LYTTLE v. The UNITED STATES OF AMERICA et al

Filing 77

APPEAL OF US MAGISTRATE JUDGE DECISION to District Court by Mark Daniel Lyttle re 75 MEMORANDUM AND RECOMMENDATIONS re 49 MOTION to Dismiss to correct Deficiency Notice filed by The UNITED STATES OF AMERICA, 51 MOTION to Dismiss (to correct deficiency notice) filed by Robert Kendall, Dashanta Faucette, Dean (McKinney, Jeremy)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
Case No. 4:10-CV-142-D

MARK DANIEL LYTTLE,
Plaintiff,
v.
THE UNITED STATES OF AMERICA, et al.,
Defendants.

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PLAINTIFF’S OBJECTION TO
MEMORANDUM AND
RECOMMENDATION OF
MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b), and Local Civil Rule 72.4(b),
E.D.N.C., plaintiff Mark Daniel Lyttle (“Plaintiff”) respectfully submits this Objection to the
Memorandum and Recommendation of Magistrate Judge William A. Webb, served November
14, 2011 (the “Recommendation,” Document 75), granting in part and denying in part the motion
to dismiss filed by Defendants Dashanta Faucette, Dean Caputo, and Robert Kendall of U.S.
Immigration and Customs Enforcement (the “ICE Defendants”).
Plaintiff objects to the portion of the Recommendation recommending that this Court
dismiss Plaintiff’s claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971), alleging violations of due process and equal protection as
guaranteed by the Due Process Clause of the Fifth Amendment to the United States Constitution
(the “Bivens due process claims” or the “Bivens claims”).
Plaintiff respectfully requests that this Court reject the Magistrate’s recommendation that
special factors counsel against allowing Plaintiff’s Bivens due process claims to proceed, modify

the Recommendation accordingly, and issue an order denying the ICE Defendants’ Motion to
Dismiss in its entirety.
STATEMENT OF THE CASE
Plaintiff Mark Daniel Lyttle is a United States citizen who suffers from mental
disabilities and who was wrongfully detained and deported from the United States. Plaintiff filed
a Complaint on October 13, 2010, and filed an Amended Complaint on May 25, 2011 (the
“Amended Complaint,” Document 44) against the ICE Defendants and the United States. In his
Amended Complaint, Plaintiff brought the following claims against the ICE Defendants: (1) a
Bivens claim alleging that the ICE Defendants deprived Plaintiff of his constitutional right to
liberty without due process of law as protected by the Fifth Amendment, (2) a Bivens claim
alleging that the ICE Defendants violated his Fifth Amendment right to equal protection of the
law by deliberately discriminating against him on the basis of race and ethnicity, and (3) a
Bivens claim that the ICE Defendants intentionally and unlawfully detained him, violating his
right under the Fourth Amendment to be free of unreasonable seizures. Plaintiff also brought the
following claims against the United States: (1) 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 by detaining and deporting him, (2) an 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 (3) an
FTCA claim of intentional infliction of emotional distress.
On June 24, 2011, the ICE Defendants filed a motion to dismiss all three of Plaintiff’s
claims against them pursuant to Fed. R. Civ. P. 12(b)(6). On the same date, the Defendant
United States filed a motion to dismiss all of the claims against it.

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On November 14, 2011, the Magistrate Judge issued a Memorandum and
Recommendation recommending that this Court deny in part and grant in part the ICE
Defendants’ and United States’ Motions to Dismiss. The Magistrate Judge recommended that
this Court deny the United States’ motion to dismiss Plaintiff’s FTCA claims, except that this
Court should dismiss the FTCA claims to the extent they seek damages for injuries that occurred
outside the United States. The Magistrate Judge recommended that the ICE Defendants’ motion
to dismiss Plaintiff’s Bivens due process claims be granted and that the ICE Defendants’ motion
to dismiss Plaintiff’s Fourth Amendment claim be denied.
Plaintiff now files his objection to that part of the Recommendation that calls for
Plaintiff’s Bivens due process claims to be dismissed.
STANDARD OF REVIEW
When a party files objections to a Magistrate Judge’s recommendation, Rule 72 calls on
the Court to make a de novo determination of the parts of the recommendation to which the party
objects. See Fed. R. Civ. P. 72(b); accord 28 U.S.C. § 636(b)(1). This de novo review entails
“fresh consideration to those issues to which specific objections have been made.” 12 Charles
Alan Wright & Arthur Miller, Federal Practice & Procedure § 3070.2 (3d ed. 2004) (emphasis
added) (quoting H.R. Rep. No. 94-1609, at 3 (1976), as reprinted in 1976 U.S.C.C.A.N. 6162,
6163). This is because the District Judge, rather than the Magistrate Judge, “‘exercise[s] the
ultimate authority to issue an appropriate order.’” Thomas v. Arn, 474 U.S. 140, 153 (1985)
(quoting United States v. Raddatz, 447 U.S. 667, 682 (1980)).
In conducting its de novo review, the Court must accept all factual allegations of the
claim as true and construe them in the light most favorable to the nonmoving party. Coleman v.
Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010); Nemet Chevrolet, Ltd. v.

