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Portnoy v. United States

September 9, 2008


The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge


Plaintiffs, proceeding in this action pro se, have each requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This case is referred to this court pursuant to E. D. Cal. L. R. 72-302(c)(21) and 28 U.S.C. § 636(b)(1).

Plaintiffs have submitted separate affidavits making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, their requests to proceed in forma pauperis will be granted.

The determination that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines the allegation of poverty is untrue, or the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.

The "Complaint for Damages" sets forth the following factual allegations. Elena Portnoy (then Elena Kudinova and a citizen of Georgia) entered the United States in 1998 on a nonimmigrant visitor visa. She was, at the time, in a common law marriage with Andrei Stadnikov. Elena obtained an extension of her visa and then sought another. While the latter was pending, Elena married Sergei Portnoy, a U.S. citizen, on March 17, 2000. On April 10, 2000, Sergei filed a petition for immediate relative status for Elena. On October 9, 2000, the INS, apparently in response to the pending extension request, found that Elena had materially "misrepresented herself in order to enter and receive benefits from the United States," and denied her "the right to extend her rights to work." On April 10, 2001, following an interview of Elena by the Immigration and Naturalization Service ("INS") (now U.S. Citizenship and Immigration Services ("USCIS")), the INS "demand[ed] a petition and final divorce decree between Elena Kudinova and Andrei Stadnikov." Unable to provide such evidence due to the common law nature of the relationship, Elena and Sergei obtained Elena's INS file pursuant to the Freedom of Information Act and sent letters to INS District Director Charles Demore, the Senate Immigration Committee, the Chief Justices of the Immigration Court, the Attorney General, Supreme Court Justice William Rehnquist and President George Bush. Although plaintiffs provide no dates for the following, they state that the "Immigration Court (not INS) started removal proceding [sic]" and, based upon "INS' . . . false reason for removal," seized Elena's passport. Elena filed an appeal with the Immigration Board of Appeals, which affirmed the decision of the Immigration Court. Elena then filed an appeal with the Ninth Circuit (apparently unsuccessful) and an application for naturalization with the INS, which was denied.

Plaintiffs seek "total monetary damages equal [to] $115-000 - $120,000 on December 31, 2008," based on alleged violations of their rights under the Fourth, Fifth, Seventh and Fifteenth Amendments to the U.S. Constitution, the Immigration Nationality Act, the "Process of Naturalization," and the Freedom of Information Act. Only their Fifteenth Amendment claim is clearly articulated; it is based upon the denial of Elena's purported right to vote in the November 2004 and November 2008 Presidential elections. All other claims are merely listed on the first page of the complaint.

The instant complaint is very similar to another complaint filed by these plaintiffs in this court in 2005. See Portnoy v. United States of America, Civ. No. 05-0649 DFL KJM PS. In that case, the court dismissed plaintiffs' challenge to Elena's final removal order (based on lack of jurisdiction because the challenge had been properly filed and was then pending with the Circuit Court of Appeals, 8 U.S.C. § 1252), and granted summary judgment to defendants on the following remaining claims: plaintiffs' challenge to INS' denial of Sergei's 2000 petition to accord immediate relative status to Elena, and denial of Elena's companion application to become a lawful permanent resident, based on res judicata and failure to exhaust administrative remedies;*fn1 plaintiffs' challenge to the denial of Elena's application for naturalization, based on de novo review demonstrating her failure to provide evidence she was lawfully admitted for permanent residency, the statutory prerequisite for naturalization (8 U.S.C. § 1427(a));*fn2 plaintiffs' Fifteenth Amendment claims because voting in federal elections is predicated on Elena's naturalization; and plaintiff's claims under the Freedom of Information Act for failure to identify the allegedly withheld information. See Portnoy v. United States of America, Civ. No. 05-0649 DFL KJM PS (Document No. 31 and No. 32); affirmed on appeal by the Ninth Circuit (Document No. 38).

The court recommends that this action be dismissed due to lack of subject matter jurisdiction. Plaintiffs seek only monetary damages but assert no cognizable basis for maintaining a damages action against the United States.

"In a suit against the United States, there cannot be a right to money damages without a waiver of sovereign immunity. Where, as here, the claim against the United States does not rest upon a contract and is not for return of money paid to the government, the entitlement to money damages depends upon whether any federal statute can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained. Moreover, a waiver of sovereign immunity cannot be implied but must be unequivocally expressed. The party who sues the United States bears the burden of pointing to such an unequivocal waiver of immunity." Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983) (citations, internal quotations and fn. omitted).

Plaintiffs do not direct the court to any statute authorizing a damages action under the Immigration Nationality Act, the Freedom of Information Act, or the referenced "Process of Naturalization," and the court is unaware of any authority that would timely and substantively support plaintiffs' suit over matters that have not already been addressed by this court and the Ninth Circuit. Plaintiffs do not, for example, state a claim under the Federal Tort Claims Act, 20 U.S.C. § 2675,*fn3 or the Civil Rights Act, 42 U.S.C. § 1983 (which authorizes money damages for federal constitutional violations only by state actors acting under color of state law);*fn4 nor do they demonstrate entitlement to a recognized Bivens-type remedy (Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), authorizing a limited range of suits against federal officials for violation of an individual's federal constitutional rights).

Plaintiffs' complaint must therefore be dismissed. However, given the liberal construction of pro se pleadings required of this court,*fn5 plaintiffs will be permitted one opportunity to amend their complaint in order to state a cognizable claim against proper defendant(s)*fn6 that has not previously been decided by this court. Cf., Portnoy v. United States of America, Civ. No. 05-0649 DFL KJM PS. Failure timely to file an amended complaint or to state a cognizable action will result in this court's recommendation that this action be dismissed.

Accordingly, IT IS HEREBY ORDERED that:

1. The applications of plaintiffs Sergei Portnoy and Elena Portnoy to proceed in forma pauperis, filed June 6, 2008 (Doc. No. 2), and August 18, 2008 (Doc. No. 4), respectively, are granted;

2. The complaint is dismissed with leave to file, within twenty days of the filing date of this order, an amended complaint ...

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