    12-53
    DeBoe v. Du Bois


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 27th day of November, two thousand twelve.

    PRESENT:
                JOHN M. WALKER, Jr.,
                ROBERT A. KATZMANN,
                PETER W. HALL,
                      Circuit Judges.
    ________________________________________

    Frankie Da DeBoe,

                             Plaintiff-Appellant,

                       v.                                               12-53

    Carl Du Bois, Officer Kesnner, Christopher
    Shanahan, John Tsoukaris, Colonel Orsino,
    Sergeant Rodriguez,

                      Defendants-Appellees.
    ________________________________________

    FOR PLAINTIFF-APPELLANT:                             Frankie Da DeBoe, pro se, Accra, Ghana.

    FOR DEFENDANTS-APPELLEES
    CARL DU BOIS, OFFICER KESSNER,
    COLONEL ORSINO, AND SERGEANT
    RODRIGUEZ:                                           Hyun Chin Kim, Senior Assistant County
                                                         Attorney, for David Darwin, County
                                                         Attorney for the County of Orange,
                                                         Goshen, NY.
FOR DEFENDANTS-APPELLEES
CHRISTOPHER SHANAHAN AND JOHN
TSOUKARIS:                                            Sarah J. North, Sarah S. Normand, Assistant
                                                      United States Attorneys, for Preet Bharara,
                                                      United States Attorney for the Southern
                                                      District of New York, New York, NY.


       Appeal from the judgment of the United States District Court for the Southern District of

New York (Bricetti, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED IN PART and VACATED

IN PART.

       Plaintiff-Appellant Frankie Da DeBoe, pro se, appeals from the district court’s order

granting motions to dismiss DeBoe’s civil rights complaint against Immigration and Customs

Enforcement (“ICE”) officials Christopher Shanahan and John Tsoukaris (the “federal

defendants”) and several correctional officers at the Orange County Correctional Facility

(“OCCF”). We assume the parties’ familiarity with the underlying facts, the procedural history

of the case, and the issues on appeal.

       We review de novo a district court decision dismissing a complaint pursuant to Rule

12(b)(1) or 12(b)(6) of the Federal Rules of Civil Procedure. See Jaghory v. N.Y. State Dep’t of

Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal of a case for lack of subject matter

jurisdiction under Rule 12(b)(1) is proper “when the district court lacks the statutory or

constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.

2000). Where subject matter jurisdiction is contested, courts are permitted to look to materials

outside the pleadings, including affidavits. J.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir.


                                                 2
2004). The plaintiff asserting subject matter jurisdiction has the burden of proving by a

preponderance of the evidence that such jurisdiction exists. See Makarova, 201 F.3d at 113.

       To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained

in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal,

556 U.S. at 678. A claim will have “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.” Id. While pro se complaints must contain sufficient factual allegations to

meet the plausibility standard, see Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009), the Court

should look for such allegations by reading pro se complaints with “special solicitude” and by

interpreting them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam) (emphasis omitted).

       Finally, we have held that district courts generally should not dismiss a pro se complaint

without granting the plaintiff at least one opportunity to amend. See Cuoco v. Moritsugu, 222

F.3d 99, 112 (2d Cir. 2000); see also Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)

(holding that district courts should not dismiss pro se complaints “without granting leave to

amend at least once when a liberal reading of the complaint gives any indication that a valid

claim might be stated”). Leave to amend is not necessary, however, when it would be futile. See

Cuoco, 222 F.3d at 112 (finding leave to replead would be futile when the complaint, even when

read liberally, did not “suggest[] that the plaintiff has a claim that she has inadequately or

inartfully pleaded and that she should therefore be given a chance to reframe”).


                                                  3
       Here, the district court dismissed DeBoe’s pro se complaint without providing him with

an opportunity to replead. We thus consider, with respect to both the OCCF and the ICE

defendants, whether a remand for this purpose would be futile. For the reasons discussed below,

we conclude that such a remand is warranted with respect to DeBoe’s 42 U.S.C. § 1983 claims

against the OCCF defendants, but not with respect to DeBoe’s claims against the ICE

defendants.

       A.      Claims Against the OCCF Defendants

       In his complaint, DeBoe alleged that he was being held in “civil custody” at the OCCF as

an alien detainee awaiting deportation. DeBoe’s status as an alien detainee means that his claims

against the defendants arise under the Due Process Clause of the Fourteenth Amendment rather

than under the Eighth Amendment’s prohibition of cruel and unusual punishment. See United

States v. Walsh, 194 F.3d 37, 47-48 (2d Cir. 1999) (“[T]he Eighth Amendment’s protection does

not apply ‘until after conviction and sentence . . . .’” (quoting Graham v. Connor, 490 U.S. 386,

392 n.6 (1989))); see also Porro v. Barnes, 624 F.3d 1322, 1326 (10th Cir. 2010) (holding that

“it is th[e] . . . due process[] standard that controls excessive force claims brought by federal

immigration detainees”); Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000) (“We consider

a person detained for deportation to be the equivalent of a pretrial detainee; a pretrial detainee’s

constitutional claims are considered under the due process clause instead of the Eighth

Amendment.”).

