LYTTLE v. The UNITED STATES OF AMERICA et al

Filing 57

RESPONSE in Opposition re 47 MOTION to Dismiss Memo of Law for USA Motion filed by Mark Daniel Lyttle. (McKinney, Jeremy)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
CASE NO.
MARK DANIEL LYTTLE,
Plaintiff,
v.
THE UNITED STATES OF AMERICA,
et al.,
Defendants.

4:10-CV-142-D
)
)
)
)
)
)
)
)
)
)

MEMORANDUM OF LAW IN
OPPOSITION TO UNITED STATES'
MOTION TO DISMISS
Local Civil Rules 7.1, 7.2

Plaintiff Mark Daniel Lyttle (“Plaintiff” or “Mr. Lyttle”) files this Memorandum of Law
Opposition to the United States’ Motion to Dismiss [ECF Doc. No. 47.] In its Motion to
Dismiss, the United States argues that the deportation of a citizen is “unfortunate” (“United
States’ Br. at 1”) but that a known United States citizen with a known mental impairment who
was wrongfully detained, subjected to removal proceedings, and ultimately deported to Mexico
with three dollars and a prison suit has no legal remedy whatsoever. At set forth herein, the
United States’ argument assumes disputed facts before discovery has even begun, and it flies in
the face of the controlling legal authorities. Therefore, the United States’ Motion to Dismiss
should be denied.
BACKGROUND
Mark Lyttle is a 33-year old United States citizen born in Rowan County, North Carolina.
(Amended Complaint “Am. Compl.,” ¶ 7.) He was raised by his adoptive parents, Thomas
Lyttle and Jeanne Lyttle, along with four siblings, two of whom are actively serving in the
United States Military. (Id., ¶¶ 7, 21, 111.) Mr. Lyttle has a Social Security Number, a birth
certificate, and official adoption records. (Id., ¶¶ 20, Exs. A, B.) Yet, on December 18, 2008,

Mr. Lyttle was escorted by federal ICE agents from Stewart Detention Center in Lumpkin,
Georgia to the U.S-Mexico border in Hidalgo, Texas, where he was ordered to cross the border
into Mexico on foot. (Id., ¶ 101.) He spoke no Spanish, had no money, and until that point, had
never been outside the United States. (Id., ¶¶ 5, 7.)
Mr. Lyttle spent the next four months wandering the streets of Mexico, Honduras,
Nicaragua and Guatemala. (Id., ¶¶ 96, 114.) Throughout his odyssey, Mr. Lyttle would be
arrested and incarcerated numerous times on the grounds that he could not produce evidence of
his identity or citizenship. (Id., ¶ 109.) Mr. Lyttle suffered severe physical abuse at the hands of
prison guards in Honduras. (Id., ¶ 107.) Ultimately, Mr. Lyttle found his way to Guatemala
where he managed to locate the U.S. Embassy and an embassy employee who was willing to
listen to Mr. Lyttle’s remarkable story. (Id., ¶ 110.) With the aid of the U.S. Embassy employee
in Guatemala, Mr. Lyttle was put in touch with his family in the U.S. who arranged for his
return. (Id., ¶ 111.)
That Mr. Lyttle survived his 4-month ordeal in Mexico and Central America is all the
more astonishing given that he is mentally disabled. (Id., ¶¶ 22-24.) Mr. Lyttle in fact has a
long and well-documented history of significant mental and cognitive disorders that resulted in
his near constant institutionalization since adolescence. (Id., ¶ 24.) Mr. Lyttle is barely literate
and struggles with basic cognitive functions such as verbal expression, memory and the capacity
to comprehend everyday events. (Id., ¶¶ 23.) It is due to his mental disability that Mr. Lyttle
was unable to effectively resist the coercive interrogations of ICE agents who apprehended Mr.
Lyttle in the fall of 2008 and incorrectly identified Mr. Lyttle as “Jose Thomas,” a citizen of
Mexico unlawfully in the United States. (Id., ¶¶ 41-45.)

2

Mark Lyttle was not detained and subjected to removal proceedings because of a good
faith misjudgment by government officials, or due to some well-intentioned accident. Rather, as
set forth in ample detail in his Amended Complaint, “…Mr. Lyttle was unlawfully detained as a
result of Defendants callous disregard of his constitutional rights and their gross misconduct in
the application of their statutory responsibilities.” Throughout his detention and removal
proceedings, Defendants disregarded, ignored and suppressed facts and evidence that should
have prevented such a result.
As detailed in Plaintiff’s Argument section, the United States’ arguments are based on a
highly selective, incomplete and in some instances inaccurate characterization of the facts
alleged in Mr. Lyttle’s Amended Complaint. But accepting the well-pleaded allegations in Mr.
Lyttle’s Amended Complaint at face value, as this Court must at the pleading stage, Defendants
detained and subjected to removal proceedings a U.S. citizen whom they knew to be mentally
impaired, despite his protests, and despite clear objective evidence that established Mr. Lyttle’s
citizenship.
ARGUMENT AND CITATION OF AUTHORITY
I.

Jurisdiction is Proper As To Plaintiff's FTCA Claims.
A.

The "Discretionary Function" Exception Does Not Apply To Bar Plaintiff's
Claims.

The interrogation, arrest, and detention of U.S. citizens (much less U.S. citizens with
mental disabilities) is obviously not part of the United States’ immigration policy. The United
States, however, maintains that it is exempt from liability for the grievous harms that Mr. Lyttle
suffered when Defendants Dashanta Faucette, Dean Caputo, Robert Kendall and ICE Does 1-10

3

(“Defendants”) unlawfully interrogated, arrested, and detained him.1 On the contrary, the actions
challenged by Mr. Lyttle “are not the kind of conduct that can be said to be grounded in the
policy of the regulatory regime.” U.S. v. Gaubert, 499 U.S. 315, 325 (1991). The “discretionary
function” exception does not apply here for several reasons.
First, the discretionary function exception is not an available defense because, as a matter
of law, ICE agents have absolutely no discretion to violate the constitutional rights of a U.S.
citizen. The Fourth Circuit has recognized that the discretionary function exception does not
apply to FTCA claims based on unconstitutional conduct. Medina v. U.S., 259 F.3d 220, 225 (4th
Cir. 2001) (“[f]ederal officials do not possess discretion to violate constitutional rights or federal
statutes) (internal citation and quotation marks omitted). Although the court in Medina
determined that the discretionary function exception barred the plaintiff’s FTCA claims, its
holding was based on the plaintiff’s failure to allege a violation of the Constitution or a federal
statute. Id. at 225. By contrast, the discretionary function exception does not apply to Mr.
Lyttle’s claims because Mr. Lyttle has alleged facts sufficient to establish that Defendants
violated his Fourth and Fifth Amendment rights. (Am. Compl., ¶¶ 39, 49-52, 63.) As ICE’s
authority to interrogate, arrest, and detain is limited to non-citizens, Defendants’ conduct was not
“authorized and implemented consistent with federal law and the Constitution of the United
States.” Medina, 259 F.3d at 226. Further, Defendants’ intentional discrimination and targeting
of Mr. Lyttle on the basis of his race and/or ethnicity is plainly unconstitutional conduct not
covered by the discretionary function exception. (Am. Compl., ¶¶ 3, 90-91.) Consequently, the
United States is not shielded from liability under the discretionary function exception.

