Prado v. Perez

451 F.Supp.3d 306

Jesus PRADO, Plaintiff,

v.ICE Agent PEREZ, et al., Defendants.

18-CV-9806 (JPO)

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

Signed April 3, 2020

Andrew Brian Wachtenheim, Nabilah T. Siddiquee, Immigrant Defense Project, Kenneth Ian Schacter, Morgan Lewis & Bockius, LLP, New York, NY, for Plaintiff.

Alexander James Hogan, United States Attorney's Office, New York, NY, for Defendants.

OPINION AND ORDER

J. PAUL OETKEN, District Judge Plaintiff Jesus Prado brings this action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq. , against Defendants Immigration and Customs Enforcement ("ICE") Agents Perez, Attanasio, Olivencia, and Calidonio, as well as the United States of America ("the Government"). Defendants have now moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 28.) For the reasons that follow, Defendants' motion to dismiss is granted in part and denied in part.

I. Background

The following facts are drawn from the complaint and are assumed true for purposes of this motion.

Plaintiff Jesus Prado is a 60-year old immigrant with a major neurocognitive disorder and "debilitating depression" who has lived with HIV since 1994. (See Compl. ¶ 14.) He has also suffered from prostate-related obstructive uropathy. (Compl. ¶ 44.) Since 2013, he has lived in a Community Access housing complex at Gouverneur Court, a supportive housing environment in Manhattan. (Compl. ¶ 15.) Gouverneur Court provides Prado with daily meals, regular in-home visits, and a 24-hour security desk. (Compl. ¶ 16.) At the time of his 2015 arrest, he was receiving outpatient psychiatric treatment through the Mental Health Court in New York by agreement of the New York County District Attorney, a program that covers individuals who have been diagnosed with a serious mental illness. (Compl. ¶ 19.)

On October 27, 2015, at 5:00 a.m., Prado was awakened in his home at Gouverneur Court by ICE agents Perez, Attanasio, Olivencia, and Calidonio demanding entry. (Compl. ¶¶ 20, 25.) As soon as he opened the door, Prado was pushed back inside the room and ordered to move to the bed. (Compl. ¶ 25.) The ICE agents identified themselves as "immigration" and had only an administrative immigration warrant. (Compl. ¶¶ 21, 25.)

The ICE agents did not request, nor did Prado give, voluntary consent to enter. (Compl. ¶ 26.) Three of the agents entered the apartment, while one stood at the doorway with his hand on his gun. (Compl. ¶ 27.) One agent "grabbed ... Prado by his shirt and pushed him onto the bed, where [Prado] began to cry." (Id. ) Prado asked what was happening and informed the agents that he had done nothing wrong. (Id. ) The agent who had pushed Prado demanded his identification and "papers." (Id. ) Prado informed the agent that he had papers showing that he was Permanently Residing Under Color of Law ("PRUCOL"). (Id. ) The agents searched through Prado's drawers, cabinets, and closet. (Compl. ¶ 28.) Prado, confined to his bed, protested that the agents needed a warrant to search his home, to which they responded that it was their job. (Id. ) Prado was then told to get dressed and was informed that he was being taken into ICE custody. (Compl. ¶ 29.) He informed the agents that he was sick, had HIV, and that he needed to bring his medications along with him. (Id. ) Without inquiring further into his condition, the agents picked up his bag of medications, handcuffed him, and took him to their car. (Id. ) Prado alleges that he experienced "psychological trauma and physical discomfort as a result of [their] intrusion." (Compl. ¶ 30.)

Prado was then processed and moved to the Varick Street Federal Building in Manhattan, where he received a Notice to Appear in Removal Proceedings and an initial medical screening. (Compl. ¶ 31.) At some point during this initial processing, Prado's medication bag was taken from him and thrown in the trash. (Compl. ¶ 37.) An ICE employee told him that he would receive medication when he got to New Jersey. (Id. ) Later that morning, he was transported to the Bergen County Jail ("Bergen") in Hackensack, New Jersey. (Compl. ¶ 31.) Prado was detained at Bergen from October 27, 2015, to April 19, 2016. (Compl. ¶ 32.) Once at Bergen, he did not receive any medication for the first five days of his detention. (Compl. ¶ 38.) After his initial medical appointment with staff, they began to administer the wrong medications. (Id. ) When his physician contacted ICE, eight days into his detention, Bergen began to administer the correct medications. (Id. ) Even after the correct medication was prescribed, it was improperly administered to him. (Compl. ¶¶ 41–42.) The improper administration of his medications caused daily vomiting and diarrhea. (Compl. ¶ 42.) Prado's counsel continually requested that ICE ensure that his medication was properly administered, but Bergen continued to improperly administer his medication for three months. (Compl. ¶ 43.)

