# OKWUEGO v. CORREIA

> District Court, D. New Jersey · August 7, 2024

URL: https://www.frixlaw.com/law-library/cases/10656429

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** August 7, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10656429

## Opinion text

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10656429. Public record. Not legal advice.