DOE et al v. United States

Filing 19

ORDER granting Defendant's 7 Motion to Dismiss. Signed by District Judge George Caram Steeh. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DANIEL ERICKSEN and
MICHAEL ERICKSEN,

CASE NO. 16-CV-13038
HON. GEORGE CARAM STEEH

Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
/
ORDER GRANTING DEFENDANT=S MOTION TO DISMISS (Doc. 7)
This Federal Torts Claims Act (AFTCA@) action is the second case
plaintiff Daniel Ericksen (ADaniel@) has brought arising out of his arrest after
marijuana and drug paraphernalia were found in the trunk of his vehicle at
the United States and Canadian border at the Blue Water Bridge in Port
Huron, Michigan. Now before the court is the government=s motion to
dismiss. Having carefully reviewed the written submissions, the court finds
that the matter may be decided without oral argument pursuant to Local
Rule 7.1(f)(2). Based on the doctrine of issue preclusion and claim
preclusion, and because routine searches and seizures at an international
border are lawful simply because they occur at the border where there is no
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need for probable cause, reasonable suspicion, or a warrant, the
government=s motion to dismiss shall be granted.
I. Background
In deciding the government=s motion to dismiss, the court has
carefully considered the allegations in the complaint as well as the prior
opinion of this court granting defendants= motion to dismiss in Daniel=s prior
Bivens suit, and the Sixth Circuit=s decision affirming that order. D.E. v.
John Doe I, 834 F.3d 723 (6th Cir. 2016).
On June 22, 2012, Daniel was en route to a summer camp in
Michigan when he missed his turn and inadvertently ended up at the
international border crossing to Canada at the Blue Water Bridge in Port
Huron, Michigan. When Daniel presented at the primary inspection booth
at the international border, a CBP agent searched his vehicle and
discovered marijuana and drug paraphernalia in a backpack in his trunk. A
canine also alerted to drugs. Daniel was arrested, and state authorities
charged him with misdemeanor drug offenses of possession of marijuana
and possession of drug paraphernalia. Daniel sought to suppress the
evidence in his state criminal proceedings, and the state judge denied his
motion. Daniel appealed the ruling, and the circuit court affirmed. Daniel
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ultimately pleaded guilty to a misdemeanor possession of drug
paraphernalia and was sentenced to one month probation under the
Holmes Youthful Trainee Act (AHYTA@).
In his first suit, brought under Bivens v. Six Unknown Named
Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
Daniel alleged that the search of his vehicle and his arrest at the border
crossing violated his Fourth Amendment rights. In the earlier lawsuit, in
which Daniel was represented by his father, Michael Ericksen (AMichael@),
defendants were four named Customs and Border Protection (ACBP@)
officers and two unnamed defendants. In the earlier matter, the court found
that the border search exception applied and thus, defendants did not
violate Daniel=s Fourth Amendment rights, and dismissed the suit. The
Sixth Circuit affirmed. D.E., 834 F.3d at 727-28.
In this second lawsuit brought under the FTCA, Daniel and his father,
Michael, allege false arrest and imprisonment; Daniel for his arrest in June,
2012 at the international border crossing at the Blue Water Bridge, and
Michael for his visit to the same international border crossing in November,
2012, when he attempted to secure documents related to Daniel=s earlier
search and arrest by CBP officers at the border. In this suit, Daniel also
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alleges battery by a CBP officer arising out of the same encounter he had
with CBP officers on June 22, 2012. Defendant seeks dismissal for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6).
II. Rule 12(b)(6) Dismissal Standard
Rule 12(b)(6) allows the Court to make an assessment as to whether
the plaintiff has stated a claim upon which relief may be granted. Under the
Supreme Court=s articulation of the Rule 12(b)(6) standard in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 554-56 (2007), the Court must construe
the complaint in favor of the plaintiff, accept the allegations of the complaint
as true, and determine whether plaintiff=s factual allegations present
plausible claims. A[N]aked assertions devoid of further factual
enhancement@ are insufficient to Astate a claim to relief that is plausible on
its face.@ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a Rule
12(b)(6) motion to dismiss, plaintiff=s pleading for relief must provide Amore
than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.@ Ass=n of Cleveland Fire Fighters v. City of
Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atlantic, 550
U.S. at 555) (citations and quotations omitted). Even though the complaint
need not contain Adetailed@ factual allegations, its Afactual allegations must
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be enough to raise a right to relief above the speculative level on the
assumption that all of the allegations in the complaint are true.@ Id. (citing
Bell Atlantic, 550 U.S. at 555).
III. Analysis
A.

