Garcon v. Dhs Ice et al

MOTION to Dismiss Complaint re Amended Complaint :

M.D. Ga.July 10, 2017

1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION JULIEN MORENA GARCON * * Plaintiff, * Case No. 7:l6-CV-177 (WLS) * v. * * DEPARTMENT OF HOMELAND * SECURITY, et al., * * * Defendants. * __________________________________ * DEFENDANTS’ MOTION TO DISMISS Defendants Department of Homeland Security and Attorney General Loretta Lynch,1 by and through the United States Attorney for the Middle District of Georgia, respectfully request that Plaintiff’s complaint be dismissed pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. In support of its motion, Defendants rely upon the attached memorandum of law. Respectfully submitted this 10th day of July, 2017. 1 Under Federal Rule of Civil Procedure 25(d)(1), Attorney General of the United States Jefferson B. Sessions, III, is automatically substituted as the Respondent for former Attorney General Loretta Lynch. Case 7:16-cv-00177-WLS Document 17 Filed 07/10/17 Page 1 of 3 2 G. F. PETERMAN, III UNITED STATES ATTORNEY BY: s/Jenise S. Smith Jenise S. Smith Assistant United States Attorney Georgia Bar No. 163920 United States Attorney’s Office Middle District of Georgia P.O. Box 1702 Macon, Georgia 31202 Phone: (478) 621-2732 Case 7:16-cv-00177-WLS Document 17 Filed 07/10/17 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that on July 10, 2017, I electronically filed the Defendants’ Motion to Dismiss with the Clerk of United States District Court using the CM/ECF system, which will automatically send notification of such filing to the following: N/A I also certify that I have mailed by way of the United States Postal Service the document and a copy of the Notice of Electronic Filing to the following non-CM/ECF participants: Julien Morena Garcon A XXX XXX 654 FOLKSTON ICE PROCESSING CENTER P. O. BOX 248 FOLKSTON, GA 31537 G. F. PETERMAN, III UNITED STATES ATTORNEY BY: s/Jenise S. Smith Jenise S. Smith Assistant United States Attorney Case 7:16-cv-00177-WLS Document 17 Filed 07/10/17 Page 3 of 3 1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION JULIEN MORENA GARCON * * Plaintiff, * Case No. 7:l6-CV-177 (WLS) * v. * * DEPARTMENT OF HOMELAND * SECURITY, et al., * * * Defendants. * __________________________________ * DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS Defendants Department of Homeland Security and Attorney General Loretta Lynch1 submit this memorandum of law in support of their motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectfully showing the Court as follows: Facts as Alleged in Plaintiff’s Amended Complaint Plaintiff claims that he is a “stateless” person whose citizenship has not been determined by the courts. (Am. Compl. at p. 4, ¶ 11). Plaintiff also claims he has not been a Haitian citizen since July 29, 1991. (Am. Compl. at p. 5, ¶ 13). Currently, Plaintiff is in the custody of the Department of Homeland Security (“DHS”)/Immigration and Customs Enforcement (“ICE”) at Irwin County Detention Center in Ocilla, Georgia. (Am. Compl. at p. 1, ¶ 1). DHS/ICE’s records indicate that Plaintiff is a native of Haiti. (Am. Compl. at p. 4, ¶ 11). 1Under Federal Rule of Civil Procedure 25(d)(1), Attorney General of the United States Jefferson B. Sessions, III, is automatically substituted as the Respondent for former Attorney General Loretta Lynch. Case 7:16-cv-00177-WLS Document 17-1 Filed 07/10/17 Page 1 of 11 2 Prior to filing his amended complaint, Plaintiff was convicted of constructive possession of a firearm by a convicted felon in the Southern District of Florida where he was sentenced to 120 months in prison. (Am. Compl. at p. 3, ¶ 6). On September 9, 2008, while Plaintiff was in criminal custody, DHS/ICE issued an I-257 immigration detainer for Petitioner advising that DHS/ICE was initiating removal proceedings against Petitioner and seeking to take him into custody after he completed his criminal sentence. (Id.). After Plaintiff completed his criminal sentence, he was apprehended and placed in the custody of DHS/ICE