Artiga Carrero v. Farrelly et al
MEMORANDUM OPINION. Signed by Chief Judge James K. Bredar on 4/12/2018. (kw2s, Deputy Clerk)(c/m 4.12.18)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MIRNA RUBIDIA ARTIGA
FARRELLY, et al.,
CIVIL NO. JKB-16-3939
Mirna Rubidia Artiga Carrero (“Plaintiff”) filed a five-count Complaint against various
state and federal officials and entities seeking declaratory and injunctive relief, compensatory
damages, and punitive damages stemming from her alleged unlawful arrest in 2014, which she
contends was caused in part by federal policy regarding the identification and apprehension of
aliens, like her, that are subject to a final order of removal. Defendants the United States of
America; Jefferson B. Sessions III, Attorney General of the United States; Elaine C. Duke,
Acting Secretary of the Department of Homeland Security (“DHS”); and Thomas D. Homan,
Acting Director of Immigration and Customs Enforcement (“ICE”) (the “Federal Defendants”)
filed a motion to dismiss the Complaint, which the Court granted in part and held in abeyance in
part. (Order, ECF No. 34.) Now pending before the Court is Plaintiff’s Motion for Leave to File
Amended Complaint. (ECF No. 43.) For the reasons set forth below, Plaintiff’s Motion will be
In her original Complaint, Plaintiff alleged five causes of action stemming from the entry of
her information in the National Crime Information Center (“NCIC”) database and her subsequent
seizure based on that information. Three of those claims, Counts Three through Five, were
asserted against the Federal Defendants. Specifically, in Count Three she alleged that the
Federal Defendants’ entry and maintenance of her civil administrative warrant in NCIC caused
her to be unlawfully seized in violation of the Fourth Amendment and that she was at imminent
risk of suffering another unlawful seizure in the future. In Count Four, she alleged that the
individual Federal Defendants exceeded their statutory authority by including civil warrants like
hers in the NCIC database. Plaintiff sought declaratory and injunctive relief for her claims in
Counts Three and Four.2
Plaintiff’s claims for prospective relief (i.e., Counts Three and Four) were premised on the
Federal Defendants’ continued maintenance of her civil administrative warrant in NCIC, yet the
Federal Defendants presented evidence that Plaintiff’s civil warrant was “cleared” from the
NCIC database on September 11, 2014, more than two years before she filed her Complaint.
(Reply Mem. in Supp. of the Fed. Defs.’ Mot. to Dismiss, ECF No. 32, at 7 n.7.) As a result, the
Court found that Plaintiff lacked standing to assert her claims for injunctive and declaratory
relief because she could not show that her purported injury—“risk of suffering an unlawful
seizure by state or local law enforcement officials in the future,” (ECF No. 1, ¶¶ 59, 62)—was
real or imminent. However, because the Federal Defendants had not presented this jurisdiction1
The relevant factual background underlying Plaintiff’s Complaint is set forth in the Court’s previous order
and need not be repeated here.
In Count Five, Plaintiff asserted intentional tort claims against the Federal Defendants. Those claims were
dismissed by the Court for lack of subject matter jurisdiction and are the subject of a separate motion for
reconsideration filed by Plaintiff. Although Plaintiff has submitted superficial amendments to Count Five, they are
not relevant to the Court’s resolution of the instant motion. Plaintiff’s Motion to Reconsider is addressed separately.
stripping evidence until their reply brief, the Court held in abeyance its decision regarding
Plaintiff’s standing. The Court granted Plaintiff ten days to “provide . . . ‘further particularized
allegations’ in support of her contention that the Federal Defendants continue to maintain a civil
warrant of removal for her in the NCIC database.” (Memorandum, ECF No. 33, at 40.)
Plaintiff has not provided any additional allegations in support of her claim that the Federal
Defendants continue to maintain a civil warrant of removal for her in the NCIC database.