Issue Preclusion Bars Daniel=s Claims of False Arrest and False
Imprisonment
Daniel=s claim of false arrest and imprisonment is barred by the

doctrine of issue preclusion because this court previously found that
Daniel=s detention and arrest at the international border was lawful, and the
Sixth Circuit affirmed. Issue preclusion bars a party from relitigating an
issue of law necessary to a judgment, which has been previously decided
by a court of competent jurisdiction, even if the new case is based on a
different cause of action. Rambacker v. C.I.R., 4 F. App=x 221, 223 (6th
Cir. 2001) (citing United States v. Mendoza, 464 U.S. 154, 158-59 (1984)).
Four criteria must be met for issue preclusion to apply: A(1) the identical
issue was raised and actually litigated in a prior proceeding; (2) the
determination of the issue was necessary to the outcome of the prior
proceeding; (3) the prior proceeding resulted in a final judgment on the
merits; and (4) the party against whom issue preclusion is sought had a full
and fair opportunity to litigate the issue in the prior proceeding.@ Gen.
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Elect. Med. Sys. Europe v. Prometheus Health, 394 F. App'x 280, 283 (6th
Cir. 2010) (citing Aircraft Braking Sys. Corp. v. Local 856, Int'l Union,
United Auto., Aerospace and Agric. Implement Workers, UAW, 97 F.3d
155, 161 (6th Cir. 1996)). In this case, all four criteria are easily met.
In this FTCA suit, Daniel alleges that his detention by CBP constitutes
false imprisonment and false arrest under Michigan law. Specifically, he
claims that CBP lacked the authority to hold him longer than necessary to
determine that he did not intend to cross the bridge into Canada, and that
he was unlawfully detained when he was required to report to a primary
officer prior to exiting the bridge, at the pre-primary area, at the primary
inspection booth, in the secondary-inspection area, and in the station
house.
Under Michigan law, a Afalse arrest is an illegal or unjustified arrest,@
while false imprisonment is Aan unlawful restraint on a person=s liberty or
freedom of movement.@ Peterson Novelties, Inc. v. City of Berkley, 259
Mich. App. 1, 17-18 (2003). A false imprisonment claim Ais broader, but
includes a false arrest involving law enforcement.@ Moore v. City of Detroit,
252 Mich. App. 384, 387 (2002). The elements of a false imprisonment
claim are: (1) an act committed with the intention of confining another, (2)
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the act directly or indirectly results in such confinement, (3) the person
confined is conscious of his confinement, and (4) the imprisonment was
false - without the right or authority to confine. Id. at 387-88. To prevail on
a false arrest claim, plaintiff must show that the arrest lacked probable
cause. Peterson, 259 Mich. App. at 18. Where the arrest is lawful, there is
no false arrest or false imprisonment claim. Id.
Issue preclusion bars Daniel=s claims for false imprisonment and
false arrest under all four criteria. First, this court and the Sixth Circuit
determined that his detention and arrest were lawful based on the border
search exception in his prior Bivens action. Under the border search
exception, routine searches at an international border do not require a
warrant, probable cause, or reasonable suspicion. In Daniel=s earlier filed
Bivens suit, the Sixth Circuit specifically found that Daniel=s arrest was
lawful and his post-arrest detention was also lawful because his detention
of roughly one hour was reasonable given his presence at an international
border, and the detention was for the sole purpose of waiting for local law
enforcement to arrive to take Daniel into custody after marijuana and drug
paraphernalia were discovered in his backpack following a search of his
vehicle. D.E., 834 F.3d at 727.
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Second, the court=s determination of the lawfulness of his arrest and
detention were necessary to the outcome of his Bivens suit. Third, the
Bivens action resulted in a final judgment on the merits and on appeal.
Fourth, Daniel had a full and fair opportunity to litigate the lawfulness of his
arrest and detention in his prior Bivens suit.
Plaintiffs= arguments that issue preclusion does not apply are not
persuasive. First, plaintiffs argue that this court=s holding and the Sixth
Circuit=s holding that CBP can lawfully subject motorists presenting at the
international border to suspicionless searches amounts to dicta because it
was based on the theory that turnaround motorists lie about their intentions
to cross the border. Plaintiffs are correct that this court recognized that
one of the policy reasons for applying the border search exception
universally to all those presenting at the international border, regardless of
their subjective intent to cross the bridge or not, is the necessity for
administrative ease in maintaining our nation=s borders. The recognition of
this one policy justification for universal application of the border search
exception rule, even to those motorists presenting at the border by mistake,
does not render this court=s and the Sixth Circuit=s holdings about the
lawfulness of Daniel=s arrest and detention as mere dicta. In fact, the
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court=s application of the border search exception to Daniel=s case was at
the very crux of its decision, and it certainly could not be properly
characterized as mere dicta.
Second, plaintiffs argue that this court and the Sixth Circuit did not
consider whether CBP=s policy of searching motorists at the Blue Water
Bridge without reasonable suspicion or probable cause is statutorily
authorized, but only considered whether their policy comported with the
Fourth Amendment. This statement is untrue. This court=s prior opinion
specifically referenced 19 U.S.C. ' 1581(a) as authorizing suspicionless
border searches. (15-10088, Doc. 45 at PageID 345). The Sixth Circuit
also specifically pointed to 19 U.S.C. ' 1581(a) which authorizes the stops
and searches about which plaintiffs complain. D.E., 834 F.3d at 728. In
sum, plaintiffs= argument that this court and the Sixth Circuit=s determination
that CBP=s stop, search, arrest, and detention of Daniel were lawful was not
necessary to the dismissal of his prior Bivens suit must be summarily
rejected. Having found that the doctrine of issue preclusion precludes
Daniel=s from using the FTCA to relitigate the lawfulness of his arrest and
detention, the court does not address whether his false imprisonment and

