Romero-Arrizabal v. Ramos et al

Filing 75

ORDER Signed by the Honorable John J. Tharp, Jr on 3/20/2019: For the reasons set forth in the Statement below, the defendants' motion to dismiss 67 is granted and the plaintiff's second amended complaint 62 is dismissed with prejudice. Civil case terminated. (For further details see order) Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FRANCISCO ALBERTO ROMEROARRIZABAL,
Plaintiff,
v.
ICE SUPERVISOR FERNANDO
RAMOS, DEPORTATION OFFICER
RANGEL, and JOHN DOES 1-4,
Defendants.

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No. 16-cv-5967
Judge John J. Tharp, Jr.

ORDER
For the reasons set forth in the Statement below, the defendants’ motion to dismiss [67] is
granted and the plaintiff’s second amended complaint [62] is dismissed with prejudice. Civil case
terminated.
STATEMENT
On September 8, 2017, this Court dismissed plaintiff Francisco Alberto RomeroArrizabal’s amended complaint without prejudice. See generally Order and Statement, ECF No.
61. The Court gave Romero-Arrizabal leave to amend his complaint, and he subsequently filed a
second amended complaint. Defendants Fernando Ramos and Lilia Rangel have now moved to
dismiss that complaint.
As with Romero-Arrizabal’s previous complaint, the second amended complaint is
directed against Ramos, Rangel, and four unnamed John Doe defendants. All of these defendants
are employees of U.S. Immigrations and Customs Enforcement (“ICE”) or the Department of
Homeland Security. See Second Am. Compl. ¶¶ 6-8, ECF No. 62. Romero-Arrizabal is an El
Salvadoran citizen who is currently detained in the custody of ICE. Id. ¶ 5. This complaint, like
the previous iteration, is brought as an action under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), for alleged violations of Romero-Arrizabal’s rights
under the First Amendment and the Eighth Amendment. Second Am. Compl. ¶ 1. 1 (As the Court
will explain later, however, with respect to the latter, Romero-Arrizabal’s allegations are properly
evaluated under the Due Process Clause of the Fifth Amendment rather than the Eighth
Amendment.)

1

Romero-Arrizabal also invokes 42 U.S.C. § 1983, but as all of the defendants in this case
are federal employees, this suit is properly analyzed under Bivens rather than § 1983.

The basic outlines of Romero-Arrizabal’s allegations are similar to those in the previous
complaint, though he has included some additional details. 2 He states that on July 30, 2014, he
was transported by van from the McHenry County Jail to a U.S. Citizenship and Immigration
Services facility in Chicago. Id. ¶ 9. When the van arrived, all of the other inmates except RomeroArrizabal were unloaded. Id. ¶ 10. He was left shackled in the van, where he remained for
approximately 40 minutes. Id. ¶¶ 10-11. Romero-Arrizabal alleges that during that time, he
“suffered under extreme circumstances,” as the van was hot and unventilated, and that he “suffered
difficulty breathing, fear, and thought he would die due to the extreme heat.” Id. ¶ 12. He further
asserts that he “continues to suffer permanent bodily and mental injuries” from this event,
including “fear for his safety, hyperventilation, and subsequent post traumatic stress disorder,
claustrophobia, and panic attacks.” Id. ¶ 13.
After this incident, Romero-Arrizabal filed a grievance against the ICE officers who left
him in the van. Id. ¶ 15. He alleges that as a result, the defendants and various other people took a
series of actions that were intended to retaliate against him. First, on numerous other occasions,
the defendants transported him to Chicago “using the same or similar vans, under the same or
similar conditions,” despite his requests for alternate means of travel. Id. ¶¶ 16-17. This led him to
suffer “anxiety, panic attacks, and other physical symptoms.” Id. ¶ 17.
Second, Romero-Arrizabal alleges that federal employees made various threats against him
to coerce him to drop his grievance. These employees, who are not named as defendants, include
Ricardo A. Wong, Ricardo Arias of the Department of Homeland Security, and Officer Landmeier
of ICE (whose first name is not in the record). Romero-Arrizabal asserts that on one occasion,
these three individuals spoke with him and told him that “if he dropped the complaint, everything
would be ‘good,’” but if he did not, “they would put a charge on him, including a federal charge
for lying.” Id. ¶ 21. He was subsequently removed to another room by Arias and Landmeier, where
he was told that “he had to sign deportation papers, or else federal charges would be brought
against him.” Id. ¶ 22. On another occasion, according to Romero-Arrizabal, Arias and Landmeier
“attempted to obtain [his] signature on deportation documents despite the fact that the legal status
of [his immigration] appeal did not require deportation.” Id. ¶ 23. The officers displayed various
documents that, they said, demonstrated that Romero-Arrizabal would have to be deported, but
these representations were false, and the officers would not let him examine the documents closely.
See id. ¶¶ 24-26. While Rangel and Ramos did not take part in most of this conduct, RomeroArrizabal alleges that they were present for at least some of the interviews and that both Rangel
and Ramos “approved” or “directed and ratified” the conduct of Wong, Arias, and Landmeier. See
id. ¶¶ 22, 27, 29, 31, 36.
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
2