       We have equated the standard used for excessive force claims brought by detainees under

the Fourteenth Amendment with that used to analyze Eighth Amendment excessive force claims,

see Walsh, 194 F.3d at 47-48, but we have also held that a detainee may set forth a constitutional


                                                  4
due process violation by showing that indignities he suffered constituted “punishment” or

involved an “intent to punish,” see Benjamin v. Fraser, 264 F.3d 175, 188 (2d Cir. 2001). In his

complaint, DeBoe alleged that, after he refused OCCF officer Kessner’s “sexual demands,”

Kessner threatened DeBoe, “punish[ed]” him, and instituted “[p]unitive retaliations.” Given

these allegations, we cannot say at this juncture that, if the district court had provided DeBoe

with an opportunity to amend his complaint, he would have been unable to state a § 1983 claim

under the due process provisions of the Fourteenth Amendment. We therefore find that a

remand is necessary to permit DeBoe to amend his complaint against the OCCF defendants.

       As an alternative basis for its dismissal of DeBoe’s § 1983 claims, the district court found

that he had failed to administratively exhaust those claims as required by the Prison Litigation

Reform Act (“PLRA”). The relevant provision, 42 U.S.C. § 1997e(a), states that “[n]o action

shall be brought with respect to prison conditions under [§ 1983], or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” The PLRA further defines a “prisoner” as “any person

incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or

adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,

probation, pretrial release, or diversionary program.” 42 U.S.C. § 1997e(h).

       When determining whether a plaintiff qualifies as a prisoner under 28 U.S.C. § 1915(h), a

definitional subsection identical to § 1997e(h), we have recently focused on whether the plaintiff

is accused of violating a criminal law. See Gibson v. City Municipality of New York, 692 F.3d

198, 201-02 (2d Cir. 2012) (applying § 1915(h) and holding that a plaintiff who was held in a

mental health institution pursuant to a court-ordered observation period, and whose criminal


                                                  5
charges were “merely suspended” during that period, was a “prisoner” within meaning of the

PLRA because he remained accused of a violation of criminal law while detained in the

institution); see also Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir. 2000) (“[T]he natural reading

of the text” of the PLRA “is that, to fall within the definition of ‘prisoner,’ the individual in

question must be currently detained as a result of [an] accusation, conviction, or sentence for a

criminal offense.”). Three of our sister circuits have concluded that the PLRA’s definition of a

“prisoner” is not applicable to alien detainees who do not also face criminal charges. See

Agyeman v. INS, 296 F.3d 871, 885-86 (9th Cir. 2002) (“[T]he filing fee provisions of the PLRA

do not apply to an alien detainee who proceeds in forma pauperis to petition for review from a

BIA decision, so long as he does not also face criminal charges.” (citation omitted)); LaFontant

v. INS, 135 F.3d 158, 165 (D.C. Cir. 1998) (“Although LaFontant was a ‘prisoner’ for purposes

of the PLRA when he served time for past convictions, he ceased being a ‘prisoner’ at the time

he was released on parole. When LaFontant was detained by the Attorney General under the

INA for deportation purposes, he became an ‘alien detainee,’ not a ‘prisoner.’”); Ojo v. INS, 106

F.3d 680, 682-83 (5th Cir. 1997) (“[T]he PLRA does not bring alien detainees within its

sweep.”).

       Here, there is no indication in DeBoe’s complaint that he faced criminal charges at the

time he was detained in the OCCF. Given the record before us, however, we are unable say that

he did not face such charges and thus we cannot conclusively determine whether he was

“prisoner” within meaning § 1997e(h). We therefore leave this issue for the district court to

consider in the first instance on remand, should it prove necessary.




                                                  6
       B.      Claims Against the Federal Defendants

       We affirm the district court’s dismissal of DeBoe’s claims against the federal defendants

as we conclude that any amendment to his complaint with respect to these defendants would be

futile.1 First, it is apparent that, to the extent DeBoe brought claims against the federal

defendants pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971), the only theory of liability he can pursue is that of supervisory liability, which

is not applicable where, as here, the plaintiff describes only negligence and fails to allege that the

supervisors, by their own actions, violated clearly established constitutional rights. See Iqbal,

556 U.S. at 676-77. Second, to the extent DeBoe asserted claims under the Federal Torts Claims

Act (“FTCA”), the district court correctly determined that it lacked subject matter jurisdiction

over those claims because DeBoe failed to exhaust his administrative remedies under FTCA by

filing a complaint with the appropriate federal agency, in this case ICE. See 28 U.S.C. §

2675(a); Millares Guiraldes de Tineo v. United States, 137 F.3d 717, 720 (1998) (“In sum, the

United States has not consented to be sued on a tort claim unless the claim was first presented to

the appropriate federal agency in writing, was so presented within two years after the claim

accrued, and specified the amount of the claim in writing.”). Moreover, because the federal

defendants submitted evidence that DeBoe had never filed an administrative complaint with ICE,

a remand to allow DeBoe to amend his complaint would not rectify this deficiency. See J.S., 386

F.3d at 110 (courts are permitted to look to materials outside the pleadings when resolving

questions of subject matter jurisdiction).


       1
        We also grant the federal defendants’ motion to strike the photographs contained in
DeBoe’s appellate brief, as those photographs were not part of the record on appeal. See Fed. R.
App. P. 10(a)(1); Loria v. Gorman, 306 F.3d 1271, 1280 n.2 (2d. Cir. 2002) (“Ordinarily,
material not included in the record on appeal will not be considered.”).

                                                  7
       We have considered all of DeBoe’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court as to ICE officials Shanahan

and Tsoukaris. With respect to the remaining defendants, we VACATE the district court’s

judgment and REMAND with instructions that DeBoe be permitted to file an amended

complaint.


                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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