1

Notably, the United States concedes that Mr. Lyttle was detained in ICE custody for two days
following his scheduled release from Greene Correctional Institution. (Am. Compl. ¶¶ 62-63;
United States’ Br. at 13, n.7.)
4

Additionally, the discretionary function exception does not apply here given that
Defendants and other IC agents possessed affirmative evidence of Mr. Lyttle’s U.S. citizenship,
yet disregarded it. To hold otherwise, especially at the pleadings stage, would be tantamount to
ruling that government officials have “discretion” to decide whether to allow U.S. citizens to
remain in this country or whether to detain and deport them to Mexico. Defendants searched
federal databases on multiple occasions and discovered records verifying Mr. Lyttle’s U.S.
citizenship and listing his social security number. (Am. Compl., ¶¶ 47-48.) Although ICE agents
may exercise a certain level of discretion in the execution of their law enforcement duties,
including the investigation of potential criminal aliens subject to removal, their decision to
disregard this objective evidence was patently non-discretionary, given the absence of any
authority to arrest and detain a U.S. citizen. Unless this Court is prepared to hold that the arrest
and detention of a U.S. citizen is itself discretionary, the United States cannot evade liability by
claiming that this specific misconduct falls under the discretionary function exception.
Moreover, the United States' reliance on Nguyen v. United States, 65 Fed. App’x 509 (5th
Cir. 2003) (per curiam), for the proposition that the discretionary function exception bars Mr.
Lyttle’s FTCA claims, is misplaced. Nguyen involved a legal permanent resident unaware of his
eligibility for derivative citizenship. Id. at *1.2 The court held that the discretionary function
exception barred Nguyen’s tort claims because “[n]o regulation or statute prevented the INS
agents from pursuing deportation proceedings against Nguyen based on the information available
2

Bernado v. United States, No. 02-0974, 2004 WL 741287 (N.D. Texas Apr. 5, 2004), cited in
OC Defendants’ Motion to Dismiss at 9-10, also involved a legal permanent resident who was
unaware of his eligibility for derivative citizenship and was arrested, detained, and ordered
deported. Because Mr. Lyttle is and always has been a U.S. citizen, and because he affirmatively
asserted his U.S. citizenship to North Carolina ICE agents, his claims are dissimilar to those
raised in Nguyen and Bernado. Similarly, O’Ferrell v. United States, 253 F.3d 1257, 1267 (11th
Cir. 2001), and Mesa v. United States, 123 F.3d 1435, 1438 (11th Cir. 1997), are inapposite as
out-of-circuit cases that did not involve allegations of unconstitutional conduct.
5

to them,” and INS agents “had sufficient reason to believe, based on repeated admissions,
explicit and implicit, by both Nguyen and his attorney, that Nguyen was an alien.” Id. at *2. In
particular, the court found that the INS agents “did not commit a constitutional violation nor did
they engage in any conduct that could be described as in bad faith.” Id.
Here, in contrast, Defendants have no jurisdiction over U.S. citizens and were not
authorized to arrest, detain, and interrogate Mr. Lyttle. Furthermore, Defendants had no reason to
believe that Mr. Lyttle was a non-citizen given readily available documentary (indeed,
government) evidence of Mr. Lyttle’s U.S. citizenship, the absence of documentary evidence to
the contrary, and Mr. Lyttle’s repeated assertions of U.S. citizenship. (Am. Compl., ¶¶ 46-47, 57,
60.) Defendants’ actions in arresting and detaining Mr. Lyttle, following from their failure to
investigate Mr. Lyttle’s claim of U.S. citizenship and deliberate indifference towards evidence of
his U.S. citizenship, is categorically outside their discretionary duties. Consequently, this Court
should deny the United States’ Motion to Dismiss Mr. Lyttle’s FTCA claims based on the
discretionary function exception.
B.

The "Due Care" Exception Does Not Apply To Bar Plaintiff's Claims.

The United States contends that the false imprisonment, negligence, and intentional
infliction of emotional distress claims should be dismissed pursuant to 28 U.S.C. § 2680(a),
which states, in relevant part: “The provisions of this chapter . . . shall not apply to . . . a) Any
claim based upon an act or omission of an employee of the defendants, exercising due care, in
the execution of a statute or regulation.” This argument fails for at least three reasons, as set
forth herein.

6

1.

Application of the due care exception is a factual inquiry that should
not be dismissed at the pleading stage.

The due care exception does not justify a dismissal at the pleading stage where there is a
dispute over material facts. Compare Lippman v. City of Miami, 622 F. Supp. 2d 1337, 1343
(S.D. Fla. 2008) (finding that “it would be premature to apply the due care exception as a matter
of law” because the “inquiry requires an examination of the circumstances and the facts
surrounding the decision to search”), with Hydrogen Tech. Corp. v. United States, 831 F.2d
1155, 1164 (1st Cir. 1987) (dismissing a claim under the due care exception because the officers
acted reasonably and “the parties have agreed that there is no dispute over material facts). OC
Defendants rely on a case where the plaintiff was detained, as here, pursuant to 8 U.S.C. §
1226(c)(1)(B), but that case only reinforces the prematurity of the United States' motion. Welch
v. United States, 409 F.3d 646 (4th Cir. 2005). In that case, the court explicitly noted that “[t]he
material facts of this case are not in dispute.” Id. at 649.
In contrast, material facts here surrounding the due care exception are in dispute. For
example, the parties dispute whether Mr. Lyttle was coerced into signing a sworn statement
about his citizenship. (Am. Compl., ¶ 54; United States’ Br. at 20 (describing the claim as
hyperbole.)) There is further disagreement over whether Mr. Lyttle ever informed officers that
he was from Mexico. (See Am. Compl., ¶ 33; United States’ Br. at 3.) Similarly, the United
States claims that the Defendants “performed their usual duties,” United States’ Br. at 20, while
Mr. Lyttle alleges that agents did not even perform the minimal inquiries required of them. (Am.
Compl., ¶ 58, 60-61.) So long as these disputes over basic material facts are unresolved, it
would be impossible for the Court to rule as a matter of law whether the officers acted with due
care. Thus, in line with the precedent cited above—and even the precedent the United States
cites—dismissal would be inappropriate.
7

2.

The due care exception does not apply because Defendants acted
without due care in applying their statutory responsibilities.

Dismissal based on the due care exception also would be inappropriate inasmuch as Mr.
Lyttle has adequately alleged that Defendants acted without due care in exercising their statutory
responsibilities. While the due care exception protects government behavior “in the execution of
a statute”, such behavior is protected only when the government official is “exercising due care.”
28 U.S.C. § 2680; see also, Buchanan v. United States, 915 F.2d 969, 970-71 (5th Cir. 1990)
(“The first clause [of § 2680], exempting actions mandated by statute or regulation, applies only
if the actor has exercised due care). The United States selectively quotes case law in a way that
masks this important point, arguing that the due care exception shields Defendants “[b]ecause
there is no allegation...that an immigration officer ‘deviated from the statute.’” (United States’
Br. at 12 (quoting Welch, 409 F.3d at 652)). This quotation omits the first half of the Welch
court’s sentence. In full, it reads “[Plaintiff] does not claim that the INS officers carried out their
responsibilities in an inappropriate manner, or in any way deviated from the statute[.]” 409 F.3d
at 652 (emphasis added). Thus, the due care exception does not protect government officials
from liability where officials carry out their statutory responsibilities in an inappropriate manner.
This is in line with both the plain language of the statute and case law interpreting it. The Welch
court noted that the purpose of the law is to prevent the use of tort action to test the legality of
the law. Welch, 409 F.3d at 653. As the Welch court went on to point out, the due care
exception would not bar an action against ICE officials for alleged defects in the execution of the
statute, rather than defects in the statute itself. Id.
Mr. Lyttle’s claim safely overcomes the due care exception hurdle because unlike the
plaintiff in Welch, he alleges that Defendants “carried out their responsibilities in an
inappropriate manner” and did not exercise due care. Welch, 409 F.3d at 652. Mr. Lyttle alleges
8

