LYTTLE v. The UNITED STATES OF AMERICA et al

Filing 78

OBJECTIONS to 75 Memorandum and Recommendations filed by Dean Caputo, Dashanta Faucette, Robert Kendall, and The United States. (Whitman, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Case No. 4:10-cv-142-D
____________________________________
)
MARK DANIEL LYTTLE,
)
)
FEDERAL DEFENDANTS’
Plaintiff,
)
OBJECTIONS TO THE MAGISTRATE
)
JUDGE’S MEMORANDUM AND
v.
)
RECOMMENDATION
)
UNITED STATES OF AMERICA, et al., )
)
Fed. R. Civ. P. 72
Defendants.
)
Local Rule 72.4
____________________________________)
FEDERAL DEFENDANTS’ OBJECTIONS TO THE
MAGISTRATE JUDGE’S MEMORANDUM AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636, Federal Rule of Civil Procedure 72, and Local Civil Rule
72.4, the federal defendants in this action (the United States, Dashanta Faucette, Dean Caputo,
and Robert Kendall) respectfully submit these Objections to U.S. Magistrate Judge Webb’s
Memorandum and Recommendation of November 14, 2011 (“M&R”). D-E 75. In particular,
the United States objects to those portions of the M&R concluding that (1) the discretionary
function and due care exceptions to the Federal Tort Claims Act (“FTCA”) do not bar plaintiff’s
three FTCA claims in this case, and (2) that plaintiff has stated viable claims for false
imprisonment, negligence, and intentional infliction of emotional distress (“IIED”) under North
Carolina law. M&R at 10-18. At the same time, the three agents of the U.S. Immigration and
Customs Enforcement (“ICE”) sued in their individual capacity under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)—ICE Agents Faucette,

Caputo, and Kendall (“ICE defendants”)—object to the M&R insofar as it recommends that
plaintiff’s Fourth Amendment claim against them may go forward. M&R at 26-29.
INTRODUCTION
At the outset, the federal defendants want to make it clear that they fully appreciate the
concern caused by the deportation of an American citizen. But sometimes an individual’s
citizenship status is unclear—whether through the individual’s own doing, through no fault of the
individual, or both. And in this case, although what allegedly happened to Mr. Lyttle is
unfortunate (even if he played a significant role in being deported), there was at the time a
reasonable basis to believe he was a criminal alien. Throughout the M&R, however, and with the
benefit of 20/20 hindsight, the Magistrate Judge relies quite heavily on Lyttle’s actual status as a
citizen when analyzing the claims against the federal defendants. This is, as we explain below, a
legally irrelevant consideration, and is the primary (though not the only) error in the M&R.
Lyttle has never disputed that he was competent to stand trial and be sentenced—with no
need for psychiatric or psychological counseling—on a state criminal misdemeanor charge that
led to his incarceration in a North Carolina jail in August 2008. Nor has he disputed that a few
weeks later he executed a sworn statement before a federal officer (ICE Agent Faucette) in which
he admitted under oath, based on answers he gave in response to basic biographical questions,
that he was born in Mexico and in the United States illegally. These (and other) incontestable
facts demonstrate that, despite conflicting information indicative of Lyttle’s citizenship, the
FTCA’s discretionary function and due care exceptions divest this Court of subject matter
jurisdiction as to all three of Lyttle’s claims against the United States. A finding that these
exceptions do not apply here (as Magistrate Judge Webb has recommended) would be contrary to
well-established and uniform case law, including that of the Fourth Circuit.
-2-

That is also true of the Magistrate Judge’s proposed substantive disposition of each of
Lyttle’s FTCA claims. We separately have shown that Lyttle’s allegations do not suffice as a
matter of law to sustain claims for the torts of false imprisonment, negligence, or IIED (Counts 4,
5, and 6, respectively) under North Carolina precedent. In reaching an opposite conclusion, the
Magistrate Judge has misapplied that precedent, failed to address our principal arguments, and
considered allegations that have no bearing on this particular case.
Finally, the Magistrate Judge erred in recommending that Lyttle’s Bivens claim against
the ICE defendants for asserted violations of his Fourth Amendment rights (Count 3) be allowed
to proceed. Although the M&R correctly concludes that the Court should not recognize a Bivens
cause of action in the immigration context under the Fifth Amendment, the Magistrate Judge’s
reluctance to extend Bivens is equally applicable to Lyttle’s Fourth Amendment claim. In
suggesting otherwise, and in further proposing that the ICE defendants’ qualified immunity
defense be denied, the Magistrate Judge again failed to account for the fact that Lyttle was
reasonably suspected of being an alien at the time.1
DISCUSSION
A party may file objections to a Magistrate Judge’s recommended disposition of a
particular matter. 28 U.S.C. § 636(b). As to dispositive motions, a district court is required to
“make a de novo determination” of those portions of a Magistrate Judge’s recommendations to
which timely, specific, written objections have been filed. Fed. R. Civ. P. 72(b)(3).

1

The M&R notes that Lyttle requests injunctive relief. See M&R at 1. But Lyttle does
so merely in passing, see FAC ¶ 1; in reality he seeks only damages from the federal defendants
in this case, see id. ¶¶ 133, 139, 146, 151, 157, 163-64. In addition, the M&R cites Lyttle’s
“Corrected” Complaint (D-E 8). Because the currently operative complaint is Lyttle’s “Amended
Complaint” (D-E 44), we continue to refer to that in these Objections, as the parties did in the
prior briefing, and abbreviate that complaint as “FAC” (for “First Amended Complaint”).
-3-

I.

The M&R Erroneously Concludes That The FTCA’s
Discretionary Function And Due Care Exceptions Do Not Apply
We have demonstrated that all three of Lyttle’s FTCA claims should be dismissed under

Rule 12(b)(1) for lack of subject matter jurisdiction because the FTCA’s discretionary function
and due care exceptions preserve the government’s sovereign immunity from tort liability under
the circumstances of this case. See D-E 50 at 6-12; D-E 60 at 1-8. In making a contrary
recommendation, the Magistrate Judge has analyzed these exceptions in a way that does not
comport with Lyttle’s allegations or the law applicable to those allegations.
A.

The Discretionary Function Exception (Counts 5 and 6)

The FTCA’s discretionary function exception generally exempts the United States from
tort 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).
Determining if particular conduct falls within that exception involves a two-prong test: the
conduct must be (1) “‘the product of judgment or choice’” and (2) “‘based on considerations of
public policy.’” Medina v. United States, 259 F.3d 220, 226 (4th Cir. 2001) (quoting Berkovitz v.
United States, 486 U.S. 531, 536, 537 (1988)).
Although the M&R accurately summarizes these basic principles, see M&R at 10, it is
silent on a few other foundational premises important to a discussion of the discretionary
function exception in this case. Namely, the United States has directed that exception only at the
allegations concerning the manner in which ICE agents interviewed Lyttle and investigated his
immigration status, and the adequacy of their training and supervision in these matters. See D-E

-4-

50 at 7-8, 10-11; D-E 60 at 2. These allegations form the bulk of Lyttle’s claims for negligence
and IIED in Counts 5 and 6. See FAC ¶¶ 87-94, 155.2
Turning to the heart of those claims—i.e., how the ICE defendants came to a decision
about initiating deportation proceedings against Lyttle—the Magistrate Judge has stated that the
“crucial fact” in this case is that the statute under which Lyttle was detained “give[s] immigration
officials the authority to detain ‘aliens,’ and Plaintiff is not an alien.” M&R at 11. The M&R
goes on to say that, if Lyttle could prove his allegations of the ICE defendants coercing him into
signing “a statement that ultimately proved false and by deliberately ignoring information that
established his citizenship,” then “these decisions were not within Defendants’ ‘discretion.’” Id.
This analysis is flawed for several reasons.3
The M&R seems to suggest that immigration officials lack discretion to detain someone
whom they suspect to be an alien but who “ultimately” turns out to be a citizen.4 This is simply
not the law. ICE is statutorily entrusted with enforcing the nation’s immigration laws, which
involves, among other things, ensuring that certain criminal aliens in this country are removed.
See 6 U.S.C. §§ 251-52, 542 (note); 8 U.S.C. § 1226. By sheer necessity this requires ICE agents

