LYTTLE v. The UNITED STATES OF AMERICA et al

Filing 75

MEMORANDUM AND RECOMMENDATIONS as to 49 and 51 Motions to Dismiss. Counsel should read the order and the attachment in their entirety for critical deadlines and information. Objections due by 12/1/2011. Signed by US Magistrate Judge William A. Webb on 11/14/2011. (Attachments: # 1 Notice of Filing of Objections). (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:10-CV-142-D
MARK DANIEL LYTTLE,
Plaintiff,
v.

THE UNITED STATES OF AMERICA,
et al.,
Defendants.
_______________________________

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MEMORANDUM &
RECOMMENDATION

This cause is before the Court upon the following motions: 1) Defendant The United States
of America‘s (―United States‖) motion to dismiss (DE-49); and 2) the motion to dismiss filed by
Defendants Dashanta Faucette, Dean Caputo and Robert Kendall (―ICE Defendants‖)(DE-51).
These motions are now ripe for adjudication and have been referred to the undersigned for the
entry of a memorandum and recommendation pursuant to 28 U.S.C. § 636. (DE-70).
I. Background
In this action, Plaintiff seeks injunctive relief as well as compensatory and punitive
damages as a result of his allegedly wrongful and illegal detention and deportation.1 (DE-8, ¶ 1).
Plaintiff was born in Salisbury, North Carolina on August 2, 1977 and is a United States citizen.
Id. at ¶¶ 19, 49. In the summer of 2008, he was a patient of Cherry Hospital in Goldsboro, North
Carolina – a psychiatric hospital operated by the State of North Carolina, Department of Health
and Human Services. Id. at ¶ 25. While a patient at Cherry Hospital, he was charged with
inappropriately touching a female orderly and was ultimately convicted of misdemeanor assault on
1

For purposes of these motions, the undersigned has, as he must, taken all of the factual allegations of the Amended
Complaint as true. Bell Atlantic Corp. v, Twombly, 550 U.S. 544, 555 (2007).

a female under N.C. Gen. Stat. § 14-33. Id. at ¶ 26. He was sentenced to a term of incarceration
of 100 days at Neuse Correctional Institution (―NCI‖). Id.
At the time of Plaintiff‘s incarceration, NCI was cooperating with Immigration and
Customs Enforcement (―ICE‖) agents by identifying inmates believed to be foreign born and
non-United States citizens. Id. at ¶ 28. Specifically, NCI intake employees identified certain
inmates for further investigation, and then notified ICE when it was determined that an inmate
possibly could be an undocumented immigrant. Id. at 29.
During the booking process at NCI, Plaintiff indicated that he was born in North Carolina.
Id. at 30. However, an unnamed Defendant employed by NCI noted on the intake form that
Plaintiff was ―Oriental‖ and that his citizenship was ―Alien.‖ Id. at ¶ 31. Likewise, this
unnamed Defendant also listed Plaintiff‘s birth country as ―Mexico.‖

Id.

Based on this

misidentification, Raleigh ICE officials were notified and an investigation into Plaintiff‘s
citizenship was initiated. Id. at ¶ 32.
On September 2, 2008, Plaintiff was interviewed by Defendant Dashanta Faucette, an
immigration enforcement agent with ICE. Id. at ¶ 35. Plaintiff asserts that Agent Faucette ―was
aware that [Plaintiff] was cognitively impaired and that he had, among other things, bipolar
disorder.‖ Id. at ¶¶ 35, 41. Agent Faucette wrote: 1) Plaintiff‘s name is ―Jose Thomas‖ and
that Mark Daniel Lyttle is an alias; 2) Plaintiff‘s country of citizenship was Mexico; and 3) that
Plaintiff entered the United States without permission at the age of three. Id. at ¶¶ 36-38. These
notations were erroneous.

His notes also misstate Plaintiff‘s home address.

Id. at 37.

Furthermore, Plaintiff contends that when this interview concluded, Plaintiff ―was not offered an
opportunity to review the contents of the entries written on the form by Defendant Faucette, nor
was [Plaintiff] informed of what Defendant Faucette had written.‖ Id. at ¶ 40. Rather, Plaintiff
2

was instructed to sign his name on a certain line. Id. Despite Agent Faucette‘s notation that
Plaintiff‘s name was ―Jose Thomas‖, Plaintiff signed the form ―Mark Lyttle.‖ Id.
Defendant Faucette performed a search of the United States Department of Justice
Federal Bureau of Investigation Criminal Justice Information Services Division (―CJISD‖) and
other databases on or about September 4, 2008. Id. at ¶ 42. According to Plaintiff, ―[n]umerous
records produced as a result of these computerized database searches revealed that [Plaintiff] was a
U.S. citizen with a valid Social Security number.‖ Id. Conversely, Plaintiff contends that these
records contain no mention of ―Jose Thomas‖ or of Plaintiff using that alias. Id. Despite having
access to this information, Plaintiff argues that no Defendant made an attempt to verify Plaintiff‘s
citizenship, nor did any Defendant attempt to contact Plaintiff‘s family. Id. at 55.
Several ICE agents—including Defendants Faucette, Dean Caputo, Robert Kendall and
several other unnamed Defendants—performed computer database searches on or about
September 5, 2008. Id. at ¶ 43. Plaintiff contends that the records reviewed by the ICE
Defendants contained numerous references to Plaintiff‘s Social Security number, as well as
numerous references to Plaintiff being an American citizen by birth.

Id. at ¶¶ 43, 52.

Nonetheless, Defendant Dean Caputo signed a ―Warrant for Arrest of Alien‖ so that Plaintiff could
be taken into custody and processed for removal.

Id. at ¶ 45.

Defendant Caputo also

commenced ―removal proceedings under section 238(b) of the Immigration and Nationality Act.‖
Id. In support of these proceedings, Defendant Caputo determined that Plaintiff was ―not a
citizen or national of the United States but rather a native of Mexico and a citizen of Mexico.‖ Id.
Furthermore, Defendant Caputo noted that Plaintiff could not request a review of this
determination by an immigration judge because the Immigration and Nationality Act prohibited
Plaintiff‘s release from custody. Id. at ¶ 46. Likewise, Defendant Kendall signed an Immigration
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Detainer notifying the North Carolina Department of Correction (―NCDOC‖) that Plaintiff was
not to be released from custody because ICE had determined that Plaintiff was of Mexican
nationality. Id. at ¶ 47.
According to Plaintiff, Defendant Faucette ―coerced and manipulated‖ Plaintiff into
signing a statement which waived his legal right to a removal hearing before an immigration judge.
Id. at ¶ 49. Specifically, Plaintiff contends that ―[d]ue to [Plaintiff‘s] obvious cognitive and
developmental limitations, [Plaintiff] was barely able to read, much less comprehend, the
documents presented to him by ICE Defendants Faucette and Caputo.‖ Id. at ¶ 54. By signing
the waiver, Plaintiff incorrectly acknowledged that he was a citizen of Mexico and agreed to be
voluntarily deported to Mexico. Id. The form that Plaintiff signed also acknowledged that
Plaintiff‘s name was ―Jose Thomas‖, although Plaintiff again signed it with his true name, ―Mark
Lyttle.‖ Id. at 51.
Plaintiff was scheduled to be released from state custody on or before October 26,
2008. Id. at ¶ 58. Instead, Plaintiff was delivered into ICE custody on or about October 28, 2008
and his detention was continued. Id. at ¶ 58. On or about November 3, 2008, Plaintiff was
interviewed by ICE Agent David Collado. Id. at ¶ 60. During this interview, Plaintiff stated that
he was a United States citizen and repeatedly denied being a Mexican citizen. Id. at 60. Agent
Collado nonetheless proceeded to charge that Plaintiff was deportable from the United States on
account of his criminal convictions. Id. at ¶ 62. ICE Agent Tracy Moten issued a formal Notice
to Appear to Plaintiff on or about November 5, 2008. Id. at ¶ 64. This Notice to Appear alleged
that Plaintiff was ―not a citizen or national of the United States‘ but rather ‗a native of Mexico and
a citizen of Mexico [who] arrived in the United States at or near UNKNOWN PLACE, on or about
1980.‘‖ Id.
4