“outrageous conduct” and inappropriate interrogation and detention tactics. (Am. Compl, ¶¶ 90,
160.) Because Mr. Lyttle has adequately alleged that Defendants acted inappropriately and
without due care in fulfilling their statutory obligations, the due care exception does not apply.
Welch is also inapplicable because it involved a detainee who was rightfully detained
pursuant to statute. In Welch, the defendants properly detained a Panamanian national under 8
U.S.C. § 1226(c) after he had pled guilty to committing a felony. 409 F.3d at 650. While a court
later ruled that the detention was unconstitutional for lack of a bail hearing, at no time was the
detention invalid under § 1226(c). In contrast, this case involves a detention that is illegal and
inappropriate under the statute itself. Thus, this case is more akin to the situation in Nguyen v.
United States. 556 F.3d 1244, 1260 (11th Cir. 2009). The Eleventh Circuit upheld the plaintiff’s
FTCA claim in Nguyen because the plaintiff’s arrest was based on negligent investigative and
arrest practices. Id. at 1249. Similarly, Mr. Lyttle’s detention was improper under the statute
(even if the arresting officer believed otherwise). See id. As such, the court’s reasoning in
Welch does not apply, and the due care exception does not apply.
3.

The due care exception does not apply to false imprisonment claims

The due care exception should not apply to false imprisonment claims under § 2680(h) of
the FTCA. While § 2680(a) protects government actions taken with due care pursuant to a
statute, § 2680(h), passed subsequently, states, “with regard to acts or omissions of investigative
or law enforcement officers of the United States Government, the provisions of this chapter
and section 1346(b) of this title shall apply to any claim arising, on or after the date of the
enactment of this proviso, out of . . . false imprisonment, false arrest . . .” 28 U.S.C. § 2680(h)
(emphasis added).

9

Mr. Lyttle’s FTCA claim for false imprisonment is not barred by 28 U.S.C. § 2680(a)
because the law enforcement proviso of § 2680(h) supersedes the exceptions in § 2680(a). See
Nguyen v. United States, 556 F.3d 1244, 1260 (11th Cir. 2009) (“To the extent of any conflict,
the later enacted and more specific subsection (h) proviso trumps the earlier and more general
subsection (a), as Congress clearly intended that it would.”); Sutton v. United States, 819 F.2d
1289, 1297 (5th Cir. 1987); Milligan v. United States, No. 07-1053, 2009 WL 2905782 at *5
(M.D. Tenn. Sept. 4, 2009) (“this court finds the Nguyen court's analysis to be thorough and its
conclusion to be persuasive”). The law enforcement proviso was passed subsequent to and is
more specific than the due care exception. Nguyen, 556 F.3d at 1253.3
Though 2680(a) initially prevented a crowd of claims from passing the sovereign
immunity door, 2680(h) re-opened the door for claims arising from law enforcement actions.
Further, as the Sutton court pointed out, allowing the due care exception to supersede the law
enforcement proviso turns 2680(h) into an “illusory-now you see it, now you don’t-remedy.”
Sutton, 819 F.2d at 1297. The purpose of the proviso was “to subject the government to liability
in Bivens-type actions”, but applying the due care exception would mean that even Bivens itself
“would not pass muster”, meaning “the law enforcement proviso would fail to create the
effective legal remedy intended by Congress.” Id. at 1296. Thus, the due care exception does
not bar Mr. Lyttle’s false imprisonment claim. (Am. Compl., ¶ 148.) Ruling otherwise would

3

The Nguyen court used an analogy to explain why, under canons of statutory interpretation, this
specificity and more recent enactment date means that the law enforcement proviso supersedes
the due care exception: “A big, burly doorman guarding the entrance to an exclusive club shouts
to a large crowd of people wanting to get in that none of them may enter. Later he speaks
specifically to a few people in the crowd and tells them to go on in. No one would doubt that
while the general group has been barred a privileged few have been given permission to enter. So
it is with § 2680.” Nguyen, 556 F.3d at 1253.
10

undermine the purpose of the law enforcement proviso and would be contrary to canons of
statutory interpretation.4
II.

Plaintiff's FTCA Claims State a Claim Pursuant To Rule 12(b)(6).
A.

The False Imprisonment Claim Is Viable Because Plaintiff's Detention
Was Not Pursuant to Procedurally Valid Process.

Because of a substantively and procedurally defective process, Defendants “obtain[ed]
custody of Mr. Lyttle from the North Carolina Defendants” and unlawfully detained him. (Am.
Compl., ¶ 148.) The government’s argument that mere legal process defeats a false
imprisonment claim erroneously construes and applies both governing North Carolina law and
the well-pleaded allegations in the amended complaint.
Under North Carolina law “[f]alse imprisonment is the illegal restraint of the person of
any one against his will.” Hales v. McCrory-McLellan Corp., 260 N.C. 568, 570, 133 S.E.2d
225, 227 (1963) (quoting Parrish v. Boysell Mfg. Co., 211 N.C. 7, 188 S.E. 817 (1936)).
“Involuntary restraint and its unlawfulness are the two essential elements of the offense.”
Parrish v. Boysell Mfg. Co., 211 N.C. 7, 188 S.E. 817, 820 (1936). A plaintiff need only prove

4

Although the Fourth Circuit has ruled that the 2680(a) exceptions bar 2680(h) claims, these
cases did not consider the statutory interpretation and congressional purpose analyses that the
Nguyen and Sutton courts explored. Medina v. United States, 259 F.3d 220, 226 (4th Cir. 2001);
Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005). The Medina and Welch courts
reasoned that in passing 2680(h), Congress was aware of the effect of 2680(a) and meant these
exceptions to continue to apply. Id. However, as the Fifth and Eleventh Circuits have noted, this
reasoning renders 2680(h) meaningless. The point of 2680(h) was to waive sovereign immunity
in Bivens-type cases, but the Medina approach would bar the very claims made in Bivens.
Sutton, 819 F.2d at 1297. Further, using 2680(a) to bar 2680(h) claims “would . . . modify the
statute by either removing the proviso . . . or by rewriting the words ‘any claim’ in the proviso to
mean only claims based on . . . non-discretionary functions. We are not authorized to rewrite . . .
statutory language in the guise of interpreting it, especially when doing so would defeat the clear
purpose behind the provision.” Nguyen, 556 F.3d at 1244. Thus, though the Fourth Circuit has
occasionally reached a different result in the past, it has never applied the canons of statutory
interpretation that a more specific, more recently-enacted provision trumps a more general,
earlier one, nor has it analyzed the congressional purpose discussed in Nguyen and Sutton.
11

