LYTTLE v. The UNITED STATES OF AMERICA et al
Filing
47
MOTION to Dismiss by The UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit) (Whitman, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Case No. 4:10-cv-142-D
____________________________________
)
MARK DANIEL LYTTLE,
)
)
UNITED STATES’
Plaintiff,
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MOTION TO DISMISS
)
v.
)
)
UNITED STATES OF AMERICA, et al., )
)
Fed. R. Civ. P. 12(b)(1), 12(b)(6)
Defendants.
)
____________________________________)
UNITED STATES’ MOTION TO DISMISS
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), defendant, the United
States, respectfully submits this motion to dismiss the three claims asserted against it in
plaintiff’s amended complaint (Counts 4-6), all of which are brought under the Federal Tort
Claims Act (“FTCA”). In support of this motion, the United States relies upon the attached
memorandum of law and accompanying exhibits. As explained in that memorandum of law,
Lyttle’s FTCA claims should be dismissed due to a lack of subject matter jurisdiction and
because they fail to state a claim upon which relief can be granted.
Respectfully submitted this 24th day of June 2011,
TONY WEST
Assistant Attorney General, Civil Division
C. SALVATORE D’ALESSIO, JR.
Acting Director, Torts Branch
/s/ James R. Whitman
JAMES R. WHITMAN
Trial Attorney
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel:
(202) 616-4169
Fax:
(202) 616-4314
E-mail:
james.whitman@usdoj.gov
D.C. Bar No. 987694
DAVID G. CUTLER
Trial Attorney
GEORGE E.B. HOLDING
United States Attorney
W. ELLIS BOYLE
Assistant United States Attorney
Civil Division
U.S. Attorney’s Office
Eastern District of North Carolina
310 New Bern Avenue
Suite 800 Federal Building
Raleigh, NC 27601-1461
Tel:
(9l9) 856-4530
Fax:
(919) 856-4821
E-mail:
ellis.boyle@usdoj.gov
N.C. Bar No. 33826
Attorneys for the United States
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Case No. 4:10-cv-142-D
____________________________________
)
MARK DANIEL LYTTLE,
)
)
MEMORANDUM IN SUPPORT OF
Plaintiff,
)
UNITED STATES’ MOTION TO
)
DISMISS
v.
)
)
UNITED STATES OF AMERICA, et al., )
)
Fed. R. Civ. P. 12(b)(1), 12(b)(6)
Defendants.
)
____________________________________)
MEMORANDUM IN SUPPORT OF THE UNITED STATES’ MOTION TO DISMISS
The plaintiff in this case, Mark Daniel Lyttle, alleges that he was detained and then
deported to Mexico despite being a U.S. citizen. While his complaint obviously tells only his
side of the story, it is an unfortunate one even though it appears Lyttle may have played a role in
the deportation decision. All that said, Lyttle’s three claims against the United States under the
Federal Tort Claims Act (“FTCA”) are not legally viable.1
INTRODUCTION
As discussed below, the Court lacks subject matter jurisdiction over Lyttle’s FTCA
claims because they are subject to the FTCA’s “discretionary function” and “due care”
exceptions. See 28 U.S.C. § 2680(a). Nor can Lyttle satisfy all of the elements under North
1
Lyttle also has sued three federal employees in their individual capacity; they have filed
their own motion to dismiss on this same date. The present motion addresses only those claims
against the United States (Counts 4-6). Lyttle separately has sued the United States and several
other federal employees in both their official and individual capacities based on his deportation
in the Northern District of Georgia. See Lyttle v. United States, No. 10-3302 (N.D. Ga.). All of
the federal defendants in that action have recently moved to dismiss all of Lyttle’s claims against
them as well. See id. Docket Nos. 47, 49.
Carolina law for the underlying torts. A claim for false imprisonment (Count 4) cannot lie
because Lyttle was detained under legal authority. Next, the United States cannot be liable for an
allegedly negligent investigation of his citizenship (Count 5) because a private person would not
owe a duty to Lyttle in similar circumstances. And in the absence of allegations that federal
immigration officials engaged in “utterly intolerable” conduct while interviewing Lyttle and
processing his case, an intentional infliction of emotional distress (“IIED”) cause of action
(Count 6) fails as well. Finally, to the extent the Court does not dismiss Lyttle’s FTCA claims in
their entirety, it should at the very least limit any damages from those claims to only the harm
that Lyttle allegedly suffered while in federal custody and inside the United States under the
FTCA’s foreign country exception. See id. § 2680(k).
BACKGROUND2
On August 14, 2008, Lyttle was sentenced to a term of 100 days in the custody of the
North Carolina Department of Correction (“NCDOC”) on a charge of assaulting a female. FAC
¶ 27. A week later, on August 22, 2008, he was booked into the Neuse Correctional Institution to
begin serving that sentence. Id. ¶ 28. During the booking process, a NCDOC employee by the
name of Marilyn Stephenson (a defendant in this case) asked Lyttle, who is of Puerto Rican
descent, a series of biographical questions, including one about his birthplace. Id. ¶¶ 7, 32.
Lyttle alleges that he said he was born in North Carolina, but that Stephenson listed his birth
country as Mexico. Id. ¶¶ 32-33. Based on the intake interview, NCDOC referred Lyttle to the
U.S. Immigration and Customs Enforcement (“ICE”) as a possible criminal alien. Id. ¶¶ 30, 36.
2
Unless otherwise noted, the allegations recited infra are derived from Lyttle’s first
amended complaint (Docket No. 44) (“FAC”), which are assumed to be true solely for the
purpose of this motion.
