Enriquez-Perdomo v. Sessions et al
Filing
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MEMORANDUM OPINION & ORDER: 1) Defendants Sessions and Dukes' Motion to Dismiss 15 is GRANTED. 2) The Court having further determined that it lacks jurisdiction over a Bivens action against the unnamed and unidentified officer Defend ants, and Defendant Shier having been named for the purpose of service only, the entire second amended complaint 12 is hereby DISMISSED. 3) A Judgment will be entered contemporaneously. Signed by Judge David L. Bunning on 2/16/2018.(ECO)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 17-147-DLB-CJS
RICCY MABEL ENRIQUEZ-PERDOMO
vs.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
JEFF SESSIONS, et al.
DEFENDANTS
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This action combines a habeas corpus petition with a demand for injunctive relief
and a federal Bivens1 action. For the reasons below, the Court will grant Defendants Jeff
Sessions and Elaine Dukes’ Motion to Dismiss, and sua sponte dismiss the action against
the unnamed and unidentified federal agents.
I.
Factual and Procedural Background
Plaintiff was born in Honduras on July 28, 1995, and arrived in the United States
as a minor with her mother around April 2004. (Doc. 12 at ¶ 9). According to Plaintiff,
she has resided in Kentucky since 2016, most recently in Florence, Kentucky. Id. at ¶¶
9, 11. Plaintiff further alleges that she has two minor children who were born in the United
States. Id. at ¶ 10. Plaintiff alleges that she was approved under the Deferred Action for
Childhood Arrivals (“DACA”) program in March 2015, and was subsequently renewed for
a two-year period in January 2017. Id. at ¶¶ 13.
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Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In this
case, the Supreme Court held that a violation of the Fourth Amendment “by a federal agent acting under
color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional
conduct.” Bivens, 403 U.S. at 389.
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Plaintiff alleges that on August 17, 2017, she was unlawfully detained in Louisville,
and thereafter detained at an unknown location until she was released on August 25,
2017. Id. at ¶¶ 12, 16. Plaintiff also asserts that after she was released, the United States
Immigration and Customs Enforcement (“ICE”) refused to return all of her state and
federal identification documents. Id. at ¶ 17.
Following Plaintiff’s detention, she initially filed petition for a writ of habeas corpus
on August 23, 2017, naming Defendants Sessions, Dukes, and then-interim U.S. Attorney
Carleton Shier. (Doc. # 1). The next day, Plaintiff filed an amended petition and a motion
to stay. (Docs. # 3 and 4). On August 31, 2017, Plaintiff filed her second amended
complaint, adding as defendants several unnamed and unidentified ICE agents, and
indicating that Defendant Shier was named only for the purpose of service. (Doc. # 12).
In addition to the original petition for a writ of habeas corpus, this latest complaint sought
an injunction requiring the Defendants to return her state and federal documentation, and
alleged that Defendants had violated her Fourth, Fifth, and Eighth Amendment
Constitutional rights. Id.
Defendants Sessions and Dukes filed a Motion to Dismiss this action on October
30, 2017. (Doc. # 15).2 The next day, Plaintiff’s counsel served counsel for Defendants
Session and Dukes with Plaintiff’s first request for production of documents and first set
of interrogatories. (Doc. # 16-1). Plaintiff responded to the Motion to Dismiss (Doc. #
16), and Defendants Sessions and Dukes replied (Doc. # 17). The Court having heard
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Both Defendants Sessions and Dukes Motion to Dismiss (Doc. # 15) and Reply in Support (Doc. #
17) begin with substantial footnotes stating that the briefing is submitted solely on behalf of these
Defendants, named in their official capacities. These two defendants request that Carlton Shier’s name be
removed as a defendant, as Plaintiff indicated that Defendant Shier was sued only for service purposes. In
addition, Counsel for Defendants Sessions and Dukes notes that she does not represent any of the
unnamed and unidentified ICE agents also named as Defendants.
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oral argument on the Motion on December 21, 2017 (Doc. # 23), this matter is now ripe
for decision.
II.
Analysis
A.