“(1) intentional and unlawful, (2) restraint or detainment of a person, (3) without that person’s
consent.” State v. Petro, 167 N.C. App. 749, 753, 606 S.E.2d 425, 428 (N.C. Ct. App. 2005). If
the process upon which an individual is detained is invalid, an action for false imprisonment will
lie. See Local 755, Int’l Broth. of Elec. Workers, AFL-CIO v. Country Club E., Inc., 283 N.C. 1,
8, 194 S.E.2d 848, 853 (1973) (recognizing that false imprisonment can be detention pursuant to
invalid process); Restatement (Second) of Torts § 35 (1965) (Comments) (“[A]n act which
makes the actor liable under this Section for a confinement otherwise than by arrest under a valid
process is customarily called a false imprisonment.”)
The Amended Complaint contains factual allegations sufficient to allege a claim of false
imprisonment under North Carolina law. First, the Amended Complaint contains allegations
sufficient to conclude that the Defendants lacked probable cause to detain Mr. Lyttle after his
initial sentence expired. Second, the Amended Complaint sufficiently alleges that the whole
process by which Mr. Lyttle was erroneously determined to be a foreign born citizen was
fundamentally flawed and therefore unlawful.
Since the “absence of probable cause” is an element of a false imprisonment claim, see
Moore v. Evans, 124 N.C. App. 35, 43, 476 S.E.2d 415, 422 (N.C. Ct. App. 1996), a detention
without probable cause after the expiration of a lawful incarceration suffices to establish
unlawfulness, see, e.g., See Harwood v. Johnson, 326 N.C. 231, 242, 388 S.E.2d 439, 445-46
(1990) (holding that plaintiff stated a claim for false imprisonment by alleging that parole board
members failed to timely release plaintiff inmate in accordance with state law); Walker v. City of
Portland, 71 Or. App. 693, 698, 693 P.2d 1349, 1352 (Or. Ct. App. 1985) (holding that, on a
false imprisonment claim, the fact that an initial detention was lawful did not preclude a finding
that the original “circumstances that aroused [the officers’] suspicion dissipated, and any further

12

detention and inquiry was” unlawful); Tufte v. City of Tacoma, 71 Wash. 2d 866, 870, 431 P.2d
183, 185 (1967) (“[T]he fact that the arrest might have been lawful did not determine that the
subsequent imprisonment was also entirely lawful.”).
If a detention is made “without probable cause, [] the plaintiff’s restraint [i]s unlawful.”
Black v. Clark’s Greensboro, Inc., 263 N.C. 226, 228, 139 S.E.2d 199, 201 (1964). A lack of
probable cause is illustrated by “circumstances which would seem to assure a normal person of
average intelligence that the charge…had no reasonable foundation.” Taylor v. Hodge, 229 N.C.
558, 560, 50 S.E.2d 307, 308-09 (1948); see also Carson v. Doggett, 231 N.C. 629, 632, 58
S.E.2d 609, 611 (1950) (“[Lack of] probable cause was defined as meaning that the action was
instituted without sufficient knowledge and information on the part of the defendant as would
cause him or any other reasonably prudent person to believe the plaintiff to be guilty of the
offense charged.”) (citation and quotation marks omitted); Mullins by Mullins v. Friend, 116
N.C. App. 676, 683, 449 S.E.2d 227, 231 (N.C. Ct. App. 1994).
The Amended Complaint sufficiently alleges that Defendants lacked probable cause to
detain Mr. Lyttle after the expiration of his previous sentence. See also Ramirez v. United States,
998 F. Supp. 425, 434 (D.N.J. 1998) (“Whether the INS agents had “legal justification” to detain
[the Plaintiff] is intertwined with the inquiry as to whether the agents had probable cause to
believe that he was the individual sought in the warrant.”).5 For example, the Amended

5

With that case in a similar procedural posture, and confronting an equivalent state law
definition of false imprisonment, the court noted that it was premature to dismiss the FTCA false
imprisonment claim. Id. (“Because the Court has reserved judgment on this question [of legal
justification] until a limited amount of discovery has been conducted, the Court will revisit the
merits of this claim when it rules on the motion for summary judgment.”). Accord Wormley v.
United States, 601 F. Supp. 2d 27, 45 (D.D.C. 2009) (examining a claim for false imprisonment
as a result of overdetention and noting that on 12(b)(6) motion “[t]he Court need not at this stage
determine whether…plaintiff was in fact unlawfully detained [because] Plaintiff does state a
claim that could plausibly entitle her to relief”).
13

Complaint states that “[n]o reasonable basis existed to suspect or otherwise conclude that Mr.
Lyttle was not a United States citizen.” (Am. Compl., ¶ 57.) Yet despite ample evidence of Mr.
Lyttle’s cognitive deficits and “[n]umerous records… reveal[ing] that Mr. Lyttle was a U.S.
citizen with a valid social security number,” Defendants initiated deportation proceedings. (Id.,
¶¶ 46-47, 51.) There was no attempt made “to confirm the information contained in the
documents produced as a result of the database searches,” nor was an attempt made “to contact
Mr. Lyttle’s family…[or] to obtain Mr. Lyttle’s birth certificate from North Carolina Vital
Records.” (Id., ¶¶ 58, 61.) Further, “[n]o effort was made…to put Mr. Lyttle in touch with a
legal representative familiar with deportation proceedings to protect Mr. Lyttle’s rights.” (Id., ¶
61.) Consequently, the Amended Complaint contains more than adequate allegations that there
was a lack of probable cause to detain Mr. Lyttle, and his claim for false imprisonment should
therefore not be dismissed.
Moreover, the deliberate disregard of a statutory mandate can create the requisite
“unlawfulness” for a false imprisonment claim. See Harwood v. Johnson, 326 N.C. 231, 242,
388 S.E.2d 439, 445-46 (1990) (holding that if parole board members failed to parole an inmate
by deliberately disregarding statutory guidelines governing maximum terms, they would be
liable for false imprisonment); see also Van Schaick v. United States, 586 F. Supp. 1023, 1033
(D.S.C. 1983) (finding that officers’ failure to follow statutory guidelines after a lawful arrest
turned the subsequent detention into a false imprisonment). The Amended Complaint contains
factual allegations sufficient to conclude that the whole process by which Mr. Lyttle was
erroneously determined to be a foreign born citizen was fundamentally flawed; that Defendants
deliberately disregarded policy directives and federal constitutional and statutory law; that there

14

was no reasonable foundation for the rejection of the evidence confirming Lyttle’s U.S.
citizenship; and that his subsequent detention was therefore unlawful. (Am. Compl., ¶¶ 38-61.)
The United States cites Melton v. Rickman, for the proposition that “[a] cause of action
for false arrest or false imprisonment is based upon the deprivation of one’s liberty without legal
process.” 225 N.C. 700, 703, 36 S.E.2d 276, 277 (1945). Even when there is formal legal
process, however, the deficiencies in that process can make the detention unlawful and give rise
to a claim for false imprisonment. Rhodes v. Collins, 198 N.C. 23, 150 S.E. 492, 494 (1929)
(holding that a detention pursuant to a warrant issued for “slander” – where no such crime was
punishable under state law – constituted false imprisonment). Officers can be held liable for
false arrest or imprisonment even with a warrant if it appears on the face of the warrant that no
jurisdiction exists for that offense or if the charge does not constitute a criminal offense.
Alexander v. Lindsey, 230 N.C. 663, 667-68, 55 S.E.2d 470, 474 (1949); see also Rhodes, 198
N.C. 23, 150 S.E. 492. These cases make clear that an officer has at least some duty to inquire
into the probable cause sufficient to justify his detention of a suspect, even where he has the
“statutory and regulatory authority to arrest and detain individuals.” Defs’ Br. at 14; see also
Sheppard v. United States, 537 F. Supp. 2d 785, 792 (D. Md. 2008) (allowing claim for false
imprisonment to proceed under FTCA where Plaintiff was erroneously detained after his valid
prison sentence had expired).
The mere cloak of legal authority is unavailable as a shield from liability for false
imprisonment under the FTCA because this is precisely the situation contemplated by the waiver
of immunity. 28 U.S.C. § 2680(h) (2011) (establishing that immunity is waived on claims for
“false imprisonment” against “any officer of the United States who is empowered by law to
execute searches, to seize evidence, or to make arrests for violations of Federal law”); see also S.

