this report is accessible through the use of his name, citing the number of times the plaintiff is named within the report. On this basis, the plaintiff contends that the motion to dismiss should be denied. DOE-IG asserts that this report is not an "investigative document" as that term is used, but is rather an "inspection report" and thus, is not subject to the mandates of the Privacy Act. See Federal Defendants' Reply Memorandum of Law at 11. It would appear that if the federal defendants are correct in their assertions that this report is not one that is maintained within a "system of records" that is subject to the provisions of the Privacy Act, that this cause of action must fail. However, since the complaint is sufficient in at least the allegation of the violation, and the facts surrounding this cause of action have not been fully disclosed inasmuch as there has been no discovery in this case, the plaintiff's complaint with respect to this cause of action will survive this dismissal motion. It may well be, however, that following discovery, this cause of action will not survive a summary judgment motion.
B. Bivens Causes of Action
In a Bivens action, damages may be obtained for injuries sustained resulting from a violation by federal officials of a constitutionally protected right. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. at 395, 91 S. Ct. at 2004, 29 L. Ed. 2d at . A Bivens action is the federal counterpart of a section 1983 civil rights action. Mittleman v. United States Treasury, 773 F. Supp. 442, 451 n.8 (D.D.C. 1991); Chin v. Bowen, 655 F. Supp. 1415, 1417 (S.D.N.Y.), aff'd, 833 F.2d 21, 24 (2d Cir. 1987) (citations omitted); Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1981).
1. GE's Motion to Dismiss for failure to state a claim:
The sixteenth cause of action in the complaint alleges that after the plaintiff submitted his 1985 report on the Kesselring Site that he characterizes as "very critical" of the health and safety conditions at that location, GE "commenced a deliberate campaign to harass, humiliate and discredit" him. Complaint at PP 203-05. He then contends that GE is liable for violations of his constitutional rights under the doctrine enunciated by the United States Supreme Court in Bivens. Id. at 207.
Ordinarily, a motion to dismiss is considered in light of the requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure, which requires that the cause of action merely contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." However, as the defendant points out, damage actions under Bivens are subject to a heightened standard of pleading such that "bare allegations of improper purpose . . . do not suffice to drag officials into the mire of discovery . . . ." GE Memorandum of Law at 3 (quoting Smith v. Nixon, 257 U.S. App. D.C. 52, 807 F.2d 197, 200 (D.C. Cir. 1986) (citations omitted); accord Martin v. Malhoyt, 265 U.S. App. D.C. 89, 830 F.2d 237, 254 & n.40 (D.C. Cir. 1987)). Thus, in such cases, more than conclusory allegations of evidence of unconstitutional intent is required. Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 29 (D.C. Cir. 1984), cert. denied sub nom. Brennan v. Hobson, 470 U.S. 1084, 105 S. Ct. 1843, 85 L. Ed. 2d 142 (1985); see also Duncan v. AT&T Communications, Inc., 668 F. Supp. 232, 234 (S.D.N.Y. 1987) (citing Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)).
A Bivens action has two elements, both of which must be specifically pleaded in the complaint:
1) the claimant must show deprivation of a right secured by the constitution and the laws of the United States; and
2) the claimant must show that the defendant acted under color of federal law.
Rivera v. United States, 728 F. Supp. 250, 266 (S.D.N.Y. 1990) (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185, (1978)), aff'd in part, 928 F.2d 592 (2d Cir. 1991).
The plaintiff's complaint fails to allege anything but conclusory, non-specific allegations of constitutional violation, without indicating what constitutional rights is/are violated.
Furthermore the complaint fails to allege how these rights was/were violated and by whom. See GE Memorandum of Law at 5. The factual litany that the plaintiff sets forth in support of this cause of action, see Complaint at P 205(a)-(u), at best supports an action sounding in common law tort. Id. As such, the cause of action should be dismissed. Kingsley v. Bureau of Prisons, 937 F.2d 26, 32 (2d Cir. 1991).
Additionally, this cause of action is insufficient in that it fails to allege constitutional violations by an individual or individuals. The plaintiff merely alleged that GE violated his constitutional rights.
