Berrum-Plata v. USA et al
Filing
90
MEMORANDUM OPINION Signed by the Honorable John F. Grady on July 23, 2014. Mailed notice(cdh, )
12-2065.141-RSK
July 23, 2014
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSE BERRUM-PLATA,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
FBI Agent BRETT CURTIS,
individually and in his official
capacity,
Defendant.
No. 12 C 2065
MEMORANDUM OPINION
Before the court is defendant FBI Agent Brett Curtis’s motion
for summary judgment.
We grant the defendant’s motion for the
reasons explained below.
BACKGROUND
Plaintiff Jose Berrum-Plata was in the country illegally when
he
agreed
to
investigation.
cooperate
with
the
defendant
in
an
FBI
drug
In return for his cooperation, the FBI supported
his application for Significant Public Benefit Parole (“SPBP”).
United States Immigration, Customs, and Enforcement (“ICE”) granted
his
application,
temporarily.
permitting
him
to
remain
in
the
country
See 8 CFR § 212.5(b) (an authorized immigration
official may allow an illegal alien to remain in the United States
if doing so would confer a “significant public benefit”).
In this
lawsuit,
Curtis)
Berrum-Plata
claims
that
the
FBI
(through
- 2 -
improperly withdrew its support for his parole and arrested him
without probable cause. Before delving any further into the facts,
we will first address: (1) the unusual procedural history of this
case; and (2) the defendant’s motion to strike Berrum-Plata’s
response to his Local Rule 56.1 statement of facts.
A.
Procedural History & Curtis’s Motion to Strike
Berrum-Plata filed his original complaint, through counsel,
against the United States, the Department of Homeland Security,
ICE,
and
Curtis.
His
attorneys
moved
to
withdraw
their
representation before the parties’ first court appearance.
In
their motion, they stated that they could not continue to represent
Berrum-Plata in light of unspecified “additional information” that
they had received about his claims.
(See Corrected Mot. to
Withdraw, Dkt. 8, ¶¶ 1-2; see also id. at ¶ 3 (stating that they
had “irreconcilable differences” with their client “over issues
arising out of this litigation as well as over the management and
direction of the litigation.”).) After we gave his attorneys leave
to withdraw, Berrum-Plata filed his pro se appearance. (See Pro Se
Appearance, dated June 8, 2012, Dkt. 43.)
We subsequently granted
Berrum-Plata’s motion to appoint counsel after the defendants moved
to dismiss given the complexity of the issues and Berrum-Plata’s
limited English. (See Minute Entry, dated Oct. 10, 2012, Dkt. 22.)
We ultimately granted the defendants’ motion to dismiss.
See
Berrum-Plata v. U.S., No. 12 C 2065, 2013 WL 1344017, *3 (N.D. Ill.
- 3 -
Apr. 3, 2013).
We held that Berrum-Plata could not maintain a
constitutional claim against the United States, the FBI, and ICE
under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). See Berrum-Plata, 2013 WL 1344017,
*1 (citing F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994) (declining
to extend Bivens to claims against federal entities)).
And he
could not assert state-law claims against the defendants (including
Curtis) without exhausting his administrative remedies under the
Federal Tort Claim Act (“FTCA”).
See id. at *2; see also 28 U.S.C.
§ 2675 (“An action shall not be instituted upon a claim against the
United States for money damages 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, unless the claimant shall have
first presented the claim to the appropriate Federal agency and his
claim shall have been finally denied by the agency in writing and
sent by certified or registered mail.”).
With respect to his
Bivens claim against Curtis, we held that the complaint did not
contain enough factual information to state a plausible claim for
relief.
See Berrum-Plata, 2013 WL 1344017, *1.
We dismissed
Berrum-Plata’s claims without prejudice and asked appointed counsel
to remain in the case to help him prepare an amended complaint.
Id.
- 4 -
After granting the plaintiff several extensions of time to
amend his complaint, his appointed attorney moved to withdraw.
Like Berrum-Plata’s prior retained counsel, his appointed counsel
cited “irreconcilable differences over issues arising out of this
litigation
including
strategy.”
(See Mot. to Withdraw, dated June 19, 2012, Dkt. 42, ¶
4.)
substantial
disagreement
over
litigation
We granted the motion to withdraw and gave Berrum-Plata
additional time to file an amended complaint pro se.
On July 26,
2012, Berrum-Plata filed his amended complaint — the operative
complaint in this case — naming Curtis as the sole defendant.