2

The remainder of Counts 5 and 6, and all of Count 4, appear to challenge the mere fact
of Lyttle’s detention in ICE custody in North Carolina. That aspect of Lyttle’s FTCA claims is
barred by the due care exception, discussed below in Section I-B.
3

As a preliminary matter, the M&R does not identify whether the Magistrate Judge is
recommending that the United States’ argument under the discretionary function exception be
rejected under the first or second prong of the Supreme Court’s two-part test (or both). But given
the M&R’s reference to “discretion,” M&R at 11, and the absence of any discussion in the M&R
about public policy considerations, we assume it is the first prong—i.e., whether the challenged
conduct is “a matter of choice for the acting employee.” Berkovitz, 486 U.S. at 536. Either way,
the Magistrate Judge’s analysis is erroneous for the reasons we explicate below.
4

The Magistrate Judge has invoked the post-hoc distinction between suspected and actual
aliens to reject a variety of the federal defendants’ arguments. See M&R at 11, 13, 14, 22, 29. In
each instance, that distinction is unsupportable and irrelevant. See infra Sections I-B, II-C, III.
-5-

to detain suspected criminal aliens pending further investigation. See Douglas v. United States,
No. 09-2145, 2011 WL 2471516, *11 (M.D. Fla. June 22, 2011) (noting that “ICE must weigh
various policy considerations in deciding which suspected aliens to detain, how to detain them,
and how to investigate claims of citizenship by detained aliens,” and concluding “there is little
doubt” that allegations of ICE agents “negligently fail[ing] to ascertain or verify [the plaintiff’s]
citizenship status fall squarely within the discretionary function exception” ) (emphasis added).
Indeed, the Immigration and Nationality Act (“INA”) presumes that individuals may raise claims
of citizenship during their immigration proceedings. See 8 U.S.C. §§ 1252(b)(5); 1503.
Still more to the point, courts uniformly have held the discretionary function exception
protects an immigration official’s conduct in investigating a claim of citizenship and initiating
deportation proceedings—even when the individual under investigation is in fact a citizen or in
the country legally. See Nguyen v. United States, 65 F. App’x 509, 2003 WL 1922969, *1-2 (5th
Cir. 2001) (per curiam); Douglas, 2011 WL 2471516, at *11; Bernado v. United States, No.
02-0974, 2004 WL 741287, *3 (N.D. Tex. Apr. 5, 2004); Diaz v. United States, No. 99-6374,
2002 WL 31002842, *1 (N.D. Ill. Sept. 3, 2002). Suggesting otherwise would be akin to saying
that a law enforcement officer lacks discretion in how to investigate or interrogate a suspected
criminal who turns out to be actually innocent. This would defy both logic and the law, and we
have cited cases applying the discretionary function in precisely this situation. See O’Ferrell v.
United States, 253 F.3d 1257, 1261-62, 1266-67 (11th Cir. 2001); Mesa v. United States, 123
F.3d 1435, 1438-39 (11th Cir. 1997).
The M&R accounts for none of the foregoing authority. It also cites no authority of its
own to support the novel proposition that ICE agents may not detain suspected criminal aliens.
And, like Lyttle’s response brief, the M&R does not cite a single case in which a court has
-6-

refused to apply the discretionary function exception where the plaintiff challenged why and how
immigration officials decided to initiate deportation proceedings, or why and how law
enforcement officers interrogated or investigated a suspect. Indeed, we are aware of no case
holding that the discretionary function exception is inapplicable in such circumstances.
Reaching that anomalous result would further require this Court to follow the M&R’s
strained reading of Medina, a Fourth Circuit opinion that bears directly on this case. In Medina,
the Fourth Circuit held, sua sponte, that the decision to arrest an alien and institute deportation
proceedings is a “quintessential exercise of” immigration officials’ “broad discretion.” Medina,
259 F.3d at 227. Contrary to what the M&R suggests, the holding in Medina does not turn on
whether the plaintiff is an alien or a citizen, but on the “prosecutorial discretion” immigration
officials use when arresting and detaining someone they believe should be deported. Id.5
Separately, the Magistrate Judge has suggested that the discretionary function exception
should not apply because Lyttle has alleged the ICE defendants violated his constitutional rights
by “coercing him to sign a statement” concerning his citizenship that “ultimately proved false,”
and by ignoring “information that established his citizenship.” M&R at 11-12. This reasoning
fails to consider several key points.

5

Confirming this understanding of Medina is Mirmehdi v. United States, – F.3d – , No.
09-55846, 2011 WL 5222884 (9th Cir. Nov. 3, 2011). In Mirmehdi the Ninth Circuit also held,
sua sponte, that “the decision to detain an alien pending resolution of immigration proceedings”
is subject to the discretionary function exception. Id. at *5. And its rationale for doing so was
not that the plaintiffs were in fact aliens, but that the “decision whether or not to prosecute a
given individual is a discretionary function for which the United States is immune from liability.”
Id. (internal quotations and citation omitted). The court in Mirmehdi quoted Medina to support
this very proposition: “‘Even though the INS ultimately decided not to pursue the deportation of
Medina, we are fully satisfied that the initial decision to initiate proceedings and arrest him was
the type of agency conduct Congress intended to immunize in the discretionary function
exception.’” Id. (quoting Medina, 259 F.3d at 229). We brought Mirmehdi to the Court’s
attention with a Notice of Supplemental Authority (D-E 73), but it too is left out of the M&R.
-7-

First, the allegation that Lyttle was “coerced” into signing a statement concerning his
nationality, see FAC ¶ 54, is a pure legal conclusion that is devoid of factual support and thus is
not entitled to the presumption of truth. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
Second, the most that assertion amounts to is that Agent Faucette may have misjudged Lyttle’s
mental competency when she interviewed him. See FAC ¶¶ 54-55. But Lyttle has never
disputed that assessing his ability to understand simple biographical questions and deciding not
to refer him for an independent mental health examination were exercises in judgment and well
within Faucette’s discretion; moreover, his own criminal records support the assumption that he
was able to answer such questions. See D-E 50 at 10 n.6 & Exh. G; D-E 60 at 4 n.1.6 Third,
Lyttle signed several documents attesting that he was born in Mexico and in the United States
illegally. See FAC ¶¶ 41-45, 54-55; FAC Exh. C; D-E 50 Exhs. A, D, E; In re PonceHernandez, 22 I&N Dec. 784, 785 (BIA 1999) (noting that recorded confessions of foreign
citizenship are “inherently trustworthy and reliable to prove alienage or deportability”).
In light of these undisputed facts and Lyttle’s presumed competency to answer basic
questions such as what his name is and where he was born, ICE at the very least had a reasonable
basis to believe that Lyttle was a criminal alien. And the reasonableness of that belief at the time
necessarily remains constant even though it “ultimately proved false.” M&R at 11. As the ICE
defendants thus separately have shown, Lyttle has not sufficiently alleged that those defendants
violated his clearly established constitutional rights. See Medina, 259 F.3d at 225 n.2 (noting
6

