D.A. v. United States

663 F.Supp.3d 715

D.A., A.A., and Lucinda del Carmen Padilla-Gonzales, Plaintiffs, v. UNITED STATES of America, Defendant.

EP-22-CV-00295-FM

United States District Court, W.D. Texas, El Paso Division

Signed March 23, 2023

Anand Swaminathan, Stephen H. Weil, Loevy & Loevy, Chicago, IL, Sarah Copeland Grady, Kaplan & Grady, Chicago, IL, Ming Tanigawa-Lau, Pro Hac Vice, Zachary Manfredi, Pro Hac Vice, Asylum Seeker Advocacy Project (ASAP), New York, NY, Joe A. Spencer, Jr., Attorney at Law, El Paso, TX, for Plaintiffs.

AUSA, Jimmy Lorenzo Arce, United States Attorneys Office, Chicago, IL, Manuel Romero, Angelica Astrid Saenz, United States Attorney's Office, El Paso, TX, Phil Davis MacWilliams, U.S. Department of Justice, Civil Division, Washington, DC, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

FRANK MONTALVO, UNITED STATES DISTRICT JUDGE

Before the court is "Second Amended Renewed Motion to Dismiss" ("Motion") [ECF No. 105], filed October 13, 2022, by the United States of America ("Defendant"). Therein, Defendant moves to dismiss the above-captioned action for lack of subject-matter jurisdiction, citing its sovereign immunity.¹ Alternatively, it moves to dismiss certain causes of action for failure to state a claim.² For the following reasons, Defendant's Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

A. Factual Background

Between April and June 2018, the Trump Administration implemented a so-called "Zero Tolerance Policy" toward illegal immigration across the southern border of the United States.³ Under that policy, federal authorities separated children from parents with whom they had improperly entered the United States. Parents were prosecuted for illegal entry and children were transferred to the custody of the Department of Health and Human Services ("DHHS").

Prior to the Zero Tolerance Policy, "administrations used family detention facilities, allowing the whole family to stay together while awaiting their deportation case in immigration court, or alternatives to detention, which required families to be tracked but released from custody to await their court date."⁴ Under the Trump Administration's new policy, however, forced family separation was utilized as a means of deterring immigration.⁵ As the Attorney General told several prosecutors in May 2018, "[w]e need to take away children."⁶ Indeed, over 5,000 were separated from their parents under this policy, "with no tracking process or records that would allow them to be reunited."⁷

Lucinda del Carmen Padilla-Gonzales ("Padilla-Gonzales") and her minor children D.A. and A.A. (collectively, "Plaintiffs") were one of the families separated under the Zero Tolerance Policy. Plaintiffs fled Honduras in May 2018 and traveled to the United States to seek political asylum.⁸ When they arrived at the United States-Mexico border on May 23, Customs and Border Protection ("CBP") agents arrested Plaintiffs and transported them to a nearby holding center.⁹ Once there, Department of Homeland Security ("DHS") officers confiscated Padilla-Gonzales' identification card, birth certificates, and money and detained Plaintiffs in a frigid cell for a day and a half, while neglecting to provide them blankets or jackets.¹⁰

At one point, Padilla-Gonzales requested medical attention for a leg injury she had sustained several days prior.¹¹ DHS officers took her to a hospital, where she received ibuprofen, a cloth bandage, and crutches.¹² Back at the holding center, DHS officers confiscated her crutches.¹³

The next day, DHS officers separated Plaintiffs without giving them a chance to say goodbye, transferring Padilla-Gonzales to criminal custody and D.A. and A.A. to a juvenile shelter in Chicago.¹⁴ Officers then used Padilla-Gonzales' isolation and separation from her children to "coerce her to give up [her] asylum claims . . . and plead guilty to a criminal charge for unlawful entry."¹⁵ They also "demanded that she sign documents she did not understand, claiming they were required to reunite her with her children."¹⁶ Other detainees later told her the documents "were actually a waiver of her asylum claims and an agreement to be deported."¹⁷

On May 29, a mere six days after entering the United States, Padilla-Gonzales pled guilty to a Class B misdemeanor charge of entering the United States at an undesignated place and was sentenced to one year of non-reporting, unsupervised probation.¹⁸ Two days later, she was returned to immigration detention to await deportation.¹⁹ "[S]he had still not heard from her children and did not know where they were."²⁰

