Muzumala v. Dep't of Homeland Sec. Sec'y Alejandro Mayorkas

JOSHUA MUZUMALA, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY SECRETARY ALEJANDRO MAYORKAS; DEPARTMENT OF HOMELAND SECURITY; IMMIGRATION AND CUSTOMS ENFORCEMENT; IMMIGRATION AND CUSTOMS ENFORCEMENT DIRECTOR TAE JOHNSON; FEDERAL BUREAU OF NVESTIGATION, Defendants.

No. 22-CV-3789 (JGK)

United States District Court, S.D. New York

July 22, 2022

ORDER OF SERVICE

JOHN G. KOELTL, UNITED STATES DISTRICT JUDGE

Plaintiff Joshua Muzumala, who is appearing pro se, brings this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, et seq.. alleging that government agencies failed to respond adequately to his document requests. The Plaintiff also asserts claims under 6 U.S.C § 345, 28 U.S.C. § 2201, 42 U.S.C. § 2000ee-1 and 18 U.S.C. § 242, alleging that the Defendants conspired to violate his constitutional rights. By order dated June 3, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (IFP), that is, without prepayment of fees. The Plaintiff moves for pro bono counsel and for an order of service.

STANDARD OF REVIEW

The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See Fed. R. Civ P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).^[1] But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.

Rule 8 of the Federal Rules of Civil Procedure requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp, v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “formulaic recita[ls] of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id. at 545.

BACKGROUND

The Plaintiff filed this action against the United States Department of Homeland Security (DHS); DHS Secretary Alejandro Mayorkas in his official capacity; United States Immigration and Customs Enforcement (ICE); ICE Director Tae Johnson in his official capacity; and the Federal Bureau of Investigation (FBI). Following is a summary of the facts drawn from the Plaintiff's second amended complaint,^[2] which is, with attachments, more than 130 pages long and contains 195 numbered paragraphs. (ECF 9.)

The Plaintiff, who identifies himself as being “of African descent,” moved to the United States in 2006. He is “an academic” and a certified public accountant. (Id. ¶ 5.) In 2019, the Plaintiff moved to New Paltz, New York, to enroll at the state university. (Id. ¶ 6.) At the time, the Plaintiff's application for permanent residency was pending with the United States Citizenship and Immigration Services (USCIS). (Id. ¶ 9.) The Plaintiff moved into an apartment complex called New Paltz Gardens, and a couple that lived there exhibited “severe xenophobia” and “racial animus.” (Id. ¶¶ 6 7.) The property manager moved the Plaintiff to a different apartment within the complex, but the harassment continued. (Id. ¶ 8.) In April 2020, the Plaintiff started to hear neighbors “talk about [his] immigration status.” (Id. ¶¶ 8.) The couple “involved” a man “who sounded as if he was from law enforcement, most likely including but not limited to immigration enforcement.” (Id. ¶ 9.)

On September 15, 2020, the Plaintiff moved to Poughkeepsie, New York, but the couple from New Paltz became “active proxies working alongside the government agent,” and started accusing him of crimes that could lead to his deportation. According to the Plaintiff, the agent “gain[ed] access to adjacent apartments, and from there surveilled” the Plaintiff. (Id. ¶¶ 10-11.) On December 30, 2020, the Plaintiff moved to Brooklyn, but the couple and the agent continued to track him. (Id. ¶¶ 13-14.) On May 21, 2021, the Plaintiff's petition for permanent residency was approved, but the Plaintiff heard people “from the room above” say, “we will keep doing this until we run him out of the country.” (Id. ¶ 16)

On June 26, 2021, the Plaintiff moved to New Orleans to enroll in a different academic program, but the couple and agent followed him there. (Id. ¶¶ 20-22.) Beginning in August 2021, when the Plaintiff showered, “he would experience irritation in his throat and his eyes, and the apartment would smell a little strange,” and he believes he was “getting gassed with some type of irritant gas” similar to what occurred in the “Nazi era concentration camps.” The Plaintiff also believed that “x-rays (or something to that nature)” were being directed towards him, possibly via “through-the-wall surveillance” and “through the body” technologies, resulting in multiple physical ailments. (Id. ¶¶ 24-28.)

On November 10, 2021, the Plaintiff returned to New York. (Id. ¶ 31 On January 6, 2022, the Plaintiff called the FBI office in New York to file a “civil rights complaint electronically.” The person he spoke with tried to discourage him, implying “the FBI's foreknowledge of [the Plaintiff's] circumstances.” On February 1, 2022, the Plaintiff submitted a FOIA request to the FBI. He received a confirmatory email but no other response. (Id. ¶¶ 71-75.)

On January 11, 2022, the Plaintiff filed an administrative complaint with the Office of Civil Rights and Civil Liberties (CRCL) within DHS. The response was that his complaint was “outside its jurisdiction.” (Id. ¶¶ 76-77) On January 12, 2022, the Plaintiff complained to the Office of the Inspector General at DHS, and he was informed that he did not have any “legal rights or remedies” in connection with his CRCL complaint. (Id. ¶¶ 78-80.)

On January 19, 2022, the Plaintiff filed a FOIA request with USCIS seeking records about his residency status. (Id. ¶¶ 89-90.) On March 3, 2022, the Plaintiff received records, none of which indicated that there were removal proceedings pending against him. (Id. ¶ 92.) Although the Plaintiff believes “that the absence of removal records .. . means that up until this point there has been no removal proceedings against” him, he requested a follow up search, and was informed that “all records responsive to his” request had been provided. The Plaintiff filed an appeal, and on May 26, 2022, the Plaintiff received a response from Immigration and Customs Enforcement (ICE), stating that, “34 pages of the records responsive” to his FOIA request to USCIS “had originated from ICE,” and noting that a disclosure exemption had been applied. (Id. ¶ 96.) The Plaintiff requested “a statement affirming or denying the presence of removal records in [his] file.” No such statement was provided, but he was informed that there was “no new information to disclose.” (Id. ¶ 97.)

Attachments to the complaint show that USCIS and ICE determined that 1235 pages of documents were responsive to the Plaintiff's FOIA request, that 1100 pages were provided to him in full, 132 pages were “released in part,” and 3 pages were withheld under a law enforcement exemption. (ECF 9-1 at 52.) The Plaintiff challenges the withholding and redaction of documents under the exemption, and all “illegal removal activities.” (ECF 9 ¶¶ 98,176) The Plaintiff asserts violations of his rights to equal protection and due process, and other rights protected under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. (Id. ¶¶ 18-19, 33-35; ECF 9-1 at 11, 25.) The Plaintiff seeks injunctive and declaratory relief, and money damages. (ECF 9 at 51-52.)

DISCUSSION

A. Statutory claims

1. The Freedom of Information Act

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, provides members of the public a right of access to some information from federal executive agencies. Federal courts have jurisdiction to enforce this right if a requester can show that “an agency has (1) ‘improperly;' (2) ‘withheld;' (3) ‘agency records.'” Kissinger v. Reporters Comm, for Freedom of the Press, 445 U.S. 136, 150 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)). “Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA's disclosure requirements.” U.S. Dep't of Just, v. Tax Analysts, 492 U.S. 136, 142 (1989).

Before seeking judicial review, a FOIA applicant must exhaust administrative remedies by completing the administrative appeal process. 5 U.S.C. § 552(a)(6)(A)(i)-(ii); see Sloman v. U.S. Dep't of Just., 832 F.Supp 63, 65-66 (S.D.N.Y. 1993). The exhaustion requirement allows the targeted agency to correct its own errors, which...