Although the M&R does not refer to them, the documents attached to the federal
defendants’ motions to dismiss and their replies in support of those motions are either
incorporated by reference into Lyttle’s amended complaint or matters of public record, and are
therefore properly before the Court under Rules 12(b)(1) and 12(b)(6). See Philips v. Pitt Cnty.
Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009); Cozzarelli v. Inspire Pharm. Inc., 549 F.3d 618,
625 (4th Cir. 2008); Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004). Lyttle has
never suggested otherwise.
-8-

that in FTCA action “the United States is entitled to avail itself of any defenses its agents could
raise in their individual capacities”); D-E 52 at 14-23; D-E 63 at 4-10; infra Section III-B.
Finally, the allegation that the ICE defendants “disregarded” evidence of Lyttle’s
citizenship is not enough to circumvent the discretionary function exception. That is because the
exception applies “whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a); see,
e.g., Williams v. United States, 242 F.3d 169, 175 (4th Cir. 2001) (finding that federally-operated
hospital’s refusal to treat plaintiff, “even if it amounts to an abuse” by causing plaintiff’s death,
fell within discretionary function exception); O’Ferrell, 253 F.3d at 1267 (applying exception
even though agents’ allegedly coercive interrogation was “indefensibly gross abuse” of their
discretion).7 This is another point the M&R does not address.
In short, the M&R contains several significant errors of omission, both factually and
legally, in its discussion of the discretionary function exception.8 The Court therefore should not
adopt this part of the M&R and find instead that the discretionary function exception bars most
of Counts 5 and 6 in Lyttle’s amended complaint.

7

This assumes the ICE defendants abused their discretion when investigating Lyttle’s
citizenship, but there again is no factual support for such an assumption. Despite any conflicting
evidence of citizenship, we have shown that the North Carolina ICE agents reasonably relied on
Lyttle’s repeated admissions of alienage to commence deportation proceedings against him.
8

One more of these omissions deserves mention. There can be (and is) no debate that
the discretionary function exception scotches Lyttle’s FTCA claims insofar as they rest on his
conclusory allegations about negligent training and supervision, and “[c]reating and/or
sanctioning” policies concerning detention, interrogation, and deportation. FAC ¶¶ 88-92, 155.
We have noted that the law could not be clearer on this point, and that Lyttle has tacitly conceded
the point (by not disputing it). See D-E 50 at 11 (collecting cases); D-E 60 at 2. Yet this issue is
altogether absent from the M&R, even as it recommends that “the portion of the United States’
motion to dismiss which relies upon the discretionary function exception be denied” in its
entirety. M&R at 12. This recommendation is erroneous for all of the reasons discussed above,
but is particularly inappropriate with respect to an issue identified in the United States’ motion to
dismiss that neither Lyttle nor the Magistrate Judge has addressed or disputed.
-9-

B.

The Due Care Exception (Counts 4-6)

Complementing the discretionary function exception is the due care exception, which
“prevents the United States from being held liable for actions of its officers undertaken while
reasonably executing the mandates of a statute.” Welch v. United States, 409 F.3d 646, 651 (4th
Cir. 2005); see 28 U.S.C. § 2680(a). The M&R correctly notes that, for this exception to apply,
there must be a statute or regulation that “specifically proscribes a course of action for an officer
to follow,” and the officer must have “exercised due care in following the dictates of that statute
or regulation.” Welch, 409 F.3d at 652; see M&R at 12-13.
Lyttle has predicated parts of his FTCA claims—the remainder of his negligence and
IIED claims in Counts 5 and 6 not already discussed above under the discretionary function
exception, and all of his false imprisonment claim in Count 4—on the mere fact of his detention
in North Carolina pending deportation proceedings (a total of, at most, two days). See FAC ¶¶
63, 148, 150, 160. Because that detention was statutorily mandated once the ICE defendants
deemed Lyttle deportable, see 8 U.S.C. § 1226(c)(1)(B), the due care exception forecloses this
aspect of Lyttle’s FTCA claims. See Welch, 409 F.3d at 652.
In suggesting that this exception does not apply, the Magistrate Judge again relied on the
erroneous distinction that § 1226(c) “mandates the detention of criminal aliens, and Plaintiff is
not an alien.” M&R at 13. As we have explained at length elsewhere, ICE has the statutory duty
and authority to detain suspected aliens, not just those who are in fact aliens. See supra Section
I-A; D-E 60 at 6-8. And like the Fourth Circuit’s discussion of the discretionary function
exception in Medina, its discussion of the due care exception in Welch does not depend on
whether the plaintiff was an actual or suspected criminal alien. The issue instead was simply
that, once Welch “was deemed deportable,” § 1226(c) mandated his detention, and the due care
-10-

exception therefore barred his FTCA false imprisonment claim as that claim was premised on the
fact of his 422-day wrongful detention. Welch, 409 F.3d at 652. Because Lyttle also “was
deemed deportable” under § 1226(c), the due care exception likewise bars his FTCA claims that
are premised on the fact of his two-day detention by ICE in North Carolina.
Welch also refutes the Magistrate Judge’s other ground for recommending against the
application of the due care exception. The M&R states that, even “assuming that [§ 1226(c)] was
applicable to Plaintiff,” Lyttle’s allegations of the ICE defendants “coerc[ing] him into signing a
false statement and deliberately ignor[ing] information establishing his U.S. citizenship . . .
demonstrate a lack of due care.” M&R at 13. This is incorrect. Lyttle may well be challenging
the manner in which the ICE defendants interviewed him and investigated his citizenship status.
But that aspect of his FTCA claims—a complaint about the “officers’ decision to detain him in
the first instance,” Welch, 409 F.3d at 652—is not relevant to deciding whether those defendants
exercised due care in executing their statutory mandate to detain someone after they have deemed
the individual deportable. (Such a complaint is relevant to, but precluded by, the discretionary
function exception. See supra Section I-A; D-E 50 at 6-11; D-E 60 at 2-8.)9
Because the ICE defendants were statutorily required to detain Lyttle under § 1226(c)
once they deemed him deportable, see Welch, 409 F.3d at 652, the due care exception clearly bars
that part of his FTCA claims resting solely on his alleged two-day detention in ICE custody in
North Carolina (which is all of Count 4 and that portion of Counts 5 and 6 not discussed above in
Section I-A). The Court therefore should not adopt this portion of the M&R but instead should
dismiss all of Lyttle’s FTCA claims under Rule 12(b)(1).
9

What could be relevant to a determination of due care is if the ICE defendants executed
the mandate of 8 U.S.C. § 1226(c) “improperly,” e.g., by detaining Lyttle “for a crime that was
not deportable.” Welch, 409 F.3d at 653. Lyttle, however, has alleged no such thing.
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II.

The M&R Erroneously Concludes That Lyttle Has
Sufficiently Pled His FTCA Claims Under North Carolina Law
All three of Lyttle’s FTCA claims should be dismissed first and foremost for lack of

subject matter jurisdiction under Rule 12(b)(1). See supra Section I-A. In addition, though, they
should be dismissed under Rule 12(b)(6), as Lyttle has failed to state legally viable claims for
false imprisonment, negligence, or IIED under North Carolina law. In reaching the opposite
conclusion, the Magistrate Judge has committed several additional legal and factual errors.
A.