"Sometime later in June," Padilla-Gonzales was transported by Immigration and Customs Enforcement ("ICE") agents to an airport for deportation.²¹ She was handcuffed and shackled and placed in the back of a government vehicle without a seatbelt.²² On the way to the airport, the vehicle made an abrupt stop and Padilla-Gonzales was "slammed headfirst directly into the metal bars that separated her from the federal agents."²³ She began to bleed "profusely" and felt lightheaded.²⁴ She told the agents she needed to vomit, but they ignored her.²⁵ Once at the airport, Padilla-Gonzales refused to get on the airplane without her children, so she was returned to the detention facility.²⁶

The next day she was taken to a hospital for treatment of her head wound where doctors "indicated that she needed to return if her condition did not improve."²⁷ Although her condition did not improve, detention facility staff declined to return her to the hospital and instead simply gave her ibuprofen.²⁸ Padilla-Gonzales continues to suffer the effects of this injury "including vision problems, trouble reading, and bouts of forgetfulness."²⁹

Meanwhile, rather than send D.A. and A.A. to live with their father in North Carolina, DHHS' Office of Refugee Resettlement ("ORR") sent them to a Chicago shelter facility for minors operated by government contractor Heartland Alliance for Human Needs and Human Rights and its subsidiary Heartland Human Care Services (collectively, "Heartland").³⁰ At the time, D.A. was fourteen years old and her brother A.A. was five.³¹ Once at Heartland, they were separated, housed in different buildings, and given very limited opportunities to interact.³² They were only rarely permitted to call their father and never permitted to call their mother or other family members.³³

The children struggled at Heartland, which failed to provide adequate educational services, exacerbated the emotional trauma that D.A. and A.A. experienced fleeing Honduras, and frequently treated them more poorly than other non-Central American kids.³⁴ The children were kept in unsanitary conditions, leading D.A. to contract lice, which Heartland neglected to treat.³⁵ A.A. would often cry for his mother at night, so Heartland staff forced him to take sleeping pills.³⁶ He began to lose weight and was bullied by other kids.³⁷ After roughly five weeks at Heartland, D.A. and A.A. were sent to live with their father, who was required to pay over a thousand dollars for their airfare.³⁸

By early July, Padilla-Gonzales had found an immigration attorney, who scheduled a credible fear interview for her, which she passed on July 9, and secured her release on bond on August 21.³⁹ She was then reunited with her husband and children in North Carolina.⁴⁰

Padilla-Gonzales, D.A., and A.A. continue to suffer the effects of their early experiences in the United States. Padilla-Gonzales battles insomnia, "severe stress and anxiety, overwhelming bouts of sadness and trauma, fear, . . . loss of appetite for days at a time," and complications from her head injury.⁴¹ D.A. "keeps to herself and is closed off."⁴² A.A., who was toilet trained before being sent to Heartland, now has trouble with bodily functions and "frequently urinates himself due to nervousness."⁴³ He also suffers from fear and anxiety and cannot "maintain a regular sleeping schedule."⁴⁴

B. Procedural Background

Plaintiffs filed a complaint in the Northern District of Illinois in May 2020 against Defendant and Heartland, alleging: breach of fiduciary duty, negligence, and negligent supervision against Defendant and Heartland; intentional infliction of emotional distress ("IIED"), conversion, abuse of process, loss of consortium, assault and battery, and medical negligence against Defendant; and violations of the Rehabilitation Act against Heartland.⁴⁵ Plaintiffs' claims against Defendant arise under the Federal Tort Claims Act ("FTCA").⁴⁶ Plaintiff settled their claims against Heartland in March 2022.⁴⁷ In August, the case was transferred to the Western District of Texas.⁴⁸

In October, Defendant filed its Motion, arguing Plaintiffs' FTCA claims should be dismissed because they fall under several exceptions to the FTCA's waiver of sovereign immunity.⁴⁹ Alternatively, Defendant contends, "Plaintiffs fail to state a claim upon which relief can be granted under Texas law for [IIED], abuse of process, and medical negligence."⁵⁰

II. APPLICABLE LAW

A. Waiver of Sovereign Immunity and Exceptions

"Sovereign immunity deprives the court of subject matter jurisdiction."⁵¹ Thus, a plaintiff "may only sue the United States if a federal statute explicitly provides for a waiver of sovereign immunity," which "is a prerequisite to federal jurisdiction."⁵² That said, "[a] motion to dismiss for lack of subject-matter jurisdiction should only be granted if it appears certain" the plaintiff is not entitled to relief.⁵³

The FTCA waives the United States' sovereign immunity to tort claims where its employees were acting within the scope of their office or employment "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with" state law.⁵⁴ "Generally, such cases unfold much as cases do against other employers who concede respondeat superior liability."⁵⁵ However, the United States retains sovereign immunity under certain FTCA exceptions, such...