state whether the Defendants are being sued in their official capacities, as agents of the Federal Government, or in their individual capacities.
A claim against an FBI agent in his official capacity is, in essence, a claim against the United States. See Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099, 3105 (1985). No suit may be maintained against the United States absent an unequivocal waiver of immunity by Congress. E.g., United States v. Mitchell, 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349, 1351 (1980). There is no waiver of sovereign immunity for constitutional tort claims against the Federal Government. Keene Corp. v. United States, 700 F.2d 836, 845 n.13 (2d Cir.), cert. denied, 464 U.S. 864, 78 L. Ed. 2d 171, 104 S. Ct. 195 (1983).
Although Congress has provided a limited waiver of sovereign immunity under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 ("FTCA"), § 2675(a) of the FTCA requires that claimants exhaust administrative remedies before bringing their claims in federal court.
An action shall not be instituted upon a claim against the United States for money damages 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, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail . . . .
28 U.S.C. § 2675(a) (emphasis supplied). Plaintiff has not sought any administrative remedy before instituting this action in federal court.
A fair reading of Plaintiff's complaint is that he is bringing his action against the Defendants in their individual capacities. The gravamen of Plaintiff's claim is his allegations that the Defendants unlawfully searched his apartment and attempted to stifle his political expression with threats. Thus Defendants are alleged to have acted beyond the scope of their authority. When bringing such a claim against an individual, service of process must be effected pursuant to Rule 4 of the Federal Rules of Civil Procedure. In this case, Plaintiff attempted service on the Defendants by a means not in compliance with that Rule.
For the reasons stated above, Plaintiff's claim against Defendants in their official capacities is dismissed pursuant to Fed. R. Civ. P. 12(b)(6), and Plaintiff's claim against Defendants in their individual capacities is dismissed pursuant to Fed. R. Civ. P. 12(b)(5).
IT IS SO ORDERED.
Dated: New York, New York
February 25, 1992
Robert P. Patterson, Jr.