United States District Court, E.D. New York
MEMORANDUM & ORDER
N. VITALIANO UNITED STATES DISTRICT JUDGE
Ali Shaman El Bey, proceeding pro se, filed this
action against defendant Bill Hilton on May 28, 2015,
alleging that he was arbitrarily denied access to a flight
because his identification credentials were insufficient to
allow him to travel. (Compl., ECF No. 1; Am. Compl.
¶¶ 6-8, ECF No. 6-1). Hilton has moved to dismiss.
(Def.'s Mot, ECF No. 24). For the reasons that follow,
the motion is granted, and this action is dismissed without
prejudice for want of subject matter jurisdiction.
is an Indigenous Taino Native, of Moorish Ancestry, who was
born in New York, but now lives Puerto Rico. (Am. Compl.
¶¶ 1, 9). Since 2000, Plaintiff allegedly was able
to travel back and forth between New York and Puerto Rico
without incident, even though his identification documents
were not issued by the United States or by any state thereof.
(Am. Compl. ¶¶ 9-10). His uneventful transit was
interrupted on July 11, 2010, when El Bey allegedly was
stopped before boarding his return flight from John F.
Kennedy International Airport ("JFK") in Queens to
Puerto Rico and was questioned about his credentials. (Am.
Compl. ¶ 10). Following this incident, El Bey
corresponded with the Transportation Security Administration
("TSA") to resolve his identification issue. (Am.
Compl. ¶ 11). After 11 months of haggling with TSA
officials, and after, he says, complying with their
instructions, including the acquisition of compliant
credentials that allowed him to travel back home on November
11, 2011, El Bey believed that, at last, all identification
issues had been resolved with respect to his flights between
New York and Puerto Rico. (Am. Compl. ¶¶ 12-14).
plaintiffs understanding, on November 9, 2012, when he
attempted to clear TSA screening at JFK for a flight to
Puerto Rico, El Bey was once again stopped, and his
credentials were questioned. (Am. Compl. ¶¶ 3, 6-8,
16-17). This TSA stop was made by defendant Bill Hilton, a
TSA Security Supervisor. (Am. Compl. ¶¶ 3, 6-8,
16-17). Hilton asked El Bey if he had any other form of
identification. (Am. Compl. ¶ 17). He replied,
"yes, " and gave Hilton his International Road
Travel Identification. (Am. Compl. ¶ 17; Demartini's
Decl., Ex. 1, ECF No. 24-3). After examining this document
Hilton, still not satisfied, asked El Bey if he had any other
identification. (Am. Compl. ¶ 18). Plaintiff then gave
Hilton a document certified by the United States Department
of State, recognizing his indigenous native status. (Am.
Compl. ¶ 18; Demartini's Decl., Ex. 1). Hilton told
El Bey that he was unfamiliar with these other documents and
passed them to another TSA employee, who left the checkpoint
with the documents. (Am. Compl. ¶¶ 19-20).
approximately two hours, the second TSA employee returned and
handed plaintiffs documents to Hilton. (Am. Compl. ¶ 15,
21-22). Defendant then gave them back to El Bey, but informed
him, with a laugh, that he would not be allowed to fly. (Am.
Compl. ¶ 22). Plaintiff says that he thereafter
contacted Steve Golubic, the Director of the Department of
Tribal Affairs for the United States Department of Homeland
Security ("DHS"). (Am Compl. ¶ 25; Pl's
Opposition, Ex. 1, ECF No. 21). With Golubic's
assistance, El Bey was allowed to fly from New York to
Florida, where he ultimately boarded a flight to Puerto Rico.
(Am. Compl. ¶¶ 25-27).
the incident, Golubic sent El Bey a letter, dated February 8,
2013, which informed him that TSA's identity verification
policy requires all adult passengers to provide a federal or
state-issued photo ID for inspection before entering a TSA
security checkpoint. (Demartini's Decl., Ex. 2).
Golubic's letter further explained that a federally
recognized Native American Tribal photo ID did not meet
TSA's identity verification policy, but if an individual
did not have an acceptable form of ID, that individual could
either produce two alternative forms of ID that met the
requirements or provide additional information so that TSA
could reference publicly available databases to confirm the
purported identity. (Demartini's Decl, Ex. 2).
Golubic's letter also noted that "[t]hese
requirements for acceptable IDs are included in Standard
Operating Procedures (SOPs), which [TSA] must adhere to when
conducting passenger security screening."