False Imprisonment (Count 4)

Two simple premises—both ignored by the Magistrate Judge—compel the dismissal of
Lyttle’s false imprisonment claim (which again is limited to his alleged two-day detention by ICE
in North Carolina). First, the existence of legal process, such as a warrant, authorizing a
plaintiff’s detention is a complete defense to an action for false imprisonment in North Carolina
(like most states), unless that process is “absolutely void.” Rhodes v. Collins, 150 S.E. 492, 49394 (N.C. 1929); see Melton v. Rickman, 36 S.E.2d 276, 277-78 (N.C. 1945). Second, the ICE
defendants detained Lyttle pursuant to legal process, including a warrant and an immigration
detainer, free of any technical defects that would have made such process void on its face. See
FAC ¶¶ 49-52; D-E 50 at 13-14 & Exhs. C-F; D-E 57 at 11-17; D-E 60 at 8-10. These points are
not, have not been, and cannot be in dispute.10 Yet the Magistrate Judge rather inexplicably
mentions none of them in his discussion of Lyttle’s false imprisonment claim, see M&R at 14,
10

To be sure, Lyttle has broadly questioned whether “the whole process by which [he]
was erroneously determined to be a foreign born citizen was fundamentally flawed and therefore
unlawful,” D-E 57 at 12, whether the ICE defendants lacked probable cause to detain him, id. at
12-15, and whether the “waiver of [his] rights” which he executed “was invalid and void,” id. at
17. But he has not argued—and could not argue in good faith—that the warrant used to detain
him was “void” in the relevant and more narrow legal sense (e.g., the warrant charged no
criminal offense known to the law, he was not the person named in the warrant, or the issuing
authority lacked jurisdiction to issue the warrant). See Melton, 36 S.E.2d at 277-78.
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even though the absence of legal process is an essential element of a false imprisonment claim in
North Carolina, see Melton, 36 S.E.2d at 277, and the only one at issue in the United States’ Rule
12(b)(6) motion to dismiss that claim, see D-E 50 at 13-14; D-E 60 at 8-10.
The recommendation against dismissing Lyttle’s false imprisonment claim instead hinges
on a different but recurring error: the irrelevant distinction between actual and suspected
criminal aliens. According to the M&R, the ICE defendants “had no legal authority to detain
Plaintiff, because the statute which purportedly authorized his detention applie[s] only to aliens
and not U.S. citizens.” M&R at 14. But the M&R offers no authority of its own to support the
notion that ICE agents have “no legal authority” under 8 U.S.C. § 1226(c) to detain a suspected
criminal alien who later is determined to be a citizen (or that law enforcement officers
retroactively lose their “legal authority” to detain a suspected criminal based on a facially valid
warrant if the individual arrested ultimately turns out to be innocent). That notion is, with all due
respect, untenable for the reasons we previously have explained. See supra Section I-A. In
addition, North Carolina courts explicitly follow the rule that an action for false imprisonment
will not lie so long as the arrest is “made under the form of legal process,” even if the process is
later shown to be erroneously issued. Rhodes, 150 S.E. at 494-95; see Bryan v. Stewart, 31 S.E.
286, 287 (N.C. 1898). This is another key point that the M&R simply does not consider.
Because it is undisputed that the North Carolina ICE agents used a warrant to detain
Lyttle, and the warrant charged Lyttle with a violation that is undeniably within ICE’s
jurisdiction, see 8 U.S.C. § 1226(c), Lyttle’s false imprisonment claim fails under clear North
Carolina precedent. See, e.g., Alexander v. Lindsey, 55 S.E.2d 470, 474 (N.C. 1949) (finding that
plaintiff could not pursue claim for false imprisonment after he had been served with a warrant,
as it charged “an offense within the jurisdiction of the magistrate who issued the precept”).
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B.

Negligence (Count 5)

As with the false imprisonment claim, the Magistrate Judge has completely overlooked
the argument we have advanced for dismissing Lyttle’s negligence claim. It is axiomatic that the
United States can be liable under the FTCA only if state law would impose upon a private person
a duty of care towards the plaintiff “under like circumstances.” 28 U.S.C. § 2674; see id. §
1346(b)(1). In other words, Lyttle must establish that North Carolina would “impose liability for
breach of a duty that is sufficiently analogous to the duty” allegedly breached by the ICE
defendants. Florida Auto Auction of Orlando, Inc. v. United States, 74 F.3d 498, 505 (4th Cir.
1996). Although this principle is essential to an FTCA negligence claim, see id., and the sole
basis upon which we have sought dismissal of Lyttle’s negligence claim under Rule 12(b)(6), see
D-E 50 at 15-18; D-E 60 at 10-13, it is not discussed anywhere in the M&R.
Instead, the M&R concludes that Lyttle has pled “general negligence by alleging that
Defendants failed to use reasonable care in their course of conduct.” M&R at 15. This frames
the issue far too broadly, as we explained when Lyttle made this same argument in his opposition
to the United States’ motion to dismiss, see D-E 60 at 10-11, and does not come close to
“identify[ing an] appropriate analog[y]” for a private duty analogue. Florida Auto Auction, 74
F.3d at 505 (reversing denial of summary judgment on FTCA claim where “[n]either the district
court nor [plaintiffs] attempted to identify appropriate analogies”). The more relevant question
here is whether a private person would owe a duty to a plaintiff who was in the custody of a third
party to conduct an error-free investigation into the plaintiff, ensure that the plaintiff understood
his legal rights, and provide assistance to him during an interrogation or before signing legal
forms in deciding whether to extend his detention. See D-E 60 at 11 (citing Lumsden v. United
States, 555 F. Supp. 2d 580, 588 (E.D.N.C.)). The Magistrate Judge, however, has not addressed
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this question (or anything like it) in the M&R, much less cited any precedent supporting the
imposition of such a duty or even a sufficiently analogous duty.11
While thus neglecting the central inquiry concerning Lyttle’s negligence claim, the
Magistrate Judge has made too much out of a peripheral matter: North Carolina’s public duty
doctrine. This appears to be based on a misunderstanding of our position. To be clear, the
United States has not advocated “that the ‘public duty doctrine’ shields it from liability.” M&R
at 15. We actually have said that this doctrine has limited relevance here because it applies to
public officers, see Stone v. N. Carolina Dep’t of Labor, 495 S.E.2d 711, 713-17 (N.C. 1998),
and “assessing the Government’s liability under the FTCA in the performance of activities which
private persons do not perform” (e.g., enforcing the nation’s immigration laws) requires a court
to “look to the state-law liability of private entities, not to that of public entities.” United States
v. Olson, 546 U.S. 43, 46 (2005) (internal quotations and citation omitted); see D-E 50 at 16-18;
D-E 60 at 12. We thus raised the public duty doctrine simply to emphasize that there is in North
Carolina no common law duty that is “sufficiently analogous” to the one Lyttle has proposed in
this case of using “reasonable care” when initiating deportation proceedings against a suspected
criminal alien. Florida Auto Auction, 74 F.3d at 505; see D-E 50 at 17; D-E 60 at 12.
In short, the Magistrate Judge did not even attempt to find, and Lyttle himself has not
established, a private duty analogue applicable to the facts of this case. The Court therefore
should reject the M&R’s recommendation as to Lyttle’s negligence claim and instead should
dismiss that claim under Rule 12(b)(6) as well.

11

This is even more perplexing because Lyttle has argued that the government is liable to
him under a duty analogous to the “Good Samaritan” doctrine. See D-E 57 at 19-20. We have
replied to, and refuted, that argument elsewhere. See D-E 60 at 11-12. But because the M&R
(again) does not address these points, we will not repeat that discussion here.
-15-

C.

