LYTTLE v. The UNITED STATES OF AMERICA et al

Filing 48

MOTION to Dismiss by Dean Caputo, Dashanta Faucette, Robert Kendall. (Attachments: # 1 Exhibit) (Cutler, David)

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,
)
)
ICE DEFENDANTS’
Plaintiff,
)
MOTION TO DISMISS
)
v.
)
)
UNITED STATES OF AMERICA, et al., )
)
Fed. R. Civ. P. 12(b)(6)
Defendants.
)
____________________________________)
THE ICE DEFENDANTS’ MOTION TO DISMISS
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Dashanta Faucette, Dean Caputo,
and Robert Kendall (collectively referred to as the “ICE defendants”) move to dismiss Counts 13 in their entirety. In support of this motion, the ICE defendants rely upon the attached
memorandum of law and accompanying exhibits.

Respectfully submitted this 24th day of June 2011,
TONY WEST
Assistant Attorney General, Civil Division
C. SALVATORE D‟ALESSIO, JR.
Acting Director, Torts Branch
JAMES R. WHITMAN
Trial Attorney, Torts Branch
/s/ David G. Cutler
DAVID G. CUTLER
IL Bar No. 6303130
Trial Attorney
United States Department of Justice
Torts Branch, Civil Division

P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel: [phone]
Fax: [phone]
E-mail:[e-mail]

GEORGE E.B. HOLDING
United States Attorney
W. ELLIS BOYLE
Assistant United States Attorney
Civil Division
310 New Bern Avenue
Suite 800 Federal Building
Raleigh, N.C. 27601-1461
Tel: (9l9) 856-4530
Fax: [phone]
E-mail: [e-mail]
N.C. Bar No. 33826
Attorneys for Dashanta Faucette,
Dean Caputo, and Robert Kendall

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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,
)
ICE DEFENDANTS’
)
MOTION TO DISMISS
v.
)
)
UNITED STATES OF AMERICA, et al., )
)
Fed. R. Civ. P. 12(b)(6)
Defendants.
)
____________________________________)
MEMORANDUM IN SUPPORT OF THE ICE DEFENDANTS’ MOTION TO DISMISS
Plaintiff, Mark Daniel Lyttle, seeks to hold three individually-named Federal defendants,1
among others, personally liable for initiating removal proceedings against him despite being a
U.S. citizen. But as the non-conclusory allegations in the complaint reveal, Lyttle represented to
various defendants in this case – on at least two separate occasions – that he was not a citizen of
the United States. Instead, plaintiff indicated that he was a citizen of Mexico. Based on his own
claims of foreign citizenship, the ICE defendants reasonably concluded that Lyttle was an alien,
and thus acted reasonably when they commenced removal proceedings against him. Because
controlling precedent does not subject government officials to personal liability unless they
violate “clearly established” law, the ICE defendants are entitled to qualified immunity, and this
Court should dismiss Lyttle‟s constitutional tort claims.

1

Dashanta Faucette, Dean Caputo, and Robert Kendall (collectively referred to as the
“ICE defendants”) are sued solely in their individual capacity. First Amended Complaint
(“FAC”) ¶¶ 9-11.

Lyttle has filed two separate but related lawsuits regarding his detention and removal
from the United States, one in this Court and another in the Northern District of Georgia. In the
case before this Court, plaintiff has sued the United States, the ICE defendants, and two
employees of the North Carolina Department of Correction (“NCDOC”). This motion focuses
solely on the three constitutional tort claims for damages that plaintiff brings against the ICE
defendants under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).2 Those claims involve alleged violations of the Fifth Amendment‟s Due Process
Clause (Count 1) and the Equal Protection Clause (Count 2), and the Fourth Amendment (Count
3). See FAC ¶¶ 126-146.
As a threshold matter, there is no viable constitutional tort remedy in this case because
Congress has established an alternative, existing, and comprehensive statutory scheme to address
claims arising from immigration proceedings. But even if that was not the case, the ICE
defendants are nevertheless entitled to qualified immunity, because the actions they took in
reliance upon plaintiff‟s repeated claims of foreign citizenship were reasonable. In light of these
representations, plaintiff has not pled sufficient facts to state plausible violations of any clearly
established constitutional rights. Thus, the Court should dismiss Counts 1-3 in their entirety.
BACKGROUND3
On August 14, 2008, plaintiff was sentenced to a term of 100 days in the custody of the
NCDOC for violating the terms of his probation on an underlying conviction for criminal assault.

2

The United States has filed a separate motion to dismiss on this same date.

3

Unless otherwise noted, the facts recited infra are derived from the non-conclusory
allegations in the complaint, which are accepted here solely for the purpose of this motion.
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See FAC ¶ 27; Exh. A.4 A week later, on August 22, 2008, he was admitted to the Neuse
Correctional Institution (“Neuse”) to begin serving that sentence. Id. ¶ 28. During the criminal
booking process, state officials asked Lyttle a series of biographical questions, including one
about his birthplace. Id. ¶ 32. Although Lyttle now alleges that he said he was born in North
Carolina, id., Defendant Marilyn Stephenson, an Admissions Technician with NCDOC, noted on
plaintiff‟s intake form that his birth country was “Mexico” and that his citizenship was “alien,”
id. ¶ 33. Then, “as a direct and proximate result” of the information gathered during the intake
interview, NCDOC “notified” the Raleigh unit of U.S. Immigration and Customs Enforcement
(“ICE”), which subsequently investigated Lyttle‟s immigration status. Id. ¶ 36.
Lyttle was interviewed at Neuse on September 2, 2008, by Dashanta Faucette, an ICE
immigration enforcement agent and defendant in this action. Id. ¶ 39. Lyttle‟s statements to
Faucette were documented in a “Record of Sworn Statement in Affidavit Form” that Lyttle
signed. Id. ¶¶ 44-45; Exh. B.5 In this sworn statement, Lyttle affirmed that he was born in and
was a citizen of Mexico, that his correct name was Jose Thomas, and that he entered the United

4

A copy of the judgment of plaintiff‟s probation violation and sentencing order is
attached to this memorandum as Exhibit A. The Court may consider this document when ruling
on a motion to dismiss without converting it into one for summary judgment because it is a
public record. Philips v. Pitt County Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (noting
that when considering Rule 12(b)(6) motions, courts “may properly take judicial notice of
matters of public record”).
5

A copy of the sworn statement is also attached to this memorandum as Exhibit B. The
Court may consider this document when ruling on a motion to dismiss without converting it into
one for summary judgment because plaintiff refers to it in ¶¶ 41-45 of his FAC. Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the complaint in
its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice”); accord Cozzarelli v. Inspire
Pharmaceuticals Inc., 549 F.3d 618, 625 (4th Cir. 2008). Likewise, the Court may consider
Exhibits C-H, which are also attached to this motion, because plaintiff specifically refers to them
in the complaint. See FAC ¶¶ 46, 49-52, 70 (incorporating documents by reference).
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States without permission when he was three years old. FAC ¶¶ 41, 43; Exh. B. Faucette‟s
notes from the interview also make reference to “mental illness – bipolar.” Exh. C; FAC ¶ 46.
Over the next few days, ICE agents performed computer database searches on Lyttle‟s
criminal history. FAC ¶¶ 47-48. Lyttle alleges that these background checks revealed “evidence
of [his] citizenship.” Id. ¶ 51. Relying instead on Lyttle‟s sworn statement, however, on
September 5, 2008, ICE Supervisory and Detention and Deportation Officer Dean Caputo
(another defendant in this action) executed several legal documents to “commence” removal
proceedings against Lyttle. Id. ¶ 50. One of those documents, a “Notice of Intent to Issue Final
Administrative Removal Order” (the “Notice of Intent”), initiated expedited removal
proceedings under section 238(b) of the Immigration and Nationality Act (the “INA”), 8 U.S.C.
§ 1228. Id.; Exh. D. According to the Notice of Intent, Lyttle was “a native of Mexico and a
citizen of Mexico” who was removable based on his criminal record. FAC. ¶ 50; Exh. D. In
addition to this charging document, Caputo issued a “Warrant for Arrest of Alien” (the “Arrest
Warrant”) and a “Notice of Custody Determination” (the “Notice of Custody”). FAC ¶¶ 49, 51;
Exhs. E, F. Also on September 5, ICE Immigration Enforcement Agent Robert Kendall (another
defendant in this case) issued an “Immigration Detainer.” FAC ¶ 52; Exh. G. The first three of
these documents were served on Lyttle personally on September 8, 2008. FAC ¶¶ 53-55; Exhs.
D, E, F. Lyttle also signed his name to the “Notice of Intent” and “Notice of Custody;” by doing
so, he confirmed the representations he had made to Agent Faucette of being a Mexican citizen
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, F. The immigration
detainer notified NCDOC that Lyttle was to be transferred to ICE custody upon completion of
his criminal sentence. See FAC ¶ 52; Exh. G.