ICE Agent Marco Mondragon interviewed Plaintiff on November 12, 2008. Id. at ¶
72. During this interview, Plaintiff again stated that he was a United States citizen. Id. at ¶ 73.
According to Plaintiff, Agent Mondragon disregarded Plaintiff‘s claim of citizenship as well as the
independent evidence of Plaintiff‘s citizenship. Id. at ¶ 74. Plaintiff further contends that he
―provided answers to Agent Mondragon‘s questions that Agent Mondragon struck through and
replaced with different answers, creating a conflicting, inconsistent and factually inaccurate
record.‖ Id. at ¶ 73. Specifically, Plaintiff signed and initialed an affidavit affirming that his
name was ―Jose Thomas‖ and that his father was a citizen of Mexico. Id. at ¶ 75.
On or about November 17, 2008, while still in ICE custody, Plaintiff attempted to
commit suicide by overdosing on medication provided to him as treatment for type two diabetes
milletus. Id. at ¶ 76. Plaintiff was treated for toxic drug overdose at Doctors Hospital Columbus,
in Columbus, Georgia, and released after several days of monitoring and close observation. Id.
After his discharge from Doctors Hospital, Plaintiff was transferred back to ICE custody to await a
hearing before Immigration Judge William A. Cassidy. Id. at ¶ 77. Judge Cassidy ordered that
Plaintiff be removed to Mexico on or about December 9, 2008. Id. at ¶ 78.
Another criminal background check regarding Plaintiff was conducted by ICE officials
on or about December 12, 2008. Id. at ¶ 80. This search allegedly uncovered numerous
references to Plaintiff‘s citizenship and his Social Security number. Id. Nonetheless, on or
about December 18, 2005, Plaintiff was transported to the Mexican border, forced to disembark,
and sent off on foot into Mexico. Id. at ¶ 90. Plaintiff spoke no Spanish, was completely
unfamiliar with Mexico, and had approximately three dollars in his pocket. Id. at ¶ 92.
Plaintiff spent the next four months in Central America alternatively homeless, staying
in shelters, or imprisoned by national authorities for lack of proper identification. Id. at ¶ 91.
5

Ultimately, Plaintiff attempted to cross back into the United States at the Hidalgo, Texas border
crossing. Id. at ¶ 93. He was detained again by ICE Agents on December 29, 2008. Id. at ¶ 94.
During this detention, Plaintiff alleges that he repeatedly informed the ICE Agents that he was a
U.S. citizen. Id. at ¶ 95. ICE agents transported Plaintiff back to the custody of Mexican
Immigration officials. Id. at ¶¶ 99-100. Thereafter, Mexican authorities deported Plaintiff to
Honduras when Plaintiff was unable to prove his Mexican citizenship. Id. at ¶ 101. Over the
next four months, Plaintiff was incarcerated in Mexico, Honduras and Nicaragua on the grounds
that he could not produce evidence of his identity or citizenship. Id. at ¶ 104.
Eventually, Plaintiff found his way to the U.S. Embassy in Guatemala City. Id. at ¶
105. There, an embassy employee attempted to verify Plaintiff‘s claim to U.S. citizenship. Id. at
¶ 106. The employee was able to locate Plaintiff‘s brothers, and ultimately a passport was issued
to Plaintiff Id. On April 22, 2009, Plaintiff boarded a plane in Guatemala City bound for
Nashville, Tennessee. Id. at ¶ 107. Upon landing in Atlanta, Georgia to pass through customs,
Plaintiff was detained by ICE agents. Id. at ¶ 108. He was identified as an alien with a lengthy
criminal history. Id. at ¶ 108. Despite Plaintiff‘s protestation that he was a U.S. Citizen and his
possession of a passport, ICE Agents Charles Johnston and Brian Keys commenced new
deportation proceedings against Plaintiff. Id. at ¶¶ 109-114. Plaintiff was detained for six days
in Atlanta. Id. at ¶ 116. On April 28, 2009, the Department of Homeland Security terminated the
deportation efforts. Id. at ¶ 118.
Plaintiff filed his Complaint on October 13, 2010 and later amended it on October 15,
2010. (DE‘s 1, 8). In his Amended Complaint, Plaintiff alleges the following claims: 1) a
claim pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971) alleging that the ICE Defendants deprived Plaintiff of his constitutional right to liberty
6

without due process of law in violation of the Fifth Amendment to the United States Constitution;
2) a Bivens claim alleging that the ICE Defendants deliberately and unconstitutionally
discriminated against him on the basis of his race and ethnicity so as to deny him equal protection
of the law in violation of the Fifth Amendment to the United States Constitution; 3) a Bivens claim
alleging that the ICE Defendants intentionally and unlawfully detained him in violation of his
constitutional right to be free from unreasonable seizures, as guaranteed by the Fourth Amendment
to the United States Constitution; 4) a claim pursuant to the Federal Tort Claims Act (―FTCA‖), 28
U.S.C. §§ 1346(b), 2671- 2680, alleging that the United States, through its agents, falsely
imprisoned him; 5) a FTCA claim alleging that the United States, through its agents, breached its
duty of reasonable care by negligently acting or failing to act in such a way that resulted in his
wrongful detention and deportation; and 6) a FTCA claim against the United States for the
intentional infliction of emotional distress. Id. at ¶¶ 121-160. The ICE Defendants have been
sued both individually and as agents of the United States of America. Id. Plaintiff also alleges
several claims pursuant to 42 U.S.C. § 1983 against various state actors which are not at issue in
the referred motions. Id. at ¶¶ 161-187. Before the undersigned now are motions to dismiss
various portions of Plaintiff‘s claims.
II. Analysis
A. The United States’ Motion to Dismiss (DE-49)
Plaintiff‘s fourth through sixth claims for relief (Plaintiff‘s FTCA claims) seek relief
from the United States. The United States has moved to dismiss these claims pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
AThe purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint....@
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). To survive a Rule 12(b)(6)
7

