LYTTLE v. The UNITED STATES OF AMERICA et al

Filing 60

REPLY to Response to Motion re 49 MOTION to Dismiss to correct Deficiency Notice filed by The UNITED STATES OF AMERICA. (Attachments: # 1 Index to Exhibits, # 2 Exhibit H - Memorandum from James T. Hayes, Jr., dated November 6, 2008, # 3 Exhibit I - Memorandum from John Morton, dated November 19, 2009) (Whitman, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Case No. 4:10-cv-142-D
____________________________________
)
MARK DANIEL LYTTLE,
)
)
REPLY IN SUPPORT OF UNITED
Plaintiff,
)
STATES’ MOTION TO DISMISS
)
v.
)
)
UNITED STATES OF AMERICA, et al., )
)
Defendants.
)
____________________________________)
REPLY IN SUPPORT OF THE UNITED STATES’ MOTION TO DISMISS
As discussed below, Lyttle’s explicit and tacit admissions in this case are his undoing.
Far from “assum[ing] disputed facts,” as Lyttle suggests in his opposition to the United States’
motion to dismiss, Pl.’s Opp’n at 1, we have relied solely on the few well-pled facts he has
alleged. It is true that a consequence of those facts is a dismissal of all three of Lyttle’s claims
against the United States, but it is one the law compels and no amount of discovery can change.
DISCUSSION
I.

LYTTLE’S FTCA CLAIMS SHOULD BE DISMISSED UNDER RULE 12(b)(1)
We showed in our opening brief that Lyttle’s three claims under the Federal Tort Claims

Act (“FTCA”) for false imprisonment, negligence, and intentional infliction of emotional distress
(“IIED”) in Counts 4-6 of his first amended complaint (“FAC”), respectively, should be
dismissed for lack of subject matter jurisdiction under Rule 12(b)(1). That is because the
FTCA’s “discretionary function” and “due care” exceptions preserve the United States’ sovereign
immunity in the circumstances of this case. See Def.’s Memo. at 6-12; 28 U.S.C. § 2680(a). In

arguing otherwise, Lyttle openly disregards binding Fourth Circuit case law and numerous
authorities from other jurisdictions that are directly on point.
A.

The “Discretionary Function” Exception (Counts 5 and 6)

Lyttle appears to have silently accepted our basic framework of cabining the discussion of
the discretionary function exception to his allegations concerning the manner in which ICE
agents interviewed him and investigated his immigration status, and the adequacy of their
training and supervision in these matters. See Def.’s Memo. at 7-8. These allegations form the
bulk of his FTCA claims for negligence and IIED in Counts 5 and 6. Id. Lyttle also has tacitly
conceded that the discretionary function exception knocks out his conclusory allegations about
negligent training and supervision, and “creating and/or sanctioning” policies concerning
detention, interrogation, and deportation. FAC ¶¶ 88-92, 155; Def.’s Memo. at 10-11.
With all that in mind, Lyttle begins his discussion of the discretionary function exception
by stating that federal officers lack discretion to violate the Constitution. Pl.’s Opp’n at 4. He
then cites Medina v. United States, 259 F.3d 220 (4th Cir. 2001)—a case in which the Fourth
Circuit, sua sponte, actually found that the discretionary function exception precluded various
FTCA claims arising out of the arrest and abandoned deportation of an alien, see id. at 229—and
argues that because “he has alleged sufficient facts to establish that Defendants violated his
Fourth and Fifth Amendment rights,” the discretionary function exception does not bar his FTCA
claims. Pl.’s Opp’n at 4. This argument suffers from two fatal fallacies.
The first is that the discretionary function exception cannot be overcome by any
generalized allegation of unlawful conduct, but only by a showing that discretion is limited by a
specific and mandatory directive. See United States v. Gaubert, 499 U.S. 315, 322 (1991);
Berkovitz v. United States, 486 U.S. 531, 536 (1988). Merely and vaguely alleging that federal
-2-

