Antigua v. DHS/ICE

PS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

RAMON ALBERTO ANTIGUA

VICTORIO,1

DECISION AND ORDER

Plaintiff,

6:24-CV-06540 EAW

v.

DHS/ICE,

Defendant.

__________________________________

INTRODUCTION

Pro se plaintiff, Ramon Alberto Antigua Victorio (“Plaintiff”), filed a complaint

seeking relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971), relating to events which occurred while he was a federal immigration

detainee at the Buffalo Federal Detention Center in Batavia, New York. (Dkt. 1 at 4-5).

This matter was transferred from the United States District Court for the Eastern District

of New York. (Dkt. 4). Plaintiff sues the United States Department of Homeland Security

(“DHS”) and the United States Immigration and Customs Enforcement (“ICE”). He has

paid the filing fee.

For the reasons that follow, the complaint is dismissed without prejudice pursuant

to Federal Rule of Civil Procedure (“Rule”) 12(h)(3) for lack of subject matter jurisdiction.

1 The Clerk of Court is directed to amend the caption accordingly.

Plaintiff may file an amended complaint within 45 days of the date of this Decision and

Order.

DISCUSSION

Since Plaintiff “is neither proceeding in forma pauperis nor a prisoner, the Court

. . . [may] not screen his claims under 28 U.S.C. §[§] 1915(e)(2)(B) or 1915A. . . .” Mills

v. Fischer, No. 09-CV-0966A, 2010 WL 364457, at *3 n.2 (W.D.N.Y. Feb. 1, 2010).

Nevertheless, “a district court may always sua sponte dismiss a pro se plaintiff’s complaint

based on frivolousness,” LaSpisa v. CitiFinancial Co., No. 19-CV-0228 (GTS/DJS), 2020

WL 2079410, at *3 (N.D.N.Y. Apr. 30, 2020) (citing Fitzgerald v. First E. Seventh St.

Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000)), or for lack of subject matter jurisdiction,

Rule 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction,

the court must dismiss the action.”); Lewis v. Thoms, No. 21-CV-6738-FPG, 2023 WL

35330, at *2 (W.D.N.Y. Jan. 4, 2023) (“a district court ‘has the authority to dismiss a

complaint, even when the plaintiff has paid the filing fee, if it determines that . . . the Court

lacks subject-matter jurisdiction[.]’” (alternations in original) (quoting Li v. Dillon, No. 21-

CV-5735 (VEC), 2021 WL 3146033, at *1 (S.D.N.Y. July 23, 2021))).

I. PLAINTIFF’S ALLEGATIONS

Plaintiff alleges that from May 5, 2022, to September 13, 2023, he was confined at

the Buffalo Federal Detention Facility. (Dkt. 1 at 5). He states that he was kept “for hours

in a locked cell with only several hours of rest and recreation a day for an alleged charge

of deportation” that was “not . . . upheld in any immigration court for imminent

deportation.” (Id.). He alleges that he suffered depression, anxiety, and fear. (Id. at 7).

He also required therapy and medication to treat his resulting mental health conditions.

(Id.). The attachments incorporated into and considered part of the complaint indicate that

Plaintiff was previously convicted of possession of a narcotic drug and found deportable

under 8 U.S.C. § 1227. (Dkt. 1-2 at 8-9).

Plaintiff alleges that he should not have been detained, and he appears to request

monetary damages for the days he was detained and for “perjury,” as well as the

reinstatement of his status as a lawful permanent resident. (Dkt. 1 at 7 (“I be paid for all

the days I have had my immigration status returned [sic] to me, permanent resident plus

the perjury claim for $2.5 million dollar.”)). Liberally construed, Plaintiff alleges

constitutional violations arising from the conditions of his confinement and unlawful

detention.

