Romero-Arrizabal v. Ramos et al

Filing 61

ORDER Signed by the Honorable John J. Tharp, Jr on 9/8/2017: For the reasons set forth below, the defendants' motion to dismiss 58 is granted. The amended complaint is dismissed without prejudice. Plaintiff is given leave to replead on or before October 6, 2017. Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FRANCISCO ALBERTO ROMEROARRIZABAL,
Plaintiff,
v.
FERNANDO RAMOS, et al.
Defendants.

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No. 16 C 5967
Judge John J. Tharp, Jr.

ORDER
For the reasons set forth below, the defendants’ motion to dismiss [58] is granted. The amended
complaint is dismissed without prejudice. Plaintiff is given leave to replead on or before October
6, 2017.
STATEMENT
Plaintiff Francisco Alberto Romero-Arrizabal brings his Amended Complaint pursuant to
42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), alleging that the defendants, all U.S. Immigration and Customs Enforcement
(“ICE”) officers, violated his First and Eighth Amendment rights while he was in their custody.
Specifically, Romero-Arrizabal alleges that ICE officers violated his First Amendment right to
file grievances by “threatening physical harm and intimidating Plaintiff into withdrawing his
grievance” and the Eighth Amendment’s prohibition on cruel and unusual punishment by
“abandoning Plaintiff in the back of [a] van under extreme conditions.” Amended Complaint
(“Compl.”) at ¶ 20, 24, ECF No. 43. Defendants Fernando Ramos and Officer Rangel 1 have
moved to dismiss the Amended Complaint in its entirety.
As it must on a motion to dismiss, the Court accepts the well pled facts in the complaint
as true and draws all permissible inferences in favor of the plaintiff. Agnew v. NCAA, 683 F.3d
328, 334 (7th Cir. 2012). On July 30, 2014, plaintiff Francisco Alberto Romero-Arrizabal, while
in ICE custody, was transported to the “Broadview Service Staying ICE facility” 2 with
approximately ten other detainees. Compl. ¶ 9. Upon arrival, while the other inmates were
unloaded from the transport van, Romero-Arrizabal was left shackled in the van for 30 to 40
minutes under extreme temperatures without water leading to unspecified “permanent” injuries.
Id. at ¶ 10-12. After the incident, Romero-Arrizabal filed a grievance against the ICE officers 3
1

Deportation Officer Rangel’s first name is not in the record.

2

Presumably, this is a reference to ICE’s Broadview Service Staging Area. See
http://trac.syr.edu/immigration/detention/201509/BSAHOLD/tran/.
3

The ICE officers are not named in the complaint other than as Doe defendants; it is not
clear if Romero-Arrizabal was able to name them in the grievance or not.

