CHO v. UNITED STATES OF AMERICA et al

Filing 13

ORDER GRANTING in part and DENYING in part 11 Motion to Dismiss. Plaintiff's battery and invasion of privacy FTCA claims are DISMISSED without prejudice. Plaintiff's false arrest, assault, false imprisonment, and intentional and neglig ent infliction of emotional distress FTCA claims shall go forward. Plaintiff's claims for violations of the Fourth and Fifth Amendments are DISMISSED with prejudice, and Defendants John and/or Jane Does are DISMISSED as parties to this action. Plaintiff's Civil Rights Act of 1964 claim is DISMISSED without prejudice. The Plaintiff is ORDERED to recast her complaint to sufficiently allege her remaining claims and the facts supporting each claim within 14 days of the entry of this Order. Ordered by Judge Marc Thomas Treadwell on 9/19/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DAE EEK CHO,
Plaintiff,
v.
UNITED STATES OF AMERICA and
JOHN and/or JANE DOES,
Defendants.

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CIVIL ACTION NO. 5:13-CV-153 (MTT)

ORDER
This matter is before the Court on the Defendants’ motion to dismiss. (Doc. 11).
The Plaintiff’s complaint tells a story of horrific abuse. In support of their motion to
dismiss, the Defendants have filed documents that, if authentic and true, almost
certainly belie the Plaintiff’s claims. While the Court can, in limited circumstances,
consider matters outside the complaint, the Defendants go far beyond those
circumstances.1 No matter how firm a party’s conviction that a claim lacks merit, it
sometimes is necessary to build an appropriate record before summary resolution is
appropriate. For now, the Court must view the complaint’s allegations in the light most

1

Under the “incorporation by reference” doctrine, “a document attached to a motion to dismiss may be
considered by the court without converting the motion into one for summary judgment only if the attached
document is: (1) central to the plaintiff's claim; and (2) undisputed.” Horsley v. Feldt, 304 F.3d 1125, 1134
(11th Cir. 2002) (citation omitted). “‘Undisputed’ in this context means that the authenticity of the
document is not challenged.” Id. (citation omitted). Although Cho states that she “does not waive
authenticity and relevance rights” regarding the Defendants’ documents, the Court need not determine
whether all of the documents are authentic because it is not fair to say that Cho’s claims are based on
those documents. (Doc. 12 at 1). Thus, the Court does not rely on the documents in its consideration of
the Defendants’ motion with the exception of the attached Form 95. Cho does not state any reason why
she believes the attached form is not a genuine copy of her administrative claim, and as discussed
above, the ability of this Court to hear a FTCA claim is jurisdictional.

favorable to the Plaintiff. For the reasons discussed below, the motion is GRANTED in
part and DENIED in part.
I. FACTUAL BACKGROUND
Plaintiff Dae Eek Cho alleges she was taken into custody by U.S. Immigration
and Customs Enforcement on April 27, 2011. (Doc. 1 at ¶ 6). Cho was scheduled for a
hearing at the immigration court in Atlanta, Georgia on the same day, but ICE agents
did not take Cho to her hearing. Therefore, the immigration judge administratively
closed her case. (Doc. 1 at ¶ 6). Cho was then transported to a detention center in
Ocilla, Georgia. (Doc. 1 at ¶ 8).
On May 10, 2011, Cho was issued another Notice to Appear at the immigration
court. (Doc. 1 at ¶ 11). On May 11, Cho and her husband made an appearance before
the immigration judge and informed him that she was a cancer patient and her
medication was being withheld from her. (Doc. 1 at ¶ 12). Cho also requested a 601
waiver application from the judge and was ordered to return with her husband on May
25 with the completed application and supporting documents. (Doc. 1 at ¶ 12). Cho
alleges she was also instructed to inform her ICE case worker of her medical needs, but
her case worker denied the treatment. (Doc. 1 at ¶¶ 12, 22).
Cho and her husband returned to the immigration court on May 25, but she
alleges they were denied access to the court by ICE agents. (Doc. 1 at ¶ 13). The
hearing was reset numerous times, but Cho alleges she and her husband were
continually denied access to the court, resulting in her continued incarceration for eight
months. (Doc. 1 at ¶¶ 14-19).