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Dashanta Faucette, an ICE immigration enforcement agent and defendant in this action,
then interviewed Lyttle at Neuse on September 2, 2008, and documented his statements during
that interview in a “Record of Sworn Statement in Affidavit Form” and a “Record of
Deportable/Inadmissible Alien” (copies of which are attached to this motion as Exhibits A and B,
respectively).3 FAC ¶ 39-46. By signing the sworn statement, Lyttle affirmed that he was born
in and was a citizen of Mexico, that his correct name was Jose Thomas, that Mark Daniel Lyttle
was an alias, and that he entered the United States without permission when he was three years
old. See Exh. A; FAC ¶¶ 41-43. Faucette’s handwritten notes from her interview with Lyttle
also make reference to “Mental Illness – Bipolar.” FAC ¶ 46; Exh. B.
Over the next few days, ICE agents performed computer database searches on Lyttle’s
criminal history. See FAC ¶¶ 47-48. Lyttle alleges these searches revealed “evidence of [his]
citizenship.” Id. ¶ 51. In light of his sworn statement, however, ICE Supervisory Detention and
Deportation Officer Dean Caputo (a co-defendant in this action) executed several documents on
September 5, 2008, to begin removal proceedings against Lyttle. Id. ¶¶ 49-51. Those included a
“Warrant for Arrest of Alien,” a “Notice of Intent to Issue Final Administrative Removal Order,”
and a “Notice of Custody Determination.” See id.; Exhs. C, D, E. Also on September 5, ICE
Immigration Enforcement Agent Robert Kendall (another defendant here) issued an
“Immigration Detainer – Notice of Action.” FAC ¶ 52; Exh. F. The first three of these
3
The Court may consider these documents without converting this motion into one for
summary judgment, either because it is proper to submit evidence outside the pleadings on a
motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1), see Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004), or because, for
purposes of Rule 12(b)(6), Lyttle has incorporated these particular documents into his complaint
by reference and their authenticity cannot be reasonably challenged, see Cozzarelli v. Inspire
Pharm. Inc., 549 F.3d 618, 625 (4th Cir. 2008); FAC ¶¶ 41-46. The foregoing is equally true of
Exhibits C through F, which are also submitted with this motion and incorporated by reference
into the complaint. FAC ¶¶ 49-53.
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documents were served on Lyttle personally on September 8, 2008. FAC ¶¶ 53-55; Exhs. C, D,
E. Lyttle also signed his name to the “Notice of Intent” and “Notice of Custody Determination;”
by doing so, he reaffirmed the representations he had made to Agent Faucette of being a Mexican
citizen and illegally inside the United States, agreed to be voluntarily deported to Mexico, and
waived his rights to a hearing before an immigration judge. FAC ¶¶ 54-55, Exhs. D, E. The
immigration detainer was sent to the NCDOC to notify it that it should transfer Lyttle to ICE
custody once he had served the remainder of his state criminal sentence. FAC ¶ 52; Exh. F.
Lyttle was scheduled to be released from NCDOC custody on October 26, 2008. FAC ¶
63. Two days later, in compliance with the immigration detainer, ICE took custody of Lyttle and
transported him to the Stewart Detention Center in Lumpkin, Georgia, pending removal
proceedings. Id.
Shortly after arriving at the Stewart Detention Center, ICE Deportation Officer David
Collado took another sworn statement from Lyttle, who this time indicated he was a U.S. citizen,
born in North Carolina. Id. ¶ 65. Collado thus reclassified Lyttle’s case “from an administrative
removal to a Notice to Appear,” meaning Lyttle’s immigration status would be decided by an
immigration judge. Id. ¶ 68. On December 9, 2008, the immigration judge heard Lyttle’s case
and issued an order of removal. Id. ¶¶ 83-84. Lyttle was then transported to the Mexican border
on December 18, 2008, and spent the next four months in Central America. Id. ¶¶ 95-111.
On April 22, 2009, Lyttle returned to the United States on a plane bound for Nashville,
Tennessee, which first stopped over at the international airport in Atlanta, Georgia. Id. ¶¶ 11213. As he tried to pass through customs in Atlanta, Lyttle was detained as a criminal alien. Id. ¶
113. He was ultimately held there for two days while his family provided proof of his citizenship
to immigration officials, and was released on April 24, 2009. Id. ¶¶ 113-17, 122.
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Four days later, on April 28, 2009, the Department of Homeland Security filed a motion
with the immigration court to terminate deportation proceedings against Lyttle. Id. ¶ 123. That
motion summarized the events leading up to that point, including the fact that Lyttle had
represented to immigration officials and the immigration court “that he was a Mexican citizen
who had illegally entered the United States without inspection or parole.” FAC Exh. C.
DISCUSSION
Lyttle’s FTCA claims should be dismissed both for a lack of subject matter jurisdiction
under Rule 12(b)(1) and a failure to state a claim upon which relief can be granted under Rule
12(b)(6). As to the former, Lyttle bears the burden of proving that jurisdiction exists by a
preponderance of the evidence. See United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347
(4th Cir. 2009). Even more specifically with respect to the FTCA, “it is the plaintiff’s burden to
show that an unequivocal waiver of sovereign immunity exists and that none of the statute’s
waiver exceptions apply to his particular claim.” Welch v. United States, 409 F.3d 646, 651 (4th
Cir. 2005). “If the plaintiff fails to meet this burden, then the claim must be dismissed.” Id.
Dismissal is required under Rule 12(b)(6) when a plaintiff does not “plead sufficient
factual matter to show” an entitlement to relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).
Only a “plausible claim for relief survives a motion to dismiss” and a claim is plausible only
when the well-pled factual allegations allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 1949-50. When weighing the legal
sufficiency of a complaint, a court must be careful to disregard “legal conclusions, elements of a
cause of action, [] bare assertions devoid of further factual enhancement,” unwarranted
inferences, or arguments. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,
255 (4th Cir. 2009); see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (holding that
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defeating a Rule 12(b)(6) motion to dismiss “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do”).
I.
