Mufti v. Lynch

• Decision Date: 07 June 2016
• Docket Number: CAUSE NO.: 4:15-CV-97-TLS
• Citation: 190 F.Supp.3d 827
• Parties: Muhammad Zubair Mufti, Plaintiff, v. Loretta Lynch, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

190 F.Supp.3d 827

Muhammad Zubair Mufti, Plaintiff,

v.Loretta Lynch, et al., Defendants.

CAUSE NO.: 4:15-CV-97-TLS

United States District Court, N.D. Indiana.

Signed June 7, 2016

Muhammad Zubair Mufti, West Lafayette, IN, pro se.

Sharon Jefferson – AUSA, US Attorney's Office, Hammond, IN, for Defendants.

OPINION AND ORDER

THERESA L. SPRINGMANN, UNITED STATES DISTRICT COURT

On October 29, 2015, the Plaintiff, Muhammad Zubair Mufti, filed a pro se Complaint [ECF No. 1] against the following defendants: U.S. Attorney General Loretta E. Lynch, U.S. Secretary of Homeland Security Jeh Johnson, U.S. Secretary of State John F. Kerry, Director of U.S. Citizenship and Immigration Services Leon Rodriguez, U.S. Ambassador to Pakistan Richard Olson, and Jane & John Doe (U.S. Consulars 1 through 999). The Plaintiff alleges that the Defendants, acting in their official capacities, unreasonably delayed the processing of immigrant visa petitions under Form I-130 (Petition for Alien Relative) and Form I-129F (Petition for Alien Fiancé(e)). Attached to the Plaintiff's Complaint is a 56-page exhibit containing a variety of documents related to the visa petitions at issue.

This matter is now before the Court on a Motion to Dismiss [ECF No. 12] and Memorandum in Support [ECF No. 13], filed by the Defendants on December 31, 2015. The Defendants specifically move to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction) and 12(b)(6) (failure to state a claim). The Plaintiff filed a Response [ECF No. 20] on April 28, 2016; the Defendants filed a Reply [ECF No. 23] on May 16, 2016; and the Plaintiff filed a Surreply [ECF No. 24] on June 3, 2016 For the reasons set forth below, the Motion to Dismiss [ECF No. 12] is granted.

BACKGROUND

A review of the Plaintiff's Complaint and his attached exhibit indicates the following: on January 4, 2008, the Plaintiff, a U.S. citizen, married Sidra Zubair Mufti ("Mrs. Mufti"), a citizen of Pakistan, in Karachi, Pakistan. On February 14, 2008, the Plaintiff filed a Form I-130 with U.S. Citizenship and Immigration Services ("USCIS"), on behalf of Mrs. Mufti. On December 2, 2009, USCIS approved the I-130 petition and the file was sent to the National Visa Center ("NVC"), which then forwarded the file to the U.S. Embassy in Pakistan (UEP) for further processing. On September 3, 2010, Mrs. Mufti was interviewed at UEP in connection with her visa application. The consular officer issued a visa refusal letter pursuant to 8 U.S.C. § 1201(g),¹ requesting that Mrs. Mufti provide two original divorce certificates for the Plaintiff's two previous marriages. On October 22, 2011, Mrs. Mufti received a second visa refusal letter pursuant to 8 U.S.C. §§ 1201(g) and 1182(a)(6)(C)(I),² because the consular officer questioned the legitimacy of the divorce certificates submitted in connection with the visa application.

On December 5, 2011, the Plaintiff, based on the advice of counsel, filed a second I-130 petition with USCIS on behalf of Mrs. Mufti. On December 5, 2012, the second I-130 petition was approved. On May 16, 2013, Mrs. Mufti was interviewed at UEP in connection with her second visa application. The consular officer then issued a visa refusal letter pursuant to 8 U.S.C. § 1201(g).

On September 4, 2013, USCIS issued the Plaintiff a Notice of Intent to Revoke (NOIR) the first I-130 petition. The NOIR contained a request for the Plaintiff to address the issues surrounding the legitimacy of the divorce certificates the Plaintiff submitted in connection with his petition. On October 4, 2013, the Plaintiff responded to the NOIR and submitted additional evidence in support of the first I-130 petition. Although no date is provided, the Complaint indicates that a visa was issued to Mrs. Mufti shortly after she was interviewed on October 22, 2014.³ On January 9, 2015, the Plaintiff traveled to Pakistan to bring his family to the United States.