We
concluded that the complaint, although difficult to understand in
places, was adequate to give Curtis notice of Berrum-Plata’s
claims.
(See Order, dated Nov. 20, 2013, Dkt. 60.)
But we were
skeptical that Berrum-Plata could manage the litigation on a pro se
basis going forward.
(Id.)
So, we again appointed counsel to
represent him. Before appointed counsel even filed his appearance,
he moved to withdraw: “in [counsel’s] opinion, underlying facts
discovered in his investigation and work to date do not give rise
to a potentially successful cause of action.”
dated Dec. 19, 2013, Dkt. 64.)
(Mot. to Withdraw,
We granted this motion and denied
as futile Berrum-Plata’s request to appoint yet another attorney.
(See Minute Entry, dated Jan. 22, 2014, Dkt. 71.)
In lieu of filing an answer, Curtis filed the present motion
for
summary
judgment.
Because
Berrum-Plata
was
representing
- 5 -
himself pro se at that point, we gave him a date by which to
respond to the defendant’s Local Rule 56.1 statement and set a
hearing date to discuss his response before scheduling further
briefing.
(See Minute Entry, dated Apr. 30, 2014, Dkt. 77.)
A
week after his response was due, Berrum-Plata filed his Local Rule
56.1 response (and a legal memorandum opposing summary judgment)
through newly retained counsel. His response to Curtis’s statement
of facts does not cite any record evidence. Cf. L.R. 56.1(b)(3)(B)
(The opposing party’s response must include “a response to each
numbered paragraph in the moving party’s statement, including, in
the
case
of
any
disagreement,
specific
references
to
the
affidavits, parts of the record, and other supporting materials
relied upon.”).
Instead, Berrum-Plata filed a separate affidavit
reciting his version of events and purporting to incorporate his
Local Rule 56.1 responses by reference.
Dkt. 82, ¶ 14.)
(See Berrum-Plata Aff.,
He further confuses matters by stating bare
denials in one paragraph, and then expounding on those denials in
another.
Here is paragraph six of Curtis’s statement of facts:
In late 2008, shortly after Berrum-Plata agreed to
cooperate with the FBI, and after he was provided a copy
of the admonishment referenced above, Berrum-Plata
conducted an unauthorized narcotics transaction in
Mexico. [Curtis Decl. ¶ 7.]
(Def.’s Stmt. ¶ 6.) In paragraph six of his response, Berrum-Plata
merely states, “[p]laintiff denies the allegations of paragraph
six.”
(Pl.’s Resp. at ¶ 6.)
He then gives a lengthy narrative
- 6 -
response to the same paragraph — without any record citations —
later in his brief:
Further
responding
to
paragraph
six,
Plaintiff
affirmatively states that he went to McAllen, TX, for the
purpose of meeting drug traffickers and to see where they
would send drugs from. Agent Curtis knew that Plaintiff
was making this trip.
The drug dealers were to pay
$100/pound for brokering a marijuana transaction. When
he returned to Chicago, he was given $5,000.00 by the
dealers. Plaintiff took the $5,000.00 to Agent Curtis to
show him that the persons he was informing on were in
fact drug dealers and that he had been working as
directed. Agent Curtis reimbursed Plaintiff in cash for
the cost of his bus ticket. Also, upon information and
belief, Agent Curtis was in communication with other FBI
or Drug Enforcement Administration or other agents while
Plaintiff was in McAllen, TX.
During the trip to
McAllen, Plaintiff never went to Mexico.
(Pl’s Resp. ¶ 30.)
We held a status hearing on April 30, 2014, as we had
previously contemplated. During that hearing, we gave Curtis leave
to file a reply brief in support of his summary-judgment motion,
and gave Berrum-Plata an opportunity to file a sur-rely.
In
particular, we asked the parties to address whether Curtis could
revoke his support for Berrum-Plata’s SPBP status at will, or if he
could only do so for cause. The government addressed this issue in
its reply brief, and also moved to strike the plaintiff’s Local
Rule 56.1 Statement for the deficiencies we just identified.
Berrum-Plata did not file his sur-reply until June 26, 2014, almost
a month after it was due.
In his memorandum, he asks us to
disregard Curtis’s motion to strike as beyond the scope of the
- 7 -
briefing.
We decline to do so.
First, we did not direct the
parties to discuss the “at will” issue only, and nothing else.
Curtis was entitled to address the problems with Berrum-Plata’s
Local Rule 56.1 statement in his reply brief.