motion, a plaintiff must A >give the defendant fair notice of what the ... claim is and the grounds
upon which it rests.= A Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). The facts alleged must Araise a right to relief above the
speculative level,@ and the complaint must contain Aenough facts to state a claim to relief that is
plausible on its face.@ Twombly, 550 U .S. at 555, 570. AA claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.@ Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
A[T]he tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions@ or A[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.@ Id. A complaint may survive a motion to dismiss
only if it Astates a plausible claim for relief@ that Apermit[s] the court to infer more than the mere
possibility of misconduct@ based upon Aits judicial experience and common sense.@ Id. at 1950.
Without such Aheft,@ claims cannot establish a valid entitlement to relief, as facts that are Amerely
consistent with a defendant's liability@ fail to nudge claims Aacross the line from conceivable to
plausible.@ Id. at 1947-1951.
Rule 12(b)(1) authorizes dismissal of a claim for lack of subject matter jurisdiction.
When subject matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction
to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th Cir. 1999). ―In
determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as
mere evidence on the issue, and may consider evidence outside the pleadings without converting
the proceeding to one for summary judgment.‖ Richmond, Fredericksburg & Potomac R.R Co. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991). To this end, ―the nonmoving party must set forth

8

specific facts beyond the pleadings to show that a genuine issue of material fact exists.‖ Id. The
movant's motion to dismiss should be granted if the material jurisdictional facts are not in dispute
and the movant is entitled to prevail as a matter of law. Id.
As a sovereign, the United States is immune from all suits against it absent an express
waiver of its immunity. United States v. Sherwood, 312 U.S. 584, 586 (1941). All waivers of
sovereign immunity must be ―strictly construed ... in favor of the sovereign.‖ Lane v. Pena, 518
U.S. 187, 192 (1996). For that reason, it is Plaintiff's burden to show that an unequivocal waiver of
sovereign immunity exists and that none of the statute's waiver exceptions apply to his particular
claim. Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). If Plaintiff fails to meet this
burden, then his FTCA claims must be dismissed. Medina v. United States, 259 F.3d 220, 223 (4th
Cir. 2001).
The FTCA effects a limited waiver of the United States' sovereign immunity for
―personal injury or death caused by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or employment.‖ 28 U.S.C. §
1346(b)(1). The statute permits the United States to be held liable in tort in the same respect as a
private person would be liable under the law of the place where the act occurred. 28 U.S.C §
1346(b); Harris v. United States, 718 F.2d 654, 656 (4th Cir. 1983). The FTCA does not create new
causes of action; instead, it serves to convey jurisdiction when the alleged breach of duty is
tortious under state law, or when the Government has breached a duty under federal law that is
analogous to a duty of care recognized by state law. Medina, 259 F.3d at 223(quotation omitted).
Since the actions relevant to the instant motions took place in North Carolina, the substantive law
of North Carolina applies. See, United States v. Neustadt, 366 U.S. 696, 706 n. 15.
The scope of the FTCA‘s waiver of sovereign immunity is limited by a series of
9

specific exceptions, each of which is considered jurisdictional. Welch v. United States, 409 F.3d
646, 651 (4th Cir. 2005)(citing Medina, 259 F.3d at 223-224), cert. denied, 546 U.S. 1214 (2006).
The United States raises two of these exceptions—the ―discretionary function‖ and the ―due care‖
exceptions—as bases for its motion to dismiss. (DE-50, pg. 6-12). These exceptions shall be
analyzed in turn.
1. The discretionary function exception
The discretionary function exception is codified at 28 U.S.C. § 2680(a), which provides
that the United States has not consented to liability for claims ―based upon the exercise or
performance or the failure to exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether or not the discretion involved be
abused.‖ 28 U.S.C. § 2680(a). See also, Medina, 259 F.3d at 224. The Supreme Court has
developed a two-part test to determine if the conduct in question is subject to the discretionary
function exception. First, the action or conduct must be ―a matter of choice for the acting
employee.‖ Berkovitz v. United States, 486 U.S. 531, 536 (1988). The exception thus ―will not
apply when a federal statute, regulation, or policy specifically prescribes a course of action for an
employee to follow.‖ Id. Second, ―the challenged conduct must implicate considerations of
public policy,‖ as the ―very purpose of the discretionary function exception is to prevent judicial
‗second-guessing‘ of administrative decisions grounded in social and political policy.‖ Medina,
259 F.3d at 228 (citing United States v. Gaubert, 499 U.S. 315, 322-23 (1991)).
The United States, citing Medina, argues ―that the decision to arrest an alien and
institute deportation proceedings is a quintessential exercise of immigration officials broad
discretion.‖ (DE-50, pg. 8)(internal quotations omitted). Conversely, Plaintiff argues that the
discretionary function exception is not applicable because ICE agents have ―no discretion to
10

violate the Constitutional rights of a U.S. citizen.‖ (DE-57, pg. 4).
In Medina, the Fourth Circuit held that the decision to arrest a former foreign diplomat,
and to institute deportation proceedings, asserting that he had committed a crime involving moral
turpitude was an exercise of

the Immigration and Naturalization Service‘s (―INS‖) broad

discretion based on public policy considerations. Medina, 259 F.3d 226-227. In doing so, the
Fourth Circuit cited 8 U.S.C. § 1226(a), which states ―an alien may be arrested and detained
pending a decision on whether the alien is to be removed from the United States‖ 8 U.S.C. §
1226(a). Notably, however, the United States argues that Plaintiff was detained by ICE ―as a
possible criminal alien.‖ (DE-50, pg. 1). Accepting this argument on its face, it appears the
United States is asserting it detained Plaintiff pursuant to 8 U.S.C. § 1226(c)(1)—which controls
the detention of criminal aliens—rather than 8 U.S.C. § 1226(a).

Indeed, later in its own brief

the United States argues that Plaintiff was detained under the ―mandate‖ of 8 U.S.C. §
1226(c)(1)(B). (DE-50, pg. 11). Title 8 U.S.C. § 1226(c)(1) states that a criminal alien ―shall‖
be taken into custody. For this reason, the Medina Court specifically noted that ―[u]nder 8 U.S.C.
§ 1226(c)(1) . . . discretion is less clear.‖ Medina, 259 F.3d at 226, fn. 3. Regardless, this
analysis ignores one crucial fact: these statutes give immigration officials the authority to detain
―aliens‖, and Plaintiff is not an alien.
At this stage of the proceedings, the undersigned must accept Plaintiff‘s factual
allegations as true. Here, Plaintiff—a U.S. citizen—alleges that immigration agents violated his
Constitutional rights by coercing him to sign a statement that ultimately proved false and by
deliberately ignoring information that established his citizenship. If proven true, these decisions
were not within Defendants‘ ―discretion‖. Indeed, the Medina court began its analysis by
emphasizing ―the principle that ―[f]ederal officials do not possess discretion to violate
11

constitutional rights or federal statutes.‖

Medina, 259 F.3d at 225 (internal citations and

quotations omitted). Accordingly, the undersigned RECOMMENDS that the portion of the
United States‘ motion to dismiss which relies upon the discretionary function exception be
DENIED.
2. The due care exception
The due care exception is also codified at 28 U.S.C. § 2680(a) and provides that the
waiver of sovereign immunity under the FTCA does not apply to ―any claim based upon an act or
omission of an employee of the Government exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid . . .‖ 28 U.S.C. § 2680(a). See also,
Welch, 409 F.3d at 651. The United States cites this exception in defense of Plaintiff‘s FTCA
claims ―predicated on the notion that the North Carolina immigration agents detained [Plaintiff]
pending his removal proceedings and then physically deported him.‖

(DE-50, pg. 11).