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On July 7, 2011, Cho was transported from Ocilla to Atlanta for a hearing at the
immigration court and was allegedly denied food, water, and air conditioning on the four
hour trip. (Doc. 1 at ¶ 23). Cho also alleges she was pushed off a bus by an ICE agent
on October 28, causing her to sustain abrasions to her legs. (Doc. 1 at ¶ 24). During
her confinement, Cho states she was routinely subjected to “harassment and name
calling” by federal agents. (Doc. 1 at ¶ 21).
II. DISCUSSION
A.

Motion to Dismiss Standard of Review

To avoid dismissal pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must contain
specific factual matter to “‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “At the motion to dismiss stage, all well-pleaded facts are accepted as true,
and the reasonable inferences therefrom are construed in the light most favorable to the
plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006) (internal
quotation marks and citation omitted). However, “where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘shown’—that the pleader is entitled to relief.” Iqbal, 556 U.S. at
679. “[C]onclusory allegations, unwarranted deductions of facts or legal conclusions
masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis,
297 F.3d 1182, 1188 (11th Cir. 2002). Where there are dispositive issues of law, a
court may dismiss a claim regardless of the alleged facts. Marshall Cnty. Bd. of Educ.
v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993) (citation omitted).

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B.

Federal Tort Claims Act

The FTCA provides a limited waiver of the United States’ sovereign immunity “for
injury or loss of property, or personal injury or death caused by the negligent or wrongful
act or omission of any employee of the Government while acting within the scope of his
office or employment.” 28 U.S.C. § 1346(b)(1). The FTCA permits claims against the
United States “under circumstances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place where the act or
omission occurred.” Id. Cho’s FTCA claims are based upon the torts of false arrest,
assault, battery, false imprisonment, unlawful invasion of privacy, and intentional and
negligent infliction of emotional distress.2
A FTCA action may not be brought in court “unless the claimant shall have first
presented the claim to the appropriate Federal agency and [her] claim shall have been
finally denied by the agency in writing [or the agency fails to make a final disposition of
the claim within six months from the date the claim is filed.]” 28 U.S.C. § 2675(a).
While Cho filed an administrative claim with the appropriate federal agency, she
did not present all of the claims she asserts in this Court in her administrative claim.
Cho argues that Form 95 is “not designed to accommodate claims of this outrageous
nature” and that her failure to list all of her claims is irrelevant because “ICE had no
intention of settling [her] claim[s].” (Doc. 12 at 3). Cho’s argument is without merit.
First, Form 95 is a standard form used to present any administrative claim for damage,
injury, or death to the relevant agency. The form did not prevent Cho from stating all of

2

While the Defendants note that claims for false arrest, assault, battery, and false imprisonment are
generally barred under the FTCA pursuant to 28 U.S.C. § 2680(h), the Defendants concede that this
exception does not apply to federal law enforcement officers. (Doc. 11-1 at 10).

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her claims against ICE,3 and it allowed her to attach additional pages as necessary,
which she did. Further, “[t]he FTCA requires that each claim and each claimant meet
the prerequisites for maintaining a suit against the government.” Dalrymple v. United
States, 460 F.3d 1318, 1325 (11th Cir. 2006) (citing 28 U.S.C. § 2675(a)). Filing a
proper administrative claim is a “jurisdictional requirement.” Id. at 1324.
Cho’s claim for battery is presumably based on the alleged event of being
pushed off a bus by an ICE agent. This allegation, however, was not included in her
administrative claim. Cho also failed to include a claim or any facts that would support a
claim for invasion of privacy in her administrative claim.4 Accordingly, Cho’s battery and
invasion of privacy FTCA claims are DISMISSED without prejudice.
The Defendants mainly argue, based on numerous documents attached to their
motion, Cho’s claims are without merit. Again, with properly authenticated documents
in the context of a motion for summary judgment, it might be easily established that Cho
cannot pursue her claims. However, the Court cannot make that determination on the
record before it. Cho has alleged that she was improperly detained for eight months
prior to her release. The Court cannot find that the alleged improper detainment is not
actionable based on the state of the pleadings.
Regarding Cho’s remaining FTCA claims, the Defendants argue that Cho “does
not identify any federal law enforcement officer, acting within the course and scope of

3

In fact, Cho wrote “NA” under the section of the form that allowed her to describe any personal injuries
she received. (Doc. 11-13 at 3). Cho also stated in her administrative claim that she had “other issues”
and would follow up with further information and documents, but apparently, she never followed up. (Doc.
11-3 at 6).
4

Cho does not assert any facts in her complaint before this Court that would give rise to a claim for
invasion of privacy either.