15

Rep. No. 588, 93d Cong., 2d Sess. 3 (1973), reprinted in 1974 U.S.Code Cong. & Admin. News
2789, 2791 (1974) (“The effect of this provision is to deprive the Federal Government of the
defense of sovereign immunity in cases in which Federal law enforcement agents, acting within
the scope of their employment, or under color of Federal law, commit any of the following
torts: assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of
process.”) (emphasis added). As detailed in the Amended Complaint and reiterated herein,
Defendants failed to follow the protocol in place and provide the safeguards necessary for the
prevention of an unwarranted and unlawful detention of a United States citizen.
Contrary to the United States’ insistence that an action for false imprisonment will not lie
because “[t]here can be no question that” the process Mr. Lyttle received “was procedurally
valid,” United States’ Br. at 14, the Amended Complaint repeatedly questions the validity and
constitutionality of the process. Mr. Lyttle alleges that he was “coerced and manipulated…into
signing a statement” that “waiv[ed] his legal rights to a removal hearing before an immigration
judge.” (Am. Compl., ¶ 54.) Further, despite ample evidence of Mr. Lyttle’s cognitive deficits
and “[n]umerous records…reveal[ing] that Mr. Lyttle was a U.S. citizen with a valid social
security number,” Defendants still initiated deportation proceedings. (Id., ¶¶ 46-47, 51, 54.) Not
only does the Amended Complaint allege reckless disregard for Mr. Lyttle’s rights as a United
States citizen, it repeatedly alleges procedurally defective legal process.6

6

(Am. Compl. at ¶ 44) (“Defendant Faucette failed and refused to have a witness present” during
interrogation); (id. at ¶ 45) (after interrogation Mr. Lyttle “was not offered the opportunity to
review the content of the entries written on the form by Defendant Faucette, nor was [he]
informed of what Defendant Faucette had written”); (id. at ¶ 54) (“Disregarding Mr. Lyttle’s
mental disabilities and the substantial evidence of his U.S. citizenship, Defendant Faucette
coerced and manipulated Mr. Lyttle into signing a statement admitting the allegations…”
“Despite his serious and acknowledged mental disabilities, Mr. Lyttle received no assistance
from ICE agents -- or anyone else -- in attempting to read or understand the form that he was
coerced and manipulated into signing.”
16

Finally, as noted herein, the Amended Complaint alleges that “[n]o reasonable basis
existed to suspect or otherwise conclude that Mr. Lyttle was not a United States citizen.” (Id., ¶
57.) There was no attempt made “to confirm the information contained in the documents
produced as a result of the database searches,” nor was an attempt made “to contact Mr. Lyttle’s
family…[or] to obtain Mr. Lyttle’s birth certificate from North Carolina Vital Records[.]” (Id.,
¶¶ 58, 61.) “No effort was made…to put Mr. Lyttle in touch with a legal representative familiar
with deportation proceedings to protect Mr. Lyttle’s rights.” (Id., ¶ 61.) Contrary to the
government’s assertion, the Amended Complaint alleges a grossly defective, erroneous and
invalid process.
Since these allegations must be accepted as true, the waiver of Mr. Lyttle’s rights was
invalid and void. (Id., ¶ 59) (“Lyttle had no understanding of the consequences of signing the
forms presented to him by these ICE Defendants.”) As well as coercion and manipulation, the
Amended Complaint alleges that Mr. Lyttle “was unable to execute a knowing, voluntary and
intelligent waiver of his legal rights.” (Id., ¶ 93.) The Amended Complaint does anything but
accept that the process was procedurally valid. (See, e.g., id. at ¶ 87) (alleging a selection
process impermissibly based on race and/or ethnicity; the unreasonable and unlawful denial of
assistance for mentally ill or cognitively impaired individuals; and the unreasonable and
unlawful denial of due process); id. at ¶ 126 et seq. (listing the deprivation of due process as the
very first claim for relief).
Consequently, although the specific details of the procedural inadequacies of Mr.
Lyttle’s detention by Defendants are a matter for discovery, at this juncture Mr. Lyttle has
adequately pled a claim for false imprisonment against the United States.

17

B.

Plaintiff's Negligence Claim is Viable.

Although private persons are not responsible for enforcing the law or investigating
suspected criminals or aliens, as Defendants contend (United States’ Br. at 17.), the government
does not enjoy immunity for “uniquely government functions.” Indian Towing Co. v. U.S., 350
U.S. 61, 64. As the Supreme Court has noted, “the very purpose of the Tort Claims Act was to
waive the Government’s traditional all-encompassing immunity from tort actions and to establish
novel and unprecedented governmental liability.” Rayonier, Inc. v. United States, 352 U.S. 315,
391 (1957). Instead, the government may be liable under the Federal Tort Claims Act “in the
same manner and to the same extent as a private individual under like circumstances.” 28
U.S.C.A. § 2674.
The United States claims that there is only one analogous tort principle applicable to Mr.
Lyttle’s case. (United States’ Br. at 18.) This is too narrow a view. The government, in so
claiming, ignores the tort claim of general negligence, a long-standing and well-recognized
principle in North Carolina. North Carolina law states that “[t]he law imposes upon every person
who enters upon an active course of conduct the positive duty to exercise ordinary care to protect
others from harm, and calls a violation of that duty negligence.” Council v. Dickerson's, Inc.,
233 N.C. 472, 474, 64 S.E.2d 551, 553 (1951).
When a complaint alleges general negligence under the Federal Tort Claims Act, “[t]he
test is no more than whether Government agents in undertaking to perform an active course of
conduct, exercised such ordinary care as is required of a reasonable, prudent person under the
circumstances.” Lumsden v. United States, 555 F. Supp. 2d 580, 589 (E.D.N.C. 2008). In
Lumsden, the Court found that the plaintiffs had sufficiently pleaded a claim of negligence under
the Federal Tort Claims Act by alleging that the Government “failed to exercise ordinary care

18

and skill in undertaking a course of conduct.” Id. The Eastern District of North Carolina found
that this claim of general negligence was sufficient to survive the defendant’s 12(b)(6) Motion to
Dismiss, regardless of whether any special duty situations, such as the United States proposes,
were analogous. Id. at 595. In the instant case, the Amended Complaint sufficiently pleads
general negligence by alleging that Defendants failed to use reasonable care in their course of
conduct. (Am. Compl., ¶¶ 153-157.) Specifically, the complaint pleads that Defendants failed to
exercise reasonable care in such a way that resulted in Mr. Lyttle’s wrongful detention and
deportation. (Id., ¶ 154.) Such negligent conduct by Defendants includes Defendants’ failure to
review readily available documentation, failing to investigate Mr. Lyttle’s claims that he was a
U.S. citizen as required, manipulating Mr. Lyttle into signing Form I-826, failing to protect a
mentally disabled individual from coercive interrogation tactics, failing to provide Mr. Lyttle in
assistance with understanding his rights, failing to adequately train personnel, and detaining and
deporting a U.S. citizen. (Id., ¶ 155.)
In additional to general negligence, it is a well-recognized principle that “[o]ne who
undertakes, gratuitously or for consideration, to render services to another which he should
recognize as necessary for the protection of the other's person or things, is subject to liability to
the other for physical harm resulting from his failure to exercise reasonable care to perform his
undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the
harm is suffered because of the other's reliance upon the undertaking,” Restatement (Second) of
Torts § 323 (1965). This principle has long been recognized by North Carolina courts. Rabon v.
Rowan Mem'l Hosp., Inc., 269 N.C. 1, 4-5, 152 S.E.2d 485, 487 (N.C. 1967). Additionally, the
Supreme Court has recognized the viability of this principle under the Federal Tort Claims Act,
even where the harm suffered was not a physical injury. See, Indian Towing Co., 350 U.S. at 69.

