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Ngwaba v. Baranowski

United States District Court, M.D. Florida, Jacksonville Division

April 12, 2019

Edith Ngwaba, Plaintiff,
v.
Katherine L. Baranowski et al., Defendants.

          REPORT & RECOMMENDATION

          PATRICIA D. BARKSDALE UNITED STATES MAGISTRATE JUDGE.

         Proceeding without a lawyer and in forma pauperis, Edith Ngwaba is trying to obtain permanent residency, a social security card, and a driver's license for her son, Ositadimma Obiaku, who has been an adult since the inception of the case. She is also trying to obtain reimbursement for money she has spent on her unsuccessful endeavors. The Court has given her four chances to file a legally sufficient pleading. She has not done so. The undersigned recommends dismissal.

         I. Background

         A. Original Complaint

         Ms. Ngwaba filed the original complaint on June 22, 2017, in the Northern District of Florida against Katherine Baranowski with the United States Department of Homeland Security (“DHS”), the Social Security Administration (“SSA”), and the Florida Department of Transportation (“FDOT”). Doc. 1. She alleged Ms. Baranowski had wrongfully cancelled Mr. Obiaku's residency status and the cancellation is in the SSA's and FDOT's records. Doc. 1 at 7, 9-10. The complaint's caption read, “Edith M. Ngwaba for Ositadimma Obiaku E., ” Doc. 1 at 1, and she listed Mr. Obiaku as a co-plaintiff, Doc. 1 at 2, but only she signed the complaint, Doc. 1 at 8.

         A magistrate judge in the Northern District of Florida permitted Ms. Ngwaba to proceed in forma pauperis. Doc. 4. The judge gleaned from the complaint that she was trying to obtain a permanent resident card (a green card) for Mr. Obiaku and $20, 000 in expenses she had incurred in trying to obtain residency status for him. Doc. 4 at 4. The judge stated the court had no jurisdiction to review any denial of an application to adjust status (I-485; “Application to Register Permanent Residence or Adjust Status”)[1] or to order the United States Citizenship and Immigration Services (“USCIS”) to grant residency or pay expenses. Doc. 4 at 4-6. He explained Ms. Ngwaba alleged no constitutional violation and so had no claim against Ms. Baranowski under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Doc. 4 at 6. And he explained Ms. Ngwaba failed to state a claim against the SSA and FDOT because they are without control over Mr. Obiaku's residency status. Doc. 4 at 6-7.

         Construing the complaint liberally, the magistrate judge determined that Ms. Ngwaba may have been trying to seek review of the denial of her application to establish a relationship with an alien relative (I-130; “Petition for Alien Relative”).[2]Doc. 4 at 7. The judge observed that, under the Administrative Procedures Act (“APA”), the court has jurisdiction to review agency denials based on nondiscretionary decisions and allowed Ms. Ngwaba to amend the complaint for the “limited purpose” of pursuing that claim. Doc. 4 at 7. The judge advised Ms. Ngwaba that she needed to allege details about the denial of any I-130 petition and any administrative appeal of any denial. Doc. 4 at 8. The judge also warned Ms. Ngwaba about the six-year statute of limitations for bringing that claim. Doc. 4 at 8 (citing 28 U.S.C. § 2401).

         B. First Amended Complaint & Transfer

         Ms. Ngwaba filed a first amended complaint, this time against Ms. Baranowski with the DHS, Howard Bowies with the SSA, and Victoria Kliner with the FDOT. Doc. 5. Because Ms. Baranowski is in Jacksonville, the magistrate judge in the Northern District of Florida transferred the case here. Doc. 6. The judge acknowledged that the new defendants-Mr. Bowies and Ms. Kliner-are in the Northern District of Florida but declined to consider them in deciding whether transfer was warranted because he had informed Ms. Ngwaba that she has no claim against the SSA or FDOT. Doc. 6 at 2 n.1.

