In light of these principles, we think that the district court should
not have dismissed Platsky's complaints without affording him leave to replead.
Generally, "[i]n a suit against the United States, there cannot be a right to
money damages without a waiver of sovereign immunity." United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47
L.Ed.2d 114 (1976). Platsky,
however, premised his actions on Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). "Bivens
established that the victims of a constitutional violation by a federal agent
have a right to recover damages against the official in federal court despite
the absence of any statute conferring such a right." Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 1471, 64 L.Ed.2d
15 (1980). As the district court recognized, even in Bivens actions
jurisdictional limitations permit a plaintiff to sue only the federal government
officials responsible for violating the plaintiff's constitutional rights; a
plaintiff cannot sue the agency for which the officials work. Mack v. United States, 814 F.2d 120, 122-23 (2d Cir.1987). Leonhard v. United States, 633 F.2d 599, 618 n. 27 (2d
Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981).
Instead of simply dismissing the complaints for naming federal agencies as the
defendants, it would have been appropriate for the district judge to explain the
correct form to the pro se plaintiff so that Platsky could have amended his
We think that Platsky
should have a chance to state his claim more clearly. It is not " 'beyond doubt
that the plaintiff can prove no set of facts in support of his claim[s],' " Haines v. Kerner, 404 U.S. at 521, 92 S.Ct. at 595, and
therefore we hold that the better course would have been for the district court,
in dismissing Platsky's pro se complaints, to grant him leave to file amended
pleadings. Elliott v. Bronson, 872 F.2d at 22. We have instructed Platsky that his complaint must set
out, with particularity and specificity, the actual harms he suffered as a
result of the defendants' clearly defined acts.
Platsky v. C.I.A., 953 F.2d 26
(C.A.2 (N.Y.), 1991)
> To: email@example.com
> From: bear@...
> Date: Fri, 4 Sep 2009 23:54:26 +0000
> Subject: [tips_and_tricks] StoneCutterAl just joshing us...
> I searched all federal courts for this quotes and citation:
> "In re Platsky: court errs if court dismisses the pro se litigant without instruction of how pleadings are deficient and how to repair pleadings."
> and it did not turn up. Bear
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