19

The United States and ICE have endeavored to provide a service to individuals in custody
claiming to be U.S. citizens through the Hayes Memo and Morton Memo, which outline special
procedures that ICE officers are required to follow when investigating someone claiming to be a
U.S. citizen. (Am. Compl., ¶¶ 70-76.) This service is necessary to protect U.S. citizens from
illegal deportation. By negligently failing to adhere to procedure and deporting Mr. Lyttle to
Mexico, defendants greatly increased the risk of harm to Mr. Lyttle. Indeed, the Amended
Complaint more than adequately alleges that Mr. Lyttle suffered a number of harms as a result of
Defendants’ actions in negligently deporting him. (Id., ¶¶ 153-157.) The Amended Complaint
also sufficiently alleges that Mr. Lyttle relied on Defendants in their provision of services, as the
United States is duty bound not to deport U.S. citizens. (Id., ¶ 4.)
This case is distinguishable from Florida Auto Auction of Orlando, Inc. v. U.S., cited by
the United States on page 17 of its Brief, in two respects. In that case, the court rejected the
plaintiff’s contention that the defendants had violated Restatement (Second) of Torts § 323
because the government did not render services to the plaintiffs, and the plaintiffs did not rely
upon the defendants’ actions. Florida Auto Auction of Orlando, Inc. v. U.S., 74 F.3d 498, 504-05
(4th Cir. 1996). However, unlike the automobile regulation in that case, ICE’s policies are
designed to afford a specific protection to a specific set of people. Additionally, Mr. Lyttle did
rely on Defendants’ actions as he did not and could not contact anyone to obtain a copy of his
citizenship documentation, and had to rely on ICE officials to locate the documentation. (Am.
Compl., ¶ 61.) In failing to exercise reasonable care in investigating Mr. Lyttle’s claims of U.S.
citizenship, as they are required to do pursuant to the Hayes Memo and Morton Memo, the
United States may be properly liable under the Federal Tort Claims Act.

20

The United States also incorrectly contends that Mr. Lyttle’s case is barred by the public
duty doctrine.7 (United States’ Br. at 16-17.) The public duty doctrine is not applicable in Mr.
Lyttle’s case. The public duty doctrine has no applicability whatsoever to claims under the
Federal Tort Claims Act. The Supreme Court held that “the [Federal Tort Claims] Act requires a
court to 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.’” United States v. Olson, 546 U.S. 43, 46 (2005) (citations
omitted). The public duty doctrine is a doctrine that applies to public entities, not private
persons. As the Eastern District of North Carolina has previously held, “[t]he ‘public duty’
doctrine has no application to an FTCA action, however. Whether or not state or local law
enforcement officers would be liable under state law on the same or analogous facts is irrelevant
under the Federal Tort Claims Act.” Lumsden, 555 F. Supp. 2d at 595.
Moreover, the public duty doctrine does not apply when government officials act in the
affirmative. Blaylock v. N. Carolina Dept. of Correction-Div. of Cmty. Corr., 200 N.C. App.
541, 546, 685 S.E.2d 140, 144 (N.C. Ct. App. 2009). In the instant case, the Amended
Complaint adequately alleges that Defendants acted affirmatively not only by coercing and
manipulating Mark Lyttle into signing Form I-186, but also by creating and sanctioning policies,
patterns, practices and customs of selecting inmates to detain, interrogate and deport based on
their race and/or ethnicity. (Am. Compl., ¶ 155.) The Amended Complaint also adequately
alleges that Defendants acted in the affirmative by detaining, holding and deporting a U.S.
Citizen. (Id.)
7

Defendants also claim that Mr. Lyttle was contributorily negligent in representing that he was a Mexican citizen.
The complaint adequately alleges that Mr. Lyttle never told anyone that he was a Mexican citizen, and repeatedly
asserted that he was a U.S. citizen. FAC ¶ 56, 60, 65. Additionally, contributory negligence is not a bar to recovery
when “the defendant has engaged in…wanton conduct.” Thompson v. Bradley, 142 N.C. App. 636, 640-41 (N.C.
Ct. App. 2001).

21

The public duty doctrine also does not apply where the public official’s negligence is the
direct cause of the plaintiff’s injuries. Moses v. Young, 149 N.C. App. 613, 616, 561 S.E.2d 332,
334 (N.C. Ct. App. 2002). The North Carolina Court of Appeals, in so noting, determined that
the public duty doctrine only applies when the official’s negligence is the proximate or indirect
cause of the harm. Id. In other words, the public duty doctrine applies only when an intervening
circumstance was the direct cause of the harm to the plaintiff. The Amended Complaint
adequately alleges that Mr. Lyttle was harmed directly by Defendants. (Am. Compl., ¶ 157.)
See Strickland v. University of North Carolina at Wilmington,No. COA10-1589, at 16 (N.C. Ct.
App. Jul. 19, 2011) (holding that “although UNC-W police officers may not have been the last
link in the chain of causation for Plaintiff’s injury, . . . the UNC-W police department was the
impetus for the injurious force.”). The public duty doctrine is therefore not applicable to these
actions by the United States.
Additionally, the existence of a “special relationship” constitutes an exception to the
public duty doctrine. Stone v. N. Carolina Dept. of Labor, 347 N.C. 473, 482, 495 S.E.2d 711,
717 (N.C. 1998). The North Carolina Supreme Court has recognized that the government has a
“special relationship” with a person once that person is in custody. Multiple Claimants v. N.
Carolina Dept. of Health & Human Services, Div. of Facility Services, Jails & Det. Services, 361
N.C. 372, 379, 646 S.E.2d 356, 360 (N.C. 2007) (“The special relationship exception also
applies to the facts of the instant case because of the relationship between the State and inmates
by reason of the inmates' inability to care for themselves. This special relationship has been
recognized by both this Court and the United States Supreme Court.”). See also, Estate of
Burgess ex rel. Burgess v. Hamrick, 698 S.E.2d 697, 703 (N.C. Ct. App. 2010) review denied,
703 S.E.2d 444 (N.C. 2010).