As it must in evaluating a motion to dismiss, the Court accepts the well-pleaded 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).
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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.
I.

First Amendment

A First Amendment retaliation claim requires a plaintiff to “show that (1) he engaged in
activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter
First Amendment activity in the future; and (3) the First Amendment activity was at least a
motivating factor in the Defendants’ decision to take the retaliatory action.” Bridges v. Gilbert,
557 F.3d 541, 546 (7th Cir. 2009) (citations and internal quotation marks omitted). RomeroArrizabal argues that his filing of a grievance against the ICE officers after the hot van incident
was protected activity under the First Amendment. He further asserts that the subsequent actions
taken against him, including “attempting to coerce [him] into signing deportation papers,
misinforming [him] regarding his immigration status,” and threatening him with federal charges,
were retaliatory and violated his First Amendment rights. Second Am. Compl. ¶ 35.
In their motion to dismiss, Ramos and Rangel make three principal arguments. First, they
contend that Romero-Arrizabal has not plausibly alleged that anything they did constituted a First
Amendment violation. Second, they argue that even if they committed any such violation, they are
entitled to qualified immunity. And third, they assert that the Court should not recognize a Bivens
remedy in the context of a First Amendment retaliation claim. Because the Court concludes that
the defendants’ first argument is correct, it need not address the other two issues.
With respect to Romero-Arrizabal’s First Amendment claim, the Court dismissed his
previous complaint because it was insufficiently clear what the allegedly retaliatory conduct was
and because it did not tie any action to the defendants personally. See Order and Statement 2-3.
The new complaint provides additional details about the actions that were taken, but what is most
striking is that very little of the allegedly retaliatory conduct it describes was committed by the
defendants. According to the complaint, the interviews were conducted by Wong, Arias, and
Landmeier. These three individuals are not named defendants, and the fact that they have been
identified by name in the complaint makes clear that they are not the unnamed “John Doe”
defendants either.
Romero-Arrizabal’s First Amendment claim, then, rests on two sets of allegations. First,
there are things that Wong, Arias, and Landmeier did, for which Romero-Arrizabal argues that
Ramos and Rangel are legally responsible. Second, there are a smaller number of things that
Ramos and Rangel did themselves. Regarding the former, a “defendant cannot be liable under
Bivens on the basis of respondeat superior or supervisory liability, rather, there must be individual
participation and involvement by the defendant.” Arnett v. Webster, 658 F.3d 742, 757 (7th Cir.
2011). In a Bivens action, “[a]bsent vicarious liability, each Government official, his or her title
notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at 677. Ramos and
Rangel, therefore, cannot be liable for the actions of others merely on the basis that they may have