Intentional Infliction of Emotional Distress (Count 6)

Lyttle’s third and final FTCA claim, for intentional infliction of emotional distress,
requires him to allege and prove, among other things, conduct that “is so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Foster v. Crandell, 638 S.E.2d 526,
537 (N.C. Ct. App. 2007). In concluding that Lyttle has sufficiently pled such conduct, see M&R
at 17, the Magistrate Judge relied on allegations that are not pertinent to this case and,
simultaneously, failed to analyze the specific allegations and facts that actually are pertinent.
The M&R lists the following among the “actions” that, if proven true, would be “extreme
and outrageous” in the Magistrate Judge’s estimation: “improperly deport[ing]” Lyttle,
“remov[ing] him from the country again when he attempted to re-enter,” and “attempt[ing] to
deport Plaintiff yet again” after “these mistakes were finally corrected.” Id. Yet every one of
these “actions” took place outside of North Carolina (in Georgia and Texas). FAC ¶¶ 63-69, 7786, 95, 98-104, 112-22. While some of those “actions” thus may be relevant in determining the
United States’ liability in Lyttle’s companion case in Georgia, see Lyttle v. United States, No. 11152 (M.D. Ga.), they have no logical or legal bearing on whether the United States is liable in
this case for the alleged conduct of the North Carolina ICE agents.
To make the latter determination, the Court’s inquiry should be limited to the allegations
that the North Carolina ICE agents (as the M&R puts it) “ignored evidence of Plaintiff’s
citizenship” and “coerced him into signing a statement that ultimately proved false.” M&R at 17.
But these conclusory assertions standing alone cannot defeat a motion to dismiss, and the
Magistrate Judge erred in not moving beyond them in his analysis of Lyttle’s IIED claim. See
id.; Iqbal, 129 S. Ct. at 1949-50. Once the Court does that and thoroughly examines the
-16-

amended complaint, while “draw[ing] on its judicial experience and common sense,” it should
become apparent that Lyttle has not pled “sufficient factual matter to show” the North Carolina
ICE agents engaged in extreme and outrageous conduct. Iqbal, 129 S. Ct. at 1948, 1950.
Because we have explored the inadequacy of Lyttle’s allegations on this subject in depth
in the prior briefing, we will not recreate that discussion here. D-E 50 at 19-21; D-E 60 at 13-14.
A few points bear repeating, though. In terms of Lyttle being “coerced” into signing a statement
in which he swore to being in the country illegally, he has alleged nothing to show that Agent
Faucette engaged in extreme and outrageous conduct by merely presuming that he was competent
to answer simple biographical questions. To the contrary, the undisputed fact that he was
competent to stand trial and be sentenced, without the need for any ongoing psychiatric or
psychological counseling, just a few weeks before her interview with him confirms that her
presumption was at least reasonable. See D-E 50 Exh. G. Given the reasonableness of that
presumption, and given that Lyttle’s admissions of alienage were binding and sufficient evidence
to prove deportability, see In re Ponce-Hernandez, 22 I&N Dec. at 785, it would be wholly
unwarranted to cast the decision of the North Carolina ICE agents to initiate deportation
proceedings against Lyttle—even assuming they were aware of conflicting evidence of his
citizenship as he has alleged—as extreme and outrageous. See supra Section III-B. Rather,
every indication is that those agents were performing their usual duties in interviewing and
investigating a suspected criminal alien, just as they had done countless other times.
Because the Magistrate Judge was required to, but did not, determine whether there are
enough “well-pleaded factual allegations” in Lyttle’s amended complaint to state a plausible
claim for IIED under North Carolina law, Iqbal, 129 S. Ct. at 1950, the Court should reject the
M&R in this regard and dismiss Count 6 of the amended complaint.
-17-

III.

The M&R Erroneously Concludes That Lyttle’s Bivens
Claims Under The Fourth Amendment (Count 3) May Proceed
We now turn our focus to the Magistrate Judge’s discussion of the constitutional tort

claims brought against the individual ICE defendants. To begin with, we agree with his
evaluation of the Fifth Amendment claims and do not object to his recommendation to dismiss
Counts 1-2 on special factors grounds. We do, however, respectfully object to his
recommendation regarding the Fourth Amendment claim. As we have demonstrated in our prior
briefing, all of Lyttle’s Bivens claims, including Count 3, should be dismissed because of the
unique special factors presented by the immigration context. See D-E 52 at 6-11; D-E 63 at 1-4.
Moreover, we have shown that plaintiff has failed to state the plausible violation of any
constitutional right, and that the ICE defendants would, in any event, be entitled to qualified
immunity. See D-E 52 at 11-23; D-E 63 4-10. In making a contrary recommendation, the
Magistrate Judge fails to appreciate the remedial scheme established by Congress, applies the
wrong legal standard, and relies on bare legal conclusions instead of well pled factual allegations.
A.

Lyttle’s Fourth Amendment Bivens Claim Is Not Cognizable

The Supreme Court has repeatedly warned against extending a Bivens remedy into new
contexts. See M&R at 23-24 (discussing Correctional Services Corp. v. Malesko, 534 U.S. 61,
67-70 (2001)); see also id. at 19 (“‘Because implied causes of actions are disfavored, the Court
has been reluctant to extend Bivens liability to any new context or new category of defendants.’”)
(quoting Iqbal, 129 S. Ct. at 1948). Although the Magistrate Judge appropriately recommended
against extending Bivens with respect to Lyttle’s Fifth Amendment claims, see M&R at 24-25, he
glossed over the unique circumstances of Lyttle’s Fourth Amendment claim (Count 3) in just one
sentence: “Plaintiff’s Fourth Amendment claim is clearly permissible, as Bivens explicitly ‘held

-18-

that a victim of a Fourth Amendment violation by federal officers may bring suit for money
damages against the officers in federal court,’” id. at 22 (quoting Malesko, 534 U.S. at 66). But
this straight-up comparison between Count 3 and the Fourth Amendment claim permitted in
Bivens oversimplifies the special factors analysis in the unique context that applies to this case.12
And it is at odds with the Magistrate Judge’s correct statement that courts should “‘limit Bivens
and its two follow-on cases . . . to the precise circumstances that they involved.’” M&R at 24
(quoting Malesko, 534 U.S. at 75) (Scalia, J., concurring) (emphasis added).
Unlike Bivens, a case which involved an in-home arrest of the plaintiff, 403 U.S. at 389,
Lyttle’s Fourth Amendment claim arises from the fact of his detention in removal proceedings.
Therefore, in this case, “deportation proceedings constitute the relevant ‘environment of fact and
law’ in which to ‘decide whether to recognize a Bivens remedy.’” Mirmehdi, 2011 WL 5222884,
at *3 (quoting Arar v. Ashcroft, 585 F.3d 559, 572) (2d Cir. 2009), cert. denied 130 S. Ct. 3409
(2010)). To be clear, “deportation proceedings” define the special “context” of Lyttle’s Bivens
claims, which is “unique from other situations where an unlawful detention may arise.” Id. But
the M&R neither appreciates this context nor cites any Supreme Court or Fourth Circuit cases
extending Bivens under these particular circumstances, and to our knowledge, such cases do not
exist. Rather, the Supreme Court has repeatedly recognized that the political branches have
plenary power over immigration, and courts generally afford substantial deference to Congress
and the Executive Branch in this field. D-E 52 at 10-11 (collecting cases).

12

For example, the Supreme Court has stated that “a Bivens action alleging a violation of
the Due Process Clause of the Fifth Amendment may be appropriate in some contexts, but not in
others.” FDIC v. Meyer, 510 U.S. 471, 484 n.9 (1994); see also Wilson v. Libby, 498 F. Supp. 2d
74, 86 (D.D.C. 2007), aff’d, 535 F.3d 697 (D.C. Cir. 2008) (noting that Bivens actions are
“context-specific” and “not recognized Amendment by Amendment in a wholesale fashion”).
-19-