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That occurred approximately six weeks later, as Lyttle was scheduled to be released from
NCDOC custody on October 26, 2008. FAC ¶ 63. Two days after that, 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 Stewart,
ICE Deportation Officer David Collado (who is not a defendant in this case) took another sworn
statement from Lyttle, who this time indicated that he was a U.S. citizen. Id. ¶ 65. Collado thus
“reclassified” plaintiff‟s case “from an administrative removal to Notice to Appear” (“NTA”),
meaning that Lyttle‟s immigration status would be decided by an immigration judge. Id. ¶ 68.
On December 9, 2008, an immigration judge heard plaintiff‟s case and issued an order of
removal. Id. ¶¶ 82-83. Lyttle was then transported across the Mexican border on December 18,
2008, and spent the next four months in Central America. See id. ¶¶ 95-111.
On April 22, 2009, Lyttle returned to the United States on a plane bound for Nashville,
Tennessee, which stopped first in Atlanta, Georgia. See id. ¶¶ 112-13. While passing through
customs in Atlanta, Lyttle was detained as an illegal alien based on his prior immigration
proceedings. See id. ¶ 113. Nevertheless, he was released two days later on April 24, 2009. Id.
¶ 122. Then, on April 28, 2009, the Department of Homeland Security (“DHS”) filed a motion
with the immigration court to terminate removal proceedings against Lyttle. Id. ¶ 123; FAC
Exh. C.6 In ultimately determining that plaintiff was a U.S. Citizen, DHS identified the source of
the confusion: Lyttle had been “ordered removed from the United States based on his
representation to [the immigration court . . . ] and to immigration officials that he was a Mexican
citizen who had illegally entered the United States without inspection or parole.” FAC Exh. C.
6

A copy of a document attached to a pleading “is a part of the pleading for all purposes,”
Fed. R. Civ. P. 10(c), including a motion to dismiss. See Fayetteville Investors v. Commercial
Builders, Inc., 936 F.2d 1426, 1465 (4th Cir. 1991).
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DISCUSSION
I.

THERE IS NO BIVENS REMEDY FOR A TORT RELATED TO THE GOVERNMENT’S
IMMIGRATION ACTIONS
As a threshold matter, this Court should decline to infer a Bivens remedy in this case. In

Bivens, the Supreme Court took the extraordinary step, absent congressional authorization, of
creating a private cause of action for money damages under the Constitution. 403 U.S. at 39598. But since that decision, the Court has “in most instances . . . found a Bivens remedy unjustified,” Wilkie v. Robbins, 551 U.S. 537, 550 (2007), and “consistently refused to extend Bivens
liability to any new context or new category of defendants,” Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 68 (2001); accord Judicial Watch, Inc. v. Rossotti, 317 F.3d 401, 409 (4th Cir. 2004)
(“In the more than thirty years since Bivens, the Court has been very hesitant to imply other
private actions for money damages.”); Holly v. Scott, 434 F.3d 287, 289 (4th Cir. 2006)
(collecting cases). Because a Bivens remedy is “not an automatic entitlement,” but instead “a
subject of judgment” by courts, judges must refrain from inferring a Bivens cause of action when
there either is an (1) “alternative, existing process for protecting” the constitutional interests at
issue, or when there are (2) “„special factors counselling [sic] hesitation‟” against a judicially
created remedy. Wilkie, 551 U.S. at 550 (quoting Bush v. Lucas, 462 U.S. 367, 378 (1983));
accord Holly, 434 F.3d at 290. Here, the INA provided an alternative, existing, and exclusive
process to vindicate Lyttle‟s constitutional interests. Moreover, the political branches‟ plenary
power over immigration is an additional “special factor” counseling against a Bivens remedy.
A. The INA’s Comprehensive Scheme Precludes A Bivens Remedy
The existence of a deliberately crafted statutory scheme precludes a Bivens remedy
because it demonstrates that Congress did not intend to allow a separate private right of action
for damages. Schweiker v. Chilicky, 487 U.S. 412, 421-25 (1988). A key consideration is
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whether recognizing a Bivens cause of action would implicate “policy questions in an area that
ha[s] received careful attention from Congress.” Id. at 423. Indeed, “the Court‟s refusal to
extend Bivens has been especially apparent in cases involving complex statutory schemes in
which Congress has considered and created meaningful avenues for redress.” Rossotti, 317 F.3d
at 409 (refusing to imply a Bivens remedy against IRS employees since the Internal Revenue
Code provided a comprehensive remedial scheme). For example, in Bush v. Lucas, the Supreme
Court declined to infer a Bivens remedy involving federal personnel disputes “[b]ecause such
claims arise out of an employment relationship that is governed by comprehensive procedural
and substantive provisions giving meaningful remedies.” 462 U.S. at 368.
Furthermore, a Bivens remedy should not be created even when the comprehensive
framework established by Congress “fail[s] to provide for „complete relief.‟” Schweiker, 487
U.S. at 425. To be sure, “[t]he question is not what remedy the court should provide for a wrong
that would otherwise go unredressed.” Bush, 462 U.S. at 388; accord Rossotti, 317 F.3d at 411
(Congress‟s decision “not to create certain remedies as part of the complex statutory scheme”
lends “little support” to the extension of a Bivens remedy). Rather, the question “is whether an
elaborate remedial system that has been constructed step by step, with careful attention to
conflicting policy considerations, should be augmented by the creation of a new judicial
remedy.” Bush, 462 U.S. at 388; see also, e.g., Schweiker, 487 U.S. at 429 (declining to infer a
Bivens remedy because, despite the shortcomings of the statutory remedy under the Social
Security Disability Act, Congress “is the body charged with making the inevitable compromises
required in the design of a massive and complex welfare benefits program”). In other words, the
critical inquiry is whether “the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations.” Chilicky,

