D'Alessandro v. Chertoff et al
Filing
59
DECISION AND ORDER granting 37 Motion to Dismiss for Failure to State a Claim; granting 38 Motion to Dismiss for Failure to State a Claim. Clerk of Court to close case. Signed by Hon. Richard J. Arcara on 12/12/2011. (JMB)
UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK
GIUSEPPE D’ALESSANDRO,
Plaintiff,
DECISION AND ORDER
10-CV-927A
v.
MICHAEL CHERTOFF et al.,
Defendants.
I.
INTRODUCTION
Pending before the Court are two parallel motions to dismiss the complaint
under Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”). One
motion (Dkt. No. 37) comes from a group of defendants (the “Local Defendants”)
who worked at the Buffalo Federal Detention Facility in Batavia, New
York—Brenda Bailey, Darrel Crotter, Earl Delong, Sean Gallagher, Martin Herron,
Charles Mule, Kevin Oetinger, and Michael T. Phillips. The other motion (Dkt.
No. 38) comes from a second group of defendants (the “W ashington
Defendants”) who worked either in the United States Attorney General’s Office or
the Department of Homeland Security in W ashington, D.C.—Michael Chertoff,
Eric Holder, Jr., Julie L. Meyers, Michael B. Mukasey, Janet Napolitano, and John
P. Torres.
Defendants together seek dismissal of the complaint on the grounds that
plaintiff may not seek civil damages under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for an immigration detention
that this Court ended with a writ of habeas corpus. In support of their argument,
defendants cite to a decision released recently by the United States Court of
Appeals for the Ninth Circuit in which the Ninth Circuit declined “to extend Bivens
to allow [plaintiffs] to sue federal agents for wrongful detention pending
deportation given the extensive remedial procedures available to and invoked by
them and the unique foreign policy considerations implicated in the immigration
context.” Mirmehdi v. U.S., ___ F.3d ___, 2011 W L 5222884, at *4 (9th Cir. Nov.
3, 2011). Plaintiffs counters that his claims fall under existing precedent
permitting Bivens claims for constitutional violations. Plaintiff argues further that
Mirmehdi is distinguishable because, inter alia, it “repeatedly limits its decision to
illegal aliens and for the time while deportation proceedings are occurring.
Neither circumstance is applicable to D’Alessandro.” (Dkt. No. 58 at 5.)
The Court held oral argument on September 26, 2011 and permitted the
parties to file supplemental briefing to comment on Mirmehdi. For the reasons
below, the Court grants the motions to dismiss.
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II.
BACKGROUND
A.
Criminal and Habeas Proceedings
This Court and state courts have discussed plaintiff’s underlying criminal
and immigration proceedings in extensive detail in prior decisions. See, e.g.,
D’Alessandro v. Mukasey, 628 F. Supp. 2d 368 (W .D.N.Y. 2009) (Arcara, C.J.);
People v. D’Alessandro, No. 8175-90, 2010 N.Y. Slip Op. 75591 (App. Div. June
29, 2010) (unpublished), cert. denied, 909 N.Y.S.2d 28 (N.Y. Sept. 29, 2010)
(table case). The Court here will summarize that information briefly and for
background purposes only.
Plaintiff is a native of Italy who became a Legal Permanent Resident of the
United States on June 22, 1981. Plaintiff is married with one son; his wife and
son are U.S. citizens and live in Queens, New York with him. In 1989, plaintiff
was a manager of a restaurant owned by his father-in-law. In a dispute with a
restaurant employee over suspicions that the employee stole $3,000 from the
restaurant, plaintiff held the employee hostage in the restaurant’s basement for
more than 24 hours. Following this incident, plaintiff was indicted in November
1989 for kidnapping in the second degree and related charges. Plaintiff moved to
dismiss the indictment, but the prosecution never submitted the grand jury
minutes to the state court as required under state law. Meanwhile, the
prosecution offered plaintiff a guilty plea that involved probation only and no jail
time. W ith the apparent advice and consent of trial counsel, plaintiff rejected the
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plea offer and proceeded to trial. Before trial—and plaintiff claimed in retribution
for turning down the plea offer—the prosecution obtained a superseding
indictment charging him with kidnapping in the first degree and related charges.
A jury convicted plaintiff on all charges in the superseding indictment on June 25,
1991, subjecting him to a mandatory minimum sentence of 15 years to life on the
first-degree kidnapping charge. Plaintiff failed to overturn the conviction in his
appellate proceedings.
Plaintiff’s immigration proceedings began while he was in state custody.
