Aguilar v. Immigration & Customs Enforcement Div. of the United States of America Dep't of Homeland Sec.

811 F.Supp.2d 803

Adriana AGUILAR, et al., Plaintiffs,

v.IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES of America DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

No. 07 Civ. 8224(JGK).

United States District Court, S.D. New York.

Aug. 1, 2011.

Donna Lynn Gordon, Kelly Hsiao-I Tsai, Aldo A. Badini, Jennifer Opheim Whitener, Kelly Anne Librera, Rebecca Marie Reilly, Urvashi Sen, Dewey & Leboeuf, L.L.P., Foster S. Maer, Ghita Schwarz, Jackson Chin, Puerto Rican Legal Defense and Education Fund, Inc., Christina Iturralde, Latinojustice Prldef, New York, NY, for Plaintiffs.

Elizabeth Wolstein, Lara K. Eshkenazi, David Vincent Bober, Shane Patrick Cargo, U.S. Attorney's Office, New York, NY, for Defendants.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiffs, twenty-five individuals whose homes were searched by agents of the Immigration and Customs Enforcement Division of the Department of Homeland Security (“ICE”) during eight operations between February and September of 2007, bring this putative class action against ICE; Michael Chertoff, the former Secretary of the Department of Homeland Security (“DHS”); Julie Myers, the former Assistant Secretary of ICE; John Torres, the former Director of ICE's Office of Detention and Removal Operations (the “DRO”); and Marcy Forman, the former Director of ICE's Office of Investigations (the “OI”) (Chertoff, Myers, Torres, and Forman, together, the “Supervisory Defendants”); a number of additional individual defendants, primarily ICE agents, officers, and supervisors; and the United States. The plaintiffs contend, among other things, that the operations at issue were conducted in a manner that violated their rights under the Fourth and Fifth Amendments to the United States Constitution. The plaintiffs seek injunctive relief, damages from the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq., and damages from the individual defendants under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

The Supervisory Defendants have moved to dismiss the claims against them, and all defendants have moved to dismiss the claims for injunctive relief.

I.

On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiffs' favor. Roth v. Jennings, 489 F.3d 499, 501 (2d Cir.2007). The Court's function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Velez v. Levy, 401 F.3d 75, 80 (2d Cir.2005) (internal quotation marks and citation omitted). The Court should not dismiss the complaint if the plaintiff has alleged “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). While detailed factual allegations are not required, the pleading must include more than an “unadorned, the-defendant-unlawfully-harmed-me accusation,” “ ‘labels and conclusions,’ ” “ ‘a formulaic recitation of the elements of a cause of action,’ ” or “ ‘naked assertion[s].’ ” Iqbal, 129 S.Ct. at 1949 (alteration in original) (quoting Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955). Accordingly, the basic principle that a court must accept all allegations as true is inapplicable to either legal conclusions or “mere conclusory statements.” Id. A court can thus begin its analysis of the sufficiency of pleadings by “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

A.

The plaintiffs' fourth amended complaint (the “Complaint”) makes the following allegations with respect to the ICE operations at issue in this case. The first four searches were conducted by agents of the DRO.

On February 20, 2007, at 4:30 or 5:00 a.m., the East Hampton residence of plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia–Leon, and Carson Aguilar, all of whom are United States citizens, was raided by agents of the DRO pursuant to “Operation Return to Sender.” According to the Complaint, eight armed agents pounded on the front door of the home, entered and searched the home without a warrant and without consent, stormed into a bedroom containing a sleeping mother and her child, and detained and interrogated family members while blocking exits. The agents were looking for Adriana Aguilar's ex-husband, whom she had divorced five years earlier, and who no longer resided in the house. As they were leaving, one of the agents said that they would return. Fourth Amended Class Action Complaint ¶¶ 23, 190–241 (“Compl.”).

Between 4:00 and 5:00 a.m., on the same date and as a part of the same operation, the same team of armed agents raided the East Hampton home of plaintiff Nelly Amaya without requesting or receiving consent to enter and without showing any warrant, detained and interrogated residents, and twisted Ms. Amaya's arm, exacerbating a preexisting injury. Compl. ¶¶ 24–25, 242–85.