employees violated Lyttle’s Fourth and Fifth Amendment rights does not come anywhere close to
identifying a sufficiently specific constitutional mandate. See Shansky v. United States, 164 F.3d
688, 691 (1st Cir. 1999) (“Statements made at this level of generality do not satisfy Gaubert’s
and Berkovitz’s specific prescription requirement. Were the law otherwise, the discretionary
function exception would be a dead letter.”); accord Freeman v. United States, 556 F.3d 326,
339 (5th Cir. 2009) (same) (collecting cases).
Second, and independently, Lyttle’s allegations are woefully inadequate to establish a
constitutional violation. The individual federal defendants in this case have separately and amply
demonstrated that Lyttle has not alleged sufficient factual matter that they violated his
constitutional rights. See Docket No. 51. Because Lyttle’s constitutional claims against the
individual defendants thus fail as a matter of law, so too do his FTCA claims against the United
States. See Medina, 259 F.3d at 225 n.2 (noting that in an FTCA action “the United States is
entitled to avail itself of any defenses its agents could raise in their individual capacities”);
accord Denson v. United States, 574 F.3d 1318, 1336 (11th Cir. 2009) (holding that where
plaintiff has sued both United States under FTCA and government official under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for same
underlying conduct, but fails to establish that the latter committed a constitutional violation, the
United States may “contend that 28 U.S.C. § 2680(a) of the FTCA strips the district court of
jurisdiction to consider the tort claims because the officer acted within the scope of his discretion
when he engaged in the disputed conduct”).
Lyttle next argues that the discretionary function exception “does not apply here” because
the ICE agents “disregarded” or showed “deliberate indifference” towards evidence of his
citizenship, “had no reason to believe that [he] was a non-citizen,” and that they did not have
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discretion to deport, or even jurisdiction over, a U.S. citizen. Pl.’s Opp’n at 4-6. This grossly
misstates matters in several ways.
First, there can be no serious debate that ICE has the legal authority to detain and
investigate suspected criminal aliens. See 6 U.S.C. §§ 251-52, 542 (note). Second, Lyttle signed
several documents attesting that he was exactly that. See FAC ¶¶ 41-45, 54-55; FAC Exh. C;
Exhs. A, D, E.1 Third, in light of those documents, ICE had a reasonable basis and the discretion
to initiate deportation proceedings against Lyttle. See, e.g., Perez-Mejia v. Holder, 641 F.3d
1143, 1149 (9th Cir. 2011) (observing that “admissions by an alien to facts alleged in [a Notice to
Appear] . . . are binding, just as admissions made by a defendant in an answer to a civil
complaint are binding in a judicial proceeding”) (collecting cases); Matter of Ponce-Hernandez,
22 I&N Dec. 784, 785 (BIA 1999) (noting that recorded confessions of foreign citizenship are
“inherently trustworthy and reliable to prove alienage or deportability”). Fourth, even assuming
the ICE agents had and disregarded evidence contradicting Lyttle’s repeated admissions of
alienage, the discretionary function exception applies “whether or not the discretion involved be
abused.” 28 U.S.C. § 2680(a); see Williams v. United States, 242 F.3d 169, 175 (4th Cir. 2001).
Finally, the relevant question before the Court is not, as Lyttle poses it, whether “the
arrest and detention of a U.S. citizen is itself discretionary.” Pl.’s Opp’n at 5. It is instead
whether the particular conduct at issue here—how immigration officials came to a decision about
initiating deportation proceedings against Lyttle—is subject to the discretionary function
1

Although Lyttle states that he “has a long and well-documented history of significant
mental and cognitive disorders,” Pl.’s Opp’n at 2, he notably does not dispute that the ICE agent
who initially interviewed him (Agent Faucette) exercised discretion in assessing his ability to
understand what was being asked of him. See Def.’s Memo. at 10 n.6. Nor does Lyttle dispute
that Faucette’s judgment in this regard is confirmed by his own criminal records, which indicate
that he was not found incompetent to stand trial and that the judge who sentenced Lyttle did not
recommend “[p]sychiatric and/or psychological counseling” for him. Exh. G.
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exception.2 The answer to that question is clear, as even Lyttle expressly concedes that “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.” Pl.’s Opp’n at 5.
We have cited numerous cases, including one from the Fourth Circuit (Medina), holding
that a law enforcement officer’s conduct in interrogating a suspect, and an immigration official’s
conduct in investigating a suspected alien’s claim of citizenship and initiating deportation
proceedings, fall squarely within the discretionary function. See Def.’s Memo. at 8-10. Lyttle
brushes off these authorities primarily on the ground that “he affirmatively asserted his U.S.
citizenship to North Carolina ICE agents.” Pl.’s Opp’n at 5 n.2; see id. at 5-6. But that is exactly
the point. The way in which immigration officials investigate a claim of citizenship is the very
type of conduct that the discretionary function exception is meant to protect. See Nguyen v.
United States, 65 F. App’x 509, 2003 WL 1922969, *1-2 (5th Cir. 2001) (per curiam); Bernado
v. United States, No. 02-0974, 2004 WL 741287, *3 (N.D. Tex. Apr. 5, 2004); Diaz v. United
States, No. 99-6374, 2002 WL 31002842, *1 (N.D. Ill. Sept. 3, 2002).3 Indeed, another court,
citing the same authorities we have cited throughout our briefing, just recently held “there is little
doubt” that allegations of ICE agents “negligently fail[ing] to ascertain or verify [the plaintiff’s]
2