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487 U.S. at 423 (emphasis added). The Fourth Circuit has thus recognized that the remedy that
Congress establishes need not be “perfect.” Rossotti, 317 F.3d at 413; see also Zimbelman v.
Savage, 228 F.3d 367, 371 (4th Cir. 2000) (observing that the Supreme Court has “refused to
allow a Bivens action in cases where it agreed that the remedies made available by Congress
were not complete and that some hardships would go uncompensated”). Because Congress is
“so well-suited” to determine the types of remedies that should be available, “neither the absence
nor the incompleteness of such a scheme represents an invitation for a court to step in and correct
what it may perceive as an injustice toward an individual litigant.” Holly, 434 F.3d at 290.
In this case, Lyttle‟s detention and subsequent removal proceedings were governed by
such a scheme: the INA. The Supreme Court has characterized the INA as “the comprehensive
federal statutory scheme for regulation of immigration and naturalization.” DeCanas v. Bica,
424 U.S. 351, 353 (1976). For example, the INA provides that certain classes of criminal aliens
must be arrested and detained pending a decision on whether the alien is to be removed. See 8
U.S.C. § 1226(c). It includes detailed provisions governing removal proceedings before an
immigration judge, and sets forth numerous procedural safeguards for those proceedings. See,
e.g., 8 U.S.C. § 1229a. The INA also provides specific procedures for detention as well as
requirements for relief from detention. See, e.g., 8 U.S.C. §§ 1225, 1226, 1231.
Most pertinent to this case, the INA allows individuals to raise constitutional challenges
in their removal proceedings and on a petition for review in a court of appeals. See 8 U.S.C. §§
1252(a)(2)(D), 1252(b)(9). And it specifically allows suspected aliens claiming to be U.S.
citizens to seek review of that determination in the appellate courts as well. See 8 U.S.C. §
1252(b)(5). But Congress has strictly limited judicial review of immigration decisions, including
claims to U.S. citizenship, beyond those expressly allowed in the INA. See 8 U.S.C. §§

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1252(b)(9), 1252(g), 1252(a)(2)(B)(ii), 1252(b)(5)(C). Indeed, the INA provides that a petition
filed in the appropriate court of appeals is the “sole and exclusive” means for judicial review of
constitutional claims arising from immigration enforcement operations. 8 U.S.C. §§
1252(a)(2)(D) & (a)(5); see also Nken v. Holder,129 S. Ct. 1749, 1755 (2009) (explaining that
amendments to the INA have “limited the availability of judicial review and streamlined all
challenges to a removal order into a single proceeding: the petition for review”). Thus, apart
from the channels of review specified by Congress, the Court has recognized that “the theme of
the legislation” was expressly “aimed at protecting the Executive‟s discretion from the courts.”
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 486 (1999) (“AADC”).
Congress‟s decision to limit judicial review was no accident. It was designed to
streamline decision-making in the immigration field, which in turn promotes the congressional
goal of efficiency in removal proceedings. See Kucana v. Holder, 130 S. Ct. 827, 838 (2010)
(explaining that amendments to the INA were designed to “expedite” removal proceedings);
AADC, 525 U.S. at 486-87 (explaining that Congress limited judicial review of decisions to
commence and adjudicate removal proceedings because it was concerned with the
“deconstruction, fragmentation, and hence prolongation of removal proceedings”). Simply put,
multitudinous judicial review of immigration-related claims could lead to both contradictory
rulings and delay that would upend the carefully crafted congressional scheme. But that‟s what
Lyttle essentially seeks to do – to make this Court a de facto court of review over alleged
constitutional violations arising out of his immigration proceedings, despite Congress‟s decision
that district courts have no role to play in such proceedings. Rather, Lyttle should have raised
his constitutional claims in the immigration courts or in a petition to the court of appeals
(irrespective of any entitlement to damages). See, e.g., Schweiker, 487 U.S. at 425 (statutory

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scheme need not provide for “complete relief”); Zimbelman, 228 F.3d at 371 (recognizing that
courts may decline Bivens relief even though “some hardships would go uncompensated”).
Accordingly, the Court should dismiss all of plaintiff‟s Bivens claims (Counts 1-3) because he
had an adequate remedy under the INA.
B. The Political Branches’ Plenary Power Over Immigration Precludes A Bivens
Remedy
In addition to the presence of the INA as a comprehensive statutory framework, “„courts
must make the kind of remedial determination that is appropriate for a common-law tribunal,
paying particular heed, however, to any special factors counselling [sic] hesitation before
authorizing a new kind of federal litigation.‟” Wilkie, 551 U.S. at 550 (quoting Bush, 462 U.S. at
378); accord Holly, 434 F.3d at 290. One such factor that precludes the creation of a Bivens
remedy is when Congress has plenary power over the subject matter for which a Bivens remedy
is sought. See, e.g., Chappell v. Wallace, 462 U.S. 296, 298-99 (1983) (Congress‟s plenary
power over military matters counseled against implying a Bivens remedy).
That factor applies here because the Supreme Court “has repeatedly emphasized that over
no conceivable subject is the legislative power of Congress more complete than it is over the
admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (internal quotations and citations
omitted). By way of analogy, “[t]he reasons that preclude judicial review of political questions
also dictate a narrow standard of review of decisions made by the Congress or the President in
the area of immigration and naturalization.” Mathews v. Diaz, 426 U.S. 67, 81-82, (1976)). The
Fourth Circuit therefore recognizes that “judicial review over federal immigration legislation has
always been limited.” Appiah v. INS, 202 F.3d 704, 710 (4th Cir. 2000) (citing Fiallo v. Bell,
430 U.S. 787, 792 (1977)). To be sure, the power to remove suspected aliens is a “„fundamental
sovereign attribute exercised by the Government‟s political departments largely immune from
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judicial control.‟” Id. (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)). Because
Congress has plenary power over immigration matters and the Executive Branch is charged with
implementing the nation‟s immigration laws, federal courts generally afford the political
branches substantial deference in this area. See INS v Aguirre-Aguirre, 526 U.S. 415, 425 (1999)
(deference is “especially appropriate” because “officials „exercise especially sensitive political
functions that implicate questions of foreign relations‟”) (quoting INS v. Abudu, 485 U.S. 94, 110
(1988)). In light of Congress‟s plenary control over immigration issues, the Court should “stay
its Bivens hand” in cases like this and dismiss Counts 1-3. Wilkie, 551 U.S. at 554.
II.

THE ICE DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY BECAUSE
PLAINTIFF FAILS TO PLEAD A VIOLATION OF HIS CONSTITUTIONAL RIGHTS
Even if Lyttle has a potential Bivens remedy, the ICE defendants are nevertheless entitled

to qualified immunity. Government officials are generally immune from civil liability so long as
“their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
need for such immunity arises because personal liability lawsuits against government officials
exact “substantial social costs,” Anderson v. Creighton, 483 U.S. 635, 638 (1987), including “the
expenses of litigation, the diversion of official energy from pressing public issues, and the
deterrence of able citizens from acceptance of public office.” Harlow, 457 U.S. at 814.
Qualified immunity, therefore, is intended to minimize these significant costs by creating
“„ample room for mistaken judgments‟” and shielding “„all but the plainly incompetent or those
who knowingly violate the law.‟” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam)
(quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)); accord Short v. Smoot, 436 F. 3d 422, 426
(4th Cir. 2006) (explaining that qualified immunity protects officials from “„bad guesses in gray
areas‟ and ensures that they are liable only „for transgressing bright lines‟”) (quoting Maciariello
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v. Sumner, 973 F. 2d 295, 298 (4th Cir. 1992)). Because it is “an immunity from suit rather than
a mere defense to liability,” the Supreme Court “repeatedly ha[s] stressed” that qualified
immunity should be raised and resolved “at the earliest possible stage of litigation.” Pearson v.
Callahan, 129 S. Ct. 808, 815 (2009) (internal quotations and citations omitted).
The Fourth Circuit applies qualified immunity on behalf of federal officials “either if the
facts do not make out a violation of a constitutional right or if the right was not clearly
established.” Snider v. Lee, 584 F.3d 193, 198 (4th Cir. 2009), cert. denied, 130 S. Ct. 2073
(2010). Liability may be imposed only if “„a reasonable officer would know that the specific
conduct at issue was impermissible.‟” Owens ex rel. Owens v. Lott, 372 F.3d 267, 273 (4th Cir.
2004) (quoting Rogers v. Pendleton, 249 F.3d 279, 285 (4th Cir. 2001)). The purported
constitutional right must be defined “„at a high level of particularity‟” and is “„clearly
established‟” only if it has been “specifically adjudicated” or it is “manifestly apparent from
broader applications of the constitutional premise in question.” Id. at 279 (quoting Edwards v.
City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999)). Simply put, “the contours of the right
must have been so conclusively drawn as to leave no doubt that the challenged action was
unconstitutional.” Edwards, 178 F.3d at 251 (internal quotation marks omitted).
To overcome qualified immunity at the pleading stage, a plaintiff must therefore provide
“sufficient factual matter, accepted as true, to „state a claim to relief that is plausible on its
face.‟” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)); accord Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)
(adopting Iqbal‟s pleading standards and explaining that “plaintiffs may proceed into the
litigation process only when their complaints are justified by both law and fact”). Thus, a
complaint “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