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false arrest claims also must be dismissed under the holding of Heck v.
Humphrey, 512 U.S. 477, 478-79 (1994).
B.

Daniel Fails to State a Claim for Battery
Daniel asserts a state law battery claim arising out of CBP Officer

Vittorini=s conduct in arresting him. Specifically, plaintiffs allege,
A[s]ubsequent to the vehicle search, Vittorini entered the station house,
pushed [Daniel] against a desk, forced him to place his arms behind his
back, and handcuffed him.@ (Complaint, & 36). Plaintiff does not allege
that Officer Vittorini used unreasonable or excessive force, nor does he
claim any injury. Michigan law defines a battery as Athe willful and harmful
or offensive touching of another person which results from an act intended
to cause such a contact.@ Espinoza v. Thomas, 189 Mich. App. 110, 119
(1991). Michigan law provides that Aan arresting officer may use such force
as is reasonably necessary to effect a lawful arrest.@ Young v. Barker, 158
Mich. App. 709, 723 (1987). Here, the lawfulness of plaintiff=s arrest was
established in his prior Bivens suit, and plaintiff has not alleged that the
amount of force used to effectuate his arrest was unreasonable.
Accordingly, the government is entitled to dismissal of Daniel=s battery
claim.
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In addition, the government is entitled to dismissal of Daniel=s battery
claim under the doctrine of claim preclusion. Claim preclusion operates to
bar claims which should have been litigated in an earlier proceeding.
Wheeler v. Dayton Police Dep=t, 807 F.3d 764, 766 (6th Cir. 2015) (citing
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984)).
To establish claim preclusion, the defendant needs to show A(1) a final
judgment on the merits in a prior action; (2) a subsequent suit between the
same parties or their privies; (3) an issue in the second lawsuit that should
have been raised in the first; and (4) that the claims in both lawsuits arise
from the same transaction.@ Id. (internal quotation marks omitted, citing
Montana v. United States, 440 U.S. 147, 153 (1979)). All four elements are
met here.
First, this court entered final judgment in Daniel=s Bivens action which
the Sixth Circuit affirmed. Second, this action involves the same parties as
the FTCA claim merely substituted the government for the individual CBP
officers. See 28 U.S.C. ' 2674. Third, any claim of unreasonable force
during Daniel=s arrest could and should have been litigated under the
Fourth Amendment in his Bivens suit. Fourth, both claims arise from the