In recommending the dismissal of Counts 1-2, the Magistrate Judge even acknowledged
that certain constitutional constraints, including due process and equal protection standards, “‘do
not limit the federal government’s power to regulate either immigration or naturalization.’” M&R
at 25-26 (quoting Appiah v. INS, 202 F.3d 704, 710 (4th Cir. 2010)). But the M&R stops just
short of highlighting the most basic point of all: “‘the power to expel or exclude aliens [i]s a
fundamental sovereign attribute exercised by the Government’s political departments largely
immune from judicial control.’” Appiah, 202 F.3d at 710 (quoting Shaughnessy v. Mezei, 345
U.S. 206, 210 (1953)). While the Magistrate Judge was correct to respond “cautiously to
[Plaintiff’s] suggestion[] that Bivens . . . be extended into [a] new context[,]” M&R at 24
(quoting Malesko, 534 U.S. at 68-69), he failed to apply that appropriate caution to all of Lyttle’s
claims challenging the fact of his detention in the legally relevant immigration context at issue.
Apart from not appreciating the context of Plaintiff’s Fourth Amendment claim, the
Magistrate Judge overlooked the “alternative, existing process” that was available to Lyttle to
protect the very same constitutional interests he seeks to vindicate today. Wilkie v. Robbins, 551
U.S. 537, 550 (2007). That comprehensive and exclusive remedial process is found in the
Immigration and Nationality Act (the “INA”). See D-E 52 at § I.A. (discussing statutory
provisions). As we brought to the Court’s attention, see D-E 73, the Ninth Circuit recently
confirmed this limitation on remedies for wrongful detention in deportation proceedings by
adopting the Second Circuit’s view that “‘Congress has established a substantial, comprehensive,
and intricate remedial scheme in the context of immigration.’” Mirmehdi, 2011 WL 5222884, at
*4 (quoting Arar, 585 F.3d at 572). In Mirmehdi, the plaintiffs alleged that they were
unconstitutionally detained in removal proceedings on the basis of fabricated and manipulated
evidence (just as Lyttle claims here), but the Ninth Circuit “decline[d] to extend Bivens to allow
-20-

the [plaintiffs] to sue federal agents for wrongful detention pending deportation given the
extensive remedial procedures available” to them previously. Id. at *4. Because the Mirmehdis
had the opportunity under the INA (and via habeas proceedings) to protect their constitutional
interests, they could not pursue damages under Bivens. Id. The same is true in this case.
The M&R, however, ignores Mirmehdi entirely. Instead, the Magistrate Judge merely
states that Lyttle “‘is not attempting to use the present lawsuit to circumvent the administrative
process set up to review orders of removal.’” M&R at 22 (quoting Turnbull v. United States, No.
1:06-cv-858, 2007 WL 2153279, at *6 (N.D. Ohio July 23, 2007)).13 But as in Mirmehdi, that is
precisely what Lyttle is doing by sidestepping the channels of review established by Congress.
See 8 U.S.C. §§ 1252 (a)(2)(D), 1252(b)(9), 1252(g). In fact, had Lyttle capitalized on the
administrative procedures available under the INA, and presented his constitutional challenges to
the fact of his detention to the immigration judge, the Board of Immigration Appeals, and the
court of appeals, he could have received the most meaningful remedy of all – his release from
custody and no removal to Mexico. D-E 63 at 3. Even though the INA is limited to equitable
relief, “Congress’s failure to include monetary relief can hardly be said to be inadvertent, given
that despite multiple changes to the structure of appellate review in the [INA], Congress never
created such a remedy.” Mirmehdi, 2011 WL 5222884, at *4; see also D-E 63 at 3 n.4.14
13

Turnbull involved the alleged “refusal to abide by [a] stay order issued in [a] habeas
proceeding,” and thus did “not arise from” any of the specific discretionary actions described in 8
U.S.C. § 1252(g). 2007 WL 2153279, at *5. Unlike in Turnbull, Lyttle’s Fourth Amendment
claim arises from the alleged decision to commence proceedings without probable cause and, as
discussed below, is expressly excluded from district court review by § 1252(g).
14

See also Holly v. Scott, 434 F.3d 287, 290 (4th Cir. 2006) (“[N]either the absence nor
the incompleteness of such a [comprehensive] scheme represents an invitation for a court to step
in to correct what it may perceive as an injustice toward an individual litigant.”). Moreover, an
equitable remedy that brings about the cessation of an ongoing infringement is generally
considered more weighty and important than one providing a backward-looking award of civil
-21-

Ultimately, Lyttle’s Fourth Amendment claim that the ICE defendants commenced
removal proceedings on the basis of allegedly falsified evidence – resulting in his mandatory
detention pursuant to 8 U.S.C. § 1226(c) – is exactly the sort of claim that Congress excluded
from district court review.15 See 8 U.S.C. § 1252(g) (except as otherwise provided by the INA,
“no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising
from the decision or action by the Attorney General to commence [removal] proceedings….”)
(emphasis added). In fact, the Supreme Court has expressly held that § 1252(g) divests district
courts of jurisdiction to consider claims arising from the commencement of removal proceedings.
Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 487 (1999) (vacating
lower court decision because court lacked jurisdiction over constitutional claim that the
government selectively targeted plaintiffs for deportation). The Court specifically recognized
that “subjecting the prosecutor’s motives and decisionmaking to outside inquiry . . . are greatly
magnified in the deportation context.” Id. at 490; accord Mirmehdi, 2011 WL 5222884, at *4. In
short, “Congress could hardly have been more clear and unequivocal” that courts may not review
claims challenging the decision to commence removal proceedings. Mapoy v. Carroll, 185 F.3d
224, 230 (4th Cir. 1999); accord Malik v. Gonzalez, 213 F. App’x 173, 174-75 (4th Cir. 2007).
In light of this framework, courts have declined to extend Bivens in cases virtually
identical to Lyttle’s. See D-E 63 at 2-3. The Ninth Circuit, for example, held that § 1252(g)
barred a false arrest claim brought under Bivens because the challenged detention arose from the
“decision to commence expedited removal proceedings.” Sissoko v. Rocha, 509 F.3d 947, 950

damages. United States v. Stanley, 483 U.S. 669, 683 (1987).
15

To be clear, the ICE defendants’ decision to initiate removal proceedings against Lyttle
(regardless of probable cause) triggered the automatic detention that is now the subject of his
Fourth Amendment Bivens claim. See D-E 52 at 14; supra Section 1-B.
-22-

(9th Cir. 2007). In Khorrami v. Rolince, 493 F. Supp. 2d 1061, 1068 (N.D. Ill. 2007), the court
similarly dismissed a Fourth Amendment Bivens claim because the plaintiff’s mandatory arrest
and detention in removal proceedings were “a direct outgrowth of the decision to commence
proceedings.”16 As in those cases, Lyttle’s “Fourth Amendment claim (the arrest/detention
portion) ‘arises from’ the decision to commence removal proceedings,” and it is therefore
precluded by § 1252(g). Id.; see also D-E 63 at 2-3. Only the court of appeals, on a petition for
review or habeas, could have reviewed the constitutional issues surrounding the ICE defendants’
decision to place Lyttle in removal proceedings.17 The fact that Lyttle chose to forgo that process
does not entitle him to a second chance here. Put simply, Plaintiff’s Bivens claim is a “thinly
veiled attempt to evade the dictates of § 1252.” Mapoy, 185 F.3d at 230.
Even though the Magistrate Judge focuses on the fact that Lyttle is an “American-born
U.S. citizen,” M&R at 22, the INA’s remedial procedures were nevertheless available to him to
challenge his detention. While the INA was enacted in part pursuant to Congress’s authority to
establish rules with respect to alienage, see Mirmehdi, 2011 WL 5222884, at *3, the procedures
at issue are without question available to anyone subject to removal proceedings, regardless of

16

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
in light of 1252(g)); Humphries v. Various Federal USINS Employees, 164 F.3d 936, 945 (5th
Cir.1999) (dismissing First Amendment Bivens claim because constitutional challenges in
removal proceedings are streamlined “either in a petition for review or for habeas corpus”);
Guardado v. United States, 744 F. Supp. 2d. 482, 488-89 (E.D. Va. 2010) (dismissing Bivens
claims under § 1252(g)); D-E 63 at 2 n.2.
17

While the M&R notes that Lyttle is not “challenging a decision of removal” in this
case, M&R at 22, that only underscores the deficiency of his claim: the constitutional issues
Plaintiff raises (involving the decision to commence proceedings against him) are reviewable
only through the process established by Congress – which requires petitioning a final order of
removal to the court of appeals. See 8 U.S.C § 1252(b)(9); see also §§ 1252(a)(2)(D) & (a)(5).
-23-

their citizenship, see, e.g., 8 U.S.C. § 1252(b)(5); 8 U.S.C. § 1503; see also Villalba v. U.S.
Attorney General, 301 F. App’x 905, 907 (11th Cir. 2008) (discussing the process for reviewing
citizenship claims raised in removal). Otherwise, the purpose of such proceedings in many cases
would be pointless: “deportation proceedings ‘would be vain if those accused could not be held
in custody pending the inquiry into their true character.’” Demore v. Kim, 538 U.S. 510, 523
(2003) (quoting Wong Wing v. United States, 163 U.S. 228, 235 (1896)). Because the INA
contemplates that citizenship may be litigated in removal proceedings, the review process and
remedies permitted by Congress apply uniformly to anyone detained for deportation – including a
suspected criminal alien (as Lyttle held himself out to be). In light of the INA’s process for
challenging the fact of detention in removal proceedings, Count 3 is not cognizable in this case.18
B.