Second, Berrum-
Plata’s attorney ignored Local Rule 56.1's requirements at his
peril.
See Petty v. City of Chicago, — F.3d —, 2014 WL 2568264, *4
(7th Cir. June 9, 2014) (slip op.) (“We have consistently and
repeatedly upheld a district court’s discretion to require strict
compliance with its local rules governing summary judgment.”)
(citation and internal quotation marks omitted).
The plaintiff’s
Local Rule 56.1 response is clearly deficient, and Curtis’s motion
to strike is appropriate.
The motion is granted, and the facts
recited in Curtis’s statement of facts are deemed admitted.1
See
L.R. 56.1(b)(3)(C).
B.
Background Facts
In late 2008, Berrum-Plata agreed to cooperate with the FBI’s
investigation
suburbs.
of
illegal
drug
(Def.’s Stmt. ¶ 1.)
trafficking
in
Chicago’s
south
Berrum-Plata, a native of Mexico,
was in the United States illegally at that time.
(Id.)
In
exchange for his cooperation, the FBI asked ICE to grant BerrumPlata SPBP status.
(Id. at ¶ 2.)
ICE granted the request,
temporarily allowing Berrum-Plata to remain in the United States.
1/
As we discuss later in this opinion, we would grant Curtis’s summaryjudgment motion even if we considered Berrum-Plata’s deficient responses.
- 8 -
(Id.)
In connection with his agreement to cooperate with the FBI,
Curtis read Berrum-Plata a series of admonishments.
(Id. at ¶ 4.)
Among other things, Curtis explained that the FBI could not
guarantee
him
any
particular
immigration
status;
only
the
Department of Homeland Security could make commitments regarding
his right to remain in the United States.
He also
(Id.)
admonished Berrum-Plata that he could not engage in any criminal
activity without the FBI’s prior approval, and that he could be
prosecuted for any unauthorized criminal activity.
(Id.)
Shortly
after receiving these admonishments, Berrum-Plata conducted an
unauthorized narcotics transaction in Mexico.
(Id. at ¶ 6.)
Curtis warned Berrum-Plata at that time that he had violated the
conditions of his cooperation, and that further violations would
result in the FBI revoking its support for his parole.
(Id. at ¶
7.)
In late January 2010, Berrum-Plata told Curtis that a drug
dealer had asked him to find a large amount of marijuana for
purchase.
(Id. at ¶ 9.)
drug transaction.
(Id.)
Curtis began arranging for a controlled
But before Curtis had obtained the
necessary authorization, Berrum-Plata told him that he had brokered
a 100-pound marijuana deal between the drug dealer and a supplier.
(Id. at ¶ 10.) In February 2010, Curtis told Berrum-Plata that the
FBI no longer wanted his cooperation because of this unauthorized
drug transaction.
(Id. at ¶ 11.)
He also told him that the FBI
was considering revoking its support for his SPBP status.
(Id.)
- 9 -
After notifying his superiors about the plaintiff’s admonishment
violations, the FBI decided that it would no longer support his
SPBP status.
(Id. at ¶ 13.)
Curtis informed ICE of the FBI’s
decision on or about February 23, 2010.
(Id. at ¶ 14.)
ICE
accepted Curtis’s offer to arrest Berrum-Plata himself once it
revoked Berrum-Plata’s SPBP status.
(Id.)
On or about March 4, 2010, ICE revoked Berrum-Plata’s parole.
(Id. at ¶ 15.)
He was still free on March 15, 2010 when the FBI
learned from the Cook County Sheriff’s Department that Berrum-Plata
had attempted to sell three pounds of marijuana.
(Id. at ¶ 16.)
On March 23, 2010, Curtis arranged to meet Berrum-Plata in a
parking lot near where they had met before during the FBI’s drug
investigation. (Id. at ¶¶ 17-19.) Curtis arrested Berrum-Plata at
that time and told him that ICE had revoked his SPBP status because
the FBI no longer supported his parole.
(Id. at ¶ 20.)
He also
told Berrum-Plata that he would be delivered to ICE and promptly
deported unless he contested deportation.
Berrum-Plata to ICE that same day.
(Id.)
Curtis delivered
(Id. at ¶ 21.)
On or about April 6, 2010, ICE instituted removal proceedings
against the plaintiff.
(Id. at ¶ 22.)
He contested removal and,
on December 20, 2011, an immigration judge granted his request for
relief.
