LYTTLE v. The UNITED STATES OF AMERICA et al
REPLY to Response to Motion re 51 MOTION to Dismiss (to correct deficiency notice) filed by Dean Caputo, Dashanta Faucette, Robert Kendall. (Cutler, David)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
Case No. 4:10-cv-142-D
MARK DANIEL LYTTLE,
REPLY IN SUPPORT OF
MOTION TO DISMISS
UNITED STATES OF AMERICA, et al., )
REPLY IN SUPPORT OF THE ICE DEFENDANTS’ MOTION TO DISMISS
Mark Daniel Lyttle told federal immigration officials that he was a citizen of Mexico.
This claim directly corroborated information gathered by state authorities, leading the ICE
defendants to charge Lyttle as a removable criminal alien. In his response brief, plaintiff seeks to
recant that key admission by relying upon a host of conclusory, extraneous, and unfounded
accusations. But Lyttle cannot take back specific facts – drawn from his own Amended
Complaint and other documents that he incorporates – showing that the ICE defendants acted
reasonably under the circumstances and in conformity with case law on point. The determinative
facts are simply not in dispute, and the ICE defendants are entitled to qualified immunity.
THIS COURT SHOULD DECLINE TO INFER A BIVENS REMEDY (COUNTS 1-3)
As a threshold issue, Lyttle erroneously contends that a cause of action is available under
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), unless
Congress “‘explicitly’” declares the existence of an alternative remedy. Pl.’s Opp’n at 2 (quoting
Carlson v. Green, 446 U.S. 14, 18-19 (1980)). But the Supreme Court has retreated from that
narrow position and, “in most instances,” refuses to extend Bivens – looking instead to the mere
design of a comprehensive statutory scheme. See Wilkie v. Robbins, 551 U.S. 537, 550 (2007)
(collecting cases); Schweiker v. Chilicky, 487 U.S. 412, 423 (1988). Indeed, the Immigration and
Nationality Act (the “INA”) is just such a scheme: it provides numerous avenues for relief, see
Defs.’ Memo. at 8-9, but expressly excludes district court review over constitutional claims
“arising from” the “commence[ment]” of removal proceedings, 8 U.S.C §1252(g); see also §
1252(a)(2)(D). Those are Lyttle’s claims in a nutshell.
Plaintiff’s reliance on certain immigration cases that have permitted Bivens claims is
misplaced because they “focus upon the alleged violation of . . . rights that occurred incident to
the administration of the removal process,” not claims arising from the decision to commence
removal proceedings. Turnbull v. United States, No. 06-cv-858, 2007 WL 2153279, at *11
(N.D. Ohio July 23, 2007). 1 But in Khorrami v. Rolince, 493 F. Supp. 2d 1061, 1068 (N.D. Ill.
2007), see Pl.’s Opp’n at 5, the court declined jurisdiction over a Fourth Amendment Bivens
claim because the challenged arrest and ensuing three-month detention were “a direct outgrowth
of the decision to commence [removal] proceedings.”
The same is true here: Lyttle was taken
into federal custody and detained solely because the ICE defendants decided to initiate removal
See, e.g., Argueta v. ICE, No. 08-1652, 2009 WL 1307236, at *16 (D.N.J. May 6,
2009), rev’d, 643 F.3d 60 (3d Cir. 2011) (distinguishing detention-related claims arising from the
commencement of removal proceedings from detention-related claims giving rise to removal
proceedings); accord Diaz-Bernal v. Myers, 758 F. Supp. 2d 106, 124 (D. Conn. 2010); see also
Mancha v. ICE, No. 06-cv-2650, 2009 WL 900800, at *1 (N.D. Ga. Mar. 31, 2009) (claims did
not involve removal proceedings).
See also Foster v. Townsley, 243 F.3d 210, 214-15 (5th Cir. 2001) (declining
jurisdiction over excessive force, due process, and equal protection claims brought under Bivens
because they were “all directly connected to the execution of the deportation order”); Guardado
v. United States, 744 F. Supp. 2d 482, 488 (E.D. Va. 2010), cited in Pl.’s Opp’n at 12.
