The opinion of the court was delivered by: Cormac J. Carney United States District Judge
ORDER DISMISSING PLAINTIFF'S COMPLAINT
Mohamed Mahmoud Bedier filed his Complaint on October 5, 2012 alleging eight causes of action against the United States of America, and a number of government officials in their official capacities, including Eric Holder, Janet Napolitano, John Morton, Gary Mead, Timothy Robbins, Lieutenant Michael McHenry, Sandra Hutchens, and Toni Bland (collectively, "Defendants"). Mr. Bedier is a citizen and native of Lebanon. (Dkt. No. 1 ["Compl."] ¶ 14.) On August 16, 2006, he pled guilty to aid by misrepresentation in violation of California Welfare and Institutions Code section 10980(c)(2). (Id. ¶ 16.) As a consequence of his conviction, Mr. Bedier was placed in removal proceedings on March 27, 2012. (Id. ¶ 19.) Pending removal, Mr. Bedier was detained at the Adelanto Detention Facility. (Id. ¶ 21.) On September 19, 2012, he was transferred to the Theo Lacy Facility. (Id. ¶ 31.) On August 6, 2012, an immigration judge ordered that Mr. Bedier be removed to Lebanon. (Id. ¶¶ 33--34.) Sometime after filing the Complaint, Mr. Bedier was removed to Lebanon, where he currently resides. (Bedier Decl. ¶¶ 1, 17.)
In the Complaint, Mr. Bedier alleges that his removal to Lebanon was improperly delayed. (Id. ¶ 35.) Mr. Bedier also alleges that while detained, he was denied a Halal diet consistent with his Muslim faith. (Id. ¶¶ 64--65.) Although he was provided with a vegetarian diet, which is Halal, he alleges that he was only supplied with peanut butter, rice, and macaroni. (Id. ¶ 23.) Other detainees who requested vegetarian diets received salad and fruits. (Id.) He also alleges that during Ramadan he was denied a single date, which is required for his religious practice. (Id. ¶ 24.) Additionally, Mr. Bedier alleges that while detained he was denied the ability to pray in accordance with his religion. (Id. ¶ 36.)
Three of the causes of action stated in Mr. Bedier's Complaint are brought under the Federal Tort Claims Act ("FTCA"): false imprisonment, negligence, and intentional infliction of emotional distress. Mr. Bedier also brings causes of action for violations of his constitutional rights to due process and free exercise of religion, including a Bivens claim, as well as a cause of action for violation of the Religious Freedom Restoration Act. Mr. Bedier seeks to enjoin Defendants from denying his requests for a Halal or vegetarian diet, denying him a sufficient diet, refusing to allow him to pray, and delaying his removal to Lebanon. Mr. Bedier also seeks costs under the Equal Access to Justice Act.
On October 31, 2012, the Court issued an Order to Show Cause ("OSC") why this case should not be dismissed for failure to state a claim. (Dkt. No. 14.) Mr. Bedier filed his opposition on November 28, 2012, (Dkt. Nos. 18, 19), and Defendants filed a response on December 5, 2012, (Dkt. No. 20). For the following reasons, the Court DISMISSES Mr. Bedier's Complaint.
The legal standard in deciding whether Mr. Bedier has stated a claim on which relief may be granted is the same as for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. In considering whether to dismiss a case for failure to state a claim, the issue before the Court is not whether the claimant will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims asserted. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). When evaluating a Rule 12(b)(6) motion, the district court must accept all material allegations in the complaint as true and construe them in the light most favorable to the non-moving party. Moyo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994). Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires only a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The district court should grant the plaintiff leave to amend if the complaint can possibly be cured by additional factual allegations. Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).
In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Courtrecognized a cause of action against federal officials for damages arising from constitutional violations. Id. at 394--95. A Bivens claim "can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity." Daly-Murphy v.Winston, 837 F.2d 348, 355 (9th Cir. 1988). "This is because a Bivens suit against a defendant in his or her official capacity would merely be another way of pleading an action against the United States . . . ." Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007). The Supreme Court has refused to extend the Bivens cause of action against federal agencies, even when Congress has waived the agency's sovereign immunity. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 483--84 (1994).
Mr. Bedier's Bivens claim is based on allegations that Defendants violated his constitutional right to liberty without due process by arbitrarily and capriciously detaining him and delaying his removal. (Compl. ¶ 40.) He further alleges that he has suffered economic damages and significant physical and emotional harm as a result of such violations. (Id. ¶ 45.) However, Mr. Bedier has failed to state a claim because he only alleges constitutional violations against Defendants in their official capacities. (Id. ¶¶ 6--10, 12--13.)
The FTCA permits suits against the United States for injuries caused by a government employee acting within the scope of his employment. 28 U.S.C. § 1346(b)(1); Kashin v. Kent, 457 F.3d 1033, 1036 (9th Cir. 2006). Prior to bringing an FTCA claim before a federal court, a plaintiff must have exhausted his administrative remedies. McNeil v. United States, 508 U.S. 106, 113 (1993). This requires submitting an administrative claim to the federal agency that committed the allegedly tortious conduct. 28 U.S.C. § 2675(a). The plaintiff may not file an action against the United States until the administrative claim has been denied by the agency, or until six months have passed and the agency has made no final response. Id. Until that time, federal courts lack jurisdiction over the FTCA claims.
Here, the Court lacks jurisdiction over Mr. Bedier's FTCA claims because he has failed to allege or show that he has exhausted his administrative remedies. The Complaint contains no allegations regarding administrative claims, other than a passing reference to a letter submitted by Mr. Bedier's daughter regarding delays in his removal. Mr. Bedier has attached the letter, dated September 17, 2012, to his opposition to the Court's OSC. (Pl.'s Opp'n Exh. 2.) First, the letter only refers to delays in Mr. Bedier's removal, and makes no reference to his diet or ability to pray. Additionally, Mr. Bedier has not alleged or argued that the claim made in the letter was denied. Instead, he argues that the letter was simply ignored. (Pl.'s Opp'n at 3.) If the letter was in fact ignored, the Court ...