who left him in the van. Id. at ¶ 13. In response to his filed grievance, Romero-Arrizabal alleges
that he was retaliated against, threatened physically, and intimidated by ICE Supervisor
Fernando Ramos, Deportation Officer Rangel, “and/or John Does 1-4.” Id. at ¶ 14. On January
21, 2015, “Ramos, Rangel and/or John Does 1-4” misrepresented the status of his Board of
Immigration Appeals case to improperly obtain Romero-Arrizabal’s signature on a deportation
order. Id. at ¶ 15. When Romero-Arrizabal refused to sign the order “Ramos, Rangel and/or John
Does 1-4” continued to threaten and intimidate him. Id. at ¶ 16.
Romero-Arrizabal filed this suit against Ramos, Rangel, and five John Doe ICE officers
on December 22, 2015, claiming the van incident violated his Eighth Amendment rights while
the retaliation and intimidation violated his First Amendment rights. Defendant Ramos moved to
dismiss Romero-Arrizabal’s amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) on March 3, 2017. Defendant Rangel joined the motion without raising further
arguments. See ECF No. 58.
DISCUSSION
To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, a
complaint must “contain sufficient factual matter, accepted as true, 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)). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014)
(quoting Iqbal, 556 U.S. at 678). A plaintiff does not need “detailed factual allegations,” but
more than “labels and conclusions” and “a formulaic recitation of the elements of a cause of
action” are required. Twombly, 550 U.S. at 555. Determining whether a complaint plausibly
states a claim for relief 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. “[W]here well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting Fed. Rule
Civ. P. 8(a)(2)).
I. First Amendment Claim
Romero-Arrizabal’s complaint fails to state a claim that the defendants violated RomeroArrizabal’s First Amendment rights. While Romero-Arrizabal alleges that “Defendants Ramos,
Rangel and/or John Does 1-4” subjected him to physical threats and intimidation, there is
nothing in his complaint—or response brief—that sufficiently ties any threats or intimidation to
Ramos. See Compl. ¶ 14; see also Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1986) (a
successful § 1983 claim requires “[a] causal connection, or an affirmative link, between the
misconduct complained of and the official sued”). While a plaintiff need not provide detailed
factual allegations, see Twombly, 550 U.S. at 555, Romero-Arrizabal’s failure to tie any action to
the defendants personally results in statements that are conclusory rather than factual. See Brooks
v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (finding that allegations that “one or more of the
Defendants” had engaged in acts depriving the plaintiff of his constitutional rights was “vague
phrasing, which does not adequately connect specific litigants to illegal acts”). Further, there is
nothing in the complaint that indicates what Ramos said or did that constituted a threat or
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intimidation, so the complaint fails to provide sufficient notice of the allegations against him. See
id. at 581. For example, it is unclear if Ramos himself directly attempted to obtain the signature
on Romero-Arrizabal’s deportation order, ordered a subordinate to do so, or had nothing to do
with it whatsoever.
Romero-Arrizabal argues that he requires discovery to determine “the identity and all the
specific activities of each individual actor.” Resp. at 6. Pretrial discovery has been allowed in
situations where the victim lacks knowledge that is in the hands of the defendant, such as where
circumstances make it impossible for the plaintiff to identify the injuring party. See Billman v.
Indiana Dep’t of Corr., 56 F.3d 785, 789 (7th Cir. 1995) (“ If a prisoner makes allegations that if
true indicate a significant likelihood that someone employed by the prison system has inflicted
cruel and unusual punishment on him, and if the circumstances are such as to make it infeasible
for the prisoner to identify that someone before filing his complaint, his suit should not be
dismissed as frivolous.”); Santiago v. Walls, 599 F.3d 749, 759-60 (7th Cir. 2010) (“Mr.
Santiago cannot know for certain what Warden Wells knew without discovery.”). Although
Romero-Arrizabal may not have all the facts, he should know more than he has pled here. How
many people were present during the alleged acts of intimidation? Were Ramos or Rangel
personally present during the alleged events? Were the officers who intimidated him the same as
the ones who attempted to improperly obtain his signature on the deportation order? The Court
does not require Romero-Arrizabal to be able to identify all the parties involved in the alleged
conduct, but he does need to do more to give the Court some idea of the factual basis for his
claims. As written, the complaint does nothing more than raise the mere possibility that one or
more defendants violated Romero-Arrizabal’s First Amendment rights. For that reason, Count I
is dismissed without prejudice.