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Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). In order to survive the motion to
dismiss, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
OBJECTION
Plaintiff submits that the Recommendation erred by concluding that Plaintiff’s Bivens
due process claims are not cognizable specifically because “special factors counsel against
extending Bivens liability to include these claims.” (Recommendation at 22.)
The Recommendation properly noted that “Plaintiff alleges claims to which Bivens has
already been deemed generally applicable.” (Recommendation at 20.) The Recommendation
also correctly found that the Immigration and Nationality Act (“INA”) does not preclude
recovery for Plaintiff’s Bivens claims because Congress’ plenary power over the admission of
aliens does not prevent a U.S. citizen from alleging that federal officials acted to deliberately
deprive him of his constitutional rights while purportedly executing their duties under the INA.
(See Recommendation at 22.) Yet despite rejecting the ICE Defendants’ argument that
Plaintiff’s Bivens claims are barred by exclusive statutory remedy and finding that the claims are
otherwise cognizable, the Recommendation erroneously concluded that allowing Plaintiff’s
Bivens claims would be an expansion of Bivens liability, and that such an expansion, along with
other special factors, should counsel against allowing the Bivens due process claims. (See
Recommendation at 26.)
The Recommendation identified the following special factors purportedly counseling
against the application of Bivens liability to the facts of the instant case: (1) that Plaintiff’s due
process claims would be an expansion of the application of Bivens in a manner disfavored by the

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Supreme Court, (Recommendation at 23), (2) that because an immigration judge issued the order
to remove Plaintiff, Plaintiff’s Bivens claims will not deter federal officers such as the ICE
Defendants from committing constitutional violations, (Recommendation at 25), (3) that
Plaintiff’s due process claim of unlawful deportation is a duplicate of his claim that his detention
violated his Fourth Amendment right to be free from unreasonable seizures, (Recommendation at
25), and (4) that allowing Plaintiff’s claim of discrimination in violation of the equal protection
component of the Due Process clause would encroach on Congress’ plenary power to regulate
immigration and naturalization, (Recommendation at 25-26). None of these factors should
counsel against the application of Bivens liability in this case.
1)

The Recommendation determined that Plaintiff’s due process claims would be an

expansion of the application of Bivens in a manner inconsistent with the Supreme Court’s Bivens
jurisprudence. In so doing, the Recommendation incorrectly characterized Plaintiff’s claims as
requiring an extension of Bivens liability to a new context and did not adequately weigh the lack
of any alternative remedy for Plaintiff as a justification for Bivens liability.
Plaintiff’s Bivens claims do not seek to extend liability to a “new context or new category
of defendants,” which is how the Supreme Court has characterized the circumstances in those
cases where it declined to allow a Bivens action. Correctional Services Corp. v. Malesko, 534
U.S. 61, 68 (2001). As the Recommendation recognized in finding Plaintiff’s Fourth
Amendment Bivens claim cognizable, the ICE Defendants are permissible defendants in a suit
for money damages. (Recommendation at 22.) The Recommendation concluded that allowing a
claim against those same defendants for violations of the Fifth Amendment, as opposed to
violations of the Fourth Amendment, would expand Bivens liability into a new “context.”
(Recommendation at 20, 24.) The cases in which the Supreme Court has declined to extend