Specifically, the United States argues that Plaintiff ―was detained under the mandate of 8 U.S.C. §
1226(c)(1)(B)‖ and that ―[o]nce [Plaintiff] was deemed deportable pursuant to this provision, the
decision to detain him was statutorily required.‖ Id. (internal quotations and citations omitted).
Thus, the United States contends that Plaintiff‘s detention was mandatory. Furthermore, the
United States asserts that Plaintiff has failed to allege ―an immigration officer deviated from the
statute‘s requirements.‖ Id. at pg. 12 (quotation omitted). For these reasons, the United States
argues that Plaintiff‘s FTCA claims are barred by the due care exception.
A two-part analysis is used to determined the applicability of the due care exception.
Welch, 409 F.3d at 652. First, it must be determined whether the statute or regulation in question
specifically proscribes a course of action for an officer to follow. Id. Second, if a specific action
is mandated, it must then be determined whether the officer exercised due care in following the
12

dictates of that statute or regulation. Id. If due care was exercised, sovereign immunity has not
been waived. Id.
Here, the statute in question did not mandate the actions taken by Defendants. As
noted above 8 U.S.C. § 1226(c) mandates the detention of criminal aliens, and Plaintiff is not an
alien. Even assuming that the statute was applicable to Plaintiff, Plaintiff has clearly asserted in
his Amended Complaint that Defendants did not exercise due care in following the dictates of 8
U.S.C. § 1226(c)(1). As previously noted, Plaintiff contends that Defendants, among other
things, coerced him into signing a false statement and deliberately ignored information
establishing his U.S. citizenship. If proven true, these allegations demonstrate a lack of due care.
Accordingly, the undersigned RECOMMENDS that the portion of the United States‘ motion to
dismiss which relies upon the discretionary function be DENIED.
3. Plaintiff substantive claims
The FTCA only provides jurisdiction, not the substantive cause of action. An action
under the FTCA exists only if the State in which the alleged misconduct occurred would permit a
cause of action for that misconduct to go forward. Carlson v. Green, 446 U.S. 14, 23 (1980). See
also, Florida Auto Auction of Orlando, Inc. v. United States, 74 F.3d 498, 502 (4th Cir. 1996)
(―The Act does not create new causes of action[.] ... Instead, the Act only serves to convey
jurisdiction when the alleged breach of duty is tortious under state law.‖ (quotation marks
omitted)). Therefore, it must also be determined whether Plaintiff‘s claims survive the United
States‘ motion to dismiss pursuant to Rule 12(b)(6).
Plaintiff raises three claims pursuant to the FTCA: 1) false imprisonment; 2) general
negligence; and 3) intentional infliction of emotional distress. North Carolina law controls these
claims, and they shall now be discussed in turn.
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a. False imprisonment
In North Carolina, ―[f]alse imprisonment is the illegal restraint of the person of any one
against his or her will.‖ Rogers v. T.J.X. Companies, Inc., 404 S.E. 2d 664, 666 (N.C. 1991).
Involuntary restraint and unlawful restraint are two essential elements of the tort . . .‖ Dellinger v.
Belk, 238 S.E. 2d 788, 790 (N.C. App. 1977)(citing, Black v. Clark‘s Greensboro, Inc., 139 S.E.
2d 199 (N.C. 1964)). ―Where no force or violence is actually used, the submission must be to a
reasonably apprehended force.‖ Black, 139 S.E. 2d at 201. Ultimately, a cause of action for
false imprisonment ―may arise when the arrest or detention is without warrant . . . or the warrant
charges no criminal offense . . . or the warrant is void, or the person arrested is not the person
named in the warrant . . .‖ Melton v. Rickman, 36 S.E. 2d 276, 277-278 (N.C. 1945)(internal
citations omitted).

Plaintiff has alleged each of these elements. Citing Rhodes v. Collins, 150

S.E. 492 (N.C. 1929), the United States argues that ―if an imprisonment is under legal authority, it
may be malicious but it cannot be false.‖ (DE-50, pg. 13). However, that argument does not
defeat Plaintiff‘s claim. Defendants had no legal authority to detain Plaintiff, because the statute
which purportedly authorized his detention applied only to aliens and not U.S. citizens. It is
RECOMMENDED that the United States‘ motion to dismiss Plaintiff‘s false imprisonment claim
be DENIED.
b. Negligence
When a complaint alleges general negligence under the FTCA, ―[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, this Court
found that the plaintiffs had sufficiently pleaded a claim of negligence under the Federal Tort
14

Claims Act by alleging that the Government ―failed to exercise ordinary care and skill in
undertaking a course of conduct.‖ Id.
In the instant case, the Amended Complaint likewise sufficiently pleads general
negligence by alleging that Defendants failed to use reasonable care in their course of conduct.
(DE-8, ¶¶ 148-153). Specifically, the Amended Complaint pleads that Defendants failed to
exercise reasonable care in such a way that resulted in Plaintiff‘s wrongful detention and
deportation. Id. Assuming Plaintiff‘s allegations to be true, Defendants‘ negligent conduct
includes, among other things: 1) failure to review readily available documentation; 2) failure to
investigate Plaintiff‘s claims that he was a U.S. citizen; and 3) coercing Plaintiff to sign factually
inaccurate statements. Id.
The United States argues that the ―public duty doctrine‖ shields it from liability. As
defined in North Carolina, ―[t]he public duty doctrine is a[ ] rule of common law negligence that
may limit tort liability, even when the State has waived sovereign immunity.‖ Myers v. McGrady,
628 S.E.2d 761, 766 (N.C. 2006). ―The rule provides that when a governmental entity owes a duty
to the general public ... individual plaintiffs may not enforce the duty in tort.‖ Id. at 766. This
doctrine has often been described as ―duty to all, duty to none.‖ Strickland v. University of North
Carolina at Wilmington, 712 S.E. 2d 888, 890 (N.C. App. 2011). ―The classic example of the
public duty doctrine's applicability . . . involves a negligence claim alleging a law enforcement
agency's failure to protect a person from a third party's criminal act.‖ Id. (citing, Braswell v.
Braswell, 410 S.E.2d 897, 901 (1991)(recognizing the public duty doctrine and applying it to a
claim against a sheriff for negligent failure to protect a murder victim from her murderer)). The
Fourth Circuit has deemed the public duty doctrine applicable in FTCA claims. Florida Auto
Auction, 74 F.3d at 502.
15

