Lyttle v. The United States of America et al, No. 4:2011cv00152 - Document 80 (M.D. Ga. 2012)

Court Description: ORDER granting and part, denying in part 47 Motion to Dismiss filed by JOHN T MORTON, The United States of America, Thomas G. Snow, JANET NAPOLITANO, ERIC HOLDER; granting in part, denying in part 49 Motion to Dismiss filed by Brian Keys, Raymond A. Simonse, David Collado, MICHAEL MOORE, James T. Hayes, Tracy Moten, Marco Mondragon, Charles Johnston; finding as moot 61 Motion for Leave to File filed by Mark Daniel Lyttle; finding as moot 62 Motion for Leave to Correct filed by Mark Daniel Lyttle. Ordered by Judge Clay D. Land on 03/31/2012. (CGC)

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THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION MARK DANIEL LYTTLE, * Plaintiff, * vs. * UNITED STATES OF AMERICA, et al., * CASE NO. 4:11-CV-152 (CDL) * Defendants. * O R D E R After States being detained Immigration Department of (“Lyttle”), capacity, a was and flown fifty-one days Customs Enforcement Security Homeland United for (“ICE”), States to citizen Hidalgo, the Division Mark United of the Daniel Lyttle diminished with Texas, by mental transported to the Mexican border, forced to disembark, and sent off on foot into Mexico with only three dollars in his pocket. Wearing his prison-issued jump suit from the Stewart Detention Center, a privately managed ICE facility in Georgia, and speaking no Spanish, Lyttle wandered around Central America for 125 days, sleeping in the streets, staying in shelters, and being imprisoned and abused in Mexico, Honduras, and Nicaragua because he had no identity or proof of citizenship. Ultimately, Lyttle found his way to the United States Embassy in Guatemala, where an Embassy employee helped him contact his family in the United States to arrange for his return home. In his Complaint, Lyttle alleges that ICE employees detained him without probable cause and subsequently deported him unlawfully to Mexico, knowing that he was a United States citizen with a diminished mental capacity.1 Lyttle seeks damages from the responsible ICE officers in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau 1 It is undisputed that Lyttle is a U.S. citizen. Since “deportation” contemplates the removal of a non-citizen, it may be more precise to describe Lyttle’s removal as “banishment,” a process with ancient origins as described by Judge Pardee 105 years ago: “Ostracised. The word has no place in the vocabulary of American jurisprudence. It is derived from the Greek word ‘ostrakon,’ a shell, and, when the fickle populace of Athens desired to get rid even of their bravest and best, they voted with the ostrakon, and expelled him from the borders of the City of the Violet Crown. It is related of Aristides, that great Athenian statesman and one of the noble generals who fought against the countless hordes of Persians: ‘Where the mountains look on Marathon, And Marathon looks on the sea,’ that a jealous rival was attempting to procure his banishment by ostracism. A rustic citizen happened to be near Aristides himself in the public assembly which was about to decree his banishment, and turning to him, without knowing who he was, asked him how to write the name of Aristides upon the shell with which he was going to vote. ‘Has Aristides injured thee?’ inquired the great Athenian. ‘No,’ answered the voter, ‘but I am tired of hearing him called “Aristides the Just.”’ And Aristides was ostracised. But on fuller knowledge of his character his fellow citizens reversed the decree of banishment.” Greene v. United States, 154 F. 401, 416 (5th Cir. 1907) (Pardee, J., dissenting) (quoting trial judge Emory Speer’s jury charge). Although Lyttle may be no Aristides, he claims his banishment was just as arbitrary. The issue presented today is whether Lyttle, a U.S. citizen, has any legal remedy to vindicate his right to be free from such banishment, or in the language of Judge Pardee and Judge Speer, what remedy does a citizen of the United States have when his own country wrongfully “writes his name upon the ostrakon.” 2 of Narcotics, 403 U.S. 388 (1971), for violating his constitutional right to be free from unreasonable seizure under the Fourth Amendment and his rights to due process and equal protection under the Fifth Amendment. claim against Hayes and several Lyttle also asserts a high-ranking government officials under Section 504 of the Rehabilitation Act of 1973, 28 U.S.C. § 794. He seeks injunctive relief against several high-ranking government officials in their official capacities to prevent his future detention and deportation. Finally, Lyttle claims he is entitled to money damages from the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 to 2680, contending that the conduct by the ICE officers amounted to false imprisonment, negligence, and intentional infliction of emotional distress.2 The Hayes, individual Charles federal Johnston, defendants, Brian Keys, David Collado, Michael James Moore, Marco Mondragon, Tracy Moten, and Raymond Simonse (collectively, “ICE Defendants”), filed a motion to dismiss the claims against them: claims 1 through 3, asserted against all ICE Defendants, and claim 4, asserted against Hayes 2 (ECF No. 49). The ICE Specifically, Lyttle sued the United States, four official capacity federal defendants, eight individual capacity federal defendants, ICE Does 1-10, United States Public Health Service Does 1-10, the Corrections Corporation of America, and Georgia Does 1-10. Lyttle subsequently filed a consent motion dismissing Defendant Corrections Corporation of America with prejudice (ECF No. 78), and the Court granted the motion (ECF No. 79). 3 Defendants seek dismissal of Lyttle’s Bivens claims for failure to state a claim based on three contentions: (1) no cause of action exists conduct; under (2) the Bivens alleged and its progeny conduct does for not the alleged establish a constitutional violation; and (3) they are entitled to qualified immunity. Defendants Eric Holder, John Morton, Janet Napolitano, and Thomas Snow (collectively, “official capacity Defendants”) and the United States filed a motion as to the claims against them, seeking to dismiss claims 4 through 7 and 9, and seeking summary judgment as to claim 8 (ECF No. 47). The official capacity Defendants seek dismissal of Lyttle’s injunctive relief claims based in part on a lack of standing. And, the United States seeks dismissal of Lyttle’s FTCA claims for lack of subject matter jurisdiction and failure to state a claim. For the reasons discussed in the remainder of this Order, the Court dismisses the following claims: (1) the official capacity claims against James Hayes, Eric Holder, John Morton, Janet Napolitano, and Thomas Snow;3 (2) the individual capacity Bivens equal protection claims as to all Defendants against whom they are asserted; (3) the individual capacity Bivens Fifth Amendment due process claims against Defendants Johnston, Keys, 3 As discussed infra note 17, the Court construes claim 4 as being asserted against Hayes in his official capacity. 4 and Moore; Amendment and (4) the individual unreasonable seizure and Moore.4 capacity Bivens Fourth claims against Johnston, Keys, The following claims remain pending: (1) the Bivens Fifth Amendment due process claims against Defendants Collado, Moten, Mondragon, Amendment Simonse, unreasonable and Hayes; seizure (2) claims the Bivens against Fourth Defendants Collado, Moten, Mondragon, Simonse, and Hayes; (3) the Federal Tort Claims imprisonment, Act claims against negligence, the and United States intentional for false infliction of emotional distress.5 STANDARDS The United States and the official capacity Defendants seek dismissal of jurisdiction the FTCA pursuant claims to for Federal lack Rule of of subject Civil matter Procedure 12(b)(1) and alternatively for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The individual capacity Defendants seek to have the Bivens claims dismissed for 4 Accordingly, no claims remain against Defendants Johnston, Keys, and Moore. 5 The Court notes that Lyttle has alleged the following additional claims, which are not the subject of the pending motions to dismiss: (1) 42 U.S.C. § 1983 claims against Georgia Does 1-10; and (2) false arrest, false imprisonment, negligence, intentional infliction of emotional distress claims under Georgia law against Georgia Does 1-10. Lyttle also brought a FTCA negligence claim against the United States related to the medical care Lyttle received while detained (claim 8). The United States moved for summary judgment as to that claim, and the Court deferred ruling on the summary judgment motion until after ruling on the motion to dismiss. Minute Entry, Oct. 14, 2011, ECF No. 70. The Court terminates this motion so that the United States can re-file the motion once sufficient discovery has been conducted. 5 failure to state a claim under Rule 12(b)(6). The standards for these motions are as follows. I. Motion to Dismiss for Lack of Subject Matter Jurisdiction Defendants’ challenge to jurisdiction is a facial one which “require[s] the court merely to look and see if [the] plaintiff has sufficiently jurisdiction[.]” Cir. 1990) (internal alleged a basis of subject matter Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th (per curiam) quotation (second marks alteration omitted). To in original) survive such a challenge, “[a] complaint must contain ‘enough factual matter (taken as element. (11th true) to suggest’” required jurisdictional Rance v. D.R. Horton, Inc., 316 F. App’x 860, 862 Cir. Univ., each 2008) (per curiam) 495 F.3d 1289, 1295 (quoting (11th Watts Cir. v. 2007)). Fla. Int’l “‘It is sufficient if the complaint succeeds in identifying facts that are suggestive enough to render the element plausible.’” Id. (quoting Watts, 495 F.3d at 1296). II. Motion to Dismiss for Failure to State a Claim When considering a 12(b)(6) motion to dismiss, the Court must accept complaint as and true all facts limit its consideration exhibits attached thereto. set forth to in the the plaintiff’s pleadings and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). The Court can properly consider documents 6 referred to in the complaint and not attached thereto without converting a 12(b)(6) motion to dismiss into a summary judgment motion if the documents are central to the plaintiff’s claim and the authenticity is not challenged. Speaker v. U.S. Dep’t of Health & Human Servs., 623 F.3d 1371, 1379 (11th Cir. 2010). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). The complaint must include sufficient factual allegations “to raise a right to relief above the speculative level.” 550 U.S. at 555. “[A] formulaic recitation of the elements of a cause of action will not do[.]” must contain expectation factual that Twombly, allegations discovery will Id. that Although the complaint “raise reveal a evidence reasonable of” the plaintiff’s claims, id. at 556, “Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because ‘it strikes a savvy judge that actual proof of those facts is improbable,’” Watts, 495 F.3d at 1295 (quoting Twombly, 550 U.S. at 556). FACTUAL ALLEGATIONS Accepting the allegations in Lyttle’s Complaint (ECF No. 1) as true and construing all reasonable inferences in his favor as required at this stage of the proceedings, Iqbal, 129 S. Ct. at 7 1949, the Court finds that Lyttle has alleged the following facts.6 Lyttle is Rican descent. a thirty-four-year-old U.S. citizen He was born in North Carolina. Certificate of Live Birth, ECF No. 1-1. of Puerto Compl. Ex. A, Lyttle was adopted in 1985, Compl. Ex. B., Final Judgment of Adoption, ECF No. 1-2, and raised primarily in North Carolina. Lyttle did not receive a high school education and is barely literate. mental disabilities, including cognitive spent time in psychiatric hospitals. He suffers from disorders, and has He has difficulty with conceptualization, memory, and visual processing, and he has a diminished capacity to comprehend everyday events. Lyttle has also been diagnosed with bipolar disorder and takes medication to control this disorder and the seizures associated with it. I. Lyttle’s Arrest and Detention in North Carolina In 2008, Lyttle was being treated at Cherry Hospital, a state psychiatric hospital in Goldsboro, North Carolina. During treatment, Lyttle was charged with inappropriately touching a female orderly and arrested for misdemeanor assault. Lyttle was sentenced to 100 days at Neuse Correctional Institution in North 6 Throughout this Order, the Court states that various Defendants engaged in specific conduct that is offensive to the Constitution. The Court emphasizes that such conduct is only alleged to have occurred, and as the action proceeds, Plaintiff must ultimately prove these allegations. 8 Carolina. Lyttle began serving his sentence on August 22, 2008, and he was housed in the mental health ward. On September 2, 2008, North Carolina ICE agents Robert Kendall and Dashanta Faucette took Lyttle into custody from the North Carolina Department of Corrections and interrogated him without a witness present. mental disorders. The agents were aware of Lyttle’s Faucette’s interview notes state that Lyttle’s name was presumed to be Jose Thomas and the name Mark Daniel Lyttle was an alias. She further noted Lyttle was a citizen of Mexico who entered the United States at age three without permission. assisted living The notes state his home address as an facility in Elizabeth City, North Carolina. After the interview, the agents instructed Lyttle to sign his name on the notes form without permitting him to review the contents of the notes or disclosing the contents to him. signed his real name, Mark Lyttle. Lyttle On a separate form, Faucette wrote that Lyttle’s mother was from Kentucky. In the category asking for details regarding whether Lyttle was eligible for a special status “Bipolar.” program, she wrote “Mental Illness” and Compl. ¶ 43, ECF No. 1. ICE agents then conducted a search of the U.S. Department of Justice Federal Bureau of Investigation Criminal Information Services Division and other databases. Justice The searches revealed records showing Lyttle was a U.S. citizen with a valid 9 Social Security number. The records made no reference to the name Jose Thomas. On September 5, 2008, ICE agent Dean Caputo signed a Warrant for Arrest of Alien (“Warrant”) authorizing any officer to take Lyttle into custody and process him for removal as an alien in Caputo the also country signed in a violation Notice of of the immigration Intent to laws. Issue Administrative Removal Order (“Notice of Intent”). Final The Notice of Intent stated that it had been determined Lyttle was a not a U.S. citizen deportable but rather pursuant to a 8 native U.S.C. of § Mexico and deemed 1227(a)(2)(A)(iii) as him an “alien who is convicted of an aggravated felony.” Compl. ¶¶ 46- 47. Determination Caputo then signed a Notice of Custody placing Lyttle in the custody of the Department of Homeland Security (“DHS”) pending a final determination by an immigration judge. Kendall Corrections that notified Lyttle the must North remain Carolina in Department custody criminal sentence because he was deportable. after of his The Notice of Intent and Warrant were served on Lyttle on September 8, 2008. Lyttle alleges that Faucette coerced and manipulated Lyttle into signing the Notice of Intent. his legal right to a removal By signing, Lyttle waived hearing before an immigration judge, falsely acknowledged he was a Mexican citizen, and agreed to be deported to Mexico. He did not understand the document or 10 the implications of signing it. No reading or understanding the document. coerced Lyttle to sign Custody Determination. an one assisted Lyttle in Faucette also allegedly acknowledgement of the Notice of The acknowledgement identified Lyttle as Jose Thomas, but Lyttle signed his name as Mark Lyttle. II. Lyttle’s Detention in Georgia Awaiting Removal The North Carolina Department of Corrections was scheduled to release Lyttle at the end of his criminal sentence on October 26, 2008. On October 28, 2008, however, Lyttle’s detention was continued, and he was transferred into ICE custody Carolina. He was then in North transported to the Stewart Detention Center (“SDC”) in Lumpkin, Georgia. ICE Detention and Removal Operations and Corrections Corporation of America operate SDC. A. Interrogation and Recommendation ICE agent David Collado interrogated Lyttle on November 3, 2008 and recorded Lyttle’s Statement in Affidavit Form. responses on a Record of Sworn During the interrogation, Lyttle stated unequivocally that he was a U.S. citizen born in North Carolina and Compl. ¶ 58. “repeatedly denied being a Mexican citizen.” Despite Lyttle’s answers, Collado attached an un- served Notice of Intent to Issue Final Administrative Removal Order to the interrogation form stating Lyttle was deportable because of his criminal convictions. 