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Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555). First, courts determine which
allegations are entitled to the presumption of truth. Id. Claims that simply provide “labels and
conclusions” or other “naked assertion[s] devoid of further factual enhancement” are not
adequate. Id. (internal quotations and citations omitted). Likewise, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.;
Barcliff v. North Carolina League of Municipalities, No. 5:10-cv-244-D, 2011 WL 285559, at *1
(E.D.N.C. Jan. 25, 2011) (Dever, III, J.) (“a court need not accept a complaint‟s legal
conclusions drawn from the facts”).
After stripping the complaint of its bare allegations, courts then consider whether the
remaining non-conclusory allegations, taken as true, give rise to a “plausible” claim. Iqbal, 129
S. Ct. at 1949. This requires a plaintiff to allege “factual content” demonstrating “more than a
sheer possibility” of unconstitutional conduct and is satisfied only when the complaint includes
more than “facts that are merely consistent with a defendant‟s liability . . . .” Id. (internal
quotations and citations omitted). “But where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged – but it has not
„show[n]‟ – „that the pleader is entitled to relief.‟” Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
As discussed below, Lyttle‟s complaint is devoid of factual allegations stating a cause of
action based on either the Fourth or Fifth Amendments. It is instead replete with legal and
conclusory statements, formulaic restatements of the elements of the causes of action, and broad,
unspecific allegations that do not show a plausible claim for relief. After stripping the complaint
of these “labels and conclusions,” what remains are allegations showing that the ICE defendants
reasonably concluded that Lyttle was a removable criminal alien. In light of plaintiff‟s failure to

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aver sufficient facts to support the violation of any clearly established constitutional right, the
ICE defendants are entitled to qualified immunity. Iqbal, 129 S. Ct. at 1945-47.
A. Lyttle Has Not Stated A Clearly Established Violation Of His Fourth
Amendment Rights (Count 3)
Lyttle alleges that the ICE defendants violated his Fourth Amendment rights when they
caused his detention to be “continued well beyond the scheduled release date of October 26,
2008,” even though he had already completed his underlying criminal sentence for assault. FAC
¶ 141. But there was nothing “unlawful and unconstitutional” (to borrow plaintiff‟s conclusory
language) about extending Lyttle‟s detention. Id. Instead, it is undisputed that ICE, as the
enforcement branch of DHS, has the legal authority to charge, arrest, and detain certain classes
of criminal aliens for the duration of removal proceedings. See 8 U.S.C. §§ 1226(c), 1228; 8
C.F.R. § 1238.1. The ICE defendants in this case exercised that authority when they issued the
Notice of Intent (among other legal documents, including the Arrest Warrant), thereby charging
Lyttle as a removable criminal alien. FAC ¶¶ 49-52. Once they commenced removal
proceedings against Lyttle under section 238(b) of the INA, 8 U.S.C. § 1228, see FAC ¶ 50, ICE
was expected – pursuant to statute – to take custody of him following the completion of his
criminal sentence, 8 U.S.C. § 1226(c); Demore v. Kim, 538 U.S. 510, 517-18 (2003) (explaining
that § 1226(c) “mandates detention during removal proceedings” for certain classes of criminal
aliens) (emphasis added).
Because the ICE defendants charged Lyttle as a criminal alien and extended his detention
pursuant to valid legal process, what Lyttle‟s Fourth Amendment claim apparently amounts to –
if anything at all – is an alleged constitutional violation premised upon the malicious use of legal
process. See Albright v. Oliver, 510 U.S. 266, 274 (1994) (plurality opinion) (explaining that a
constitutional claim of malicious prosecution, if it even exists, must be grounded in the Fourth
-14-

Amendment). To be clear, a constitutional tort remedy for malicious prosecution “remedies
detention accompanied, not by the absence of legal process, but by wrongful institution of legal
process.” 7 Wallace v. Kato, 549 U.S. 384, 390 (2007) (citing W. Keeton, et al., Prosser and
Keeton on Law of Torts 54, 885-86 (5th ed.1984)). As the Fourth Circuit has cautioned,
however, it “is not entirely clear” whether a malicious use of process claim even exists as a
freestanding constitutional claim. Snider, 584 F.3d at 199; Lambert v. Williams, 223 F.3d 257,
261 (4th Cir. 2000) (noting that the Supreme Court has expressed a “fairly strong sentiment
against constitutionalizing malicious prosecution”) (internal quotations and citations omitted).
Because the Fourth Circuit has not established a cognizable Bivens cause of action for malicious
prosecution, Count 3 should be dismissed in its entirety.
Even if malicious prosecution were available under the Fourth Amendment, Lyttle would
nevertheless be required to allege elements of the common law tort claim, including that the ICE
defendants lacked probable cause when they initiated removal proceedings against him. See
Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005) (a constitutional malicious process claim
requires the defendant to have “seized [plaintiff] pursuant to legal process that was not supported
by probable cause . . . .”) (internal quotations and citations omitted); see also Hartman v. Moore,
547 U.S. 250, 266 (2006) (absence of probable cause must be “pleaded and proven” to support
retaliatory prosecution claims under Bivens).8 And because qualified immunity “gives ample
room for mistaken judgments,” Malley, 475 U.S at 341, Lyttle must go one step further to show
7

On the other hand, a constitutional tort claim alleging “detention without legal process”
is based on a theory of false imprisonment. Wallace, 549 U.S. at 389. But a false imprisonment
claim “ends once the [plaintiff] becomes held pursuant to such process-when, for example, he is
bound over by a magistrate or arraigned on charges.” Id. at 391.
8

Probable cause exists “when the facts and circumstances within the officer‟s knowledge
. . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing, or is about to commit an
offense.” Burrell, 395 F.3d at 514 (internal quotations and citations omitted).
-15-

that there was an unquestionable absence of probable cause when the ICE defendants charged
him as a removable criminal alien. See Hunter v. Bryant, 502 U.S. 224, 226 (1991) (“Even law
enforcement officials who „reasonably but mistakenly conclude that probable cause is present‟
are entitled to immunity.”) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)); accord
Smith v. Reddy, 101 F.3d 351, 356 (4th Cir. 1996) (“[A]n officer is not denied qualified
immunity for making a mistake, as long as that mistake is reasonable under the circumstances.”)
Lyttle‟s pleadings do just the opposite; after stripping the complaint of its bare legal conclusions,
what remains are non-conclusory factual allegations showing that the ICE defendants had
probable cause to initiate removal proceedings against Lyttle.
1. North Carolina Officials Determined That Lyttle Was A Citizen Of Mexico
The ICE defendants did not make the original determination that Lyttle was an alien.
Rather, NCDOC employees were the first agents to question plaintiff during the criminal
booking process and identify him as a foreign citizen. FAC ¶¶ 30-37. In fact, based on Lyttle‟s
responses to “a series of biographical questions,” North Carolina Defendant Stephenson
specifically noted on plaintiff‟s “intake form” that Lyttle was an “[a]lien” who was born in
“Mexico.” Id. ¶¶ 32-33. Only at that point did NCDOC “notif[y]” ICE of its determination that
Lyttle was an alien. Id. ¶ 36. Because ICE may establish alienage based on “routine booking
information” gathered by local law-enforcement officials, Puc-Ruiz v. Holder, 629 F.3d 771, 781
(8th Cir. 2010), the ICE defendants could have established Lyttle‟s foreign citizenship based
solely on the facts first provided by NCDOC.
2. Lyttle Told Faucette That He Was Not A United States Citizen
Not only did NCDOC employees identify Lyttle as a possible alien and notify ICE of that
finding, but Lyttle then admitted – in a sworn statement taken during an interview with ICE

