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BREYER v. MEISSNER

August 27, 1998

JOHANN BREYER
v.
DORIS MEISSNER, U.S. IMMIGRATION AND NATURALIZATION SERVICE



The opinion of the court was delivered by: YOHN

MEMORANDUM AND ORDER

 YOHN, J.

 August 27, 1998

 Plaintiff Johann Breyer was denaturalized by order of this court in 1993, as a consequence of his service during World War II in the SS Totenkopf (Death's Head) Battalion as an armed guard at the Buchenwald and Auschwitz concentration camps. This court yesterday granted defendant's motion to dismiss plaintiff's petition for a declaratory judgment that he is entitled to derivative United States citizenship. For the reasons set forth below, I will deny plaintiff's motion to amend his petition.

 STANDARD OF REVIEW

 Under Federal Rule of Civil Procedure 15(a), "leave [to amend] shall be freely given when justice so requires." In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997) (citation omitted) (alteration in original). However, denial of an opportunity to amend is commended to the discretion of the district court, and such discretion is not abused if it is justified by grounds such as undue delay, bad faith, dilatory motive, prejudice, or futility. Smith v. National Collegiate Athletic Ass'n, 139 F.3d 180, 190 (3d Cir. 1998) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962)). A finding of "dilatory motive" is justified where the plaintiff acts "in an effort to prolong litigation." See Burlington, 114 F.3d at 1434. "Futility" means that the complaint, as amended, would not survive a motion to dismiss for failure to state a claim upon which relief could be granted, based upon the same standard of legal sufficiency as under Rule 12(b)(6). *fn1" Smith, 139 F.3d at 190 (citing Burlington, 114 F.3d at 1434).

 DISCUSSION

 This opinion assumes familiarity with this court's order granting defendant's motion to dismiss, including the factual background and statutory background of this case, as well as the conclusions of law expressed in that memorandum. I will deny plaintiff's motion to amend because the proposed amendments would be futile, *fn2" and due to plaintiff's dilatory motive.

 A. Dilatory Motive

 The additional allegations in the proposed Second Amended Petition do not appear to reflect new information learned through discovery, and plaintiff does not allege to the contrary. (See Pl.'s Mot. Amend at 3.) The proposed amendments "could have and should have been presented in the earlier amended complaint," and plaintiff offers no reason why they were not. See Scattergood v. Perelman, 945 F.2d 618, 627 (3d Cir. 1991). In parceling out his claims among the original petition filed October 21, 1997, the Amended Petition filed December 15, 1997, and the proposed Second Amended Petition filed April 14, 1998 with the motion to amend, I conclude that plaintiff has acted with dilatory motive, seeking to delay any action that may be taken by the Immigration and Naturalization Service ("INS") based upon the resolution of this suit. See INS v. Rios-Pineda, 471 U.S. 444, 450, 105 S. Ct. 2098, 2102, 85 L. Ed. 2d 452 (1985) (discussing alien's incentive to delay deportation through meritless appeals). *fn3"

 B. Civil Rights Claims

 Plaintiff seeks to assert proposed claims under 42 U.S.C. §§ 1983 and 1985(3) against defendant Meissner and proposed additional defendants Janet Reno, U.S. Department of Justice, and various John Doe officials of the Department of Justice. Plaintiff alleges that these defendants conspired to intentionally delay the processing of his application for a certificate of citizenship while the Department of Justice ("DOJ") lobbied Congress for the passage of the Immigration and Nationality Technical Corrections Act of 1994 ("INTCA"), Pub. L. No. 103-416, 108 Stat. 4305 (1994). Even accepting this factual allegation as true for purposes of the motion to amend, the proposed amendments would nevertheless be futile.

 Plaintiff's claims under 42 U.S.C. § 1985(3) are without foundation in the facts as alleged. Actions under § 1985(3) for a civil rights conspiracy are "limited to private conspiracies predicated on 'racial, or perhaps otherwise class based, invidiously discriminatory animus.'" Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971)). Protection has been extended under § 1985(3) to women and to the "mentally retarded, as a class." 112 F.3d at 686. Plaintiff has alleged neither that he is a member of any class recognized as subject to the protection of § 1985(3), nor that he has been subjected to discriminatory animus based on membership in such a class.

 Plaintiff's claims under 42 U.S.C. § 1983 also cannot withstand a motion to dismiss, because plaintiff has not alleged that any of the proposed defendants acted under color of state law. See Hindes v. Federal Deposit Insurance Corp., 137 F.3d 148, 158 (3d Cir. 1998) (federal agencies and officers are facially exempt from § 1983 liability) (citations omitted). Plaintiff's proposed amendment names only federal officials and federal agencies as defendants, and makes no allegation that they acted under color of any law other than federal immigration law. Therefore, plaintiff fails to state a claim under § 1983 against the ...


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