OKWUEGO v. CORREIA

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ANGELINA OKWUEGO,

Civil Action No. 22-3635

(MEF)(JRA)

Plaintiff,

v. OPINION and ORDER

PAULO CORREIA,

Defendant.

I. Background

A. The Allegations

B. The Lawsuit

C. The Motion

D. The Court’s Approach

II. The Cause of Action

III. The Merits

A. Pleading Standards

B. Respondeat Superior

C. Knowledge and Acquiescence

IV. Conclusion

* * *

An applicant challenged the denial of an immigration-related

petition she had filed.

She came to believe that the challenge was mishandled and sued a

federal immigration official, alleging that he violated her

constitutional rights.

The official moved to dismiss the complaint.

The motion is granted.

* * *

I. Background

A. The Allegations

Angelina Okewuego filed a “Form I-130 (Petition for Alien

Relative)” with the United States Citizenship and Immigration

Services (“USCIS”). See Complaint at 6.

The USCIS denied the Form I-130 petition. See id. at 6

(referring to a Form I-130 “appeal”); id. at Exhibit 1 (August

2020 Form EOIR-29, challenging the decision on the Form I-130

petition); cf. Motion to Dismiss, Exhibit 1 (July 2020 USCIS

decision).

Okewuego then filed a “Form EOIR-29 (Notice of Appeal).” See

Complaint at 6; id. at Exhibit 1 (August 2020 Form EOIR-29).

She filed this with the Board of Immigration Appeals (“BIA”).

See id. at Exhibit 1 (August 2020 Form EOIR-29). By filing the

Form EOIR-29, Okewuego was apparently seeking to challenge the

USCIS denial of her initial Form I-130 petition.

The next day, the BIA returned the filing. Per the BIA: the

challenge had to be filed with the USCIS. See id. at 6; id. at

Exhibit 2 (August 2020 Appeal from a DHS/USCIS Officer’s

Decision).

Okewuego then filed a challenge of the denial of her petition

with the USCIS. See id. at 6; id. Exhibit 3 (Receipt).

Okewugo says this paperwork was mishandled.

In particular, she alleges that a regional USCIS official

“us[ed] [his] position and resources” to “unlawful[ly] seize[e]”

the paperwork “without transferring the application to [the]

BIA,” and then “suppressed and blocked the appeal.” Id. at 6-7.

B. The Lawsuit

Based on the above allegations, Angelina Okewuego1 sued a

regional USCIS official.2

1 From here, the “Plaintiff.”

2 Paulo Correia; from here, the “Defendant.”

The complaint alleges violations of the Fourth, Fifth, Eighth,

and Fourteenth Amendments to the United States Constitution.3

C. The Motion

The Defendant has moved to dismiss the complaint under Rule

12(b)(6) of the Federal Rules of Civil Procedure.

The Defendant makes two arguments: (a) there is no cause of

action here, see Motion to Dismiss at 9-19, and (b) even if

there is a cause of action, the Plaintiff’s claims fail. See

id. at 19-24.

The motion is before the Court.

D. The Court’s Approach

The Court first explains that it may assume for purposes of this

motion that there is a cause of action here. See Part II.

Doing so, the Court takes up the Plaintiff’s constitutional

claims and concludes they are meritless. See Part III.

Accordingly, the motion to dismiss is granted.

II. The Cause of Action

The Plaintiff sued the Defendant, a federal employee, in his

personal capacity4 for violating her constitutional rights; she

seeks money damages.

3 Two procedural history notes. First, a prior complaint was

filed and dismissed. See Opinion and Order (August 25, 2022).

The Plaintiff then filed an amended complaint. See Amended

Complaint (September 17, 2022). It is the amended complaint

that is relevant in this Opinion. Second, there has been other

litigation as to the Plaintiff’s Form I-130 petition. See

Onwuzulike v. Att’y Gen. United States, 2022 WL 412956, at *1

(3d Cir. Feb. 10, 2022), cert. denied sub nom. Onwuzulike v.