(Demartini's Decl., Ex. 2). Lastly, Golubic advised that
the TSA "followed and operated within the requirements
of [the] SOP" when El Bey was denied entry through the
TSA checkpoint on November 9, 2012. (Demartini's Decl.,
the allegations in El Bey's amended complaint focus on
the events of November 9, 2012, that incident was not the
last time that plaintiff was turned away from a TSA
checkpoint. (Am. Compl. ¶ 27). On November 15, 2013, El
Bey approached a TSA checkpoint to catch a flight from JFK to
Puerto Rico. (Am. Compl. ¶ 27). Once again, he had to
wait while TSA employees reviewed his documents, and, once
again, he was denied entry at the checkpoint. (Am. Compl.
¶¶ 28-29). The next day, however, he was able to
board a flight home. (Am. Compl. ¶¶ 29-30).
28, 2015, El Bey brought this action against TSA, Hilton and
unnamed TSA security supervisors. (Compl.). On August 15,
2015, the Court dismissed, sua sponte, El Bey's
claims against TSA and its employees in their official
capacities, but permitted the claims against the individual
defendants in their individual capacities to proceed. (Mem.
& Order 4, ECF No. 4). Plaintiff thereafter filed an
amended complaint on September 28, 2015, naming the same
defendants. (Am. Compl.). By Order, dated March 14, 2016, the
Court permitted the matter to proceed against the only named
individual defendant, Bill Hilton, as a Bivens
action and dismissed all other claims. (Second Mem. &
Order 1-2, ECF No. 7).
rate, the gravamen of El Bey's amended complaint is that
TSA personnel arbitrarily and capriciously denied him access
to his November 9, 2012, flight, charging that the failure of
TSA and its employees to consistently follow the law, rules,
and guidelines, caused him damage by preventing him from
timely attending to his responsibilities at home. (Am. Compl.
¶¶ 6-8, 32). As proof of damage, he cites vandalism
to his property and a delay in the treatment of a sinus
cavity tumor. (Am. Compl. ¶ 33). The amended complaint
demands damages of $10 million. (Am. Compl. ¶ 34). On
February 8, 2017, Hilton filed his motion to dismiss.
burden of establishing federal subject matter jurisdiction
when it is challenged by a Rule 12(b)(1) motion rests on the
shoulders of the party invoking jurisdiction, not the party
challenging it; proof of jurisdiction must be by a
preponderance of the evidence. See, e.g., Augienello v.
F.D.I.C, 310 F.Supp.2d 582, 587-88 (S.D.N.Y. 2004).
Although a court "must accept as true all material
factual allegations in the complaint, " it must not draw
inferences favorable to the party asserting jurisdiction,
J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d
107, 110 (2d Cir. 2004), and it "may resolve disputed
factual issues by reference to evidence outside the
pleadings, " Augienello, 310 F.Supp.2d at 588.
Moreover, "no presumptive truthfulness attaches to the
complaint's jurisdictional allegations."
Id. (quoting Guadagno v. WallackAder
LevithanAssocs., 932 F.Supp. 94, 95 (S.D.N.Y. 1996)).
other hand, when deciding a motion to dismiss under Rule
12(b)(6) for failure to state a claim upon which relief can
be granted, a court must (1) accept as true all of the
plaintiffs factual allegations and (2) draw all reasonable
inferences in his favor. See Teichmann v. New York,
769 F.3d 821, 825 (2d Cir. 2014). It is also well established
that, without regard to the nature of the motion directed at
it, a court must construe a pro se litigant's
pleadings liberally, see Erickson v. Pardus, 551
U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007);
Mcleod v. Jewish Guild for the Blind, 864 F.3d 154,
156 (2d Cir. 2017), especially when those pleadings assert
civil rights violations, see Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
Notwithstanding the obligation to read pro se
complaints with "special solicitude" and interpret
them "to raise the strongest arguments that they
suggest, " Triestman v. Fed Bureau of Prisons,
470 F.3d 471, 474-75 (2d Cir. 2006) (citations and internal
quotation marks omitted), courts must nevertheless ensure
that complaints "plead facts sufficient 'to state a
claim to relief that is plausible on its face, '"
Teichmann, 769 F.3d at 825 (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009)).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678. This
"plausibility standard is not akin to a 'probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully."
Id. (quoting Bell All. Corp. v. Twombly,550 U.S. 544, 556, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929
(2007)). "Where a complaint pleads facts that are
'merely consistent with' a defendant's liability,
it 'stops short of the line between possibility and
plausibility of "entitlement to relief.'""
Id. (quoting Twombly, 550 U.S. at 557).
Although '"detailed factual allegations'"
are not required, "[a] pleading that offers 'labels
and conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do.'"
Id. (quoting Twombly, 550 U.S. at 555).