Khan v. Holder

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ALI KHAN, a/k/a ARSHAD ALI MALIK,

Plaintiff,

v. Civil Action No. 13-1287 (JDB)
ERIC H. HOLDER, JR., Attorney General
of the United States, et al.,

Defendants.

MEMORANDUM OPINION

Everyone agrees that Ali Khan’s last year in federal jail was a mistake. After he finished

serving his original sentence, he received an additional 168 months for violating parole from an

earlier offense. But under the terms of Khan’s extradition from Canada, there was no authority to

impose that additional sentence. Now properly released from American custody, he seeks ten

million dollars in damages. Although Khan surely suffered a terrible injury, the relief he seeks is

barred by the procedural and jurisdictional rules as well as Khan’s failure to allege facts sufficient

to state a claim for which relief can be granted. Accordingly, the Court will grant the government

defendants’ motion to dismiss.

BACKGROUND

Back in 1981, Khan was sentenced to fifteen months’ imprisonment and—relevant here—

lifetime parole in the United States District Court for the Northern District of Illinois. See Malik

v. U.S. Parole Comm’n, 2012 WL 6682128, at *1 (N.D. Ohio Dec. 21, 2012). After he served his

sentence, Khan returned to his native Canada. Id.
 More than twenty years later, the federal government indicted Khan in the Eastern District

of Michigan. See id. Khan eventually consented to his extradition from Canada to the United

States, under the terms of the extradition treaty between the two nations. See id. This meant that

his surrender to the United States was “for the sole purpose of facing the charge filed against [him]

in the Michigan federal case.” Id. And once in Michigan, Khan pleaded guilty. Id. At sentencing,

the Presentence Investigation Report (“PSR”) incorrectly stated that Khan had waived, rather than

consented to, extradition. See Compl. [ECF No. 1] at 9. Khan surmises that the mistake might

have occurred because the Clerk of Court did not enter Khan’s order of surrender on the docket

until after the PSR had been completed. See id. At the time, however, neither Khan nor his

attorney noticed the error, and so did not object to the PSR. See id. The Court sentenced Khan to

seventy-eight months in prison. Malik, 2012 WL 6682128, at *1.

The day before Khan expected to be released, he was informed that his incarceration would

continue indefinitely. See Compl. at 11. The United States Probation Office had issued a detainer,

believing that Khan’s conviction in the Eastern District of Michigan meant that he had violated

the terms of his parole from his earlier conviction in the Northern District of Illinois. Within a few

months, the United States Parole Commission held a hearing on that issue. See Malik, 2012 WL

6682128, at *1. At the hearing, according to Khan, his counsel failed to present a defense, and did

not discuss the terms of Khan’s extradition. See Compl. at 12. The Commission found that Khan

had violated the terms of his parole and sentenced him to 168 months. See Malik, 2012 WL

6682128, at *1. Khan found this prospect emotionally devastating, “a cause of indescribable

duress and . . . negative repercussions on [his] health.” Compl. at 12. And he suffered further

upon receiving a document indicating that his new sentence was life imprisonment. See id. at 13.

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 Khan filed an appeal with the Parole Commission’s National Appeals Board, arguing,

among other things, that the government lacked jurisdiction under the terms of his extradition. See

id. The Board denied the appeal, explaining that Khan’s jurisdictional argument was “unsupported

by any documentation or other evidence.” See Ex. M to Compl. at 90. And it pointed out that,

according to the PSR, Khan had waived extradition. See id.

But Khan persisted. Finally in possession of the documents he needed to prove the

circumstances of his extradition, he filed a petition for a writ of habeas corpus under 28 U.S.C.

§ 2241. See Compl. at 15–16. The government requested that the court grant Khan’s petition,

which it did. See Malik, 2012 WL 6682128, at *1. The court explained that the “rule of specialty

prohibits the prosecution of an individual for an offense in the country that requested his

extradition unless the extraditing country grants his or her extradition for that offense.” See id. at

*2. It found that Khan’s additional sentence did not fall within the scope of his consent or the

terms of the extradition treaty with Canada. Id. at *3. And so, about a year after Khan should

have left prison, the court ordered Khan’s release. Id.