On February 19, 1998, immigration officials charged plaintiff with being subject to
removal because his state conviction was considered an “aggravated felony”
under immigration law. An immigration judge ordered plaintiff removed in
November 1998. As soon as state officials released plaintiff on parole on
November 19, 2007, immigration officials placed him in immigration custody. A
number of immigration and state collateral proceedings followed, culminating in
an immigration review by the Second Circuit and a decision by the New York
Court of Appeals to review plaintiff’s conviction. W hile these proceedings were
unfolding, immigration officials failed to conduct periodic reviews of plaintiff’s
custody as required by 8 C.F.R. § 241.4 and related regulations. Plaintiff
petitioned this Court for habeas corpus relief under 28 U.S.C. § 2241 in response
to the failure to conduct the required reviews. As explained in D’Alessandro v.
Mukasey, supra, this Court granted the petition and ordered plaintiff released.
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As a postscript to this Court’s habeas proceedings, plaintiff’s collateral
proceedings in state court concluded with a June 29, 2010 decision and order by
the New York State Supreme Court, Appellate Division vacating plaintiff’s
conviction for ineffective assistance of appellate counsel. See generally People
v. D’Alessandro, supra. Appellate counsel did not argue that the prosecution’s
failure to produce grand jury minutes during the original criminal proceedings
created a speedy trial problem that warranted dismissal of the superseding
indictment.
B.
Current Litigation Under Bivens
Based on this Court’s finding that constitutional violations warranted a writ
of habeas corpus, plaintiff filed his complaint on November 18, 2010. Plaintiff
states explicitly on the first page of his complaint that he is pursuing this litigation
under Bivens. The complaint recites the Court’s findings from the habeas
proceeding and then sets forth five causes of action. In the first cause of action,
plaintiff accuses defendants of denial of due process in violation of his Fifth
Amendment rights. The alleged due process violations resulted from the failure
to provide periodic custodial reviews as required by immigration regulations. In
the second cause of action, plaintiff accuses defendants of unreasonable seizure
in violation of the Fourth Amendment, through a detention that persisted without
required custodial reviews. In the third cause of action, plaintiff accuses
defendants of deliberate indifference to his liberty interest in violation of the
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Eighth Amendment. This accusation again stems from the failure to conduct
required custodial reviews. In the fourth cause of action, plaintiff accuses
defendants of another Eighth Amendment violation by way of deliberate
indifference to serious medical needs that required attention beyond what he
received while in immigration custody. In the fifth cause of action, plaintiff
accuses defendants of implementing customs and policies that fostered
constitutional violations, in violation of his Fourth, Fifth, and Eighth Amendment
rights.
In lieu of answering, both the Local Defendants and the W ashington
Defendants filed motions to dismiss. All defendants argue that plaintiff has no
right of action under Bivens to pursue money damages for constitutional
violations resulting from a failure to follow immigration regulations. Defendants
note that the United States Supreme Court has acted very cautiously in
recognizing implied rights of action under Bivens, doing so only three times in 40
years: once for Fourth Amendment search and seizure violations; once for
employment discrimination under the Due Process Clause; and once for an
Eighth Amendment violation by prison officials. Each time, the Supreme Court
made sure that the scenario lacked “special factors counseling hesitation in the
absence of affirmative action by Congress.” Bivens, 403 U.S. at 396.
Additionally, the Local Defendants argue that defendant Bailey has absolute
immunity from suit as a member of the Public Health Service, pursuant to 42
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U.S.C. § 233(a), while all of them have qualified immunity for deciding that
plaintiff’s deportation was reasonably foreseeable. The W ashington Defendants
adopt these arguments while adding that this Court lacks personal jurisdiction
over them since they had no personal involvement in plaintiff’s custody.
Plaintiff counters defendants’ arguments in several ways. Plaintiff argues
that he is not seeking an extension of Bivens but rather seeks to fit his case
under established rulings that Bivens covers Fourth, Fifth, and Eighth
Amendment violations. W ith respect to defendants’ “special factors” argument,
plaintiff argues that immigration law neither bars pursuit of money damages under
Bivens nor provides an adequate remedy for the constitutional violations that
occurred here. Plaintiff rejects defendants’ argument for qualified immunity by
noting that case law does not support a failure to conduct required custodial
reviews and that this Court already found that defendants committed
constitutional violations. Finally, plaintiff concedes that defendant Bailey is
absolutely immune from suit as a physician with the Public Health Service but
requests permission to substitute the United States for her, pursuant to 28 U.S.C.