(Id.)2
Pursuant to the judge’s order, ICE released
Berrum-Plata on January 12, 2012 and placed him under supervision
2/
The record in this case does not reflect the basis for the immigration
judge’s ruling.
- 10 -
pending further review of his immigration status.
(Id. at ¶ 22.)
Berrum-Plata filed this lawsuit two months later.
In his amended
complaint, he alleges that Curtis arrested him without probable
cause and seeks damages against him under Bivens.
(See Am. Compl.
at 1, 5-6.)
DISCUSSION
Curtis, citing qualified immunity, has moved for summary
judgment on Berrum-Plata’s Bivens claim.
A.
Legal Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
In considering such a motion, the court construes the
evidence and all inferences that reasonably can be drawn therefrom
in the light most favorable to the nonmoving party.
See Pitasi v.
Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). “The court
need consider only the cited materials, but it may consider other
materials in the record.”
Fed. R. Civ. P. 56(c)(3).
judgment should be denied if the dispute is ‘genuine’:
“Summary
‘if the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.’”
Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d
1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
The court will enter summary
judgment against a party who does not “come forward with evidence
- 11 -
that would reasonably permit the finder of fact to find in [its]
favor on a material question.” McGrath v. Gillis, 44 F.3d 567, 569
(7th Cir. 1995).
B.
Berrum-Plata’s Bivens Claim for Illegal Seizure
We ask two questions when analyzing a defendant’s qualified-
immunity defense: (1) did the defendant’s conduct violate the
plaintiff’s constitutional rights?; and (2) was that particular
constitutional right clearly established at the time of the alleged
violation? Saucier v. Katz, 533 U.S. 194, 201 (2001) (overruled in
part by Pearson v. Callahan, 555 U.S. 223 (2009)).
To survive
summary judgment on his Fourth Amendment claim, Berrum-Plata must
raise a genuine dispute of material fact regarding whether Curtis
had probable cause to arrest him.
See Woods v. City of Chicago,
234 F.3d 979, 995-96 (7th Cir. 2000); see also McBride v. Grice,
576 F.3d 703, 707 (7th Cir. 2009) (“Probable cause is an absolute
bar to a § 1983 claim for false arrest”); Martin v. Sias, 88 F.3d
774, 775 (9th Cir. 1996) (Section 1983 and Bivens actions “are
identical save for the replacement of a state actor under § 1983 by
a federal actor under Bivens.”) (citation and internal quotation
marks omitted) (cited with approval in Clemente v. Allen, 120 F.3d
703, 705 (7th Cir. 1997)).
A law enforcement officer has probable
cause to arrest a suspect if, at the time of the arrest, the facts
and circumstance within the officer’s knowledge were sufficient to
warrant a prudent person to believe that the suspect had committed
- 12 -
an offense.
2009).
Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir.
Berrum-Plata quibbles about whether ICE’s decision to
revoke his SPBP status was effective prior to his arrest, citing
immigration regulations providing that “parole shall be terminated
upon written notice to the alien . . . .”
(emphasis added).
8 C.F.R. 212.5(e)(2)(1)
Curtis was not required to investigate and
confirm whether ICE had complied with the regulation’s notice
requirements.
He reasonably believed that ICE had revoked parole,
and he was acting pursuant to ICE’s request to arrest Berrum-Plata.
He clearly had probable cause to arrest Berrum-Plata for being in
the country illegally.
The result would be the same even if we
overlooked Berrum-Plata’s failure to comply with Local Rule 56.1.
(See supra.)
He states in his affidavit that he did not engage in
any unauthorized drug transactions.
11, 15.)
(See Berrum-Plata Aff. ¶¶ 10-
But he was not arrested and charged for selling drugs.
He was arrested for being in the United States illegally.
C.
Breach of Contract and Related Theories
We asked the parties to consider whether the arrangement
between the FBI, ICE, and Berrum-Plata was terminable at will, or
if it could only be terminated for cause. Berrum-Plata admits that
he received the following admonition:
No promises or commitments can be made, except by the
Department of Homeland Security (DHS), regarding the
alien status of any person or the right of any person to
enter or remain in the U.S.
- 13 -
(“Operating Instructions to the Cooperating Human Source,” attached
as Ex. A to Curtis’s Decl., at 2-3; Pl.’s Resp. to Def.’s Stmt. ¶
4.) There is no evidence that the Department of Homeland Security,
through ICE, ever made any commitment to Berrum-Plata.
It granted
Berrum-Plata’s request for parole on the FBI’s recommendation, but
it was always free to terminate parole with or without the FBI’s
approval.
