Elhady v. Pew

370 F.Supp.3d 757

Anas ELHADY, Plaintiff,

v.Matthew PEW, et al., Defendants,

Case No. 17-cv-12969

United States District Court, E.D. Michigan, Southern Division.

Signed March 1, 2019

Ahmed M. Mohamed, Carolyn M. Homer, Lena F. Masri, Council on American-Islamic Relations, Gadeir I. Abbas, The Law Office of Gadeir Abbas, Washington, DC, for Plaintiff.

James J. Carty, U.S. Attorney's Office, Detroit, MI, for Defendants.

OPINION & ORDER DENYING DEFENDANTS' MOTION TO DISMISS (Dkt. 41)

MARK A. GOLDSMITH, United States District Judge

This matter is before the Court on Defendants' motion to dismiss. The issues have been fully briefed. Because oral argument will not aid the decisional process, the motion will be decided based on the parties' briefing. See E.D. Mich. LR 7.1(f)(2); Fed. R. Civ. P. 78(b). For the reasons that follow, the Court denies the motion.

I. BACKGROUND

The facts in this section are taken from Plaintiff Anas Elhady's Second Amended Complaint. Elhady brings a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging violations of the Fifth and Eighth Amendments by Customs and Border Protection ("CBP") officers. Elhady is a United States citizen and Muslim living in Wayne County. 2d Am. Compl. ¶ 8 (Dkt. 27). Defendants are officers or agents of CBP. See id. ¶¶ 9-18.

Elhady alleges that he crossed through the Detroit-Windsor port of entry on April 10, 2015. 2d Am. Compl. ¶ 19. As he was crossing into Canada earlier that day, the Canadian inspection officer had stopped Elhady, questioned him, and asked him to provide the time he expected to cross back into the United States. Id. ¶ 20. Elhady told the Canadian officer that he would be returning to the United States around midnight, which he ultimately did. Id. ¶¶ 21-24.

When Elhady approached the primary inspection booth to return to the United States, he handed Defendant Pew his documents; Pew immediately demanded that Elhady place his hands on the steering wheel, called for backup, and referred him to secondary inspection. Id. ¶¶ 25-26. Defendants then surrounded Elhady's car, ordered him out of the vehicle, and handcuffed him. Id. ¶¶ 27-28. Defendants took Elhady's jacket and shoes, then confined him in isolation in a small, freezing-cold holding cell with excessively bright lights for at least four hours. Id. ¶ 29. Elhady contends that he was subjected to extreme sensory deprivation, psychological torture, and isolation. Id. ¶ 31. After several hours, Elhady knocked on the door repeatedly and requested medical treatment. Id. ¶ 32. Defendants ignored his pleas for help. Id. ¶ 33.

Elhady's body began shaking uncontrollably, and he felt that he was going to die. Id. ¶¶ 34-35. After several hours, he suffered from hypothermia and fell unconscious. Id. ¶ 36. Defendants reentered the room while Elhady was unconscious; they woke him up and demanded he stand, which Elhady was unable to do. Id. ¶¶ 37-38. Elhady repeatedly begged for an ambulance, but his requests were ignored. Id. ¶ 39. He contends that he suffered from dehydration, shock, and hypothermia as a result of the conditions of his confinement. Id. ¶ 40.

At some later point, Elhady was taken to an ambulance. Id. ¶ 41. Defendants Kehr and Rocky handcuffed him in the ambulance at the instruction of Defendants Iverson and Lapsley; Kehr and Rocky accompanied him to the hospital. Id. ¶ 42. Upon admission to the hospital, a nurse asked Elhady why his lips were blue. Id. ¶ 45. After receiving treatment and medication, Elhady was transported back to the Ambassador Bridge. Id. ¶ 47. At no point did Defendants find any contraband or evidence indicating illegal activity. Id. ¶ 48.

II. STANDARD OF REVIEW

On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), "[t]he defendant has the burden of showing that the plaintiff has failed to state a claim for relief." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451, 454-455 (6th Cir. 1991) ), cert. denied, 552 U.S. 1311, 128 S.Ct. 1876, 170 L.Ed.2d 746 (2008). To survive a Rule 12(b)(6) motion, the plaintiff must allege sufficient facts to state a claim to relief above the speculative level, such that it is "plausible on its face."

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plausibility standard requires courts to accept the alleged facts as true, even when their truth is doubtful, and to make all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Twombly, 550 U.S. at 555-556, 127 S.Ct. 1955.