-16-

Agent Faucette – that he was in fact a citizen of Mexico. See Exh. B. This admission, standing
alone, established the probable cause the ICE defendants needed to charge plaintiff as a
removable alien and detain him pending removal proceedings. Indeed, the Supreme Court has
recognized that “an admission of illegal alienage or other strong evidence” may justify an arrest.
INS v. Lopez-Mendoza, 468 U.S. 1042, 1045 (1984). To be sure, recorded confessions of foreign
citizenship are “inherently trustworthy and reliable to prove alienage or deportability.” Matter of
Ponce-Hernandez, 22 I&N Dec. 784, 785 (BIA 1999) (citing Matter of Barcenas, 19 I&N Dec.
609, 611 (BIA 1988)); see also In re Luz Lemus-Cruz, File: A98 950 012, 2008 WL 2783025
(BIA June 25, 2008) (“[I]t has long been established that an admission . . . of birth abroad is
sufficient to establish a presumption of alienage . . . .”) (citing Murphy v. INS, 54 F.3d 605, 609
(9th Cir. 1995)); Sint v. INS, 500 F.2d. 120, 122 (1st Cir. 1974) (admissions of foreign
citizenship are “persuasive evidence of alienage”); United States v. Galindo-Gallegos, 244 F.3d
728, 732 (9th Cir. 2001) (explaining that a U.S. citizen’s repeated admissions of alienage could
be relied on to establish that he was an alien even though he was known to be a “proven liar”);
United States v. Sotelo, 109 F.3d 1446, 1449 (9th Cir. 1997) (admissions of Mexican citizenship
to immigration officials during arrest provided evidence of alienage); United States v. LopezGuerrero, No. EP-00-CR-1498-DB, 2000 WL 33348233 (W.D. Tex. Nov. 30, 2000) (finding
that a Border Patrol agent “clearly had probable cause to arrest Defendant based on his
admission at that time that he is a Mexican citizen . . . .”). In light of the information provided in
his own sworn statement, it is fair to say that Lyttle himself was “the author of the indictment”
that led to his extended detention pending removal proceedings. Rawls v. Bennett, 19 S.E.2d
126, 128 (N.C. 1942) (holding that confession established probable cause and barred a malicious
prosecution claim).

-17-

Although Lyttle attempts to minimize the impact of his own admission by now alleging
that the sworn statement (which Faucette recorded by hand) was “erroneous[]” and that it
“assumed” incorrect information about his identify and citizenship, FAC ¶¶ 41, 43, 45, such bare
assertions are contradicted by what plaintiff in fact told her.9 After stripping the complaint of
these labels and adjectives, what remains are the raw facts that Faucette recorded from plaintiff‟s
answers to the biographical questions she asked him – i.e., that plaintiff was a Mexican citizen,
also known as Jose Thomas, who entered the United States, without permission, when he was
three years old. Id. ¶¶ 41, 43; Exh. B.
To be clear, Lyttle‟s vague allegations that the sworn statement was “erroneous” and
“assumed” incorrect information are not entitled to the presumption of truth. Indeed, there are
no factual allegations whatsoever that Faucette (or any ICE defendant) physically harmed,
pressured, or threatened Lyttle to sign – and thus approve – the admissions that she documented
in the sworn statement. Cf. Colorado v. Connelly, 479 U.S. 157, 164 n.1 (1986) (collecting cases
that describe coercive tactics used to extract involuntary confessions). Although Lyttle also
implies that Faucette did something wrong when she “failed and refused to have a witness
present” during his interview, FAC ¶ 44, the statement specifically states that the person signing
the form was “willing to make a statement without anyone else being present.”10 Exh. B.
9

This is not to say that plaintiff was actually a citizen of Mexico. But the suggestion that
the sworn statement itself was erroneously recorded lacks any factual support.
10

Plaintiff similarly alleges that he was not “offered an opportunity to review the
contents of the entries” recorded by Faucette on the sworn statement. FAC ¶ 45. But the sworn
statement specifically states, directly above the signature block, that Lyttle has “read (or ha[s]
had read to me) the foregoing statement” and “affirm[s] that the answers attributed to me herein
are true and correct to the best of my knowledge and belief . . . .” Exh. B. In any event, such
allegations would still not show that Faucette coerced Lyttle to sign and approve the contents of
the sworn statement by means of physical force or verbal threats. And if all Lyttle can muster
here is that Faucette allegedly departed from typical ICE procedures, the Supreme Court is clear
that an official remains immune from suit even if her conduct violated other non-constitutional
-18-

Rather than leaping to the factually unsupported and implausible inference that Faucette
doctored Lyttle‟s sworn statement in a deliberate effort to further detain and deport an individual
that she knew to be a U.S. citizen – as Lyttle suggests with his conclusory pleadings – the
“„obvious alternative explanation‟” for Faucette‟s conduct is that she merely documented, word
for word, what plaintiff told her about his identity and citizenship.11 Iqbal, 129 S. Ct. at 1951
(quoting Twombly, 550 U.S. at 567). And while Lyttle seems to suggest that Faucette should
have discredited his inculpatory answers because he was apparently “cognitively impaired,” FAC
¶ 40, the non-conclusory allegations only show her knowledge of plaintiff‟s alleged bipolar
mood disorder – nothing more. Id. ¶ 46; Exh. C. In fact, Faucette‟s handwritten notes from
September 2, 2008, (taken the same day as his sworn statement) document his alleged “bipolar”
condition alone, but do not refer to any additional cognitive deficiency or related inability to
read, reason, or comprehend. See id. To be sure, the fact that Lyttle proclaimed to be bipolar, by
itself, did not mean that he could not understand and intelligently respond to the basic questions
that Faucette asked him regarding his name, place of birth, and country of citizenship. See Vol.
3, Lawyers’ Medical Cyclopedia, § 17.16[C] (Matthew Bender 2011) (“The mere existence of
mental disorder or a psychiatric diagnosis in any patient gives little clue to the degree of mental
impairment . . . .”); Brown v. Harris, 240 F.3d 383, 387 (4th Cir. 2001) (referencing medical
opinion that “people suffering from bipolar disorder can be sane and competent”). Without
further knowledge of mental impairment, Faucette would have no reason to doubt Lyttle‟s sworn
admission of foreign citizenship when formulating the probable cause to charge plaintiff as a
standards such as internal guidelines, ethical principles, or regulations. See Davis v. Scherer,
468 U.S. 183, 194-196 & n.12 (1984).
11