Prado's prostate-related obstructive uropathy soon worsened, causing him serious pain. (Compl. ¶ 44.) In January 2016, a urologist informed Prado that his condition was no longer treatable with medication and he needed a surgical procedure. (Compl. ¶ 46.) Prado's counsel continued to contact ICE to seek assistance with Prado's medical situation, including a request for him to be returned to Gouverneur Court, where he would receive better care. (Compl. ¶ 48.) After an unexplained two-month delay, Prado was able to get the procedure, and his release request was denied. (Compl. ¶¶ 47, 51.) On April 19, 2016, an immigration judge ordered him released on his own recognizance, and allowed him to return home. (Compl. ¶ 54.)

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(1) requires courts to dismiss a case for lack of subject-matter jurisdiction "when the district court lacks the statutory or constitutional power to adjudicate it." Doyle v. Midland Credit Mgmt., Inc. , 722 F.3d 78, 80 (2d Cir. 2013) (per curiam) (quoting Ford v. D.C. 37 Union Local 1549 , 579 F.3d 187, 188 (2d Cir. 2009) (per curiam)). When resolving a motion to dismiss pursuant to Rule 12(b)(1), district courts "may refer to evidence outside the pleadings." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000).

Federal Rule of Civil Procedure 12(b)(6) requires courts to dismiss a case for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the complaint's factual allegations as true and draw all inferences in the plaintiff's favor. See Cleveland v. Caplaw Enters. , 448 F.3d 518, 521 (2d Cir. 2006) (citation omitted). However, the complaint must plead "enough facts to state a claim to relief that 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). "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, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

III. Discussion

A. Subject-Matter Jurisdiction Under 8 U.S.C. § 1252(g)

Defendants argue that this Court lacks subject-matter jurisdiction over the bulk of Prado's claims because a district court may not hear any claim by an alien "arising from" the commencement of removal proceedings under 8 U.S.C. § 1252(g). (Dkt. No. 29 at 5–7.) This includes, Defendants argue, any claims arising from unlawful arrest or detention.

Section 1252(g) provides that "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien." 8 U.S.C. § 1252(g). The Supreme Court has held that this provision has not been "interpret[ed] ... to sweep in any claim that can technically be said to ‘arise from’ the three listed actions of the Attorney General. Instead, ... the language ... refer[s] to just those three specific actions themselves." Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 841, 200 L.Ed.2d 122 (2018) (citing Reno v. Am.-Arab Anti-Discrimination Comm. , 525 U.S. 471, 482–83, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ). Accordingly, courts in this district have found that there is no deprivation of jurisdiction to hear claims arising from unlawful arrest or detention, because those claims are too distinct to be said to "arise from" the commencement of removal proceedings. See, e.g. , You, Xiu Qing v. Nielsen , 321 F. Supp. 3d 451, 457 (S.D.N.Y. 2018) (holding that unlawful arrest and detention claims fell "outside the ambit of § 1252(g)" because "[t]he question before the Court is not why the Secretary chose to execute the removal order ... [it] is whether the way Respondents acted accords with the Constitution and the laws of this country"); Michalski v. Decker , 279 F. Supp. 3d 487, 495 (S.D.N.Y. 2018) (rejecting the argument that unlawful arrest and detention claims are part and parcel of the commencement of removal proceedings because "the decision or action to detain an individual ... is independent from the decision or action to commence a removal proceeding").

For the same reasons, this Court concludes that it retains jurisdiction over Prado's claims.

B. Scope of the FTCA

Defendants argue that the FTCA does not permit Prado's claim for negligently provided medical care because the United States has not waived its sovereign immunity for obligations that it has delegated to independent contractors. (Dkt. No. 29 at 8–13.) Because "the doctrine of sovereign immunity is jurisdictional in nature," Makarova , 201 F.3d at 113, Defendants argue that this Court lacks...