A company is not a proper defendant to a Bivens action. Platsky v. C.I.A., 953 F.2d 26, 28 (2d Cir. 1991) (citing Mack v. United States, 814 F.2d 120, 122-23 (2d Cir. 1987). A Bivens action is intended to be one in which federal agents, as individuals, are liable for damages resulting from their actions when acting under color of federal law. See Bivens, 403 U.S. at 390 n.2, 91 S. Ct. at 2001 n.2, 29 L. Ed. 2d at n.2; Turpin v. Mailet, 579 F.2d 152, 164 (2d Cir. 1978); see also Carlson v. Green, 446 U.S. 14, 18, 100 S. Ct. 1468, 1471, 64 L. Ed. 2d 15, (1980).
The plaintiff argues that a corporation is a person for constitutional purposes, see Plaintiff's Memorandum of Law at 20 (citing Comtronics, Inc. v. Puerto Rico Tele. Co., 409 F. Supp. 800 (1975), aff'd, 553 F.2d 701 (1st Cir. 1977); see also Fowler v. Nicholas, 522 F. Supp. 655, 657 (E.D. Pa. 1981)). However, he also offers to amend the complaint after the completion of discovery to name the specific individuals involved, id. at 21.
The plaintiff asserts that the deficiencies in the complaint indicated by the defendant are such that could be cured by amending the complaint, which he contends is the proper and appropriate remedy here. Id. (citing Wright and Miller, Federal Practice and Procedure § 1357 at 360-61; Platsky v. C.I.A., 953 F.2d at 27).
Furthermore, the defendant, in a footnote to its reply memorandum, seems to be inviting an amendment "to analyze more precisely the legal sufficiency of plaintiff's Bivens claims." See GE's Reply Memorandum of Law at 5 n.2. As such, the court will grant the defendant's motion to dismiss but will grant the plaintiff leave to amend his complaint, if appropriate, following the completion of discover. If supported by the evidence, he may then reallege this cause of action specifying the constitutional rights he is alleging were violated and naming the individuals who he asserts were acting under color of federal law and were responsible for the deprivation of those constitutional rights.
2. Federal Defendants' Motion to Dismiss for failure to state a claim:
The seventeenth cause of action in the complaint charges the federal defendants with participating in the Bivens violations that are alleged by the plaintiff against GE in the previous cause of action. In addition to asserting that the plaintiff has failed to allege the violation of any constitutional right, the federal defendants rely upon the arguments proposed by GE in support of their motion to dismiss. See Federal Defendants' Memorandum of Law at 15-16.
As such, the same arguments that are addressed above are applicable to this cause of action as well, and the result is the same: the defendant's motion to dismiss will be granted but the plaintiff will be permitted, following the completion of discovery, to amend his complaint to reallege this cause of action.
C. GE's Motion for Sanctions against the Plaintiff's Counsel
Finally, GE has moved for the imposition of sanctions pursuant to Rule 11 against the plaintiff's counsel on the ground that "any reasonable inquiry by plaintiff's counsel would have readily disclosed that neither the Bivens claim nor the PA [Privacy Act] claims are warranted by existing law." See GE's Memorandum of Law at 12.
The plaintiff has not responded to this motion other than possibly with his catch-all conclusion that the defendants' motions should be denied. However, in light of the determinations made on the motions, it is clear that the complaint is not frivolous, at least not so in its entirety, and therefore, the motion is denied.
The federal defendants' motion for summary judgment as to the first and second causes of action is denied as premature due to the lack of discovery conducted in this case; they are granted leave to resubmit the motion upon the completion of discovery. GE's motion to dismiss the seventh, eight, ninth, tenth, eleventh and fourteenth causes of action, the federal defendants' motion to dismiss the twelfth cause of action (as against OPM) and the thirteenth and fifteenth causes of action (as against DOE) are granted on the ground that these causes of action are time-barred. DOE-IG's motion to dismiss the fifteenth cause of action is denied since this cause of action is sufficiently plead and there has been no discovery so as to convert the motion into one for summary judgment. The motions to dismiss the sixteenth and seventeenth causes of action by GE and the federal defendants' respectively are granted; however, the plaintiff is granted leave to amend his complaint if appropriate and supported by the evidence, following the completion of discovery.
IT IS SO ORDERED.
DATED: January 28th, 1993
SYRACUSE, NEW YORK
Frederick J. Scullin, Jr.
U.S. District Judge