We can only speculate as to why Lyttle misrepresented his citizenship. At any rate, the
qualified immunity analysis turns not on plaintiff‟s motive, but instead on the reasonableness of
the ICE defendants‟ actions in light of the information that was then available.
-19-

removable alien. It is no surprise, therefore, that the “obvious” explanation for Faucette‟s
actions (e.g., that she simply recorded plaintiff‟s testimony with the reasonable belief that it was
true) is exactly what DHS concluded was the cause of plaintiff‟s removal: that Lyttle was
“ordered removed from the United States based on his representation to [the immigration court .
. . ] and to immigration officials that he was a Mexican citizen who had illegally entered the
United States without inspection or parole.” See FAC Exh. C (emphasis added).
3. Lyttle Admitted The Charges In The Notice Of Intent
Not only did Lyttle‟s sworn statement (which directly corroborated the information first
gathered by NCDOC) provide the ICE defendants with probable cause to initiate removal
proceedings against him,12 plaintiff confessed to being a citizen of Mexico yet again when he
signed the Notice of Intent, thereby “waiving his legal rights to a removal hearing before an
immigration judge” and “agree[ing] to be voluntarily deported to Mexico.” FAC ¶ 54. Although
Lyttle claims that he was “coerced and manipulated” into signing the Notice of Intent, thus
admitting the charges contained therein, id., these labels and conclusions are again not afforded
the assumption of truth, see Monroe v. City of Charlottesville, VA, 579 F.3d 380, 387 (4th Cir.
2009), cert denied, 130 S. Ct. 1740 (2010) (allegations that plaintiff was “coerced” were merely
“legal conclusions” and therefore “insufficient” under the Twombly pleading standard). As with
his prior sworn statement to Faucette, the most Lyttle provides to support this otherwise baseless
claim of “coercion” is when he alleges that ICE officials ignored “medical and criminal records
show[ing] that [plaintiff] was unable to execute a knowing, voluntary, and intelligent waiver of
his legal rights.” FAC ¶ 93. But plaintiff, tellingly, does not specify even one medical or
12

In fact, evidence of alienage uncovered “during the booking process . . . tends to
bolster the reliability” of an admission of foreign citizenship that is subsequently made to federal
agents. United States v. Hernandez, 105 F.3d 1330, 1332 (9th Cir. 1997).
-20-

criminal record to substantiate this claim. See id. That is because an actual examination of
Lyttle‟s prior criminal records reveals the exact opposite.
As a matter of background, the Supreme Court has made clear that a criminal defendant
may not stand trial or plead guilty “unless he does so „competently and intelligently.‟” Godinez
v. Moran, 509 U.S. 389, 396 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 468 (1938)).
Thus, a defendant must possess both a “„reasonable degree of rational understanding‟” and “„a
rational as well as factual understanding of the proceedings against him.‟” Id. (quoting Dusky v.
United States, 362 U.S. 402 (1960)); accord Simpson v. Polk, 129 F. App‟x. 782, 794 (4th Cir.
2005). Indeed, trial courts in North Carolina have “a constitutional duty to institute, sua sponte,
a competency hearing if there is substantial evidence before the court indicating that the accused
may be mentally incompetent.” State v. Heptinstall, 306 S.E.2d 109, 112 (N.C. 1983) (internal
quotations and citations omitted); accord State v. Staten, 616 S.E.2d 650, 654-55 (N.C. Ct. App.
2005). Pursuant to statute, moreover, a criminal defendant in North Carolina may not be “tried,
convicted, sentenced, or punished” if he is “unable to understand the nature and object of the
proceedings against him, to comprehend his own situation in reference to the proceedings, or to
assist in his defense in a rational or reasonable manner.” N.C. Gen. Stat. § 15A–1001(a).
In this case, plaintiff was convicted of assault on February 21, 2008, placed on probation,
and later sentenced on August 14, 2008, to spend 100 days at Neuse (following a violation of
that probation). FAC ¶ 27; Exh A. Therefore, the criminal courts in North Carolina necessarily
found Lyttle competent to undergo his criminal proceedings on at least two occasions – the day
of his conviction and the day of his sentencing. Equally telling, the sentencing judge specifically
decided not to recommend that Lyttle undergo “[p]sychiatric and/or psychological counseling.”
Exh. A. Because plaintiff was found competent by the trial court, he clearly had the “capacity to

-21-

comprehend his position, to understand the nature of the proceedings against him, to conduct his
defense in a rational manner and to cooperate with his counsel so that any available defense may
be interposed.” State v. Jackson, 273 S.E.2d 666, 669 (N.C. 1981).
Plaintiff‟s global allegation regarding the contents of his own criminal history
(unsupported by one single fact), see FAC ¶ 93, is thus betrayed by the actual record. If
anything, the ICE defendants‟ familiarity with that record would have only bolstered the veracity
of Lyttle‟s confessions of foreign citizenship – which, again, occurred on separate occasions
(September 2, 2008; September 8, 2008) just three weeks after his probation
revocation/sentencing hearing (August 14, 2008). Regardless of whether Lyttle actually has
been diagnosed with bipolar mood disorder, the complaint “does not show, or even intimate,”
Iqbal, 129 S. Ct. at 1952, how the ICE defendants would have known that Lyttle was allegedly
unable to “comprehend” the “consequences” of the immigration forms that he signed, thereby
agreeing to removal without a hearing, FAC ¶ 59.
On the non-conclusory facts that Lyttle himself alleges, the initiation of removal
proceedings against him was “more likely explained” by the ICE defendants reasonably
determining that probable cause existed in light of plaintiff‟s multiple admissions rather than by
some unconstitutional or malicious purpose. Iqbal, 129 S. Ct. at 1950 (citing Twombly, 550 U.S.
at 567). At the very least, the non-conclusory facts show that the ICE defendants could have
been “satisfied that there [wa]s sufficient evidence” to charge Lyttle as a removable criminal
alien. 8 C.F.R. § 1238.1(b) (providing the basis for issuing a Notice of Intent). That is,
NCDOC‟s original determination and Lyttle‟s signed sworn statement of Mexican citizenship
both demonstrate that the ICE defendants had probable cause – or at least arguable probable
cause – to extend plaintiff‟s detention pending removal proceedings. See, e.g., Smith, 101 F.3d

-22-

at 356 (the reasonableness of an officer‟s conduct, and thus his entitlement to qualified
immunity, “does not turn on whether probable cause was, in fact, present”).
On the other hand, plaintiff‟s version of the story requires the conclusion that several
NCDOC officials, a dozen ICE and customs officials located in North Carolina or Georgia, and
an immigration judge all deliberately ignored plaintiff‟s assertions of U.S. citizenship and
repeatedly coerced and manipulated him into admitting alienage even though they each
apparently knew he was a U.S. citizen with serious mental impairment. This is implausible on
its face. In any event, “[i]t is the conclusory nature” of Lyttle‟s allegations, “rather than their
extravagantly fanciful nature, that disentitles them to the presumption of truth.” Iqbal, 129 S. Ct.
at 1951. The ICE defendants are thus entitled to qualified immunity from Count 3.13
B. Plaintiff Fails To State A Clearly Established Equal Protection Claim (Count 2)
1. Lyttle Does Not Plead The Existence Of Discriminatory Policies
Lyttle also fails to sufficiently plead a Fifth Amendment equal protection claim. In Iqbal,
the Court rejected petitioner‟s conclusory assertions that Attorney General Ashcroft and FBI
Director Mueller “knew of, condoned, and willfully and maliciously agreed” to torture him “as a
matter of policy, solely on account of [his] religion, race, and/or national origin . . . .” Iqbal, 129
13

Plaintiff also alleges that unidentified ICE personnel performed background searches
that revealed indicia of his U.S. citizenship, see FAC ¶¶ 47-48, and that he “continued to tell” the
ICE defendants that he was born in North Carolina, FAC ¶ 60. This, of course, is contradicted
by the admissions in Lyttle‟s sworn statement and again by the Notice of Intent that he signed.
At any rate, inconsistent indications of U.S. citizenship would not negate the (arguable) probable
cause established by Lyttle‟s documented admissions to the ICE defendants, which in turn
corroborated the initial determination made by NCDOC officials that plaintiff was a possible
citizen of Mexico. See Gerstein v. Pugh, 420 U.S. 103, 121 (1975) (explaining that probable
cause “does not require the fine resolution of conflicting evidence that a reasonable-doubt or
even a preponderance standard demands, and credibility determinations are seldom crucial in
deciding whether the evidence supports a reasonable belief in guilt”); United States v. Fisher, 97
F.3d 1449, 1996 WL 558366, at *4 n.4 (4th Cir. 1996) (“[P]robable cause is not a finely tuned
standard comparable to the standard of proof by a preponderance of the evidence.”) (citing
Ornelas v. United States, 517 U.S. 690, 695 (1996)).
-23-

