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StoneCutterAl just joshing us...

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  • Gary D
    In light of these principles, we think that the district court should not have dismissed Platsky s complaints without affording him leave to replead.
    Message 1 of 2 , Sep 4, 2009
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      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
      pleadings accordingly.

      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)

      Best Gary

      > To: tips_and_tricks@yahoogroups.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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