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Vanbrocklen v. United States

March 26, 2009

RUSSELL VANBROCKLEN, PLAINTIFF,
v.
THE UNITED STATES OF AMERICA, TRANSPORTATION SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Plaintiff commenced this action pro se against the Transportation Security Administration ("TSA") based upon events that occurred on September 18, 2007 when Plaintiff attempted to board a commercial airplane at the Albany International Airport in Albany, New York. The Government moved to dismiss the action in its entirety. Plaintiff responded with what appears to be an amended complaint, seemingly adding new claims and withdrawing others. The Government then moved to dismiss the claims in the amended complaint, to which Plaintiff filed a document opposing dismissal of some of the claims in the action. For the reasons that follow, the Government's motions are granted in part and denied in part.

II. FACTUAL BACKGROUND

The following facts are taken from Plaintiff's Complaint*fn1 and accepted as true for purposes of the instant motion.

On September 18, 2007, Plaintiff went to the Albany International Airport ("Airport") intending to take a Southwest Airlines commercial flight to California. Plaintiff suffers from a "rare medical condition" that causes intense pain in his left testicle when he is in a situation that he considers stressful. Plaintiff previously had "an unpleasant experience during a selected screening at Albany International Airport" and, therefore, he began to feel pain in his left testicle when he arrived at the Airport on September 18, 2007.*fn2 He determined that he would abandon his plans to fly to California if he had been pre-selected for secondary screening. Plaintiff went to the Southwest ticket counter, checked in and received his airline ticket, and saw that he had not been pre-selected for secondary screening. Based upon this discovery, he determined that he would continue with his plans to fly to California. Nonetheless, the apprehension about the screening process caused Plaintiff to suffer an increasing pain in his left testicle that made it difficult for him to walk, so he requested, and received, a wheel chair to move from the ticket counter to the security screening area. Although he did not articulate his thoughts, Plaintiff intended to stand and walk through the metal detector at the entrance to the security screening location.

When Plaintiff approached the security screening location in the wheel chair, a friendly TSA screener John Doe came over [and] put his hands on the Plaintiff[']s shoulder and started [] steering the Plaintiff towards the secondary screening area. The Plaintiff screamed out in extreme pain due to pain in the Plaintiff[']s left [testicle]*fn3 (which felt worse than a testicular torsion). The Plaintiff also lost control of his hands for several minutes. The Plaintiff[']s hands curved in and were mostly frozen into a club like state. Compl. ¶ 12.

On the way to the secondary screening area, Plaintiff verbally requested a private screening location. Once in the private screening area, "a friendly TSA screener started the pat down procedure on the Plaintiff[']s torso at which time the Plaintiff screamed out in extreme pain." Id. ¶ 15. An Albany County Deputy Sheriff was called to the private screening area and "ran the Plaintiff[']s [] driver[']s license and told the friendly TSA agents that the Plaintiff['s] record came back clean." Id. ¶ 18. "The Plaintiff took off his shirt so the Plaintiff would not have to be touched on his torso again." Id. ¶ 19. A Southwest Airlines manager was called to the private screening area and, after the manager arrived, "a friendly TSA agent started to pat down the Plaintiff[']s pelvis area." Id. ¶ 21. This caused Plaintiff to scream in "extreme pain," and he "applied his trigger point release device to release his pain." Id. ¶¶ 21-22. Plaintiff told the Southwest Airlines manager that he would not be able to fly that day. He then got up from the wheel chair, walked outside the Airport, and got in a taxi to go to see his doctor. Id. ¶¶ 23-24.

III. PROCEDURAL BACKGROUND

The Complaint seeks compensatory damages for the alleged common law torts of unlawful detention, intentional infliction of emotional distress, and negligent infliction of emotional distress, and for the constitutional torts of unlawful search and seizure in violation of the rights secured by the Fourth Amendment to the United States Constitution. See generally Compl. [dkt. # 1]. On June 25, 2008, the Government moved to dismiss the claims in the Complaint on the grounds that: (1) Plaintiff failed to exhaust his administrative remedies relative to his common law tort claims as required by § 2675(a) of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675(a); and (2) Plaintiff failed to state a legally cognizable claim under the Fourth Amendment. See Govt. Motion, [dkt. # 6]. Plaintiff was given additional time to respond to the Government's motion and, in the interim, the Government wrote to the Court advising that Plaintiff had then-recently submitted an administrative claim to the TSA. See Govt. Letter Motion [dkt. # 11]. In light of this administrative filing, the Government requested that Plaintiff's common law tort claims be dismissed without prejudice to allow the administrative process to run its course, but argued that constitutional torts should be dismissed with prejudice for the reasons that the Government had previously articulated. Id.

On September 29, 2008, Plaintiff responded to the Government's motion by filing a 38-page document entitled "Amended Complaint." Plf. Response [dkt. # 12]. The document is part memorandum of law (containing legal citations and arguments -including a recitation of the Government's arguments), part unsworn statement by Plaintiff (reciting the pertinent events and making arguments about them), part exposition on how Plaintiff feels the TSA could better perform its function, and part amended complaint. The document contains a sub-section with the heading "Old Complaint", id. pp. 19 - 23, followed by what appears to be the recitation of the allegations in the "amended complaint." Id. pp. 24-27. In this latter portion of the document, Plaintiff re-recites the factual allegations of the events of September 18, 2007 at the Albany International Airport, id. pp. 24-26 (they are the same factual allegations as contained in the Complaint), and then, under the subheading of "Legal Claims," asserts claims under "Title III of the Americans with Disabilities Act" and "Section 504 of the Rehabilitation Act." Id. pp. 26-34. In the prayer for relief, Plaintiff seeks declaratory and injunctive relief. Although the Fourth Amendment claim is not mentioned in the portion of the document that appears to be the "amended complaint," Plaintiff does provide argument in earlier portions of the document in support of his Fourth Amendment claims. See id. pp. 10-18.

On November 22, 2008, the Government filed a motion to dismiss the claims contained in the Amended Complaint. See Govt's Motion to Dismiss Am. Compl. [dkt. # 15]. In response to this motion, on December 5, 2008 Plaintiff filed a 74-page document that appears to be, at least in part, a memorandum of law addressed to the Government's motion to dismiss the claims in the Amended Complaint. See Plt. Response to Motion to Dismiss Am. Compl. [dkt. # 17]. The document, however, also addresses what appears to be a similar case brought by Plaintiff in the Western District of New York, see id., and a long exposition on why Plaintiff believes the TSA should employ United States Border Patrol agents at airports throughout the United States. Id.

IV. DISCUSSION

Given the unorthodox manner that this case has proceeded, the first order of business is determining what claims are before the Court. Because the Government has not yet filed an answer, Plaintiff is entitled to file one amended complaint without seeking leave of Court. See Fed. R. Civ. P. 15(a)(1)(A); Symphony Marketing Solutions, Inc. v. Goetz, 2008 WL 5000042, at * 1 (D. Conn. Nov. 20, 2008)("A motion to dismiss is not a responsive pleading for the purposes of Rule 15(a).")(citations omitted). Thus, to the extent that Plaintiff's September 29, 2008 filing can be construed as an amended complaint, his claims alleging violations the ADA and the Rehabilitation Act are before the Court. Because it ...


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