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held supervisory positions. In this context, a supervisor may be liable for a subordinate’s
misconduct only “if he wants the unconstitutional or illegal conduct to occur.” Vance v. Rumsfeld,
701 F.3d 193, 203 (7th Cir. 2012) (en banc).
Romero-Arrizabal alleges that both Rangel and Ramos “approved” the conduct of Wong,
Arias, and Landmeier. Second Am. Compl. ¶¶ 29, 31. Elsewhere, he states that Ramos and Rangel
“directed and ratified the actions” taken by those three employees. Id. ¶ 36. These allegations are
so threadbare and conclusory as to not be entitled to a presumption of truth. See Iqbal, 556 U.S. at
678. The second amended complaint does not elaborate on these allegations; it is quite unclear
what Ramos and Rangel are supposed to have done to approve, direct, or ratify the conduct of
other government employees, or to which actions these claims apply. Moreover, it is far from clear
that Ramos or Rangel even possessed supervisory authority over these employees. As the
defendants point out, an exhibit attached to Romero-Arrizabal’s original complaint indicates that
around the time of the events described in the complaint, Wong was the director of ICE’s Chicago
field office. See Compl. Ex. 14, ECF No. 1-16; Reply Mem. in Supp. of Defs. Ramos and Rangel’s
Mot. to Dismiss 4, ECF No. 74. There is no reason to think that Wong was acting under the
direction of either Ramos or Rangel.
As for the actions taken directly by Ramos and Rangel, they are also insufficient to state a
claim for retaliation. The most significant of these is Romero-Arrizabal’s allegation that Rangel
“also met with Plaintiff and she attempted to coerce Plaintiff into signing deportation papers.
Defendant Rangel threatened to bring federal charges against Plaintiff if he refused to sign.”
Second Am. Compl. ¶ 30. As the defendants note, however, the “deportation papers” referenced
in the complaint include both an I-229(a) form and an accompanying instruction sheet. See Mem.
in Supp. of Mot. of Defs. Ramos and Rangel to Dismiss (“MTD”) 3, 14, ECF No. 68. RomeroArrizabal attached these forms to his original complaint. See Compl. Ex. 13, ECF No. 1-15; Compl.
Ex. 14, ECF No. 1-16. Signing such a form does not consent to deportation; rather, it is simply an
acknowledgement of receipt of the warnings on the form. See MTD 14. Importantly, in his
response, Romero-Arrizabal does not contest that these were in fact the forms that he was
presented with, nor does he dispute the defendants’ account of the legal significance of signing
them. See generally Pl.’s Resp. in Opp. to Defs.’ Mot. to Dismiss (“Response”), ECF No. 73.
Being asked to sign such a form does not constitute a “deprivation that would likely deter First
Amendment activity in the future.” Bridges, 557 F.3d at 546.
Finally, the complaint includes general allegations that Ramos and Rangel “retaliated
against, threatened physically and intimidated Plaintiff in an attempt to coerce him into dropping
his grievance,” and that they “continued to threaten physical harm and otherwise intimidate
Plaintiff” after he refused to sign a deportation order. Second Am. Compl. ¶¶ 32-33. It is not clear
whether these statements are intended to be summaries of the specific conduct recounted above,
or independent substantive allegations of other things that the defendants have done. In either case,
these statements are wholly conclusory and so are not entitled to a presumption of truth. In short,
Romero-Arrizabal’s second amended complaint fails to make any non-conclusory allegations that
give rise to a claim that the defendants violated his First Amendment rights.

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II.

Due Process Clause

In its previous order, this Court concluded that Romero-Arrizabal’s allegation that he was
left alone and shackled in a heated, unventilated van for 30-40 minutes was insufficient to state a
claim that his constitutional rights were violated. See Order and Statement 4-5. RomeroArrizabal’s second amended complaint tells essentially the same story about his detention in the
van, but he makes two new arguments as to why this complaint should survive a motion to dismiss.
First, he contends that this complaint has alleged additional facts about “the severity of the incident
and the psychological toll it exerted on him,” and that these facts give rise to a plausible claim.
Response 2. Second, Romero-Arrizabal argues that his allegations concerning the subsequent van
trips provide an additional basis for his suit to go forward. See id. at 3. In its previous opinion, the
Court treated Romero-Arrizabal’s claim regarding the van incident as a challenge to his conditions
of confinement. See Order and Statement 4. While it is not entirely apparent how best to categorize
his claim, the Court adopts the same approach here.
As he did in his previous complaint, Romero-Arrizabal describes his treatment in the van
as an Eighth Amendment violation. The Court notes again, however, that for individuals who are
detainees rather than convicted prisoners, such claims are properly analyzed under the Due Process
Clause of the Fifth Amendment (for those in federal custody, such as Romero-Arrizabal) or the
Fourteenth Amendment (for those in state custody). See id. at 4 n.4. The legal standards applicable
to such claims in this circuit have changed since this Court’s previous opinion, and those changes
require some elaboration.
Prior to 2018, courts in this circuit recognized the distinction between claims brought by
pretrial detainees and those brought by prisoners regarding their treatment while in custody, but
tended to evaluate them similarly. The Seventh Circuit acknowledged that pretrial detainees were
entitled to “at least the same protection” as was “available to convicted prisoners under the Eighth
Amendment.” Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir. 2003). In practice, it “typically
assessed” the claims of pretrial detainees “under the Eighth Amendment’s standards.” Miranda v.
County of Lake, 900 F.3d 335, 350 (7th Cir. 2018). As a result, the question whether pretrial
detainees were entitled to more protection than convicted prisoners—and, if so, how the legal
standards that would govern detainees’ claims would differ from those involving prisoners—
remained largely unanswered.
Then came the Seventh Circuit’s decision last year in Miranda. Miranda involved a claim
for denial of adequate medical treatment brought on behalf of a pretrial detainee. In Miranda, the
Seventh Circuit held that, with respect to pretrial detainees, these claims are not to be evaluated
under a deliberate-indifference standard, as those of prisoners are, but rather are subject to a test
of objective reasonableness. See id. at 352. The Miranda opinion relied heavily on the Supreme
Court’s 2015 decision in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), which held that courts
must evaluate excessive force claims of pretrial detainees under an objective reasonableness
standard.
On its face, the holding in Miranda was limited to “medical-care claims.” Miranda, 900
F.3d at 352. Since medical claims are a subset of conditions-of-confinement claims, this Court
concludes, as other judges in this circuit have, that the objective reasonableness standard
announced in Miranda applies generally to conditions-of-confinement claims brought by