on January 12, 2016. (Id.). Plaintiff was charged with violating immigration laws, along with being considered a native and citizen of Haiti by DHS/ICE. (Id.). Plaintiff contends that DHS/ICE incorrectly deemed him a citizen of Haiti. (Id. at ¶ 12). From July 2016 through August 2016, Plaintiff submitted letters and requests to DHS/ICE to correct its records regarding Plaintiff’s Haitian citizenship. (Am. Compl. at p. 5, ¶¶ 12-14). Plaintiff contends that DHS/ICE failed to respond to his initial request, sent in July 2016, but later responded to Plaintiff’s latest request to correct records regarding his citizenship status, which was sent in August 2016. (Am. Compl. at p. 5, ¶ 14-15). Now, Plaintiff is bringing claims against DHS/ICE for false imprisonment under the Federal Torts Claims Act (“FTCA”) for allegedly detaining him without probable cause for violating immigration laws. Plaintiff also alleges that DHS/ICE violated the Federal Privacy Act, 5 U.S.C. § 552a, by maintaining inaccurate records related to his citizenship.2 LEGAL ARGUMENT I. 8 U.S.C. § 1252(g) precludes district courts from hearing any claims arising from the government’s decision to pursue removal proceedings against an alien. 2 This Court has allowed Plaintiff to proceed forma pauperis with these claims. [ECF No. 11]. Case 7:16-cv-00177-WLS Document 17-1 Filed 07/10/17 Page 2 of 11 3 Title 8, United States Code, Section 1252(g) provides: [e]xcept as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, 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 under this chapter. Similarly, the Eleventh Circuit has held that “§ 1252(g) is unambiguous: it bars federal courts' subject-matter jurisdiction over any claim for which ‘the decision or action’ of the Attorney General (usually acting through his subordinates) to commence proceedings, adjudicate cases, or execute removal orders is the basis of the claim. Gupta v. McGahey, 709 F.3d 1062, 1065 (11th Cir. 2013)(citation omitted)(emphasis added). Nonetheless, § 1252(g) is not a “zipper clause”; it only precludes actions arising from those three discrete decisions or actions to commence proceedings, adjudicate cases, or execute removal orders. See Reno v. Am.-Arab Anti- Discrimination Comm., 525 U.S. 471, 482, 119 S. Ct. 936, 943, 142 L. Ed. 2d 940 (1999). Section 1252(g) does not bar courts “from reviewing certain exercises of discretion by the attorney general . . . [and] does not proscribe substantive review of the underlying legal bases for those discretionary decisions and actions.” Gupta v. McGahey, No. 610CV280ORL22GJK, 2011 WL 13137351, at *2 (M.D. Fla. Sept. 8, 2011), aff'd, 709 F.3d 1062 (11th Cir. 2013). Thus, § 1252(g) does not bar the filing of habeas petitions that challenge detention and impending removal. Id.3 Nevetheless, actions or decisions to hold an alien in custody during removal proceedings have been deemed as those arising from the decision or action to commence proceedings thus 3 Plaintiff has already filed a habeas petition in district court challenging his DHS/ICE detention. See Garcon v. Decker, No. 7-16-cv-00158-WLS-MSH. Case 7:16-cv-00177-WLS Document 17-1 Filed 07/10/17 Page 3 of 11 4 barred by § 1252(g). See, e.g., Id. at 1203; Gupta, 709 F.3d at 1065 (holding that the actions taken to secure the plaintiff arose from actions to commence removal proceedings). Here, Plaintiff’s claim of false imprisonment arose from the decision to take him into custody to commence his removal proceedings. This claim, however, fails due to § 1252(g) as further discussed below. a. Plaintiff’s false imprisonment claim should be dismissed. Plaintiff has brought a false imprisonment claim alleging that he was detained without probable cause by DHS/ICE for violating immigration laws. The Courts, nonetheless, have applied the jurisdiction-stripping provision of § 1252(g) to claims arising from alleged unlawful detention for commencing removal proceedings and executing removal orders. See Magallanes v. United States, 184 F. Supp. 3d 1372, 1376 (N.D. Ga. 2015)(dismissing alien’s