11 On November 5, 2008, Collado filled out an I-213 Record of Deportable/Inadmissible Alien, noting that Lyttle had “a bipolar mental illness condition.” receive a copy citizenship, of this Collado Id. ¶ 60. form. Lyttle did not review or Because recommended Lyttle Lyttle be removal hearing before an immigration judge. claimed referred U.S. for a That same day, ICE agent Tracy Moten issued Lyttle a Notice to Appear at removal proceedings. The Notice to Appear falsely alleged that Lyttle was not a U.S. citizen or national. Rather, it alleged he was a citizen of Mexico, even though Lyttle had affirmatively claimed he was a U.S. citizen and there was a complete lack of independent evidence supporting the allegation that he was a citizen of Mexico. B. Id. ¶ 62. The Hayes Memo On February 13, 2008, the U.S. House of Representatives Judiciary Committee sponsored a hearing on related to the deportation of U.S. citizens. 2008, James Hayes, Director of the Office ICE procedures On November 6, of Detention and Removal Operations (“DRO”), issued a memorandum (“Hayes Memo”) to all ICE Field Office Directors regarding investigating claims of U.S. citizenship. reporting and Id. ¶ 63; Reply Mem. in Supp. of U.S.’ &Official Capacity Defs.’ Mot. to Dismiss Ex. 12 M, Mem. from James T. Hayes, Jr. to Field Office Directors (Nov. 6, 2008), ECF No. 64-1 [hereinafter Hayes Memo].7 The Hayes Memo set forth notification guidelines for ICE “officers who encounter an individual who they have reason to believe is in the United States in violation of law . . . but who claims U.S. citizenship.” Director “shall make the Hayes Memo 1. appropriate The Field Office notification to DRO headquarters . . . [and] ensure that all affirmative claims to U.S. citizenship made by any individual encountered within their area of responsibility investigated.” interviews of are Id. at 1-2. detainees appropriately reported and The Memo further requires that claiming citizenship be recorded as sworn statements, include questions needed to complete Form I213, and include questions to garner information for a full investigation of the individual’s citizenship. “investigation may include vital records Id. at 2. searches, interviews, and other appropriate investigative measures.” The family Id. The Hayes Memo provides that where the detainee claims U.S. citizenship before formal removal proceedings, the Field Office Director must consult with the DRO, and the local Office of Chief Counsel to “determine whether sufficient evidence exists 7 On November 19, 2009, after the events giving rise to this action, DHS Assistant Secretary John Morton issued a memorandum superseding the Hayes Memo and stating that, “In all cases, any uncertainty about whether the evidence is probative of U.S. citizenship should weigh against detention.” Compl. ¶ 74. 13 to place that individual into removal proceedings.” claim of citizenship following a Notice to Appear Id. A requires consultation between the Field Office Director and Office of Chief Counsel, and if necessary the Office of DRO, to determine the proper course of action. Id. Field Office Directors “shall ensure that all DRO employees in their area of responsibility . . . understand and adhere to this policy.” C. Id. Lyttle’s Detention After Issuance of the Hayes Memo ICE agent Marco Mondragon interrogated Lyttle on November 12, 2008. He recorded Lyttle’s sworn responses on a Record of Sworn Statement in Affidavit Form. Lyttle told disregarded Mondragon Lyttle’s he was claim a of During the interrogation, U.S. citizen. citizenship, Mondragon ignored the independent evidence of Lyttle’s U.S. citizenship, and failed to consider Lyttle’s obvious mental disabilities and how they affected his ability to comprehend the gravity of the situation. Mondragon also “struck through” some of Lyttle’s answers and replaced them with different answers, “creating a conflicting, inconsistent and factually inaccurate record.” Compl. ¶ 76. Lyttle alleges that Mondragon ultimately coerced and manipulated Lyttle into signing an affidavit that falsely stated his name was Jose Thomas and that his father was a Mexican citizen also named Jose Thomas. Id. ¶¶ 76-78. 14 While diabetic in custody, medication. Lyttle On required November 17, Glucophage, 2008, sixty Glucophage pills in a suicide attempt. a Lyttle daily ingested He was rushed to the Emergency Room at Doctors Hospital in Columbus, Georgia. The hospital treated him for toxic drug overdose, held and monitored him for several days, and then returned him to SDC.8 III. Lyttle’s Removal from the United States On December 9, 2008, Immigration Judge Cassidy (“the IJ”) ordered that Lyttle be removed to Mexico. At the hearing before the IJ, Lyttle did not have an opportunity to present evidence or challenge the evidence of Mexican citizenship brought against him. Despite Lyttle’s mental disabilities, the IJ did not assess whether Lyttle was competent to proceed unrepresented in his removal proceedings or waive his right to counsel. The IJ did not determine whether safeguards were necessary to ensure Lyttle received a fair hearing. Construing these allegations in Lyttle’s favor, it is reasonable to infer that the IJ simply rubber-stamped the false conclusion and unsupported record constructed by North Carolina ICE and the Georgia ICE Defendants that stated Lyttle was a citizen of Mexico. 8 The facts surrounding Lyttle’s attempted suicide and the SDC’s dispensation of his diabetic medication are not relevant to the pending motions addressed in this Order. These facts give rise to Lyttle’s claim 8, which is subject to the United States and official capacity Defendants’ motion for summary judgment (ECF No. 47), which the Court deferred ruling on until after it rules on the motions to dismiss. Minute Entry, Oct. 14, 2011, ECF No. 70. 15 After the IJ’s order and prior to Lyttle’s deportation, on December 12, 2008, “Defendant ICE Field Office Director Raymond Simonse or an ICE Doe Defendant performed an additional criminal background Carolina search and of Mr. Virginia, Lyttle’s and various federal agencies.” state pulled records electronic Compl. ¶ 92. from North records from This search was the first such search in the record conducted by any Georgia ICE officer. This search revealed numerous references to Lyttle’s U.S. citizenship and Social Security number. this evidence of Lyttle’s U.S. Notwithstanding citizenship and with no additional follow-up or referral to one of his superiors, three days later, Simonse issued a Warrant of Removal/Deportation that declared Lyttle removable by order of an immigration judge. ICE personnel put Lyttle on a plane to Hidalgo, Texas on December 18, 2008. “When the plane touched down, Mr. Lyttle was transported to the Mexican border, forced to disembark and sent off on foot into Mexico, jumpsuit from [SDC].” still Id. ¶ 101. wearing the prison-issued Lyttle did not speak Spanish, was unfamiliar with Mexico, and had only three dollars. Eight days later, Lyttle attempted to cross back into the United States at the Hidalgo, Texas border crossing. The Customs and Border Patrol agents at Hidalgo detained Lyttle. Lyttle informed the agents he was a U.S. citizen from North Carolina. The agents then interrogated him in Spanish. 16 Because he did not questioning. speak Spanish, Lyttle did not respond to the The agents found a computerized record of Lyttle’s deportation and described Lyttle as a “prior deported alien.” Id. ¶ 108. They determined he would be processed for removal and “returned to Mexico in the custody of Mexican Immigration.” Id. Lyttle never received a copy of the expedited removal form, did not have an opportunity to review the form or have it read to him, and did not have an immigration judge review his status at that time. The agents turned Lyttle over to Mexican Immigration. Over the next 115 days, Lyttle wandered through Central America. In Mexico, missionaries picked him up, arranged for his transport to Mexico City, and told him to find the U.S. Embassy. Mexican Immigration officials arrested Lyttle in Mexico City and placed him on a bus in handcuffs for deportation to Honduras because he could not prove Mexican citizenship. Honduran Immigration officials arrested Lyttle and placed him in an immigration camp. He was ultimately transferred from the camp to a criminal jail, “where he suffered severe physical and mental abuse by the guards of the prison.” Id. ¶ 113. After public pressure and a media campaign exposing the harsh treatment of Lyttle, he was released from the Honduran jail. Lyttle was later incarcerated in Nicaragua because he could not produce evidence of his citizenship or identity. 17 Finally, Lyttle arrived in Guatemala City. Lyttle’s Guatemala and located the U.S. An employee at the embassy used the names of brothers and his birthplace to brothers, who serve in the U.S. military. for copies Embassy in of Lyttle’s adoption locate Lyttle’s The employee arranged records to be sent to the embassy and then printed and issued him a U.S. passport within twenty-four hours. IV. Lyttle’s Return to the United States Lyttle’s family wired him funds airplane ticket to the United States. boarded a plane for Nashville, and customs in Atlanta, Tennessee. ICE him an On April 22, 2009, Lyttle Tennessee, Lyttle landed in Atlanta, Georgia. through purchased agents On his way to As Lyttle passed Charles Johnston and Brian Keys detained and interrogated Lyttle based on a record search that identified criminal history.” Lyttle as an alien with “a lengthy Id. ¶ 119. Lyttle claimed U.S. citizenship to Johnston and Keys and told the agents story of documented his deportation Lyttle’s in Central claims. America. Johnston The discredited Lyttle’s passport and found him inadmissible without the proper papers to be admitted into the United States. Copies Lyttle’s adoption and passport were faxed to the agents. of The next day, without verifying Lyttle’s claims of U.S. citizenship, attempting to locate family, or substantiating the validity of 18 the adoption papers or passport issued by the U.S. Embassy in Guatemala, ICE agents Johnston removal order against Lyttle. Removal native alleged and falsely Lyttle citizen presented of was and issued an expedited The Notice and Order of Expedited not a Mexico. himself Keys as U.S. citizen Further, a U.S. it but stated, citizen by passport issued by the U.S. Embassy in Guatemala.” Lyttle was detained in Atlanta. rather a “Lyttle using the Id. ¶ 126. His family, expecting him to arrive in Tennessee, hired an attorney who located Lyttle and demanded his release. On April 24, 2009, ICE released Lyttle. On April 28, 2009, DHS filed a motion to terminate the deportation efforts on the basis that “it was determined that [Lyttle] was not a Mexican citizen and is, in fact, a citizen of the United Security’s States.” Mot. [hereinafter suffered and to DHS Compl. Ex. Terminate Mot.]. continues Department Proceedings DHS’ to C, motion suffer was 4, ECF granted. grievous psychological injury” from his deportation. V. ¶ of Homeland No. 1-3 “Lyttle physical and Compl. ¶ 130. The North Carolina Action Lyttle filed an action in the United States District Court for the Eastern District of North Carolina asserting causes of action similar to the ones asserted in this action based on the conduct of ICE employees that occurred in North Carolina. Lyttle v. United States, No. 4:10-CV-142-D (E.D.N.C). 19 See While the claims overlap somewhat, the acts giving rise to the present action in this Court relate to the conduct that occurred after ICE transferred Lyttle from North Carolina to Georgia. DISCUSSION The Court divides this Discussion into two sections. In section I, the Court addresses Lyttle’s constitutional Bivens claims against capacities. In the ICE section Defendants II, the in Court their individual addresses Lyttle’s official capacity claims for injunctive relief and Lyttle’s tort claims for monetary damages against the United States under the FTCA. I. Lyttle’s Bivens Claims Against the ICE Defendants in Their Individual Capacities To avoid dismissal of his claims against the ICE Defendants in their individual capacities, Lyttle must have sufficiently alleged facts demonstrating a constitutional violation, facts showing that the ICE Defendants are not protected by qualified immunity, and facts that support the availability of a damages remedy for the alleged constitutional violations. Lyttle seeks monetary damages pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) based on the alleged violation of his constitutional rights by the ICE Defendants when they detained him and caused his unlawful removal from the United States. Lyttle maintains that by detaining him, a United States citizen, 20 and causing his removal without reasonable basis or authority, the ICE Defendants (1) deprived Lyttle of his right to liberty without due process of law in violation of the Fifth Amendment; (2) unreasonably seized him in violation of the Fourth Amendment; and (3) discriminated against him based on his race and/or ethnicity Defendants respond in violation that of Lyttle’s the claims Fifth should Amendment. be dismissed because: (1) they are not cognizable under Bivens; (2) even if they are permitted under Bivens, they fail to state claims for a constitutional violation; and (3) if they are cognizable under Bivens and do state a constitutional violation, Defendants are entitled to qualified immunity. nature of the alleged The Court first analyzes the constitutional violations to determine whether a claim for monetary damages against the responsible government agents should be allowed under the Bivens rationale.9 A. Bivens Analysis In Bivens, the Supreme Court held that a violation of the Fourth Amendment’s prohibition against unreasonable search and seizure by a federal agent acting under color of his authority gives rise to a cause unconstitutional conduct. of action for damages caused 403 U.S. at 389-90, 397. 9 by his The Supreme The Court’s Bivens analysis does not include an examination of Lyttle’s discrimination claim because the Court finds that Lyttle has failed to state sufficient facts to state a plausible claim for discrimination. See infra, DISCUSSION I.B.2. Therefore, it is unnecessary to determine whether such a claim would be actionable under Bivens. 