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same transaction. That transaction was Daniel=s June 2012 arrest at the
international border.
Plaintiff=s argument that he is not challenging the constitutionality of
the arresting officer=s conduct and thus, his failure to alleged unreasonable
force in his Bivens claim should not bar him from suing the government for
an unlawful touching now is not persuasive. Both arise from the same
underlying conduct. Moreover, the arresting officer=s conduct must be
evaluated in the context of the lawfulness of the arrest - the same inquiry
which would have applied in his Bivens suit. Plaintiffs= reliance on Montana
v. United States, 440 U.S. 147 (1979) does not alter this court=s conclusion
here. In Montana, the Supreme Court, in addressing issue preclusion,
found that the government was estopped from bringing a federal lawsuit
when it could have raised the same constitutional issues in the earlier filed
state court case brought by a federal government contractor, where the
government, while not a named plaintiff, actually directed and controlled the
state court litigation. Id. at 153-63.
In Montana, the Supreme Court identified the policy reasons
supporting application of issue preclusion as follows: A[t]o preclude parties
from contesting matters that they have had a full and fair opportunity to
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litigate protects their adversaries from the expense and vexation attending
multiple lawsuits, conserves judicial resources, and fosters reliance on
judicial action by minimizing the possibility of inconsistent decisions.@ Id. at
153B54 (1979). Those policies are vindicated by the application of issue
preclusion and claim preclusion here. Daniel has had his day in court to
challenge the conduct of CBP officers who stopped him at the international
border on June 22, 2012. There is no justification for allowing him to
relitigate those matters in a second repetitive lawsuit. In sum, having met
all four elements for claim preclusion, the government=s motion to dismiss
Daniel=s battery claim shall be dismissed.
C.

Michael Has Failed to State a Claim for False Imprisonment or
False Arrest
Michael asserts false arrest and imprisonment arising out of his visit

to the toll-booth and station house at the Blue Water Bridge on November
20, 2012, when he presented to request a copy of the report involving his
son=s search and arrest that prior June. Michael alleges that he was
required to provide identification and to have his backpack searched.
(Complaint, && 55-56, 61). He alleges that CBP lacked the authority to
detain him beyond the time required for the toll-booth officer to determine
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that he did not intend to cross the bridge into Canada. Id. at & 92.
Michael=s claim that he should have been treated differently than motorists
presenting at the international border who had or intended to cross the
bridge into Canada is not viable. The Sixth Circuit has held that routine
searches and seizures at an international border are lawful because they
occur at the border and no probable cause, reasonable suspicion, or
warrant is required, regardless of the motorist=s reason for being at the
international border, whether on purpose or by mistake. D.E., 834 F.3d at
727.
Michael also claims that his false arrest and false imprisonment claim
is distinguishable from the situation presented in the prior Bivens suit
because he walked to the CBP station house and used a different entrance
than that used by CBP officers to escort motorists parked in the secondary
inspection area. He further claims the border search exception does not
apply to pedestrians. Michael=s argument lacks merit as it is undisputed
that he arrived at the international border by motor vehicle. For these
reasons, Michael has failed to state a claim for false arrest or
imprisonment.

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IV. Conclusion
For the reasons set forth above, defendant=s motion to dismiss (Doc.
7) is GRANTED and this action is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Dated: March 9, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 9, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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