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II. Eighth Amendment Claim 4
In prisons, the “unnecessary and wonton infliction of pain” constitutes cruel and unusual
punishment forbidden by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 103 (1976).
Prisoners are entitled to conditions that meet “the minimal civilized measure of life’s
necessities.” Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997) (quoting Farmer v. Brennan,
511 U.S. 825, 843 (1994)). Conditions “may be harsh and uncomfortable without violating the
Eighth Amendment’s prohibition on cruel and unusual punishment.” Id. A claim of
constitutionally inadequate confinement requires a two-step analysis: (1) “whether the conditions
at issue were sufficiently serious so that a prison official’s act or omission result[ed] in the denial
of the minimal civilized measure of life’s necessities;” and (2) “whether prison officials acted
with deliberate indifference to the conditions in question.” Townsend v. Fuchs, 522 F.3d 765,
773 (7th Cir. 2008) (internal quotation marks and citation omitted). Deliberate indifference
“means that the official knew that the inmate faced a substantial risk of serious harm, and yet
disregarded that risk by failing to take reasonable measures to address it.” Id.
Romero-Arrizabal has failed to satisfy the first prong with his allegation that he was left
for 30-40 minutes alone in a hot transport van. The Eighth Amendment prohibition on cruel and
unusual punishment guarantees those in custody “a right to be free from extreme hot and cold
temperatures.” Shelby Cnty. Jail Inmates v. Westlake, 798 F.2d 1085, 1087 (7th Cir. 1986). Both
the severity of the heat and its duration must be taken into consideration when determining
whether the heat was unconstitutionally excessive. See Dixon, 114 F.3d at 642 (“[I]t is not just
the severity of the cold, but the duration of the condition, which determines whether the
conditions of confinement are unconstitutional.”).
Romero-Arrizabal has not pled sufficient facts that plausibly indicate that the conditions
in the transport van were so severe that they constitute an Eighth Amendment violation. He
alleges that he was left shackled in a dark, unventilated van without hydration for 30-40 minutes
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In asserting his claim regarding being held in the van, the plaintiff invokes the Eighth
Amendment, but the Eighth Amendment applies to convicted prisoners, not to detainees like the
plaintiff. Estate of Clark v. Walker, 865 F.3d 544, 546 (7th Cir. 2017). Claims of detainees
relating to conditions of confinement are properly analyzed under the due process clause of the
14th Amendment. The Seventh Circuit has repeatedly acknowledged this distinction, but has not
addressed whether it has any substantive implications. Instead, the Court of Appeals has
routinely concluded that because detainees are entitled to at least as much protection as
prisoners, where a plaintiff fails to state a claim for a violation based on the Eighth Amendment
standards, a claim under the 14th Amendment would also necessarily fail. See, e.g., id.; Cavalieri
v. Shepard, 321 F.3d 616, 620 (7th Cir. 2003) (“as a pretrial detainee, [plaintiff] was entitled to
at least the same protection against deliberate indifference to his basic needs as is available to
convicted prisoners under the Eighth Amendment ”); Jackson v. Illinois Medi–Car, Inc., 300
F.3d 760, 764 (7th Cir. 2002) (“[W]hen considering a pretrial detainee's claim of inadequate
medical care, we frequently turn to the analogous standards of Eighth Amendment
jurisprudence.”) (citations omitted). As the plaintiff’s claim falls short under the Eighth
Amendment, the Court takes the same approach here.

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in extreme July heat. Even when drawing all reasonable inferences to what an “extreme”
temperature would be in late-July, 5 such details do not support actionable conditions. RomeroArrizabal draws comparisons to Hope v. Pelzer, 536 U.S. 730 (2002), where the Supreme Court
found an Eighth Amendment violation when prison guards handcuffed an inmate to a hitching
post in the sun with minimal water. Id. at 738. Yet the prisoner in Hope was left in the sun for
seven hours – significantly longer than the 30-40 minutes Romero-Arrizabal alleges. Courts have
regularly found that exposure to heat for under an hour is not sufficient to violate a constitutional
right. See Byrd v. Brannigan, No. 98 C 2092, 2000 WL 88689, at *5 (N.D. Ill. Jan. 21, 2000)
(finding as a matter of law that leaving prisoner “hyperventilating in a ninety-degree car for over
a half-hour” does not “rise to the level of a constitutional violation”); Glenn v City of Tyler, 242
F.3d 307, 314 (5th Cir. 2001) (post-arrest detention for approximately one-half hour in
unventilated police vehicle in the sun did not violate the Fourth Amendment); Emmerick v. City
of Gatlinburg, Tenn., No. 3:08-CV-305, 2010 WL 3861047, at *4 (E.D. Tenn. Sept. 24, 2010)
(“[police] did not violate a clearly established constitutional right when they left plaintiff in an
unventilated police car for 30 minutes”).
Being left in a hot, unventilated van for a short period of time does not rise to the level of
a denial of the minimal civilized measure of life’s necessities. Romero-Arrizabal’s allegations
regarding the conditions in the transport van do not satisfy the first requirement of an Eighth
Amendment claim, so Count II is dismissed without prejudice.
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The defendants’ motion to dismiss is granted without prejudice. To the extent that
Romero-Arrizabal can plead further facts, particularly with regard to his First Amendment claim,
he is granted leave to amend on or before October 6, 2017.
______________________
John J. Tharp, Jr.
United States District Judge

Dated: September 8, 2017

5

According to the National Oceanic and Atmospheric Administration the high
temperature for July 30, 2014 was only 79 degrees Fahrenheit at Chicago’s O’Hare International
Airport. Climate Data Online, National Centers for Environmental Information (last visited July
6, 2017), https://www.ncdc.noaa.gov/cdo-web/search. Judges are permitted to take judicial
notice of weather data. See Owens v. Duncan, 781 F.3d 360, 362 (7th Cir. 2015).
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