21 Court explained implied one that the because no cause of statute or action other in Bivens was provision of an law provided a meaningful remedy for the constitutional violation. Id. at 397; Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). A cause of action, however, does not exist for every constitutional violation by a federal agent. The Supreme Court has been careful to circumscribe the types of constitutional violations that may be vindicated through Bivens. In addition to the remedy for Fourth Amendment violations established in Bivens, the Supreme Court has only expressly recognized two other non-statutory damages remedies: a remedy for employment discrimination in violation of the Fifth Amendment’s Due Process Clause and a remedy for an Eighth Amendment violation by prison officials. Wilkie v. Robbins, 551 U.S. 537, 549-50 (2007) (citing Davis v. Passman, 442 U.S. 228 (1979) and Carlson v. Green, 446 U.S. 14 (1980)); accord Minneci v. Pollard, 132 S. Ct. 617, 622 (2012) (confirming that since Carlson, the Supreme Court has declined to recognize any new Bivens actions). The Supreme Court has expressly rejected a Bivens remedy for the following claims: First Amendment violations by federal employers, Bush v. Lucas, 462 U.S. 367, 386-88, 390 (1983); harm to military United personnel States v. through Stanley, activity 483 U.S. incident 669, 683-84 to service, (1987) and Chappell v. Wallace, 462 U.S. 296, 298-300, 305 (1983); denials 22 of Social Security disability benefits in violation of the Fifth Amendment, Schweiker v. Chilicky, 487 U.S. 412, 414 (1988); and harassment and intimidation to obtain property rights, Wilkie, 551 U.S. at 562. In its most recent Bivens case, the Supreme Court stated: “Although the Court, in reaching its decisions, has not always similarly emphasized the same aspects of the cases, Wilkie fairly summarizes the basic considerations that underlie those decisions.” Minneci, 132 S. Ct. at 623 (citing Wilkie, 551 U.S. at 550). In Wilkie, the Supreme Court explained that “any free- standing damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee; it is not an automatic entitlement no matter what other means there may be to vindicate a protected interest.” 551 U.S. at 550. The Supreme Court has set forth a two-step inquiry for determining whether to recognize a Bivens remedy when federal recognized interest. employees violate a constitutionally First, the Court should consider “whether any alternative, existing process for protecting the interest amounts to refrain from damages.” a convincing providing reason a new for the Judicial and freestanding Id. (citing Bush, 462 U.S. at 378). Branch to remedy in Second, even if no alternative remedy exists, “‘the federal courts must make the kind of remedial determination that is appropriate for a common- 23 law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.’” Id. (quoting Bush, 462 U.S. at 378). Eleventh Circuit applies this two-step inquiry. The Hardison v. Cohen, 375 F.3d 1262, 1264 (11th Cir. 2004). The Court must therefore determine whether Lyttle’s alleged Fourth Amendment unreasonable seizure and Fifth Amendment due process violations are the types of constitutional violations that may be vindicated through Bivens. To make that determination, the Court first evaluates whether an alternative process exists to protect these rights in a meaningful way. The Court then considers whether special factors exist that counsel hesitation in the establishment of a remedy for these alleged violations. Defendants argue that no Bivens remedy should be created for Lyttle’s Immigration seq., constitutional and provides remedies, thus, Nationality a claims Act comprehensive precluding a for two (“INA”), statutory Bivens reasons: (1) 8 U.S.C. § 1101 scheme remedy; and the et including (2) the political branch has plenary power over immigration, which is a special factor counseling hesitation remedy. The Court addresses each issue in turn. 24 that precludes a Bivens 1. Existence of an Adequate Alternative Remedy “‘When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, [the created additional Bivens remedies.’” Supreme Court has] not Hardison, 375 F.3d at 1264 (quoting Schweiker, 487 U.S. at 423). But an alternative remedy must be “clearly constitutionally adequate” for it to preclude additional remedies under Bivens. 378 n.14. Bush, 462 U.S. at Congress enacted the INA as a comprehensive scheme to regulate “‘immigration and naturalization’” and set “‘the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.’” Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1973 (2011) (quoting De Canas v. Bica, 424 U.S. 351, 353, 359 (1976)) (emphasis added). Defendants ignore the fact that the INA provides an administrative process for the deportation and immigration of aliens who are not constitutionally or statutorily permitted to remain in the United States. See, e.g., 8 U.S.C. § 1103(a)(1). Nothing in the INA addresses a meaningful remedy for a United States citizen who is wrongfully detained under the auspices of the Act and justification. means any then See person banished 8 U.S.C. § not a from 1101(a)(3) citizen 25 the or country (“The national of term the without ‘alien’ United States.”). The remedy under the INA is not constitutionally adequate for citizens. sufficiently “meaningful Lyttle. The Accordingly, the scheme in place is not comprehensive safeguards or because remedies” it for does a U.S. not provide citizen like Schweiker, 487 U.S. at 425. Court sufficiently finds those comprehensive cases and that hold adequate that to the preclude INA is Bivens claims for persons who are not citizens of the United States to be inapposite. See, e.g., Mirmehdi v. United States, 662 F.3d 1073, 1080 (9th Cir. 2011) (refusing to extend Bivens to aliens alleging invalid detention during immigration proceedings because of the complex, comprehensive INA remedial system and factors counseling hesitation in the immigration context); Arar v. Ashcroft, 585 F.3d 559, 573-74 (2d Cir. 2009) (stating that it was difficult in the context presented to determine if the INA provided an alternative remedial scheme, but declining to extend Bivens to the context of extraordinary rendition of an alien because of special factors counseling hesitation); Papa v. United States, 281 F.3d 1004, 1011 (9th Cir. 2002) (holding that an alien’s Bivens claims for unreasonable search and seizure and discrimination upon entry were properly dismissed because “[a]liens are not afforded due process protections when they seek admission to the United States.”); D’Alessandro v. Chertoff, No. 10-CV-927A, 2011 WL 6148756, at *4 (Dec. 12, 2011 26 W.D.N.Y.) (applying Mirmehdi to deny Bivens relief for improper detention claims by a legal permanent resident of the United States). The persuasiveness of the rationale underlying these cases weakens considerably when extended to a citizen of the United States instead of an alien. these cases nor their Neither the holdings in constitutional basis apply to U.S. citizens wrongfully subjected to the removal procedures of the immigration system that lack safeguards for U.S. citizens. sufficient constitutional Defendants fail to recognize this important distinction between aliens and citizens—a distinction that is well recognized in the case law. “It is well established that immigrants’ remedies for vindicating the rights which they possess under the Constitution are not coextensive with those offered citizens.” Mirmehdi, 662 F.3d at 1079 (citing, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999)); see, e.g., Adras v. Nelson, 917 F.2d 1552, 1555 (11th Cir. 1990) (“[A]liens have no constitutional rights with regard to their applications [for entry into the United States] and must be content to accept whatever statutory rights and privileges they are granted by Congress.”) (internal quotation marks omitted). The distinction between the constitutional protections available to a citizen compared to a non-citizen when each faces 27 removal from the United States has long been recognized by the Supreme Court: The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority, and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property without due process of law; and the provisions of the constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures and cruel and unusual punishments, have no application. Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893). On the other hand, it logically follows that when a citizen is removed, the United States cannot rely upon the “diminished constitutional rights” theory because a citizen does not give up the full panoply of rights available to him just because the government mistakenly determines that he is an alien. It is certainly not a startling proposition to suggest that if the government or its officer mistakenly treats a citizen as a noncitizen and does not afford the citizen the rights to which he is entitled, it does so at the peril of violating the citizen’s constitutional rights. suggest that a It would be a startling proposition to person’s constitutional 28 rights depend upon whether a government official identifies the person as a citizen or an alien regardless of whether their designation is accurate. The Court procedural does not protections imply the INA citizens for that who may identified as deportable aliens. provides be no wrongly See e.g. 8 U.S.C. § 1252(b)(5) (providing a procedure for review of a petitioner’s claim of U.S. nationality removal). following However, the issuance Court of finds a final these order of protections are constitutionally inadequate to avoid the wrongful detention and removal of a United States citizen and to remedy constitutional violations after they have occurred. such There is scant evidence that Congress gave any thought to what the remedy should be for a citizen who is wrongly detained and deported. The INA scheme as applied to U.S. citizens is in stark contrast to the comprehensive plaintiffs in other programs cases. precluding See Bivens Schweiker, 487 remedies for U.S. 429 at (finding no Bivens remedy because Congress “has addressed the problems created by state agencies’ wrongful termination of disability benefits,” and “Congress is the body charged with . . . the program”); Bivens design of Bush, 462 where the a massive U.S. civil at and 386, service complex 390 statute welfare (declining “provides benefits to extend meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies” because the 29 Supreme Court was “convinced that Congress is in a better position to decide whether or not the public interest would be served by creating [a new legal liability]”). The Court concludes that the INA does not provide any meaningful remedy and review procedure for Lyttle, a U.S. citizen, in this case. Where, as here, there is no congressionally created remedy for the Constitutional violations Lyttle suffered and Congress has not explicitly declared an alternative remedy to be a substitute for recovery, the Court may craft a remedy so long as no factors counseling hesitation demand that the Court refrain from doing so. Wilkie, 551 U.S. at 550; accord Carlson, 446 U.S. at 18-19. 2. The Factors Counseling Hesitation only factor that Defendants assert as counseling hesitation is that the political branch has plenary power over immigration. Fiallo v. Bell, 430 U.S. 787, 792 (1977); Fong Yue Ting, 149 U.S. at 731. general observation. to make process the to Defendants’ argument, however, again fails distinction regulate legitimate exercise The Court does not quarrel with this the between the admission use and of the removal immigration of aliens, a of the power of the political branch of government, and the use of that process to detain and remove citizens, unless an unauthorized additional exercise constitutional of political protections are branch power provided to safeguard against the wrongful removal of a citizen from his own 30 country. sufficient The Court factors exist rejects Defendants’ counseling that arguments the Court that resist finding a Bivens remedy in this context—the wrongful detention and removal of a citizen from the United States. The Court emphasizes that today’s ruling is a narrow one. Specifically, the Court holds that a United States citizen with a diminished mental capacity who has been detained without probable cause, who the federal agents know claims to be a U.S. citizen, whose claim of citizenship is not investigated, whose claim is supported by easily accessible corroborating evidence, and who is manipulated by the federal agents through coercion and distortion of the record, should have a claim against the responsible agents to recover damages for his injuries caused by his detention and subsequent banishment from the United States, if he is able to prove that the government employee violated his constitutional rights in the process and if that employee is not entitled to qualified immunity. that Lyttle’s Fourth Amendment Accordingly, the Court finds seizure claim and his Fifth Amendment due process claim for monetary damages against the individual ICE Defendants shall not be dismissed as disallowed under Bivens. 31 B. Failure to State a Claim and Qualified Immunity 1. Fourth and Fifth Amendment Claims Deciding that a Bivens remedy is available for Lyttle’s Fourth Amendment unreasonable seizure claim and Fifth Amendment due process claim is not dispositive of Defendants’ motion to dismiss. In a Bivens action, “a plaintiff must plead that each Government-official defendant, through the official’s individual actions, has violated the Constitution.” own Keating v. City of Miami, 598 F.3d 753, 763 (11th Cir. 2010) (internal quotation marks omitted).10 To this end, “a plaintiff must allege some factual detail as the basis” for a claim. Id. Therefore, the Court must examine the alleged conduct of each individual Defendant against whom Lyttle seeks monetary damages and determine whether Lyttle’s allegations support a constitutional violation, and if they do, whether the Defendants are nevertheless entitled to qualified immunity. Butz v. Economou, 438 U.S. 478, 505-07 (1978). Lyttle alleges that the conduct of the individual ICE Defendants, individually and in combination, violated his right 10 While Keating involved a § 1983 action and the case before the Court is a Bivens action, “the difference is inconsequential. Both deal with an unconstitutional deprivation of rights which the Supreme Court compares on equal footing. . . .” Randall v. Scott, 610 F.3d 701, 708 n.3 (11th Cir. 2010) (citing Iqbal, 129 S. Ct. at 1949). “[I]t would be untenable to draw a distinction for purposes of immunity law between suits brought against state officials under . . . § 1983 and suits brought directly under the Constitution against federal officials.” Harlow v. Fitzgerald, 457 U.S. 800, 809 (1982) (internal quotation marks omitted). 32 not to be subjected to unreasonable seizure under the Fourth Amendment without and due his right process of not law to be under deprived the of Fifth his liberty Amendment. He contends that by detaining him without probable cause and being consciously indifferent to evidence of his U.S. citizenship, the ICE Defendants violated his Fourth and Fifth Amendment rights. His Fourth Amendment rights were allegedly violated based on the administrative decisions by the ICE Defendants to detain him without probable allegedly violated cause. based His on Fifth the Amendment ICE rights Defendants’ were continued detention of him after discovering evidence indicating that they had no probable cause to continue the detention. Lyttle also alleges that by removing him from the United States without probable cause to believe he was an alien and with a conscious indifference to the evidence demonstrating that he was a U.S. citizen, the ICE Defendants who engaged in this conduct violated his rights under the Fifth Amendment. Even alleged a if the Court constitutional finds that violation Lyttle against has an sufficiently individual ICE Defendant, that Defendant can only be held legally responsible for the violation if the Court also finds the Defendant is not entitled to qualified immunity. Qualified immunity protects public officers acting within the scope of their discretionary authority from liability if their acts do not violate clearly 33 established law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Rehberg v. Paulk, 611 F.3d 828, 838 (11th Cir. 2010). “A government agent is entitled to immunity unless his act is so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing.” Rehberg, 611 F.3d at 838 (internal quotation In “generally accord legitimacy.” 2003) marks . . . omitted). official other conduct a words, courts presumption of Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. (alteration in original) (internal quotation marks omitted). To establish qualified immunity, the official must first establish he was acting in the scope of his discretionary authority when performing the acts a plaintiff complains of. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). Here, Lyttle does not dispute that the ICE Defendants were acting within the scope of their discretionary authority. The record demonstrates that all ICE Defendants were engaged in activities within their job responsibilities during the events at issue. qualified immunity See id. at 1265 (stating that in the context, “discretionary function” means whether the acts at issue “are of a type that fell within the [official’s] job responsibilities.”). 34 Accordingly, Lyttle has the burden “to show that the defendant[s are] not entitled to qualified immunity.” The Court Id. at 1264. undertakes a two-part analysis to evaluate qualified immunity: “whether (1) the plaintiff has alleged a violation of a constitutional right; and (2) whether the right was ‘clearly misconduct.” analysis at the time of Rehberg, 611 F.3d at 838-39. may appropriate established’ be for done the in whatever case.” Id. at Callahan, 555 U.S. 223, 242, (2009)). defendant’s “This two-pronged order 839 the is deemed (citing most Pearson v. “To deny their qualified- immunity defenses, the law [at the time of the alleged conduct] must have been sufficiently clear to put [Defendants] on notice that their conduct violated [Lyttle’s rights].” Fils v. City of Aventura, 647 F.3d 1272, 1291 (11th Cir. 2011). The Eleventh Circuit “uses a officer would two know methods his to determine conduct is (internal quotation marks omitted). whether reasonable unconstitutional.” Id. One method “looks at the relevant case law at the time of the violation” to determine if the case law “make[s] it obvious to a reasonable government actor that his actions violate federal law.” Id. quotation looks marks omitted). The second method (internal “at the officer’s conduct, and inquires whether that conduct lies so obviously at the very core of what the [Constitution] prohibits that the unlawfulness of the conduct was readily apparent to 35 [the officer], notwithstanding the lack of fact-specific case law.” Id. (second alteration in original) (internal quotation marks omitted). In deciding whether Lyttle’s claims may proceed against the individual ICE Defendants, the Court must examine the factual allegations pertaining to the conduct of each Defendant to determine whether that conduct violates the Fourth and/or Fifth Amendments. If so, the Court must determine whether it was clearly established at the time of the alleged violation that such conduct would violate those constitutional provisions. Under the Fourth Amendment, Lyttle has right to be free from unreasonable seizures. IV. a constitutional U.S. Const. amend. A seizure occurs when “a person’s freedom of movement is restrained by means of physical force or by submission to a show of authority,” which includes an arrest or detention. United States v. Allen, 447 F. App’x 118, 120 (11th Cir. 2011) (per curiam). An arrest, a complete seizure, must be supported by probable cause. United States v. Blackley, 439 F. App’x 803, 805 (11th Cir. 2011) (per curiam). warrantless searches [and “It is settled law that seizures] require the same investigative basis in fact or reasonable conjecture as searches 36 [and seizures] under warrant.” United States v. Brennan, 538 F.2d 711, 720 (5th Cir. 1976).11 An officer may arrest “any alien in the United States, if he has reason to believe that the alien so arrested is in the United States regulation.” in violation of any [immigration] law or 8 U.S.C. § 1357(a)(2); see also 8 U.S.C. § 1226(a) (“On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.”).12 Officers may inquire about an individual’s citizenship and immigration status, but the officer must have probable cause or consent to detain the individual. United States v. Brignoni-Ponce, 422 U.S. 873, 881- 82 (1975). “[A]n arrest or [detention] without probable cause violates the Fourth Amendment,” and is thus an unconstitutional seizure. Cir. Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th 1998). detention is “[T]he the same probable as cause that for standard an for arrest.” pretrial Baker v. McCollan, 443 U.S. 137, 143 (1979). 11 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 12 The Eleventh Circuit and other circuits have construed 8 U.S.C. § 1357(a)’s “reason to believe” standard as equivalent to probable cause. E.g., Brennan, 538 F.2d at 719; United States v. Cantu, 519 F.2d 494, 496 (7th Cir. 1975); Au Yi Lau v. U.S. Immigration & Naturalization Serv., 445 F.2d 217, 222 (D.C. Cir. 1971). 37 “Under federal law, probable cause to arrest exists when an arrest is objectively reasonable based on the totality of the circumstances.” Cir. 2003). Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th “This standard is met when the facts and circumstances within the officer’s knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Id. (internal quotation marks omitted). To seize and detain a person for being an illegal alien, an officer must have probable cause alien. Fourth to believe that the individual is an illegal Cf. Brignoni-Ponce, 422 U.S. at 884 (stating that the Amendment “forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.”). “As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Id. at 878. Even if no probable cause ultimately exits, officers making an arrest are entitled to qualified immunity “arguable probable cause for the arrest” exists. F.3d at 1089 (internal quotation marks omitted). so long as Durruthy, 351 This means that an officer has qualified immunity so long as he “reasonably 38 could have believed that probable cause existed, in light of the information he possessed.” omitted). “Indeed, ‘it Id. is (internal inevitable quotation that law marks enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and . . . in such cases those officials . . . should not be held personally liable.’” Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. Von 1990) (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). The Court finds that at the time the Defendants arrested and continued Lyttle’s detention, the law was clearly established that an arrest without arguable probable cause to believe that Lyttle was an alien in the United States illegally violated the Fourth Amendment. Id. It was also clearly established that an ICE officer did not have the authority to detain or deport U.S. citizens. 8 U.S.C. §§ 1226-28, 1231, 1357(a)-(d) (granting ICE agents authority to arrest, detain and deport aliens). Applying the qualified immunity test in the context of Lyttle’s unlawful immigration detention, the Court “must determine circumstances whether and reasonable possessing the officers same in the knowledge as same the Defendants could have believed that probable cause existed to arrest” Lyttle for violation of Stein, 904 F.2d at 579. 39 the immigration laws. Von As previously noted, Lyttle also alleges that Defendants’ conduct violated rights. his Fifth Amendment substantive due process The Fifth Amendment in pertinent part states that no person shall “be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. by detention continuing his without Lyttle alleges that probable cause and ultimately removing him from the United States when no legal basis existed for his removal, Defendants’ conduct, individually and jointly, deprived him of his liberty without due process. Defendants respond that they had the authority under the INA to take the actions that they took, but they fail to appreciate the distinction between taking compared to a U.S. citizen. those actions against an alien “In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” Demore v. Kim, 538 U.S. 510, 521 (2003) (internal quotation marks omitted). and aliens, In asserting this distinction between citizens the Supreme Court held that “[d]etention during removal proceedings is a constitutionally permissible part of that process,” mandatory “INS and specifically detention of held . . . a as constitutional criminal alien who the has conceded that he is deportable, for the limited period of his removal proceedings.” was detained as a Id. at 531. criminal alien 40 In the present case, Lyttle notwithstanding his U.S. citizenship and clear and convincing evidence certain Defendants indicating his citizenship. available to He was therefore provided with the rights of a criminal alien and not a United States citizen. The question remains as to whether this continued detention gives rise to a substantive due process violation. “[w]here a particular Amendment provides an Generally, explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due analyzing these claims.” 833, 842 marks (1998) omitted) (1989)). process, be the guide for Cnty. of Sacramento v. Lewis, 523 U.S. (alteration (citing must in Graham original) v. (internal Connor, quotation 490 386, U.S. 395 Thus, to the extent that the detention of Lyttle was prohibited under resort substantive to the Fourth due unconstitutional detention. 259, 272 n.7 (1997). Amendment, process to the Court protect would not against the United States v. Lanier, 520 U.S. However, to the extent that the Fourth Amendment does not cover a continued detention of the nature alleged here, Fifth Amendment substantive due process would be implicated. See Lewis, 523 U.S. at 843 (“Substantive due process analysis is therefore inappropriate in this case only if respondents’ claim is ‘covered by the Fourth Amendment,” which “covers only ‘searches and seizures.’”). 41 To establish a substantive due process violation, a plaintiff must prove that the defendant “acted with deliberate indifference,” meaning the defendant “had (1) subjective knowledge of a risk of serious harm; [and] (2) disregard[ed] . . . that risk; (3) by conduct that is more than mere negligence.” 1321, 1327 (11th Cir. 2007) West v. Tillman, 496 F.3d (per curiam) (alterations in original) (internal quotation marks omitted). The Supreme Court in Baker v. McCollan held that innocent people may be occurring—as arrested long as Fourth Amendment. without the arrest a constitutional meets 443 U.S. at 144. the violation standards of the But, the Court qualified that holding by stating that after a period of time continued detention may amount process violation. arrest or continued detainee’s a Fifth Id. at 144-45. detention detention Fifth to does not without Amendment Amendment due Thus, even if the initial violate probable due substantive process the Fourth cause could rights. Amendment, violate The a Supreme Court further stated that an individual “could not be detained indefinitely in the face of repeated protests of innocence even though the warrant under which he was arrested and detained met the standards of the Fourth Amendment.” Id. at 144. Likewise, the Eleventh Circuit has recognized that due process includes the “right to be free from continued detention after it was or should have been known that the 42 detainee was entitled to release.” Cannon v. Macon Cnty., 1 F.3d 1558, 1563 (11th Cir. 1993), modified on other grounds, 15 F.3d 1022 (1994).13 The Court finds that whether the violation is asserted under the Fourth Amendment or the Fifth Amendment, the law was clear at the time of the alleged conduct that a U.S. citizen could not lawfully be detained without probable cause to believe the citizen was not a citizen, particularly when confronted with substantial evidence of such citizenship. Lyttle’s Fifth Amendment due process claim extends beyond his detention to his ultimate removal from the United States. In addition to detaining aliens, “[t]he executive may deport certain aliens but has no authority to deport citizens. An assertion of U.S. citizenship is thus a denial of an essential jurisdictional fact in a deportation proceeding.” Rivera v. Ashcroft, 387 F.3d 835, 843 (9th Cir. 2004) (internal quotation marks omitted), modified on other grounds, 394 F.3d 1129 (2005). Deporting one who claims to be a citizen is a deprivation of liberty implicating Fifth Amendment constitutional concerns. Fung Ho v. White, 259 U.S. 276, 284-85 (1922). Ng Banishment of a U.S. citizen likewise deprives the citizen “of life, liberty, or 13 Although Cannon interpreted the Fourteenth Amendment due process clause, because “the language and policy considerations of the Due Process Clauses of the Fifth and Fourteenth Amendments are virtually identical, decisions interpreting the Fourteenth Amendment's Due Process Clause guide us in determining what due process requires in the Fifth Amendment jurisdictional context.” Fraser v. Smith, 594 F.3d 842, 849 n.10 (11th Cir. 2010) (internal quotation marks omitted). 43 property without due process of law.” at 730. Fong Yue Ting, 149 U.S. Accordingly, the Court finds that the detention and subsequent removal of a U.S. citizen, like Lyttle, who federal agents know has a diminished mental capacity and who affirmatively claims citizenship, which the federal agents fail to attempt to confirm through readily available corroborating information, implicates Fifth Amendment due process protections. However, to be personally liable, the government agent must have been on notice that his conduct violated clearly established law. An ICE officer is authorized to arrest and initiate deportation proceedings against persons who are in the United States illegally. 8 U.S.C. §§ 1226, 1231, 1357(a)-(d). Any ICE officer with this responsibility would know it is illegal and unconstitutional to deport, detain for deportation, or recommend deportation of a U.S. citizen. Immigration & Naturalization See Tuan Anh Nguyen v. U.S. Serv., 533 U.S. 53, 67 (2001) (affirming that a citizen has the “absolute right to enter [the United States] borders”); Shapiro v. Thompson, 394 U.S. 618, 629 (1969) (“This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations 44 which unreasonably burden or restrict this movement.”), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651, 670-71 (1974). Thus, an ICE officer who actively participates in the detention and/or removal of a person who he knows to be a U.S. citizen, or upon minimal investigation would discover is a U.S. citizen, would be deemed to know that such conduct clearly denies that person liberty without due process of law. Consequently, any such officer would not be protected by qualified immunity. The Court next must examine the conduct of each individual ICE Defendant violated to Lyttle’s determine whether constitutional that rights Defendant’s under the conduct Fourth and Fifth Amendments, which rights were clearly established at the time of the alleged conduct. a. Defendant DEFENDANTS COLLADO AND MOTEN Collado was an ICE enforcement agent who conducted the initial interrogation of Lyttle when he arrived at the SDC in Georgia. In that interview, Lyttle stated unequivocally that he was a U.S. citizen, provided Collado with his date and place Mexican citizen. of birth, Compl. ¶ 58. suffered from mental illness. Collado did not and investigate repeatedly denied being a Collado was aware that Lyttle Id. ¶ 60. Lyttle’s Lyttle alleges that claims of citizenship. Collado attached an un-served Notice of Intent to Issue Final Administrative Removal Order (“Notice 45 of Intent”) to his interrogation form. The Notice of Intent accurately stated that Lyttle was “a native of United States and a citizen of United States,” but paradoxically charged that Lyttle was deportable from the United States because of his criminal convictions. ¶ 59. Collado then filled out an I-213 Form, Record Id. of Deportable/Inadmissible Alien detailing Lyttle’s apprehension by North Carolina ICE. Id. ¶ 60. Collado never presented Lyttle with a copy of the Form or gave Lyttle an opportunity to review or be apprised of its contents. in light of Lyttle’s claim Id. that Collado determined that, he was a U.S. citizen, an expedited administrative deportation without a hearing was not appropriate and Lyttle should be referred for a hearing before an immigration judge. Id. ¶ 61. ICE Defendant Moten then issued Lyttle a formal Notice to Appear at removal Notwithstanding Collado and the proceedings Lyttle’s alleged before an assertion of “lack any of immigration U.S. judge. citizenship independent to evidence supporting the charge that Mr. Lyttle was a Mexican citizen,” the Notice alleged that Lyttle was not a U.S. citizen but was a native of Mexico. Id. ¶ 62. Lyttle alleges that the actions of Collado and Moten and their failures to investigate Lyttle’s claim of citizenship prior to completing the Notice of Intent and the Notice to Appear, charging Lyttle as a deportable alien, directly led to Lyttle’s unlawful detention and deportation. 