United States District Court, D. Connecticut
ORDER DISMISSING WITH PREJUDICE
R. UNDERHILL United States District Judge
December 19, 2017, Nicholas Weir filed suit under the
doctrine of Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971),
alleging violation of his rights under the Third, Fourth, and
Seventh Amendments to the United States Constitution by
federal officials in retaliation for Weir's complaints
about employee misconduct at the City University of New York
(“CUNY”). Compl., Doc. No. 1. Weir also moved for
leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Doc. No. 2. I referred Weir's motion
to United States Magistrate Judge William I. Garfinkel, who
on January 12, 2018, granted the motion but entered a
recommended ruling of dismissal. See Docs. Nos. 7
& 8. Weir objected to the recommended ruling by letter
dated January 23, 2018. Doc. No. 9. I approved and adopted
Judge Garfinkel's recommended ruling on January 31, 2018,
but permitted Weir to amend within 30 days. Doc. No. 10. Weir
timely filed an amended complaint on March 1, 2018. Doc. No.
complaint does not correct the deficiencies identified in his
original complaint. As I noted in my previous ruling,
“[t]he United States, as sovereign, is immune from suit
save as it consents to be sued, ” United States v.
Sherwood, 312 U.S. 584, 586 (1941), which means that
“[a]bsent a waiver, sovereign immunity shields the
Federal Government . . . from suit.” FDIC v.
Meyer, 510 U.S. 471, 475 (1994). “Because an
action against a federal agency or federal officers in their
official capacities is essentially a suit against the United
States, such suits are also barred under the doctrine of
sovereign immunity, unless such immunity is waived.”
Robinson v. Overseas Military Sales Corp., 21 F.3d
502, 510 (2d Cir. 1994). “[T]he plaintiff bears the
burden of establishing that her [or his] claims fall within
an applicable waiver” of sovereign immunity.
Makarova v. United States, 201 F.3d 110, 113 (2d
original and amended complaints raise claims under the
doctrine of Bivens, 403 U.S. 388, which
“impl[ied] a damages remedy under the
Constitution” against federal officials for violations
of the Fourth Amendment. See Ziglar v. Abbasi, __
U.S. __, 137 S.Ct. 1843, 1855 (2017) (discussing
Bivens, 403 U.S. 388). Among the requirements for a
Bivens action is that suit “must be brought
against the federal officials involved in their
individual capacities, ” for “an action
against . . . federal officers in their official capacities .
. . [is] also barred under the doctrine of sovereign
immunity.” Robinson, 21 F.3d at 510 (emphasis
added). In his Amended Complaint, Weir identifies as
“Defendant No. 1” the “United States of
America and U.S. Department of Justice, ” and lists the
defendant's “Job or Title” as “Attorney
General of the United States.” See Am. Compl.,
Doc. No. 11, at 2. Weir also checks the box indicating that
the defendants are sued in their official capacities.
Id. Because Weir's claims continue to
“constitute a Bivens action against . . .
federal defendants in their official capacities, ” they
are barred by sovereign immunity. See Robinson, 21
F.3d at 510.
argues that his claims fall within two exceptions to
sovereign immunity, but both exceptions are inapplicable.
First, Weir suggests that the United States is amenable to
suit under the doctrine of Ex parte Young, 209 U.S.
123 (1908). Ex parte Young created “a limited
exception to the general principle of sovereign immunity,
” which “allows a suit for injunctive or
declaratory relief challenging the constitutionality of a
state official's actions in enforcing
state law.” See W. Mohegan Tribe &
Nation v. Orange Cnty., 395 F.3d 18, 21 (2d Cir. 2004)
(quoting CSX Transp. v. N.Y. State Office of Real Prop.
Servs., 306 F.3d 87, 98 (2d Cir. 2002)) (internal
brackets omitted) (emphasis added). Here, Weir has not sued
state officials but rather the “United States of
America” and “[f]ederally funded agencies and
their agents.” See Am. Compl., Doc. No. 11, at
1. Because the defendants are not state officials, Ex
parte Young does not apply.
also argues that the United States has waived sovereign
immunity pursuant to the Privacy Protection Act
(“PPA”), 42 U.S.C. § 2000aa-6. That statute
provides in pertinent part:
A person aggrieved by a search for or seizure of materials in
violation of this chapter shall have a civil cause of action
for damages for such search or seizure . . . against the
United States . . . for violations of this chapter by [its]
officers or employees while acting within the scope or under
the color of their office or employment
Id. at § 2000aa-6(a)(1). The PPA “was
passed in response to Zurcher v. Stanford Daily, 436
U.S. 547 (1978), in which the Supreme Court held that the
Fourth Amendment did not prohibit police from undertaking
searches and seizures of documentary evidence held by
innocent third parties.” Guest v. Leis, 255
F.3d 325, 340 (6th Cir. 2001). Accordingly, the statute
“prohibits the government from seizing certain
materials, called ‘work product materials, ' that
are intended .” Id. It “also bars seizure
of ‘documentary materials'” that record
information, such as “notes, photographs, or
tapes.” Id. at 340-41.
read, the PPA does not create a free-floating waiver of
sovereign immunity for all Fourth Amendment violations by
state or federal officers. Instead, the statute merely
responds to the Zurcher decision by
“requir[ing] law enforcement officers . . . to rely on
subpoenas to acquire materials intended, ” and
“creates a civil cause of action for damages resulting
from a search or seizure of materials in violation of the
Act.” Davis v. Gracey, 111 F.3d 1472, 1481
(10th Cir. 1997). Weir does not allege that law enforcement
officers seized any materials intended from him in violation
of the PPA. Therefore, he has failed to show that his claims
fall within the PPA's waiver of sovereign immunity. The
doctrine of sovereign immunity bars me from exercising
jurisdiction over Weir's claims.
if-bearing in mind the principle that pro se
complaints “are held to less stringent standards than
formal pleadings draft by lawyers, ” Hughes v.
Rowe, 449 U.S. 5, 9 (1980)-I were to construe Weir as
bringing Bivens claims against the Attorney General
in his individual capacity, those claims would still fail.
Weir has not “allege[d] that the individual defendant
was personally involved in the constitutional violation,
” which is necessary to hold a defendant liable under
Bivens. See Thomas v. Ashcroft, 470 F.3d
491, 496 (2d Cir. 2006). Weir alleges retaliation from
unnamed “CUNY employees, . . . military personnel[, ]
and other federal agents, ” but does not identify any
actions by the Attorney General. Am. Compl., Doc. No. 11, at
4. Nothing in the Amended Complaint suggests that Weir could
plausibly allege that the Attorney General was personally
involved in retaliation against Weir for reporting employee
misconduct at CUNY.
amended complaint does not cure the deficiencies identified
in Judge Garfinkel's recommended ruling or my earlier
order. Further amendment would be futile. Cf. Lucente v.
IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002). Therefore,
I dismiss Weir's case with prejudice.