§ 2679.
III.
DISCUSSION
Most of the FRCP 12(b)(6) motions that the Court adjudicates concern
causes of action that are theoretically cognizable, with disputes over whether the
facts pled make those causes of action facially plausible in that particular case.
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This case is a little unusual in that it presents the reverse scenario: undisputed
facts with an undisputed connection to theories of liability, but a sharp dispute
over whether those theories are legally cognizable. Nonetheless, the basic
principles of dismissal for failure to state a claim apply. “A pleading that states a
claim for relief must contain . . . a short and plain statement of the claim showing
that the pleader is entitled to relief.” FRCP 8(a)(2). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,
___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and
citations omitted). “Simply stated, the question under Rule 12(b)(6) is whether
the facts supporting the claims, if established, create legally cognizable theories
of recovery.” Cole-Hoover v. Shinseki, No. 10-CV-669, 2011 W L 1793256, at *3
(W .D.N.Y. May 9, 2011) (Arcara, J.) (internal quotation marks and citation
omitted).
Here, the most important factor in resolving the pending motions is
plaintiff’s decision to assert five causes of action that would require a connection
to Bivens. Although plaintiff alleges Fourth, Fifth, and Eighth Amendment
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violations, he concedes implicitly that he cannot maintain any of his causes of
action unless they can manifest themselves through Bivens. However, “the
Supreme Court has warned that the Bivens remedy is an extraordinary thing that
should rarely if ever be applied in ‘new contexts.’” Arar v. Ashcroft, 585 F.3d 559,
571 (2d Cir. 2009) (citations omitted). Under the Supreme Court’s Bivens
jurisprudence, only three narrowly defined causes of action can proceed: unlawful
search and seizure in the criminal context, under Bivens itself; employment
discrimination under the Due Process Clause, see Davis v. Passman, 442 U.S.
228, 248–49 (1979); and Eighth Amendment violations by prison officials in the
context of criminal custody, see Carlson v. Green, 446 U.S. 14, 23–24 (1980).
Courts over the years have rejected numerous requests to extend Bivens beyond
the three categories recognized to date, either because other remedies were
available or because courts felt particularly hesitant to extend a judicially created
remedy without guidance from Congress. “Among the rejected contexts are:
violations of federal employees’ First Amendment rights by their employers;
harms suffered incident to military service; denials of Social Security benefits;
claims against federal agencies; claims against private corporations operating
under federal contracts; and claims of retaliation by federal officials against
private landowners.” Arar, 585 F.3d at 571–72 (citations omitted).
W ith Mirmehdi, wrongful immigration custody pending removal joins the list
of rejected Bivens extensions. This Court does not have to treat Mirmehdi as
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binding because, while an appellate decision, it does not come from the Second
Circuit. See Right to Life of Dutchess County, Inc. v. FEC, 6 F. Supp. 2d 248,
253 (S.D.N.Y. 1998) (citing “the well-settled principle in the federal court system
that decisions in one circuit are not binding on district courts in another circuit”)
(citations omitted); cf. Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993) (“[U]ntil
the Supreme Court speaks, the federal circuit courts are under duties to arrive at
their own determinations of the merits of federal questions presented to them.”)
(citations omitted). Nonetheless, this Court adopts the reasoning of Mirmehdi as
persuasive because it fits well established Bivens jurisprudence. As in Mirmehdi,
plaintiff here complains that immigration officials detained him improperly.
Plaintiff alleges, and this Court found in the habeas proceedings, that an unlawful
immigration detention occurred because of a failure to follow immigration
regulations. Plaintiff had a remedy, though, for that failure to follow
regulations—the habeas proceeding itself, which plaintiff won. Plaintiff also won
at the state level and eliminated the conviction that gave rise to all of his
immigration troubles in the first place. Given that plaintiff successfully ended his
immigration custody and given that plaintiff successfully eliminated the whole
reason why he would ever be deported, this Court will not craft an additional
remedy of money damages that is contemplated nowhere in the immigration
statutes and regulations. W ithout the ability to fit under Bivens, plaintiff’s
complaint cannot move forward.
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Since the Court is dismissing the complaint in its entirety for failure to state
a claim under Bivens, consideration of defendants’ other arguments for dismissal
is unnecessary.
IV.
CONCLUSION
For all of the foregoing reasons, the Court grants both pending motions to
dismiss (Dkt. Nos. 37, 38). The Clerk of the Court shall close this case.
SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED:December 12, 2011
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