Diaz–bernal v. Myers

758 F.Supp.2d 106

DIAZ–BERNAL, et al., Plaintiffs,

v.MYERS, et al., Defendants.

No. 3:09cv1734 (SRU)

United States District Court, D. Connecticut.

Dec. 16, 2010.

Aliza Hochman, Hedayat Heikal, Jennifer L. Gorskie, Jorge G. Tenreiro, Melissa Fernandez, Scott S. Buell, Thomas J. Moloney, Cleary, Gottlieb, Steen & Hamilton, New York, NY, Jason Parkin, Michael J. Wishnie, Muneer I. Ahmad, Jerome N. Frank Legal Services Organization, New Haven, CT, for Plaintiffs.Jean M. Cunningham, Gisela Ann Westwater, Jean M. Cunningham, Jennifer A. Bowen, John Marcus Meeks, Reginald Maurice Skinner, Christopher Westley Dempsey, John Alden Woodcock, Aram A. Gavoor, U.S. Department of Justice, Washington, DC, Douglas P. Morabito, U.S. Attorney's Office, New Haven, CT, for Defendants.

RULING ON MOTIONS TO DISMISS

STEFAN R. UNDERHILL, District Judge.

This case involves the constitutional and tort claims of a group of plaintiffs who were the subject of an early-morning immigration raid in June 2007. The plaintiffs have sued the immigration officers who conducted the raid, the officers' supervisors, and the United States, alleging violations of the Fourth and Fifth Amendments, as well as state law tort violations such as negligent hiring, training, and supervision.

In response, the United States challenged the plaintiffs' ability to seek declaratory relief, and sought to dismiss the plaintiffs' claims of negligent hiring, training, and supervision. The individual defendants also filed a motion to dismiss the plaintiffs' Fourth Amendment, procedural due process, substantive due process, and equal protection claims. In addition, the individual defendants claim that this court does not have personal jurisdiction over the supervisory defendants, that Bivens is an inappropriate remedy here, and that the court cannot hear the plaintiffs' claims both because of the doctrine set forth in Heck v. Humphrey and because of the exclusivity provisions in the federal immigration statutes.

The motions to dismiss are granted in part and denied in part. The Federal Tort Claims Act (“FTCA”) only provides for money damages, and the Administrative Procedure Act (“APA”) cannot waive sovereign immunity when an applicable statute (such as the FTCA) expressly limits that waiver. Therefore, the United States' motion to dismiss the claims for declaratory relief is granted. The United States is correct that the plaintiffs allege no facts concerning the defendants' negligent hiring; the motion to dismiss that claim is accordingly granted. The United States acknowledges that the motion to dismiss the claims for negligent training and supervision is more appropriately characterized as a motion for summary judgment; the plaintiffs are granted additional discovery on that claim pursuant to Federal Rule of Civil Procedure 56(d). I also will allow the plaintiffs to conduct jurisdictional discovery before I rule on the individual defendants' motion to dismiss for lack of personal jurisdiction.

The court's subject matter jurisdiction over the plaintiffs' claims is not diminished by the federal immigration statutes, because this is not a case arising from: (1) a proceeding to remove an alien from the United States; (2) a decision by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against an alien; or (3) a decision within the Attorney General's discretion. Similarly, because the plaintiffs do not challenge their detention, Heck v. Humphrey does not bar adjudication of this case. Moreover, the existence of a comprehensive immigration scheme does not counsel against a Bivens remedy here.

The plaintiffs have alleged facts sufficient to indicate that defendants Julie Myers, John Torres, Bruce Chadbourne, and Jim Martin had notice of constitutional violations under policies they created, implemented, or allowed to continue, and thus the motion to dismiss the Fourth Amendment claims against them is denied. There is no similar evidence regarding defendant George Sullivan, and thus the motion to dismiss Fourth Amendment claims against him is granted. The motion to dismiss the Fourth Amendment claims against defendants Stephen Riccardi and Edgar Vasquez is also granted, because all parties acknowledge that they did not participate in or authorize the raid.

The Fifth Amendment substantive due process claims are more appropriately pled under the Fourth Amendment. The motion to dismiss those claims is therefore granted. The Fifth Amendment procedural due process claims are also dismissed, because the plaintiffs have failed to allege how any procedural deficiencies infringed their liberty interests. Finally, the motion to dismiss the Fifth Amendment equal protection claims is denied, because the plaintiffs have sufficiently alleged a discriminatory motive on the part of the defendants, and because genuine issues of material fact preclude a determination at this point whether the defendants are entitled to qualified immunity.

