Mohammed Ahmed Hassan Ab Omran v. United States

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

Civil Action No. 14-13881-LTS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

June 1, 2016

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S MOTION TO AMEND THE COMPLAINT

[Docket Nos. 40, 44]

Boal, M.J.

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 forthis 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 asto 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. FACTS⁵

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 toreport 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...