The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
This matter is before the Court on defendants' motion to dismiss. The motion will be granted, and this action will be dismissed with prejudice.
Plaintiff finds himself in the custody of the U.S. Immigration and Customs Enforcement ("ICE"), a component of the United States Department of Homeland Security, as a result of these events:
On October 22, 2001, Petitioner Ali Partovi, who claims to have been born in Iran, arrived in the United States from Japan and applied for admission as a visitor under the Visa Waiver Program using a fraudulent Italian passport bearing the name Michelle Franchini. Partovi was accompanied by Farzon Hatami Aghdam. The United States Immigration and Naturalization Service ("INS") detained both Partovi and Aghdam and determined that they were using false passports. Upon being interviewed, both claimed to be refugees from Tehran, Iran. Partovi stated he was Armenian Catholic and, due to his religious beliefs, could not return to Iran.
As a result to his use of a false passport, Partovi was paroled into the United States for prosecution, and due to his claims of fear of returning to Iran, Partovi was placed into removal proceedings to adjudicate his application for asylum, withholding and protection under the Convention Against Torture.
On January 7, 2002, Partovi submitted to the INS an Application for Asylum and for Withholding of Removal. In the Application, Partovi identified his present nationality as Iranian and identified his religion as Roman Catholic. He sought asylum or withholding of removal based on his religion and the Convention Against Torture.
On April 17, 2002, Partovi pleaded guilty to one count of False Use of a Passport under 18 U.S.C. § 1543.
On May 3, 2002, the Immigration Court held a hearing on Partovi's application for asylum, withholding of removal and protection under the Convention Against Torture. At the conclusion of the hearing, Immigration Judge Dayna Dias denied Partovi's request for asylum, noting that the "application is frivolous." The judge also denied Partovi's request for withholding of removal and found him ineligible for deferral of removal under the Convention Against Torture. Partovi reserved appeal and the Order indicates that the appeal was due by June 3, 2002. Partovi did not appeal the Order.
Partovi v. Ashcroft, No. 03-CV-1098, 2005 U.S. Dist. LEXIS 32520, at *3 (D. Ariz. Oct. 18, 2005) (Magistrate Judge Report and Recommendation) (internal citations omitted), adopted, 2005 U.S. Dist. LEXIS 32510, at *2 (D. Ariz. Dec. 8, 2005). Plaintiff filed a petition for a writ of habeas corpus in the United States District Court for the District of Arizona. See id. That court denied the habeas petition in part and transferred to the United States Court of Appeals for the Ninth Circuit the portion of the petition deemed to be a challenge to the Immigration Judge's decision. See id. The Ninth Circuit concluded that it lacked jurisdiction over plaintiff's claim due to his "failure to seek review from the [Bureau of Immigration Appeals] the [Immigration Judge's] denial of his asylum application [which] constitutes a failure to exhaust administrative remedies . . . ." Partovi v. Gonzales, 239 F. App'x 397, 398 (9th Cir. 2007).
Plaintiff brought this action against two Immigration Officers who allegedly "use[d] deception in an attempt to get [plaintiff's] signature on a deportation and removal document." (Compl. at 4.) According to plaintiff, Officers Matuzewski and Drinkwater informed him that he would be released from custody if he could identify a person to provide him with a residence and employment. Id. Plaintiff supplied this information, at which point he "was ask[ed] to sign paper work that would finalize [his] release[.]" Id. When he "discovered that the paperwork had nothing whatsoever to do with realing [sic] [him]," plaintiff refused to sign the papers. Id. While plaintiff merely "refused to become a victim of deception," he has been "accused of refusing to cooperate with deportation travel documents and electronic monitoring device program . . . ." Id. He has demanded unspecified "injunctive relief, as deemed necessary and just by the Court, as well as compensatory damages in the amount of $5,000,000.00 for the suffer[ing] that was cause[d] by defendants, in violation of plaintiff['s] constitutional rights." Id. at 5.
Plaintiff brings this civil rights action against Matuszewski and Drinkwater in both their official and individual capacities under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (Compl. at 1-2.) Defendants have moved to dismiss the complaint on the grounds that: (1) the court lacks subject matter jurisdiction, (2) the court lacks personal jurisdiction, (3) venue is improper, (4) service of process is insufficient, and (5) failure to state a claim upon which relief can be granted. (See generally Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss ["Defs.' Mot."].) For purposes of this Memorandum Opinion, the Court presumes without deciding that it has personal jurisdiction, that venue is proper, and that service of process is sufficient.
A. The Court Lacks Subject Matter Jurisdiction Over Plaintiff's Claims Against Matuszewski and Drinkwater ...