The attachments to the complaint (Dkt. 1-2 at 9, 10) indicate that Plaintiff

commenced two related proceedings: (1) a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2241, which was dismissed by stipulation of the parties on September 15, 2023,

upon Plaintiff’s release from ICE custody (see Antigua v. Searls, No. 6:23-CV-06412

(EAW), Dkt. 4; Dkt. 5 (W.D.N.Y. Sept. 25, 2023)); and (2) a petition filed with the Second

Circuit challenging the decisions of the Immigration Judge and Board of Immigration

Appeals that his state convictions constituted controlled substance offenses that rendered

him removable, which remains pending (see Antigua v. Bondi, Second Circuit Court of

Appeals Docket No. 22-6535, Dkt. 1 (2d Cir. Nov. 18, 2022)).2

2 The Court may take judicial notice of judicial decisions and documents filed in other

courts. See Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (“[C]ourts

II. SOVEREIGN IMMUNITY AND BIVENS

“Absent an ‘unequivocally expressed’ statutory waiver, the United States, its

agencies, and its employees (when functioning in their official capacities) are immune from

suit based on the principle of sovereign immunity.” Cnty. of Suffolk, N.Y. v. Sebelius, 605

F.3d 135, 140 (2d Cir. 2010) (citing Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255,

260-61 (1999)). “While the FTCA [Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-

80] provides a limited waiver of sovereign immunity for certain tort claims, Congress has

not waived the United States’ sovereign immunity with respect to constitutional tort

claims.” Davila v. Gutierrez, 330 F. Supp. 3d 925, 937 (S.D.N.Y. 2018) (citing FDIC v.

Meyer, 510 U.S. 471, 478 (1994)); see also Chen v. United States, 854 F.2d 622, 625-26

(2d Cir. 1988), aff’d, 791 F. App’x 211 (2d Cir. 2019).3

routinely take judicial notice of documents filed in other courts, . . . not for the truth of the

matters asserted in the other litigation, but rather to establish the fact of such litigation and

related filings.”).

3 The Court has not construed the complaint as making a claim under the FTCA

because Plaintiff does not name the United States as defendant as required by 28 U.S.C.

§ 1346. There is also nothing in the record before the Court to suggest that Plaintiff

exhausted his administrative remedies by presenting his claim to the appropriate federal

agency as required by 28 U.S.C. § 2675(a). This requirement “is jurisdictional and cannot

be waived.” Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d

Cir. 2005) (citing McNeil v. United States, 508 U.S. 106, 113 (1993); Robinson v. Overseas

Mil. Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994)). In other words, Plaintiff would need

to pursue any potential FTCA claim before the appropriate federal agency before it could

be asserted in a federal district court. Likewise, because Plaintiff has named only a federal

defendant, the Court has not interpreted the complaint as asserting any claim pursuant to

42 U.S.C. § 1983. See Haynes v. Quality Markets, No. 02-CV-250, 2003 WL 23610575,

at *2 (E.D.N.Y. Sept. 22, 2003) (“the actions of the federal government and its agencies

and officials are beyond the purview of § 1983, which applies only to state actors acting

under color of state law” (citing Wheeldin v. Wheeler, 373 U.S. 647, 650 (1963); District

of Columbia v. Carter, 409 U.S. 418, 423-25 (1973)), report and recommendation adopted

Correspondingly, “Congress has never ‘provide[d] a specific damages remedy for

plaintiffs whose constitutional rights were violated by agents of the Federal Government.’”

Cohen v. Trump, No. 23-35, 2024 WL 20558, at *2 (2d Cir. Jan. 2, 2024) (alteration in

original) (quoting Ziglar v. Abbasi, 582 U.S. 120, 130 (2017)), cert. denied, 145 S. Ct. 415

(2024). “A Bivens action is a judicially-created remedy designed to provide individuals

with a cause of action against federal officials who have violated their constitutional

rights.” Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (citation omitted). Because

of sovereign immunity and the absence of a statutory damages remedy, “[c]onstitutional

tort claims . . . must be brought against individual federal agents or employees in their

individual capacities through a Bivens action.” Davila, 330 F. Supp. 3d at 937 (citing

Robinson v. Overseas Mil. Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994)).

“When a court dismisses without prior notice for lack of subject-matter jurisdiction,

the defect must be ‘unmistakably clear.’” Byvalets v. 1053 Owners Corp., No. 22-2766,

2023 WL 8643139, at *1 (2d Cir. Dec. 14, 2023) (quoting Catzin v. Thank You & Good

Luck Corp., 899 F.3d 77, 82 (2d Cir. 2018)). The subject matter jurisdiction defect here

falls into that category. Since Plaintiff’s claims are brought against federal agencies—

DHS and ICE—and not against any federal officer in his or her individual capacity, the

complaint must be dismissed for lack of subject matter jurisdiction. See Robinson, 21 F.3d

at 510 (“[T]o the extent that Robinson’s claims constituted a Bivens action against AAFES,

sub nom. Haynes v. Quality Markets (The Penn Traffic Co.), 2004 WL 1146050 (W.D.N.Y.