Lyttle thus has it backwards when he says the United States cannot seek dismissal “by
claiming that th[e] specific misconduct” alleged here “falls under the discretionary function
exception.” Pl.’s Opp’n at 5. That is in fact the precise inquiry. See, e.g., Medina, 259 F.3d at
227 (finding that immigration officials had discretion to arrest and initiate deportation
proceedings against a suspected alien, not to arrest a suspected alien without probable cause).
3

In Diaz, for example, the plaintiff “insist[ed]” he was a U.S. citizen in his lawsuit but
apparently told immigration officials at the time of the underlying incident that he was a Mexican
citizen, Diaz, 2002 WL 31002842, at *1—exactly the scenario Lyttle’s lawsuit presents. The
court in Diaz nevertheless held that the discretionary function exception barred the plaintiff’s
FTCA claims which were based on the immigration officers’ “determination of his citizenship,”
and their detention, allegedly coercive interrogation, and expedited removal of the plaintiff. Id.
This Court should do the same.
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citizenship status fall squarely within the discretionary function exception.” Douglas v. United
States, No. 09-2145, 2011 WL 2471516, *11 (M.D. Fla. June 22, 2011).4
In contrast, Lyttle has not cited a single opinion refusing to apply the discretionary
function exception where the plaintiff challenged why and how immigration officials decided to
initiate deportation proceedings. Pl.’s Opp’n at 3-6. For that and all of the other reasons we have
laid out, he has failed to meet his “burden of proving that the discretionary function exception
does not apply” here, Indem. Ins. Co. of N. Am. v. United States, 569 F.3d 175, 180 (4th Cir.
2009), and the Court should dismiss most of Counts 5 and 6 on that basis.
B.

The “Due Care” Exception (Counts 4-6)

As with the discretionary function exception, Lyttle has passively acquiesced to the two
foundational premises underlying our discussion of the due care exception. The first is that the
remainder of Counts 5 and 6, and the entirety of his false imprisonment claim in Count 4, are
predicated solely on the allegation that he was detained in North Carolina for two additional days
pending his removal proceedings. See Def.’s Memo. at 11. The second is that the due care
exception is relevant only to this portion of his FTCA claims—that which is based on his alleged
detention by ICE in North Carolina. Id. These points are critical, as Lyttle has conflated two
discrete aspects of those counts in arguing against the application of the due care exception.

4

Lyttle argues in passing that two other cases applying the discretionary function
exception to the alleged conduct of law enforcement agents in detaining and questioning a
suspect—O’Ferrell v. United States, 253 F.3d 1257 (11th Cir. 2001), and Mesa v. United States,
123 F.3d 1435 (11th Cir. 1997)—“are inapposite as out-of-circuit cases that did not involve
allegations of unconstitutional conduct.” Pl.’s Opp’n at 5 n.2. This is rather ironic given Lyttle’s
blatant attempt to persuade this Court to ignore binding Fourth Circuit case law. See infra
Section I-B. It is also wrong as a matter of fact, as those cases did involve allegations of
unconstitutional conduct, see O’Ferrell, 253 F.3d at 1263; Mesa, 123 F.3d at 1437 n.2, and
irrelevant because, as discussed above, Lyttle has failed to show that the ICE agents violated any
constitutional right in connection with his detention and interrogation.
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Lyttle essentially suggests that questions of fact exist about the initial decision to detain
him as a criminal alien, and the immigration agents’ alleged failure to investigate his claim of
citizenship and their “interrogation” of him. See Pl.’s Opp’n at 6-9. But even assuming all of
that were true (which it is not, as we have accepted any well-pled allegations for purposes of our
motion to dismiss), such “questions of fact” simply refer back to those portions of Lyttle’s FTCA
claims concerning the investigation and interrogation methods discussed above in Section I-A
under the discretionary function exception.5 They are completely irrelevant to that part of
Lyttle’s FTCA claims currently under consideration—those premised on the fact of his detention.
On that issue the Fourth Circuit’s decision in Welch v. United States, 409 F.3d 646 (4th
Cir. 2005), is on all fours with this case. Lyttle does not deny that he was detained under the
same statute as the plaintiff in Welch or that, once he “was deemed deportable, the [immigration]
officers had no discretion in their actions.” Id. at 652.
Rather, his complaint is with the officers’ decision to detain him in the first
instance. However, this is a complaint regarding the statute itself, not with any of
the particular officers’ alleged deviation from its mandate. Absent any allegation
of such a deviation it cannot be said that the officers acted with anything other
than due care.
Id. (emphasis added). This Court likewise should find that the North Carolina immigration
officials acted with due care because Lyttle does not allege they deviated from the mandate of 8
U.S.C. § 1226(c)(1)(B), which required his detention pending removal proceedings.
Lyttle may be right in a theoretical sense, see Pl.’s Opp’n at 19-20, that the due care
exception would not apply if a “statute requires an official to take a particular action” and the
“manner in which the act is undertaken” were “improper,” e.g., if an immigration official
5