proceedings. 3 See FAC ¶¶ 49-52. Lyttle then had available to him the opportunity to raise his
constitutional claims to Immigration Judge Cassidy (and to the Board of Immigration Appeals
and the Court of Appeals), see 8 U.S.C. §§ 1252(a)(D) & (b)(9); thus, he could have received
meaningful redress under the INA – the end to his detention and no removal to Mexico. 4
Lyttle also claims that the ICE defendants “have not pointed to a single case holding that
Bivens suits are per se unavailable in fields over which Congress has plenary power, because no
such case exists.” Pl.’s Opp’n at 7. But in Chappell v. Wallace, 462 U.S. 296, 304 (1983), cited
in Defs.’ Memo. at 10, the Court held that Bivens remedies are precluded in the military context
because of “Congress’[s] activity in the field” and because “Congress, the constitutionally
authorized source of authority over the military system of justice, has not provided a damage
remedy for [constitutional] claims by military personnel;” accord United States v. Stanley, 483
U.S. 669, 683-84 (1987). In the immigration field, Congress has similarly created a separate
administrative system for removal proceedings, expressly precluding district courts from
reviewing “any” claim “arising from” the commencement of those proceedings. 8 U.S.C. §
1252(g). While Lyttle correctly recognizes that the “Courts of Appeals have taken on an
Lyttle’s Fifth Amendment discrimination and due process claims are similarly precluded
because they involve actions that “bear more than a cursory relationship to the decision to
commence proceedings.” Khorrami, 493 F. Supp. 2d at 1068; see infra, e.g., Section II.C.3
(comparing Counts 1 & 3). Furthermore, the fact that Lyttle is a U.S. citizen is inconsequential:
the INA governs proceedings against aliens, including “an alien falsely claiming to be a U.S.
citizen,” Pl.’s Opp’n at 6; it also governs proceedings against suspected aliens, including a U.S.
citizen falsely claiming to be a foreign citizen, see Exhs. B, D; cf. 8 U.S.C. § 1252(b)(5).
Contrary to plaintiff’s position, see Pl.’s Opp’n at 5, the lack of compensatory remedies
under the INA makes no difference: “The question is not what remedy the court should provide
for a wrong that would otherwise go unredressed.” Bush v. Lucas, 462 U.S. 367, 388 (1983).
The critical inquiry is whether “the design of a Government program suggests that Congress has
provided what it considers adequate remedial mechanisms for constitutional violations.”
Schweiker, 487 U.S. at 423; see, e.g., Zimbelman v. Savage, 228 F.3d 36, 371 (4th Cir. 2000)
(declining Bivens remedy even though no relief was available) (collecting cases); Guardado, 744
F. Supp. 2d at 490 (no Bivens claim even though the INA does not provide “money damages”).
increased role in this field,” Pl.’s Opp’n at 9 (collecting cases), that only proves the point: district
courts should refrain from fashioning Bivens remedies in cases like this one, see Defs.’ Memo. at
8-9 (collecting cases); see also, e.g., Guardado, 744 F. Supp. 2d at 488, 490.
THE ICE DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY 5
A. Lyttle Fails To State A Clearly Established Fourth Amendment Claim (Count 3)
As a preliminary matter, the Supreme Court and Fourth Circuit have cautioned against
creating a constitutional tort remedy for malicious prosecution. See Defs.’ Memo. at 15
(collecting cases). Plaintiff does not dispute that such claims are not viable under the
Constitution, see Pl.’s Opp’n at 13 n.10, but instead recasts his Fourth Amendment claim as one
“based not on the ICE Defendants’ prosecution of him pursuant to valid legal process,” id. In
fact, though, this particular claim rests on the theory that plaintiff was unreasonably detained by
the ICE defendants “well beyond the scheduled release date” from state custody. FAC ¶ 141.
And Lyttle’s transfer to federal custody (and thus his continued detention in Georgia) occurred
only because the ICE defendants charged him as removable alien, commenced removal
proceedings, and served him with legal process. See FAC ¶¶ 49-52; Exhs. D-G. Count 3 is thus
nothing more than a claim for malicious prosecution. 6 See Defs.’ Memo. at 15 (collecting
Regardless of whether malicious prosecution is a freestanding claim under the Fourth
Amendment, the ICE defendants do not “sidestep the question of probable cause entirely” by
While the ICE defendants agree that “the facts alleged in the complaint must be taken as
true,” Pl.’s Opp’n at 11 (citing Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)), Lyttle
conveniently ignores the heart of the Supreme Court’s formulation of plausibility pleading,
requiring “‘factual content’ demonstrating ‘more than a sheer possibility’ of unconstitutional
conduct.” Defs.’ Memo at 13 (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
To be clear, once plaintiff was charged as a removable criminal alien, his ensuing
detention in ICE custody was under lawful authority – in fact, mandated pursuant to statute. See
Defs.’ Memo. at 14 (citing 8 U.S.C § 1226(c); Demore v. Kim, 538 U.S. 510, 517-18 (2003)).
analyzing Count 3 in this manner. Pl.’s Opp’n at 13 n.10. To the contrary, the ICE defendants
have addressed that inquiry head-on by meticulously demonstrating that Lyttle has failed to
plead the absence of probable cause; indeed, the few well-pled facts (and those incorporated by
reference) show the exact opposite: the existence of probable cause. See Defs.’ Memo. at 15-23.