Instead, she seeks leave to amend her complaint pursuant to Federal Rule of Civil Procedure
Relevant Legal Standards
A. Legal Standard for Motion for Leave to Amend
Plaintiff’s motion for leave to amend her Complaint is governed by Rule 15(a), which
directs the Court to “freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The
Fourth Circuit has stated that leave to amend under Rule 15(a) should be denied only in three
situations: when the opposing party would be prejudiced, when the amendment is sought in bad
faith, or when the proposed amendment would be futile. Laber v. Harvey, 438 F.3d 404, 426
(4th Cir. 2006). A proposed amendment is considered futile if it cannot withstand a motion to
dismiss. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995).
B. Legal Standard for Dismissal under Rule 12(b)(1)
The Federal Defendants contend that Plaintiff’s motion for leave to amend should be denied
as futile because, inter alia, she still lacks standing and therefore her proposed Amended
Complaint could not survive a motion to dismiss.
A challenge to a plaintiff’s standing
“implicates th[e] court’s subject matter jurisdiction.” Long Term Care Partners, LLC v. United
States, 516 F.3d 225, 230 (4th Cir. 2008). The Plaintiff bears the burden of proving subject-
matter jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see also Kerns v.
United States, 585 F.3d 187, 192 (4th Cir. 2009) (noting challenge may be either facial, i.e.,
complaint fails to allege facts upon which subject-matter jurisdiction can be based, or factual,
i.e., jurisdictional allegations of complaint are not true); Richmond, Fredericksburg & Potomac
R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (“When a Rule 12(b)(1) motion
challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving
subject matter jurisdiction is on the plaintiff.”).
In the case of a factual challenge, it is
permissible for a district court to “consider evidence outside the pleadings without converting the
proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co.,
945 F.2d at 768 (citing Adams, 697 F.2d at 1219).
A plaintiff’s standing to sue in federal court is “an integral component of the case or
controversy requirement” of Article III. Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006). To
have Article III standing, “[t]he plaintiff must have suffered or be imminently threatened with a
concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the
defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v.
Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992)). A plaintiff who seeks declaratory or injunctive relief must
show that she is in danger of being injured by the opposing party’s conduct and that the danger is
both “real” and “immediate” and neither “conjectural” nor “hypothetical.” City of Los Angeles v.
Lyons, 461 U.S. 95, 102 (1983). “Past exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing,
present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974); see McBurney v.
Cuccinelli, 616 F.3d 393, 410–11 (4th Cir. 2010) (holding that “to maintain standing for
declaratory and injunctive relief” a plaintiff must “plead an ongoing injury”).
Plaintiff seeks leave to amend her Complaint in order to show that she has standing to
obtain prospective declaratory and injunctive relief regarding the Federal Defendants’ entry of
her civil administrative warrant in NCIC. She contends that her amended pleading plausibly
alleges both a present injury and a substantial risk of future injury stemming from her “cleared”
record in NCIC. First, Plaintiff contends that “the presence of [her] identifying information in
the NCIC database, suggesting a criminal history, subjects her to a substantial risk of increased
police scrutiny, including unlawful seizure and investigation.” (ECF No. 43, at 4.) This is the
same injury that Plaintiff asserted in her original complaint (i.e., the threat of unlawful seizure in
the future). Second, she argues for the first time that maintaining her information in NCIC
subjects her to a present and ongoing injury—“[s]tigma and reputational harm” by painting her
as a criminal. (Id.) The Federal Defendants contend that Plaintiff’s motion should be denied
because her proposed amendments are futile. The Court agrees with the Federal Defendants, and
therefore Plaintiff’s Motion will be DENIED.
Plaintiff’s first argument—that she is subject to increased scrutiny and an imminent risk of
future arrest based on her “cleared” record in NCIC—is unavailing.
Amended Complaint has simply been revised to reflect the accurate status of her NCIC record as
“cleared.” But the Court already found that Plaintiff lacked standing to seek declaratory and
injunctive relief based on these very facts. The Court explicitly found that because “Plaintiff’s
information was “cleared” from the NCIC database on September 11, 2014, . . . she cannot show
that she is in real and imminent danger of future injury.” (ECF No. 33, at 38.) Now, Plaintiff
simply asks that the Court reconsider its decision; this is not proper.3 Regardless, the Court has
reviewed Plaintiff’s new arguments and finds them without merit.