S. Ct. at 1951 (internal quotations and citations omitted). That was simply a “formulaic
recitation of the elements” of an equal protection claim – i.e., that defendants acted “because of,
not merely in spite of, its adverse effects upon an identifiable group.” Id. (internal quotations
and citations omitted). Likewise, Lyttle‟s global allegations here that the ICE defendants
“deliberately and unconstitutionally discriminated” against him “on the basis of his race and
ethnicity,” FAC ¶ 135, are strikingly similar to those “bald assertions” rejected in Iqbal, 129 S.
Ct. at 1951. As such, Lyttle merely recites the elements of a constitutional discrimination claim,
and such allegations are not entitled to the assumption of truth.
Furthermore, Lyttle provides vague allegations in the complaint‟s “Factual Background”
that are equally conclusory: Lyttle merely alleges that the ICE defendants acted “pursuant to
policies, patterns, practices or customs” to “detain, interrogate and deport [inmates] based on
their race or ethnicity.” FAC ¶ 87. These bare allegations, again, are a simple rewording of the
tort‟s elements, devoid of any specific factual allegations. Lyttle does not identify a single
specific practice, policy, or regulation that allegedly led the ICE defendants to discriminate
against Lyttle based on his perceived race or any other illegitimate factor. See id. ¶¶ 87-95.
Moreover, Lyttle has not provided any facts whatsoever to establish the so-called “pattern,
custom, and habit” of the ICE defendants “to presume foreign citizenship of inmates based on
their race, ethnicity, appearance and/or surname.” Id. ¶ 88.
To the contrary, the only specific policies that plaintiff actually points to in the complaint
– those in the “Hayes Memo” and the “Morton Memo” – were enacted after the purported events
in North Carolina, and these alleged memoranda ironically provide safeguards against
discriminatory inquiries regarding suspected alienage.14 See id. ¶¶ 70-76. Accordingly, Lyttle‟s
14

The Hayes Memo, for example, recommended the use of sworn statements that
“„include probative questions designed to elicit information sufficient to allow an investigation
-24-

bald allegations of the existence of discriminatory policies are fatally “without elaboration” and
lacking any “basis of their inference or the justification for their presumption.” Walker v. Prince
George’s County, Maryland, 575 F.3d 426, 431 (4th Cir. 2009) (holding that the complaint failed
to sufficiently allege the existence of policies, customs, or practices as required by Iqbal).
2. Plaintiff Does Not Plead A Discriminatory Purpose
Not only does Lyttle fail to provide any factual support for the existence of these
discriminatory policies, but he also cannot show that the ICE defendants acted based upon any
discriminatory purpose. See Iqbal, 129 S. Ct. at 1949 (“[P]urpose rather than knowledge is
required to impose Bivens liability on the subordinate for unconstitutional discrimination.” ).
Indeed, Lyttle merely alleges – without any factual enhancement – that the ICE defendants
“deliberately discriminated . . . on the basis of his perceived race and/or ethnicity in violation of
his constitutional rights.” FAC ¶ 91. And the only support Lyttle provides for this bare
conclusion is another bare conclusion – i.e., that the ICE defendants “failed to undertake a
reasonable and diligent inquiry into his citizenship based upon readily available documentation.”
Id.; see also id. ¶ 94 (alleging that the failure of ICE defendants to “adequately” examine Lyttle‟s
criminal history and other records was “a direct consequence of their intentional
discrimination”). But such claims, even when assumed to be true for the purpose of this motion,
amount to at most negligent conduct which does not rise to the level of a constitutional
deprivation. Daniels v. Williams, 474 U.S. 327, 333 (1986) (“[I]njuries inflicted by
governmental negligence are not addressed by the United States Constitution.”); Lovelace v. Lee,
of the person‟s claim of citizenship [including] vital records, family interviews, and other
appropriate investigative measures.‟” FAC ¶ 72 (quoting the Hayes Memo). It also encouraged
greater communication among various ICE personnel to ensure “the most appropriate course of
action” concerning specific removal cases. Id. ¶ 73. Apart from these safeguards, there are
absolutely no policies in the Hayes Memo that direct officials to target individuals based upon
their perceived race, ethnicity, or apparent mental illness. See Exh. H.
-25-

472 F.3d 174, 202 (4th Cir. 2006) (“negligent deprivations are not actionable” as constitutional
tort claims); Pierce v. Davis, 820 F.2d 1220, No. 87-6527, 1987 WL 37672 at *2 (4th Cir. June
8, 1987) (finding it “clear that negligence alone is an insufficient basis for individual liability”
under the Constitution). Thus, mere allegations that the ICE defendants conducted an
investigation that was not “diligent” or “adequate” fail to show that they purposefully
discriminated against Lyttle.
Rather than initiating removal proceedings against Lyttle because of some discriminatory
purpose, the “„obvious alternative explanation‟” for the ICE defendants‟ conduct is two-fold –
first, that NCDOC originally identified plaintiff as a removable alien from Mexico, and second,
that Faucette corroborated this finding when Lyttle subsequently told her that he was a citizen of
Mexico and signed the sworn statement. Iqbal, 129 S. Ct. at 1951 (quoting Twombly, 550 U.S. at
567); see also id. at 1952 (allegation that officials detained plaintiffs based on race or religion
was “not a plausible conclusion” given a more likely non-discriminatory reason). Because courts
afford “official conduct a presumption of legitimacy,” U.S. Dep’t of State v. Ray, 502 U.S. 164,
179 (1991); accord Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988), the Court should
presume here that the ICE defendants did not select Lyttle for removal proceedings solely
because of his race, ethnicity, or apparent mental illness; instead, they detained him because of
the facts provided by NCDOC officials and the corroborating admissions he made to Faucette.15
In sum, the complaint “does not contain any factual allegation sufficient to plausibly suggest . . .
[the ICE defendants‟] discriminatory state of mind,” and the ICE defendants are entitled to
qualified immunity from Count 2. Iqbal, 129 S. Ct. at 1952.
15

To be clear, the ICE defendants did not initiate their inquiry into Lyttle‟s immigration
status because of his perceived race, but because he had already been identified as a possible
citizen of Mexico by NCDOC. FAC ¶ 36; cf. Monroe, 579 F.3d at 388 (no equal protection
violation where officers investigated an African-American suspect based on a racial description
of the perpetrator first provided by the victim).
-26-

C. Plaintiff Fails To State The Violation Of A Clearly Established Due Process
Right (Count 1)
1. The ICE Defendants Did Not Deport Lyttle
Plaintiff posits three legal theories for holding the ICE defendants liable for a violation of
due process (Count 1). Each fails. First, Lyttle vaguely states that the ICE defendants violated
his due process rights “[b]y illegally, arbitrarily, and capriciously deporting Mr. Lyttle.” FAC ¶
127. Conclusory language aside, the undisputed facts refute this claim. As the complaint
acknowledges, the ICE defendants merely “commence[d]” removal proceedings against plaintiff
under § 1228 of the INA. Id. ¶ 50. In the end, it was an immigration judge in Georgia – not the
ICE defendants here in North Carolina – who ultimately ordered Lyttle‟s removal. Id. ¶ 83.
2. The ICE Defendants Did Not Coerce Lyttle Into Admitting That He Was A
Citizen Of Mexico
Lyttle next states that the ICE defendants violated his due process rights “by coercing
him into signing false statements, by intimidating Mr. Lyttle during the interrogation process,
and by willfully disregarding or covering up Mr. Lyttle‟s mental disabilities.” Id. ¶ 128. But
these bare legal conclusions, as previously explained, must be discarded. See, e.g., Monroe, 579
F.3d at 387 (holding that terms such as “coerced,” “objectively reasonable,” and “consensual”
are merely “legal conclusions, not facts, and are insufficient” to survive a motion to dismiss); see
also Francis, 588 F.3d 186 at 193 (explaining that courts should “„not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions‟”) (quoting Iqbal, 129 S. Ct.
at 1950). And Lyttle offers no new factual support here showing that he was “coerced” or
“intimidated” into signing the statements. He alleges no facts that could plausibly show that the
ICE defendants subjected Lytle to physical abuse, verbal threats, or pressure of any kind to