1. North Carolina Officials Determined That Lyttle Was A Citizen Of Mexico
It is no small acknowledgment by Lyttle that North Carolina authorities would alert
federal officials to “inmates who they ‘believed to be foreign born and non-US citizens.’” Pl.’s
Opp’n at 14 n.11 (quoting FAC ¶ 29). That’s exactly what happened in this case: NCDOC noted
on plaintiff’s “intake form” that he was an “alien” born in “Mexico.” FAC ¶¶ 32-33. They
subsequently “notified” ICE of this finding. Id. ¶ 36. Without citing a case, however, plaintiff
contends that the alienage data recorded on his “booking sheet d[id] not establish probable cause
to arrest and detain Mr. Lyttle.” Pl.’s Opp’n at 14 n.11. But Lyttle overlooks the crucial fact that
ICE may establish alienage “based on ‘routine booking information’ gathered by local law
enforcement officials.” Defs.’ Memo. at 16 (quoting Puc-Ruiz v. Holder, 629 F.3d 771, 781 (8th
Cir. 2010)); see also United States. v. Gomez, No. H-06-00176, 2006 WL 2248455, at *5 (S.D.
Tex. Aug. 4 2006) (alienage may be ascertained from biographical data on a booking sheet
“lawfully and independently” of questioning by ICE officials); cf. United States v. Figueroa, No.
99-6180, 2000 WL 963346, at *5 n.4 & *6 (10th Cir. July 12, 2000). The ICE defendants
reasonably relied on Lyttle’s criminal booking form to help establish his country of citizenship.
2. Lyttle Told Faucette That He Was Not A United States Citizen
At a minimum, Lyttle concedes that “the booking sheet provided ICE with sufficient
cause to investigate Mr. Lyttle’s citizenship status.” Pl.’s Opp’n at 14 n.11. And that follow-up
investigation provided the critical corroborating evidence: Lyttle’s sworn admission of Mexican
alienage that directly matched the information on his booking sheet. See Exh. B. Because courts
look to these admissions as proof of alienage, Lyttle’s sworn statement was more than sufficient
for purposes of probable cause. See Defs.’ Memo. at 17 and 20 n.12 (collecting cases). 7
Lyttle attempts to escape the significance of his own corroborating admission by
challenging its reliability, asserting that he was “‘coerced and manipulated’” into signing the
sworn statement. Pl.’s Opp’n at 16 (quoting FAC ¶ 54). In short, Lyttle claims that Faucette
doctored his sworn statement by recording erroneous admissions and forcing plaintiff to sign it
even though he could not read or understand the form. See id. Although plaintiff “does not
dispute that ‘coercion’ is a legal conclusion,” id., he nevertheless looks to five paragraphs in the
complaint as “factual” support for this baseless claim, id. (citing FAC ¶¶ 40, 45, 54, 56, 59). A
closer examination of those allegations shows otherwise.
First, these particular allegations do not adequately show that Faucette (or any ICE
defendant) actually knew of plaintiff’s purported cognitive impairments. See FAC ¶ 40
(“Faucette was aware that Mr. Lyttle was cognitively impaired and that he had, among other
things, bipolar disorder.”); id. ¶ 54 (alleging that Faucette “coerced and manipulated” Lyttle into
signing the statement notwithstanding “his serious and acknowledged mental disabilities”); id. ¶
59 (plaintiff suffered from “obvious cognitive and developmental limitations” and could not
“comprehend” the documents). Rather, these statements are strikingly similar to the conclusory
allegations rejected by the Supreme Court in Iqbal, 129 S. Ct. at 1951 (rejecting bare allegations
Plaintiff’s effort to distinguish these cases because they did not involve “the mix of
“mental disability, coercion, and facial unreliability” is misleading, Pl.’s Opp’n at 15 n.13,
because Lyttle himself fails to sufficiently allege that he was coerced. Absent coercion, plaintiff
does not dispute that it would be reasonable for the ICE defendants to rely on his sworn
statement to establish probable cause; in fact, his own case law supports this point. See United
States v. Torres-Lona, 491 F.3d 750, 756 (8th Cir. 2007) (finding that appellee’s statements of
Mexican birth “might be taken as an admission that he was an undocumented alien . . . . [and] a
reasonable person could have concluded that it was probable that [appellee] had unlawfully
entered the country”) (cited in Pl.’s Opp’n at 11.)