Plaintiff’s purported risk of future injury is far too speculative and implausible to confer
standing. Plaintiff contends that the presence of her “cleared” record in NCIC:
alerts law enforcement personnel that Ms. Artiga was, at one time, subject to arrest;
subjects her to the substantial risk that she will be targeted by law enforcement
personnel for further stops, scrutiny, and investigation, based on their knowledge of
a prior arrest warrant against her.
(Amended Compl., ECF No. 43-1, ¶ 39–40 (emphasis added).) As an initial matter, Plaintiff’s
NCIC record does not indicate that she was “subject to arrest” or that there was “a prior arrest
warrant against her.”
The record simply says “cleared.”
Moreover, even assuming that
Plaintiff’s NCIC record conveyed this historical information, the fact that Plaintiff was, “at one
time, subject to arrest,” does not put her at imminent risk of being arrested in the future. (Id. ¶ 39
(emphasis added).) Plaintiff also alleges that “[t]here is a substantial likelihood that officers will
stop Ms. Artiga and will see her record in the NCIC database.” (Id. ¶ 40.) This argument puts
the cart before the horse. The presence of her information in NCIC does not create a “substantial
likelihood that officers will stop [her]”; rather, such information would be accessed only after an
officer stopped Plaintiff for some other reason. Finally, Plaintiff alleges that “if [her] Motion to
Reopen her immigration case or her applications for further relief are denied, civil immigration
information about Ms. Artiga may again be unlawfully entered into the NCIC system, potentially
as early as October 18, 2017.” (Id. ¶ 51 (emphasis added).) These allegations—which depend
Plaintiff has styled her motion as a “Sur-Reply in Opposition to Federal Defendants’ Motion to Dismiss
and Motion for Leave to File Amended Complaint.” (ECF No. 43.) The Court, however, did not grant Plaintiff
permission to file a surreply. Local Rule 105.2(a) (“Unless otherwise ordered by the Court, surreply memoranda are
not permitted to be filed.”). Rather, the Court granted Plaintiff the opportunity to present “‘further particularized
allegations’ in support of her contention that the Federal Defendants continue to maintain a civil warrant of removal
for her in the NCIC database.” (Memorandum, ECF No. 33, at 40.) Regardless, the Court has considered all of her
arguments advanced in favor of standing.
entirely on a host of future events which may or may not occur—are far too “conjectural” and
“hypothetical” to confer standing. Lyons, 461 U.S. at 102.
Plaintiff’s second argument—that the Federal Defendants’ conduct subjects her to a
present and ongoing reputational injury—also fails to cure the jurisdictional defects in her
Complaint. “[R]eputational injury that derives directly from government action will support
Article III standing to challenge that action.” Foretich v. United States, 351 F.3d 1198, 1214
(D.C. Cir. 2003); accord Meese v. Keene, 481 U.S. 465, 473–77 (1987); see Lebron v. Rumsfeld,
670 F.3d 540, 562 (4th Cir. 2012). However, where the challenged conduct merely has an
“incremental effect” on the plaintiff’s preexisting and related reputational injury, it may be
insufficient, standing alone, to confer standing. See Lebron, 670 F.3d at 562.
Here, as above, Plaintiff merely offers new arguments that were previously available to
her, rather than attempt to cure the deficiencies in her pleading. A motion to amend a complaint
is not the proper vehicle to offer new arguments in favor of standing based on the same factual
allegations the Court already held insufficient. See Wagner Equip. Co. v. Wood, 289 F.R.D. 347,
351 (D.N.M. 2013) (explaining that Rule 15 may not be used “to salvage a lost case by untimely
suggestion of new theories of recovery [or] to present theories seriatim in an effort to avoid
Nor, for that matter, would this be the proper subject of a motion for
reconsideration. See, e.g., Royal Ins. Co. of Am. v. Miles & Stockbridge, P.C., 142 F. Supp. 2d
676, 677 n.1 (D. Md. 2001) (“[A] motion to reconsider is not a license to reargue the merits or
present new evidence.” (citing RGI, Inc. v. Unified Indus., Inc., 963 F.2d 658 (4th Cir. 1992))).