And to be clear, any such “questions of fact” would not affect the discretionary function
analysis. The manner in which an immigration official investigates a suspected alien is a
paradigmatic example of a discretionary function. See supra Section I-A.
-7-

detained an individual under § 1226(c) “for a crime that was not deportable.” Welch, 409 F.3d at
653. But this again has no bearing on the fact that immigration officials were statutorily required
to detain Lyttle after he had been deemed deportable. See Demore v. Kim, 538 U.S. 510, 517-18
(2003). Although the due care exception may not foreclose his FTCA claims to the extent they
challenge the “manner in which” or the reasons why Lyttle was detained, the discretionary
function exception certainly does. See supra Section I-A. More to the point, Lyttle does not
deny that the due care exception applies to that part of his FTCA claims resting solely on ICE’s
alleged two-day detention of him in North Carolina; that part of Counts 5 and 6, and all of his
false imprisonment claim in Count 4, therefore should be dismissed on that basis.6
Relying on various cases from outside the Fourth Circuit, Lyttle also argues that the socalled “law enforcement proviso” in 28 U.S.C. § 2680(h) “supersedes” the due care exception,
and that the due care exception therefore does not foreclose his false imprisonment claim (one of
the torts listed in the proviso). See Pl.’s Opp’n at 9-11. But Lyttle also acknowledges that the
Fourth Circuit has explicitly held to the contrary. See id. at 11 n.4 (citing Welch, 409 F.3d at
651; Medina, 259 F.3d at 226). Needless to say, this Court should follow binding Fourth Circuit
precedent and dismiss Lyttle’s false imprisonment claim, as well as those portions of his
negligence and IIED claims resting on the fact of his detention, under the due care exception.
II.

LYTTLE’S FTCA CLAIMS SHOULD BE DISMISSED UNDER RULE 12(b)(6)
A.

False Imprisonment (Count 4)

Because immigration officials in North Carolina used a warrant and other types of legal
process to detain Lyttle, see FAC ¶¶ 49-52; Exhs. C-F, and because Lyttle does not dispute that

6

This is also why Lyttle’s reliance on Nguyen v. United States, 556 F.3d 1244 (11th Cir.
2009), is misplaced. See Pl.’s Opp’n at 9. That case says nothing about the due care exception.
-8-