that petitioners “knew of, condoned, and willfully and maliciously agreed to subject” respondents
to unconstitutional policies, because they were “conclusory and not entitled to be assumed true”)
(emphasis added). At most, Faucette knew of Lyttle’s bipolar diagnosis (as reflected in her
handwritten notes from the interview), see Defs.’ Memo. at 19 (citing FAC ¶ 46; Exh. C), but
that diagnosis alone did not call into doubt plaintiff’s cognitive functioning or his ability to
answer basic questions about his name, place of birth, and country of citizenship, see id.
(collecting authorities). In fact, plaintiff never disputes that a bipolar diagnosis, by itself, is not
an indicator of cognitive impairment. See Pl.’s Opp’n 11-18. And without knowledge of
plaintiff’s purported inability to comprehend the questions he was asked, there would have been
no need for the ICE defendants to further assist Lyttle in doing so. 8
Plaintiff also underestimates the importance of his criminal sentencing just three weeks
prior to the time that he gave his sworn statement. See Pl.’s Opp’n at 16 n.14. Even if
competency to undergo criminal proceedings may in some situations depend upon the presence
of counsel, see Pl.’s Opp’n at 16-17 n.14 (discussing Indiana v. Edwards, 554 U.S. 164, 175
(2008)), Lyttle was required to possess, at a minimum, a reasonable level of rational competency.
See Defs.’ Memo. at 21 (collecting authorities). Thus, it was reasonable for the ICE defendants
to presume that plaintiff would be capable of answering basic biographical questions. See id.
At any rate, Lyttle has no answer at all for the criminal court’s specific finding that he did
not need “[p]sychiatric and/or psychological counseling.” Exh. A. And assuming the trial court
misjudged Lyttle’s mental condition – which plaintiff neither alleges nor argues – it would be
At worst, Faucette’s failure to adequately evaluate Lyttle’s alleged mental incapacity
was negligent conduct, which would not give rise to a constitutional tort. See infra Section
II.B.2. Yet, as shown in detail, there was simply no reason for the ICE defendants to question
Lyttle’s competency. Accordingly, plaintiff’s reliance on federal regulations governing the
procedures for mentally incompetent individuals is misguided, see Pl.’s Opp’n at 15 n.12
(quoting 8 C.F.R. § 1240.10(c)), and his reliance on case law discussing the rights of mentally
incompetent persons is equally misplaced, see id. at 14 (collecting cases).
unjust to hold the ICE defendants liable for similarly overestimating his ability to understand
basic biographical questions. Absent facts that the ICE defendants actually knew Lyttle was
unable to answer such questions, he has failed to show that they “coerced” him into signing a
document that he did not understand. See Monroe v. City of Charlottesville, 579 F.3d 380, 387
(4th Cir. 2009) (discrediting allegations that were conclusory, irrelevant, or implausible), cert.
denied, 130 S. Ct. 1740 (2010).
As a final matter, plaintiff challenges the reliability of his sworn statement on grounds
that he signed the form with the name “Mark Lyttle” instead of “Jose Thomas.” Pl.’s Opp’n at
14; see FAC ¶¶ 45, 56. But plaintiff’s sworn statement affirms, in three locations, his use of two
names – Jose Thomas and Mark Daniel Lyttle. See Exh B. The fact that he signed the form with
one name instead of the other is trivial. The fact that he actually signed the form is not.
3. Lyttle Admitted The Charges In The Notice Of Intent
After Lyttle verified in his sworn statement that he was citizen of Mexico, he admitted
yet again to being an alien when he signed the Notice of Intent and agreed to be removed. Exh.
D. But in an effort to minimize the impact of this second corroborating admission, Lyttle
similarly argues that the ICE defendants were “aware of [his] mental disability [and] forced him
to sign a form he did not understand.” Pl.’s Opp’n at 16 (citing FAC ¶¶ 54, 56). Once more, the
conclusory allegations he looks to in the complaint do not add up.
Plaintiff attempts to show coercion by alleging that the ICE defendants knew of his
“acknowledged” mental impairments. FAC ¶ 54. But the facts merely allege knowledge of his
bipolar diagnosis alone – nothing more. See Defs.’ Memo. at 19. And when challenged by the
ICE defendants to “specify even one medical or criminal record” to show his incapacity, Defs.’