However, the public duty doctrine does not apply here. First, the North Carolina
Supreme Court has limited the application of the doctrine to the facts of Braswell. Lovelace v.
City of Shelby, 526 S.E. 2d 652, 654 (N.C. 2000). Therefore, the North Carolina Supreme Court
has declined to expand the public duty doctrine beyond agencies other than local law enforcement
departments exercising their general duty to protect the public. Wood v. Guilford County, 558
S.E.2d 490, 495 (N.C. 2002). Notably:
An exhaustive review of the public duty doctrine as applied in North
Carolina reveals no case in which the public duty doctrine has operated to
shield a defendant from acts directly causing injury or death. Rather, the
application of the public duty doctrine in this State has been confined to
cases where the defendant's actions proximately or indirectly result in
injury.
Moses v. Young, 561 S.E. 2d 332, 334 (N.C. App. 2002).
Therefore ―the public duty rule applies only to situations in which a plaintiff has been directly
harmed by the conduct of a third person and only indirectly by a public employee's dereliction of a
duty-a duty imposed on him or her solely by his or her contract of employment-to interrupt or
prevent the third person's harmful activity.‖ Smith v. Jackson County Board of Education, 608
S.E. 2d 399, 406 (N.C. App. 2005)(quoting 63C Am.Jur.2d Public Officers and Employees § 248
(1997)). As noted above, this case does not involve a failure to furnish protection or a failure to
prevent a criminal act. Rather, the claim originates from allegations that the United States
improperly detained and deported one of its own citizens. The public duty doctrine does not
shield the United States from liability in this situation. Id. at 407 (holding that application of the
public duty doctrine as a blanket defense to all actions of police officers would not be consistent
with the purpose of the public duty doctrine).

It is RECOMMENDED that the United States‘

motion to dismiss Plaintiff‘s negligence claim be DENIED.
16

c. Intentional infliction of emotional distress
Next, the United States argues that Plaintiff has failed to state a valid intentional
infliction of emotional distress (―IIED‖) claim. To succeed on an IIED claim in North Carolina, a
plaintiff must plead and prove the following: ―(1) extreme and outrageous conduct, (2) which is
intended to cause and does cause (3) severe emotional distress to another.‖ Dickens v. Puryear,
276 S.E.2d 325, 335 (N.C. 1981). Furthermore, a ―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., 437 S.E.2d
519, 522-253 (N.C. App. 1993). See also, Dickens, 276 S.E.2d at 335.
The United States contends that Plaintiff has not pleaded ―extreme and outrageous
conduct.‖ (DE-50, pg. 19). That prong of a IIED claim requires a plaintiff to show that the
defendant‘s conduct ―is so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.‖ Foster v. Crandell, 638 S.E.2d 526, 537 (N.C. App. 2007). In response, Plaintiff
argues that improperly detaining and ―[u]njustly exiling a man ought to be beyond this society‘s
bounds.‖ (DE-57, pg. 26). The undersigned agrees. Here, Plaintiff alleges that ICE agents
ignored evidence of Plaintiff‘s citizenship, coerced him into signing a statement that ultimately
proved false, and then improperly deported him. They removed him from the country again when
he attempted to re-enter, ignoring his claims of citizenship. When these mistakes were finally
corrected, the United States attempted to deport Plaintiff yet again. If proven true, these actions
are ―extreme and outrageous.‖ See, e.g., Rogers v. T.J.X. Companies Inc., 398 S.E. 2d 610, 614
(N.C. App. 1990)(holding that false accusations of shoplifting supported IIED claims because
plaintiff, among other things, was ―stripped of her dignity‖), reversed on other grounds by,
17

Rogers v. T.J.X. Companies Inc., 404 S.E. 2d 664(N.C. 1991); West v. King‘s Department Store,
Inc., 365 S.E.2d 621, 622-626 (N.C. 1988)(accusing customer of stealing, despite evidence to the
contrary, could sustain prima facie case of IIED). It is RECOMMENDED that the United States‘
motion to dismiss Plaintiff‘s IIED claim be DENIED.
4. Foreign Country exception
Finally, the United States argues that ―any surviving FTCA claim would allow
recovery for only those injuries that [Plaintiff] allegedly suffered within the United States‖ due to
the FTCA‘s foreign country exception. (DE-50, pg. 21). That provision preserves the United
States‘ sovereign immunity from tort liability with respect to ―[a]ny claim arising in a foreign
country.‖ 28 U.S.C. § 2680(k). The Supreme Court has interpreted the straightforward language of
the foreign country exception to mean that it ―bars all claims based on any injury suffered in a
foreign country, regardless of where the tortious act or omission occurred.‖ Sosa v.
Alvarez-Machain, 542 U.S. 692, 712 (2004).

Plaintiff concedes ―that the foreign country

exception operates in this case to bar certain types of damages that [Plaintiff] 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.‖ (DE-57, pg. 28). For this reason, the undersigned
RECOMMENDS that the United States‘ motion to dismiss based on the foreign country exception
be GRANTED and that Plaintiff‘s claims be DISMISSED to the extent he seeks damages for
injuries which occurred outside the United States. The undersigned notes that Plaintiff‘s FTCA
claims for relief survive this dismissal, as clearly some of his alleged injuries occurred inside the
United States.
B. ICE Defendants motion to dismiss (DE-51)
The ICE Defendants move to dismiss Plaintiff‘s Bivens claims. As noted above, these
18

claims involve alleged violations of the Fifth Amendment‘s Due Process Clause (Counts 1 and 2),
and the Fourth Amendment (Count 3).
1. Cognizably of Plaintiff’s Bivens’ claims
In Bivens, the Supreme Court ―recognized for the first time an implied private action
for damages against federal officers alleged to have violated a citizen's constitutional rights.‖
Correctional Services Corp. v. Malesko, 534 U.S. 61, 66 (2001). ―Because implied causes of
action are disfavored, the Court has been reluctant to extend Bivens liability to any new context or
new category of defendants.‖ Iqbal, 129 S. Ct. at 1948 (internal quotations and citations omitted).
See also, Judicial Watch, Inc. v. Rossotti, 317 F.3d 401, 409 (4th Cir. 2004) (―In the more than
thirty years since Bivens, the Court has been very hesitant to imply other private actions for money
damages.‖). The Supreme Court has observed:
Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, held that the victim of
a Fourth Amendment violation by federal officers had a claim for damages,
and in the years following we have recognized two more nonstatutory
damages remedies, the first for employment discrimination in violation of
the Due Process Clause, Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60
L.Ed.2d 846 (1979), and the second for an Eighth Amendment violation by
prison officials, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d
15 (1980). But we have also held that any freestanding damages remedy for
a claimed constitutional violation has to represent a judgment about the best
way to implement a constitutional guarantee; it is not an automatic
entitlement no matter what other means there may be to vindicate a
protected interest, and in most instances we have found a Bivens remedy
unjustified. We have accordingly held against applying the Bivens model to
claims of First Amendment violations by federal employers, Bush v. Lucas,
462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), harm to military
personnel through activity incident to service, United States v. Stanley, 483
U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); Chappell v. Wallace, 462
U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), and wrongful denials of
Social Security disability benefits, Schweiker v. Chilicky, 487 U.S. 412,
108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). We have seen no case for
extending Bivens to claims against federal agencies, FDIC v. Meyer, 510
U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), or against private prisons,
Correctional Services Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151
19

L.Ed.2d 456 (2001).
Wilkie v. Robbins, 551 U.S. 537, 549-550 (2007).