Standard of Review
“Motions to dismiss for lack of subject matter jurisdiction fall into two general
categories: facial attacks and factual attacks.” United States v. Ritchie, 15 F.3d 592, 598
(6th Cir. 1994). While factual attacks focus on the factual existence of subject matter
jurisdiction, facial attacks challenge the sufficiency of the pleadings. Id. In considering
a factual attack, “the court is free to weigh the evidence and satisfy itself of the existence
of its power to hear the case.” Id. Because mootness is a “threshold jurisdictional issue,”
WJW–TV, Inc. v. City of Cleveland, 878 F.2d 906, 909 (6th Cir.1989) (citing Speer v. City
of Oregon, 847 F.2d 310, 311 (6th Cir.1988)), the Court reviews the Defendants’ Motion
on mootness as a factual attack. Similarly, because “[s]overeign immunity is jurisdictional
in nature,” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994), the Court reviews Defendants’
Motion on Plaintiff’s Bivens claim as a factual attack.
B.
Plaintiff’s petition for a writ of habeas corpus is dismissed as moot.
Plaintiff has stated that “[b]y reason of her release from ICE detention in 8/25/2017,
[she] dismissed this [petition for writ of habeas corpus] as moot insofar as her detention
is concerned.” (Doc. # 12 at 7). It is undisputed that Plaintiff is no longer in the custody
of the United States. (Doc. # 12 at 5; Doc. # 15-2 at 4). Thus, Defendants’ Motion to
Dismiss Plaintiff’s petition for a writ of habeas corpus is well-taken.
C.
Plaintiff’s request for equitable relief in the return of her documents is
denied as moot.
The jurisdiction of the federal courts is limited to resolving “the legal rights of
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litigants in actual controversies.” Genesis Healthcare v. Symczyk, 569 U.S. 66, 71 (2013)
(quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church and State,
Inc., 454 U.S. 464, 471 (1982)). An actual controversy must exist throughout the litigation,
not just when the complaint is filed; thus, if “an intervening circumstance deprives the
plaintiff of a personal stake in the outcome of the lawsuit … the action can no longer
proceed and must be dismissed as moot. Id. (quoting Lewis v. Cont'l Bank Corp., 494
U.S. 472, 477-78) (internal citations omitted). “[A] ‘case becomes moot only when it is
impossible for a court to grant any effectual relief whatever to the prevailing party.’” Chafin
v. Chafin, 568 U.S. 165, 172 (2013) (quoting Knox v. Serv. Emps., 567 U.S. 298, 307
(2012)).
Mootness is a “threshold jurisdictional issue.” WJW–TV, 878 F.2d at 909. Thus,
when a party obtains the relief sought, the controversy is obviated, rendering the action
for such relief moot. See McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d
453, 458 (6th Cir.1997). Once a matter is moot, a court has no subject matter jurisdiction
to decide that matter, Am. Civ. Liberties Union of Ohio v. Taft, 385 F.3d 641, 646 (6th Cir.
2004), and that matter must be dismissed from the case. McPherson, 119 F.3d at 458.
Defendants Sessions and Dukes’ Motion to Dismiss is accompanied by a sworn
declaration by Deportation Officer Matthew Post. (Doc. # 15-2). In this declaration,
Officer Post states that he mailed Plaintiff’s identity documents to Plaintiff’s counsel on
August 30, 2017, and that the UPS tracking information indicated the documents were
delivered on August 31, 2017. Id. at ¶ 15. Plaintiff confirms that the documents at issue
were returned to her counsel on August 30, 2017. (Doc. # 16 at 6). Plaintiff has
acknowledged that the injunctive relief she sought is now moot. See generally Doc. # 16.
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The relief Plaintiff sought has been obtained. There no longer appears to be any
controversy concerning the return of Plaintiff’s identification documents, and so the matter
is moot. Because no controversy exists for the Court to consider, the Court no longer has
jurisdiction over this request for relief. Defendants Sessions and Dukes Motion to Dismiss
Plaintiff’s request for injunctive relief is granted.
D.
Plaintiff’s Bivens action is dismissed.
An action against a federal officer in his official capacity is an action against the
federal government. See Kentucky v. Graham, 473 U.S. 159, 165-166 (1985) (citing
Monell v. New York City Dept. of Soc. Serv.s., 436 U.S. 658, 690, n. 55 (1978)).
Furthermore, “[a]bsent a waiver, sovereign immunity shields the Federal government and
it agencies from suit.” F.D.I.C., 510 U.S. at 475. Because “[s]overeign immunity is
jurisdictional in nature,” id., a court may not entertain an action against the United States
without a waiver. See United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic
that the United States may not be sued without its consent and that the existence of
consent is a prerequisite for jurisdiction.”). This jurisdictional rule applies to a Bivens
claim, which “may not be asserted against a federal officer in his official capacity.” Berger
v. Pierce, 933 F.2d 393, 297 (6th Cir. 1991); see also Marie v. Am. Red Cross, 771 F.3d
344, 365-66 (6th Cir. 2014).
