Safarini v. Ashcroft

• Decision Date: 03 January 2018
• Docket Number: Civil Action No. 17–430 (RDM)
• Citation: 285 F.Supp.3d 407
• Parties: Zaid Hassan Abd Al–Latif Masud Al SAFARINI, Plaintiff, v. John ASHCROFT, Former Attorney General, et al., Defendants.
• Court: U.S. District Court — District of Columbia

285 F.Supp.3d 407

Zaid Hassan Abd Al–Latif Masud Al SAFARINI, Plaintiff,

v.John ASHCROFT, Former Attorney General, et al., Defendants.

Civil Action No. 17–430 (RDM)

United States District Court, District of Columbia.

Signed January 3, 2018

Zaid Hassan Abd Latif Safarini, Terre Haute, IN, pro se.

MEMORANDUM OPINION

RANDOLPH D. MOSS, United States District Judge

Appearing pro se , Plaintiff Zaid Hassan Abd Al–Latif Masud Safarini ("Safarini") filed this suit in March 2017 against various former U.S. and foreign officials, the Kingdoms of Thailand and Jordan, the Thai National Police, and Thai Airlines International. He alleges that he was unlawfully kidnapped in Bangkok, Thailand in 2001 by agents of the Federal Bureau of Investigation ("FBI"), acting with the assistance of the remaining defendants, and rendered to the United States for trial. Pursuant to the Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2)(B)(iii), the Court previously dismissed Safarini's claims against the Kingdoms of Thailand and Jordan, the Thai National Police, Dkt. 12, "Thai Airlines International," Ahmed Al–Hajayh, and various "unknown immigration officials of the Kingdom of Thailand, Dkt. 14. As a result, the sole remaining defendants are former Attorney General John Ashcroft, former Director of the FBI Robert Mueller, and three current or former FBI agents. Having reviewed the complaint and the relevant law, the Court now sua sponte dismisses Safarini's claims against those officials. And, having now addressed all of Safarini's claims, the Court will dismiss the action.

I. BACKGROUND

The events giving rise to Plaintiff's claim begin on September 5, 1986, when Safarini, along with four other armed men, hijacked a Pan Am flight on the tarmac in Karachi, Pakistan. See United States' Omnibus Opposition at 1–2, United States v. Zaid Hassan ABD Al–Latiff Masud Al Safarini , No. 91–cr–504–03 (D.D.C. Sept. 12, 2017). Twenty people—including two American citizens—were killed, and over one hundred people were injured. Id. at 2. Safarini was tried and convicted in Pakistan in 1987. Id. After fifteen years in prison in Pakistan, Safarini was released on September 27, 2001. Id.

Safarini alleges in his complaint that, upon his release, a Jordanian official named Ahmed Al–Hajayh met Safarini and informed him that Al–Hajayh had made arrangements to transport Safarini home to Jordan. Dkt. 1 at 4 (Compl. ¶ 15). The arranged flight included a scheduled stopover in Bangkok, Thailand, where Safarini says he deplaned to change flights. Id. While waiting for the next flight that would take him to Jordan, three FBI special agents, whom Safarini identifies as "Special Agent Brad," "Special Agent Nada Ali," and an "Unknown Special Agent," allegedly handcuffed Safarini and put him on a flight bound for the United States. Id.

After his arrest, Safarini was tried in the United States District Court for the District of Columbia for multiple crimes, including murder, attempted murder, attempted air-piracy, hostage-taking, and conspiracy to commit crimes against the United States. See United States' Omnibus Opposition at 2–3, United States v. Zaid Hassan ABD Al–Latiff Masud Al Safarini , No. 91–cr–504–03 (D.D.C. Sept. 12, 2017). Safarini pleaded guilty to ninety-five charges and was sentenced to three consecutive life sentences plus twenty-five years. Id. at 3–4.

After sentencing, Safarini was transported to the supermax penitentiary in Florence, Colorado, where he was held for seven years. Dkt. 1 at 5 (Compl. ¶ 15). Safarini alleges that while held in the supermax facility, he "had very little contact with others, largely remaining in solitary confinement." Id. at 5. As a result, Safarini contends that he suffered, and continues to suffer, from "numerous health and psychological problems, including cardiac disorders, stress and anxiety disorders." Id. He alleges that his placement in the supermax facility was "totally arbitrary" and "implemented solely for punishment over and above that imposed by the court." Id.