46 While Collado and Moten did not detain Lyttle indefinitely, Lyttle alleges they of did continue citizenship his detention without despite investigating his repeated protests those claims. They did so knowing as part of their job that ICE officers have no power under a warrant or without a warrant to arrest and detain a citizen. 8 U.S.C. §§ 1226, 1231, 1357 (granting ICE agents authority to arrest, detain, and deport aliens). Moreover, they knew that a natural and foreseeable consequence of their conduct included the likely removal of Lyttle from the United States. It is also significant that Collado issued, but never served on Lyttle, a Notice of Intent without a reasonable basis in fact or law for doing so. A Notice of Intent may be issued by an ICE officer “if the officer is satisfied that there is sufficient evidence, based upon questioning of the alien by an immigration officer and upon any other evidence obtained, to support a finding that the individual: (i) Is an alien . . .” 8 C.F.R. § 1238.1(b)(1). Carolina ICE Lyttle’s record, U.S. Collado which citizenship was included and faced database social with the results security showing number, Lyttle’s repeated unequivocal claims of citizenship. North and By failing to investigate Lyttle’s claims beyond the North Carolina ICE record when he was faced with 47 evidence of Lyttle’s U.S. citizenship, Collado knew he risked detaining Lyttle in violation of his rights as a citizen not to be detained. Moten issued the Notice to Appear to Lyttle based on Collado’s interrogation and no independent investigation despite Lyttle’s recorded claims of citizenship. be issued to 1229(a)(1). officer an alien in removal A notice to appear can proceedings. 8 U.S.C. § A notice to appear can be canceled by the issuing before jurisdiction vests with the immigration judge “[p]rovided the officer is satisfied that: (1) The respondent is a national of the United States.” 8 C.F.R. § 239.2(a)(1). Jurisdiction vests with the immigration judge upon delivering of the charging document to the Immigration Court. 1003.14(a). begin, After “ICE proceedings counsel, or any before officer the 8 C.F.R. § Immigration [authorized to Court issue a notice to appear] may move for dismissal of the matter on the grounds” that the officer is satisfied the respondent is a U.S. national. 8 C.F.R. § 239.2(c). Accordingly, the Court finds that Moten was on notice that he had a duty to use reasonable efforts to ensure that the Notice to Appear was not issued without justification and, thus, did not erroneously serve as the basis for an Immigration Court’s determination of deportability, especially in light of Lyttle’s claims of U.S. citizenship. 48 The Court finds that Lyttle has sufficiently alleged a Fourth Amendment violation against Defendants Collado and Moten. Under the totality of the circumstances as alleged, they did not have arguable alien. probable cause blind reliance Their to believe upon that the Lyttle North was Carolina an ICE officers’ probable cause determination does not insulate them from liability. question Even if they had a reasonable suspicion to Lyttle about his citizenship based on the North Carolina ICE records and custody transfer, Collado and Moten were still bound by the Fourth Amendment’s requirement of probable cause to continue the detention and removal of Lyttle. Brignoni-Ponce, 422 U.S. at 881-82. Faced with the North Carolina ICE records, which included search results revealing Lyttle’s U.S. citizenship and Social Security number, and Lyttle’s assertions of U.S. citizenship during his interrogation with Collado, no reasonable ICE officer on this information alone could find arguable probable cause to detain Lyttle. Moreover, even though Collado and Moten’s conduct occurred before the Hayes Memo provided guidance for ICE investigations of claims of U.S. citizenship, the Court finds that both had an independent duty to make a probable cause determination. Collado had a duty to make an independent determination as to whether probable before completing cause a existed notice to of 49 continue intent. to detain See Lyttle 8 C.F.R. § 1238.1(b)(1) (a notice of intent may be issued by an ICE officer “if the officer is satisfied that there is sufficient evidence, based upon questioning of the alien by an immigration officer and upon any other evidence obtained, to support a finding that the individual: (i) Is an alien”); see also 8 U.S.C. § 1357(a)(b) (ICE officers have the power to interrogate “an alien or any person believed to be an alien,” but only have the power to arrest an alien). The Court also finds that Moten had a duty to make an independent determination as to whether probable cause existed to continue to detain Lyttle. See 8 C.F.R. § 239.2(a) (an officer authorized to issue a notice to appear under may cancel the notice before jurisdiction vests with the immigration judge if the officer is satisfied the respondent is a U.S. citizen). Any reasonable ICE officer in the same circumstances and possessing the same knowledge and information as Collado and Moten could not have reasonably believed that probable cause existed to detain Lyttle, continue his detention, or recommend him for removal for a violation of the immigration laws. Because their alleged conduct violated clearly established law, the Court rejects their qualified immunity defenses. Fils, 647 F.3d qualified at immunity 1292 to (denying officers summary who judgment should have based known violated the plaintiff’s Fourth Amendment rights). 50 on their conduct Accordingly, Defendants Collado and Moten’s motions to dismiss Lyttle’s Fourth Amendment claims are denied. Regarding reiterates Lyttle’s that the Fifth case law Amendment of the claim, Supreme the Court Court and the Eleventh Circuit clearly established prior to the events giving rise to this action that an individual has a “right to be free from continued detention after it was or should have been known that the detainee was entitled to release,” Cannon, 1 F.3d at 1563, and that deportation of a citizen is a deprivation of liberty implicating Fifth Amendment constitutional concerns, Ng Fung Ho, 259 U.S. at 284-85. The law was also clearly established that ICE officials do not have authority to arrest or detain a citizen. 8 U.S.C. §§ 1226, 1231, 1357 (granting ICE agents authority to arrest, detain, and deport aliens). and Moten were on notice that their actions and Collado deliberate indifference would violate Lyttle’s due process rights. The Court finds that a reasonable officer in Collado or Moten’s position “should have known that his conduct violated [Lyttle’s] constitutional rights,” and therefore they are not entitled to qualified immunity as to Lyttle’s due process claims. Fils, 647 F.3d at 1287. b. DEFENDANT MONDRAGON After the issuance of the Notice to Appear before the IJ, the Hayes Memo was issued. Compl. ¶ 63. 51 Shortly after that Memo was issued and prior to Lyttle’s hearing before the IJ, ICE Defendant Mondragon interrogated Lyttle. Mondragon that he was a U.S. citizen. Lyttle informed Notwithstanding Lyttle’s clear statement of citizenship, Mondragon altered the record, “creating a conflicting, inconsistent, and factually inaccurate record.” Id. ¶ 76. He allegedly disregarded Lyttle’s claim of citizenship, independent evidence of citizenship, and Lyttle’s diminished mental manipulated” capacity. Lyttle into Mondragon signing and further initialing “coerced an and affidavit that falsely affirmed that his name was “Jose Thomas” and that his father was a citizen of Mexico with the same name. Compl. ¶78. Mondragon interrogated Lyttle on November days after the issuance of the Hayes Memo. 12, 2008, six For purposes of the present motions, the Court accepts as alleged that Mondragon was aware of the Hayes Memo and its directives at that time. The Memo purportedly sought to provide guidance on reporting and investigating claims of U.S. citizenship. The Memo directs that prior to making a warrantless arrest of persons claiming U.S. citizenship, an ICE officer “must ensure that s/he has reason to believe that the individual to be arrested is in the United States in violation of a law or regulation governing admission, exclusion or expulsion or removal of aliens.” Memo 1. the Hayes In other words, probable cause must exist for the 52 warrantless detention. that all claims of Id. at 1 n.1. U.S. The Memo further requires citizenship shall be “fully investigate[d] . . . immediately upon learning of the assertion of citizenship.” Id. at 1. Moreover, an officer “shall immediately notify the Field Office Director (FOD) through their chain of command” when they encounter an individual who the officer believes to be in the United States illegally but who claims to be a U.S. citizen. Id. The Memo requires that each Field Office Director “shall ensure that all affirmative claims to U.S. citizenship made by any individual encountered within their area of responsibility investigated.” are Id. at 1-2. appropriately reported and When a detainee who claims U.S. citizenship is interviewed, the interrogating officer shall ask “probative questions designed to elicit information sufficient to allow an investigation of the person’s claim of citizenship.” Id. at 2. While the Memo does not set out all investigative methods and sources, it does by example include the following: “vital records searches, family appropriate investigative measures.” interviews, and other Id. at 2. The Hayes Memo also makes it clear that an ICE officer must do more than simply record a claim of U.S. citizenship. The Memo attempts to create safeguards, including reporting up the chain of minimize command, the risk throughout of the deporting 53 a investigation U.S. citizen. process The to Memo provides that when an affirmative claim of citizenship is made before the commencement of removal proceedings, the Field Office Director shall, Operations determine in consultation headquarters whether and with local “sufficient Detention Office evidence individual into removal proceedings.” Chief exists Id. and to Removal Counsel, place that The Memo further provides that if the claim of citizenship is made following the issuance of the Notice to Appear, each Office of Chief Counsel, in consultation with the Field Office Director who when necessary should consult with headquarters, “will determine the most appropriate course of action with respect to the disposition of the [Notice to Appear] and termination of the case, while also providing necessary advice to the [Field Office Director] as to changes in the individual’s custody conditions.” Id. Under either method employed by the Eleventh Circuit in determining clearly reasonable officer established in law, the Mondragon’s Court position finds that under a the circumstances should have known his conduct as alleged violated Lyttle’s Fourth and Fifth Amendment rights. See Fils, 647 F.3d at 1291 (denying summary judgment based on qualified immunity to officers who should have known their plaintiff’s Fourth Amendment rights). 54 conduct violated the Regarding Lyttle’s Fourth Amendment claim, Mondragon lacked arguable probable cause to believe that Lyttle was an alien. The Court rejects Mondragon’s argument that it was reasonable for him to rely on the previous determinations by the North Carolina ICE officers. The procedure for deporting aliens provides for opportunities at various points during the process for continued detention to be reassessed. 239.2(a) (a Notice to Appear can be E.g., 8 C.F.R. § canceled if an officer authorized to issue such a notice is satisfied the detainee is a U.S. citizen). stamp learns the of An ICE officer must do more than blindly rubber- findings of information a previous that officer. suggests a When detainee an officer should not continue to be detained, particularly when evidence exists that the detainee is a U.S. citizen, then that officer has a duty to make an independent assessment as to whether he has a reasonable suspicion that the detainee is an alien. Hayes Memo (stating that all officers “must fully investigate all claims to U.S. citizenship immediately citizenship”); see upon also learning of Brignoni-Ponce, the 422 assertion U.S. at of 881-82 (officers must have probable cause or consent to detain the individual). corroborating Faced with independent Lyttle’s evidence, claim a of citizenship reasonable officer and in Mondragon’s position could not have believed that probable cause existed to detain Lyttle for violating the immigration laws. 55 Mondragon made no such meaningful assessment, and as mentioned, failed to follow the department policies for making such an evaluation. continued Fourth Mondragon’s unlawful Amendment arguable probable process detention detention That cause, therefore, Lyttle deprives in continued Mondragon resulted in the violation of his detention, of his without qualified E.g., Cannon, 1 F.3d at 144 (recognizing that includes after of rights. immunity defense. due conduct, it the was or “right should to be have free been from continued known that the detainee was entitled to release”). Regarding Lyttle’s Fifth Amendment claim, it would be clear to an ICE officer in Mondragon’s position that deporting a U.S. citizen violates that citizen’s constitutional rights. See Hope v. Pelzer, 536 U.S. 730, 739, 741 (2002) (“For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right . . . in the light of pre-existing law the unlawfulness must be apparent. . .even in novel factual omitted). circumstances”) (internal quotation marks As a trained ICE enforcement officer, Mondragon was on notice that the detention and deportation of a U.S. citizen violates that citizen’s rights safeguarded by the Fifth Amendment and, thus, failing to take reasonable steps to avoid these unconstitutional actions would lead to a constitutional 56 violation. See supra DISCUSSION I.B.1.a. (finding the same regarding Collado and Moten). The Hayes Memo strengthens Lyttle’s argument that Mondragon was aware that his conduct violated his constitutional rights. The issuance of the Hayes Memo should have heightened the awareness of a trained law enforcement officer, indicating to the officer that the Memo’s requirements were intended to avoid wrongful deportations of U.S. citizens and that such deportations violated the most fundamental constitutional right that a citizen possesses—the right to remain free in his home country. It is clear interrogation of Lyttle U.S. citizenship. that the because Hayes Memo 1. Memo applied Lyttle to Mondragon’s affirmatively claimed Nevertheless, Mondragon failed to fully investigate Lyttle’s claim: he failed to notify the Field Office Director that Lyttle claimed citizenship so that further investigation could be conducted and others in the chain of command could be consulted; and, he failed to ask probative questions designed to elicit investigation of the claim. information Id. at 2. to allow an Moreover, Lyttle alleges that Mondragon not only failed to act as required by the Hayes Memo, but he affirmatively took steps to expedite the unlawful removal by distorting the record and coercing Lyttle into signing an affidavit stating his name was “Jose Thomas” and his father was a citizen of Mexico. 