To differentiate a legitimate Bivens claim against an individual from a claim against
the United States as sovereign, plaintiffs are required to “set forth clearly in their pleadings
that they are suing … defendants in their individual capacities, not simply in their
capacities as … officials.” Graham v. Mercer, 198 F.3d 245, at *1 (6th Cir. 1999) (table)
(finding that complaints asserting a cause of action under Bivens were subject to the
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same heightened pleading standard in actions brought under 42 U.S.C. § 1983;
specifically, “[a]bsent a specification of capacity, state officials will be construed to be
sued in their official capacity.”).
Both Defendants Sessions and Dukes are named in their official capacities—
Attorney General of the United States and Secretary of Homeland Security. (Doc. # 12
at 1). In addition, Plaintiff does not assert that any of the alleged Constitutional violations
were actually carried out by either of Defendants Sessions or Dukes. See Doc. # 12 at 9
(“Defendants were without probable cause to seize her person, and by arresting her
unreasonably and then continuing to detain her after she had presented them with her
[DACA documents]); see also id. at 10 (“Defendants by unreasonably arresting her and
detaining deprived [Plaintiff] of her liberty without due process of law”); see also id. at 11
(“Defendants by inflicting aforesaid detention unreasonably and without lawful authority
as a matter of law visited cruel and unusual punishment on [Plaintiff].”). It is evident that
Defendants Sessions and Dukes have been sued in their official capacities, not for any
actions they themselves carried out. Thus, jurisdiction is absent. See, e.g. Fountain v.
West Point Mil. Acad., 892 F.2d 1043, at *1 (6th Cir. 1990)(table) (“[T]he district court
properly concluded that it lacked subject matter jurisdiction over [plaintiff’s] Bivens-type
‘constitutional tort’ claim…[as the] United States Military Academy was the sole defendant
in [plaintiff’s] action.”
Similarly, Plaintiff has failed to state that her Bivens action against the unnamed
and unidentified ICE agents is against them as individuals. The Court must therefore
presume that the action is against these defendants in their official capacities. See
Graham, 198 F.3d at *1. The Court has no jurisdiction to entertain such an action. Berger
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933 F.2d at 297. And although these defendants are unrepresented in this action, and
have not moved for dismissal themselves, the Court has the power to sua sponte dismiss
a complaint for lack of subject matter jurisdiction. See Apple v. Glenn, 183 F.3d 477, 479
(6th Cir. 1999)
Finally, Plaintiff cites no law or precedent that would allow a Bivens action against
a federal official in their official capacity. Instead, she argues that “[f]or the moment, until
the specific names of the ICE agents3 including the supervisors and managers up the
chain-of-command, are disclosed, none of the defendants should be dismissed under the
doctrine of respondeat superior.”
(Doc. # 16 at 7).
However, a “theory
of respondeat superior cannot provide the basis for liability in a Bivens action.” Stiger v.
O'Neill, 53 F. App'x 738, 740 (6th Cir. 2002).
And Plaintiff’s final argument—that
“depending on the facts, Bivens defendants may include supervisory and management
employees of ICE,” (Doc. # 16 at 7), fares no better against Defendants Sessions and
Dukes. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017) (“The purpose of Bivens is to
deter the officer. Bivens is not designed to hold officers responsible for acts of their
subordinates.”) (Emphasis in original) (Internal citations omitted).
Plaintiff’s failure to sue any defendant in his or her individual capacity dooms her
Bivens claim. Plaintiff’s Bivens action against all defendants must be dismissed.
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The Court notes that, as the alleged violation took place in Louisville, and the unnamed and
unidentified ICE agents presumably reside nearby, the United States District Court for the Western District
of Kentucky may be the more appropriate venue if Plaintiff chooses to refile her complaint. See 28 U.S.C.
§1391(b).
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III.
Conclusion
Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
(1)
Defendants Sessions and Dukes’ Motion to Dismiss (Doc. # 15) is
GRANTED.
(2)
The Court having further determined that it lacks jurisdiction over a Bivens
action against the unnamed and unidentified officer Defendants, and Defendant Shier
having been named for the purpose of service only, the entire second amended complaint
(Doc. # 12) is hereby DISMISSED.
(3)
A Judgment will be entered contemporaneously.
This 16th day of February, 2018.
K:\DATA\ORDERS\Cov17\17-147 EnriquezPerdomo v Sessions MOO.docx
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