Bieregu v. Ashroft

• Decision Date: 01 May 2003
• Docket Number: Civil Action No. 01-4948.
• Citation: Bieregu v. Ashroft, 259 F.Supp.2d 342 (D. N.J. 2003)
• Parties: Polyns C. BIEREGU, Plaintiff, v. John ASHCROFT, Attorney General, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

259 F.Supp.2d 342

Polyns C. BIEREGU, Plaintiff, v.John ASHCROFT, Attorney General, et al., Defendants.

Civil Action No. 01-4948.

United States District Court, D. New Jersey.

May 1, 2003.

COPYRIGHT MATERIAL OMITTED

Polyns C. Bieregu, Loretto, PA, Plaintiff, pro se.

Neil Rodgers Gallagher, Esquire, Newark, NJ, for Defendants.

OPINION

DEBEVOISE, District Judge.

PlaintiffPolyns C. Bieregu("Bieregu"), a prisoner currently confined at the Federal Correctional Institution at Loretto, Pennsylvania, seeks to bring this action pursuant to the Alien Tort Claims Act, 28 U.S.C. § 1350, alleging violations of his rights under Article 36 of the Vienna Convention on Consular Relations.

At this time, the Court must review the Complaint pursuant to 28 U.S.C. § 1915A to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief.For the reasons set forth below, the Court concludes that dismissal of the Complaint is warranted.Nothing in this case suggests that plaintiff may be able to state a valid claim by amending the Complaint at this time.¹

I.BACKGROUND

Plaintiff, a Nigerian citizen, states that he was arrested in November 1991, and was subsequently convicted for conspiracy to import and conspiracy to possess with intent to distribute a controlled substance in violation of United States law.(Complaint¶¶ 18-10;see alsoDocket No. 91-cr-533 (DRD)(D.N.J.).)Plaintiff also states that his property, including an automobile and $18,000 in United States currency, were seized and subsequently forfeited to the United States government.(Compl.¶ 8.)Plaintiff alleges that he was never, during his arrest, detention, trial, or subsequent incarceration advised of his right under Article 36 to consult with a consular official.(Compl.¶¶ 9-10, 13.)He contends that the failure of Defendants to advise him of his right to consular notification under Article 36 caused him to be deprived of his right to counsel of his choice under the Sixth Amendment to the United States Constitution, resulting in his conviction and the forfeiture of his property.(Compl.¶¶ 3,10-12.)

Plaintiff states that he learned of Article 36 of the Vienna Convention on Consular Relations from an article published in the New York Times on August 30, 2001.(CompLf 13.)The Complaint is dated October 10, 2001, and was received by the Court on October 25, 2001.

Plaintiff names as Defendants an agent of the Drug Enforcement Agency, a United States Attorney, two Assistant United States Attorneys, and three current and former Attorney Generals of the United States.These Defendants are sued in their individual and official capacities.Plaintiff seeks compensatory and punitive damages for the violation of his rights under Article 36 which led, he asserts, to deprivation of his Sixth Amendment right to counsel.He asserts that this Court has jurisdiction of his claim under 28 U.S.C. § 1331(federal question jurisdiction), § 1332(diversity jurisdiction), and § 1350(the Alien Tort Claims Act).

II.STANDARDS FOR A SUA SPONTE DISMISSAL

The Prison Litigation Reform Act ("PLRA"), Pub.L. No. 104-134,§§ 801-810,110 Stat. 1321-66 to 1321-77(April 26, 1996), requires the Court, prior to docketing or as soon as practicable after docketing, to review a complaint in a civil action in which a prisoner is proceeding in forma pauperis or seeks redress against a governmental entity or employee.See28 U.S.C. § 1915(e)(2)(B), 1915A.The PLRA requires the Court to identify cognizable claims, and to dismiss any claim which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.Id.