After returning to Canada, Khan filed this lawsuit, pro se, seeking ten million dollars in

damages from various defendants in connection with his wrongful imprisonment. See Compl. at

28. The government has responded1 by filing a motion to dismiss. See Gov’t’s Mot. [ECF No.

19].

LEGAL STANDARD

1
The only non-federal defendants here are unknown agents of the Corrections Corporation of America
(“CCA”). The CCA has not entered an appearance in this case, and the present motion to dismiss—and therefore this
Opinion—does not apply to those defendants. The Court has, by separate order issued today, addressed Khan’s claims
as to the CCA defendants.

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 The government moves, in part, to dismiss for lack of subject-matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1). As “[f]ederal courts are courts of limited jurisdiction[ ,]

. . . [i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of

establishing the contrary rests upon the party asserting” it. Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994) (citations omitted). Thus, Khan must establish jurisdiction by a

preponderance of the evidence. See Gordon v. Office of the Architect of the Capitol, 750 F. Supp.

2d 82, 87 (D.D.C. 2010). In making this determination, “the Court must accept as true all of the

factual allegations contained in the complaint,” but those facts “will bear closer scrutiny in

resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Id. at

86–87 (internal quotation marks omitted). “Although a court is to construe liberally a pro se

complaint, pro se plaintiffs are not freed from the requirement to plead an adequate jurisdictiona l

basis for their claims.” Kurtz v. United States, 798 F. Supp. 2d 285, 288 (D.D.C. 2011) (alteration,

citations, and internal quotation marks omitted).

The government also seeks to dismiss the complaint for failure to state a claim under Rule

12(b)(6). “[A] Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff's

complaint.” Hall & Assocs. v. U.S. Envtl. Prot. Agency, 77 F. Supp. 3d 40, 50 (D.D.C. 2014).

Although a plaintiff need not set forth “detailed factual allegations” to withstand a Rule 12(b)(6)

motion, in order to establish the “grounds” of his “entitle[ment] to relief,” a plaintiff must furnish

“more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted); see also

Papasan v. Allain, 478 U.S. 265, 286 (1986). The court “must accept as true all of the factual

allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). “[T]he

complaint is construed liberally in [plaintiff’s] favor, and [a court should] grant plaintiff[] the

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benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, a court need not accept inferences that are

not supported by the facts alleged and legal conclusions drawn by plaintiff. See id.; Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Twombly, 550 U.S. at 555).

ANALYSIS

Khan has sued numerous federal defendants—and it is not entirely clear from the complaint

whether he means to sue them in their official capacity, in their individual capacity, the agencies

they represent, or some combination thereof. The amenability of these defendants to suit—and

the Court’s jurisdiction—depend on the claims Khan brings against them, the capacity in which

Khan has sued them, and the way these decisions implicate federal sovereign immunity. To

impose some semblance of order, the Court will address Khan’s claims in two broad categories:

first, the common-law tort claims of false arrest, false imprisonment, and malicious prosecution,

and then the Bivens claims for alleged constitutional violations of the rights to due process, equal

protection, and freedom from cruel and unusual punishment. See generally Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Khan is unable to

succeed on any of his claims.

I. False Arrest, False Imprisonment, and Malicious Prosecution

The Federal Tort Claims Act provides the exclusive remedy for Khan’s common-law tort

claims of false arrest, false imprisonment, and malicious prosecution. United States v. Smith, 499

U.S. 160, 165–66 (1991); see also 28 U.S.C. § 2679(b)(1). To bring an FTCA claim, the plaintiff

must have “first presented the claim to the appropriate Federal agency and his claim shall have

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been finally denied by the agency in writing.” 28 U.S.C. § 2675(a). In other words, the plaintiff

must exhaust his administrative remedies before filing suit. See McNeil v. United States, 508 U.S.