On March 19, 2007, at about 4:00 a.m., the Mount Kisco home of plaintiffs David Lazaro Perez, William Lazaro, and Tarcis Sapon–Diaz was raided by armed agents of the DRO pursuant to Operation Return to Sender. According to the Complaint, ten armed agents invaded the apartment building, burst into apartments and bedrooms by force, without exigent circumstances, consent or a warrant; caused physical damage throughout the building; and detained and arrested Spanish-speaking residents in a state of undress prior to questioning them. Compl. ¶¶ 29, 307–23.

On April 18, 2007, between 3:00 and 4:30 a.m., the Riverhead house where plaintiffs Mario Pazan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio, and Juan Jose Mijangos lived was raided by agents of the DRO pursuant to “Operation Cross Check.” Eight armed agents forcibly entered the house, without showing any warrant, caused physical damage to the doors and walls during entry, and burst into bedrooms without requesting or receiving consent while residents were in a state of undress. Compl. ¶¶ 27, 286–306.

The following four searches were conducted by agents of the OI. On September 24, 2007, at about 5:45 a.m., the Westbury home of plaintiffs Sonia Bonilla, a lawful permanent resident, and Beatriz and Dalia Velasquez, her United States citizen daughters, was raided by agents of the OI pursuant to “Operation Community Shield.” Ten armed agents approached and surrounded the home while Ms. Bonilla was driving her husband to work. They pounded on the front door shouting “Police!” and told Beatriz Velasquez, who was twelve years old, that “someone was dying upstairs” in order to gain entry. When Beatriz opened the door, agents stormed into the house; detained Beatriz and Dalia, her nine-year-old sister, in their bedroom; searched the entire house without requesting or receiving consent, and without showing any warrant; and refused to explain their presence to Ms. Bonilla when she returned home while the raid was still in progress. Compl. ¶¶ 31, 324–42.

On the same date, the Westbury home of plaintiffs Elder Bonilla, a lawful permanent resident, and Diana Rodriguez was raided by agents of the OI pursuant to Operation Community Shield. According to the Complaint, a team of twelve armed agents surrounded the home, pounded on the door, and shouted, “Open the door!” When Mr. Bonilla opened the front door, an agent pointed a gun at his chest. Agents entered and searched the house without requesting or receiving consent, without exigent circumstances and without showing a warrant; entered bedrooms without requesting or receiving consent; handcuffed residents prior to any questioning; and caused physical damage to doors and walls. Compl. ¶¶ 33, 343–53.

On September 27, 2007, at approximately 7:30 a.m., the Huntington Station home of plaintiffs Raul Amaya, a United States citizen, and Gloria Vanessa Amaya, a lawful conditional resident, was raided by agents of the OI as a part of Operation Community Shield. According to the Complaint, ten agents invaded the home, searched through the house without requesting or receiving consent from the Spanish-speaking residents, and without a judicial warrant or exigent circumstances. The agents allegedly made allegations and used profanities to intimidate the Amayas, attempted to kick open a basement unit, and conducted a full search of the house. The agents threatened to return. Compl. ¶¶ 35, 354–76.

According to the Complaint, armed agents also invaded the Huntington home of plaintiffs Pelagia De La Rosa–Delgado, Anthony Jimenez, Christopher Jimenez, and Bryan Jimenez, all of whom are United States citizens, on two occasions, in August 2006 and on September 27, 2007, as part of Operation Community Shield, each time without a judicial warrant or valid consent. Each raid occurred early in the morning. During the first raid, agents pounded loudly on the door, burst into the home without requesting or receiving consent from the residents, who were in their nightclothes, detained the family in the living room and basement, and stated that they were searching for someone named “Miguel,” a man unknown to the family. During the second raid, agents looking for the same man surrounded the home, entered by pushing past a seventeen-year-old who opened the door, detained teenagers and adults in a state of undress,...