Bivens claims arising from the decision to commence removal proceedings and execute an order of removal). See also Foster v. Townsley, 243 F.3d 210, 213–15 (5th Cir. 2001)(dismissing claims of excessive force, denial of due process, denial of equal protection and retaliation due to district court’s lack of jurisdiction to review such claims that arose from officials’ decision to execute a removal order); Kareva v. United States, 9 F.Supp.3d 838, 844–45 (S.D. Ohio 2014) (barring alien's FTCA claims for false arrest and imprisonment pursuant to § 1252(g) because they arose from the decision to execute a removal order); Guardado v. U.S., 744 F.Supp.2d 482, 493 (dismissing alien's assault, battery, and false imprisonment claims under the FTCA due to lack of jurisdiction under § 1252(g)). Likewise, this Circuit holds that § 1252(g) strips federal courts of subject-matter jurisdiction to hear claims challenging the actions of ICE agents who search, arrest, and detain an individual to initiate removal proceedings. Gupta, 709 F.3d at 1065. The Eleventh Circuit held in Case 7:16-cv-00177-WLS Document 17-1 Filed 07/10/17 Page 4 of 11 5 Gupta that this specific conduct fell under decisions and actions arising “to commence removal proceedings.” Id. Thus, districts courts lack subject-matter jurisdiction under § 1252(g) to hear claims arising from such conduct. Id. Here, Plaintiff attempts to bring a false imprisonment claim by alleging that DHS/ICE unlawfully detained him without probable cause to initiate removal proceedings. Clearly, these alleged actions arise from DHS/ICE’s commencement of Plaintiffs removal proceedings and are very similar to the conduct alleged in Gupta, where the Eleventh Circuit held that federal courts have no subject-matter jurisdiction over an alien’s claims stemming from his arrest and detention by ICE agents. Id. Thus, regardless of whether Plaintiff’s claims are construed to be brought under the FTCA and/or Georgia law, or even viewed as a Bivens action, § 1252(g) strips this Court’s subject-matter jurisdiction over these claims. According, Plaintiff’s false imprisonment claim should be dismissed for lack of subject-matter jurisdiction. II. Plaintiff’s complaint fails to establish all four elements of a Privacy Act claim. In his amended complaint, Plaintiff attempts to bring forth a claim under the Privacy Act, 5 U.S.C. § 552a, alleging that DHS/ICE ‘willfully and intentionally fail[ed] to maintain and to disseminate records regarding his case with the appropriate level of accuracy, relevance, timeliness, and completeness.” (Am. Compl. Of Plt. at ¶ 21). Specifically, Plaintiff alleges that DHS/ICE failed to update its records to show that he is “stateless.” Id. To state a claim under the Privacy Act, a plaintiff must establish four elements: (1) the government failed to fulfill its record-keeping obligation; (2) the agency acted intentionally or willfully in failing to perform its obligation; (3) the failure proximately caused an adverse effect Case 7:16-cv-00177-WLS Document 17-1 Filed 07/10/17 Page 5 of 11 6 on an individual; and (4) the individual suffered actual damages. Speaker v. U.S. Dep't of Health & Human Servs. Centers for Disease Control & Prevention, 623 F.3d 1371, 1381 (11th Cir. 2010). As to the first element, Plaintiff contends that DHS/ICE failed to maintain accurate records. (Am. Complt. Plt. at ¶¶ 12-15). Specifically, Plaintiff alleges that he requested DHS/ICE to correct its records regarding his citizenship status. Id. This allegation constitutes a claim under § 552a(g)(1)(C) of the Privacy Act. A federal agency’s obligation to correct records is outlined in § 552a(d)(2) as follows: [e]ach agency that maintains a system of records shall . . . permit the individual to request amendment of a record pertaining to him and not later than 10 days . . . after the date of receipt of such request acknowledge in writing . . . and promptly, either—make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or inform the individual of its refusal to amend the record in accordance