106, 113 (1993). And that requirement is jurisdictional. See Simpkins v. Dist. of Columbia Gov’t,

108 F.3d 366, 371 (D.C. Cir. 1997).

Khan has not alleged that he exhausted his administrative remedies before filing this

lawsuit. The only mention of exhaustion in his complaint refers to his Bivens claims, not his

common-law tort claims. And Khan provides only a conclusory statement—“I have met both of

these criteria [of exhaustion],” Compl. at 17—rather than facts from which the Court may conclude

that he has plausibly exhausted those claims.

In his briefing, Khan goes a bit further. He states, “[a]s an aside,” that he is “filing with

this response a copy of all the documents which [he] had previously filed with the departments

named in this suit under the Federal Tort Claim[s] Act, as well as the responses [he] ha[s]

received.” Pl.’s Opp’n [ECF No. 21] at 2. But no such copies appear on the docket. And in his

surreply, Khan admits that he “filed [his] FTCA claims with the respective agencies which are

headed by the departments shortly after [he] filed this instant action.” Pl.’s Surreply [ECF No. 24]

at 4 (emphasis added). Exhaustion, however, requires a final denial from the agency before filing

suit—and Khan admittedly did not even begin the exhaustion process until after suing in this

Court. Accordingly, he has not demonstrated that the Court has subject-matter jurisdiction over

his common-law tort claims, and so the Court must dismiss them as to all of the defendants. 2

2
Khan does contend that the agencies to which he submitted claims “have constantly avoided making a
decision.” Pl.’s Opp’n at 2. This could be read—at a stretch—as reaching toward the statute’s provision that “[t]he
failure of an agency to make final disposition of a claim within six months after it is filed shall . . . be deemed a final
denial of the claim for purposes of” the FTCA’s exhaustion requirement. 28 U.S.C. § 2675(a). But since Khan did
not even file those administrative claims before commencing this suit, he could not—and did not—allege that the final
disposition occurred before he sued in federal court. See Kurtz, 798 F. Supp. 2d at 288 (holding pro se plaintiff to the
requirement to plead an adequate jurisdictional basis for his claims).

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 The government urges other rationales on the Court: untimeliness, failure to state a claim,

lack of private analog. But, having determined that the Court “lacks subject matter jurisdiction, it

can proceed no further.” Simpkins, 108 F.3d at 371 (holding that the district court erred by going

on to consider the merits of an FTCA claim after finding that the plaintiff had not fulfilled the

exhaustion requirement).

II. Constitutional Claims

The disposition of Khan’s constitutional claims is slightly more complicated—not least

because it is not entirely clear from the complaint who Khan is suing, and in what capacity. To

the extent that Khan is suing the named agencies themselves, or the named individuals in their

official capacities, seeking money damages, his suit for constitutional violations can go no

further. See FDIC v. Meyer, 510 U.S. 471, 486 (1994) (declining to extend Bivens to federal

agencies); Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011) (“It is well established that

Bivens remedies do not exist against officials sued in their official capacities.”). As to these

defendants, and these claims, the Court must dismiss for lack of jurisdiction. See Meyer, 510 U.S.

at 475 (“Sovereign immunity is jurisdictional in nature.”); see also Kentucky v. Graham, 473 U.S.

159, 166 (1985) (“[A]n official-capacity suit is, in all respects other than name, to be treated as a

suit against the entity.”).

As to the known named defendants sued in their personal capacity—the Attorney General,

the Secretary of State, the U.S. Marshal, and the director of the Federal Bureau of Prisons—the

Court lacks personal jurisdiction, and must dismiss the case as to them. See Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 584 (1999) (“Personal jurisdiction . . . is an essential element of

the jurisdiction of a district court, without which the court is powerless to proceed to an

adjudication.” (alteration and internal quotation marks omitted)). “Before a federal court may

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exercise personal jurisdiction over a defendant, the procedural requirement of service of summons

must be satisfied.” Omni Capital Int’l, Ltd. v. Rudolph Wolff & Co., 484 U.S. 97, 104 (1987).