SUBJECT MATTER JURISDICTION IS NOT PROPER AS TO LYTTLE’S
FTCA CLAIMS
The FTCA acts as a “limited waiver of the United States’ sovereign immunity” from
money damages. Welch, 409 F.3d at 651. It is one that, as with any such waiver, must “be
strictly construed, in terms of scope, in favor of the sovereign.” Williams v. United States, 242
F.3d 169, 172 (4th Cir. 2001) (internal quotations and citation omtted). The boundaries of that
waiver are marked “by a series of specific exceptions outlined in the Act, each of which is
considered jurisdictional.” Welch, 409 F.3d at 651. Two such exceptions—the “discretionary
function” and “due care” exceptions, see 28 U.S.C. § 2680(a)—bar all of Lyttle’s FTCA claims.4
A.
The “Discretionary Function” Exception
Under the FTCA, the United States retains its sovereign immunity from claims “based
upon the exercise or performance or the failure to exercise or perform a discretionary function or
duty on the part of a federal agency or an employee of the Government.” 28 U.S.C. § 2680(a).
This is true “whether or not the discretion involved be abused.” Id.; see Williams, 242 F.3d at
175 (finding that hospital run by federal government on Indian reservation had discretion to
provide treatment to non-Indians and its exercise of that discretion in refusing treatment to
plaintiff, “even if it amounts to an abuse” by causing plaintiff’s death, fell within discretionary
function exception).
4
In fact, another exception to the FTCA—the “foreign country” exception, see 28 U.S.C.
§ 2680(k)—is also relevant here. But because it would not preclude Lyttle’s FTCA claims
entirely (although it would severely curtail them), it is discussed separately below in the event
that the Court does not dismiss such claims altogether. See infra Section III.
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The Supreme Court has developed a two-part test to determine if the conduct in question
is subject to the discretionary function exception. First, the action or conduct must be “a matter
of choice for the acting employee.” Berkovitz v. United States, 486 U.S. 531, 536 (1988). The
exception thus “will not apply when a federal statute, regulation, or policy specifically prescribes
a course of action for an employee to follow.” Id. Second, “the challenged conduct must
implicate considerations of public policy,” as the “very purpose of the discretionary function
exception is to prevent judicial ‘second-guessing’ of administrative decisions grounded in social
and political policy.” Medina v. United States, 259 F.3d 220, 228 (4th Cir. 2001) (citing United
States v. Gaubert, 499 U.S. 315, 322-23 (1991)). But the employee need not subjectively weigh
policy considerations before acting (or not); rather, the focus at this stage of the analysis is “on
the nature of the actions taken and whether they are susceptible to policy analysis.” Gaubert, 499
U.S. at 325; see Indem. Ins. Co. of N. Am. v. United States, 569 F.3d 175, 180 (4th Cir. 2009)
(explaining that “a court should look to the nature of the challenged decision in an objective, or
general sense, and ask whether that decision is one which [the court] would expect inherently to
be grounded in considerations of policy”) (internal quotations and citation omitted). As a result,
the discretionary function exception protects conduct beyond the policy and planning level:
“Day-to-day management . . . regularly requires judgment as to which of a range of permissible
courses is the wisest.” Gaubert, 499 U.S. at 325.
The FTCA claims in this case primarily challenge the decision by immigration officials to
begin deportation proceedings against Lyttle and the alleged manner in which they came to that
decision. More specifically, Lyttle asserts that they failed to review “readily available
documentation” indicative of his citizenship, provide him “assistance” due to his alleged
cognitive limitations, or use proper procedures when having him sign sworn statements
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concerning his citizenship, and that they lacked adequate training and supervision in these
matters. FAC ¶¶ 87-94, 155.5 Such conduct, however, undeniably “involves an element of
judgment or choice,” Berkovitz, 486 U.S. at 536, and falls well within the discretionary function
exception.
Indeed, the Fourth Circuit has held in the immigration context that the decision to arrest
an alien and “institute deportation proceedings” is a “quintessential exercise of” immigration
officials’ “broad discretion.” Medina, 259 F.3d at 227. The same is equally true of how a
determination of citizenship is made. See Diaz v. United States, No. 99-6374, 2002 WL
31002842 (N.D. Ill. Sept. 3, 2002) (noting that immigration officials’ “determination of
[plaintiff’s] citizenship was discretionary”). In short, the way that an immigration officer
interrogates and investigates a person believed to be an alien and that officer’s decision to initiate
deportation proceedings against such a person is inherently discretionary conduct and “clearly
meets the first prong” of the discretionary function analysis. Medina, 259 F.3d at 226.
That conduct just as clearly meets the second prong too. ICE is tasked with enforcing
federal immigration laws, which involves ensuring that certain criminal aliens in this country are
removed. See 6 U.S.C. §§ 251-52, 542 (note). Operating with limited resources, ICE must
weigh various policy considerations in deciding which suspected aliens to detain, how to detain
them, and how to investigate claims of citizenship by detained aliens. Cf. Reno v. Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471, 483-84 (1999) (explaining that at each stage of the
deportation process the Executive “has discretion to abandon the endeavor” and often exercises
“that discretion for humanitarian reasons or simply for its own convenience”); Hughes v. United
5
Lyttle’s FTCA claims also appear to challenge the mere fact of his detention and
deportation. That issue is discussed separately below in Section I-B.
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States, 110 F.3d 765, 769 (11th Cir. 1997) (applying discretionary function so as not to “second
guess the Postal Service’s resource allocation decisions”).
With these and similar considerations in mind, courts have found that the discretionary
function exception bars FTCA claims analogous to those brought by Lyttle. In Medina, for
example, an immigration officer independently inquired into the plaintiff’s immigration status,
obtained an arrest warrant through the proper channels, and, along with other immigration
officers, arrested the plaintiff. Medina, 259 F.3d at 222. The government ultimately decided not
to pursue the plaintiff’s deportation. Id. at 229. The plaintiff sued under the FTCA for assault
and battery, false arrest, malicious prosecution, and infliction of emotional distress. Id. at 223.
Even though the government did not raise the issue, see id., the Fourth Circuit sua sponte
dismissed the case based on the discretionary function exception, concluding that the
government’s “decision to arrest Medina was clearly clothed in public policy considerations” and
that the “initial decision to initiate proceedings and arrest him was the type of agency conduct
Congress intended to immunize in the discretionary function exception.” Id. at 229.