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Bivens liability, however, demonstrate that this Court should not consider Plaintiff’s Bivens due
process claims as arising in a new context at all. In Malesko, the Supreme Court noted that the
First Amendment claim in Bush v. Lucas, 462 U.S. 367 (1983), was not cognizable because it
arose “in the context of federal employment,” and the claim would have involved “a new species
of litigation between federal employees,” 534 U.S. at 68 (internal quotation marks omitted).
Schweiker v. Chilicky, 487 U.S. 412, 425 (1988), concerned the “social welfare context”
because the claim would have rendered actions by Social Security administration officials in
disbursing disability benefits subject to Bivens liability for the first time. F.D.I.C. v. Meyer, 510
U.S. 471, 485-86 (1994), declined to allow a Bivens claim against a federal agency, a new
category of defendant. But simply allowing an additional constitutional claim—a due process
claim that is itself generally cognizable under Bivens—against federal immigration officials who
are already amenable to suit under Bivens is not a new “context” as reflected in the Supreme
Court’s Bivens jurisprudence.
Even if the Recommendation were correct in finding that Plaintiff’s Bivens claims would
be an expansion of liability into a new context, Plaintiff’s lack of an alternative remedy is
nevertheless a justification for allowing Bivens liability in this case. In Malesko, the majority
noted that Bivens liability, while limited by the Supreme Court, has been extended in two
circumstances—“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.”
534 U.S. at 70 (emphases in original). The INA provides no remedy for individuals found to
have been unlawfully deported. Nor is the availability of a potential remedy under the Federal
Tort Claims Act an adequate alternative, because the Supreme Court has found that “the threat of

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suit against the United States [is] insufficient to deter the unconstitutional acts of individuals,”
and it is “‘crystal clear’ that Congress intended the FTCA and Bivens to serve as ‘parallel’ and
‘complementary’ sources of liability.” Malesko, 534 U.S. at 68. Furthermore, as set forth
below, the availability of a Fourth Amendment Bivens claim against the ICE Defendants is not
an adequate remedy for the Fifth Amendment violations alleged in Plaintiff’s Bivens due process
claims. If Plaintiff’s Bivens due process claims are not cognizable, then federal immigration
enforcement officers will have de facto absolute immunity to violate the Fifth Amendment rights
of U.S. citizens when acting under the color of their official authority. This Court should find
that Plaintiff’s lack of an alternative remedy for due process violations requires the application of
Bivens liability.
2)

Plaintiff urges that this Court reconsider the conclusion in the Recommendation that the

ICE Defendants should be shielded from Bivens liability because the order of removal was
ultimately issued by an immigration judge in Georgia. The Recommendation states that “the
ICE Defendants did not make the determination [of removal] that Plaintiff now asserts was not
guarded by Due Process” and that a Bivens claim would therefore have no deterrent effect in
preventing unlawful deportations. (Recommendation at 25.) Yet Plaintiff’s Bivens claim that
federal immigration officials deprived him of his liberty without due process of law does not turn
on the fact that an immigration judge was involved in the process of removal. Plaintiff’s
deportation was a result of a series of actions by federal immigration officials that culminated in
the immigration’s judge’s order in a summary deportation hearing conducted by remote videolink, and cannot be termed the product of a single determination by the immigration judge. The
crux of Plaintiff’s claim is that, by deliberately ignoring the overwhelming evidence of his U.S.
citizenship and nonetheless commencing and prosecuting removal proceedings against him, the

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ICE Defendants “deported or caused Mr. Lyttle to be deported without reasonable basis or lawful
authority.” (Amended Complaint ¶ 129 (emphasis added).) The order of removal was the
“direct and proximate result of the unlawful actions of [the ICE] Defendants.” (Id. at ¶ 133.)
But for the ICE Defendants acting “illegally, arbitrarily, and capriciously” (Id. at ¶ 127) by,
among other things, coercing Plaintiff into signing false statements, and then initiating removal
proceedings against him, he would never have been deported. As such, allowing Plaintiff’s
Bivens claim would have precisely the deterrent effect that justifies a Bivens remedy, because it
would deter ICE officials from acting unconstitutionally when exercising their immigration
functions and from thereby causing U.S. citizens to be unlawfully deported. See Malesko, 534
U.S. at 70 (“The purpose of Bivens is to deter individual federal officers from committing
constitutional violations.”). The Recommendation thus erred in finding that Plaintiff’s Bivens
claims would have no deterrent effect and that such lack of a deterrent effect is a special factor
counseling against the application of Bivens liability.
3)

The Recommendation also erred in accepting the ICE Defendants’ contention that

Plaintiff’s due process claim of unlawful deportation duplicates his claim that his detention
violated his Fourth Amendment right to be free from unreasonable seizures. (Recommendation
at 25.) Plaintiff’s claim under the Due Process clause is not that “his detention was continued
well beyond the scheduled release date” as claimed by the ICE Defendants and accepted by the
Recommendation, (Recommendation at 25), but rather that the ICE Defendants
unconstitutionally “deported or caused [him] to be deported,” (Amended Complaint ¶ 133).
Deportation is clearly a loss of liberty that is distinct from the deprivation of liberty entailed by
detention. See Bridges v. Wixon, 326 U.S. 135, 154 (1945) (“Though deportation is not
technically a criminal proceeding, it visits a great hardship on the individual and deprives him of