The Plaintiff generally alleges that the Defendants "failed to process promptly and adjudicate [his] sponsorship visa applications in a timely manner" (Compl. ¶ 54), and through their actions, they have "caused unnecessary and injurious delays to [the] Plaintiff, in violation of his rights," (id. at ¶ 56). The Plaintiff is suing the Defendants in their official capacities, and is seeking compensatory damages pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2674 (the Federal Tort Claims Act);⁴ injunctive and declaratory relief pursuant to 28 U.S.C. § 1361 (the federal mandamus statute), 5 U.S.C. § 701 et seq. (the Administrative Procedure Act), and 28 U.S.C. § 2201 (the Declaratory Judgment Act); and costs and attorney's fees pursuant to 28 U.S.C. § 2412 (the Equal Access to Justice Act).

STANDARD OF REVIEW

Rule 12(b)(1) provides that a party may assert the defense of lack of subject matter jurisdiction by motion. Fed. R. Civ. P. 12(b)(1). "Subject-matter jurisdiction is the first question in every case, and if the court concludes that it lacks jurisdiction it must proceed no further." Illinois v. City of Chi. , 137 F.3d 474, 478 (7th Cir.1998). When considering a motion to dismiss for lack of subject matter jurisdiction, a court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. Alicea-Hernandez v. Catholic Bishop of Chi. , 320 F.3d 698, 701 (7th Cir.2003).

Similarly, when reviewing a complaint attacked by a Rule 12(b)(6) motion, a court must accept all of the factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). The complaint need not contain detailed facts, but surviving a Rule 12(b)(6) motion "requires more than labels and conclusions.... Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). At the same time, the Court must construe the Plaintiff's pro se submissions in a liberal manner. See Wilson v. Civil Town of Clayton, Ind. , 839 F.2d 375, 378 (7th Cir.1988) ; see also Hughes v. Rowe , 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (stating that a plaintiff's pro se status means that his submissions should be held "to less stringent standards than formal pleadings drafted by lawyers") (internal quotation marks and citation omitted).

ANALYSIS

A. Compensatory Damages

As an initial matter, the Plaintiff cannot recover damages under 42 U.S.C. § 1983. To prevail on a § 1983 claim, the Plaintiff must show that he was deprived of a right secured by the Constitution or laws of the United States and that the deprivation was caused by a person acting under color of state law. Reynolds v. Jamison , 488 F.3d 756, 764 (7th Cir.2007) ; Edgar v. Inland Steel , 744 F.2d 1276, 1278 (7th Cir.1984) ("The [§ 1983 ] statute, by its express terms, is directed only to state wrongdoing."). Because the Plaintiff's Complaint does not pertain to state actors—only to federal actors—§ 1983 relief is unavailable. See Dist. of Columbia v. Carter , 409 U.S. 418, 424–25, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973) (explaining that Section 1983 does not apply to federal actors); Lewis v. Downey , 581 F.3d 467, 471 n. 3 (7th Cir.2009) ("A county employee caring for federal prisoners arguably becomes a federal actor, rather than the requisite state actor, rendering § 1983 inapplicable.").⁵

The Plaintiff also invokes 28 U.S.C. § 2674 (the Federal Torts Claim Act). "Generally, an individual may not sue the United States for tortious conduct committed by the government or its agents." Williams v. Fleming , 597 F.3d 820, 822 (7th Cir.2010) (citing United States v. Navajo Nation , 556 U.S. 287, 289, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009) ) ("The Federal Government cannot be sued without its consent."). However, Congress created an exception through the Federal Tort Claims Act (FTCA), whereby a suit is permitted against the United States

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1).

Critically, a plaintiff may not bring an FTCA claim unless he first presented the claim to the appropriate federal agency and the agency denied the claim. See 28 U.S.C. § 2675(a) ; McNeil v. United States , 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("The FTCA bars claimants from bringing suits in federal court until they have exhausted their administrative remedies."); Smoke Shop, LLC v. United States , 761 F.3d 779, 786 (7th Cir.2014) ("[T]he FTCA bars would-be tort plaintiffs from bringing suit against the government unless the claimant has previously submitted a claim for damages to the offending agency, because Congress wants agencies to have an opportunity to settle disputes before defending against litigation in court.") (citation omitted). The claim must be presented in writing to the appropriate Federal agency within two years after the claim accrues; and the plaintiff must then file suit within six months of the agency's denial of the claim. 28 U.S.C. § 2401(b).⁶

The Plaintiff concedes in his Response that he did not exhaust his administrative remedies by presenting his claim to the appropriate federal agency prior to the filing of this lawsuit. Nevertheless, he seeks permission to comply with (or perhaps, for the Court...