such process was technically valid, his false imprisonment claim fails as a matter of North
Carolina law. See Def.’s Memo. at 13-14. In his response, however, Lyttle spends pages
debating a point we have never raised: the absence of probable cause. See Pl.’s Opp’n at 12-15,
17. Although the individual federal defendants have thoroughly demonstrated in their own
motion to dismiss that they had ample probable cause to detain him, see Docket No. 51, the
United States has not sought dismissal of the false imprisonment claim on that basis. That is
because, regardless of the existence of probable cause, a false imprisonment claim cannot lie
where, as here, the detention is “made under the form of legal process.” Rhodes v. Collins, 150
S.E. 492, 494 (N.C. 1929).
On that point Lyttle argues that he has “question[ed] the validity and constitutionality of
the process,” by which he means the manner in which North Carolina immigration officials
interrogated him and investigated his alleged claim of citizenship. Pl.’s Opp’n at 16-17. The
fundamental flaw in this argument is that it confuses two distinct concepts: “due process” in the
constitutional sense and “procedurally valid process” in the common law sense. Lyttle may
indeed be broadly challenging the “process” and “procedures” used to detain him, but his
allegations of inadequate procedures or “coercive interrogation methods” have no bearing on his
false imprisonment claim. As we have shown, the critical distinction relevant to that claim is one
between a detention predicated on process and one predicated on no process. See Melton v.
Rickman, 36 S.E.2d 276, 703 (N.C. 1945); Def.’s Memo. at 13-14. In other words, what matters
is the existence (or not) of a legal document (such as a warrant) authorizing the plaintiff’s
detention. See Fowle v. Fowle, 140 S.E.2d 398, 401 (N.C. 1965). So long as such a document
exists and it is not “absolutely void,” North Carolina courts will not recognize a false
imprisonment claim, even if the warrant was erroneously issued. Rhodes, 150 S.E. at 494-95.
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In this sense Lyttle correctly notes that an officer may be liable for false imprisonment “if
it appears on the face of the warrant that no jurisdiction exists for th[e] offense or if the charge
does not constitute a criminal offense.” Pl.’s Opp’n at 15. This is what the case law means by
“absolutely void.” See Alexander v. Lindsey, 55 S.E.2d 470, 474 (N.C. 1949); Rhodes, 150 S.E.
at 494-95; Bryan v. Stewart, 31 S.E. 286, 288 (N.C. 1898). But Lyttle does not, and could not in
good faith, claim that the warrant used to detain him suffered from such technical defects.
Although he contends that it was erroneously issued for various reasons, the fact that it was
issued and is not void on its face defeats his false imprisonment claim under North Carolina law.
B.

Negligence (Count 5)

North Carolina law also forecloses Lyttle’s FTCA negligence claim—because it would
“not impose liability for breach of a duty that is sufficiently analogous to the duty” supposedly
breached by the North Carolina ICE agents. Florida Auto Auction of Orlando, Inc. v. United
States, 74 F.3d 498, 505 (4th Cir. 1996); see Def.’s Memo. at 15-18. Lyttle’s arguments to the
contrary do not withstand scrutiny.
Lyttle begins by again framing the issue far too broadly. Citing Lumsden v. United States,
555 F. Supp. 2d 580 (E.D.N.C.), he suggests that he has pled a “tort claim of general negligence”
by alleging that “the Government ‘failed to exercise ordinary care and skill in undertaking a
course of conduct.’” Pl.’s Opp’n at 18-19 (quoting Lumsden, 555 F. Supp. 2d at 589). What
Lyttle fails to mention is that the Court in Lumsden described the relevant question this way:
[I]f a private person were to deliver to a known abuser of the chemical compound,
ether, both the keys to the known abuser’s vehicle and a canister of ether
belonging to the private person, would that private person be answerable to third
parties injured when the known abuser foreseeably became dangerously
intoxicated from huffing the ether, resulting in a traffic collision that caused injury
and death to those third parties?

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Lumsden, 555 F. Supp. 2d at 588. Likewise here, the issue is whether a private person would
owe a duty to a plaintiff who was in the custody of a third party (in this case, the State of North
Carolina) to conduct an error-free investigation into the plaintiff, ensure that the plaintiff
understood his legal rights, and provide assistance to him during an interrogation or before
signing legal forms in deciding whether to extend his detention. Lyttle, however, has cited no
authority supporting the imposition of such a duty or even a sufficiently analogous duty.
He instead appears to argue that the government undertook to render services to him and
other individuals who were “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.” Pl.’s Opp’n at 20. Contending that
the North Carolina ICE agents “negligently fail[ed] to adhere” to these procedures, Lyttle
concludes that the government is liable to him under a duty analogous to the “Good Samaritan”
doctrine. Id. at 19-20 (citing Restatement (Second) of Torts § 323 (1965)). But according to
Lyttle’s own complaint, the Hayes and Morton Memos were respectively issued on November 6,
2008, and November 19, 2009—approximately three and fifteen months after the North Carolina
ICE agents interviewed Lyttle and initiated deportation proceedings against him during the first
week of September 2008. See FAC ¶¶ 39, 49-55, 70, 75. And even if such policies were in place
at that time, under no reasonable interpretation do they “represent an effort specifically to ‘render
services’ to” Lyttle. Florida Auto Auction, 74 F.3d at 504 (rejecting “Good Samaritan” doctrine
as basis for imposing liability under FTCA where plaintiffs claimed that government “undertook
to render services to them by enacting regulation requiring presentation of certificates of title”
and that customs agents “failed to enforce that regulation with reasonable care”). As their titles