Garland, 142 S. Ct. 2787 (2022).

4 There was ambiguity as to whether the Plaintiff was suing the

Defendant in his personal or official capacity. The Court

sought clarification, and the Plaintiff confirmed a few weeks

ago that she was suing the Defendant in his personal capacity.

See Letter (July 19, 2024).

Such a lawsuit can go forward only if there is a cause of

action. The United States Congress has not created one in this

context.

But the Supreme Court established a cause of action in Bivens v.

Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and two

subsequent cases. See Carlson v. Green, 446 U.S. 14 (1980);

Davis v. Passman, 442 U.S. 228 (1979).

In a given case, a court may first decide if there is a Bivens

cause of action. See Bistrian v. Levi, 912 F.3d 79, 88-89 (3d

Cir. 2018) (cleaned up).

But that is not necessary. The Court can “resolve a case by

demonstrating that a plaintiff would lose on the constitutional

claim he raises, even if Bivens provided a remedy for that type

of claim.” Id. at 89; see Hernandez v. Mesa, 582 U.S. 548, 553–

54 (2017) (“[D]isposing of a Bivens claim by resolving the

constitutional question, while assuming the existence of a

Bivens remedy - is appropriate in many cases.”); Ojo v. Luong,

709 F. App’x 113, 118 n.5 (3d Cir. 2017) (“Neither we nor the

United States Supreme Court appear to have addressed whether a

Fifth Amendment claim may be asserted under Bivens in this

precise context. We need not do so in this case because, as

explained below, [the plaintiff] has not stated a valid claim

that the agents violated his Fifth Amendment rights.”).

In short: “[w]hether a cause of action exists is not a question

of jurisdiction, and may be assumed without being decided.”

Bistrian, 912 F.3d at 89 n.15 (quoting Air Courier Conference of

Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 523 n.3

(1991)).

Here, the Court assumes without deciding that a Bivens cause of

action exists --- and takes up the Plaintiff’s constitutional

claims on the merits.

III. The Merits

The Defendant argues that the motion to dismiss should be

granted because (a) it does not meet the relevant pleading

standards, see Motion to Dismiss at 21-22; and (b) it does not

adequately allege the Defendant was personally involved in the

claimed constitutional violations. See id. at 20-21.

A. Pleading Standards

To survive a motion to dismiss, a complaint must contain

“sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007); see Gibney v. Fitzgibbon, 547 F. App’x

111, 113 (3d Cir. 2013) (“[The plaintiff] must plead enough

facts, accepted as true, to plausibly suggest entitlement to

relief.”).

To pass muster, a complaint must have “more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.

at 678 (cleaned up). “Detailed factual allegations” are

certainly not required, but “labels and conclusions” or “naked

assertions devoid of further factual enhancement” are not

enough. See id. (cleaned up).

The complaint here makes four accusations: the Defendant “used

his position and resources” to unlawfully seize and suppress the

Plaintiff’s appeal without transferring it to the BIA, Complaint

at 6 (cleaned up); he “used a vehicle to stop, suppress, and

block” the appeal, id. at 7 (cleaned up); he “intentionally

disrupted movement of the I-130 appeal application process . . .

physically and electronically,” id; and he was motivated in all

this by “racial discrimination and hatred [of] [the]

[P]laintiff[’s] background.” Id.

But some of these are essentially “bare assertions . . .

amounting to nothing more than a formulaic recitation of the

elements” of the Plaintiff’s claims. Iqbal, 556 U.S. at 681;

see, e.g., Complaint at 6 (the Defendant “unlawful[ly] seiz[ed]”

the paperwork); id. at 7 (the Defendant was “purely motivated by

racial discrimination and hatred [of] [the] [P]laintiff[‘s]

background”).

These must be put to one side. Legal conclusions put forward as

factual assertions are not sufficient. See, e.g., Connelly v.

