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Cash v. U.S. Department of Homeland Security

United States District Court, E.D. Pennsylvania

May 31, 2018

OMAR SHARIFF CASH, Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

          MEMORANDUM

          JOSEPH F. LEESON, JR. UNITED STATES DISTRICT JUDGE.

         Plaintiff Omar Shariff Cash, a State inmate currently incarcerated at SCI Greene, has filed this civil action pursuant to 42 U.S.C. §§ 1983 & 1985 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against the United States Department of Homeland Security (“DHS”), former DHS Secretary John Kelly, current DHS Secretary Kristjen Nielsen, the Bensalem Township Police Department, Officer David Nieves, Jr., attorney Fabian Lima, and Gloria Michelle Hill, a language interpreter. He has also filed a Motion for Leave to Proceed In Forma Pauperis. (ECF No. 1.) For the following reasons, the Court will grant Cash leave to proceed in forma pauperis and will dismiss his Complaint.

         I. FACTS AND PROCEDURAL HISTORY

         A. Background for Cash's Claims

         Cash “is currently serving an aggregate sentence of life in prison without the possibility of parole” after being convicted in the Court of Common Pleas for Bucks County, Pennsylvania, of “first-degree murder, carrying a firearm without a license, simple assault, and multiple counts each of robbery, rape, involuntary deviate sexual intercourse, kidnapping, and false imprisonment.” Commonwealth v. Cash, No. 478 EDA 2015, 2015 WL 9584932, at *1 (Pa. Super. Ct. Dec. 28, 2015).[1] On July 11, 2016, Cash filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. See Cash v. Wetzel, Civ. Action No. 16-3758.[2] In his Petition, Cash argued, inter alia, that “[t]he Commonwealth withheld and affirmatively misrepresented material evidence regarding the actual benefits [the rape victim] was expecting and received in exchange for her testimony, in violation of Petitioner's due process rights under the Sixth and Fourteenth Amendments to the United States Constitution.” Mem. Supp. Pet. for Writ of Habeas Corpus at 19, Cash v. Wetzel, Civ. Action No. 16-3758 (ECF No. 1-2).

         Magistrate Judge Hart subsequently appointed the Federal Community Defender's Office to represent Cash in his habeas proceedings. Order, Cash v. Wetzel, Civ. Action No. 16-3758 (ECF No. 9). On December 22, 2016, counsel filed a Motion for Discovery, seeking access to the victim's “so-called ‘alien file, ' maintained by the federal government, which likely contains previously undisclosed evidence regarding [the victim's] cooperation with authorities and the benefits she received for it.” Mem. Supp. Mot. for Discovery at 2, Cash v. Wetzel, Civ. Action No. 16-3758 (ECF No. 11-1). Counsel sought this information “in aid of [Cash's] claim that the Commonwealth violated his due-process rights when it suppressed and misled regarding evidence of the aid it supplied to [the victim].” Id. at 1. By Order entered on January 19, 2017, Magistrate Judge Hart granted the Motion for Discovery. Order, Cash v. Wetzel, Civ. Action No. 16-3758 (ECF No. 17).

         Two months later, counsel filed a Motion to Compel Production of Documents, arguing that DHS had refused to provide the victim's file “or even acknowledge its existence.” Mem. Supp. Mot. to Compel at 1, Cash v. Wetzel, Civ. Action No. 16-3758 (ECF No. 20-1). Counsel requested that the Court order DHS to disclose the file or, alternatively, “to turn over the file to the Court, so that it may perform an in camera review for potentially relevant material.” Id. DHS, as a non-party to the habeas proceedings, filed an opposition, arguing that “a federal statute prohibits and penalizes the disclosure [Cash] seeks and there is no applicable statutory exception.” Mem. Opp. Mot. to Compel at 4, Cash v. Wetzel, Civ. Action No. 16-3758 (ECF No. 22).

         On May 22, 2017, Magistrate Judge Hart entered a Report and Recommendation in which he recommended that the Motion to Compel be denied. Report and Recommendation at 1, Cash v. Wetzel, Civ. Action No. 16-3758 (ECF No. 30). Cash, through counsel, filed objections to the Report and Recommendation on June 7, 2017. Objections, Cash v. Wetzel, Civ. Action No. 16-3758 (ECF No. 31). The objections have yet to be ruled on because on June 23, 2017, counsel filed a Motion to Stay and Hold Proceedings in Abeyance pending the outcome of a state Post-Conviction Relief Act (“PCRA”) petition that Cash had filed in the Court of Common Pleas for Bucks County. Cash v. Wetzel, Civ. Action No. 16-3758 (ECF No. 36). By Order entered on July 17, 2017, Magistrate Judge Hart granted the Motion to Stay and Hold Proceedings in Abeyance and directed that the matter be placed in civil suspense pending the disposition of Cash's PCRA petition. Order, Cash v. Wetzel, Civ. Action No. 16-3758 (ECF No. 40).

