NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

AKINTOYE LAOYE, :

: CIVIL ACTION NO. 11-1969 (MLC)

Plaintiff, :

:

v. : O P I N I O N

 :

D.H.S., et al., :

:

Defendants. :

 :

COOPER, District Judge

Plaintiff, Akintoye Laoye, is an immigration detainee. 

Plaintiff has filed a civil complaint and an application to

proceed in forma pauperis, pursuant to 28 U.S.C. § 1915. He

subsequently filed (1) a motion for a stay of deportation (dkt.

entry no. 3), (2) a supplement to the complaint (dkt. entry no.

4), which he incorrectly filed as an amended complaint, and (3) a

separate motion for miscellaneous relief (dkt. entry no. 9).

The Court must review Plaintiff’s claims pursuant to 28

U.S.C. § 1915(e)(2) to determine whether they should be dismissed

as frivolous or malicious, for failure to state a claim upon which

relief may be granted, or for seeking monetary relief from immune

defendants. For the following reasons, Plaintiff’s claims will

be dismissed. The pending motions will be denied.

BACKGROUND

Plaintiff seeks to sue defendants Department of Homeland

Security (“DHS”) and Immigration and Customs Enforcement (“ICE”),

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as well as John Doe officers, for his alleged illegal detention

pending deportation. He seeks monetary relief. In a later filed

document, Plaintiff makes vague assertions concerning medical

treatment (dkt. entry no. 6).

Plaintiff’s motion for a stay of deportation challenges his

underlying immigration case. Plaintiff states that “ICE officers

created a false charge (aggravated felony) as one of the charges

Plaintiff was deported on. The fact of the matter is that

plaintiff’s only charge is an out of status charge that is

actually unsustainable due to the presence of evidence that DHS

is aware of.” (Motion, p. 1.)

This Court notes that Plaintiff filed a separate complaint

under Laoye v. D.H.S., No. 11-1788 (MLC), which will be addressed

in a separate order. The separate complaint raises the same

issues as this complaint here.

DISCUSSION

A. Standard of Review

A district court must review a complaint in a civil action

in which a prisoner is proceeding in forma pauperis or seeks

redress against a governmental employee or entity. The Court must

identify cognizable claims and sua sponte dismiss any claim that

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. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A.

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Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), examined Federal

Rule of Civil Procedure 8(a)(2), which provides that a complaint

must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).1

“A pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do’”. 

Iqbal, 129 S.Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). There are two principles underlying

the failure to state a claim standard:

First, the tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable

to legal conclusions. Threadbare recitals of the elements

of a cause of action, supported by mere conclusory

statements, do not suffice ... . Rule 8 ... does not

unlock the doors of discovery for a plaintiff armed with

nothing more than conclusions. Second, only a complaint

that states a plausible claim for relief survives a motion

to dismiss. Determining whether a complaint states a

plausible claim for relief will ... be a context-specific

task that requires the reviewing court to draw on its

judicial experience and common sense. But where the wellpleaded facts do not permit the court to infer more than

the mere possibility of misconduct, the complaint has

alleged-but it has not “show[n]”-“that the pleader is

entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).

Iqbal, 129 S.Ct. at 1949-50 (citations omitted); see Fowler v.

UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009).

B. Claims Must Be Dismissed

Claims for monetary relief against federal defendants are

governed by Bivens v. Six Unknown Named Agents of Federal Bureau

 Rule 8(d)(1) provides that “[e]ach allegation must be 1

simple, concise, and direct. No technical form is required.”

Fed.R.Civ.P. 8(d).

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of Narcotics, 403 U.S. 388, 389 (1971). Bivens held that one is

entitled to recover monetary damages for injuries suffered as a

result of federal officials’ violations of the Fourth Amendment,

and thereby described a tort that applied to federal officers and

was a federal counterpart to the remedy available under 42 U.S.C.

§ 1983. Although they are not “precisely parallel”, there is a

“general trend” to incorporate § 1983 law into Bivens suits. See

Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987).

To state a claim under Bivens, a plaintiff must show that a

deprivation of a right secured by the Constitution and laws of

the United States was caused by an official acting under color of

federal law. See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149,

155-56 (1978).

But the United States has sovereign immunity except where it

consents to be sued. See United States v. Mitchell, 463 U.S.

206, 212 (1983). In the absence of such a waiver of immunity, a

plaintiff cannot proceed in an action for damages against the

United States or an agency of the federal government for alleged

deprivation of a constitutional right, see FDIC v. Meyer, 510

U.S. 471, 484-87 (1994), or against any of the individual

defendants in their official capacities, see Kentucky v. Graham,

473 U.S. 159, 166 (1985) (suit against government officer in his

or her official capacity is suit against the government).

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Plaintiff does not cite, and the Court is not aware of, any

authority to suggest that the United States has waived its

sovereign immunity as to the sort of claim for damages that

Plaintiff seeks to assert against the DHS and ICE. Therefore,

Plaintiff’s Bivens claim for monetary relief against the DHS and

ICE must be dismissed.

Plaintiff also alleges that the John Doe officers are

officers employed by ICE, or by the Monmouth County Correctional

Institution. As to John Doe 1, Plaintiff states that he was told

by this officer to get a new passport, and that the officer did

not accept Plaintiff’s airline ticket. As to John Doe 2,

Plaintiff states that this officer told him that ICE put a “hold”

on him. As to John Doe 3, Plaintiff alleges that this officer

told Plaintiff that Plaintiff was a fugitive. As Plaintiff does

not assert constitutional violations against these officers,

these claims cannot pass sua sponte screening, and dismissal is

warranted.

As to the vague medical care assertions, Plaintiff presents

them in a document entitled “Additional Evidence in regards to

civil suit.” Plaintiff neither submits a pleading as to these

assertions, nor names a defendant who was personally involved. 

Thus, these assertions insofar as they may be construed as being

claims will be dismissed.

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Plaintiff’s motions for a stay of deportation and for

miscellaneous relief will also be denied. The Court does not

have jurisdiction to review Plaintiff’s immigration matter. The

Plaintiff must exhaust his remedies through the proper channels,

including an immigration judge, the Board of Immigration Appeals,

and the Court of Appeals.

CONCLUSION

All of the claims will be dismissed. Plaintiff’s motions

will be denied. The Court will issue an appropriate Order and

Judgment.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: February 29, 2012

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