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his federal employment, who committed these torts.” (Doc. 11-1 at 10). Presumably,
the Defendants are not arguing Cho has not identified agents by name, but rather, she
has not sufficiently alleged agents were operating within the scope of their office or
employment. In any event, this argument is without merit. While Cho refers to only one
federal officer by name, she also identifies ICE agents and her ICE case worker as the
tortious actors.
The Defendants also argue that Cho may not pursue false arrest and false
imprisonment FTCA claims because “[j]udicial review of a determination to detain an
alien prior to removal is not reviewable by a court [pursuant to] 8 U.S.C. § 1226(e).”
(Doc. 11-1 at 11). This section provides:
The Attorney General's discretionary judgment regarding the application of
this section shall not be subject to review. No court may set aside any
action or decision by the Attorney General under this section regarding the
detention or release of any alien or the grant, revocation, or denial of bond
or parole.
8 U.S.C. § 1226(e). Contrary to the Defendants’ assertion, the Court is not barred from
reviewing Cho’s claims. At this point, the Court cannot conclude as a matter of law that
Cho’s FTCA claims seek to “set aside” any action or decision by the Attorney General.
Rather, her claims are an attempt to challenge the alleged tortious actions of ICE
employees relating to the manner of her detention. See El Badrawi v. Dep’t of
Homeland Sec., 579 F. Supp. 2d 249, 271 (D. Conn. 2008). Accordingly, Cho’s false
arrest, assault, false imprisonment, and intentional and negligent infliction of emotional
distress FTCA claims shall go forward.

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C.

Bivens Claims

Cho also appears to assert Bivens claims against the Defendants John and/or
Jane Does for violations of the Fourth and Fifth Amendments. (Doc. 1 at 5). In Bivens
v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court
held that federal courts have inherent authority to award damages to plaintiffs whose
federal constitutional rights have been violated by federal officials. 403 U.S. 388, 395
(1971). The Supreme Court, however, has limited the application of Bivens, and a
cause of action does not exist for every constitutional violation by a federal official. See
Lyttle v. United States, 867 F. Supp. 2d 1256, 1275 (M.D. Ga. 2012) (summarizing
contexts where the Supreme Court has applied or rejected a Bivens remedy).
The Defendants again argue Cho fails to “identify an official acting under the
color of federal law[,]” and she fails to allege sufficient facts to support a Bivens claim
under the Fourth, Fifth, or Eighth Amendments.5 (Doc. 11-1 at 14). Cho, however,
adamantly denies that she is attempting to assert Bivens claims in her complaint.6
Pursuant to the FTCA, a plaintiff may not bring a civil action for money damages against
federal employees for the same subject matter giving rise to the FTCA claim against the
United States. 28 U.S.C. § 2679(b)(1). The FTCA provides two exceptions for actions
against federal employees: (1) Bivens claims for constitutional violations and (2) claims
for violations of federal statutes which expressly authorize such action. 28 U.S.C.

5

While Cho does not explicitly state a violation of the Eighth Amendment in her complaint, the
Defendants also analyze her apparent Bivens claims as a violation of the prohibition on cruel and unusual
punishment because of the nature of her allegations.
6

In her response to the Defendants’ motion, Cho states, “[The Defendants are] attempting to force a
Bivens [c]laim and continue[] to make references and defenses as if it were a Bivens claim which it is not.”
(Doc. 12 at 2).

