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Torres v. United States

May 19, 2008

RAMON M. TORRES, PLAINTIFF,
v.
UNITED STATES OF AMERICA, JFK AUTHORITIES (INS/ICE/DHS), USA ATTORNEY'S OFFICE FOR THE EASTERN DISTRICT OF NEW YORK (BROOKYLN), AND JOEY LIPTON, DEFENDANTS.



The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.

MEMORANDUM AND ORDER

Pro se PlaintiffRamon Maria Torres ("Plaintiff") brings this action against Defendants for various common law and constitutional torts allegedly committed in connection with his deportation from the United States on November 1, 2002, his subsequent arrest and prosecution for illegal re-entry into the United States, and his second deportation from the United States on September 9, 2006. (See Complaint (Docket Entry # 1).)

Defendants have moved to dismiss Plaintiff's Complaint for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6). (Reply Memorandum of Law in Support of Defendants' Motion to Dismiss the Complaint for Lack of Jurisdiction ("Reply") (Docket Entry # 21).) For the following reasons, Plaintiff is GRANTED sixty days leave to submit proof of actual receipt of his notices of claim by the federal agencies to which they were purportedly mailed, so as to establish that this court has subject-matter jurisdiction over his common law tort claims under the Federal Tort Claims Act ("FTCA"). Additionally, Defendants' motion for dismissal of Plaintiff's constitutional tort claims is GRANTED and Plaintiff's challenges to his deportations from the United States are DENIED.

I. FACTUAL BACKGROUND

The facts, as set forth in Plaintiff's Complaint and in materials of which this court may take judicial notice, (see Complaint; April 5, 2005 Memorandum & Order, United States v. Torres, (02-cr-1391(NGG) Docket Entry # 61)), are as follows:

Plaintiff, a citizen of the Dominican Republic, became a permanent resident of the United States in 1981. On November 1, 2002, Plaintiff was deported to the Dominican Republic pursuant to a 1989 deportation order entered following a conviction for alien smuggling. Plaintiff alleges that at the time of his deportation, a motion to re-open the deportation order was pending, and a hearing was scheduled before the Immigration Court on November 25, 2002.

On November 23, 2002, Plaintiff was arrested for attempting to re-enter the United States. On December 4, 2002, a grand jury returned an indictment charging Plaintiff with attempting to re-enter the United States after having been convicted of an aggravated felony. On April 5, 2005, following a violation of the Speedy Trial Act, this court dismissed the indictment with prejudice. On September 9, 2006, Plaintiff, who had been in custody since November 23, 2003, was again deported. Plaintiff alleges that Defendants knew that judicial proceedings relating to his deportation were underway when they deported him.

Plaintiff alleges that upon his return to the Dominican Republic the Dominican police tortured him pursuant to an order of the United States government. Plaintiff further alleges that on October 17, 2006 he filed a request in the U.S. Embassy in the Dominican Republic to regain his status as a permanent resident of the United States but that his request was ignored.

II. STANDARD OF REVIEW

Because Plaintiff is proceeding pro se, the court must liberally construe his pleadings, and must interpret them "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). "The policy of liberally construing pro se submissions is driven by the understanding that '[i]mplicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.'" Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

III. PLAINTIFF'S CLAIMS

Construed liberally, Plaintiff's Complaint purports to state a litany of claims against Defendants based on various common law torts - false arrest, malicious prosecution, excessive force, negligent medical treatment, and infliction of emotional distress - and violations of Plaintiff's constitutional rights. Plaintiff also claims that Defendants acted unlawfully in deporting him, and therefore Plaintiff's complaint can be construed as an attempt to attack the validity of his deportations. A. Plaintiff's Common Law Tort Claims

1. Administrative Exhaustion

In Defendants' initial memorandum of law, they urged the court to dismiss Plaintiff's common law tort claims because he did not comply with the administrative exhaustion requirements of the FTCA. (Memorandum of Law in Support of Defendants' Motion to Dismiss the Complaint for Lack of Jurisdiction ("Def. Mem.") (Docket Entry # 19).) The FTCA, which is the exclusive remedy for bringing claims arising out of common law torts ...


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