On March 10, 2017, Safarini filed this action against various U.S. and foreign officials and others he alleges were involved in his purported kidnapping. In two previous orders, the Court dismissed the foreign defendants: the Government of the Kingdom of Thailand, the Hashemite Kingdom of Jordan, Thailand National Police Agency, Dkt 12; "Thai Airline International," Ahmed Al–Hajayh, and "Unknown Immigration Officials" for the Government of the Kingdom of Thailand, Dkt. 14. The remaining defendants include the FBI special agents that allegedly executed Plaintiff's arrest and transport to the United States—Special Agent "Brad," Special Agent Nada Ali, and "One Unknown Special Agent"—as well as former Attorney General John Ashcroft and former Director of the FBI Robert Mueller (collectively the "Federal Defendants"). Dkt. 1 (Compl. ¶¶ 3–13). The complaint specifies that "the individuals named as defendants are being sued in their individual capacities."¹ Id. (Compl. ¶ 14).

II. LEGAL STANDARD

Under the Prison Litigation Reform Act, the Court is required to dismiss a "case at any time if" it "determines that ... the action ... is frivolous[,] malicious[,] ... fails to state a claim upon which relief can be granted[,] or seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). A complaint that is "filed pro se is ‘to be liberally construed,’ " and, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble , 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ). But, where "it is patently obvious" that the plaintiff cannot "prevail[ ] on the facts alleged in his complaint," Baker v. Dir., U.S. Parole Comm'n , 916 F.2d 725, 727 (D.C. Cir. 1990), the Court may sua sponte dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6), see Baldwin v. Small Business Admin. , 2017 WL 2455026 *3 (D.D.C. June 6, 2017), and, indeed, must do so under the Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2).

III. ANALYSIS

Liberally construed, the complaint purports to allege claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ; the Alien Tort Statute, 28 U.S.C. § 1350 ; the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ; the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. ; the Ku Klux Klan Act, 42 U.S.C. § 1985 ; the Third and Fourth Geneva Conventions, 6 U.S.T. 3316, 6 U.S.T. 3516 ; various criminal statutes, 18 U.S.C. §§ 1201, 1651 ; "[i]nternational laws;" "the extradition treaty with Thailand;" the Geneva Convention; and common law fraud. Dkt. 1 at 2, 5–6 (Compl. ¶¶ 1, 16). The Court will consider each of these allegations in turn.

A. Bivens

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), recognized an implied private cause of action for damages against federal officials for alleged violations of the Fourth Amendment. Subsequent decisions, moreover, have extended that implied cause of action to violations of the Due Process Clause of the Fifth Amendment, see Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and to violations of the Cruel and Unusual Punishment Clause of the Eighth Amendment, see Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). Here, the complaint invokes Bivens and all three of these constitutional provisions. Those claims fail for two reasons.

First, Safarini's Fourth and Fifth Amendment claims fail because they seek recovery for allegedly tortious conduct committed overseas by U.S. officials engaged in a terrorism investigation. In particular, he alleges that the Federal Defendants unlawfully seized him at the airport in Bangkok, Thailand, and then unlawfully transported him to the United States. Dkt. 1 at 4 (Compl. ¶ 15). Safarini further alleges that he is a "foreign national." Id. at 3 (Compl. ¶ 3). And, finally, although not recounted in the complaint, the Court can take judicial notice of the fact that Safarini was taken into U.S. custody on charges that he led a team that hijacked a Pan Am flight in Karachi, Pakistan; shot one U.S. citizen and threw his body on the tarmac; and, eventually, opened fire on the passengers, killing nineteen of them, including another U.S. citizen, and injuring over a hundred others. See United States v. Safarini , 257 F.Supp.2d 191, 193 (D.D.C. 2003). As a result, the Court must decide whether Bivens reaches claims brought under the Fourth and Fifth Amendments to the U.S. Constitution, by non-U.S.-persons, for actions taken by U.S. law enforcement officials outside the United States, in response to the hijacking of an aircraft outside the United States. The answer to that question is "no."

The D.C. Circuit decided a similar question in Meshal v. Higgenbotham , 804 F.3d 417 (D.C. Cir. 2015). There, the Court of Appeals held that Bivens does not extend to cases involving (1) national security or terrorism investigations, (2) where the relevant "conduct that occurred outside the borders of the United States." Id. at 425–26. The Court reached that conclusion, moreover, even though the plaintiff in that action—unlike the present case—was a U.S. citizen, and even though the investigation in that case had both national security and criminal law enforcement components. Id. at 418, 423. Although the terrorist attack at issue in this case occurred fifteen years before Safarini's apprehension by U.S. officials, the same considerations that were present in Meshal apply here as well. As the Court of Appeals wrote, "[m]atters touching on national security and foreign policy fall within an area of executive action where courts hesitate to intrude absent congressional authorization," and, courts must proceed with caution when...