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Sun v. Tjepkema

October 15, 2010


The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge



Pending before the Court is a motion by defendants Caroline Tjepkema, Kristofer Siering, Michael Bauer, Sean Halpin, Richard Vanstone, Patrick Mangan, Jane Doe, and Joseph Meggo, all of whom are agents of the United States Customs and Border Protection agency ("CBP"), for dismissal of plaintiff's pro se complaint under Rule 12 of the Federal Rules of Civil Procedure ("FRCP"). Defendants assert that they were not served properly. As for substantive issues, defendants assert that they cannot be sued in an official capacity because of sovereign immunity and cannot be sued in an individual capacity because of qualified immunity. Defendants claim entitlement to qualified immunity specifically because plaintiff has alleged nothing more than a secondary border inspection triggered by his admitted failure to declare certain goods at the Canadian--U.S. border that turned out to be prohibited. Although the docket indicates that plaintiff received a copy of defendants' motion papers, he submitted no response to the pending motion. The Court has deemed the pending motion submitted on papers pursuant to FRCP 78(b). For the reasons below, the Court will deny the motion to the extent that it raises procedural challenges but otherwise will grant the motion and dismiss plaintiff's complaint.


This case concerns plaintiff's allegations that defendants subjected him to a prolonged, unfair, and racially discriminatory inspection when crossing the Rainbow Bridge from Canada into the United States. According to the complaint, plaintiff crossed the Rainbow Bridge with his family on October 29, 2008 after visiting his mother in Scarborough, Ontario. Plaintiff, who is of Chinese ancestry, was driving a car with South Carolina license plates. During primary inspection at the customs booth, defendants asked plaintiff several questions including where he had been in Canada and whether he had any alcohol in his car. Plaintiff responded that he had been in Scarborough and was on his way back to South Carolina. Plaintiff responded further that the car contained "several bottles of Cognac and Scotch Whiskey, and I was bringing them with me because I had more room in the trunk this time." (Dkt. No. 1 at 7 ¶ 3.) Defendants then asked plaintiff whether he had any fruits or vegetables in the car, to which plaintiff responded in the affirmative. At that point, defendants directed plaintiff to the secondary inspection area. When one of the defendants asked plaintiff more questions about what fruits and vegetables were in the car, plaintiff "told her clearly that I did not know everything in the car because I did not pack the vehicle and that there may be other fruits and vegetables we bought in Toronto in small quantities which we did not finish eating . . . ." (Id. ¶ 4.) Plaintiff's response prompted defendants to direct plaintiff and his family inside a nearby building while they conducted a secondary inspection of his car.

Two aspects of the secondary inspection upset plaintiff. First, plaintiff felt upset that he had to undergo a secondary inspection at all. While he was at the customs booth for primary inspection, plaintiff "saw passengers in other vehicles, one peeling an orange and another eating an apple. Both of those vehicles passed the booths without detention after brief inquiry. Those vehicles were occupied by Caucasians." (Id. ¶ 3.) Second, plaintiff felt upset at what he perceived to be rough or improper treatment of the personal items that he had in his car. At one point, plaintiff exited the building where he was located to take pictures of the secondary inspection using his cell phone. When defendants saw plaintiff taking pictures, they seized his cell phone and ordered him back into the building.

Upon completion of the secondary inspection, defendants informed plaintiff that they found several concealed and prohibited items, including fruit and frozen lamb chops. Defendants allegedly told plaintiff that he had to pay them $300 "or it would be a long time before we could leave." (Id. at 8 ¶ 7.) Plaintiff told defendants that he did not have that money and demanded to know the basis for such a requirement. Approximately one hour later, defendants returned plaintiff's driver's license and family passports, issued a Notice of Alleged Violation, and let him go. Defendants also returned plaintiff's cell phone, although the pictures that plaintiff took were deleted along with unrelated personal data. From the time of the bridge crossing at approximately noon, to the final release at approximately 4:00 p.m., about four hours passed during the events that plaintiff described in his complaint.

Plaintiff filed his complaint on January 12, 2009, asserting three claims against all defendants of violations of 42 U.S.C. § 1983.*fn1 In his first claim, plaintiff asserts discrimination based on race and national origin in that defendants subjected him to an unnecessary and prolonged detention that Caucasians do not have to experience. In support of his first claim, plaintiff notes that he had a similar incident in Niagara Falls three years before the incident in question, and that Chinese friends and relatives of his also have complained about customs officers in Niagara Falls. In his second claim, plaintiff asserts an illegal search and seizure of his cell phone and an illegal deletion of personal data that he had on that phone. In support of his second claim, plaintiff notes that there was no justification for the seizure of the cell phone if it occurred only in response to the pictures that he took of the secondary inspection. In his third claim, plaintiff asserts a due-process violation in that "defendants conspired to cover up their wrongful and unconstitutional activities by rendering a mockery investigation." (Dkt. No. 1 at 3.)

In lieu of answering the complaint, defendants filed a motion to dismiss it on May 20, 2010. In their motion, defendants raise three arguments for dismissal. First, defendants argue under FRCP 12(b)(5) that plaintiff never served them properly because he never served the United States Attorney in addition to serving them individually. Second, defendants argue under FRCP 12(b)(1) that this Court lacks subject-matter jurisdiction over the case to the extent that plaintiff is suing them in their official capacities, since sovereign immunity would bar plaintiff's claims. Third, defendants argue under FRCP 12(b)(6) that qualified immunity bars any claims against them in their individual capacities because the primary and secondary inspections occurred properly. The docket for this case indicates that the Clerk of the Court mailed copies of defendants' motion papers and this Court's text order setting a briefing schedule (Dkt. No. 22) to plaintiff's South Carolina address. The Clerk's mailings never returned as undeliverable. Under the briefing schedule for the pending motion, the Court permitted plaintiff to file responding papers until June 11, 2010, but plaintiff never filed a response.


A. Standard of Review for Pro Se Litigants

"As an initial matter, the Court is mindful that Plaintiff[] [is] proceeding pro se, and that [his] submissions should thus be held to less stringent standards than formal pleadings drafted by lawyers. Moreover, when plaintiffs bring a case pro se, the Court must construe their pleadings liberally and should interpret them to raise the strongest arguments that they suggest. Still, pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law." Rotblut v. Ben Hur Moving & Storage, Inc., 585 F. Supp. 2d 557, 559 (S.D.N.Y. 2008) (internal quotation marks and citations omitted). The Court will assess the pending motion and plaintiff's original pleadings-given the lack of a response to the pending motion-in this context.

B. Defendants' Motions to Dismiss Generally

"Where a Court is asked to rule on a combination of Rule 12 defenses, it will pass on the jurisdictional issues before considering whether a claim is stated in the complaint." A.C. ex rel. Collichio v. Brockport Cent. Sch. Dist., No. 08-CV-6443, 2009 WL 1044558, at *2 (W.D.N.Y. Apr. 16, 2009) (Telesca, J.) (internal quotation marks and citations omitted). Here, two of defendants' three arguments for dismissal are jurisdictional in nature-the FRCP 12(b)(5) argument concerning service of process and the FRCP 12(b)(1) argument concerning subject-matter jurisdiction. The Court would lack authority to address the sufficiency of ...

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