         B. Cash's Allegations

         In the instant civil action, Cash alleges that on or about August 25, 2009, Hill, the language interpreter, requested that Officer Nieves “fill out a U-Nonimmigrant Certification Form I-918 Supplement B on behalf of [the witness].” (Compl. at 2.) Officer Nieves agreed to do so, and received the Form I-918 Supplement B from attorney Lima on or about September 7, 2009. (Id.) He filled out the form and returned it to Lima. (Id.) On October 28, 2009, Lima “filed a U-Nonimmigrant Petition with the required Form I-918 Supplement B, U-Nonimmigrant Status Certification attached on behalf of” the witness. (Id.) The petition was filed “with the United States Customs and Immigration Services (USCIS), and was approved in April 2010.” (Id.) According to Cash, DHS processed the petition “without conducting [its] own review to confirm [the victim's] eligibility via [its] own statutes and policies.” (Id. at 3-4.) He also argues that its failure to do so “coupled with Defendants Nieves and Hill's conspiratorial acts allowed [the victim] to be able to submit a [petition] that did not reflect her illegal entry into the United States, and/or her history of prostitution, as Defendant Lima testified to on April 22, 2014.” (Id. at 4.) Cash further asserts that DHS, Kelly, Nielsen, Nieves, Hill, and Lima conspired to commit visa fraud by submitting a falsified petition on behalf of the victim. (Id. at 4-5.)

         Cash also references the fact that on May 24, 2017, Magistrate Judge Hart issued a Report and Recommendation in Cash's habeas proceedings, recommending that Cash's Motion to Compel be denied. (Id. at 3.) Subsequently, on August 1, 2017, Officer Nieves testified during a hearing held on Cash's PCRA petition in the Court of Common Pleas for Bucks County. (Id.) He testified that even though he was “not . . . a person identified in the DHS/USCIS [i]nstructions for I-918, Supplement B, U-Nonimmigrant Status Certification authorized to fill out said [form] he filled out said certification unbeknownst to his superiors and the prosecuting assistant district attorney at the behest of Defendant Hill and returned the only copy to Defendant Lima.” (Id.) He also testified that the Bensalem Township Police Department “does not have a designated individual to fill out U-Nonimmigrant Certifications, ” despite the fact that the instructions require them to have such. (Id.)

         Cash contends that Kelly and Nielsen have denied him access to the courts by refusing to disclose the victim's “alien file” and by “failing to implement a preventative and corrective disclosure process when DHS and USCIS's U-Nonimmigrant process is abused.” (Id. at 5.) He further asserts that Officer Nieves and the Bensalem Township Police Department violated his rights through deliberate indifference and abuse of process when Officer Nieves filled out the Form I-918 Supplement B without authorization and when the Bensalem Township Police Department “failed to designate a person in a supervisory role to issue U-Nonimmigrant Status Certification on behalf of [its] agency.” (Id.) Cash argues that DHS, Kelly, and Nielson also abused process by “making the U-Nonimmigrant process available to State/Local law enforcement officials absent any qualification requirements . . . and/or any internal screening process to safeguard” his constitutional rights. (Id. at 5-6.) He further contends that all Defendants conspired to violate his rights by “facilitating and approving an unauthorized issued Form I-918 Supplement B . . . which ultimately was an abuse of process and consequently [denied him] access to the court.” (Id. at 6.) Finally, Cash claims that the actions of Kelly, Nielsen, Nieves, Hill, and Lima have “caused [him] anxiety, depression and paranoia constituting intentional infliction of emotional distress.” (Id.)

         As relief, Cash requests that the Court issue a declaratory judgment stating that: (1) the Defendants' actions violated his rights under the First, Sixth, Eighth, and Fourteenth Amendments and also constituted a conspiracy; (2) the actions and inactions of Kelly, DHS, Officer Nieves, and the Bensalem Township Police Department violated his rights under the First, Sixth, Eighth, and Fourteenth Amendments and constitute an abuse of process; (3) the refusal of DHS, Kelly, and Nielsen to disclose the victim's “alien file” and their “failure to enact policies to remedy an abuser of [the] U-Nonimmigrant process” violated his rights under the First, Sixth, Eighth, and Fourteenth Amendments and constitute denial of access to the courts; and (4) the Defendants' actions constitute intentional infliction of emotional distress. (Id. at 6-7.) Cash also seeks an injunction that: (1) orders Nielsen and DHS to disclose a copy of the victim's “alien file” to him and/or his counsel in his habeas proceeding and to implement “an agency policy to prevent and remedy any/all abuses of the I-918 U-Nonimmigrant process, ” and (2) orders Officer Nieves and the Bensalem Township Police Department to “[i]mplement a policy to correspond with the instructions for Form I-918 Supplement B, U-Nonimmigrant Status Certifications, ” and to designate “a specific person in a supervisory role to issue [such] certifications.” (Id. at 7.) Finally, Cash seeks compensatory and punitive damages. (Id.)

         II. ...


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