Memo. at 20-21 (citing FAC ¶ 93), plaintiff fails to identify a single record, see Pl.’s Opp’n at
11-18. That is because Lyttle’s records revealed the opposite – competency to undergo legal
proceedings and a court’s decision against psychiatric treatment. See supra Section II.A.2.
Notwithstanding plaintiff’s booking sheet, sworn statement, waiver of rights, and
criminal history, plaintiff argues that the ICE defendants “ignore[d] affirmative evidence” of his
citizenship, including “computerized database searches” that “revealed that he was a U.S.
citizen.” 9 Pl’s Opp’n at 17 (citing FAC ¶ 47). Granting the assumption, however, that the ICE
defendants discovered inconsistent information regarding his citizenship, they still would have
retained arguable probable cause to charge and detain plaintiff, see Defs.’ Memo. at 22-23
(qualified immunity does not require actual probable cause), until a deciding immigration officer
or an immigration judge evaluated the evidence and made a final decision on his removability,
see 8 C.F.R. §§ 238.1(d) & (e). And Lyttle’s claim that he “repeatedly told” the ICE defendants
he was a U.S. citizen, see Pl.’s Opp’n at 17 (citing FAC ¶ 60), is similarly at odds with both his
sworn statement and the Notice of Intent, thus failing to negate the existence of arguable
probable cause, see Defs.’ Memo. at 23 n.13. 10 Accordingly, even if this Court finds that the
It is not clear that the ICE defendants even knew about these indicia of citizenship.
Indeed, Lyttle merely pleads that the records searches “revealed” possible indications of his
American citizenship – not that the ICE defendants actually came across these so-called
indicators. “[M]ore likely,” Iqbal, 129 S. Ct. at 1950, the records-searcher (who Lyttle fails to
specifically identify, see FAC ¶¶ 47-48) examined Lyttle’s criminal records for the sole reason of
determining another critical factor: whether plaintiff qualified as an aggravated felon for
purposes of administrative removal under 8 U.S.C. § 1226(c).
Moreover, the ICE defendants were not obligated to conclusively determine plaintiff’s
alienage at this initial stage. See Gerstein v. Pugh, 420 U.S. 103, 121 (1975) (explaining that
probable cause “does not require the fine resolution of conflicting evidence that a reasonabledoubt or even a preponderance standard demands, and credibility determinations are seldom
crucial in deciding whether the evidence supports a reasonable belief in guilt”); see also Pl.’s
Opp’n at 12 (citing Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996) (“Probable cause must be
supported by more than a mere suspicion, but evidence sufficient to convict is not required.”).
That task was for a final decision-maker (in this case, the immigration judge). Plaintiff’s own
case law supports this point. See Pl.’s Opp’n at 18 (quoting U.S. ex rel. Leong v. O’Rourke, 125
F. Supp. 769, 770-75 (W.D. Mo. 1954) (finding that petitioner was a U.S. citizen after making
combination of inculpatory and exculpatory facts did not actually rise to the level of probable
cause, the ICE defendants should “not [be] denied qualified immunity for making a mistake, as
long as that mistake [wa]s reasonable under the circumstances.” Smith v. Reddy, 101 F.3d 351,
356 (4th Cir 1996). Indeed, Lyttle tacitly concedes that the ICE defendants are not required to
demonstrate the existence of actual probable cause to secure qualified immunity. See Pl.’s
Opp’n Section II.A. He also cites no case demonstrating that officials who rely on a booking
sheet and multiple admissions, despite conflicting indications of citizenship, lack probable cause
to initiate removal proceedings. See id. To the contrary, the ICE defendants have shown that
booking sheets and admissions may, on their own and collectively, provide a reasonable basis to
do so. See Defs.’ Memo. at 16-17 (collecting cases). 11 Count 3 should be dismissed.
B. Plaintiff Fails to State A Clearly Established Equal Protection Claim (Count 2)
1. Lyttle Does Not Plead The Existence of Discriminatory Policies
Lyttle’s conclusory claim that the Line-level ICE defendants acted “pursuant to policies,
patterns, practices, or customs” to “detain, interrogate and deport [inmates] based on their race or
ethnicity,” FAC ¶ 87, is the exact type of allegation that the Supreme Court rejected in Iqbal.