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suggest and their text confirms, those policies merely provided guidance to ICE agents when
investigating a claim of citizenship. Exhs. H, I.7
Equally flawed is Lyttle’s discussion of North Carolina’s public duty doctrine. Lyttle
declares that the “public duty doctrine has no applicability whatsoever to claims under the
[FTCA],” Pl.’s Opp’n at 21, but ignores the Fourth Circuit’s holding to the contrary. See Florida
Auto Auction, 74 F.3d at 502.8 That said, and as we have pointed out, the relevance of the public
duty doctrine is limited because private persons are not responsible for enforcing the nation’s
immigration laws, and “assessing the Government’s liability under the FTCA in the performance
of activities which private persons do not perform” requires a court to “look to the state-law
liability of private entities, not to that of public entities.” United States v. Olson, 546 U.S. 43, 46
(2005) (internal quotations and citation omitted). Lyttle thus misses the point by arguing that his
case fits various “exceptions” to the public duty doctrine. See Pl.’s Opp’n at 21-23. Whatever
the merits may be of that position, it would speak only to the potential liability of a state public
official; it does not change—and indeed, only highlights—the fact that a private individual would
not be liable in “like circumstances.” 28 U.S.C. § 2674; see Williams, 242 F.3d at 177 (noting
that, to find that Indian hospital owed common law duty to provide emergency services to nonIndian, plaintiff “would have to show that the Cherokee Indian Hospital was liable as a ‘private
individual,’ not as a public utility”). Because Lyttle has not established that North Carolina

7

Copies of the Hayes and Morton Memos are submitted with this reply brief solely to
rebut Lyttle’s arguments in his response brief, and are properly before the Court under Rule
12(b)(6) because they are incorporated into Lyttle’s complaint by reference. See Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); FAC ¶¶ 70-76.
8

This Court’s decision in Lumsden, which Lyttle cites for the same proposition, also did
not account for the Fourth Circuit’s analysis of the public duty doctrine in Florida Auto Auction.
See Lumsden, 555 F. Supp. 2d at 595.
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imposes upon private parties a duty analogous to the one he has proposed in this case—to use
“reasonable care” when initiating deportation proceedings against a suspected criminal alien,
FAC ¶¶ 154-55—his negligence claim in Count 5 should be dismissed.9
C.

Intentional Infliction Of Emotional Distress (Count 6)

As proof that he has pled extreme and outrageous conduct sufficient to sustain an IIED
claim, Lyttle points to the fact of his deportation and the North Carolina ICE agents’ alleged
“disregard” of evidence of his “citizenship and his mental illness.” Pl.’s Opp’n at 24-26. While
the former merely begs the question, the latter conveniently ignores the facts and the law.
Lyttle argues, for example, that Agent Faucette “knew [he] has bipolar disorder yet
interrogated him without a witness . . . .” Id. at 24. But he offers no support for the notion that
interviewing a bipolar individual without a witness “is so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.” Foster v. Crandell, 638 S.E.2d 526, 537 (N.C. Ct.
App. 2007).10 The issue instead is whether Faucette, who is not alleged to be a trained mental
health care provider, engaged in extreme and outrageous conduct in assessing Lyttle’s ability to
understand what was being asked of him. Lyttle alleges nothing of the sort. More than that,
Faucette’s apparent assumption that he could understand appears entirely reasonable given that
he was not found incompetent in connection with the criminal charge that led to his sentence at

9

Contrary to what Lyttle may believe, we have never suggested that physical harm is
necessary to state a claim under the FTCA. See Pl.’s Opp’n at 23. We have argued that physical
harm is relevant to the duty reflected in § 314A of the Restatement (Second) of Torts. See Def.’s
Memo. at 18. But because Lyttle does not even mention, much less rely on, that section as the
source of a private duty analogue, the absence of physical harm is simply a non-issue.
10

