United States District Court, M.D. Florida, Jacksonville Division
REPORT & RECOMMENDATION
PATRICIA D. BARKSDALE UNITED STATES MAGISTRATE JUDGE.
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.
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.
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”) 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.
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”).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).
First Amended Complaint & Transfer
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.
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.
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.
Second Amended Complaint
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.
Allegations against Ms. Baranowski with the DHS
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.
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.
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.
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.
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.
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.
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.
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
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.
Allegations Against Ms. Kliner with the FDOT
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.
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.
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
Allegations Against Mr. Bowie with the SSA
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.