The Fifth Circuit used similar reasoning in a case where the plaintiff was subjected to
deportation proceedings and remained in federal custody for fifteen months before being
released. See Nguyen v. United States, 65 F. App’x 509, *1 (5th Cir. 2003) (per curiam). He
then filed suit under the FTCA, alleging among other things that the immigration officials were
negligent in failing to “determine from various documents that [he] was entitled to derivative
citizenship.” Id. at *2. The court of appeals held this was essentially a claim that immigration
agents “failed to adequately perform a discretionary duty, which falls squarely within the
discretionary function exception.” Id. It also noted that “[d]ecisions to investigate, how to
investigate and whether to prosecute generally fall within this exception.” Id. at *1; see Bernado
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v. United States, No. 02-0974, 2004 WL 741287, *3 (N.D. Tex. Apr. 5, 2004) (holding that
discretionary function exception barred claim that immigration officials were “negligent in
failing to independently investigate [plaintiff’s] eligibility for derivative citizenship”); accord
O’Ferrell v. United States, 253 F.3d 1257, 1267 (11th Cir. 2001) (stating that “[j]ust how law
enforcement agents are to conduct interrogations would appear to be a paradigmatic example of a
discretionary function,” as the “process is one that involves elements of judgment and
choice—the central ingredients of discretion.”); Mesa v. United States, 123 F.3d 1435, 1438
(11th Cir. 1997) (applying discretionary function exception to claim that DEA agents
“negligently or recklessly failed to cease detaining and questioning” the plaintiffs after realizing
they had arrested wrong person).
Applying the above precedent here, the discretionary function exception forecloses nearly
all of Lyttle’s FTCA claims. The ICE agents in this case unquestionably exercised “choice and
judgment,” Gaubert, 499 U.S. at 331, in gathering and reviewing the relevant evidence,
evaluating whether Lyttle could understand what was happening during his interview, and
deciding whether to initiate removal proceedings against him.6 Lyttle’s conclusory allegations
6
With respect to his alleged cognitive impairments, Lyttle asserts that his “medical and
criminal records show that he was unable to execute a knowing, voluntary and intelligent waiver
of his legal rights so as to admit that he was a Mexican national, in effect consenting to removal
to Mexico.” FAC ¶ 93. But the ICE agents investigating Lyttle’s immigration status would not
have had access to his confidential medical records. As for his criminal records, they actually
confirm what common sense suggests: that being bipolar does not by itself mean that Lyttle was
or is incompetent, or that he could not understand the questions being asked of him or what he
signed. In the criminal matter that led to Lyttle’s incarceration at Neuse in August 2008, there is
no indication that the state court ever found or thought Lyttle to be incompetent to stand trial, and
the sentencing judge in fact specifically decided not to recommend “[p]sychiatric and/or
psychological counseling” for him. See Exh. G. (A copy of that judge’s order is attached hereto
as Exhibit G, which the Court again may consider under Rule 12(b)(1). See Velasco, 370 F.3d at
398. Alternatively, the Court may take judicial notice of it as a matter of public record under
Rule 12(b)(6). See Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).) Under
such circumstances, Agent Faucette’s assessment of Lyttle’s ability to understand the
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about negligent supervision and training, and “creating and/or sanctioning” policies concerning
detention, interrogation, and deportation, FAC ¶¶ 88-92, 155, are even more readily subject to the
discretionary function exception. See Gaubert, 499 U.S. at 325 (“Discretionary conduct is not
confined to the policy or planning level.”); Suter v. United States, 441 F.3d 306, 312 n.6 (4th Cir.
2006) (“Courts have repeatedly held that government employers’ hiring and supervisory
decisions are discretionary functions.”); Vickers v. United States, 228 F.3d 944, 950 (9th Cir.
2000) (“This court and others have held that decisions relating to the hiring, training, and
supervision of employees usually involve policy judgments of the type Congress intended the
discretionary function exception to shield.”) (collecting cases). This Court therefore should
dismiss most of Counts 4-6 for lack of subject matter jurisdiction based on the discretionary
function exception.
B.
The “Due Care” Exception
The remainder of Lyttle’s FTCA claims is predicated on the notion that the North
Carolina immigration agents detained Lyttle pending his removal proceedings and then
physically deported him. FAC ¶¶ 148, 155, 160. Putting aside the fact that Lyttle was detained
by ICE in North Carolina for at most two days (after his scheduled release from NCDOC
custody) and was physically deported by ICE agents in Georgia acting pursuant to an
immigration judge’s order of removal, id. ¶¶ 63, 86, this portion of Lyttle’s FTCA claims is
barred by the FTCA’s “due care” exception.
proceedings and her decision to not refer him for an independent mental health examination were
exercises in judgment and precisely the sort of conduct grounded in policy considerations that the
discretionary function is meant to protect from “judicial ‘second-guessing.’” United States v.
Varig Airlines, 467 U.S. 797, 814 (1984).
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Complementing the discretionary function exception is the “due care” exception, which
prohibits claims “based upon an act or omission of an employee of the Government, exercising
due care, in the execution of a statute or regulation, whether or not such statute or regulation be
valid.” 28 U.S.C. § 2680(a). This part of § 2680(a) “prevents the United States from being held
liable for actions of its officers undertaken while reasonably executing the mandates of a statute.”
Welch, 409 F.3d at 651. For the due care exception to apply, there must be a statute or regulation
that “specifically proscribes a course of action for an officer to follow” and the officer must have
“exercised due care in following the dictates of that statute or regulation.” Id. at 652. That is
indisputably true here, as the Fourth Circuit’s decision in Welch is on all fours with this case.