Evaluating a complaint's plausibility is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Although a complaint that offers no more than "labels and conclusions," a "formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement" will not suffice, id. at 678, 129 S.Ct. 1937, it need not contain "detailed factual allegations," Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ; see also Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ("[S]pecific facts are not necessary...."). Rather, a complaint needs only enough facts to suggest that discovery may reveal evidence of illegality, even if the likelihood of finding such evidence is remote. Twombly, 550 U.S. at 556, 127 S.Ct. 1955.

III. ANALYSIS

Defendants raise several arguments. First, they argue that Elhady's claims are time-barred and that he is not entitled to equitable tolling. Next, they argue that Elhady has failed to state a due process claim. Finally, they argue that Elhady has not sufficiently pled a Bivens claim, both because he did not allege any action by any defendant that deprived him of a constitutional right and because the Court should not create a Bivens cause of action for conditions of confinement under the Fifth Amendment. The Court addresses each argument in turn.

A. Statute of Limitations and Equitable Tolling

Elhady does not contest that the statute of limitations expired before he filed his second amended complaint, which first listed the names of the individual Defendants. Thus, this claim is time-barred under Michigan's three-year statute of limitations unless Elhady is entitled to equitable tolling. See Harris v. United States, 422 F.3d 322, 331 (6th Cir. 2005) (noting that the local statute of limitations applies to Bivens claims); Mich. Comp. Laws § 600.5805(2) (setting a three-year period of limitations for death or injury actions to recover damages).

The Sixth Circuit has identified five factors to consider when determining whether equitable tolling is appropriate: "(1) lack of actual notice ...; (2) lack of constructive knowledge ...; (3) diligence in pursuing one's rights; (4) absence of prejudice to the defendant; and (5) plaintiff's reasonableness in remaining ignorant of the notice requirement." EEOC v. Kentucky State Police Dep't, 80 F.3d 1086, 1094 (6th Cir. 1996). The first, second, and fifth elements are not relevant here, as Elhady acknowledges that he was aware of the necessary requirements to proceed.

Elhady cites a case that has many similarities to his own, Olmstead v. Fentress Cty., TN, No. 16-46, 2017 WL 4176256 (M.D. Tenn. Sept. 21, 2017). In that case, the plaintiff asked the court to allow early discovery immediately upon filing the complaint and before the statute of limitations had expired. Olmstead's claim accrued on July 20, 2015, and he filed the complaint on June 23, 2016 – just one month before the one-year statute of limitations expired. Even though the court did not address the request for early discovery until well after the limitations period expired, the court allowed equitable tolling because it was "not Olmstead's fault that the Court did not address his motion" and because he was working to learn the names of the John Doe defendants during the Court's delay. Id. at *6.

Similarly, Elhady filed his suit with some seven months to spare before the statute of limitations ran, and attempted to procure the names of the John Doe defendants even before filing a discovery motion with the Court. He served the United States Attorney on September 28, 2017, and the assigned Assistant United States Attorney did not refuse service until November 21, 2017, see 11/21/2017 Letter, Ex. A to Pl. Resp. (Dkt. 43-2). The next week, in a separate case in Virginia, Elhady's counsel issued document requests to obtain documents related to his border crossing; CBP produced the relevant documents on January 4, 2018 but redacted the names of the officers involved, see Pl. Resp. at 5 (Dkt. 43). Elhady's counsel followed up with an email requesting the identities of the agents on January 11, 2018, see 1/11/2018 Email, Ex. D to Pl. Resp. (Dkt. 43-5). The day before that email was sent, the Court had issued a show-cause order for failure to prosecute, and Elhady responded by filing the motion for limited discovery on January 18, which was then refiled on January 22 following a strike order. See 1/22/2018 Motion (Dkt. 16).

By January 22, 2018, Elhady had exhausted his ability to personally discover the names of the John Doe defendants, and it was not his fault that the Court did not resolve the motion before the statute of limitations expired in early April (more than two months after he filed the motion for discovery). Although there was some delay between the filing of the complaint and the filing of the motion for discovery, Elhady was acting diligently during that time to discover the names of the John Doe defendants. He also allowed the Court more time to rule on his motion than the plaintiff in Olmstead, who filed his complaint only one month before the statute of limitations expired. Here, Elhady filed the motion more than two months before the...