Bivens defendants, sued in their individual capacity, must be served as individuals pursuant to

Rule 4(e). Simpkins, 108 F.3d at 369; see also Fed. R. Civ. P. 4(i)(3). That rule authorizes only

personal service of the summons and complaint, leaving them at the defendant’s dwelling or usual

abode with a competent person, delivering them to an authorized agent, or serving process in

accordance with the procedures of D.C. law. As Khan served the named defendants at their

respective places of business, see Cert. of Serv. [ECF No. 4] at 1, 3, 7, 11, he has not fulfilled the

requirements of Rule 4. The claims against them must therefore be dismissed for lack of personal

jurisdiction. See, e.g., Auleta v. U.S. Dep’t of Justice, 80 F. Supp. 3d 198, 200–01 (D.D.C. 2015)

(holding that the court could not exercise personal jurisdiction over DOJ employees who were

served at DOJ headquarters, without evidence that the person to whom they were delivered was

an authorized agent); see also Leichtman v. Koons, 527 A.2d 745, 747 (D.C. 1987) (explaining

that service at defendant’s place of business did not comport with D.C.’s service requirements).

Even if Khan had properly served these defendants in their individual capacities, he would

not succeed. Khan has not alleged that any of these high-level officials were personally involved

in any of the decisions of which he complains. 3 But “[b]ecause vicarious liability is inapplicable

to Bivens . . . suits, a plaintiff must plead that each Government-official defendant, through the

official’s own individual actions, has violated the Constitution.” Ashcroft, 556 U.S. at 676. In the

absence of allegations regarding these defendants’ personal involvement, then, the Court would in

any event have been forced to dismiss the Bivens claims against them.

3
At most, Khan alleges that Holder “acted . . . to deprive [him] from [his] protected due process rights.” See
Compl. at 23. This is a legal conclusion, not a fact from which the Court might infer such a conclusion. But even if
the Court were to construe this as an appropriate factual allegation, Holder enjoys absolute prosecutorial immunity.
See Imbler v. Pachtman, 424 U.S. 409, 427 (1976).

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 That leaves only the John Doe defendants from each of the federal agencies—defendants

about whom the government has been curiously silent. Those defendants have not, of course, been

served—normally, a bar to suit. But “[c]ourts do grant an exception to this rule for ‘John Doe’

defendants . . . where the otherwise unavailable identity of the defendant will eventually be made

known through discovery.” Newdow v. Roberts, 603 F.3d 1002, 1010 (D.C. Cir. 2010). The Court

is doubtful that Khan would be able to determine these defendants’ identities through discovery,

however, as they are mentioned in only the most cursory fashion, untethered to concrete

allegations. See, e.g., Compl. at 24 (“[W]hen . . . the agents of the United States Probation Office

and Parole Commission made the decision to proceed with my prosecution and further

incarceration they violated my [right to equal protection].”); id. at 26 (“I am being told . . . basically

by every agent that I come across, be they agents of the United States marshalls [sic], Federal

Bureau of Prisons, Corrections Corporation [o]f America, United States Parole Commission or

others that the protections that were guaranteed to me by the extradition treaty don’t matter.” (in

the context of Khan’s Eighth Amendment claim)); id. at 28 (“I believe that . . . agents of the

Department of State, United States Parole Commission, United States Probation Office, United

States Marshalls [sic] Service, Federal Bureau of Prisons and Corrections Corporation [o]f

America . . . had roles that played into the cruel and unusual punishment . . . .”). But even if Khan

were able to name, and then serve, these unknown defendants, he would not succeed on his claims.

The Court can first dispense with the “named unknown agents” of the State Department.

To succeed on his Bivens claims, Khan must show that these defendants’ conduct was a proximate

cause of his injury. See Egervey v. Young, 366 F.3d 238, 246 (3d Cir. 2004); McLaughlin v.

