidavit. Id. Bleezarde claimed that while Omran was incarcerated, Bisson had accessed Omran’s computer and noticed suspicious digital files which led her to report the incident to the Department of Homeland Security. Id. Omran alleges that in reality, Bisson had never accessed the computer and only allowed the officers to conduct the warrantless search and seizure after they showed up without notice in her house because they threatened her. Id.

         Omran also alleges that the search warrant was issued based on Bleezarde’s fabricated statements. AC ¶ 14. According to Omran, Clothier searched Omran’s computer and he exceeded the authority given to him by the warrant. Id.

         Omran claims that John Doe allowed other unauthorized individuals to view contents that were not authorized to be viewed according to the issued search warrant. AC ¶ 15. Omran alleges that Doe “had a duty and obligation to follow the law of the United States which guaranteed the plaintiff his right against unreasonable search. By violating this law, [Doe] had neglected to do his duties which was mandatory and not discretionary.” Id.

         One of Omran’s friends delivered a suitcase to the ICE regional field office in Burlington, Massachusetts, where the property officer, Catchins, searched the contents of the suitcase and seized some of Omran’s documents. AC ¶ 16. Among the seized items were Omran’s social security card and driver’s license. Id. Some of the property was never returned to Omran. Id.

         Omran filed a complaint against Bleezarde with the ICE Office of Professional Responsibility in Washington, D.C. AC ¶ 17. Omran’s complaint was never investigated and no disciplinary action was taken against Bleezarde. Id. Omran alleges that the ICE Director “neglected to do his job in investigating the complaint and treated the plaintiff differently than he treats other complainants only because of the plaintiff’s racial ethnicity.” Id. He alleges that the Director violated his due process and equal protection rights. Id.

         Omran was transferred to the custody of the U.S. Marshals Service on March 21, 2014. AC ¶ 18. Among Omran’s property was the computer that was seized illegally by Officer Bleezarde on September 24, 2012. Id. U.S. Marshal Nicole Roy asked Omran to provide her with an address to ship his property to. Id. Roy made Omran sign a document that stated he received his property. Id. Omran alleges that the document and signature were invalid because it was signed under duress and threat of violence. Id. Before shipping the computer to Omran’s address, Roy allowed a computer expert to access Omran’s computer and to tamper with the hard drive to modify the dates of access to the computer to match the fabricated statements of Bleezarde in his affidavit in support of the search warrant. Id.

         Omran alleges that Bleezarde, Galway, Clothier and Catchins’ actions violated Omran’s Fourth and Fifth Amendment rights against unreasonable search and seizure, right to due process and equal protection of the law. AC ¶¶ 20-23. He also alleges that these defendants conspired with each other and Bisson to deprive Omran of his constitutional rights in violation of 42 U.S.C. §§ 1985 and 1986. Id. In addition, he alleges that these defendants’ actions constitute abuse of process, invasion of privacy, discrimination, unreasonable search and seizure, damage, and loss of property, and emotional distress under Massachusetts law. Id. He further alleges that they were acting “under color of federal law” and their actions gave rise to a Bivens claim. Id. Omran asserts similar claims against Roy, except that he does not seem to assert an abuse of process claim against her and states that his state law causes of action arise under Louisiana law. AC ¶ 24.

         With respect to the ICE Director, Omran argues that his actions violated the Equal Protection and Due Process Clauses of the Fifth Amendment. AC ¶ 26. He also appears to assert a claim for emotional distress under state law. Id.

         Finally, Omran brings claims against the United States under the FTCA. AC ¶ 27. It is not entirely clear, but he also appears to be asserting a Bivens claims against the United States. Id.

         Omran requests the following relief: (1) a declaratory judgment that the Defendants violated his constitutional rights; (2) an injunction ordering the Defendants to return all illegally seized property and to destroy all copies made of Omran’s digital storage media and his computer’s hard disc, in any form, in a way that does not permit future recovery of such data; (3) an “injunction” ordering the Defendants to pay all court fees; (4) an “injunction” ordering the Defendants to pay all expert witnesses’ fees; and (5) a judgment against Defendants in the sum of $10 million as compensatory and punitive damages. AC at p. 13.

         III. ANALYSIS

         Defendants seeks dismissal of the instant action on two primary grounds: (1) lack of subject matter jurisdiction pursuant to Rule 12(b)(1); and (2) failure to state a claim pursuant to Rule 12(b)(6). Defendants also argue that the claims against defendants Clothier and Roy should be dismissed for lack of personal jurisdiction and improper venue.

         “[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction).” Sinochem Int’l Co., Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31 (2007). Therefore, the Court first addresses the jurisdictional issues before reaching Defendants’ other arguments.

         A. Lack Of Personal Jurisdiction

         Omran ultimately bears the burden of persuading the Court that it has personal jurisdiction over the Defendants. Hannon v. Beard, 524 F.3d 275, 279 (1st Cir. 2008). In considering a motion to dismiss for lack of personal jurisdiction, a court may choose from three methods for determining whether the plaintiff has met his burden of establishing personal jurisdiction. Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir. 2007). These methods include the prima facie method, the “preponderance of the evidence” method, and the “likelihood” method. Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145-47 (1st Cir. 1995). When, as here, a court rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, the “prima facie” standard governs its determination. United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001). Under the prima facie standard, Omran must “go beyond the pleadings and make affirmative proof” to demonstrate the existence of personal jurisdiction. Id. at 619. However, the Court “accept[s] the plaintiff’s (properly documented) evidentiary proffers as true” and construes those facts “in the light most congenial to the plaintiff’s jurisdictional claim.” Hannon, 524 F.3d at 279 (internal quotation marks and citations omitted).

         The Court lacks personal jurisdiction over defendants Clothier and Roy. Clothier and Roy both reside and work outside of Massachusetts and Omran has not alleged that they took any steps against him within Massachusetts. Moreover, Omran has made no allegations that Clothier and Roy have the necessary minimum contacts with the District of Massachusetts to warrant long-arm jurisdiction. See Burger King Corp. v. Rudzewickz, 471 U.S. 462, 474-475 (1985). The Court, therefore, may not exercise jurisdiction over Omran’s claims for monetary relief against Clothier and Roy individually. Any claims against them in their individual capacity should therefore be dismissed.

         B. Lack Of Subject Matter Jurisdiction

         Federal courts are courts of limited jurisdiction. Destek Group, Inc. v. State of New Hampshire Pub. Util. Comm’n, 318 F.3d 32, 38 (1st Cir. 2003). The party claiming that there is jurisdiction carries the burden of showing that the court ...


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