The ICE Defendants Are, Alternatively, Entitled to Qualified Immunity

After improperly extending Bivens beyond its limited context, the Magistrate Judge next
erred in finding that Lyttle has adequately pled the violation of a clearly established Fourth
Amendment right. First, the Magistrate Judge applied the wrong legal standard by again
focusing on the irrelevant fact that Lyttle is a U.S. citizen: “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.” M&R at 27; see also id. at 29. But
the Fourth Amendment question is not whether Lyttle was actually a citizen (i.e., innocent of the
charges), but whether he was detained pursuant to “legal process that was not supported by
probable cause.” Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005); see also D-E 52 at 15.
18

We do not contend that a Bivens remedy is never available in the immigration context.
Claims of “excessive force” or “unconstitutional conditions of confinement,” for example, are
traditionally actionable under Bivens because neither the INA nor habeas provides any process to
consider those types of claims. But Lyttle’s specific Fourth Amendment claim in this case hinges
on the fact of his detention, for which the INA and habeas do provide a remedial process.
-24-

And as the non-conclusory allegations – including the facts incorporated by reference – show, the
ICE defendants had an objectively reasonable basis to charge Lyttle. D-E 52 at 22-23.
The Magistrate Judge, however, improperly accepts the conclusory allegations riddled
throughout the complaint while at the same time ignoring the numerous, specific facts
incorporated by reference. For example, he accepts the allegation that Lyttle was “unlawfully
and unconstitutionally” detained, noting that to otherwise reject it as a “conclusory” statement
would be “perplexing.” M&R at 27 (citing DE- 52). What we respectfully submit, however, is
that this allegation is precisely the type of “legal conclusion” or “[t]hreadbare recital[] of the
elements” that the Supreme Court has discredited. Iqbal, 129 S. Ct. at 1949; see also id. at 1951
(rejecting the “bald” allegation that FBI Director Mueller “knew of, condoned, and willfully and
maliciously agreed” to torture respondent). The M&R also credits the allegation that Lyttle was
detained “based on a statement that Plaintiff ‘was coerced and manipulated . . . into signing.’”
M&R at 28. But such labels and conclusions are simply not afforded the assumption of truth.
Monroe v. City of Charlottesville, VA, 579 F.3d 380, 387 (4th Cir. 2009), cert. denied, 130 S. Ct.
1740 (2010) (allegations that plaintiff was “coerced” were merely “legal conclusions” and
therefore “insufficient” under the pleading standard) (emphasis added); D-E 52 at 20.
After stripping away all of the legal conclusions, the remaining allegations and
incorporated facts instead show that Lyttle freely and competently attested (on multiple
occasions) to his foreign birth, Mexican citizenship, and illegal entry. But the Magistrate Judge
did not address any of these facts. First, there is not a single word analyzing the specific
allegations that North Carolina officials referred Lyttle to ICE after indicating on his criminal
intake form that he was an “alien” from “Mexico.” FAC ¶¶ 30-37. This omission is critical,

-25-

because the ICE defendants reasonably relied on such booking information, which by itself may
have established probable cause. See D-E 52 at 16; see also D-E 63 at 5 (collecting cases).19
The M&R then ignores the non-conclusory facts demonstrating that Lyttle provided a
sworn statement corroborating his alienage – which the ICE defendants had every reason to
believe he gave freely and competently. Like the booking statement, this additional sworn
statement, by itself, may have established probable cause to place Lyttle in removal proceedings.
See D-E 52 at 17 (collecting authorities). Because the Magistrate Judge, however, accepts the
bare legal conclusion that Lyttle was “coerced and manipulated” into signing the document, he
fails to see that there are absolutely no factual allegations that any ICE defendant physically
harmed, pressured, or threatened Lyttle to affirm the statement. D-E 52 at 18 (comparing to
Colorado v. Connelly, 479 U.S. 157, 164 n.1 (1986) (describing coercive tactics)). At most,
Lyttle suggests that the ICE Defendants should have discredited his confession simply because he
allegedly suffers from bipolar disorder. See, e.g., FAC ¶ 40. But such allegations are irrelevant,
unless only a “plainly incompetent” officer could have believed that Lyttle could not understand
basic biographical questions. Malley v. Briggs, 475 U.S. 335, 341 (1986). And Lyttle has not
pled any facts to show that this was the case. Indeed, the non-conclusory allegations and
incorporated facts merely show the ICE defendants’ knowledge of his bipolar diagnosis – nothing
more. See D-E 52 at 19. However, Lyttle’s bipolar diagnosis, by itself, would say nothing of his
inability to comprehend the simple questions he was asked. See id. (collecting authorities).

19

Even if the North Carolina employees actually falsified Lyttle’s booking information, it
is not alleged that the ICE defendants knew of this purported fabrication at the time he was
referred to them. The ICE defendants were therefore entitled to rely on that booking information
to establish Lyttle’s alienage. See, e.g., Puc-Ruiz v. Holder, 629 F.3d 771, 781 (8th Cir. 2010).
-26-

To the contrary, the incorporated facts demonstrate that Lyttle was competent, or at the
very least, reasonably presumed to be competent, by the ICE defendants. Given Lyttle’s ability
to stand trial and be sentenced, it was reasonable for the ICE Defendants to assume that Plaintiff
could understand basic questions regarding his name, place of birth, and country of citizenship.
See D-E 52 at 20-22 (collecting authorities). In fact, the judge who sentenced Lyttle on assault
charges, just three weeks before he signed the sworn statement, chose not to recommend
“psychiatric and/or psychological counseling.” Id. at 21; Exh. A. Accordingly, the incorporated
facts show that it was objectively reasonable not to question Lyttle’s competence.20 But the
M&R is silent on the matter, glossing over all of the incorporated facts by simply relying on
plaintiff’s factually-unsupported conclusion that he was “coerced and manipulated.”
The same is true of Lyttle’s third admission of alienage – the Notice of Intent he signed
consenting to removal without a hearing. Looking solely to the conclusory allegation that he was
“coerced and manipulated . . . into signing” the Notice, M&R at 28; FAC ¶ 54, the M&R again
fails to identify any specific factual allegations in the complaint showing that Lyttle was in any
way harmed, threatened, or pressured at the time he agreed to be deported. In any event, those
factual allegations do not exist. See D-E 52 at 20-22, 28. Thus, by ignoring crucial facts in favor
of conclusory allegations, the Magistrate Judge fails to consider the three bases that reasonably
supported the decision to initiate removal proceedings against Lyttle.
Moreover, even if the ICE defendants came across electronic records containing
indications of Plaintiff’s U.S. citizenship, see FAC ¶¶ 57, 60, those documents alone – which
conflicted with Lyttle’s repeated admissions of alienage – would not put an end to the Fourth
20

Even if the ICE defendants (who are not alleged to be mental health providers)
misjudged Lyttle’s mental capacity, mere negligence would not rise to a constitutional tort. See
D-E 52 at 25 (collecting cases); D-E 63 at 7 n. 8. The M&R is silent on this issue as well.
-27-

Amendment debate, as the Magistrate Judge suggests, see M&R at 27-28. Rather, probable
cause turns on the “totality of the circumstances,” Maryland v. Pringle, 540 U.S. 366, 371
(2003), and courts must therefore parse all of the “facts and circumstances within the officer’s
knowledge,” Burrell, 395 F.3d at 514; D-E 52 at 15 n.8. The critical question, then, is whether it
was objectively reasonable to commence removal proceedings against Plaintiff based on:
(1)
(2)
(3)
(4)

Lyttle’s booking sheet indicating that he was a Mexican alien; and,
Lyttle’s signed, sworn statement admitting to foreign birth, foreign citizenship,
and illegal entry; and,
Lyttle’s signed consent to expedited removal; even though,
electronic records contained references to Lyttle’s U.S. citizenship.