See Defs.’ Memo. at 23-24. But when challenged to identify even one discriminatory policy
alleged in the complaint, see id. at 24, Lyttle cites – “first and foremost” – the Hayes Memo:
“That the Hayes Memo was issued at all is an indictment of the policies[,] patterns, practices and
customs of ICE.” Pl.’s Opp’n at 20. Because plaintiff cannot identify any specific policy
evidentiary and credibility determinations, but not finding that the government’s decision to seek
removal was made without probable cause).
In United States v. Galindo-Gallegos, 244 F.3d 728, 732 (9th Cir. 2001), the court held
that a U.S. citizen’s repeated “admissions” of alienage could be used to establish alienage, even
though it was known that he “repeatedly lied, both under oath and not under oath, in his various
immigration and deportation proceedings.” Although Lyttle was, at most, known to be bipolar,
he was not known to be a “proven liar” when claiming to be from Mexico. Id. (emphasis added).
causing the alleged discrimination in this case, he resorts to a memo with numerous safeguards
issued after the events in North Carolina as a means to conclude that the policies previously in
place were inadequate under the Fifth Amendment. See Defs.’ Memo. at 24 and 24 n.14. This is
wrong as a matter of logic, law, and the facts. Not only would evidence of remedial measures be
inadmissible to show “culpable conduct,” Fed. R. Evid. 407 (see also advisory committee’s
note), but the Memo does not even hint that the earlier policies were unconstitutional. Exh. H.
Although plaintiff cannot point to a single discriminatory policy, practice, or regulation,
he then attempts to infer their existence by pointing to the isolated “conduct of the ICE
Defendants.” Pl.’s Opp’n at 20. But the alleged actions of a few individuals also say nothing
about the existence of specific agency policies, and an examination of the ICE defendants’
conduct actually shows that they acted lawfully. First, the allegation that Faucette “failed and
refused to have a witness present” during Lyttle’s interview, Pl.’s Opp’n at 20; FAC ¶ 44, does
not show discriminatory behavior or any wrongful conduct, because plaintiff ignores the fact that
the person signing the form was “willing to make a statement without anyone else being
present.” Exh. B; Defs.’ Memo at 18. Lyttle then blindly repeats the allegation that he was not
given the “opportunity to review the contents” of the sworn statement. Pl.’s Opp’n at 20; FAC ¶
44, 45. But this overlooks the fact that the affidavit included specific language, directly above
plaintiff’s signature, that the signer has “read (or ha[s] had read to me) the foregoing statement”
and “affirm[s] that the answers attributed to me herein are true and correct to the best of my
knowledge and belief . . . .” Exh. B; Defs.’ Memo at 18 n.10. 12 And the fact the plaintiff signed
As the ICE defendants also explained, allegations that Lyttle gave his sworn statement
without a witness and the opportunity to review it would still not show that Faucette coerced
Lyttle to sign and approve the contents of the sworn statement by means of physical force or
verbal threats. Defs.’ Memo at 18 n.10. Nor would a departure from internal guidelines
demonstrate that Lyttle was singled out solely because of his race. See id. (citing Davis v.
Scherer, 468 U.S. 183, 194-196 & n.12 (1984)). Plaintiff tacitly concedes both points.
the form with “Mark Lyttle” instead of “Jose Thomas,” see Pl.’s Opp’n at 20 (citing FAC ¶ 45),
is yet another red herring. See supra Section II.A.2. As a final matter, Lyttle’s suggestion that
the ICE defendants discriminated by initiating removal proceedings with “no reasonable basis to
conclude” that he was an alien, Pl.’s Opp’n at 20-21, belies the facts contained in the booking
sheet, sworn statement, and Notice of Intent. See supra Section II.A.
Plaintiff Does Not Plead A Discriminatory Purpose
Lyttle then attempts to show that the ICE defendants acted with racial animus by arguing
that his Hispanic appearance was “[t]he only factor that [wa]s even remotely relevant” to the ICE
defendants’ “erroneous identification” of plaintiff as an alien. Pl.’s Opp’n at 21. This is patently
false. First, NCDOC originally identified Lyttle as an alien from Mexico – not ICE. FAC ¶¶ 30,
32-33, 36. Second, Lyttle told Faucette that he was an alien. See id. ¶¶ 41, 43; Exh. B. Third,
plaintiff agreed to removal. See FAC ¶ 54; Exh. D. Moreover, the ICE defendants did not have
“reason to question Mr. Lyttle’s mental competence,” Pl.’s Opp’n at 21, given their limited
knowledge of plaintiff’s bipolar diagnosis, his ability to stand trial, and a judge’s order against
psychiatric treatment, see supra Section II.A. At most, plaintiff implies that the ICE defendants
were negligent in assessing his competency, but that would not give rise to a Bivens claim. See
Defs.’ Memo. at 25 (collecting cases).