Like the plaintiff in Welch, Lyttle was detained “under the mandate of [8 U.S.C.] §
1226(c)(1)(B).” Id.; Exhs. C, D, E. “Once [Lyttle] was deemed deportable” pursuant to this
provision, the “decision to detain him was statutorily required.” Welch, 409 F.3d at 652; see
Demore v. Kim, 538 U.S. 510, 517-18 (2003) (explaining that § 1226(c) “mandates detention” of
individuals charged as criminal aliens “during removal proceedings”). Because there is no
allegation in this case that an immigration officer “deviated from the statute’s requirements,”
Welch, 409 F.3d at 652, the due care exception scotches Lyttle’s FTCA claims to the extent they
depend on the fact of his detention in North Carolina. See id. (affirming dismissal under Rule
12(b)(1) of FTCA false imprisonment claim based on due care exception where plaintiff was
detained pursuant to § 1226(c)(1)(B) for 422 days).
II.
EACH OF LYTTLE’S THREE FTCA CLAIMS FAILS AS A MATTER OF LAW
Besides being jurisdictionally barred by the discretionary function and due care
exceptions, Lyttle’s individual FTCA causes of action are substantively flawed too, as none of
them states a violation of North Carolina law. The United States is liable under the FTCA only if
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“a private person[] would be liable to the claimant in accordance with the law of the place where
the act or omission occurred,” 28 U.S.C. § 1346(b)(1), and only “in the same manner and to the
same extent as a private individual under like circumstances” would be liable, id. § 2674. The
FTCA thus “does not create new causes of action.” Florida Auto Auction of Orlando, Inc. v.
United States, 74 F.3d 498, 502 (4th Cir. 1996). Instead, “the underlying cause of action in an
FTCA claim is derived from the applicable state law.” Kerns v. United States, 585 F.3d 187, 194
(4th Cir. 2009). For the reasons explained below, Lyttle has not alleged valid claims for false
imprisonment, negligence, or IIED under the laws of North Carolina. The Court therefore should
dismiss his FTCA claims under Rule 12(b)(6) as well.
A.
The False Imprisonment Claim (Count 4) Fails Because Lyttle’s Detention
Was Pursuant To Legal Process
In his “Fourth Claim for Relief,” Lyttle seeks to hold the United States liable for false
imprisonment because the North Carolina ICE agents “obtain[ed] custody” of him from NCDOC,
held and detained him “for an appreciable period of time,” and “physically expell[ed]” him from
the United States. FAC ¶ 148.7 Yet Lyttle admits, as he must, that those ICE agents used legal
process throughout his deportation proceedings. Id. ¶¶ 49- 52; Exhs. C, D, E, F. Because that
fact defeats a claim of false imprisonment under North Carolina law, Lyttle’s fourth cause of
action must be dismissed.
False imprisonment is “based upon the deprivation of one’s liberty without legal
process.” Melton v. Rickman, 36 S.E.2d 276, 703 (N.C. 1945). Thus, if an imprisonment “is
under legal authority[,] it may be malicious but it cannot be false.” Rhodes v. Collins, 150 S.E.
7
To be clear, the “appreciable period of time” at issue in this case is limited to just the
two days Lyttle allegedly was in ICE custody while in North Carolina, after completing his state
criminal sentence. See FAC ¶ 63.
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492, 494 (N.C. 1929) (internal quotations and citation omitted). This remains true, and an action
for false imprisonment will not lie, even if the process is later shown to be irregular, voidable, or
erroneously issued. Id.; Bryan v. Stewart, 31 S.E. 286, 287 (N.C. 1898). When an arrest or
imprisonment is “made under the form of legal process,” a false imprisonment claim is properly
brought only if the process is “absolutely void”—i.e., the warrant “charged no criminal offense
known to the law” or was issued by a court having no jurisdiction, or the person arrested is not
the person named in the warrant. Rhodes, 150 S.E. at 494-95; see Bryan, 31 S.E. at 288;
Robinson v. City of Winston-Salem, 238 S.E.2d 628, 630-31 (N.C. Ct. App. 1977).
In this case, Lyttle acknowledges that the North Carolina ICE agents issued several types
of legal process to initiate and process his removal proceedings. FAC ¶¶ 49-52; Exhs. C, D, E, F.
There can be no question that this process was procedurally valid, as the agents acted pursuant to
their statutory and regulatory authority to arrest and detain individuals suspected of being
removable aliens. See 8 U.S.C. § 1226(c); 8 C.F.R. § 236.1. Lyttle thus does not—because he
cannot—allege that the agents detained him without legal authority. At most he has alleged that
the legal process used to begin removal proceedings against him was erroneously issued, which
is not enough to sustain a false imprisonment claim. See Bryan, 31 S.E. at 288 (finding that
claim for false imprisonment must be dismissed where clerk of court had “the right—the
jurisdiction—to issue the process under which the plaintiff was arrested” and the process thus
“was not void, although it was erroneous”). The Court accordingly should dismiss Lyttle’s false
imprisonment cause of action.8
8
Lyttle’s reliance on the fact that he was “physically expell[ed]” from the United
States—several weeks after ICE transferred him from North Carolina to Georgia—as part of his
false imprisonment claim, FAC ¶ 148, is irrelevant to this action, as the North Carolina agents
did not “physically expel[]” him from the United States. It is also illogical, as his removal ended
his detention, which is an essential element for false imprisonment, see Melton, 36 S.E.2d at 703.
-14-
B.
The Negligence Claim (Count 5) Fails Because Lyttle Cannot Establish A
Duty Of Care
Lyttle’s next FTCA claim (Count 5) is premised on the alleged negligence of the North
Carolina ICE agents who initiated removal proceedings against him. FAC ¶¶ 153-58. This claim
should be dismissed because it would impose a duty of care on the government that a private
person would not owe to Lyttle under similar circumstances.9
As noted above, an “action under the FTCA may only be maintained if the Government
would be liable as an individual under the law of the state where the negligent act occurred.”