22

The North Carolina Supreme Court in Multiple Claimants noted that “‘statutes which
create a special duty or specific obligation to a particular class of individuals’ might merit
different treatment than statutes that protect the general public.” Multiple Claimants, 361 N.C. at
377, 646 S.E.2d at 359 (2007). In the instant case, the Amended Complaint adequately alleges
that the negligent conduct occurred when Mr. Lyttle was in custody of ICE, an entity of the
United States. As Mr. Lyttle was in custody, he was unable to care for his own mental health;
neither was he able to contact anyone who might assist him. (Am. Compl. ¶ 61.) The Amended
Complaint also adequately alleges that ICE directives, as articulated in the Hayes Memo and
Morton Memo, are designed to protect detainees who claim to be U.S. citizens, not the public at
large. (Id., ¶¶ 70-76.) Accordingly, ICE agents had a special relationship with Mr. Lyttle and
had a duty to protect him. The public duty doctrine, therefore, does not afford the United States
special protection in this case.
Finally, to the extent that the United States claims that physical harm is necessary,
(United States’ Br. at 18), nothing in the Federal Tort Claims Act requires as much and case law
suggests otherwise. See 28 U.S.C.A. § 2674; see also Wormley v. United States, 601 F.Supp.2d
27, 42-43 (D.D.C. 2009) (FTCA claim for overdetention in Federal prison). The Klassette by
Klassette case cited by the United States does not contend that duties towards persons in custody
are limited to physical harm. (See United States’ Br. at 18) (citing Klassette by Klassette v.
Mecklenburg Cnty. Area Mental Health, Mental Retardation & Substance Abuse Auth., 364
S.E.2d 179 (N.C. Ct. App. 1988)). While the plaintiff in that case was physically harmed, that
distinction appeared to play no role in determining the officer’s liability. Regardless, the
Amended Complaint sufficiently alleges that Mr. Lyttle did suffer physical harm, from which

23

Defendants unreasonably failed to protect him. (Am. Compl., ¶¶ 107-08, 163-64.) For all the
reasons set forth above, Mr. Lyttle’s negligence claim is viable.
C.

Plaintiff's IIED Claim is Viable, and He Has Alleged Extreme and
Outrageous Conduct.

Mr. Lyttle has properly pled a cause of action for intentional infliction of emotional
distress. One way to claim intentional infliction of emotional distress (“IIED”) is to plead “(1)
extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe
emotional distress to another.” Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335
(1981). In his complaint, Mr. Lyttle repeatedly detailed Defendants’ outrageous conduct. For
example, Defendant Faucette knew Mr. Lyttle has bipolar disorder yet interrogated him without
a witness and did not allow him to review her records of the interrogation before he signed them.
(Am. Compl., ¶¶ 40, 44-45.). Further, the Amended Complaint alleges that Defendants Caputo,
Faucette, Kendall, and/or individual ICE Doe Defendants found multiple indications of Mr.
Lyttle’s American citizenship, yet they continued to complete forms to detain and deport him.
(Id., ¶¶ 47-55, 60.)
Such conduct was far more extreme than examples provided by the United States to
attempt to defeat this claim. For instance, in Dobson v. Harris, the defendant merely “subject[ed
the plaintiff] to questioning and investigation . . . .” 134 N.C. App. 573, 579, 521 S.E.2d 710,
715 (1999), rev’d on other grounds, 352 N.C. 77, 530 S.E.2d 829 (2000). Similarly, in Ayerza v.
Cabarrus Cnty. Dep’t of Soc. Servs., the defendant allegedly misrepresented and “misled” the
plaintiff, but the result was merely that the plaintiff would not receive “any serious consideration
as an adoptive placement for [her cousins].” No. COA09-1050, 2010 WL 2367204, *2-3 (N.C.
Ct. App. June 15, 2010) (unpublished). And in Walker v. City of Durham, a suspect was released
after the defendant mishandled evidence; the plaintiff feared another attack but did not allege that
24

it occurred. No. COA02-1297, 2003 WL 21499222, *1, 3 (N.C. Ct. App. July 1, 2003)
(unpublished).
Here, Defendants, in their treatment of Mr. Lyttle, completed forms that had the
foreseeable consequence of forcing him out of the United States, his native country, and into a
foreign country with little hope of speaking with others, including family members, or ever
returning home. (Am. Compl., ¶¶ 49-54, 95, 97, 104.) Additionally, Defendants deliberately and
recklessly ignored evidence of Mr. Lyttle’s United States citizenship and his mental illness. (Id.,
¶¶ 46-48, 57, 104.) Indeed, the extent of Defendants’ disregard for Mr. Lyttle’s citizenship and
efforts to deport him belie the defendant’s assertion that the officers were only “following up” on
a referral. (United States’ Br. at 19.)
Further, the United States cites to cases that were resolved at summary judgment, by
which time the plaintiffs had a chance to pursue discovery . Dobson, 134 N.C. App. at 578, 521
S.E.2d at 715, 714; Foster v. Crandell, 181 N.C. App. 152, 167-68, 638 S.E.2d 526, 537 (2007).
In contrast, Mr. Lyttle has had no chance for discovery.
In addition to a plausible claim under the three elements stated in Dickens, Mr. Lyttle
also adequately plead a cause of action for IIED based on recklessness. “[T]he claim for
intentional infliction of emotional distress may . . . lie where the defendant's actions indicate a
reckless indifference to the likelihood that they will cause emotional distress to the plaintiff.”
Bryant v. Thalhimer Bros., Inc., 113 N.C. App. 1, 7, 437 S.E.2d 519, 522-253 (1993). See also
Dickens, 302 N.C. at 452, 276 S.E.2d at 335 (“The tort may also exist where defendant's actions
indicate a reckless indifference to the likelihood that they will cause severe emotional distress.”).
Significantly, even false accusations of shoplifting can be enough to claim IIED. See
Rogers v. T.J.X. Cos., 101 N.C. App. 99, 106-07, 398 S.E.2d 610, 614 (1990) (holding that lower

25

court erred in entering summary judgment against plaintiff on claim for IIED where defendant
“resisted all attempts by the plaintiff to prove her innocence” and caused plaintiff to feel
“‘stripped of her dignity’”), rev’d on other grounds, 329 N.C. 226, 404 S.E.2d 664 (1991). In
another case, the North Carolina Supreme Court held that a jury can properly find for plaintiffs
who claimed IIED after being accused of stealing, detained for less than two hours, and
subjected to a manager’s “extreme and reckless” behavior. See West v. King’s Dep’t Store, Inc.,
321 N.C. 698, 700-01, 705-06, 365 S.E.2d 621, 622-23, 625-26 (N.C. 1988). Expediting Mr.
Lyttle’s deportation despite knowledge of his citizenship and the opportunity for more
investigation, (Am. Compl., ¶¶ 47-58), is at least as reckless and outrageous as bullying
shoppers.
IIED compensates for actions beyond “all bounds of decency tolerated by society . . . .”
West, 321 N.C. at 704, 365 S.E.2d at 625. Unjustly exiling a man ought to be beyond this
society’s bounds.
III.

