Rudolph Carneira v. USCIS District Director Southeast Region

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 3, 2021
• Docket: 20-13298
• Status: Unpublished

Opinion

USCA11 Case: 20-13298 Date Filed: 08/03/2021 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13298 Non-Argument Calendar ________________________

D.C. Docket No. 6:19-cv-00421-PGB-EJK

RUDOLPH CARNEIRO, TATIANA DINIZ-PEREIRA,

Plaintiffs-Appellants,

versus

USCIS DISTRICT DIRECTOR SOUTHEAST REGION, Official capacity, USCIS DIRECTOR, Official capacity, ATTORNEY GENERAL OF THE UNITED STATES, Official capacity, SECRETARY OF HOMELAND SECURITY, Official capacity,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(August 3, 2021) USCA11 Case: 20-13298 Date Filed: 08/03/2021 Page: 2 of 6

Before JILL PRYOR, LUCK, and EDMONDSON, Circuit Judges.

PER CURIAM:

Plaintiffs Rudolph Carneiro and Tatiana Diniz-Pereira, proceeding pro se,1

appeal the district court’s dismissal -- for lack of subject-matter jurisdiction -- of

their civil action brought under Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971). No reversible error has been shown; we

affirm.

Briefly stated, this case arises out of immigration proceedings in which

Plaintiffs sought to adjust Diniz-Pereira’s immigration status. Carneiro (a United

States citizen) and Diniz-Pereira (a native and citizen of Brazil) married in April

2017. In September 2017, Carneiro filed with the United States Citizenship and

Immigration Services (“USCIS”) a Form I-130 (Petition for Alien Relative). In

that petition, Carneiro sought to have Diniz-Pereira classified as his spouse under

section 201(b) of the Immigration and Nationality Act (“INA”). In conjunction

with Carneiro’s visa petition, Diniz-Pereira filed a Form I-485 (Application to

1 We read liberally briefs filed by pro se litigants. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). 2 USCA11 Case: 20-13298 Date Filed: 08/03/2021 Page: 3 of 6

Register Permanent Residence or Adjust Status) seeking to adjust her immigration

status under section 245 of the INA.

The USCIS denied both applications. The USCIS found insufficient

evidence to establish that Diniz-Pereira’s earlier marriage had been dissolved fully

when Carneiro and Diniz-Pereira married. As a result, the USCIS concluded that

Carneiro’s marriage to Diniz-Pereira was invalid. The USCIS thus deemed Diniz-

Pereira ineligible for adjustment of status.

Plaintiffs -- on behalf of themselves and their two minor children -- later

filed this civil action under Bivens. Plaintiffs alleged that the denial of their

applications for adjustment-of-status violated their Fourteenth Amendment right to

equal protection. Plaintiffs named as defendants the USCIS District Director for

the Southeast Region, the USCIS Director, the Attorney General for the United

States, and the Secretary of Homeland Security, all in their official capacities.

The magistrate judge issued a report and recommendation (“R&R”),

recommending that the district court dismiss without prejudice Plaintiffs’

complaint. The magistrate judge first determined that -- as non-lawyers --

Plaintiffs were unable to represent their minor children in this civil action. The

magistrate judge thus recommended dismissing without prejudice claims asserted

3 USCA11 Case: 20-13298 Date Filed: 08/03/2021 Page: 4 of 6

on behalf of Plaintiffs’ children. 2 The magistrate judge next concluded that

Plaintiffs’ official-capacity Bivens claim was barred by sovereign immunity. The

magistrate judge determined further that no Bivens liability would extend to

Plaintiffs’ constitutional claim. Thus, permitting Plaintiffs to amend their

complaint to add a claim against Defendants in their individual capacities would be

futile. The magistrate judge recommended dismissing without prejudice Plaintiffs’

complaint for lack of subject matter jurisdiction.

Plaintiffs filed objections to the R&R. The district court overruled

Plaintiffs’ objections, adopted the R&R, and dismissed without prejudice

Plaintiffs’ complaint.

We review de novo a district court’s dismissal for lack of subject matter

jurisdiction. See Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1188

(11th Cir. 2011).

“Absent a waiver, sovereign immunity shields the [f]ederal [g]overnment

and its agencies from suit,” and “[t]he terms of the federal government’s consent to

be sued in any court define that court’s jurisdiction to entertain the suit.” JBP

Acquisitions, LP v. United States ex rel. FDIC, 224 F.3d 1260, 1263 (11th Cir.

2000) (quotations omitted).

2 On appeal, Plaintiffs raise no objection to the dismissal of claims made on behalf of their minor children. 4 USCA11 Case: 20-13298 Date Filed: 08/03/2021 Page: 5 of 6

In Bivens, the Supreme Court recognized a cause of action against federal

officials for violation of federal constitutional rights. See Bivens, 403 U.S. at 395-

97. A Bivens claim may be brought against federal officials only in their

individual capacity, not in their official capacity. See Corr. Servs. Corp. v.

Malesko, 534 U.S. 61, 70-72 (2001). Nor may a Bivens claim be brought against a

federal agency. See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994).

Because no official-capacity cause of action exists under Bivens, the district

court dismissed properly Plaintiffs’ official-capacity claims against Defendants.

Generally speaking, a pro se plaintiff must be given at least one chance to

amend the complaint before dismissal. See Bank v. Pitt, 928 F.2d 1108, 1112

(11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp.,

314 F.3d 541, 542 (11th Cir. 2002) (en banc) (holding that this rule does not apply

to counseled plaintiffs). A district court need not grant leave to amend, however, if

amendment would be futile. Id. Leave to amend is futile if the complaint as

amended would still be subject to dismissal. See L.X. ex rel. Hernandez v.

Peterson, 982 F.3d 1323, 1332 (11th Cir. 2020).

Here, the district court considered whether Plaintiffs could survive dismissal

if they were allowed to amend their complaint to include individual-capacity

claims against Defendants under Bivens. The district court concluded properly

5 USCA11 Case: 20-13298 Date Filed: 08/03/2021 Page: 6 of 6

that the answer was “no.” Because the INA provides an adequate alternative

process for protecting Plaintiffs’ constitutional rights, an extension of Bivens

liability to Plaintiffs’ constitutional claim would be inappropriate. For

background, see Alvarez v. United States Immigration & Customs Enf’t, 818 F.3d

1194 (11th Cir. 2016) (declining to extend Bivens to a constitutional claim arising

in the immigration context).

AFFIRMED.