with his request . . . . In light of the language of § 552a(g)(1)(C), even if Plaintiff’s facts suggest that DHS failed to comply with its obligations under § 552a(d)(2), establishing this element, alone, does not make his Privacy Act claim viable. Plaintiff still must meet the other three elements of his Privacy Act claim in order state a claim for relief. As to the second element, Plaintiff falls short. In order for his claim to survive, Plaintiff must show willful and intentional conduct by the government, which is the second element of a Privacy Act claim. “‘Intentional or willful’ conduct by the government is defined as an ‘action so patently egregious and unlawful that anyone undertaking the conduct should have known it was unlawful, or conduct committed without grounds for believing it to be lawful or action flagrantly disregarding others' rights under [§ Case 7:16-cv-00177-WLS Document 17-1 Filed 07/10/17 Page 6 of 11 7 552a].’” Boatwright v. Williams-Kimbrough, No. 5:11-CV-061, 2011 WL 1752225, at *1 (M.D. Ga. May 6, 2011) (citing Pippinger v. Rubin, 129 F.3d 519, 530 (10th Cir.1997) (quotation omitted). Alleging negligence, or even gross negligence, is insufficient to state a claim under the Privacy Act. Id. (citation omitted). Here, Plaintiff simply recites boilerplate language contending that the government’s conduct was “willful” and intentional” without providing any facts supporting this notion. Regarding DHS/ICE’s record-keeping conduct, Plaintiff alleges “[d]efendants failed to reply to plaintiff [sic] first request but responded to his last request.” (Am. Complt. Plt. at ¶ 15). This mere allegation does not show that DHS/ICE intentionally or willfully failed to maintain accurate records or correct them. Assuming that a misrepresentation exists in the records, Plaintiff’s allegations stating that DHS/ICE failed to respond to Plaintiff’s first request, but later acknowledgment of the second request, does not establish that DHS/ICE willfully and intentionally failed to keep accurate records and/or correct them. Further, Plaintiff admits he was once a citizen of Haiti. (Am. Compl. at p. 5, ¶ 13). Thus, it is not so patently egregious, or unlawful, for DHS/ICE’s records to indicate that Plaintiff is a Haitian native and/or citizen. Likewise, Plaintiff’s sparse allegations regarding DHS/ICE’s conduct do not rise to level of showing willful or intentional conduct. Thus, Plaintiff’s complaint is devoid of sufficient facts demonstrating willful and intentional conduct by DHS/ICE that would allow his Privacy Act claim to survive. See Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Even if this Court concludes that Plaintiff has met the first and second elements of his Privacy Act claim, along with meeting the third element by contending that DHS/ICE’s alleged Case 7:16-cv-00177-WLS Document 17-1 Filed 07/10/17 Page 7 of 11 8 inaccurate records led to his detention, Plaintiff still must meet the final element of his Privacy Act claim to survive dismissal. To establish the fourth and final element of his Privacy Act claim, Plaintiff must show that he suffered actual damages to survive dismissal. Speaker, 623 F.3d 1381. Recovery under the Privacy Act is permitted only for proven pecuniary losses—not “non- quantifiable injuries.” Fitzpatrick v. Internal Revenue Serv., 665 F.2d 327, 331 (11th Cir. 1982) abrogated by Doe v. Chao, 540 U.S. 614, 124 S. Ct. 1204, 157 L. Ed. 2d 1122 (2004)(holding that Plaintiff must prove some actual damages to qualify for the minimum statutory award). Thus, a Plaintiff must show “actual damages” to meet the fourth element of a Privacy Act claim. Id. Here, Plaintiff simply alleges “he would have immediately sought gainful employment and he would have begun working since January 08th [sic] or April 12th 2016 therefore [sic] he suffered lost wages and other pecuniary harm.” (Am. Compl. of Plt. at p. 7). This statement by Plaintiff is mere conjecture, at best. Prior to his apprehension by DHS/ICE, Plaintiff had been incarcerated for approximately 120 months due to