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Malyutin v. Rice

December 29, 2009

ALEKSANDR MALYUTIN, PLAINTIFF,
v.
CONDOLEEZZA RICE ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This matter is before the Court on a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction or, alternatively, under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Because proceeding on this complaint would require judicial review of a consular decision to deny a visa application - a decision that is exempt from judicial review - the complaint will be dismissed for lack of subject matter jurisdiction.

BACKGROUND

Plaintiff, Aleksandr Malyutin, is a Russian national and non-lawyer who is proceeding pro se and in forma pauperis in this matter. The 74-page, 156-paragraph pro se complaint is detailed and precise. See generally, Amended Verified Pro Se Complaint for Monetary Relief ("Compl.") Summarizing liberally, it alleges that while the plaintiff was prosecuting, pro se, a business contract dispute in state court in New Jersey, id. ¶¶ 17 et seq., he left the United States on November 24, 2007, to return home to Russia, id. ¶ 51, and that when he tried a few days later to obtain a B1/B2 visa to return to the United States, the U.S. Consul General denied his application. Id. ¶ 60. Two months later in early 2008, the plaintiff re-applied for a B1/B2 visa, was re-interviewed, and was again denied a visa. Id. ¶¶ 78, 83. Because he neither appeared in person nor obtained counsel to represent him, his pro se New Jersey court action was eventually dismissed. Id. ¶ 95.

Plaintiff sues five employees of the United States Department of State, each in their personal capacity only, for money damages. The sole nexus between the plaintiff and the defendants is the denial of his application for a visa to enter the United States. Asserting a right of action under both Bivens*fn1 and 42 U.S.C. § 1985(3), the complaint alleges that the defendants conspired in violation of the second clause of 42 U.S.C. § 1985(2) to deter him from testifying in the matter pending before the New Jersey state court, and that the defendants, or at least some of them, neglected in violation of 42 U.S.C. § 1986 to prevent this alleged conspiracy to deprive him of his civil rights. Compl. ¶¶ 1, 7; see also id. at 61 (identifying as a second cause of action the "[v]violation of the second clause of 42 [U.S.C. §] 1985(2), as provided for by 42 [U.S.C. §] 1985(3)"), 66, 71-72 (listing Counts I, V, and VI). The complaint also asserts state law causes of action and a cause of action under an international treaty. See id. at 67-70, 72. Plaintiff seeks compensatory damages of more than $100 million, exemplary damages in excess of $100 million, and attorneys fees in excess of $500,000. Id. at 74.

The complaint alleges facts that establish the following, among other things:

that plaintiff had entered the United States on a visa twenty times between 1993 and 2007, id. ¶¶ 18, 21, 22;

that plaintiff had established a United States Social Security number, id. ¶ 13;

that in the fourteen years from 1993 through 2006, plaintiff spent 862 days

(approximately 17% of the time) in the United States, and that in 2007 he spent 311 days

(approximately 85% of the year) in the United States, id. ¶¶ 13, 17, 18, 21;*fn2

that plaintiff had not been gainfully employed in 2007, was dependent on family and friends for financial support, and was engaged full time in litigating the New Jersey state court action, id. ¶¶ 57 (c) & (d);

that plaintiff advised consular authorities that he suffered from a serious mental disorder that was not dangerous, id. ¶¶ 54, 57(i);

that plaintiff's girlfriend had overstayed her summer work and program travel visa to the United States in 2007, that plaintiff was the father of his girlfriend's unborn child, and that his pregnant girlfriend was granted a valid, ...


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