57 Compl. ¶¶ 76-78. Lyttle alleges that because of this conduct, his removal proceeding was allowed to detention go forward, eventual and Mondragon’s policies, and expulsion conduct, he including demonstrates constitutional rights. a suffered from his continued the United violation deliberate unlawful of indifference States. the to Memo’s Lyttle’s See Cannon, 1 F.3d at 1563 (deliberate indifference is required to establish a substantive due process violation). The Court finds that Lyttle’s allegations against Mondragon state a claim for Amendment rights. sufficient violation of Lyttle’s Fourth and Fifth The Court further finds that Mondragon had notice constitutional a that rights. qualified immunity. his Thus, conduct Mondragon violated is not Lyttle’s entitled to See Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1284 (11th Cir. 1998) (stating that qualified immunity is overcome when “the conclusion for every like-situated reasonable government agent that what the defendant is doing violates federal law in the circumstances.”) (internal quotation marks omitted). Based on the foregoing, the Court denies Mondragon’s motion to dismiss Lyttle’s Fourth and Fifth Amendment claims. c. Defendant responsible DEFENDANT SIMONSE Simonse for was enforcement the of 58 ICE Field immigration Office laws Director in North Carolina and Georgia, including the officers and detainees at SDC during the relevant time period.14 Simonse issued the final Warrant the removed. of Removal/Deportation Compl. ¶ 93. after IJ ordered Prior to issuing that Warrant, Simonse conducted an additional database search on Lyttle. like others Lyttle’s U.S. done by Lyttle ICE, citizenship returned and his numerous Social That search, references Security corroborating Lyttle’s earlier claims of citizenship. to number, Id. ¶ 92. Simonse disregarded this information, failed to consult with the Office of Detention and Removal Operations or the Office of Chief Counsel as required by the Hayes Memo, and issued the Warrant declaring that Lyttle was subject to removal/deportation based on the final order of the IJ. Id. ¶¶ 92-93. Pursuant to this Warrant, ICE took Lyttle to the Mexican border and banished him from the United States. Id. ¶ 101. Lyttle has sued Simonse in his individual and supervisory capacities. Id. ¶ 14. “It is well established in this circuit that supervisory officials are not liable under [Bivens] for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability.” Gonzalez, 325 F.3d at 1234 (alteration in original) (internal quotation marks omitted). Therefore, “a plaintiff must plead that each Government-official defendant, 14 Lyttle did not sue Simonse in his pending action in the Eastern District of North Carolina. Am. Compl., Lyttle v. United States, No. 4:10-CV-142-D (E.D.N.C. Oct. 15, 2010), ECF No. 8. 59 through the official’s own individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948. Individual liability against a supervisor will lie in a Bivens action only when (1) “the supervisor personally participates in the alleged constitutional violation”; or (2) “there is a causal connection between the actions of the supervising official and the alleged constitutional violation.” Id. The Court finds that Simonse’s failure to take any action upon learning of evidence that corroborated Lyttle’s claim of U.S. citizenship substantially and his contributed subsequent to and issuance caused of the Lyttle’s Warrant continued detention and deportation, resulting in a denial of Lyttle’s Fourth and Fifth Amendment rights, as a U.S. citizen, not to be detained without probable cause and not to be banished from the United States. A Field Office Director’s job includes reviewing the custody of detainees. See 8 C.F.R. § 241.4(a), (c), (h), (k) and (establishing checks reviews by the Field Office Director while immigration detainees are in custody during the removal process); 8 C.F.R. § 287.5 (d)-(e) & 8 C.F.R. § 236.1 (enumerating exercise of powers by immigration officers, including Field Office Directors’ power to issue and execute warrants and notices of custody 60 determination and conduct searches).15 Simonse also had the authority to move to dismiss Lyttle’s removal proceedings on the grounds that Lyttle was a U.S. citizen. 8 C.F.R. § 239.2(c). The Court finds that as the Field Office Director Simonse further had a duty to “ensure that all affirmative individual claims U.S. within citizenship [his] area made by any of responsibility [were] appropriately reported and investigated.” Hayes Memo 1- 2. encountered to A Field Office Director must consult with headquarters and the local Office of Chief Counsel when affirmative claims of U.S. citizenship are made (1) before removal proceedings commence to determine if sufficient evidence exists to commence proceedings, and (2) when a claim is made after the issuance of a Notice action. to Appear to determine the appropriate course of Id. at 2. Simonse’s repeated failure claims of to take any citizenship action to ICE after Lyttle officers, made including Collado and Mondragon, and after finding evidence in the final record search citizenship detention rights. that corroborated substantially and deportation Lyttle’s contributed in violation to of claims Lyttle’s his of U.S. continued constitutional The Court finds that a reasonable officer in Simonse’s position as a Field Office Director would know that failing to 15 The former INS district directors are now titled “Field Office Directors,” but their functions remain the same. See 8 C.F.R. § 1.2. 61 do any follow up or consultation under these circumstances would be a denial of the facing deportation. constitutional Fourth is and not entitled Fifth (denying summary officers who of a U.S. citizen Simonse was further put on notice of these requirements by the Hayes Memo. Simonse rights to Therefore, the Court finds that qualified Amendment claims. judgment based should have known immunity Fils, on 647 F.3d qualified their for conduct Lyttle’s at immunity violated 1291 to the plaintiff’s Fourth Amendment rights). Defendants also contend that Simonse is entitled to quasijudicial immunity, claiming that he acted pursuant to the order of removal issued by the IJ. by absolute immunity. An immigration judge is protected See Butz, 438 U.S. at 514 (according absolute immunity to judges and officials of government agencies performing judge-like functions); Alyshah v. Hunter, No. 1:06CV-0931-TWT, 2006 WL 2644910, at *4 (N.D. Ga. Sept. 13, 2006) (finding that immigration judge was entitled immunity for role in immigration proceeding). absolute action quasi-judicial within his judicial process. Cir. 1994). the court’s or immunity, her an authority is absolute To qualify for official that to must take integral to an the Roland v. Phillips, 19 F.3d 552, 555 (11th An “implementing officer is protected in executing mandate.” Id. at 556. The Court rejects Defendants’ suggestion that Simonse was authorized to blindly 62 facilitate the IJ’s decision. He had an obligation, even after the IJ decision was made, to alert the appropriate persons with information demonstrating Lyttle’s U.S. citizenship. He was not merely tasked with implementing a court order, nor were his responsibilities or conduct sufficiently integral to judicial process to cloak him with judicial immunity. the He had duties and responsibilities independent of the IJ, and he cannot hide behind quasi-judicial immunity when he failed to meet those responsibilities and facilitated the removal of a United States citizen. See 8 C.F.R. §§ 236.1, 241.4(a), (c), (h), (k), (d)-(e). The Court finds that Simonse, therefore, 287.5 is not protected by absolute quasi-judicial immunity. The Court also finds that Lyttle has alleged a failure to train claim Construing against all Simonse reasonable as the Field inferences in Office Lyttle’s Director. favor, the Court reads his Complaint as alleging that Simonse was aware of the substantial risk of wrongfully detaining and deporting U.S. citizens, and responsibility that to train minimize this risk. Hayes Memo was as Field his Office Director subordinates Compl. ¶¶ 94-101. issued, he had the to he take had steps a to Moreover, after the duty to ensure that his subordinates understood and adhered to the Memo’s requirements that sought to enforce the clearly established citizens in the immigration and removal context. 63 rights of Hayes Memo 2. According to the obligations. Complaint, Therefore, Simonse the did Court not fulfill finds that these Lyttle’s allegations that Simonse knowingly failed to train his employees to minimize and avoid wrongful detentions and deportations properly alleges a violation of Lyttle’s constitutional rights as a U.S. citizen under the Fourth Amendment not to be arrested and detained without probable cause and under the Fifth Amendment not to be deported or subject to continued detention without probable cause. See Battiste v. Sheriff of Broward Cnty., 261 F. App’x 199, 201 (11th Cir. 2008) (per curiam) (“A supervisory official is liable under [Bivens] when his failure to train amounts to deliberate indifference to the rights of persons with whom the subordinates come into contact and the failure has actually caused the injury of which the plaintiff complains.”) (internal quotation marks omitted); Rivas v. Freeman, 940 F.2d 1491, 1495-96 (11th Cir. 1991) (finding that policymaker’s regarding “failure policymaker reliable reasonable to that would violate Therefore, alleges such the that adequately identification liability). officer notice to in Simonse’s failure a U.S. Court Simonse’s The is to satisfied 64 further position citizen’s to . . . techniques” Court train failure train under officers subjects finds been train a would have these circumstances constitutional that that a Lyttle’s violated on rights. Complaint a clearly established right, immunity. and Simonse is not entitled to qualified Cf. Battiste, 261 F. App’x at 202-03 (stating that qualified immunity for failure to train is abrogated only where the officer has fair warning of clearly established law). d. Hayes was DEFENDANT HAYES the Director of the Office of Detention and Removal Operations during the time relevant to Lyttle’s claims. Compl. ¶ 13. Lyttle maintains that Hayes violated his constitutional rights by not adequately protecting U.S. citizens from wrongful deportation when he drafted the Hayes Memo, which Lyttle argues was entirely inadequate, and when he failed to adequately train his subordinates. Lyttle alleges insufficient” guidance that to the ICE Memo provided officers regarding “woefully the proper investigation and handling of claims of U.S. citizenship. ¶ 73. The Court notes that Hayes can only be subject Id. to individual liability arising from the creation of the Hayes Memo if his creation of that memo can be causally connected to the constitutional violation. Gonzalez, 325 F.3d at 1234. The Court finds that Lyttle has not sufficiently alleged a causal connection between Hayes’s preparation of his memo and the alleged violation of Lyttle’s Fourth and Fifth Amendment rights. From Lyttle’s allegations, it is not reasonable to conclude that Hayes was on notice that his Memo was so deficient that it would 65 lead to the wrongful detention and deportation of U.S. citizens, including Lyttle, Amendment in rights. violation of their Fourth and Fifth Accordingly, Hayes is entitled to qualified immunity as to Lyttle’s claim involving the creation of the Hayes Memo. See Dalrymple v. Reno, 334 F.3d 991, 997 (11th Cir. 2003) (holding that the supervisory defendant is entitled to qualified immunity “because [plaintiffs] failed to allege facts that would establish a causal connection between [defendant’s] supervisory actions and the alleged constitutional violations by the officers on the scene.”). The Court finds, however, that alleged a failure to train claim. addressing deficiencies in Lyttle has sufficiently Hayes’s Memo was aimed at ICE investigations of U.S. citizenship claims, and Lyttle alleges that the Memo shows that Hayes clearly understood that there was an unacceptable risk within his department of detaining and deporting U.S. citizens if his subordinates did not employ adequate safeguards. ¶ 63. Compl. According to Lyttle’s allegations, however, Hayes did not reasonably assure similarly designed constitutional that rights, the to were measures safeguard in his a citizen implemented, detention and deportation of Lyttle. as Memo, or ones detainee’s evidenced by the Lyttle alleges that he was wrongfully detained and deported in large part because of this failure to train. 66 The Court finds that Hayes was on notice that detention of a U.S. citizen without probable cause and the removal of that citizen from the United States violated that individual’s rights under the Fourth and Fifth Amendments. The Court further finds that Lyttle has sufficiently alleged that Hayes understood that if measures followed similar that to these those wrongful outlined in detentions his and Memo were removals not would occur, and yet, according to Lyttle’s complaint, Hayes failed to take reasonable steps to assure that his subordinates were adequately trained to take the necessary precautions designed to avoid the detention and removal of United States citizens. Lyttle has alleged a failure to train constitutional claim under the Fourth and Fifth Amendments, and Hayes is not entitled to qualified immunity on that claim. Battiste, 261 F. App’x at 201-02; Rivas, 940 F.2d at 1495-96. e. DEFENDANTS JOHNSTON AND KEYS After Lyttle returned to the United States, he was detained and interrogated by ICE enforcement officers Johnston and Keys, who had discovered from a routine database search that Lyttle was a previously deported alien with a criminal history. ¶ 119. Compl. Lyttle informed Johnston of his U.S. citizenship, his removal and his travels through Mexico and Central America. He also showed the agents his U.S. passport and airline ticket, and had his adoption papers faxed 67 to them showing his U.S. citizenship. Id. ¶¶ 121-24. Johnston Keys and detained Relying on the database search, and Id. removal order against him. Lyttle 125. ¶ issued an expedited After two days of detention, Lyttle was eventually released from custody because of demands from an attorney retained by Lyttle’s family. Id. ¶¶ 127-28. Johnston and Keys faced a difficult predicament. evidence United presented States that documentation. they to checked, he Lyttle’s official by was a someone U.S. seeking citizen to with enter the appropriate However, the official government record, which demonstrated lawfully deported. of them They had that this same person had been At that time, they were not personally aware wrongful government removal. record previously deported alien. They listed him simply as knew an that the illegal and Under these circumstances, the Court cannot find that a reasonable officer under these circumstances would have been on notice that their detention of Lyttle was a clear violation of Lyttle’s constitutional rights. Johnston and Keys are entitled to qualified Accordingly, immunity, and Lyttle’s claims against them in their individual capacity must be dismissed. f. DEFENDANT MOORE Lyttle’s Complaint contains no specific allegations about Defendant Moore’s conduct. Lyttle argues that the Complaint 68 alleges facts about Moore in paragraphs 86 and 93, and that Defendant Moore “could have been the ICE agent to have conducted the additional citizenship that investigatory should prevented his removal.” searches have resulted into in Mr. his Lyttle’s release and Pl.’s Resp. in Opp’n to the Individual Federal Defs.’ Mot. to Dismiss 2-3, ECF No. 57. The Complaint, however, contains no mention of Moore in those paragraphs or evidence substantiating his conjectured involvement. See Compl. ¶ 86 (stating facts about the IJ); id. ¶¶ 92-93 (stating facts about ICE Field Office Director Raymond Simonse and an “ICE Doe Defendant”). Moore is only identified in the Complaint as an ICE agent sued in his individual capacity. Id. ¶ 18. The Complaint contains no other mention of Moore and only conclusory statements about the “ICE Defendants” generally. 