Although further claiming that the ICE defendants “paid lip service to protocol” by
disregarding the results of records searches revealing indicia of his U.S. citizenship, Pl.’s Opp’n
at 21, plaintiff fails to allege a single protocol that was violated, id., and fails to allege whether
the records-searcher actually became aware of that information, see FAC ¶¶ 47-48. Even if the
ICE defendants did come across conflicting information, however, it is misleading to say that
they “ignored voluminous and consistent evidence of Mr. Lyttle’s citizenship.” Pl.’s Opp’n at 22
(emphasis added). Rather, the booking sheet and plaintiff’s own admissions were compelling
evidence of his alienage, and the “failure to adequately examine” records or to perform a
“diligent inquiry,” FAC ¶¶ 91, 94, does not prove a discriminatory purpose. Because the
“‘obvious alternative explanation’” for the ICE defendants’ conduct was a nondiscriminatory
decision to charge plaintiff based on probable cause, Count 2 should be dismissed. Iqbal, 129 S.
Ct. at 1951 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 567 (2007)).
C. Plaintiff Fails To State A Clearly Established Due Process Claim (Count 1)
1. The ICE Defendants Did Not Deport Lyttle
By failing to address it, plaintiff concedes that his first stated theory of liability under the
Due Process Clause fails. See Defs.’ Memo. at II.C.1 (discussing FAC ¶ 127). The ICE
defendants in this case simply charged Lyttle – they did not decide his case or deport him.
2. The ICE Defendants Did Not Coerce Lyttle
Lyttle’s second theory of liability fares no better. See See Defs.’ Memo. at II.C.2
(discussing FAC ¶ 128). Beyond restating the conclusory allegations that the ICE defendants
“manipulated,” “coerced,” and “intimidate[ed]” Lyttle, and then “willfully disregarded and/or
covered up” his mental disabilities, plaintiff offers no new insight to link any factual allegations
in the complaint to these bare conclusions. 13 Pl.’s Opp’n at 23. Although plaintiff baldly claims
that the ICE defendants were “fully aware” of his “significant mental disabilities,” Pl.’s Opp’n at
24, the facts in the complaint demonstrate only their limited knowledge of Lyttle’s bipolar
diagnosis (as documented in Faucette’s handwritten notes), see Defs.’ Memo. at 28. Indeed,
plaintiff is entirely unresponsive to the argument that the complaint fails to allege – with any
Likewise, plaintiff’s generalization that the ICE defendants “conspired” with NCDOC
to deport a “known” U.S. citizen is not supported by a single factual allegation in the complaint.
See Pl.’s Opp’n at 23 (citing no allegations). Rather, NCDOC identified Lyttle as a possible
alien and merely notified ICE of that finding. FAC ¶¶ 29-37.
plausibility – that the ICE defendants were actually aware of his purported mental impairment.
See id. And the fact that Lyttle was competent to undergo criminal proceedings – not to mention
the judge’s decision against psychiatric treatment – further belies the bare allegation that he
could not understand basic questions. 14 Finally, plaintiff ignores the fact that Faucette
documented Lyttle’s bipolar diagnosis, FAC ¶ 46, which undermines the bald claim that she was
“disregarding” or “covering up” his known mental conditions. 15 See Defs.’ Memo. at 28.
3. Lyttle’s Due Process Claim Replicates His Fourth Amendment Claim
Although the complaint states that the ICE defendants “caused [Lyttle] to be deported
without reasonable basis or lawful authority,” FAC ¶ 129, plaintiff now argues that this claim is
“separate and distinct” from the Fourth Amendment claim, Pl.’s Opp’n at 25. But the ICE
defendants “caused” his deportation only in the sense that they charged him as a removable alien
based on the booking sheet and his own admissions of foreign citizenship. Thus, Count 1 should
be dismissed for the same reasons that his Fourth Amendment claim fails. See Defs.’ Memo. at
29; supra Section II.A.
Plaintiff also contends that “deporting a U.S. citizen is a deprivation of liberty in
violation of the Fifth Amendment.” Pl.’s Opp’n at 22 (citing e.g., Ho v. White, 259 U.S. 276,
Plaintiff also agrees that “a deficient mental condition is not enough, without more, to
render a waiver involuntary” under the Due Process Clause. Pl.’s Opp’n at 24 (discussing
United States v. Cristobal, 293 F.3d 134, 140-41 (4th Cir. 2002)). He suggests, however, that the
ICE defendants exploited his bipolar condition by interviewing him without a witness present
and failing to provide him the opportunity to review the content of his statement. Id. These
allegations are contradicted by the documents themselves. See infra Section II.B.1. (citing Exh.