In any event, the Court concludes that Plaintiff’s new arguments are meritless. As an initial
matter, Plaintiff has not even amended her Complaint to reflect these newly claimed injuries—
the proposed Amended Complaint does not include any allegations of social stigma or
reputational harm. Plaintiff asserts these injuries as the basis for her standing in her Motion;
however, “for the purposes of a motion to dismiss, Plaintiff is bound by her Complaint and
cannot amend it through her briefs.” Stahlman v. United States, 995 F. Supp. 2d 446, 453 (D.
Md. 2014); accord Zachair, Ltd. v. Driggs, 965 F.Supp. 741, 748 n.4 (D. Md. 1997) (noting that
plaintiff “is bound by the allegations contained in [her] complaint and cannot, through the use of
motion briefs, amend the complaint”).
Even if Plaintiff had included these purported injuries in her proposed Amended Complaint,
she still would not have standing. Plaintiff does not dispute that she entered the United States
without inspection (a federal crime).4 See 8 U.S.C. § 1325(a). She does not dispute that she was
subject to a final order of removal. See 8 U.S.C. § 1229a. She does not dispute that the Attorney
General has the authority (and duty) to detain and remove any alien, like her, that has been
ordered removed, 8 U.S.C. § 1231, and that he may issue civil warrants of removal in order to
carry out that duty, 8 U.S.C. § 1226. In other words, Plaintiff does not dispute that she is
properly classified as an immigration violator. Instead, she argues that placing her identification
information with the notation “cleared” in an “Immigration Violator File” within a larger
“crime” database constitutes a free-standing, reputational injury sufficient to confer standing.
The Court disagrees.
At most, Plaintiff’s “cleared” record in NCIC has an incremental effect on her reputation
“over and above that caused by” her actual, undisputed status as an immigration violator.
Lebron, 670 F.3d at 562 (quoting McBryde v. Comm. to Review Circuit Council Conduct, 264
F.3d 52, 57 (D.C. Cir. 2001). In other words, Plaintiff presumes that she is stigmatized based on
her inclusion in the Immigration Violator File while ignoring the possibility that the harm to her
Plaintiff has not been charged or convicted of entering without inspection. However, because Plaintiff was
ordered removed in absentia by an immigration judge, she was necessarily found inadmissible by “clear,
unequivocal, and convincing evidence.” 8 U.S.C. § 1229a(b)(5)(A).
reputation, if any, in fact flows from her uncontroverted status as an immigration violator. See In
re Petitioners Seeking Habeas Corpus Relief in Relation to Prior Detentions at Guantanamo
Bay, 700 F.Supp.2d 119, 134 (D.D.C. 2010) (“Petitioners also ignore the fact that the alleged
stigma may derive from the underlying conduct for which they were previously detained at
Guantanamo, as opposed [to] their prior designation as enemy combatants.”).
The fact that NCIC is nominally a “crime” database does not change this calculus. First,
the Court is not convinced that Plaintiff may assert stigma or reputational harm based on
information that is not widely disseminated or available to the public. See, e.g., Bishop v. Wood,
426 U.S. 341, 348 (1976) (finding that communication that “was not made public, . . . cannot
properly form the basis for a claim that petitioner’s interest in his ‘good name, reputation, honor,
or integrity’ was . . . impaired”). But assuming that she can, including her information in NCIC
does not paint her with as broad a brush as she claims. The NCIC database includes twenty-one
files, including at least four of which (in addition to the Immigration Violator File) contain
identification records on individuals who need not have committed a crime. For instance, the
“Missing Persons File” includes “[r]ecords on individuals, including children, who have been
reported missing to law enforcement.