The Foreign Country Exception Does Not Limit Plaintiff's FTCA Claims.
Mr. Lyttle’s FTCA claims are not barred by the foreign country exception because they

are based on injuries that he suffered while in the United States. Section 2680(k) is a limited
exception to the waiver of sovereign immunity created by the FTCA that bars claims “arising in
a foreign country.” 28 U.S.C.A. § 2680(k). The Supreme Court has interpreted § 2680(k) to bar
only those claims based on injuries where the “place of harm” suffered by the plaintiff is located
in a foreign country. Sosa v. Alvarez-Machain, 542 U.S. 692, 705-12 (2004). In Sosa, the
plaintiff was abducted from his home in Mexico, held overnight in a Mexican motel, and forcibly
transported by private plane from Mexico to the United States. Sosa, 542 U.S. at 698. In
contrast, Mr. Lyttle was seized by ICE agents in North Carolina, wrongfully detained and

26

interrogated in both North Carolina and Georgia, and transported by plane to Texas before
illegally being expelled from the United States. (Am. Compl., ¶¶ 37-101.) As a result of these
actions Mr. Lyttle has suffered inter alia physical and psychological injuries occasioned in the
United States. (Id., ¶ 130.) The injuries arising in the United States form the basis of Mr.
Lyttle’s FTCA claims, and therefore the foreign country exception does not bar jurisdiction.
The United States mischaracterizes the damages sought by Mr. Lyttle as being “based in
large part” on injuries he sustained during the four months he spent in Central America. (United
States’ Br. at 22.) Rather, the principal basis for Mr. Lyttle’s FTCA claims are the injuries he
incurred in the United States as a result of the torts of false imprisonment, negligence, and IIED
as stated in Counts 4-6 of the Amended Complaint. (Am. Compl., ¶¶ 148, 154-5, 161.) The
United States misconstrues the Amended Complaint by focusing on the sixteen paragraphs that
describe Mr. Lyttle’s foreign injuries, (United States’ Br. at 22-3 (citing to Am.Compl. ¶¶ 96111)), while ignoring the seventy-eight paragraphs describing Mr. Lyttle’s mistreatment within
the borders of the United States. (Am. Compl., ¶¶ 29-95, 112-125.) The Amended Complaint
clearly states that Mr. Lyttle has suffered physical and psychological harms as a consequence of
this tortious mistreatment. (Am. Compl., ¶¶ 151, 157, 163-4.). These are actionable injuries
pursuant to North Carolina tort law. See generally Dickens v. Puryear, 276 S.E.2d 325, 331
(1981) (“The tort of intentional infliction of mental distress is recognized in North Carolina);
Hales v. McCrory-McLellan Corp., 260 N.C. 568, 570, 133 S.E.2d 225, 227 (1963) (‘False
imprisonment is the illegal restraint of the person of any one against his will”) (citations
omitted); Wyatt v. Gilmore, 57 N.C. App. 57, 58, 290 S.E.2d 790, 791 (N.C. Ct. App. 1982)
(tortfeasor is liable for any damage naturally resulting from his negligence). As such Mr.

27

Lyttle’s FTCA claims in no way “depend on” the injuries he suffered in Central America as
alleged by Defendants. (United States’ Br. at 22.)
Admittedly, the foreign country exception operates in this case to bar certain types of
damages that Mr. Lyttle otherwise would be entitled to recover, namely, those based solely on
the additional injuries that he suffered at the hands of third parties in Central America. However,
the United States’ argument that § 2680(k) should limit damages to those based on injuries that
Mr. Lyttle experienced “while in federal custody” is overbroad. (United States’ Br. at 23.) For
example, the foreign country exception does not restrict the damages that Mr. Lyttle may recover
for injuries originating in the United States that caused harms which he continued to experience
while in Central America. The Supreme Court has interpreted Congress’s use of the phrase
“arising in” in § 2680(k) to preclude jurisdiction only over claims based on injuries that
originated in a foreign country. See Sosa, 542 U.S. at 704-05 (analogizing language of §
2680(k) to contemporary state “borrowing statutes” that preclude jurisdiction over causes of
action that were time barred in the state “where [the] cause of action arose, or accrued, or
originated”) (emphasis in original) (internal citations omitted). As previously discussed, the
injuries giving rise to Mr. Lyttle’s FTCA claims originated in the United States as a result of his
arrest, detention, interrogation, and expulsion. (Am. Compl. ¶¶ 148, 154-55, 161.) These
injuries resulted in physical and psychological harms of an ongoing nature, among others. (Id.,
¶¶ 151, 157, 163-4.) The amount of recoverable damages to be proven at trial will encompass
the ongoing suffering Mr. Lyttle experienced in relation to these injuries while in Central
America.
An examination of the Sosa Court’s reasoning further supports this position. While
interpreting § 2680(k), the Court noted that the prevailing choice-of-law rules at the time the

28

FTCA was enacted required courts to apply the substantive law of “the place of injury to the
substantive rights of the parties.” Id. at 705-06 (internal quotations and citations omitted). To
adjudicate FTCA claims based on injuries occasioned in foreign countries, American courts
might have to apply foreign law. Id. The Supreme Court concluded that the legislative history
of § 2680(k) demonstrates that such an application of foreign law is precisely what Congress
intended the foreign country exception to avoid. Id. at 707-08. Mr. Lyttle’s FTCA claims as
described here do not raise the concerns expressed by the Sosa Court because the injuries
themselves occurred in the United States. Thus, there is no possibility that choice-of-law rules
might require the application of foreign law. Rather, the measurement of Mr. Lyttle’s damages
for the harms he continued to suffer in Central America will be determined in accordance with
available remedies in state tort law. Thus, the Sosa Court’s interpretation of the jurisdictional
scope of § 2680(k) does not apply to limit categories of damages such as Mr. Lyttle’s ongoing
injuries occasioned in the United States.
CONCLUSION
For the foregoing reasons, Plaintiff Mark Daniel Lyttle respectfully submits that this
Court should deny the United States’ Motion to Dismiss.
Respectfully submitted this 25th day of July, 2011.
MCKINNEY & JUSTICE, P.A.

With Co-Counsel:

/s/ Jeremy L. McKinney
JEREMY L. MCKINNEY
N.C. Bar No. 23318
ANN MARIE DOOLEY
N.C. Bar No. 33895
[e-mail]
[e-mail]
910 North Elm Street
Post Office Box 1800
Greensboro, North Carolina 27402

TROUTMAN SANDERS LLP
MICHAEL E. JOHNSON
Georgia Bar No. 395039
[e-mail]
BRIAN P. WATT
Georgia Bar No. 741841
[e-mail]
ALEXANDRIA J. REYES
Georgia Bar No. 428936
29

Telephone [phone]
Facsimile 336.275.6045
Cooperating Attorneys for the American Civil
Liberties Union of North Carolina Legal
Foundation

[e-mail]
Bank of America Plaza, Suite 5200
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
[phone] Tel
[phone] Fax

AMERICAN CIVIL LIBERTIES UNION
OF NORTH CAROLINA LEGAL FOUNDATION

AMERICAN CIVIL LIBERTIES UNION
IMMIGRANTS’ RIGHTS PROJECT

KATHERINE LEWIS PARKER
NC Bar No. 36263
Legal Director, American Civil Liberties Of
North Carolina Legal Foundation
Post Office Box 28004
Raleigh, North Carolina 27611
Telephone: [phone]
Facsimile: [phone]
[e-mail]

JUDY RABINOVITZ
American Civil Liberties Union Foundation
Immigrants’ Rights Project
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: [phone]
Facsimile: [phone]
[e-mail]

30

CERTIFICATE OF SERVICE
I hereby certify that on July 25, 2011, I electronically filed the preceding Memorandum

of Law in Opposition to United States' Motion to Dismiss with the Clerk of Court using the
CM/ECF system which will automatically send email notification of such filing to all parties of
record.

MCKINNEY & JUSTICE, P.A.
/s/ Jeremy L. McKinney
JEREMY L. MCKINNEY
N.C. Bar No. 23318
ANN MARIE DOOLEY
N.C. Bar No. 33895
[e-mail]
[e-mail]
910 North Elm Street
Post Office Box 1800
Greensboro, North Carolina 27402
Telephone [phone]
Facsimile 336.275.6045
Cooperating Attorneys for the American Civil
Liberties Union of North Carolina Legal
Foundation

31