Mar. 25, 2004), aff’d sub nom. Haynes v. Quality Markets, 307 F. App’x 473 (2d Cir.

2008).

[a federal agency,] or the individual federal defendants in their official capacities, they

were properly dismissed for want of subject matter jurisdiction.” (citing Meyer, 510 U.S.

at 485-86)).4

Although the Court has significant doubt that a Bivens remedy can be implied based

on the facts of the complaint, those questions do not go to the Court’s subject matter

jurisdiction. See Kaid v. Tatum, No. 1:20-CV-03643 (JLR), 2024 WL 639331, at *2

(S.D.N.Y. Feb. 15, 2024) (“Whether a court should imply a Bivens remedy [against an

individual defendant] is not a question of subject matter jurisdiction.” (alteration in

original) (quoting Lewis v. Bureau of Alcohol, Tobacco & Firearms, No. 16-cv-01057

(RPK), 2021 WL 2576731, at *3 (E.D.N.Y. June 23, 2021))). In the current posture of this

case, the Court can go no further in addressing those issues. Having concluded that subject

matter jurisdiction is lacking, the Court’s appropriate recourse is to dismiss the complaint

without prejudice. See Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir.

4 The Court notes that there are other potential bars to portions of Plaintiff’s claims

and requested relief. For instance, Plaintiff seeks reinstatement of his permanent resident

status, (Dkt. 1 at 7), which he presumably lost in the removal proceeding. This Court,

however, would be without jurisdiction to grant relief that would be an indirect challenge

to the underlying removal order. See 8 U.S.C. § 1252(a)(5) (“[A] petition for review filed

with an appropriate court of appeals in accordance with this section shall be the sole and

exclusive means for judicial review of an order of removal entered or issued under any

provision of this chapter. . . .”); Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011)

(the jurisdictional bar of § 1252(a)(5) encompasses “indirect” challenges to removal

orders).

1999) (“Article III deprives federal courts of the power to dismiss a case with prejudice

where federal subject matter jurisdiction does not exist.”); Arutyunyan v. Fed. Bureau of

Investigation, N.Y. State, No. 17-3831, 2018 WL 11403559 (2d Cir. Mar. 26, 2018)

(vacating and remanding with instructions to permit an amended complaint where the

district court dismissed the complaint pursuant to Rule 12(h)(3) and 28 U.S.C.

§ 1915(e)(2)(B)(i) without leave to amend).

Finally, the Court notes that Plaintiff has not served Defendant. The Court issued

an Order to Show Cause on April 8, 2025, requiring Plaintiff to show cause in writing why

this case should not be dismissed for failure to serve Defendant. (Dkt. 11 at 2). Plaintiff

responded but did not provide a sufficient explanation. (Dkt. 12). But because of the lack

of subject matter jurisdiction, the Court is not dismissing the complaint based on Plaintiff’s

failure to serve at this time.

CONCLUSION

For the reasons set forth above, the complaint is dismissed pursuant to Rule 12(h)(3)

for lack of subject matter jurisdiction, but Plaintiff may file an amended complaint by no

later than 45 days in a manner that complies with Rules 8 and 10 of the Federal Rules of

Civil Procedure.

Plaintiff is advised that an amended complaint completely replaces the prior

complaint in the action, and thus it “renders [any prior complaint] of no legal effect.” Int’l

Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977); see also Shields v. Citytrust

Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Therefore, any amended complaint must

include all allegations against each individual defendant Plaintiff names in the amended

complaint so that the amended complaint stands alone as the only complaint that any named

individual defendants must answer in this action.

ORDER

IT IS HEREBY ORDERED that the complaint (Dkt. 1) is dismissed with leave to

file an amended complaint as directed above by no later than 45 days; and it is further

ORDERED that the Clerk of Court is directed to send to Plaintiff this Order, a copy

of the complaint, a blank complaint form, and the instructions for preparing an amended

complaint; and it is further

ORDERED that if Plaintiff does not file an amended complaint by the deadline set

by the Court, the Clerk of Court shall close this case without further order; and it is further

ORDERED that Plaintiff shall notify the Court in writing if his address changes; the

Court may dismiss the action if Plaintiff fails to dogo.

SO ORDERED.

l apJEQAN □□□

ELIZABE)TH AAVOLPORD~

éf-Frige

United States District Court

DATED: April 29, 2025

Rochester, NY

-8-