Here, Plaintiff alleges claims to which Bivens has already been deemed generally
applicable: 1) a Fourth Amendment claim; and 2) two Fifth Amendment Due Process claims.
See, Guardado v. United States, 744 F. Supp. 2d 482, 489 (E.D. Va. 2010). This Court must
now determine whether these claims are cognizable under Bivens in the context they are raised by
Plaintiff. Wilkie, 551 U.S. at 549.
This analysis generally requires three steps.

Holly v. Scott, 434 F.3d 287, 290 (4th

Cir. 2006). Specifically a court must determine that (1) Congress has not already provided an
exclusive statutory remedy; (2) there are no special factors counseling hesitation in the absence of
affirmative action by Congress; and (3) there is no explicit congressional declaration that money
damages not be awarded.

Id. (quotation omitted).

Here, the ICE Defendants argue that the Immigration and Nationality Act (―INA‖), 8
U.S.C. § 1101, et seq., precludes Plaintiff‘s Bivens claims because it provides an exclusive
statutory remedy. The INA was substantially amended by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (―IIRIRA‖). As noted by the Supreme Court:
When Congress passed IIRIRA, it ―repealed the old judicial-review
scheme set forth in [8 U.S.C.] § 1105a and instituted a new (and
significantly more restrictive) one in 8 U.S.C. § 1252.‖ Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471, 475, 119 S.Ct.
936, 142 L.Ed.2d 940 (1999) ( AAADC ). The new review system
substantially limited the availability of judicial review and streamlined all
challenges to a removal order into a single proceeding: the petition for
review. See, e.g., 8 U.S.C. § 1252(a)(2) (barring review of certain removal
orders and exercises of executive discretion); § 1252(b)(3)(C) (establishing
strict filing and briefing deadlines for review proceedings); § 1252(b)(9)
(consolidating challenges into petition for review) . . .
20

Before IIRIRA, courts of appeals lacked jurisdiction to review the
deportation order of an alien who had already left the United States. See §
1105a(c) (1994 ed.) (―An order of deportation or of exclusion shall not be
reviewed by any court ... if [the alien] has departed from the United States
after the issuance of the order‖).
Nken v. Holder, 129 S.Ct. 1749, 1755 (2009)(alteration in original).
The ICE Defendants assert that ―[t]he existence of a deliberately crafted statutory
scheme precludes a Bivens remedy because it demonstrates that Congress did not intend to allow a
separate private right of action for damages. Schweiker v. Chilicky, 487 U.S. 412, 421-25 (1988).‖
(DE-52, pg. 6). Specifically, the ICE Defendants contend:
In this case, [Plaintiff‘s] detention and subsequent removal proceedings
were governed by . . . the INA. The Supreme Court has characterized the
INA as ―the comprehensive federal statutory scheme for regulation of
immigration and naturalization.‖ DeCanas v. Bica, 424 U.S. 351, 353
(1976). For example, the INA provides that certain classes of criminal
aliens must be arrested and detained pending a decision on whether the
alien is to be removed. See 8 U.S.C. § 1226(c). It includes detailed
provisions governing removal proceedings before an immigration judge,
and sets forth numerous procedural safeguards for those proceedings. See,
e.g., 8 U.S.C. § 1229a. The INA also provides specific procedures for
detention as well as requirements for relief from detention. See, e.g., 8
U.S.C. §§ 1225, 1226, 1231.
Most pertinent to this case, the INA allows individuals to raise
constitutional challenges in their removal proceedings and on a petition for
review in a court of appeals. See 8 U.S.C. §§ 1252(a)(2)(D), 1252(b)(9).
And it specifically allows suspected aliens claiming to be U.S. citizens to
seek review of that determination in the appellate courts as well. See 8
U.S.C. § 1252(b)(5). But Congress has strictly limited judicial review of
immigration decisions, including claims to U.S. citizenship, beyond those
expressly allowed in the INA. See 8 U.S.C. §§ 1252(b)(9), 1252(g),
1252(a)(2)(B)(ii), 1252(b)(5)(C). Indeed, the INA provides that a petition
filed in the appropriate court of appeals is the ―sole and exclusive‖ means
for judicial review of constitutional claims arising from immigration
enforcement operations. 8 U.S.C. §§ 1252(a)(2)(D) & (a)(5); see also Nken
v. Holder,129 S. Ct. 1749, 1755 (2009) (explaining that amendments to the
INA have ―limited the availability of judicial review and streamlined all
challenges to a removal order into a single proceeding: the petition for
21

review‖). Thus, apart from the channels of review specified by Congress,
the Court has recognized that ―the theme of the legislation‖ was expressly
―aimed at protecting the Executive‘s discretion from the courts.‖ Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471, 486 (1999)
(DE-52, pg. 8-9)(emphasis in original omitted).
Defendants‘ argument is unconvincing. The United States loses sight of the fact that
Plaintiff is not an alien challenging a decision of removal. Rather, he is a United States citizen
alleging that immigration officials deliberately violated his rights in the execution of their duties.
In short, ―Plaintiff is not attempting to use the present lawsuit to circumvent the administrative
process set up to review orders of removal.‖ Turnbull v. United States, 2007 WL 2153279
(N.D.Ohio July 23, 2007).
The undersigned agrees with Plaintiff that ―[u]ltimately, [Plaintiff‘s] Bivens claims
have little to do with Congress‘ legislative power over the admission of aliens . . . because
[Plaintiff] is not an alien -- he is an American-born U.S. citizen who asserts Bivens claims against
federal agents who [deliberately] violated his constitutional rights . . . [t]he proper vehicle for
vindicating [Plaintiff‘s] rights is the Bivens claim, not an administrative challenge to the federal
immigration scheme.‖ (DE-56, pg. 9)(quotation omitted). Therefore, the undersigned finds that
the INA does not preclude recovery for Plaintiff‘s Bivens claims.
However, the undersigned must still determine whether any special factors counsel
against extending Bivens liability to include these claims.

Iqbal, 129 S. Ct. at 1948. The

undersigned finds that such special factors do exist, except with regard to Plaintiff‘s Fourth
Amendment claim.