Kerns, 585 F.3d at 194; see 28 U.S.C. § 1346(b)(1). The Fourth Circuit has explained further
that the “FTCA only serves to convey jurisdiction when the alleged breach of duty is tortious
under state law, or when the Government has breached a duty under federal law that is analogous
to a duty of care recognized by state law.” Goldstar (Panama) S.A. v. United States, 967 F.2d
965, 969 (4th Cir. 1992) (emphasis omitted). Accordingly, if state law would not impose upon a
private person a duty of care towards the plaintiff “under like circumstances,” 28 U.S.C. § 2674,
then the United States cannot be held liable under the FTCA. See Florida Auto Auction of
Orlando, 74 F.3d at 505-05 (reversing district court’s denial of summary judgment on FTCA
negligence claim where state law did “not impose liability for breach of a duty that is sufficiently
analogous to the duty” allegedly breached by federal customs officers).
In his “Fifth Claim for Relief,” Lyttle asserts that the North Carolina ICE agents
“breached their duty of reasonable care by negligently acting or failing to act in such a way that
9
Not to mention the fact that Lyttle contributed to the alleged negligence by representing
he was a Mexican citizen to immigration officials. See FAC ¶¶ 40-45, 54; FAC Exh. C; Exhs. AE; Thompson v. Bradley, 544 S.E.2d 258, 261 (N.C. Ct. App. 2001) (stating that under North
Carolina law contributory negligence is “the breach of [a] duty of a plaintiff to exercise due care
for his or her own safety, such that the plaintiff’s failure to exercise due care is a proximate cause
of his or her injury” and acts as a complete bar to a plaintiff’s recovery).
-15-
resulted in [his] wrongful detention and deportation by ICE.” FAC ¶ 154. By this he appears to
mean that those agents negligently investigated his claim of citizenship and failed to provide him
“with assistance” due to his alleged “mental deficiencies” during his interview and before letting
him sign sworn statements concerning his citizenship. Id. ¶ 155. A canvass of North Carolina
law, however, uncovers no precedent holding private parties liable in circumstances like those at
issue in Lyttle’s FTCA negligence claim.
If anything, the case law indicates just the opposite. As the North Carolina Supreme
Court has explained: “Private persons do not possess public duties. Only governmental entities
possess authority to enact and enforce laws for the protection of the public.” Stone v. N.
Carolina Dep’t of Labor, 495 S.E.2d 711, 714 (N.C. 1998). It has held further that, under the
“public duty doctrine,” the duty of a governmental entity and its officers to protect the public and
enforce the law is owed to the citizenry at large, not to a specific individual, and that (absent the
existence of a “special relationship” or a “special duty”) the negligent performance of that
function cannot subject such entities or officers to liability because they owe no legal duty to the
plaintiff. See id. at 713-17 (finding that state entities could not be held liable for negligently
failing to conduct safety inspections of food processing plant in light of public duty doctrine and
language of North Carolina Tort Claims Act, which imposed liability on state only if “a private
person” would be liable under the circumstances); Hunt v. N. Carolina Dep’t of Labor, 499
S.E.2d 747, 749-51 (N.C. 1998) (finding that public duty doctrine barred claims against state
entity under North Carolina Tort Claims Act for negligently inspecting amusement park rides).
Like the FTCA’s discretionary function, the public duty doctrine is “grounded in the notion that
an officer’s duty to protect the public requires the officer to make discretionary decisions on a
regular basis.” Scott v. City of Charlotte, 691 S.E.2d 747, 752 (N.C. Ct. App. 2010).
-16-
The public duty doctrine thus has special relevance in the law enforcement context. See,
e.g., Walker v. City of Durham, No. COA02-1297, 2003 WL 21499222, *1-2 (N.C. Ct. App. July
1, 2003) (unpublished) (holding that negligence claim based on police technician’s conduct in
destroying evidence and submitting false testimony was barred by public duty doctrine). Even
more specifically, the Fourth Circuit has held that the United States could not be liable under the
FTCA for the alleged negligence of customs officers in allowing the exportation of vehicles
without proper documentation in part because public officers would not be liable under South
Carolina’s public duty doctrine. See Florida Auto Auction of Orlando, 74 F.3d at 502-05; accord
Lippman v. City of Miami, 622 F. Supp. 2d 1337, 1341-42 (S.D. Fla. 2008) (dismissing FTCA
negligence claim based on conduct of FBI agents in surveilling plaintiff and searching and
damaging his truck because “Florida law is clear that the negligent conduct of police
investigations does not give rise to a cause of action for negligence under Florida law,” as the
“duty to protect citizens and enforce the law is one owed generally to the public” and “Florida
law does not impose an analogous duty of care on a private party under like circumstances”)
(internal quotations and citation omitted).
To be sure, the U.S. Supreme Court has held that a court must “look to the state-law
liability of private entities, not to that of public entities, when assessing the Government’s
liability under the FTCA in the performance of activities which private persons do not perform”
(e.g., enforcing the nation’s immigration laws). United States v. Olson, 546 U.S. 43, 46 (2005)
(internal quotations and citation omitted). Private persons admittedly are not responsible for
enforcing the law or investigating suspected criminals or aliens. See Stone, 495 S.E.2d at 714.
But at the same time, there is no authority of which we are aware that imposes a duty on a private
person in North Carolina that is analogous to Lyttle’s proposed “duty of reasonable care” when
-17-
investigating a suspected alien or, more generally, investigating another person in “like
circumstances.” 28 U.S.C. § 2674.
The only conceivable analogy to the situation presented here is one in which a private
person “voluntarily takes the custody of another under circumstances such as to deprive the other
of his normal opportunities for protection.” Restatement (Second) of Torts § 314A(4) (1965).