Alban, 775 F.2d 389, 391 (D.C. Cir. 1985). But the role of any State Department agent was, at

most, to facilitate Khan’s extradition pursuant to his consent. While such facilitation was perhaps

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a “but for” cause of Khan’s wrongful detention, it was not a proximate cause. There were simply

too many intervening causes to attribute Khan’s wrongful detention to any State Department

agents: the erroneous PSR, the failure of Khan’s attorney to notice that error, and the failure of

Khan’s attorney to raise a defense at the parole revocation hearing. See Compl. at 9, 12. Hence,

as to the named unknown agents of the State Department, Khan has failed to state a claim, and this

portion of his complaint must be dismissed.

Remaining, then, are Khan’s claims against John Doe defendants from the U.S. Marshals

Service, the Bureau of Prisons, the U.S. Probation Office, and the U.S. Parole Commission. Khan

asserts that these defendants violated his constitutional rights to due process, to equal protection,

and to be free from cruel and unusual punishment. Compl. at. 22–28. These claims, too, must be

dismissed for failure to state a claim for which relief can be granted. But even if Khan has alleged

sufficient facts to state any of these claims, dismissal is nonetheless proper on the basis of quasi-

judicial immunity.

Khan’s due process claim—“I was effectively denied . . . life and liberty when I was

detained past my release date,” Compl. at 22—fails because he received all the process he was

due. “Due process ordinarily requires that procedures provide notice of the proposed official

action and ‘the opportunity to be heard at a meaningful time and in a meaningful manner.’” Ralls

Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 318 (D.C. Cir. 2014) (quoting Mathews v.

Eldridge, 424 U.S. 319, 333 (1976)). Khan received such procedures: his parole was revoked after

he was told that he would be facing a charge for violating his parole, Compl. at 25, and following

a hearing before the U.S. Parole Commission at which Khan was represented by counsel, Compl.

at 12. Khan complains that “no defense was presented to this commission,” id., but it is the

opportunity to rebut the government’s case that is an essential component of due process, see Ralls,

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758 F.3d at 318. Khan received that opportunity. His attorney’s failure to alert the Commission

to Khan’s extradition-based defense, while an oversight with significant consequences, does not

establish that any of the defendants violated his right to due process.

As for his equal protection claim, Khan asserts that he was treated differently from others

who consent to extradition pursuant to the treaty with Canada because, contrary to the terms of the

treaty, he was punished for an offense other than that for which extradition was granted. Compl.

at 23–24. The root of this claim is the error in Khan’s PSR, which stated that he had waived

extradition. In order to maintain a “class of one” equal protection claim, the plaintiff must allege

that he “‘has been intentionally treated differently from others similarly situated and that there is

no rational basis for the difference in treatment.’” XP Vehicles, Inc. v. U.S. Dep’t of Energy, 2015

WL 4249167, at *23 (D.D.C. July 14, 2015) (emphasis added) (quoting Vill. of Willowbrook v.

Olech, 528 U.S. 562, 564 (2000) (per curiam)). Khan, however, hypothesizes that the U.S.

Probation Officer “merely assumed” that he had waived extradition “without verifying the facts

thoroughly.” Compl. at 9. Because his equal protection claim is based on an alleged negligent

error in his PSR, the claim must fail.

Khan’s Eighth Amendment claim similarly fails because he has not alleged the requisite

culpable state of mind. “[A] prison official violates the Eighth Amendment only when two

requirements are met. First, the deprivation alleged must be, objectively, sufficiently serious.”

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). And second, “a

prison official must have a sufficiently culpable state of mind.” Id. (internal quotation marks

omitted). Again, Khan has generally described “neglect by the Parole Commission” as well as

“neglect of the other defendants.” Pl.’s Opp’n at 3; see also Pl.’s Surreply at 1 (“This is neglectful

at the least . . . .”). Such allegations do not support a claim that these defendants behaved with

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“subjective recklessness,” Farmer, 511 U.S. at 839, or “maliciously and sadistically,” Whitley v.

Albers, 475 U.S. 312, 320 (1986).