I. Background

The instant litigation arises out of an early-morning raid conducted by Immigration and Customs Enforcement (“ICE”) agents in the Fair Haven neighborhood of New Haven. 3d Amend. Compl. at ¶ 1. The ICE agents were divided into four teams. Defendants Richard McCaffrey, David Hamilton, Wilfred Valentin, and John Does 1–3, led by defendant Michelle Vetrano–Antuna, comprised team one. Id. at ¶¶ 59–60. Team two was comprised of defendants Brian Geary, Derek Moore, David Reilly, and John Does 4–6, led by defendant Ronald Preble. Id. at ¶ 61. Team three was composed of defendants George Lewis, David Ostrobinski, Wilfredo Rodriguez, and John Does 7–8, led by defendant James Brown. Id. at ¶ 62. The fourth and final team consisted of defendants Stephen Riccardi, Edgar Vasquez, and John Does 9–10. Id. at ¶ 63. Hereafter, “raid officers” shall mean those defendants who took part in the Fair Haven raid.

All four teams allegedly entered private residences without search warrants or consent, and arrested persons therein without arrest warrants or probable cause. Team one entered the Peck Street residence and seized plaintiffs Florente Baranda–Barreto, Silvino Trujillo–Mirafuentes, Gerardo Trujillo–Morellano, and Edilberto Cedeño–Trujillo. Id. at ¶¶ 60, 88–129. Team one also entered the Barnes Avenue residence and seized plaintiffs Edinson Yangua–Calva and Jose Solano–Yangua. Id. at ¶¶ 60, 130–45. Finally, team one helped team three enter the Atwater Street residence, where they seized plaintiff Amilcar Soto Velasquez. Id. at ¶¶ 164–73.

Team two entered the Fillmore Street residence and seized plaintiffs Eduardo Diaz–Bernal and Washington Colala–Peñaretta. Id. at ¶¶ 61, 69–87. Team two also entered the Warren Place residence and seized plaintiffs Cristobal Serrano–Mendez and Julio Sergio Paredes–Mendez. Id. at ¶¶ 61, 146–63.

Team four entered unspecified residences, and seized persons not parties to this suit. Id. at ¶ 63. Team four assisted in processing the plaintiffs once they were arrested. Id.

According to the plaintiffs, the defendants detained all of the plaintiffs before learning about their immigration status. Id. at ¶ 174. The defendants also did not inform the plaintiffs of their rights or why they were being seized, and the plaintiffs did not feel free to leave. Id. at ¶¶ 176–77, 180. Although the plaintiffs' primary language is Spanish, the defendants coerced them into signing English forms with no or minimal translation. Id. at ¶¶ 182–89. All of the plaintiffs were detained at the Wyatt Detention Facility for periods ranging from three to twenty-seven days before being released. Id. at 192.

The plaintiffs claim that the raid was planned and executed in order to “punish” the City of New Haven for immigrant-friendly policies. The raid came shortly after the New Haven Board of Aldermen voted to approve the Elm City Resident Card program, which was designed to provide persons—including immigrants—with identification cards to enable them more easily to open bank accounts. Id. at ¶¶ 198, 202–04, 249–51. The plaintiffs state that the defendants (specifically defendants Walter Wilkowski and McCaffrey) were opposed to the Elm City Resident Card program, and purposefully engineered the raid to demonstrate that New Haven was not a safe haven for undocumented immigrants. Id. at ¶¶ 216–21, 226–34, 238–52.

The raid officers' supervisors have also been sued. They are Julie Myers, the Assistant Secretary for ICE when the raid took place; John Torres, the Director or Acting Director of the ICE Office of Detention and Removal Operations; Bruce Chadbourne, the Field Office Director for the Boston, Massachusetts Detention and Removal Operations regional office, which manages the Hartford field office responsible for the raid; Jim Martin, the Deputy Field Office Director for the Boston regional office; and George Sullivan, the Assistant Field Office Director for the Hartford field office.¹ These defendants will be known as the “supervisory defendants.”

The plaintiffs claim that the raid was the foreseeable result of policies put in place by officials at the top of ICE. The plaintiffs specifically point to defendant Torres's treatment of the National Fugitive Operations Program (“NFOP”). NFOP was originally designed to apprehend dangerous criminal fugitives. Id. at ¶ 257. Under Torres's direction, the program increasingly began to focus on non-criminal, non-dangerous, non-fugitive immigrants. Id. In 2006, Torres instituted a quota system that required Fugitive Operative Teams (“FOTS”) to make 1,000 fugitive arrests per year. Id. at ¶ 260. He later stated that at least 500 of that number may come from “collateral” arrests (namely bystanders FOTS encounters while searching for actual fugitives). Id. at ¶ 266. The quota system was approved by Myers. Id. at ¶¶ 269–70.

The plaintiffs assert that the quota system incentivized the arrest of bystanders, and led FOTS to violate constitutional rights in order to meet...