Although the North Carolina case law applying this particular provision of the Restatement is
sparse, it confirms that the duty imposed by this rule is limited to protecting “against
unreasonable risk of physical harm.” Id. § 314A(1); cf. Klassette by Klassette v. Mecklenburg
Cnty. Area Mental Health, Mental Retardation & Substance Abuse Auth., 364 S.E.2d 179, 184
(N.C. Ct. App. 1988) (finding that supervisor of treatment center “assumed a duty of care toward
plaintiff” to protect plaintiff from harm and possible brain injury after plaintiff’s friend had
dropped plaintiff off in parking lot of center and supervisor had taken “affirmative” steps of
“locking plaintiff in plaintiff’s car and regularly monitoring plaintiff’s vital signs”). Such a duty
has no relevance to the negligence claim in this case, as Lyttle does not allege that the North
Carolina ICE agents failed to protect him from physical injury while he was in their custody
between October 26 and 28, 2008. We again are aware of no case in North Carolina imposing a
duty on private individuals who have voluntarily taken custody of another to conduct any kind of
investigation into that person, ensure that he understands his rights, or provide assistance to him
during an interrogation or before signing legal forms. Because North Carolina law would not
hold a private citizen (or even a police officer) liable under such circumstances, the United States
cannot be held liable under the FTCA.
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C.
The IIED Claim (Count 6) Fails Because Lyttle Has Not Sufficiently Alleged
Extreme And Outrageous Conduct
Lyttle’s FTCA claim for intentional infliction of emotional distress (his “Sixth Claim for
Relief”) also fails as a matter of law. To succeed on an IIED claim in North Carolina, a plaintiff
must plead and prove the following: “(1) extreme and outrageous conduct, (2) which is intended
to cause and does cause (3) severe emotional distress to another.” Dickens v. Puryear, 276
S.E.2d 325, 335 (N.C. 1981). The standard of outrageousness under the first element is “‘a
stringent one.’” Jolly v. Academy Collection Serv., Inc., 400 F. Supp. 2d 851, 866 (M.D.N.C.
2005) (quoting Patterson v. McLean Credit Union, 805 F.2d 1143, 1146 (4th Cir. 1986), aff’d in
part and vacated in part on other grounds, 491 U.S. 164 (1989)). It requires a plaintiff to show
that the defendant’s conduct “is so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community.” Foster v. Crandell, 638 S.E.2d 526, 537 (N.C. Ct. App. 2007).
Determining whether “the conduct complained of may reasonably be found to be sufficiently
outrageous as to permit recovery” is initially a question of law for the court. Beck v. City of
Durham, 573 S.E.2d 183, 191 (N.C. Ct. App. 2002) (internal quotations and citation omitted)
(affirming grant of motion to dismiss as to IIED claim, among others).
Lyttle has not come close to meeting the “high threshold for a finding that” the alleged
conduct of the North Carolina ICE agents was sufficiently extreme and outrageous to sustain an
IIED claim. Dobson v. Harris, 521 S.E.2d 710, 715 (N.C. Ct. App. 1999), rev’d on other
grounds, 530 S.E.2d 829 (N.C. 2000). To begin, Lyttle was first identified as a possible criminal
alien and had been referred to ICE as such by local North Carolina authorities. FAC ¶¶ 30-33.
The North Carolina ICE agents thus were merely following up on that referral. Id. ¶ 36 (alleging
-19-
that, “[a]s a direct and proximate result of the North Carolina Defendants’ false, unfounded and
unlawful misidentification of Mr. Lyttle, the Raleigh unit of [ICE’s Criminal Alien Program] was
notified and an investigation into Mr. Lyttle’s citizenship was initiated”) (emphasis added).
There are certainly no credible, well-pled factual allegations that the North Carolina ICE agents
singled Lyttle out for deportation knowing he was a U.S. citizen. While Lyttle hyperbolizes that
one of the North Carolina immigration officials (Agent Faucette) “coerced and manipulated” him
into signing a sworn statement in which he admitted foreign citizenship, id. ¶ 54, this is a mere
conclusory assertion that is not entitled to the assumption of truth. See Iqbal, 129 S. Ct. at 1950.
And what that assertion amounts to is, at worst, that Agent Faucette (who is not alleged to be a
trained mental health care provider) perhaps misjudged Lyttle’s cognitive abilities, FAC ¶¶ 5455—something that could hardly be deemed as going “beyond all possible bounds of decency.”
Foster, 638 S.E.2d at 537.10 Finally, once the North Carolina immigration officials had
determined that there was a sufficient basis to initiate removal proceedings against Lyttle in light
of his repeated representations of being a Mexican citizen, they were statutorily required to detain
him pending removal proceedings. See supra Section I-B; 8 U.S.C. § 1226(c); Demore, 538 U.S.
at 517-18; Welch, 409 F.3d at 652.
In short, Lyttle merely alleges that the North Carolina ICE agents performed their usual
duties in interviewing him, investigating him, and initiating deportation proceedings against him.
See FAC ¶¶ 39-61. He certainly has not pled “sufficient factual matter to show,” Iqbal, 129 S.
Ct. at 1948, that those officials engaged in “extreme and outrageous” conduct to maintain an
10
And as discussed above, Agent Faucette’s actions appear all the more reasonable in
light of the evidence that Lyttle was not found incompetent in connection with the criminal
charge that led to his sentence at Neuse where Agent Faucette interviewed him, or even in need
of psychiatric or psychological counseling at that time. See Exh. G; supra Section I-A n.7.
-20-
IIED cause of action under North Carolina law. Cf. Dobson, 521 S.E.2d at 575, 578-79 (finding
that falsely reporting child abuse, causing plaintiff to be questioned and investigated by
Department of Social Services for abusing her own child, was not extreme and outrageous
conduct); Ayerza v. Cabarrus Cnty. Dep’t of Soc. Servs., No. COA09-1050, 2010 WL 2367204,
*3 (N.C. Ct. App. June 15, 2010) (unpublished) (holding that plaintiff who sought to become
adoptive parent of two juveniles could not bring IIED claim based on allegations that defendants
made false statements and gave false testimony to the court, actively misled and provided false
information to plaintiff, and failed to notify plaintiff and the court about material facts); Walker,
2003 WL 21499222, at *3 (affirming dismissal of IIED claim that police technician negligently
or intentionally destroyed evidence and then submitted false testimony concerning its destruction,
which led to release of man suspected of attacking and raping plaintiff, as there was no allegation
that technician acted with intent or reckless disregard of plaintiff’s emotional state of mind).