Plaintiff‘s Fourth Amendment claim is clearly permissible, as Bivens

explicitly ―held that a victim of a Fourth Amendment violation by federal officers may bring suit
for money damages against the officers in federal court.‖ Malesko, 534 U.S. at 66. However,
22

Plaintiff‘s Due Process claims seek to expand the application of Bivens, something the Supreme
Court has consistently declined to do.
Specifically, the Supreme Court ―has . . . on multiple occasions declined to extend
Bivens because Congress is in a better position to decide whether or not the public interest would
be served by the creation of new substantive legal liability.‖ Id. at 290 (quotation omitted).
―[S]o well-suited is Congress to determine the policies pertaining to a remedial scheme that
neither the absence nor the incompleteness of such a scheme represents an invitation for a court to
step in to correct what it may perceive as an injustice toward an individual litigant.‖ Id. (citation
omitted). The Supreme Court described the application of Bivens in Malesko;
Our authority to imply a new constitutional tort, not expressly authorized by
statute, is anchored in our general jurisdiction to decide all cases arising
under the Constitution, laws, or treaties of the United States. . . We first
exercised this authority in Bivens, where we held that a victim of a Fourth
Amendment violation by federal officers may bring suit for money damages
against the officers in federal court . . .
In the decade following Bivens, we recognized an implied damages remedy
under the Due Process Clause of the Fifth Amendment . . . and the Cruel and
Unusual Punishments Clause of the Eighth Amendment . . .
Since Carlson we have consistently refused to extend Bivens liability to any
new context or new category of defendants . . . In Bush v. Lucas. . . . we
declined to create a Bivens remedy against individual Government officials
for a First Amendment violation arising in the context of federal
employment . . .
In Schweiker v. Chilicky, we declined to infer a damages action against
individual Government employees alleged to have violated due process in
their handling of Social Security applications. We observed that our
decisions have responded cautiously to suggestions that Bivens remedies be
extended into new contexts . . .
Most recently, in FDIC v. Meyer, we unanimously declined an invitation to
extend Bivens to permit suit against a federal agency . . .
From this discussion, it is clear that the claim urged by respondent is
23

fundamentally different from anything recognized in Bivens or subsequent
cases. In 30 years of Bivens jurisprudence we have extended its holding
only twice, to provide an otherwise nonexistent cause of action against
individual officers alleged to have acted unconstitutionally, or to provide a
cause of action for a plaintiff who lacked any alternative remedy for harms
caused by an individual officer's unconstitutional conduct. Where such
circumstances are not present, we have consistently rejected invitations to
extend Bivens, often for reasons that foreclose its extension here.
Malesko, 534 U.S. 67-70(quotations and citations omitted).

Ultimately, the undersigned agrees with the concurrence in Malesko, which states:
Bivens is a relic of the heady days in which this Court assumed
common-law powers to create causes of action-decreeing them to be
―implied‖ by the mere existence of a statutory or constitutional prohibition.
As the Court points out, ante, at 519, n. 3, we have abandoned that power to
invent ―implications‖ in the statutory field, see Alexander v. Sandoval, 532
U.S. 275, 287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). There is even
greater reason to abandon it in the constitutional field, since an
―implication‖ imagined in the Constitution can presumably not even be
repudiated by Congress. I would limit Bivens and its two follow-on cases (
Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and
Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980)) to the
precise circumstances that they involved.
Malesko, 534 U.S. at 75 (Scalia, J., concurring)(quotations omitted).
For these reasons, the undersigned shall ―responded cautiously to [Plaintiff‘s] suggestion[] that
Bivens . . . be extended into [a] new context.‖ Malesko, 534 U.S. at 68-69 (quoting Schweiker,
487 U.S. at 421).
Here, Plaintiff contends that ―[b]y illegally, arbitrarily, and capriciously deporting
[Plaintiff], a United States citizen, to Mexico, [the ICE Defendants] deprived [Plaintiff] of his
constitutional right to liberty without due process of law in violation of the Fifth Amendment to the
United States Constitution.‖

(DE-8, ¶ 122).

In addition, Plaintiff asserts that the ICE

Defendants violated Plaintiff‘s rights ―when they deported or caused [Plaintiff] to be deported
24

without reasonable basis or lawful authority.‖ Id. at ¶ 124. In response, the Government argues
that the ICE Defendants did not deport Plaintiff. (DE-52, pg. 27). Specifically, the Government
notes that ―the ICE defendants merely commenced removal proceedings against plaintiff . . . [i]n
the end, it was an immigration judge in Georgia – not the ICE defendants here in North Carolina –
who ultimately ordered [Plaintiff‘s] removal.‖ Id. (quotations and emphasis omitted). The
undersigned agrees.

―The purpose of Bivens is to deter individual federal officers from

committing constitutional violations‖ Malesko, 534 U.S. at 70. Permitting Plaintiff‘s Due
Process claim to proceed under Bivens will not achieve this end, as the ICE Defendants did not
make the determination that Plaintiff now asserts was not guarded by Due Process. Furthermore,
the Government also states that ―these allegations amount to . . . a mere duplication of [Plaintiff‘s]
Fourth Amendment . . . claim that his detention was continued well beyond the scheduled release
date and that he was therefore detained in violation of his right to be free from unreasonable
seizures.‖ (DE-52, pg. 29). Again, the undersigned agrees. Accordingly, the undersigned finds
that these facts constitute special factors counseling against the extension of Bivens.
Plaintiff also asserts that ―[b]y erroneously classifying [Plaintiff] as an alien . . . [the
ICE Defendants] deliberately and unconstitutionally discriminated against [Plaintiff] on the basis
of his race and ethnicity so as to deny him equal protection of the law in violation of the Fifth
Amendment to the United States Constitution.‖ (DE-8, ¶ 130). The undersigned finds that
permitting a Bivens claim against immigration officials for ―erroneously classifying [an
individual] as an alien‖ constitutes a ―cure [that] would be worse than the disease.‖ Wilkie, 551
U.S. at 561. See also, Appiah v. U.S. I.N.S., 202 F. 3d 704, 710 (4th Cir. 2000)(―constraints of
rationality imposed by the constitutional requirement of substantive due process and of
nondiscrimination exacted by the equal protection component of the due process clause do not
25

limit the federal government's power to regulate either immigration or naturalization‖)(quotation
omitted)).
For these reasons, it is RECOMMENDED that Plaintiff‘s Due Process claims be
DISMISSED because they are not viable pursuant to Bivens. Specifically, the undersigned finds
that special factors counsel against the application of Bivens to Plaintiff‘s Due Process claims.
Plaintiff‘s remaining Fourth Amendment claim shall now be analyzed.
2. Plaintiff’s Fourth Amendment claim
The ICE Defendants also argue that Plaintiff‘s Fourth Amendment claim is
substantively without merit. In these claims, Plaintiff contends, respectively, that: 1) the ICE
Defendants ―knowingly and intentionally denied [Plaintiff] his constitutional right to due process
by coercing him into signing false statements, by intimidating [Plaintiff] during the interrogation
process, and by . . . caus[ing] [Plaintiff] to be deported without reasonable basis or lawful
authority‖; and 2) the ICE Defendants ―intentionally and unlawfully detained [Plaintiff] in
violation of his constitutional right to be free from unreasonable seizures, as guaranteed by the
Fourth Amendment to the United States Constitution.‖