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§ 2679(b)(2). Thus, if Cho does not intend to pursue Bivens claims against the
individual federal officers she includes in her complaint, then she has no cause of action
against those officers. Further, “[t]he United States has not waived
its sovereign immunity from suit for money damages arising from constitutional
violations.” Daniel v. United States, 891 F. Supp. 600, 603 (N.D. Ga. 1995) (citations
omitted).
Even if Cho were pursuing Bivens claims, those claims would nevertheless fail as
a matter of law. The Defendants’ analysis overlooks the appropriate starting point for a
Bivens claim – whether a Bivens remedy is available for the legal and factual scenario
at hand. In Wilkie v. Robbins, the Supreme Court set forth a two-step inquiry for
determining whether to recognize a Bivens remedy for constitutional violations by
federal employees. 551 U.S. 537, 550 (2007). First, the Court must consider “whether
any alternative, existing process for protecting the interest amounts to a convincing
reason for the Judicial Branch to refrain from providing a new and freestanding remedy
in damages.” Id. (citing Bush v. Lucas, 462 U.S. 367, 378 (1983)). Second, even if no
alternative remedy exists, the Court must look for “any special factors counselling
hesitation before authorizing a new kind of federal litigation.” Id. (citing Bush, 462 U.S.
at 378).
Here, deportation proceedings are the appropriate context for determining the
availability of a Bivens remedy. See Mirmehdi v. United States, 689 F.3d 975, 981 (9th
Cir. 2011) (citation omitted) (“Deportation proceedings are such a context, unique from
other situations where an unlawful detention may arise. It is well established that
immigrants' remedies for vindicating the rights which they possess under the

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Constitution are not coextensive with those offered to citizens.”). Courts examining
whether a Bivens cause of action exists for constitutional violations caused by federal
employees during deportation proceedings have found that no such remedy exists in
this context. See, e.g., id. at 983 (declining to extend Bivens to aliens alleging wrongful
detention pending deportation); Dukureh v. Hullett, 2012 WL 3154966, at *5 (W.D.
Wash.) (applying Mirmehdi to foreclose Bivens remedies for alleged violations of the
Fourth Amendment for an alien’s initial arrest and the Fifth Amendment for alleged false
testimony given during immigration proceedings); D’Alessandro v. Chertoff, 2011 WL
6148756, at *4 (W.D.N.Y.) (applying Mirmehdi to foreclose Bivens remedies for alleged
violations of the Fourth, Fifth, and Eighth Amendments arising from an alleged unlawful
detention pending deportation proceedings).
The Court has not found, and the Parties have not pointed to, any Eleventh
Circuit case law on this issue. While the cases cited above are not controlling
precedent in this circuit, the Court finds these cases persuasive. Applying the Supreme
Court’s test from Wilkie, the Court first finds that alternative remedies exist in this
context. Congress has established a comprehensive statutory scheme through the
Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., that provides remedies for
aliens in deportation proceedings. Habeas is also available as an alternative remedy.
Mirmehdi, 689 F.3d at 982 (citing Rauschenberg v. Williamson, 785 F.2d 985, 987-88
(11th Cir. 1986)). Second, there are special factors counseling hesitation including
diplomacy, foreign policy, and national security. Id. Thus, if Cho were asserting Bivens
claims, the Court would decline to extend a Bivens remedy to constitutional violations
arising from deportation proceedings.

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Whether Cho intends to pursue claims for constitutional violations against the
individual federal officials or against the United States, those claims fail as a matter of
law. Accordingly, Cho’s claims for violations of the Fourth and Fifth Amendments are
DISMISSED with prejudice, and Defendants John and/or Jane Does are DISMISSED
as parties to this action.
D.

Civil Rights Act of 1964

Cho also asserts a claim for “organized verbal assaults, name calling, and
National Origin oriented discrimination by words, action and omissions and the lack of
or suppressed right of religious expression and equal diversity culture provision and
opportunity” pursuant to the Civil Rights Act of 1964. (Doc. 1 at ¶ 30). Cho does not
identify which title of the Act she intends to bring her claim under nor does she assert
any facts in her complaint relevant to any cause of action available pursuant to the Act.
Accordingly, Cho’s Civil Rights Act of 1964 claim is DISMISSED without prejudice.
III. CONCLUSION
For the foregoing reasons, the Defendants’ motion to dismiss is GRANTED in
part and DENIED in part. Further, the Plaintiff is ORDERED to recast her complaint to
sufficiently allege her remaining claims and the facts supporting each claim within 14
days of the entry of this Order.
SO ORDERED, this 19th day of September, 2013.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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