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detainees. See Sibley v. Dart, No. 17-cv-6298, 2019 WL 670270, at *2 (N.D. Ill. Feb. 19, 2019);
McWilliams v. Cook County, No. 15-cv-53, 2018 WL 3970145, at *5 (N.D. Ill. Aug. 20, 2018);
Moore v. Germaine, No. 18-cv-1378-JPG, 2018 WL 4027575, at *2 (S.D. Ill. Aug. 23, 2018). The
Court also finds the analysis in these cases, and particularly in Sibley, regarding how Miranda
should be understood to affect the inquiry into conditions of confinement for detainees to be
persuasive. When a prisoner challenges his conditions of confinement, two elements are required
to establish that the Eighth Amendment has been violated. First, there must be “an objective
showing that the conditions are sufficiently serious—i.e., that they deny the inmate ‘the minimal
civilized measure of life’s necessities.’” Isby v. Brown, 856 F.3d 508, 521 (7th Cir. 2017) (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Second, there must be “a subjective showing of
a defendant’s culpable state of mind.” Id. For suits by prisoners under the Eighth Amendment, “the
mental state of the prison official must have been one of deliberate indifference to inmate health
or safety.” Haywood v. Hathaway, 842 F.3d 1026, 1031 (7th Cir. 2016). For detainees, however,
the analysis is now different. After Miranda, a detainee bringing a conditions-of-confinement
claim under the Due Process Clause “need only allege that ‘defendant’s conduct was objectively
unreasonable’—in addition to alleging that the conditions of confinement were sufficiently
serious.” Sibley, 2019 WL 670270, at *3 (quoting McWilliams, 2018 WL 3970145, at *5)
(emphasis added).
In other words, for detainees, the conditions-of-confinement inquiry remains a two-part
test, and Miranda altered only one of the two prongs. Miranda modified the requirement for what
the defendant’s mental state must be with respect to the detainee’s conditions of confinement,
replacing the deliberate-indifference standard with one of objective unreasonableness. But it did
not change the governing standards regarding the severity of the conditions that would qualify as
a constitutional violation under the Due Process Clause. A detainee must still demonstrate that the
conditions of confinement are “sufficiently serious,” which is to say that they must deny the
detainee “the minimal civilized measure of life’s necessities.” 3
In Romero-Arrizabal’s second amended complaint, he makes new allegations about the
level of suffering he endured in the van and the injuries he has sustained as a result. See Second
Am. Compl. ¶ 12 (“He suffered difficulty breathing, fear, and thought he would die due to the
extreme heat.”); id. ¶ 13 (“Plaintiff suffered and continues to suffer permanent bodily and mental
injuries, including fear for his safety, hyperventilation, and subsequent post traumatic stress
disorder, claustrophobia, and panic attacks.”). The essence of what Romero-Arrizabal alleges was
done to him by the defendants, however, is the same as in the previous complaint. Again, Romero3