Lane Const. Corp., 809 F.3d 780, 789-90 (3d Cir. 2016);

Rajpurohit v. Becton, Dickinson, & Co., 2024 WL 1477652, at *7

(D.N.J. Apr. 5, 2024).

As to the allegations that are left: these are sparse and

conclusory, such that the complaint cannot be said to plead a

facially plausible basis for relief.

First, the Plaintiff says the Defendant “used his position and

resources . . . to unlawfully seize” the paperwork associated

with the Plaintiff’s Form I-130 challenge. Complaint at 6

(cleaned up). But there is no information in the complaint as

to how and when the Defendant allegedly did this.

Second, the complaint says the Defendant “used a vehicle” to

“seize, stop, suppress, and block” the appeal. See id. at 7

(cleaned up). This reference to a vehicle is not followed up

on. No information is provided as to what sort of vehicle was

used or how that might have blocked the appeal.

So too with the Plaintiff’s third allegation, that the Defendant

“intentionally disrupted the movement of the [Form] I-130 appeal

. . . physically and electronically.” Id. If there was an

electronic stumbling block put in the way of the appeal, that is

not the subject of any further allegations in the complaint. As

to alleged “physical” impediments, all the complaint says is

that a vehicle was used. But that, as noted above, is too

conclusory.

Fourth and finally, the Plaintiff contends that the Defendant

was motivated throughout by “racial discrimination and hatred of

the Plaintiff’s background.” Id. (cleaned up). But this is not

fleshed out. There is, for example, no allegation that the

Defendant knew anything in particular about the Plaintiff, said

anything derogatory about her, or treated her differently than

others.

Bottom line: the Plaintiff’s allegations amount to little more

than “the-defendant-unlawfully-harmed-me accusations.” See

Iqbal, 556 U.S. at 677-78. They are not enough to go on. They

do not supply “enough facts” to plausibly suggest the Defendant

committed a constitutional violation. See Gibney, 547 F. App’x

at 112-13; Schuylkill Energy Res., Inc. v. Pa. Power & Light

Co., 113 F.3d 405, 417 (3d Cir. 1997); Green v. Slaughter, 2019

WL 4072978, at *4 (D.N.J. Aug. 29, 2019); Harris v. Mercer Cnty.

Cmty. Coll., 2019 WL 1508975, at *2 (D.N.J. Apr. 5, 2019);

Graves v. New Jersey, 2018 WL 6514943, at *3 (D.N.J. Dec. 11,

2018); Edelglass v. Ulta Salon, Cosms., Fragrance, Inc., 2018 WL

11593277, at *4 (D.N.J. July 17, 2018).

To be sure, the Plaintiff is proceeding pro se. Her pleading

must be broadly construed, and the Court has done so. But “pro

se litigants still must allege sufficient facts in their

complaints to support a claim.” Mala v. Crown Bay Marina, Inc.,

704 F.3d 239, 245 (3d Cir. 2013) (cleaned up).5

B. Respondeat Superior

In light of the Plaintiff’s pro se status, there is another

possibility the Court will consider.

Namely, the Plaintiff might be seeking to argue that the

Defendant is liable because he is a senior official in a federal

government agency that itself violated her constitutional

rights.

But in this context, such arguments are insufficient. See

Iqbal, 556 U.S at 683 (“Unlike in Twombly, where the doctrine of

respondeat superior could bind the corporate defendant, here, as

we have noted, petitioners cannot be held liable unless they

themselves acted on account of a constitutionally protected

characteristic.”); Weimer v. Cnty. of Fayette, Pa., 2023 WL

7221027, at *3 (3d Cir. Nov. 2, 2023) (“A government official is

liable only for his own conduct --- respondeat superior or

vicarious liability will not do.”); Saisi v. Murray, 822 F.

App’x 47, 48 (3d Cir. 2020) (“a director cannot be held liable

simply because of his position as the head of the agency”)

(cleaned up); Evancho v. Fisher, 423 F.3d 347, 353-54 (3d Cir.