Not to mention that the sworn statement Lyttle signed specifically said: “I am willing
to make a statement without anyone else being present.” Exh. A at 1.
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the North Carolina correctional facility where Faucette interviewed him, or even in need of
psychiatric or psychological counseling at that time. See Exh. G. And while Lyttle also accuses
Faucette of not “allow[ing] him to review her records of the interrogation before he signed
them,” Pl.’s Opp’n at 24, he nevertheless went ahead and signed a sworn statement which
recorded his answers to her questions, indicated that he was an illegal criminal alien, and
contained the following sentence immediately preceding his signature: “I have read (or have had
read to me) the foregoing statement consisting of 2 pages.” Exh. A.
Nor can it be forgotten that a few days later Lyttle signed and received more documents
which reaffirmed his initial claim of Mexican citizenship and reflected his consent to expedited
removal. See Exhs. C-E. Given the reasonable presumption that Lyttle was competent to sign
such documents, and given that such admissions of alienage are binding and sufficient evidence
to prove deportability, see Perez-Mejia, 641 F.3d at 1149; Matter of Ponce-Hernandez, 22 I&N
Dec. at 785, it would be unwarranted to cast the decision of the North Carolina ICE agents to
initiate deportation proceedings against Lyttle based on his repeated admissions of alienage
(among other things)—even assuming they were aware of conflicting evidence of citizenship as
Lyttle alleges—as extreme and outrageous. It is clear that the North Carolina immigration
officials instead were simply performing their usual duties with the information they had
available to them. Lyttle’s IIED claim therefore should be dismissed.11

11

Lyttle has confused matters by suggesting that the North Carolina ICE agents were
“reckless.” Pl.’s Opp’n at 25-26. A defendant’s state of mind is a separate element of an IIED
claim, see Dickens v. Puryear, 276 S.E.2d 325, 335 (N.C. 1981), but it is not one we have put at
issue in this motion to dismiss. The only question before the Court is whether Lyttle has
sufficiently alleged conduct that is objectively extreme and outrageous. As we have shown, he
has not.
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III.

LYTTLE CONCEDES THE FOREIGN COUNTRY EXCEPTION APPLIES
Though unnecessary for the Court to address given that the FTCA claims should be

dismissed in toto for the reasons we have discussed, Lyttle concedes that the foreign country
exception, 28 U.S.C. § 2680(k), “operates in this case to bar certain types of damages . . . ,
namely, those based solely on the additional injuries that he suffered at the hands of third parties
in Central America.” Pl.’s Opp’n at 28. This is another significant, if understated, concession, as
Lyttle has alleged, and continues even in his response brief to highlight, four months’ worth of
claimed “foreign injuries.” Id. at 27; see id. at 2; FAC ¶¶ 96-111. But the parties now agree that
the foreign country exception precludes damages for all of those alleged injuries. That would
include any allegedly ongoing damages caused by such foreign injuries. See Sosa v.
Alvarez-Machain, 542 U.S. 692, 698, 701 (2004) (holding that foreign country exception barred
false arrest claim based on plaintiff’s “abduction” in Mexico, which was “kernel of a ‘claim
arising in a foreign country’” resulting in failed criminal prosecution in United States). Were the
Court to reach the issue, it thus should find that the foreign country exception limits Lyttle’s
FTCA claims in this manner.
CONCLUSION
For the foregoing reasons, the Court should grant the United States’ motion to dismiss.

Respectfully submitted this 10th day of August 2011,
TONY WEST
Assistant Attorney General, Civil Division
C. SALVATORE D’ALESSIO, JR.
Acting Director, Torts Branch

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/s/ James R. Whitman
JAMES R. WHITMAN
Trial Attorney
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel:
[phone]
Fax:
[phone]
E-mail: [e-mail]
D.C. Bar No. 987694
DAVID G. CUTLER
Trial Attorney
GEORGE E.B. HOLDING
United States Attorney
W. ELLIS BOYLE
Assistant United States Attorney
Civil Division
U.S. Attorney’s Office
Eastern District of North Carolina
310 New Bern Avenue
Suite 800 Federal Building
Raleigh, NC 27601-1461
Tel:
(9l9) 856-4530
Fax:
[phone]
E-mail: [e-mail]
N.C. Bar No. 33826
Attorneys for the United States

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CERTIFICATE OF SERVICE
I certify under penalty of perjury that on August 10, 2011, I electronically filed the
foregoing “Reply in Support of the United States’ 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/ James R. Whitman
JAMES R. WHITMAN
Trial Attorney
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel:
[phone]
Fax:
[phone]
E-mail:
[e-mail]
D.C. Bar No. 987694

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