Amongst the assertions of negligence, though, there is one allegation against the unknown

agents of the Parole Commission that invokes intentionality and bad faith. Khan asserts that “the

persons responsible for administration of [his] Parole Commission Appeal decided to search

through any documentation they could find to locate any one piece of mistaken information they

could use to keep [him] past [his] release date.” Compl. at 15. This is doubtful; more likely, their

search started and ended with the unobjected-to PSR. But even if Khan’s assertions are correct,

the unnamed parole commissioners are not amenable to suit in their individual capacities. In the

D.C. Circuit, parole commissioners and probation officers are entitled to absolute quasi-judic ia l

immunity. See Turner v. Barry, 856 F.2d 1539, 1541 (D.C. Cir. 1988) (per curiam) (holding D.C.

probation officers “absolutely immune from liability for damages” in a § 1983 action alleging

“errors in the investigation and preparation of presentence reports”); Jones v. Fulwood, 860 F.

Supp. 2d 16, 22 (D.D.C. 2012) (holding Bivens claim against U.S. parole commissioners in their

individual capacities barred by absolute quasi-judicial immunity).

The unknown agents of the Bureau of Prisons and U.S. Marshals Service are also protected

by this immunity. It is widely recognized that public officials, acting within the scope of their

authority, who enforce facially valid court orders are entitled to absolute quasi-judicial immunity.

See, e.g., Engebreston v. Mahoney, 724 F.3d 1034, 1039 (9th Cir. 2013) (“We now join our sister

circuits and hold that prison officials charged with executing facially valid court orders enjoy

absolute immunity from §1983 liability for conduct prescribed by those orders.”); J.P. Silverton

Industries, L.P. v. Sohm, 243 F. App’x 82, 89 (6th Cir. 2007); Figg v. Russell, 433 F.3d 593, 598–

600 (8th Cir. 2006); Hamilton v. Leavy, 322 F.3d 776, 782–83 (3d Cir. 2003); Mays v. Sudderth,

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97 F.3d 107, 113 (5th Cir. 1996); Valdez v. City & Cnty. of Denver, 878 F.2d 1285, 1287–1290

(10th Cir. 1989); see also Francis v. Lyman, 216 F.2d 583, 588–89 (1st Cir. 1954) (“The privilege

of the jailor to impose the confinement is . . . as time-honored in the Anglo-American common

law as is the immunity of members of the legislature and of judges from civil liability for acts done

within the sphere of their judicial activities.”); Ravenscroft v. Casey, 139 F.2d 776, 778 (2d Cir.

1944) (“Whether [the judge’s] orders were correct or erroneous he had jurisdiction to make them

and they provide immunity to the jail authorities who did nothing other than perform them.”). This

rule is only fair. Any other rule would “spare the judges,” or probation officers, “who give orders

while punishing the officers who obey them.” Valdez, 878 F.2d at 1289.

Here, Khan was taken into custody by the U.S. Marshals pursuant to a detainer issued by

the U.S. Probation Office, and was further detained by agents of the Federal Bureau of Prisons

pursuant to the revocation order of the U.S. Parole Commission. There is no question that these

agencies had the authority to issue these orders, that the defendants had the authority to enforce

the orders, and that the orders were facially valid. These officials should not “be called upon to

answer for the legality of decisions which they [were] powerless to control.” Valdez, 878 F.2d at

1289. Hence, Khan’s constitutional claims against the unnamed agents of the U.S. Marshals

Service and Bureau of Prisons fail for this reason as well.

* * * * *

In sum, the Court must dismiss the entirety of Khan’s complaint as to the federal defendants

for either lack of subject matter jurisdiction, lack of personal jurisdiction, or failure to state a claim.

The Court is sympathetic to the mental anguish Khan experienced while fearful that he would be

wrongfully imprisoned for the rest of his life. But this lawsuit cannot proceed based on sympathy

alone.

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 CONCLUSION

For the foregoing reasons, the Court will grant the government defendants’ motion to

dismiss. A separate Order has issued on this date.

/s/
JOHN D. BATES
United States District Judge

Dated: September 29, 2015

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