III.
JURISDICTION OVER LYTTLE’S FTCA CLAIMS IS LIMITED BY THE
FOREIGN COUNTRY EXCEPTION
Assuming the Court does not dismiss all of Lyttle’s FTCA claims in their entirety for the
reasons discussed above, it nevertheless should find that any surviving FTCA claim would allow
recovery for only those injuries that Lyttle allegedly suffered within the United States. This is an
unavoidable consequence of the FTCA’s foreign country exception.
In addition to the discretionary function and due care exceptions, another enumerated
exceptions found in the FTCA is the foreign country exception. That provision preserves the
United States’ sovereign immunity from tort liability with respect to “[a]ny claim arising in a
foreign country.” 28 U.S.C. § 2680(k). The Supreme Court has interpreted the “straightforward
language of the foreign country exception” to mean that it “bars all claims based on any injury
-21-
suffered in a foreign country, regardless of where the tortious act or omission occurred.” Sosa v.
Alvarez-Machain, 542 U.S. 692, 701, 712 (2004) (emphasis added).
This understanding of the foreign country exception is based on several considerations.
First is the language of the statute itself. Unlike other exceptions found in the FTCA, see 28
U.S.C. §§ 2680(a), (e), the foreign country exception does not use the phrase “act or omission.”
See Sosa, 542 U.S. at 711 n.9. Reading that phrase into the foreign country exception, so that a
claim would be barred only when the act or omission giving rise to the claim occurred in a
foreign country, thus would contradict the plain terms of the act. See id.
Second, the “common usage” of the phrase “arising in,” at the time of the FTCA’s
enactment, referred to the “jurisdiction in which injury was received.” Id. at 704-05 (internal
quotations and citation omitted); see id. at 711 (explaining that foreign country exception “was
written at a time when the phrase ‘arising in’ was used in state statutes to express the position
that a claim arises where the harm occurs”). There is thus “good reason . . . to conclude that
Congress understood a claim ‘arising in a foreign country’ to be a claim for injury or harm
occurring in a foreign country.” Id. at 704 (quoting 28 U.S.C. § 2680(k)).
Third, the “dominant principle in choice-of-law analysis for tort cases” when Congress
passed the FTCA was to apply “the law of the place where the injury occurred.” Id. at 705. But
because the “object” of the foreign country exception is “to avoid application of substantive
foreign law,” and because the place of harm or injury is “the fact that would trigger application of
foreign law to determine liability,” it is evident that Congress “used the modifier ‘arising in a
foreign country’ to refer to claims based on foreign harm or injury.” Id. at 707-08.
In this case, it appears Lyttle seeks damages against the United States based in large part
on harm that allegedly befell him during the four months he spent in Central America, after he
-22-
was removed from the United States. See FAC ¶¶ 96-111. Under the “straightforward language
of the foreign country exception,” Sosa, 542 U.S. at 701, however, Lyttle may not recover for
“any injury suffered in a foreign country.” Id. at 712. This is so even though the allegedly
tortious acts or omissions giving rise to Lyttle’s foreign injuries occurred within the United
States. Id. The Court therefore should find, at a minimum, that Lyttle’s FTCA claims are
jurisdictionally limited by the foreign country exception, to the extent they depend on harm or
injury Lyttle may have experienced while outside the United States. As a corollary, it further
should find that Lyttle’s damages (if any) under such claims must be based solely on injuries he
can prove occurred while in federal custody and inside the United States.
CONCLUSION
For the reasons stated above, the United States respectfully requests that the Court grant
its motion to dismiss and dismiss all of the claims against it in Lyttle’s amended complaint.
Respectfully submitted this 24th day of June 2011,
TONY WEST
Assistant Attorney General, Civil Division
C. SALVATORE D’ALESSIO, JR.
Acting Director, Torts Branch
/s/ James R. Whitman
JAMES R. WHITMAN
Trial Attorney
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel:
(202) 616-4169
Fax:
(202) 616-4314
E-mail:
james.whitman@usdoj.gov
D.C. Bar No. 987694
-23-
DAVID G. CUTLER
Trial Attorney
GEORGE E.B. HOLDING
United States Attorney
W. ELLIS BOYLE
Assistant United States Attorney
Civil Division
U.S. Attorney’s Office
Eastern District of North Carolina
310 New Bern Avenue
Suite 800 Federal Building
Raleigh, NC 27601-1461
Tel:
(9l9) 856-4530
Fax:
(919) 856-4821
E-mail:
ellis.boyle@usdoj.gov
N.C. Bar No. 33826
Attorneys for the United States
-24-
CERTIFICATE OF SERVICE
I certify under penalty of perjury that on June 24, 2011, I electronically filed the foregoing
“Motion to Dismiss” using the Court’s CM/ECF system, which will send notification of such
filing to the following counsel of record:
COUNSEL FOR PLAINTIFF:
Jeremy L. McKinney
jeremy@mckinneyandjustice.com
Ann Marie Dooley
annmarie@mckinneyandjustice.com
Michael E. Johnson
michael.johnson@troutmansanders.com
Brian P. Watt
brian.watt@troutmansanders.com
Alexandria J. Reyes
alex.reyes@troutmansanders.com
Katherine L. Parker
acluncklp@nc.rr.com
Judy Rabinovitz
jrabinovitz@aclu.org
COUNSEL FOR DEFENDANT NORTH CAROLINA DEPARTMENT OF CORRECTION:
Joseph Finarelli
jfinarelli@ncdoj.gov
/s/ James R. Whitman
JAMES R. WHITMAN
Trial Attorney
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel:
(202) 616-4169
Fax:
(202) 616-4314
E-mail:
james.whitman@usdoj.gov
D.C. Bar No. 987694
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