his felony conviction in the Southern District of Florida. (Am. Compl. at ¶ 6]. Therefore, Plaintiff has no way of knowing whether he would have obtained employment immediately after his incarceration if he had not been detained by DHS/ICE. Nonetheless, in an attempt to establish damages, Plaintiff relies solely on a belief that he could have easily obtained employment and earned income but for his subsequent incarceration by DHS/ICE after his release from federal prison. Plaintiff’s faith in his earning potential, however, does not constitute quantifiable damages that he can recover. And Plaintiff should not be permitted to speculate damages in lieu of showing actual damages. Without showing any quantifiable damages that he suffered, Plaintiff’s Privacy Act claim ultimately fails. For all the reasons stated, Case 7:16-cv-00177-WLS Document 17-1 Filed 07/10/17 Page 8 of 11 9 Plaintiff’s Privacy Act claim should be dismissed for failure to state a claim upon which relief can be granted. Lastly, Plaintiff’s Privacy Act claim may be barred by the applicable statute of limitations. Privacy Act claims have a two-year statute of limitations. See 5 USC § 552a (g)(5); Akutowicz v. U.S., 859 F.2d 1122, 1126 (2d. Cir. 1988) Diliberti v. U.S., 817 F.2d 1259, 1262 (7th Cir. 1987). Under the Privacy Act, the cause of action arises when a plaintiff “knew or had reason to know” of misrepresentation in his records. Bergman v. U.S., 751 F.2d 314,316 (10th Cir. 1984). Thus, Plaintiff has only two years to bring his claims under this statute once he became aware of any misrepresentation in his immigration records. Id. Based on Plaintiff’s Complaint, the detainer that DHS/ICE issued against him on September 09, 2008, contained the alleged inaccurate information regarding Plaintiff’s Haitian citizenship. [¶ 6]. If Plaintiff had knowledge of the alleged inaccurate information back in 2008 when the detainer was issued, he would have had two years to sue the government for violation of the Privacy Act after discovering the misrepresentation in his records.4 Thus, Plaintiff’s Privacy Act claim may be barred by the applicable statute of limitations. CONCLUSION For the reasons set forth above, Defendants respectfully request that the Court grant its motion and dismiss Plaintiff’s action for lack of subject matter jurisdiction and failure to state a 4 Based on the Amended Complaint, it is not clear when Plaintiff first knew or had reason to know that that DHS/ICE’s records indicated an alleged misrepresentation of his citizenship. Irrespective of whether Plaintiff’s Privacy Act claim is barred by the applicable statute of limitations, Plaintiff’s Privacy Act claim still fails because he has not sufficiently pled all four elements of this claim. Case 7:16-cv-00177-WLS Document 17-1 Filed 07/10/17 Page 9 of 11 10 claim upon which relief can be granted. Plaintiff’s Amended Complaint should be dismissed in its entirety. Respectfully submitted this 10th day of July, 2017. G. F. PETERMAN, III UNITED STATES ATTORNEY BY: s/Jenise S. Smith Jenise S. Smith Assistant United States Attorney Georgia Bar No. 163920 United States Attorney’s Office Middle District of Georgia P.O. Box 1702 Macon, Georgia 31202 Phone: (478) 621-2732 Case 7:16-cv-00177-WLS Document 17-1 Filed 07/10/17 Page 10 of 11 11 CERTIFICATE OF SERVICE I hereby certify that on July 10, 2017, I electronically filed the Defendants’ Memorandum of Law in support of Motion to Dismiss with the Clerk of United States District Court using the CM/ECF system, which will automatically send notification of such filing to the following: N/A I also certify that I have mailed by way of the United States Postal Service the document and a copy of the Notice of Electronic Filing to the following non-CM/ECF participants: Julien Morena Garcon A XXX XXX 654 FOLKSTON ICE PROCESSING CENTER P. O. BOX 248 FOLKSTON, GA 31537 G. F. PETERMAN, III UNITED STATES ATTORNEY BY: s/Jenise S. Smith Jenise S. Smith Assistant United States Attorney Case 7:16-cv-00177-WLS Document 17-1 Filed 07/10/17 Page 11 of 11