97. E.g., id. ¶ The Court finds that Lyttle has failed to state a claim against Moore, and therefore the Court grants Defendants’ motion to dismiss as to all claims against Defendant Moore. 2. Fifth Amendment Equal Protection Claim In addition to his Fourth Amendment unreasonable seizure claim and his Fifth Amendment due process claim, Lyttle makes broad and conclusory claims that the ICE Defendants discriminated against him on the basis of his race and ethnicity in violation of the Fifth Amendment. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need 69 detailed factual allegations, . . . a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” at 555 (second alteration in original) (internal quotation marks omitted). must allege some factual detail as Twombly, 550 U.S. (citations omitted) To this end, “a plaintiff the basis” for a claim. Keating, 598 F.3d at 763. Lyttle alleges that “[b]y illegally detaining [him] and/or causing his deportation to Mexico, ICE Defendants deliberately and unconstitutionally discriminated against [him] on the basis of his race and ethnicity so as to deny him equal protection of the law in violation of the Fifth Amendment.” Compl. ¶ 138. He alleges with to ICE Defendants acted in accordance policies “[s]elect inmates to detain, interrogate, and deport based on their race and/or ethnicity” and “habit” “to presume foreign citizenship of inmates based appearance, and/or surname.” on their Id. ¶¶ 94-95. race, ethnicity, Lyttle also alleges that the Defendants’ failure to fully evaluate the records of his U.S. citizenship, “reflects a deliberate indifference by ICE . . . to the rights and well-being of inmates who are, or are perceived to be, racially/ethnically Latino.” Id. ¶ 100. Lyttle makes no specific allegations against any particular Defendant as to the role that race or ethnicity played in the 70 alleged misconduct towards Lyttle. Instead, Lyttle generally lumps all the ICE Defendants together and alleges in conclusory fashion that they discriminated against him because of his race and ethnicity. conclusory showing Id. ¶ statements, 22, Lyttle 138-42. has Beyond not these specific alleged broad, facts discriminatory intent or purpose on the part of individual Defendant, necessary element of even any though discriminatory discrimination intent claim. any is Village a of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). The Supreme Court stated in Iqbal that a plaintiff’s pleading that government officials subjected him to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin” and that government officials created, adopted, and executed this policy constituted “bare assertions” and amounted “to nothing more than a ‘formulaic constitutional recitation discrimination of claim.” the 129 elements’ S. Ct. at of a 1951 (alteration in original) (quoting Twombly, 550 U.S. at 555). The Iqbal court concluded these allegations “conclusory and not entitled to be assumed true.” Lyttle’s allegations in support of his were, thus, Id. equal protection claim are nearly identical to those in Iqbal and, therefore, are conclusory. the Moreover, they are not specific enough to overcome qualified immunity defenses 71 asserted by the individual Defendants. For all of these reasons, the Court finds Lyttle’s conclusory allegations fail to state a claim of unconstitutional discrimination and grants ICE Defendants’ motion to dismiss claim 2. II. United States and Motion to Dismiss Official Capacity Federal Defendants’ The United States and the official capacity Defendants also filed a motion to dismiss. U.S. & Official Capacity Defs.’ Mot. to Dismiss & for Summ. J., ECF No. 47. Defendants seek to dismiss claims 4 and 5 against them as jurisdictionally barred under Rule 12(b)(1). The United States moves to dismiss claims 6, 7, and 9 against it on the same grounds and alternatively under Rule 12(b)(6). A. Claims 4 and 5: Rehabilitation Act and Due Process In claim 4, Lyttle seeks monetary damages and injunctive relief for the Defendants’ alleged violations of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. In claim 5, Lyttle seeks violations injunctive relief Fifth Amendment rights. to prevent future of his Defendants move to dismiss these claims under Rule 12(b)(1). 1. Sovereign Immunity as a Bar to Monetary Damages Defendants contend they are entitled to sovereign immunity as to claims under § 504 of the Rehabilitation Act, insofar as 72 Lyttle seeks monetary damages.16 Lyttle agrees that his claim for damages under § 504 of the Rehabilitation Act is precluded by sovereign immunity, and he withdrew that claim to the extent it seeks damages. Pl.’s Resp. in Opp’n to U.S. & Official Capacity Defs.’ Mot. to Dismiss & for Summ. J. 4-5, ECF No. 56. The Court finds this claim subject matter jurisdiction.17 properly dismissed for lack of See Lane v. Pena, 518 U.S. 187, 192 (1996) (“The clarity of expression necessary to establish a waiver of the Government’s sovereign immunity against monetary damages for violations of § 504 [of the Rehabilitation Act] is lacking in the text of the relevant provisions.”). 2. Standing to Seek Injunctive Relief Defendants also argue that the Court has no subject matter jurisdiction over claims 4 and 5 because Lyttle lacks standing insofar as he seeks injunctive relief. As to claim 4, Lyttle seeks injunctive relief to avoid further injury caused by the lack of procedural disabilities in the safeguards detention, 16 for people immigration with court, mental and Defendants also sought to dismiss Lyttle’s Fifth Amendment due process claim, claim 5, on this ground. Lyttle, however, did not seek monetary damages in that claim. 17 Although the Complaint states that Defendant Hayes “is sued in his supervisory and individual capacity,” Compl. ¶ 13, it appears that claim 4 is asserted against Hayes in his official capacity. See Compl. ¶ 153. Moreover, § 504 of the Rehabilitation Act does not provide for individual capacity suits against government officials. E.g., Miller v. King, 384 F.3d 1248, 1277 (11th Cir. 2004), vacated on other grounds in 449 F.3d 1149 (2006). For the same reasons the Court dismisses this claim as to the official capacity defendants, the Court dismisses the claim as to Hayes. 73 deportation systems in violation of the Rehabilitation Act. Compl. ¶ 165. In claim 5, Lyttle seeks injunctive relief that would verification require of a detainee’s citizenship to prevent Lyttle from again being erroneously identified as a noncitizen and deported. The plaintiff constitutional Id. ¶¶ 168-71. bears the requirements burden of of standing: establishing (1) the the plaintiff suffered an injury; (2) the injury is causally connected to the conduct complained of; and (3) the injury will be redressed by a favorable decision. Cir. 2006). Elend v. Basham, 471 F.3d 1199, 1206 (11th As to the first requirement for injunctive relief, a plaintiff must “allege, and ultimately prove[], a real and immediate—as opposed to a merely conjectural or hypothetical— threat of future injury.” Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994). “Logically, a prospective remedy will provide no relief for an injury that is, and likely will remain, entirely in the past.” Id. (internal quotation marks omitted). Defendants injunctive contend relief requirement. that because he Lyttle has lacks not v. Lyons, 461 U.S. 95, 105 (1983). that satisfied to the seek first Defendants argue Lyttle has not alleged a “real and immediate threat” of repeated injury. contend standing Lyttle has not shown 74 City of Los Angeles Specifically, Defendants a real threat of “being interviewed by ICE, misidentified as a non-citizen, placed in removal proceedings, and ordered removed.” Mem. in Supp. of U.S.’ & Official Capacity Defs.’ Mot. to Dismiss & for Summ. J. 14, ECF No. 47-1 [hereinafter U.S. Mem.]. Further, Defendants argue that this injury is unlikely to repeat itself because the Department of Homeland Security has recognized Lyttle as a citizen and the IJ terminated Lyttle’s removal proceedings with prejudice. Id. Lyttle nevertheless claims that he “has suffered and is likely to again suffer irreparable injury, and is entitled to injunctive relief to avoid further injury.” 171. The key inquiry at this stage is whether Lyttle has “shown a real and immediate threat of future harm.” 1207. an Compl. ¶¶ 165 & “The binding precedent in this circuit is clear that for injury to suffice imminent.” Id. threatened injury immediacy.” Servs., to for prospective relief, it must be In other words, it must be plausible that the will “proceed with a high degree of 31 Foster Children v. Bush, 329 F.3d 1255, 1266-67 (11th Cir. 2003). enough Elend, 471 F.3d at The mere chance of an injury occurring is not establish 233 requirements specificity.” F.3d must standing. 1331, 1340 be pleaded Bowen (11th with v. Cir. a First 2000). “fair Family Fin. Standing degree of Steele v. Nat’l Firearms Act Branch, 755 F.2d 1410, 1414 (11th Cir. 1985). 75 Under these insufficient. standards, Lyttle has Lyttle’s failed to allegations show a likelihood or a “realistic danger” of future injury. are substantial He has not alleged when, if ever, the injuries he seeks to prevent may occur. In Lyons, the Supreme Court noted that the plaintiff would have to make a series of “incredible assertions” to have standing on his claim for injunctive relief—including allegations that he would be stopped for a traffic violation and would Lyons, be subjected 461 U.S. to a chokehold 107-08. Just as without in any Lyons, “a provocation. sequence of individually improbable events would have to occur” for Lyttle to sustain a future injury similar to that which he allegedly suffered at the hands of the Defendants. See Fla. State Conference of NAACP v. Browning, 522 F.3d 1153, 1162 (11th Cir. 2008) (analyzing the denial of standing in Lyons). Lyttle would have to do something to cause a Here, (1) run-in with immigration officials, (2) ICE would have to have authorized all immigration officials to ignore citizenship records, (3) ICE agents would have to ignore records of Lyttle’s citizenship and declare him an alien, and (4) Lyttle would have to be ordered removed. This unlikely combination of future events is merely speculative and does not satisfy the injury in fact requirement of standing. Lyons, 461 U.S. at 107-08. 76 Lyttle asserts his case is different than Lyons because he was targeted based on his mental disabilities. Significantly, however, Lyttle still fails to show that any injury is likely or imminent. The Court also rejects Lyttle’s argument that the fact that he was already harmed twice—first by being detained and deported returning to and the second by United the threat of States—establishes deportation standing. upon Lyttle relies on the Ninth Circuit’s statement that “[t]he possibility of recurring injury ceases to be repeated incidents are documented.” speculative when actual Nicacio v. United States, 797 F.2d 700, 702 (9th Cir. 1985), overruled by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999) (en banc) (finding that injury to unnamed class members was “irrelevant to the question whether injunctive relief). the named plaintiffs” were entitled to The Eleventh Circuit does not find past repetition controlling in a standing inquiry, but rather focuses on future imminent harm as discussed above. 31 Foster Children, 329 F.3d at 1266. Moreover, the termination of Lyttle’s removal proceedings makes it exceptionally tenuous that Lyttle detained, declared an alien, and deported. could again be After Lyttle made his way back to the United States, the Department of Homeland Security moved to terminate the removal proceedings Lyttle based on the fact that he is a U.S. citizen. 77 against DHS Mot. 2. In response, terminated the with IJ ordered prejudice. Lyttle’s U.S. removal Mem. Ex. J, proceedings Order of alleged an Immigration Judge, Apr. 28, 2009, ECF No. 47-3 at 26. For the forgoing imminent future injury. reasons, Lyttle has not “If the plaintiff fails to meet its burden, this court lacks the power to create jurisdiction by embellishing a deficient allegation of injury.” at 1206. Elend, 471 F.3d Accordingly, the Court finds Lyttle lacks standing to seek injunctive relief, and grants Defendants’ motion to dismiss claims 4 and 5. B. Lyttle’s Tort Claims Lyttle also asserts claims against the United States under the FTCA based on the acts of the ICE Defendants. The FTCA provides a limited waiver of immunity “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1); accord Sheridan v. United States, 487 U.S. 392, 400-01 (1988). States “under The FTCA permits circumstances where claims the against United the States, United if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). torts of false Lyttle’s FTCA claims are based upon the imprisonment, 78 negligence, and intentional infliction of emotional distress. The Court examines each claim separately. 1. False Imprisonment In claim 6, Lyttle asserts a claim for false imprisonment against the apprehension, United States detention, and based on the deportation ICE of consent, probable cause, or legal authority. Defendants’ Lyttle without The United States argues it is entitled to sovereign immunity on this claim under the “due care exception” to FTCA liability. Under the due care exception, the FTCA does not apply to “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid.” 28 U.S.C. § 2680(a). In asserting this exception, the United States ignores the plain meaning of another statutory provision that applies directly to Lyttle’s false imprisonment claim. That provision makes clear that sovereign immunity will not apply “with regard to acts or omissions of investigative or law enforcement officers of the United States Government, . . . to any claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” 28 U.S.C. § 2680(h). The Eleventh Circuit adheres to the “plain meaning and clear purpose of [§ 2680(h)],” concluding “if a claim is one of those listed in the proviso to subsection (h) . . . sovereign immunity is 79 waived.” Nguyen v. United States, 556 F.3d 1244, 1256-57 (11th Cir. 2009). ICE agents are “empowered by law to execute searches, to seize evidence, [and] make arrests for violations of Federal law.” Id. at 1252; see 8 U.S.C. § 1357(a)-(c) (enumerating immigration officer’s powers). Therefore, the Court finds they are law enforcement officers as contemplated by § 2680(h), and accordingly Lyttle’s false imprisonment claim is not subject to § 2680(a)’s immunity. due care exception to the waiver of sovereign Having found jurisdiction to consider Lyttle’s false imprisonment FTCA claim, the Court must next determine whether Lyttle’s allegations state a claim for false imprisonment under Georgia law. See Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir. 2001) (finding that FTCA claims are governed by the law of the state where the alleged tortious activity occurred). Under Georgia law, “[f]alse imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person O.C.G.A. § 51-7-20. essential elements: unlawfulness. is deprived of his personal liberty.” The tort of false imprisonment has two a detention and the detention’s Ferrell v. Mikula, 295 Ga. App. 326, 329, 672 S.E.2d 7, 10 (2008). Lyttle alleges that he was unlawfully detained when he was: (1) taken into custody by the ICE Defendants in Georgia; (2) 80 detained by the ICE Defendants in Georgia while they were in the process of removing him from the United States; (3) expelled from the United States and prevented from returning; and (4) detained upon his reentry to the United States. 