2005) (conclusion that a state attorney general “may have been

somehow involved simply because of his position as the head of

the Office of the Attorney General” amounted to an unreasonable

inference, where the complaint failed to allege facts showing

the attorney general’s “personal involvement”); see also McCray

v. Jones, 2022 WL 17485957, at *3 (3d Cir. Dec. 7, 2022)

(holding a pleading was insufficient where complaint “fail[ed]

5 In part because the Plaintiff is pro se, the Court will afford

her an opportunity to replead. If an amended complaint is

filed, and it is factually full enough, it still must be

plausible. See Iqbal, 556 U.S. at 681 (“given more likely

explanations, [the facts alleged] do not plausibly establish”

the alleged claims). This might prove a high bar to clear.

One “more likely explanation[],” see id., may be that the

Plaintiff’s challenge did not go forward because she did not

properly follow the required procedures. See Motion to Dismiss,

Exhibit 1 (July 2020 USCIS Decision); 8 C.F.R. § 103.2(b)(13)(i)

and § 103.2(b)(15).

to identify any actions that [the defendant] or her office took

concerning the [alleged constitutional violations]” other than

identifying the defendant as the director of an agency).

This is because “a plaintiff must plead that [the] Government-

official defendant, through the official’s own individual

actions, has violated the Constitution.” Iqbal, 556 U.S. at

676; see also George v. Rehiel, 738 F.3d 562, 572 (3d Cir.

2013); Argueta v. U.S. Immigr. & Customs Enf’t, 643 F.3d 60, 71

(3d Cir. 2011).

There are no allegations here of any personal involvement by the

Defendant in any alleged agency efforts to impede consideration

of the Plaintiff’s challenge.

It is true that the Plaintiff alleges that the Defendant had the

“position and resources” to do so. Complaint at 6. But that is

just another way of saying the Defendant was a senior official.

And that, standing alone, is not enough.

In addition, it bears noting a prior complaint alleged that the

Defendant had signed the decision denying the Plaintiff’s Form

I-130 petition. See Complaint (June 9, 2022). But that

allegation is not in the current complaint. And in any event,

signing a quasi-judicial opinion suggests nothing, standing

alone, about personal involvement in an alleged effort to

prevent the Plaintiff’s challenge from being heard.

C. Knowledge and Acquiescence

A final note.

In this context, liability could at least potentially be

established on a Section 1983-derived theory that the Defendant

“had knowledge of and acquiesced in his subordinates’

violations.” Adger v. Coupe, 2022 WL 777196, at *3 (3d Cir.

Mar. 14, 2022); see also Argueta, 643 F.3d at 70.

But the Plaintiff, even taking into account her pro se status,

has not raised any argument along these lines.

In addition, to the extent “knowledge and acquiescence”

liability can work, the Plaintiff must still establish personal

knowledge and acquiescence. Williams v. Papi, 714 F. App’x 128,

133-34 (3d Cir. 2017) (cleaned up). None is alleged here.

Iv. Conclusion

The motion to dismiss is granted.® An amended complaint may be

filed. The deadline for doing so is September 20, 2024.

x k *

It is on this 7th day of August, 2024 SO ORDERED.

Michael | U.S.D.J.

6 The motion is denied on the merits because the claims are not

well plead. But even if this were addressed, it is not clear

that the Plaintiff could get over the qualified immunity hurdle

here. The Court has not found cases that suggest a “clearly

established right” under the Fourth, Fifth, Eighth, or

Fourteenth Amendments might be in play here. See generally

George, 738 F.3d at 572 (“[I]n order to overcome the defense of

qualified immunity, [the plaintiff] must allege facts showing

that the conduct of each individual federal defendant (1)

violated a statutory or constitutional right, and (2) that the

right was ‘clearly established’ at the time of the challenged

conduct.”) (cleaned up).