United States District Court, D. Massachusetts
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
se plaintiff Mohammed Ahmed Hassan Abdallah Omran
(“Omran”) filed this action under, inter
alia, Bivens,  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. Docket No. 40. 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
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
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
Lack Of Personal Jurisdiction
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).
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.
Lack Of Subject Matter Jurisdiction
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