FBI, National Crime Information Center (NCIC),
available at https://www.fbi.gov/services/cjis/ncic (last accessed April 10, 2018). The “Identity
Theft File” includes “[r]ecords containing descriptive and other information that law
enforcement personnel can use to determine if an individual is a victim of identity theft.” Id.
(emphasis added). The “Protection Order File” includes “[r]ecords on individuals against whom
protection orders have been issued,” which presumably would include civil protection orders. Id.
And the “Unidentified Persons File” includes “[r]ecords on unidentified deceased persons, living
persons who are unable to verify their identities, unidentified victims of catastrophes, and
recovered body parts.” Id. All of these files contain identifying information about people in a
“crime” database who have not themselves been convicted of a crime (or at least need not have
Indeed, the entire premise of Plaintiff’s Complaint is that NCIC includes noncriminal
information, a fact which certainly cannot elude the thousands of law enforcement personnel
who regularly access the database for various purposes. Plaintiff herself even alleges that when
Officer Farrelly accessed the NCIC database it “revealed that [she] had only an outstanding
administrative warrant of removal, and no criminal record. (ECF No. 1, ¶ 21; ECF No. 43-1
(emphasis added).) Thus, based on Plaintiff’s own allegations, the information about her in
NCIC accurately conveys to law enforcement personnel that she does not have a criminal record.
It appears that Plaintiff’s actual concern is that law enforcement personnel may erroneously
conflate a civil warrant of removal (or simply a “cleared” record) with a criminal arrest warrant.
However, the facts of this case bely that concern: Officer Farrelly did not independently arrest
Plaintiff based on the civil warrant he found in NCIC but instead called ICE and arrested her
only after receiving direction to do so.
In sum, Plaintiff’s (un)alleged reputational injury based on the inclusion of accurate
information about her in NCIC is insufficient, standing alone, to confer standing, and therefore
her proposed Amended Complaint would be futile.5
Plaintiff also asks that the Court allow her jurisdictional discovery “to determine why her information was
cleared from the NCIC database, the nature of the information about her remaining in the database, how that
information is used by state and local law enforcement officers, and under what circumstances immigration
information about her will be re-entered into the database.” (ECF No. 43, at 2.) The Court has “broad discretion in
[its] resolution of discovery problems,” including whether to allow for limited jurisdictional discovery. Mylan
Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 64 (4th Cir. 1993) (quoting In re Multi–Piece Rim Prods. Liab. Litig., 653 F.2d
671, 679 (D.C. Cir. 1981)). The Court finds that jurisdictional discovery is not warranted because none of the
specific topics cited by Plaintiff are relevant to her standing. First, “why her information was cleared from the
NCIC database” is irrelevant to her injury, or lack thereof. In any event, the Federal Defendants have already
indicated that the information was cleared after Plaintiff was arrested. Second, unless the Federal Defendants are
misleading the Court (and there is no reason to believe that is the case), “the nature of the information about her
For the foregoing reasons, Plaintiff’s Motion for Leave to File Amended Complaint will
DATED this 12th day of April, 2018.
BY THE COURT:
James K. Bredar
remaining in the database” is already known. Third, discovery into “how that information is used by state and local
law enforcement officers” is a strikingly open-ended request that would presumably involve third-party discovery.
And, in the unlikely event that a statistically significant number of state and local law enforcement officers
(presumably based on sampling) indicated they would arrest someone based on a “cleared” record in NCIC, this
would not be a valid basis for standing. Such an arrest would be unlawful and therefore far too speculative to confer
standing. See Lyons, 461 U.S. at 103 (noting that, in evaluating standing, courts “assume that [individuals] will
conduct their activities within the law”). Likewise, Plaintiff’s desire to learn “under what circumstances
immigration information about her will be re-entered into the database” is too speculative to support standing.
Indeed, this information—why she may again be placed in NCIC—is one step further removed from the argument
rejected by the Court supra, that she “may again be unlawfully entered into the NCIC system.” (ECF No. 43-1, ¶ 51
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