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Sanusi v. Department of Homeland Security

United States District Court, E.D. New York

March 31, 2014


HUGHES HUBBARD & REED LLP. Theodore V.H. Mayer William Joseph Beausoleil Windy B. McCracken New York, NY, Attorneys for Plaintiff.

UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK Zachary C. Cunha Dione M. Ena Scott Dunn Brooklyn, NY, Attorneys for Defendants. Department of Homeland Security and Immigration & Customs Enforcement.

AHMUTY, DEMEERS & McMANUS Frank J. Pecorelli, Jr. Albertson, NY, Attorneys for Defendants Wackenhut Corp. and the GEO Corp., Inc.

SIMON & PARTNERS, LLP Brian David Waller New York, NY, Attorneys for Defendant Corrections Corporation of America, Inc.


STERLING JOHNSON, Jr., District Judge.

Presently before the Court is a Report and Recommendation ("Report") filed on December 1, 2010 by Magistrate Judge Joan M. Azrack, pursuant to 28 U.S.C. § 636(b). (Dkt. No. 87.) Familiarity therewith is assumed. The Report addresses two motions by Plaintiff Rasaq Opeyemi Sanusi ("Plaintiff'' or "Sanusi") seeking leave: (1) to file a Second Amended Complaint (the "Proposed Complaint" or "Proposed Compl.") more than four years after the start of this action; and (2) to serve the named individual defendants that Plaintiff failed to serve in that four-year time period. (Dkt. No. 62.) The Report also addresses a motion to dismiss pursuant to Rule 12(b)(6) filed by the federal government agencies named as defendants ("Federal Agency Defendants"). (Dkt. No. 71.)

The Report recommends that the Court grant in part and deny in part Sanusi's motion to amend his complaint, and that the Court grant the Federal Agency Defendants' motion to dismiss. In particular, the Report notes that the Proposed Complaint significantly streamlines the operative complaint and thus promotes judicial economy, and would not unduly prejudice defendants as the action is still effectively in its early stages. (Report at 11-12.) The Report determines, however, that the bulk of the eleven claims (the "Proposed Claims") in the Proposed Complaint are time-barred and/or legally insufficient under Rule 12(b)(6), thus having no hope of surviving a subsequent motion to dismiss. Consequently, the Report recommends that the Court deny Plaintiff's motion to amend with respect to all but three of his eleven Proposed Claims, and with respect to those three claims, to grant them only in part. The parties timely filed objections to the Report. (Dkt. Nos. 88-90.)

This Court reviews those portions of a report and recommendation to which a party has timely objected under a de novo standard of review. See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3). A de novo review determination entails an independent review of all objections and responses to the magistrate's findings and recommendations. See, e.g., United States v. Tortora, 30 F.3d 334, 337 (2d Cir. 1994); cf. Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1045 (2d Cir. 1992). On de novo review, a district court, however, will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance. See, e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994); Kaminski v. City of Utica, 2012 U.S. Dist. LEXIS 139261, at *3-4 (N.D.N.Y. Sept. 26, 2012) (citing Calderon v. Wheeler, 2009 U.S. Dist. LEXIS 64935 (N.D.N.Y. July 28, 2009)). In the case at bar, after conducting a de novo review of the Report, the Court concludes that Magistrate Azrack's Report should be approved and adopted, as modified below, for the reasons that follow.

Accordingly, it is hereby ORDERED that the Federal Individual Defendants' Motion to Dismiss is GRANTED; and Plaintiff's motion to file a Second Amended Complaint is GRANTED in part and DENIED in part.


1. Procedural History

The procedural history of this case is a tortured one and bears summarizing here.

Plaintiff is a native and citizen of Nigeria. On October 16, 1997, Plaintiff attempted to enter the United States using a fraudulent British passport. He was denied admission, detained, and then processed for expedited removal. Plaintiff later established a credible fear that he would be persecuted if returned to Nigeria, and was thus granted permission to pursue an asylum claim. On March 23, 1998, after an adverse credibility determination and his failure to present supporting documentation, Plaintiff's asylum application was denied and he was issued a final order of deportation. Plaintiff then applied for relief from deportation pursuant to the United Nations Convention Against Torture, 1465 U.N.T.S. § 85; 8 C.F.R. § 108.16 (regulations implementing the Convention). On March 16, 2000, an Immigration Judge ("IJ") denied his application under the Convention. The Board of Immigration Appeals ("BIA") upheld denial of the application on February 26, 2001; after various appeals and motions for reconsideration, the Second Circuit affirmed the BIA's determination on April 18, 2006. Sanusi v. Gonzales, 445 F.3d 193 (2d Cir. 2006). While awaiting the ultimate resolution of these matters, Plaintiff was continuously detained in various detention centers.

In 2003, with his appeal for relief from removal still pending in the Second Circuit, Plaintiff filed a pro se petition for a writ of habeas corpus in this Court, challenging his then six year detention and the conditions of his confinement. The Court denied Plaintiff's petition. Sanusi v. INS, No. 03-cv-193, 2003 WL 21696945 (E.D.N.Y. July 15, 2003), aff'd in part, vacated in part, and remanded, 100 F.Appx. 49 (2d Cir. 2004) (summary order). In affirming this Court's ruling in part, the Second Circuit held that Plaintiff's prolonged detention did not violate due process because it had "been prolonged primarily by [Plaintiff's] pursuit of final judicial review of his claims." Sanusi, 100 F.Appx. at 51. To the extent that Plaintiff's claims were based on the conditions of his confinement, the Second Circuit remanded with instructions that Plaintiff be allowed the opportunity to re-plead on the grounds that he was proceeding pro se, and with the expectation that this Court would consider the appointment of counsel for Plaintiff (given the complexity of his challenge to the conditions of his confinement). See id. at 52. Following this partial remand, Sanusi's 2003 petition for a writ of habeas corpus morphed into the present action.

2. The 2006 Amended Complaint

Predicated on the allegations in his habeas petition, Plaintiff filed the initial complaint in this action with the assistance of pro bono counsel on June 12, 2006. (Dkt. No. 1.) The complaint was later amended as a matter of right on September 26, 2006 (the "Amended Complaint"). (Dkt. No. 6.)[1] Notwithstanding the Second Circuit's limited remand, the Amended Complaint asserted claims predicated on the conditions of Plaintiff's confinement as well as the length of his detention, which the Second Circuit had already held to be constitutional.

The Amended Complaint asserts twenty-one causes of action against eighteen defendants who may be categorized into four different groups of entities and individuals: (1) the Department of Homeland Security and the United States Immigration and Customs Enforcement ("ICE") (together, the "Federal Agency Defendants"); (2) three individually named ICE immigration officers, Officers Torres, Regis, and Cozine (the "Federal Individual Defendants" or "ICE Officers, " and, collectively with the Federal Agency Defendants: the "Federal Defendants"); (3) the private operators of the three separate detention centers in which Plaintiff was held during the relevant period-the Wackenhut Corporation, the GEO Corp., and the Corrections Corporation of America ("CCA") (together "the Corporation Defendants"); and (4) named and unnamed employees of the Corporation Defendants, including three wardens of these centers, named defendants "Janecka, " "Easterling, " and "Collins" (together the "Warden Defendants, " and collectively with the Corporation Defendants: the "Private Defendants"). And, as the Second Circuit expressly ...

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