58, 119-25, 173. detained, thus, Compl. ¶¶ 56- Lyttle has sufficiently alleged that he was satisfying imprisonment claim. the first element of his false The United States argues that Lyttle cannot satisfy the second element of his claim, unlawfulness of the detention, because he was detained by “valid legal process.” Lyttle responds that he was not detained pursuant to valid legal process because the ICE Defendants had no authority to detain a U.S. citizen, evidence particularly indicating that when they they had had no readily reasonable available basis or probable cause to suspect he was an alien. The Court has exhaustively described the factual allegations in Lyttle’s Complaint supporting his contention that the ICE cause. Defendants unlawfully detained See supra DISCUSSION I.B.1. sufficiently satisfy imprisonment claim, the the second him probable Those factual allegations element unlawfulness without of of his Lyttle’s detention. false See Redd, 140 F.3d at 1382 (to be lawful, detention that is more than a mere investigatory stop or an arrest must be supported by probable cause); Williams v. Smith, 179 Ga. App. 712, 714, 348 S.E.2d 50, 52 (1986) (“[W]here a person is unlawfully detained 81 under a void process, or under no process at all, false imprisonment is an available remedy . . . [if] the detention without supporting process was [not] legally authorized under the circumstances.”). Even if the initial detention order and warrant issued by North Carolina ICE was facially valid, the subsequent detention documents issued by the ICE Defendants in Georgia lacked probable cause. Lyttle alleges that the ICE Defendants failed to evaluate the clear evidence presented to them that Lyttle was a U.S. citizen. detention reasonable of Lyttle belief indifference to in that his the he absence was legitimate an Further, their continued of probable alien claims of showed cause a or a conscious citizenship. See Cannon, 1 F.3d at 1563 (recognizing a “constitutional right to be free from continued detention after it was or should have been known that the detainee was entitled to release”); Downey v. Wilkins, 467 F.2d 1022, 1025 (5th Cir. 1972) (concluding that “mere good intentions which do not give rise to a reasonable belief that detention is lawfully required cannot justify false imprisonment”). For all of these reasons, the Court finds that the United States’ motion to dismiss Lyttle’s false imprisonment FTCA claim must be denied. 82 2. Negligence and Intentional Emotional Distress Claims Infliction of Lyttle also asserts claims of negligence and intentional infliction of emotional distress. Before determining whether Lyttle has adequately alleged the essential elements of these two separate torts under Georgia law, the Court must first address Defendants’ contention that the Court lacks jurisdiction to consider these claims because the discretionary function and/or due care exceptions to the FTCA waiver of immunity apply here. a. For these DISCRETIONARY FUNCTION EXCEPTION two types of torts, the FTCA does not waive sovereign immunity if the claims are “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” this discretionary immunity bars 28 U.S.C. § 2680(a). function suit against exception the to United To determine whether the FTCA States, waiver the of courts generally decide: (1) “whether the challenged act or omission violated a mandatory regulation or policy that allowed no judgment or choice;” and (2) whether the conduct is grounded in “developing or carrying out public policy.” Autery v. United States, 992 F.2d 1523, 1526-27 (11th Cir. 1993). 83 If, however, a “federal statute, regulation, or policy specifically prescribes a course of action, embodying a fixed or readily ascertainable standard,” then the government employee’s conduct is not within the exception. Id. at 1529; accord Ala. Elec. Coop, Inc. v. United States, 769 F.2d 1523, 1529 (11th Cir. 1985). The Court finds that taking the facts in the light most favorable to Lyttle as it must at this stage of litigation, Lyttle has sufficiently alleged that during the time the ICE Defendants policies detained Lyttle specifically allegations take prior prescribed the ICE a federal a his statute, deportation, course Defendants’ discretionary function exception. (“[i]f to of action. conduct outside standard regulation, . . . a These of the See Autery, 992 F.2d at 1529 or policy prescribes a course of action, embodying a ascertainable certain government specifically fixed or readily employee’s conduct [will] not fall within the discretionary function exception.”) (citations omitted) Specifically, Although Lyttle Lyttle (internal points alleges to quotation the INA alternatively and that marks the the omitted). Hayes Memo Memo. was deficient in adequately protecting his rights, Lyttle points to the Memo’s mandatory requirements with which one or more of the ICE Defendants was required to comply. I.B.1.b. (discussing Hayes Memo). See supra DISCUSSION The Court rejects the United States’ narrow characterization of the Memo’s requirements as 84 being limited interrogation to and broad general investigative suggestions techniques. As regarding previously explained, the Hayes Memo requires certain specific acts and reporting up the chain of command by ICE officers. DISCUSSION I.B.1.b. See supra The Court finds that Lyttle has adequately pled sufficient facts to avoid the discretionary function bar to the United States’ FTCA liability. b. DUE CARE EXCEPTION The United States also contends that the due care exception to FTCA liability bars Lyttle’s negligence infliction of emotional distress claims. and intentional A two-part inquiry is used to determine whether the due care exception applies. Welch v. United States, 409 F.3d 646, 652 (4th Cir. 2005) (citing Crumpton “First, question v. we Stone, determine specifically officer to follow.” 59 F.3d whether 1400, 1403 (D.C. the statute or proscribes Id. a course of Cir. 1995)). regulation action for in an “Second, if a specific action is mandated, we inquire as to whether the officer exercised due care in following the dictates of that statute or regulation.” Id. Sovereign immunity is not waived if due care is exercised. Id. Lyttle contends that the due care exception does not apply because the ICE Defendants carried out their responsibilities under the pertinent statutes and regulations 85 inappropriately, without due care. transferred to The United States argues that once Lyttle was ICE Defendants as a deportable alien, as determined by North Carolina ICE officials, his detention and deportation were mandatory and carried out with due care. The Court finds that under the circumstances alleged here, Lyttle’s continued detention and ultimate deportation were not mandatory or carried out with due care. As previously explained in the context of Lyttle’s Bivens claims, the ICE Defendants were required to take certain actions when Lyttle made a claim of U.S. citizenship. Instead of taking those mandatory actions, Lyttle alleges that the ICE Defendants did nothing. Defendants simply rubber-stamped initiated by North Carolina Lyttle’s claim of citizenship evidence. Moreover, they the ICE and allegedly removal officers paper work notwithstanding available coerced The ICE corroborating him into making inconsistent statements, taking advantage of his known mental deficiencies. record and Their actions resulted in a distorted and false facilitated the continued deportation of a U.S. citizen. detention and eventual The Court finds that at this stage of the litigation, Lyttle has sufficiently alleged enough to overcome the due care exception to FTCA liability. 86 c. SUBSTANTIVE CLAIMS OF NEGLIGENCE AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS The United States maintains that even if the discretionary function and due care exceptions do not bar its FTCA liability, Lyttle has not sufficiently alleged the essential elements for the torts of intentional infliction of emotional distress and negligence under Georgia law. See 28 U.S.C. § 2674 (imposing tort liability on the United States under “the law of the place where the act or omission complained of occurred . . . in the same manner and to the same extent as a private individual under like circumstances”). The Court will evaluate each claim in turn. To sustain a claim of intentional infliction of emotional distress under Georgia law, a plaintiff must plead the following four elements: (1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was “extreme and outrageous”; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. Miraliakbari v. Pennicooke, 254 Ga. App. 156, 157, 561 S.E.2d 483, 486 (2002). The United States plead asserts that Lyttle failed to sufficiently the second element because “Lyttle has not come close to pleading conduct that is sufficiently extreme and outrageous.” 32. U.S. Mem. To meet this element, conduct must be “so extreme as to go beyond all reasonable bounds of decency, and to be regarded as 87 atrocious, and utterly intolerable in a civilized community.” Miraliakbari, 254 Ga. App. at 160, 561 S.E.2d at 488 (internal quotation marks omitted). by Lyttle, meets this The ICE Defendants’ conduct, as pled standard: ICE Defendants unlawfully detained a mentally impaired U.S. citizen without any reasonable basis for concluding that he was not a citizen; deprived him of his liberty by continuing to detain him after he claimed U.S. citizenship; refused to investigate and follow reporting policies when he claimed U.S. citizenship; removed and deported him from the United States despite clear evidence of his citizenship forcing him to wander around Central America for months with no way to support himself; and then detained him again upon his return to the United States after his family thought they had finally cleared up any confusion as to his citizenship status. Cf. K-Mart Corp. v. Lovett, 241 Ga. App. 26, 29, 525 S.E.2d 751, 755 (1999) (finding conduct sufficiently outrageous where defendants falsely stated plaintiff had shoplifted and knew plaintiff would be jailed and did not take any steps to end the incarceration for twenty-four days despite knowing plaintiff was innocent), abrogated on other grounds in Golden Peanut Co. v. Bass, 249 Ga. App. 224, 233-34, 547 S.E.2d 637, 646 (2001) Defendants’ outrageous (en alleged to amount banc). The conduct was to Court intentional 88 finds sufficiently infliction that the ICE extreme or of emotional distress such that “an average member of the community would . . . exclaim, ‘Outrageous!’” Turnage v. Kasper, 307 Ga. App. 172, 182, 704 S.E.2d 842, 852 (2010) (internal quotation marks omitted). The United States also contends that Lyttle failed to assert a claim of negligence because Georgia law lacks a common law analog laws. to the negligent enforcement of U.S. immigration In other words, a private person would not be liable in like circumstances under Georgia law. too narrowly. statutory Defendants read the FTCA The Supreme Court has made it clear that the phrase “like circumstances” does not restrict a court’s inquiry to the same circumstances, but rather courts must look to analogous relationships and duties under state tort law. United States v. Olson, 546 U.S. 43, 46-47 (2005); see also Pate v. Oakwood Mobile Homes, Inc., 374 F.3d 1081, 1084 (11th Cir. 2004) (noting that the “comparison of activities need not be Georgia exact.”) law, the (internal elements quotation of a marks negligence omitted). claim Under are “the existence of a duty on the part of the defendant, a breach of that duty, causation of the alleged injury, resulting from the alleged breach of the duty.” and damages Rasnick v. Krishna Hospitality, Inc., 289 Ga. 565, 566, 713 S.E.2d 835, 837 (2011). Lyttle asserts that “ICE Defendants breached their duty of reasonable care by negligently acting or failing to act in 89 such a way that resulted in Mr. Lyttle’s wrongful detention and deportation by ICE, which these Defendants knew or should have known posed a substantial risk of grave harm to Mr. Lyttle.” Compl. ¶ 179. Lyttle alleges specifically that the Defendants were negligent in performing their duties by: failing to review available documentation of Lyttle’s citizenship; failing to investigate Lyttle’s claims of being born in the United States; coercing and manipulating him into signing a Notice of Rights form without assisting him in understanding his rights, reading the form, or protecting him from coercion despite his mental disabilities; failing to adequately train and supervise ICE officers; and detaining, holding, and deporting a U.S. citizen. Id. ¶ 180. The general Court finds negligence Georgia law. that claim these for allegations arrest and support confinement a under See, e.g., Corp. Prop. Investors v. Milon, 249 Ga. App. 699, 705, 549 S.E.2d 157, 163 (2001). analogous would negligent infliction of They also support an emotional distress claim. See, e.g., Clarke v. Freeman, 302 Ga. App. 831, 836, 692 S.E.2d 80, 84-85 (2010) (recognizing negligent infliction of emotional distress claim even with no “impact” if conduct is willful or wanton). Lyttle has adequately pled a claim for negligence for purposes of FTCA liability. 90 Having found consideration of no jurisdictional Lyttle’s claims bar and to the finding Court’s that the allegations state viable claims under Georgia law, the Court finds that negligence the and United States’ intentional motion infliction to Lyttle’s emotional of dismiss distress claims under the FTCA must be denied.18 CONCLUSION Defendants’ motions to dismiss granted in part and denied in part. (ECF Nos. 47 & 49) are Specifically, the Court dismisses the following claims: (1) the official capacity claims against Defendants James Hayes, Eric Holder, John Morton, Janet Napolitano, and Thomas Snow; (2) the individual capacity Bivens equal protection claims as to all Defendants against whom they are asserted; (3) the individual capacity Bivens Fifth Amendment due process claims against Defendants Johnston, Keys, and Moore; and (4) the individual capacity 18 Bivens Fourth Amendment The United States argues that if the Court does not dismiss Lyttle’s FTCA claims, it should find that recovery for any surviving FTCA claim is limited to the injuries Lyttle suffered in the United States based on the FTCA foreign country exception, 28 U.S.C. § 2680(k). This exception preserves sovereign immunity for any harm that arises solely outside the United States and, thus, bars “‘all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred.’” Gil-Perenguez v. United States, 449 F. App’x 781, 783 (11th Cir. 2011) (per curiam) (quoting Sosa v. AlvarezMachin, 542 U.S. 692, 712 (2004)). The Court reserves for trial the issue of whether Lyttle’s damages for continuing harm that originated in the United States are recoverable. 91 unreasonable seizure claims against Johnston, Keys, and Moore.19 The following claims remain pending: (1) the Bivens Fifth Amendment due process claims against Defendants Collado, Moten, Mondragon, Simonse, and Hayes; (2) the Bivens Fourth Amendment unreasonable seizure claims against Defendants Collado, Moten, Mondragon, Simonse, and Hayes; and (3) the Federal Tort Claims Act claims against the United States for false imprisonment, negligence, and intentional infliction of emotional distress. 20 Plaintiff’s Motion for Leave to Correct Formatting Error (ECF No. 62) is unopposed and moot after issuance of this Order. Within 21 days of this Order, the parties shall submit a joint proposed scheduling order setting out a proposed schedule for the management of this action given today’s rulings. The proposed for Defendants claim 8. scheduling to re-file order their shall include summary a judgment schedule motion as to In light of this ruling, Lyttle’s Motion for Leave to File Response Out of Time (ECF No. 61) is moot. 19 Accordingly, no claims remain against Defendants Johnston, Keys and Moore. 20 The following claims, which were not included in the Defendants’ motions to dismiss, also remain pending: (1) Plaintiff’s FTCA negligence claim against the United States related to medical care Plaintiff received while detained; (2) Plaintiff’s 42 U.S.C. § 1983 claims against Georgia Does 1-10; and (3) Plaintiff’s Georgia False Arrest, False Imprisonment, Negligence, Intentional Infliction of Emotional Distress claims against Georgia Does 1-10. 92 IT IS SO ORDERED, this 31st day of March, 2012. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 93

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