Congress's purpose in enacting the PLRA was "primarily to curtail claims brought by prisoners under 42 U.S.C. § 1983 and the Federal Torts Claims Act ... many of which are routinely dismissed as legally frivolous."Santana v. United States,98 F.3d 752, 755(3d Cir.1996).A crucial part of the congressional plan for curtailing meritless prisoner suits is the requirement, embodied in 28 U.S.C. §§ 1915(e)(2)(B)and1915A(b), that a court must dismiss, at the earliest practicable time, any prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief.

In deteraining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff.Haines v. Kerner,404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652(1972);United States v. Day,969 F.2d 39, 42(3d Cir.1992).The Court must "accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff."Morse v. Lower Merion School Dist,132 F.3d 902, 906(3d Cir.1997).The Court need not, however, credit a pro se plaintiffs"bald assertions" or "legal conclusions."Id.

A complaint is frivolous if it "lacks an arguable basis either in law or in fact."Neitzke v. Williams,490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338(1989)(interpreting the predecessor of § 1915(e)(2), the former § 1915(d)).The standard for evaluating whether a complaint is "frivolous" is an objective one.Deutsch v. United States,67 F.3d 1080, 1086-87(3d Cir.1995).

A pro se complaint may be dismissed for failure to state a claim only if it appears "`beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"Haines,404 U.S. at 521, 92 S.Ct. 594(quotingConley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80(1957));Milhouse v. Carlson,652 F.2d 371, 373(3d Cir.1981).

Where a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice, but must permit the amendment.Denton v. Hernandez,504 U.S. 25, 34, 112 S.Ct. 1728, 118 L.Ed.2d 340(1992);Grayson v. Mayview State Hospital,293 F.3d 103, 108(3d Cir.2002)(dismissal pursuant to 28 U.S.C. § 1915(e)(2));Shane v. Fauver,213 F.3d 113, 116-17(3d Cir.2000)(dismissal pursuant to 42 U.S.C. § 1997e(c)(1));Urrutia v. Harrisburg County Police Dept.,91 F.3d 451, 453(3d Cir.1996).

III.Article 36

The United States is a signatory to the Vienna Convention on Consular Relations ("Vienna Convention"), April 24, 1963, 21 U.S.T. 77, 101 T.I.A.S.No. 6820, 596 U.N.T.S. 261, 1967 WL 18349, which came into force on April 24, 1964, and which was ratified by the United States on October 22, 1969.SeeCong. Rec. 30997(1969).

The Preamble states that "the purpose of such privileges and immunities [set forth herein] is not to benefit individuals, but to ensure the efficient performance of functions by consular posts on behalf of their respective States."

Article 36 of the Vienna Convention provides, in pertinent part:

1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State: ...

(b) if [a detained person] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay.The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation....

2.The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

Vienna Convention, Article 36.

The provisions of Article 36 have been implemented in federal regulations, including 28 C.F.R. § 50.5(a)(1)("In every case in which a foreign national is arrested the arresting officer shall inform the foreign national that his consul will be advised of his arrest unless he does not wish such notification to be given.").See also28 C.F.R. § 50(a)(2)(requiring the arresting agent to inform the U.S. Attorney of the arrest and of the arrestee's wishes regarding consular notification);28 C.F.R. § 50.5(a)(3)(directing the U.S. Attorney to notify the appropriate consul in accordance with the arrestee's wishes);8 C.F.R. § 236.1(e)(requiring the INS to notify every detained alien of the right to communicate with consul).

Article 36 has been the subject of litigation in a variety of contexts in both United States and international courts.For example, in 1998, following Paraguayan Angel Breard's unsuccessful pursuit of direct state criminal appeal, state collateral relief, and federal habeas relief, the Republic of Paraguay instituted proceedings against the United States in the International Court of Justice ("ICJ"), alleging that the United States had violated Article 36 of the Vienna Convention at the time of Breard's arrest.SeeBreard v. Greene,523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529(1998).The ICJ issued an "Order on Provisional Measures" requesting that the United States "take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings ...," pursuant to which Order the Republic of Paraguay, the Ambassador of Paraguay to the United States, and the Consul General of Paraguay to the United...