         In the first amended complaint, Ms. Ngwaba again complained about Ms. Baranowski's alleged actions concerning Mr. Obiaku. Doc. 5 at 4-6. Despite the magistrate judge's direction, she provided no details about any I-130 petition or administrative appeal. See generally Doc. 5. Instead, she contended Ms. Baranowski had violated various constitutional amendments, Mr. Bowies had wrongfully denied Mr. Obiaku a social security card, and Ms. Kliner had wrongfully denied Mr. Obiaku a driver's license. Doc. 5 at 6-8. She demanded approval of Mr. Obiaku's residency status, $20, 000 in expenses she had incurred in trying to obtain residency status for him, and a refund of money she had paid for him to obtain a driver's license. Doc. 5 at 8, 11-12. The caption of the first amended complaint names Ms. Ngwaba, Mr. Obiaku, and Elives Obiaku (Ms. Ngwaba's other son), and the first amended complaint lists all three as plaintiffs, but only Ms. Ngwaba signed the pleading. Doc. 5 at 1, 2, 13-14.

         Reviewing the first amended complaint under 28 U.S.C. § 1915(e)(2)(B) and discerning no plausible claim but giving Ms. Ngwaba the benefit of the doubt, the undersigned directed her to file a second amended complaint as a final opportunity to present a sufficient pleading. Doc. 11. The undersigned explained the pleading standards and why the first amended complaint did not satisfy them. Doc. 11 at 1-2. The undersigned identified areas of uncertainty, including whether Ms. Ngwaba intended to proceed as the sole plaintiff and the specific action each defendant had taken that amounted to a plausible constitutional violation. Doc. 11 at 2. The undersigned emphasized the limitations of the Court's jurisdiction and ability to grant certain relief. Doc. 11 at 2. The undersigned repeated that Ms. Ngwaba could not state constitutional claims against Mr. Bowie and Ms. Kliner if their actions resulted from Mr. Obiaku's lack of residency status because the SSA and FDOT have no control over that status. Doc. 11 at 2. The undersigned referred Ms. Ngwaba to the free Legal Information Program. Doc. 11 at 3.

         C. Second Amended Complaint

         Using AO Form Pro Se 15 (“Complaint for Violation of Civil Rights (Non-Prisoner)”), Ms. Ngwaba filed a second amended complaint against Ms. Baranowski, Mr. Bowies, and Ms. Kliner, checking boxes indicating that she is suing them only in their individual capacities. Doc. 12. She lists Mr. Obiaku as a co-plaintiff, Doc. 12 at 2, and includes his name as a typed italicized “signature” at the bottom of an attached statement, Doc. 12 at 19, but she includes in the caption only “Edith Ngwaba, ” Doc. 12 at 1, and only she signed the pleading, Doc. 12 at 6. The second amended complaint is the operative pleading. It contains the following alleged facts.

         1. Allegations against Ms. Baranowski with the DHS

         In 1997, Mr. Obiaku was born in Libreville, Gabon, at Annexe de la Sorbonne, as evidenced in a birth declaration (exhibit 1 to the second amended complaint). Doc. 12 at 11; Doc. 12-1. The declaration was submitted to the Gabonese Health Department, and, in 1998, the department issued a birth certificate that included on the first line the birth date and the issue date (exhibit 2 to the second amended complaint). Doc. 12 at 11; Doc. 12-2. The birth date was and has always been clear and open and is in Ms. Ngwaba's passport under “children” (exhibit 3 to the second amended complaint). Doc. 12 at 11; Doc. 12-3.

         In 2000, Ms. Ngwaba and Mr. Obiaku petitioned for lawful permanent residency. Doc. 12 at 11. In 2001, Mr. Obiaku received a work authorization from the Internal Revenue Service (exhibit 4 to the second amended complaint) and, later that year, a social security number. Doc. 12 at 11; Doc. 12-4. The work authorization and immunization records (exhibit 4 to the second amended complaint) include his birth date and social security number. Doc. 12 at 11; Doc. 12-4.

         In 2002, the DHS interviewed Ms. Ngwaba for lawful permanent residency. Doc. 12 at 12. Although she had petitioned for residency for Mr. Obiaku and had paid fees, he was “ignored” because he was a minor. Doc. 12 at 12.

         Years later, in July 2011, Ms. Ngwaba filed an I-130 petition and an I-485 application so Mr. Obiaku and his brother, Elives, could obtain lawful permanent residency. Doc. 12 at 12. To complete the petitions and applications, they had to travel several times to Gainesville, Florida, to be examined by authorized physicians for clinical procedures required by the DHS, and she had to use and pay approved translators to prepare birth documents. Doc. 12 at 12.