(DE-8, ¶¶ 123, 124, 137). As noted

above, these claims are supported by several specific factual allegations, including, inter alia,
Plaintiff‘s assertion that the ICE Defendants ―performed computer database searches on
[Plaintiff‘s] criminal history, revealing numerous entries and notations indicating that [Plaintiff]
was a U.S. citizen with a valid Social Security number affiliated with several minor variants of the
name ‗Mark Lyttle‘ having been used . . .‖ Id. at ¶ 43.
The Fourth Amendment protects ―[t]he right of the people to be secure in their persons
... against unreasonable searches and seizures.‖ U.S. Const. amend. IV. Persons seized by a federal
agent in an unreasonable manner, may sue the agent personally and recover monetary damages
26

against him, so long as ―it would be clear to an objectively reasonable officer that his conduct
violated‖ the Fourth Amendment. Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002). The
Supreme Court recently stated that:
Fourth Amendment reasonableness is predominantly an objective inquiry.
. . . We ask whether the circumstances, viewed objectively, justify the
challenged action. . . . If so, that action was reasonable whatever the
subjective intent motivating the relevant officials . . . This approach
recognizes that the Fourth Amendment regulates conduct rather than
thoughts, . . . and it promotes evenhanded, uniform enforcement of the law
...
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)(quotations and citations
omitted).
The ICE Defendants argue that Plaintiff‘s allegation that he was ―unlawfully and
unconstitutionally‖ detained is ―conclusory.‖ (DE-52, pg. 14). This argument is perplexing.
Plaintiff was scheduled to be released from state custody on October 26, 2008. (DE-8, ¶ 58). He
was instead taken into ICE custody after the expiration of his state sentence. Id. at ¶ 58. Based
upon the alleged actions and omissions of the ICE Defendants, Plaintiff remained in ICE custody
until December 18, 2008. Id. at ¶ 90. Plaintiff‘s improper seizure only ended after he was
improperly deported. It is undisputed that the ICE Defendants were mistaken in their belief that
Plaintiff was an alien, and therefore there was no lawful basis for detaining Plaintiff after October
26, 2008. Moreover, Plaintiff alleges that the ICE Defendants intentionally ignored evidence of
Plaintiff‘s citizenship. Id. at ¶¶ 46, 52, 53, 56.

He also alleges the ICE Defendants coerced

him into signing a false statement. Id. at ¶ 55. Certainly, while Defendants‘ alleged coercion is
disputed, the fact the Plaintiff inexplicably signed a statement incorrectly stating he was an alien is
not. While Defendants may dispute Plaintiff‘s allegations, they are not ―conclusory.‖
Regardless, it is plainly obvious that Plaintiff was seized. If, as alleged, ―information
27

and personal data retrieved [during this seizure] contained numerous references to [Plaintiff‘s]
U.S. citizenship‖, that seizure was objectively unreasonable. Id. at ¶ 55. The seizure was also
objectively unreasonable if it was based on a statement that Plaintiff ―was coerced and
manipulated . . . into signing.‖ Id. at ¶ 49.
Finally, the ICE Defendants contend that qualified immunity shields them from
liability for Plaintiff‘s Fourth Amendment claim. ―Qualified immunity shields federal and state
officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was ‗clearly established‘ at the time of the
challenged conduct.‖ al-Kidd, 131 S.Ct at 2080 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982))).

A Government official's conduct violates clearly established law when, at the time of

the challenged conduct, ―the contours of a right are sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.‖ Id. at 2083 (quotation and
alteration omitted). A ―case directly on point [is not required], but existing precedent must have
placed the statutory or constitutional right beyond debate.‖ Id. Liability may be imposed only if
―‗a reasonable officer would know that the specific conduct at issue was impermissible.‘‖ Owens
ex rel. Owens v. Lott, 372 F.3d 267, 273 (4th Cir. 2004) (quoting Rogers v. Pendleton, 249 F.3d
279, 285 (4th Cir. 2001)). The purported constitutional right must be defined ―at a high level of
particularity‖ and is ―clearly established‖ only if it has been ―specifically adjudicated‖ or it is
―manifestly apparent from broader applications of the constitutional premise in question.‖ Id. at
279 (quoting Edwards, 178 F.3d at 251). Simply put, ―the contours of the right must have been so
conclusively drawn as to leave no doubt that the challenged action was unconstitutional.‖
Edwards, 178 F.3d at 251 (internal quotation marks omitted). To overcome qualified immunity at
the pleading stage, a plaintiff must therefore provide ―sufficient factual matter, accepted as true, to
28

‗state a claim to relief that is plausible on its face.‘‖ Iqbal, 129 S. Ct. at 1949 (quoting Twombly,
550 U.S. at 570)
To reiterate, Plaintiff alleges he was improperly seized by the ICE Defendants.
Because Plaintiff is an United States citizen, the ICE Defendants had no legal basis for detaining
Plaintiff beyond October 28, 2008. He was detained by ICE until December 18, 2008, at which
point he was improperly removed from the United States.

Claims of false arrest, false

imprisonment and malicious prosecution should be considered claims alleging a seizure of the
person in violation of the Fourth Amendment. Rogers v. Pendelton, 249 F.3d 279, 294 (4th Cir.
2001). The Fourth Amendment prohibits law enforcement officers from making unreasonable
seizures, and a seizure of an individual effected without probable cause is unreasonable. Brooks
v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996). Here, Plaintiff alleges that the ICE
Defendants deliberately ignored evidence of his citizenship. Thus, Plaintiff has pled the violation
of a clearly established right. ―At a general level, the right at stake here . . . is the right not to be
deprived of liberty or property based on the deliberate use of evidence fabricated by or known to
be false to a law enforcement official.‖ White v. Wright, 150 Fed. Appx. 193, 198 (4th Cir. 2005).
The Fourth Circuit has recognized that an officer who violates this right may be subject to civil
liability. Id.
For these reasons, the ICE Defendants are not entitled to qualified immunity.
Accordingly, it is RECOMMENDED that the ICE Defendants‘ motion to dismiss Plaintiff‘s
Fourth Amendment claim be DENIED.
III. Conclusion
For the aforementioned reasons, it is RECOMMENDED that:
1)

The United States‘ motion to dismiss Plaintiff‘s FTCA false
29

imprisonment claim be DENIED;
2) The United States‘ motion to dismiss Plaintiff‘s FTCA negligence
claim be DENIED;
3) The United States‘ motion to dismiss Plaintiff‘s FTCA IIED claim be
DENIED;
4) The United States‘ motion to dismiss based on the foreign country
exception of the FTCA be GRANTED and that Plaintiff‘s FTCA claims be
DISMISSED to the extent they seek damages for injuries which occurred
outside the United States;
5) The ICE Defendant‘s motion to dismiss Plaintiff‘s Due Process claims
be GRANTED because those claims are not viable pursuant to Bivens, and
that Plaintiff‘s First and Second Claims for Relief be DISMISSED; and
6) The ICE Defendants‘ motion to dismiss Plaintiff‘s Fourth Amendment
claim be DENIED.

SO RECOMMENDED in Chambers at Raleigh, North Carolina on Monday,
November 14, 2011.

____________________________________
WILLIAM A. WEBB
UNITED STATES MAGISTRATE JUDGE

30