-27-

extract the admissions that he made (and which he repeated on multiple occasions) that he was a
citizen of Mexico. See FAC ¶¶ 27-33, 39-45, 54.
At best, all Lyttle can show is that Faucette knew that he had “[b]ipolar” disorder, as she
documented on the same day as Lyttle‟s sworn statement. Id. ¶ 46; Exh. C. But even if the ICE
defendants were aware of this mental condition, Lyttle fails to allege with any facts that Faucette,
Caputo, or Kendall actually knew (or how they could possibly have known) of plaintiff‟s further
alleged inability to “read or understand” the documents that he signed.16 See id. ¶ 54; ¶ 40
(baldly claiming, without further elaboration, that Faucette knew that plaintiff was “cognitively
impaired” when she recorded his sworn statement). Thus, absent specific allegations that the
ICE defendants actually harmed, pressured, or threatened him, the mere fact that Lyttle was
bipolar would not mean that his admissions of foreign citizenship were involuntarily given or
coerced in violation of due process. See United States v. Cristobal, 293 F.3d 134, 141 (4th Cir.
2002) (holding that “a deficient mental condition,” which includes “a pre-existing mental illness
. . . is not, without more, enough to render a [statement] involuntary”) (citing Colorado v.
Connelly, 479 U.S. 157, 164-65 (1986)). Put simply, no facts show that the ICE defendants
purposely “exploited” Lyttle‟s bipolar condition with “coercive tactics.” Id. Finally, plaintiff
fails to allege any facts that could show that the ICE defendants “willfully” ignored his mental
disabilities. FAC ¶ 128. If anything, the fact that Faucette documented his bipolar disorder, id. ¶
46, Exh. C, shows that she was not deliberately “disregarding” or “covering up” any known
mental condition, FAC ¶ 128. Lyttle has alleged bare legal conclusions that are “consistent”

16

And as explained supra section II(A)(3), the ICE defendants‟ familiarity with Lyttle‟s
recent criminal conviction would actually reveal that Lyttle was found competent to undergo
such proceedings, not to mention the fact that the sentencing judge decided against
recommending psychiatric counseling.
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with liability, but he does not “plausibly suggest” an entitlement to relief based on any hard
factual allegations. Iqbal, 129 S. Ct. at 1950.
3. Plaintiff’s Due Process Claim Merely Replicates His Fourth Amendment
Claim
Lacking a factual basis for any such coercion, Lyttle finally resorts to pleading that the
ICE defendants violated his “constitutional rights” when they “caused Mr. Lyttle to be deported
without reasonable basis or lawful authority.” FAC ¶ 129. Because these allegations are merely
“[t]hreadbare recitals of the elements” of a due process claim, they are “not entitled to the
assumption of truth.” Iqbal, 129 S. Ct. 1949-50.
In any event, what these allegations amount to, if anything at all, is a mere duplication of
Lyttle‟s Fourth Amendment malicious prosecution claim – i.e., that his detention was “continued
well beyond the scheduled release date” and that he was therefore detained in violation of his
“right to be free from unreasonable seizures.” FAC ¶¶ 141-42. Because constitutional tort
claims must be “judged by reference to the specific constitutional standard which governs that
right,” however, plaintiff‟s due process claim must be dismissed for the same reasons that his
Fourth Amendment claim (Count 3) fails. Graham v. Connor, 490 U.S. 386, 394 (1989)
(explaining that excessive force claims during arrest should be analyzed under the Fourth
Amendment rather than the Due Process Clause). Indeed, the Supreme Court has made clear that
the Due Process Clause can afford “no relief” for claims of constitutional malicious prosecution,
which are instead decided under the Fourth Amendment. Albright, 510 U.S. at 275.
Nevertheless, the ICE defendants had a “reasonable basis” to initiate removal
proceedings against Lyttle, thereby causing his detention pending a final resolution of his
immigration status. Based on NCDOC‟s findings and Lyttle‟s sworn statement to Faucette, the
ICE defendants had probable cause (or at least an arguable basis) to commence removal
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proceedings against him. And Lyttle confirmed that reasonable belief, yet again, when he signed
the Notice of Intent, agreeing to being deported without a hearing. FAC ¶ 54; Exh. D. Because
Lyttle‟s third theory under the Due Process Clause closely tracks his Fourth Amendment claim
for malicious prosecution, the ICE defendants are entitled to qualified immunity from Count 1.
D. Plaintiff Has Not Alleged A Violation Of Clearly Established Law (Counts 1-3)
In closing, and as a final matter with respect to all of Lyttle‟s Bivens claims, it bears
repeating that plaintiff must plead the violation of clearly established constitutional rights. See
Ashcroft v. Al-Kidd, 131 S. Ct. 2074, No. 10–98, 2011 WL 2119110, at *9 (May 31, 2011)
(“Qualified immunity gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions.”); Hunter, 502 U.S. at 224. To be “clearly
established,” courts in the Fourth Circuit normally “need not look beyond the decisions of the
Supreme Court, this court of appeals, and the highest court of the state in which the case arose . .
. . ” Edwards, 178 F.3d at 251 (internal quotations and citations omitted). Moreover, “the
contours of the right must have been so conclusively drawn as to leave no doubt that the
challenged action was unconstitutional.” Id. In sum, even if this Court concludes that the ICE
defendants made an error in judgment, there is no controlling precedent that the alleged actions
taken in the context of this case violated any of the plaintiff‟s “clearly established” rights. The
ICE defendants are thus entitled to qualified immunity from Counts 1-3.
CONCLUSION
The ICE defendants respectfully request that the Court dismiss Counts 1-3.

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Respectfully submitted this 24th day of June 2011,
TONY WEST
Assistant Attorney General, Civil Division
C. SALVATORE D‟ALESSIO, JR.
Acting Director, Torts Branch
JAMES R. WHITMAN
Trial Attorney, Torts Branch
/s/ David G. Cutler
DAVID G. CUTLER
IL Bar No. 6303130
Trial Attorney
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel: [phone]
Fax: [phone]
E-mail:[e-mail]

GEORGE E.B. HOLDING
United States Attorney
W. ELLIS BOYLE
Assistant United States Attorney
Civil Division
310 New Bern Avenue
Suite 800 Federal Building
Raleigh, N.C. 27601-1461
Tel: (9l9) 856-4530
Fax: [phone]
E-mail: [e-mail]
N.C. Bar No. 33826
Attorneys for Dashanta Faucette,
Dean Caputo, and Robert Kendall

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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
[e-mail]

Ann Marie Dooley
[e-mail]

Michael E. Johnson
[e-mail]

Brian P. Watt
[e-mail]

Alexandria J. Reyes
[e-mail]

Katherine L. Parker
[e-mail]

Judy Rabinovitz
[e-mail]
COUNSEL FOR DEFENDANT NORTH CAROLINA DEPARTMENT OF CORRECTION:
Joseph Finarelli
[e-mail]

/s/ David G. Cutler
DAVID G. CUTLER
IL Bar No. 6303130
Trial Attorney
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel: [phone]
Fax: [phone]
E-mail:[e-mail]

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