See
8
CFR
§
212.5(e)(2)(i).
Its
unfettered and not subject to judicial review.
O'Connell,
335
F.3d
545,
548
(7th
Cir.
discretion
is
See Samirah v.
2003)
(the
Attorney
General’s decision to revoke parole under 8 CFR § 212.5(e)(2)(i) is
not
reviewable);
see
also
8
U.S.C.
§
1252(a)(2)(B)(ii)
(“Notwithstanding any other provision of law, no court shall have
jurisdiction to review . . . any other decision or action of the
Attorney General the authority for which is specified under this
subchapter to be in the discretion of the Attorney General . . .
.”).
For that reason, aliens do not have a constitutionally
protected liberty interest in parole.
Darif v. Holder, 739 F.3d
329, 336 (7th Cir. 2014) (“We have repeatedly held that the
opportunity
for
discretionary
relief
from
removal
is
not
a
protected liberty interest because aliens do not have a legitimate
claim of entitlement to it.”).
Berrum-Plata nevertheless argues that he can proceed against
Curtis on a breach-of-contract or a related theory.
(See Pl.’s
Sur-Reply at 2 (arguing that Curtis breached his promise); id. at
- 14 -
4 (suggesting, without developing the argument, that he might be
entitled to relief under “contract principles. . . .”).)
That is,
even if ICE always retained discretion to revoke parole, Curtis
promised that he would support Berrum-Plata’s SPBP application so
long as he complied with the admonishments.
First, under Curtis’s
version of events — which we have deemed to be true, see supra — he
did not breach his promise because Berrum-Plata violated the terms
of his cooperation at least twice.
Second, even if we considered
Berrum-Plata’s response to the defendant’s statement of facts, he
could not assert a breach-of-contract claim against Curtis without
first exhausting his administrative remedies under the FTCA.
28 U.S.C. § 2675.
See
It is clear that he has not done so, and the
deadline for filing an FTCA claim has long since passed.
See 28
U.S.C. § 2401 (“A tort claim against the United States shall be
forever barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues.”).
D.
Habeas Corpus
We reject Berrum-Plata’s belated habeas-corpus theory.
Pl.’s Sur-Reply at 3-4.)
(See
According to the plaintiff, he is in
“custody” for purposes of 28 U.S.C. § 2241 because a paroled alien
is deemed “legally detained at the border within the government’s
custody until his immigration status is determined.”
F.3d at
547.
Samirah, 335
First, it is irrelevant whether a § 212.5 parolee is
in government “custody” because ICE revoked Berrum-Plata’s parole
- 15 -
over four years ago.
When the removal proceedings terminated in
his favor, ICE released him subject to an “order of supervision.”
(See Pl.’s Resp. to Def.’s Stmt. ¶ 22 (admitting that he was
released
from
ICE
custody
in
January
2012
and
placed
under
supervision); Decl. of Limaris O’Farrill, attached as Ex. 2 to
Def.’s Stmt., ¶ 15 (“On January 31, 2012, Berrum-Plata was released
from ICE custody and placed on an order of supervision.”).)
Although we do not know the terms of Berrum-Plata’s supervision, it
appears unlikely that he is eligible for habeas-corpus relief. Cf.
Fregis v. Holder, No. 2:13–cv–163–FtM–29DNF, 2014 WL 54839, *2
(M.D. Fla. Jan. 7, 2014) (a habeas petition is mooted by the
petitioner’s
release
(collecting cases).
subject
to
an
order
of
supervision)
Second, Curtis is not a proper party to such
a claim because he is not Berrum-Plata’s custodian.
Cf. Samirah,
335 F.3d at 551-52 (“The custodian, in most cases, ‘is the person
having a day-to-day control’ over the petitioner, because he ‘is
the only one who can produce ‘the body’ of the petitioner.’”)
(quoting Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir. 1986)).
Third, counsel’s last-ditch habeas-corpus theory is far afield of
Berrum-Plata’s actual claim in this suit.
There is simply no
suggestion in his amended complaint that he wishes to contest his
current immigration status.
Instead, he wants compensation for
Curtis’s alleged broken promise.
For the reasons we have just
explained, Curtis is entitled to summary judgment on that claim.
- 16 -
CONCLUSION
The defendant’s motion for summary judgment [72] is granted.
DATE:
July 23, 2014
ENTER:
___________________________________________
John F. Grady, United States District Judge
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