B). Even if these allegations were true, they fall short of the physical force or verbal threats that
are typical of coercion. See Cristobol, 293 F.3d at 140 (describing coercive tactics).
The ICE defendants also did not violate protocol by allegedly failing to “provide a
copy” of the sworn statement to Lyttle, see Pl.’s Opp’n at 23 (citing FAC ¶¶ 44-45), because
plaintiff does not plead that this form was “filed with or presented to the Immigration Judge,” as
required under 8 C.F.R. § 1003.32(a). See FAC ¶¶ 44-45. Immigration officials in Georgia
would have filed the form with the immigration court – not the ICE defendants here.
284-85 (1922)). This generalization understates the specific inquiry in this case, see Anderson v.
Creighton, 483 U.S. 635, 640 (1987) (constitutional question must be particularized), and is
misplaced because the ICE defendants did not make the decision to deport Lyttle. Rather, they
charged Lyttle based on probable cause – i.e., “reasonable basis or lawful authority” – that he
was a criminal alien. Count 1 merely duplicates his malicious prosecution claim (Count 3). 16
D. Plaintiff Has Not Alleged A Violation Of Clearly Established Law (Counts 1-3)
Although plaintiff favors the Ninth Circuit’s interpretation of the qualified immunity
doctrine, see Pl.’s Opp’n at 25 (quoting al-Kidd v. Ashcroft, 580 F.3d 949, 970 (9th Cir. 2009),
rev’d, 131 S. Ct. 2074 (2011)), the Supreme Court recently reaffirmed that officials have
“‘breathing room to make reasonable but mistaken judgments about open legal questions,’”
Defs.’ Memo. at 30 (quoting al-Kidd, 131 S. Ct. at 2085). Even if the ICE defendants misjudged
Lyttle’s mental capacity (given, in part, the facts surrounding Lyttle’s criminal sentencing) or
failed to properly weigh conflicting evidence (given the presumptions afforded admissions of
alienage), it simply cannot be said that the ICE defendants were “‘plainly incompetent’” or that
they “‘knowingly violate[d] the law.’” al-Kidd, 131 S. Ct. at 2085 (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)); see also Smith, 101 F.3d at 355-56.
For the foregoing reasons, the Court should grant the ICE defendants’ motion to dismiss.
Plaintiff also claims for the first time “that the detention of Mr. Lyttle for two days
without any opportunity for a hearing establishes a separate and distinct violation of the Due
Process Clause.” Pl.’s Opp’n at 25. He cites no facts, offers no legal argument, and gives no
context for this novel claim. See id. Nevertheless, because the ICE defendants charged plaintiff
based on probable cause that he was removable, Lyttle was “not constitutionally entitled to a
separate judicial determination that there [wa]s probable cause to detain him pending [removal
proceedings].” Baker v. McCollan, 443 U.S. 137, 143 (1979). Once charged, his detention was
“mandate[d]” until a final decision on his removability. See Demore, 538 U.S. at 517-18 (2003).
Assistant Attorney General, Civil Division
C. SALVATORE D’ALESSIO, JR.
Acting Director, Torts Branch
JAMES R. WHITMAN
Trial Attorney, Torts Branch
/s/ David G. Cutler
DAVID G. CUTLER
IL Bar No. 6303130
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel: (202) 616-0674
Fax: (202) 616-4314
GEORGE E.B. HOLDING
United States Attorney
W. ELLIS BOYLE
Assistant United States Attorney
310 New Bern Avenue
Suite 800 Federal Building
Raleigh, N.C. 27601-1461
Tel: (9l9) 856-4530
Fax: (919) 856-4821
N.C. Bar No. 33826
Attorneys for Dashanta Faucette,
Dean Caputo, and Robert Kendall
CERTIFICATE OF SERVICE
I certify under penalty of perjury that on August 17, 2011, I electronically filed the
foregoing “Reply in Support of the ICE Defendants’ 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
Ann Marie Dooley
Michael E. Johnson
Brian P. Watt
Alexandria J. Reyes
Katherine L. Parker
COUNSEL FOR DEFENDANT NORTH CAROLINA DEPARTMENT OF CORRECTION:
/s/ David G. Cutler
DAVID G. CUTLER
IL Bar No. 6303130
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel: (202) 616-0674
Fax: (202) 616-4314
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