         In November 2011, the DHS asked for documents to show lawful admission into the United States. Doc. 12 at 12. In December 2011, Ms. Ngwaba submitted them, including new birth documents. Doc. 12 at 12. The documents for Elives were correct and accepted by “a male couscous diligent immigration representative, ” and, in May 2012, Elives obtained lawful permanent resident status (exhibit 5 to the second amended complaint). Doc. 12 at 12; Doc. 12-5.

         Although the documents for Mr. Obiaku were equivalent to the documents for Elives, the representative examining the documents for Mr. Obiaku-Ms. Baranowski-said she had not received the documents and repeatedly asked for and received them. Doc. 12 at 12. Ms. Ngwaba had to spend more money to obtain the same documents. Doc. 12 at 12. In April 2013, Ms. Baranowski denied an appeal concerning Mr. Obiaku, contending the birth certificate named no parents and contained inconsistencies. Doc. 12 at 12-13.

         After unsuccessful appeals, Ms. Ngwaba suggested to Ms. Baranowski that Ms. Baranowski might be confused because Mr. Obiaku's birth documents should already be in the system from his first application and presented Ms. Baranowski his 2001 work authorization showing his birth date. Doc. 12 at 13. Ms. Baranowski “got so mad” and ordered Ms. Ngwaba to “hand over” the work authorization. Doc. 12 at 13. Ms. Ngwaba “exclaimed” in the office and “went home depressed.” Doc. 12 at 13. Although Mr. Obiaku has lived in the United States for fifteen years, Ms. Baranowski has “removed” all of his “statuses.” Doc. 12 at 13.

         During an administrative appeal, Ms. Ngwaba asked Ms. Baranowski to review the documents that Ms. Baranowski's colleague had reviewed in approving lawful permanent residency for Elives. Doc. 12 at 13. As a result, Ms. Baranowski threatened to cancel Elives's lawful permanent residency. Doc. 12 at 13.

         In April 2013, Ms. Baranowski issued a decision that reflected “bewilderment”; she requested more documents for the I-130 petitions and I-485 applications for both Elives and Mr. Obiaku despite that Elives already had received lawful permanent resident status. Doc. 12 at 13. Ms. Ngwaba again appealed, and Ms. Baranowski again denied the appeal, which prompted Ms. Ngwaba to file this case. Doc. 12 at 14.

         2. Allegations Against Ms. Kliner with the FDOT

         In 2015, Ms. Ngwaba and Mr. Obiaku went to a driver's license office to get a license for him. Doc. 12 at 14. Students like Mr. Obiaku were getting them and driving to games. Doc. 12 at 14. Ms. Kliner refused his request. Doc. 12 at 14. Leaving the office, Mr. Obiaku cried, explaining that all of his friends have identification cards or driver's licenses-even those new to Florida-and wondering how he can exist without one. Doc. 12 at 14. To no avail, Ms. Ngwaba wrote a letter to Ms. Kliner and provided copies of Mr. Obiaku's “immigration status, ” vaccination records, and school records showing years of Florida residency. Doc. 12 at 15.

         In 2016, Ms. Ngwaba and Mr. Obiaku returned to a driver's license office to complete an application for a driver's license, again provided “evidence” of his residency, and paid a required fee. Doc. 12 at 15. A “lady representative” told Ms. Ngwaba the driver's license would issue in three months, but a year has passed without its issuance, and Ms. Kliner continues to hold the payment. Doc. 12 at 15.

         When Mr. Obiaku turned eighteen, his behavior changed, and he developed a “strange attitude” due to annoyance with the government and with Ms. Ngwaba because she had failed to act on her promise to fix things. Doc. 12 at 15. The lack of a driver's license has changed his “positive life” and her relationship with him, “as he thinks [she is] unable to mother.” Doc. 12 at 15. He has not had a father since age two, and now he cannot drive, work, or go to college like others. Doc. 12 at 15.

         3. Allegations Against Mr. Bowie with the SSA

         In September 2015, a bag with Mr. Obiaku's social security card was stolen. Doc. 12 at 14. A police report documents the theft. Doc. 12 at 14. That month, Mr. Bowies with the SSA refused to replace the card despite Ms. Ngwaba's presentation of the police report and Mr. Obiaku's social security number, explaining to her the SSA could not verify his immigration status. Doc. 12 at 14. According to Ms. Ngwaba, “This was an eye opening to the damage caused by Ms. Baranowski as she denied, cancelled and retrieved [Mr. Obiaku's] immigration status.” Doc. 12 at 14.

         4. ...


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