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the right to stay and live and work in this land of freedom.”). Plaintiff’s claim of unreasonable
seizure under the Fourth Amendment is based on his unlawful detention and is therefore not a
duplicate of his claim that the separate act of deportation violated his constitutional right to
liberty without due process. This Court should find that there is no duplication of Plaintiff’s
claims and that such claimed duplication is not a special factor mitigating against Bivens
liability.
4)

Finally, Plaintiff submits that the Recommendation erred in finding that Plaintiff’s Bivens

claim of discrimination in violation of the equal protection component of the Due Process clause
would encroach on Congress’ plenary power to regulate immigration and naturalization. The
Recommendation stated that permitting a Bivens claim against immigration officials for their
erroneous classification of Plaintiff as an alien would be a “cure…worse than the disease” and
quoted from Appiah v. U.S. I.N.S., 202 F.3d 704, 710 (4th Cir. 2000), for the proposition that
“constraints…of nondiscrimination exacted by the equal protection component of the due
process clause do not limit the federal government’s power to regulate either immigration or
naturalization”). (Recommendation at 25.) Plaintiff’s Bivens claim, however, does not
challenge Congress’ plenary power to regulate immigration and naturalization—a fact which the
Recommendation acknowledged elsewhere in its Bivens analysis when concluding that the INA
does not preclude Plaintiff’s Bivens claims because “[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.” (Recommendation at 22
(quotation marks omitted; alterations in original).) Plaintiff alleges that the ICE Defendants
deliberately and unconstitutionally discriminated against him on the basis of his race and

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ethnicity and that their means of doing so was to act under the guise of their immigration
enforcement authority and classify Plaintiff as an alien despite overwhelming evidence to the
contrary. Such a claim in no way implicates Congress’ plenary power to make laws regulating
immigration. If it did, federal immigration officials could discriminate, with impunity, on the
basis of race or ethnicity while purporting to act under their authority to enforce immigration
laws. Where a U.S. citizen with mental disabilities is discriminated against on the basis of his
race and ethnicity, interrogated and coerced into signing documents that waive fundamental
rights, and then unlawfully detained and deported from the country because of said
discrimination, the fact that such unconstitutional actions were committed under the guise of
immigration enforcement authority should not preclude a Bivens remedy. This Court should
therefore find that Congress’ plenary power over immigration is not a special factor counseling
against allowing a Bivens claim.

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CONCLUSION
For the foregoing reasons, Plaintiff respectfully objects to the portion of the
Memorandum and Recommendation of the United States Magistrate Judge recommending the
dismissal of his Bivens due process claims.

Plaintiff requests that this Court reject the

recommendation to grant the ICE Defendants’ motion to dismiss Plaintiff’s Bivens due process
claims, modify the Recommendation accordingly, and issue an order denying the ICE
Defendants’ Motion to Dismiss in its entirety.
This 1st day of December, 2011.

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

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With Co-Counsel:
TROUTMAN SANDERS LLP
/s/ Michael E. Johnson_____
MICHAEL E. JOHNSON
Georgia Bar No. 395039
[e-mail]
BRIAN P. WATT
Georgia Bar No. 741841
[e-mail]
ALEXANDRIA J. REYES
Georgia Bar No. 428936
[e-mail]
Bank of America Plaza, Suite 5200
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
Telephone: [phone]
Facsimile: [phone]
AMERICAN CIVIL LIBERTIES UNION
OF NORTH CAROLINA LEGAL FOUNDATION
/s/ Katherine Lewis Parker
KATHERINE LEWIS PARKER
N.C. Bar No. 36263
Legal Director, American Civil Liberties Of
North Carolina Legal Foundation
Post Office Box 28004
Raleigh, North Carolina 27611
Telephone: [phone]
Facsimile: [phone]
[e-mail]
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
/s/ Judy Rabinovitz
JUDY RABINOVITZ
American Civil Liberties Union Foundation
Immigrants’ Rights Project
125 Broad Street, 18th Floor
New York, New York 10004
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on December 1, 2011, I electronically filed the preceding Plaintiff’s
Objection to Memorandum and Recommendation of Magistrate Judge with the Clerk of
Court using the CM/ECF system which will automatically send email notification of such filing
to all parties of record.
This 1st day of December, 2011.

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

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