One other distinction that the Supreme Court has recognized between the two
constitutional provisions at issue is that while the Eighth Amendment protects prisoners against
cruel and unusual punishments, the Due Process Clause protects detainees against any conditions
that amount to punishment. See Kingsley, 135 S. Ct. at 2473-75; Bell v. Wolfish, 441 U.S. 520, 535
(1979). Punishment can either “consist of actions taken with an ‘expressed intent to punish’” or
those that “are not ‘rationally related to a legitimate nonpunitive governmental purpose’” or appear
excessive in relation to that purpose. Kingsley, 135 S. Ct. at 2473 (quoting Bell, 441 U.S. at 538,
561). Romero-Arrizabal has not advanced the argument that he was subjected to “punishment” by
this definition, nor has he pleaded sufficient facts to allow the Court to reach the conclusion that
he has stated a colorable claim under this metric.
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Arrizabal alleges that he was left shackled in a hot, unventilated van for approximately 40 minutes.
Id. ¶¶ 10-12. He alleges that he “suffered under extreme conditions,” including “extreme heat.” Id.
¶ 12. The Court notes again, however, that according to the National Oceanic and Atmospheric
Administration, the recorded high temperature at Chicago’s O’Hare International Airport on July
30, 2014, was 79 degrees Fahrenheit. See Order and Statement 5 n.5. It also observes that there is
no indication in the second amended complaint that Romero-Arrizabal ever sought or asked for
medical treatment for his alleged injuries. This Court determined that the allegations in RomeroArrizabal’s earlier complaint did not rise to the level of a denial of the minimal civilized measure
of life’s necessities. See id. at 4-5. Because the allegations in the second amended complaint are
substantially the same as in the previous version, the Court comes to the same conclusion here.
Romero-Arrizabal contends that courts have determined that constitutional violations were
committed under similar circumstances to those in this case, and cites Burchett v. Kiefer, 310 F.3d
937 (6th Cir. 2002), as his only example. See Response 3. That case, however, is distinguishable
for multiple reasons. First, on its facts, Burchett involved a plaintiff who was held and handcuffed
in a police car for three hours when the outside temperature was 90 degrees. Burchett, 310 F.3d at
940. That means the duration of the incident in Burchett was at least four times longer than the one
in this case, while the outside temperature was significantly hotter. Second, Burchett was a Fourth
Amendment case. Unlike Romero-Arrizabal, who was already subject to detention long before the
van incident, the plaintiff in Burchett was left in the police car as the means of effecting the initial
seizure. What the Sixth Circuit ultimately concluded in Burchett was that the plaintiff’s Fourth
Amendment right against unreasonable seizures had been violated. Id. at 945. That is not a claim
that Romero-Arrizabal has advanced in this case. Nor is it a claim that would have been available
to him even if he had tried to make it. 4 The legal standards applicable to Romero-Arrizabal’s claim
are fundamentally different from the ones that governed the outcome in Burchett.
The Court also determines that the allegations that the defendants transported RomeroArrizabal in a van on multiple occasions after the hot van incident do not rise to the level of a
constitutional violation. Romero-Arrizabal states that “he was repeatedly subjected to nearly
identical van trips,” Response 3, but they were only “nearly identical” in the sense that he was
transported in a van. He does not allege that the van was overheated on any of those subsequent
trips, nor that he was left alone in the van. See Second Am. Compl. ¶¶ 16-17. As the defendants
correctly note, it does not violate the Constitution for the government to use a van to transport
detainees. Romero-Arrizabal has not cited any authority for the implicit proposition that, after the
hot van incident, the government was constitutionally obligated to find alternate means of
transporting him on subsequent occasions. The Court concludes, therefore, that the government

4

The Seventh Circuit has held that while the protections of the Fourth Amendment apply
at arrest and through a probable cause hearing, “due process principles govern a pretrial detainee’s
conditions of confinement after the judicial determination of probable cause.” Lopez v. City of
Chicago, 464 F.3d 711, 719 (7th Cir. 2006). Romero-Arrizabal has not contended that he had not
been subject to a probable cause determination at the time of the van incident, and there is nothing
in the record that would indicate that this was the case.
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had no such obligation, and that Romero-Arrizabal has not stated a plausible claim under the Due
Process Clause. 5
*

*

*

For all of these reasons, Romero-Arrizabal’s second amended complaint is dismissed.
Because the Court determines that it would be futile to allow him to amend the complaint once
again, this dismissal is with prejudice. Civil case terminated. 6

Dated: March 20, 2019

John J. Tharp, Jr.
United States District Judge

5

To the extent that Romero-Arrizabal also appears to suggest that the subsequent van trips
constituted acts of retaliation under the First Amendment, see Second Am. Compl. ¶ 35, the Court
rejects this argument as well. Transporting a prisoner or detainee in a van is not a “deprivation that
would likely deter First Amendment activity in the future.” Bridges, 557 F.3d at 546.
6

The Court thanks recruited counsel for their able representation of Romero-Arrizabal in
this case.
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