As demonstrated, though, the Magistrate Judge did not analyze the first component at all,
and he disregarded the second and third sets of facts by crediting conclusory allegations to the
exclusion of all the incorporated facts, including those relating to his competency. While records
contradicting Lyttle’s own admissions of alienage are a single factor in the probable cause
calculus, they do not provide an answer alone. Because recurring claims of foreign citizenship
(let alone one confession) are highly presumptive of alienage, see D-E 52 at 16-17 (collecting
cases), the ICE defendants had more than a reasonable basis to charge Lyttle, notwithstanding
the conflicting records. Thus, the initiation of proceedings against Lyttle was “more likely
explained” by the ICE defendants relying on Plaintiff’s admissions of alienage than by their
blatant disregard for the truth. Iqbal, 129 S. Ct. 1950; D-E 52 at 22. In sum, Lyttle has failed to
state the plausible violation of a clearly established Fourth Amendment right.
Even assuming that the totality of the allegations and incorporated facts do not amount in
actuality to probable cause, the ICE defendants are nevertheless entitled to qualified immunity
because they had, at least, an arguable basis for believing probable cause existed. See D-E 63 at

-28-

15. Despite announcing the correct qualified immunity standard,21 the M&R gets off track again
by applying the wrong Fourth Amendment standard. See M&R at 29 (holding that there was “no
legal basis” to detain Lyttle “[b]ecause Plaintiff is a[] United States Citizen”). The legality of
Lyttle’s detention turns not on the fact that he was a U.S. citizen, but on whether the ICE
defendants had arguable probable cause to believe that he was not. See, e.g., Burrell, 395 F.3d at
514. Although the Magistrate Judge ultimately acknowledges this standard, M&R at 29 (citing
Brooks v. city of Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996), he then focuses on just one set
of allegations in denying them immunity: records containing “evidence of his citizenship,” id.
But qualified immunity is a precise inquiry. al-Kidd, 131 S. Ct at 2084. (“The general
proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment
is of little help in determining whether the violative nature of particular conduct is clearly
established.”). And the particular question here is this: whether it is arguably reasonable for a
federal official to detain in removal proceedings a presumably competent individual who, after
being referred to ICE as an “alien” based on booking information, claims that he is a foreign
national, signs a sworn statement attesting to these facts, and signs a separate form consenting to
removal – even though records may conflict with these repeated admissions. By narrowly
focusing on the existence of the electronic records alone, however, the Magistrate Judge ignores
the other key facts incorporated by reference that establish arguable probable cause. While at a
“‘general level’” there is a “‘right not to be deprived of liberty or property based on the deliberate
use of evidence fabricated . . . or known to be false,’” M&R at 29 (quoting White v. Wright, 150

21

An action violates clearly established law only 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.’” M&R at 28 (quoting Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2083 (2011) (emphasis added)).
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F. App’x 193, 198 (4th Cir. 2005)), the Magistrate Judge cites no cases that define the right at
anything near the specific level presented here: the right not to be placed in removal proceedings
when records that may indicate citizenship conflict with a suspected alien’s own repeated
admissions and sworn affirmations of alienage. To our knowledge, no such cases exist.
The M&R notes that “[i]t is undisputed that the ICE Defendants were mistaken in their
belief that Plaintiff was an alien.” M&R at 27 (emphasis added). But “[e]ven law enforcement
officials who ‘reasonably but mistakenly conclude that probable cause is present’ are entitled to
immunity.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting Anderson v. Creighton, 483
U.S. 635, 641 (1987)); D-E 52 at 16. Although multiple admissions may not have proved
alienage in light of conflicting records, the ICE defendants were not required to prove Lyttle’s
removability when merely charging him.22 Because the Supreme Court has recognized that “an
admission of illegal alienage or other strong evidence” may justify an arrest, INS v. LopezMondoza, 468 U.S.1032, 1045 (1984); see also D-E 52 at 17 (collecting authorities), the ICE
defendants were not “‘plainly incompetent’” or “‘knowingly violat[ing] the law’” when they
charged him, al-Kidd, 131 S. Ct. at 2085 (quoting Malley, 475 U.S. at 341). Thus, the ICE
defendants are entitled to qualified immunity, and Count 3 should be dismissed.
CONCLUSION
For the reasons stated above, the federal defendants respectfully request that the Court
reject those portions of the M&R that recommend denying their motions to dismiss, and that the
Court grant those motions in full.

22

See, e.g., Gerstein v. Pugh, 420 U.S. 103, 121 (1975) (explaining that probable cause
“does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a
preponderance standard demands, and credibility determinations are seldom crucial in deciding
whether the evidence supports a reasonable belief in guilt”); D-E 52 at 23 n.13.
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Respectfully submitted this 1st day of December 2011,
TONY WEST
Assistant Attorney General, Civil Division

THOMAS G. WALKER
United States Attorney

C. SALVATORE D’ALESSIO, JR.
Acting Director, Torts Branch

W. ELLIS BOYLE
Assistant United States Attorney
Civil Division
U.S. Attorney’s Office
Eastern District of North Carolina
310 New Bern Avenue
Suite 800 Federal Building
Raleigh, NC 27601-1461
Tel:
(9l9) 856-4530
Fax:
[phone]
E-mail:
[e-mail]
N.C. Bar No. 33826

/s/ James R. Whitman
JAMES R. WHITMAN
Trial Attorney
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel:
[phone]
Fax:
[phone]
E-mail:
[e-mail]
D.C. Bar No. 987694
/s/ David G. Cutler
DAVID G. CUTLER
Trial Attorney
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel:
[phone]
Fax:
[phone]
E-mail:
[e-mail]
IL Bar No. 6303130
Attorneys for all federal defendants

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CERTIFICATE OF SERVICE
I certify under penalty of perjury that on December 1, 2011, I electronically filed the
foregoing “Federal Defendants’ Objections to the Magistrate Judge’s Memorandum and
Recommendation” using the Court’s CM/ECF system, which will send notification of such filing
to the following counsel of record:
COUNSEL FOR PLAINTIFF:
Jeremy L. McKinney
[e-mail]

Ann Marie Dooley
[e-mail]

Michael E. Johnson
[e-mail]

Brian P. Watt
[e-mail]

Alexandria J. Reyes
[e-mail]

Katherine L. Parker
[e-mail]

Judy Rabinovitz
[e-mail]
COUNSEL FOR DEFENDANT NORTH CAROLINA DEPARTMENT OF CORRECTION:
Joseph Finarelli
[e-mail]

/s/ James R. Whitman
JAMES R. WHITMAN
Trial Attorney
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, D.C. 20044-7146
Tel:
[phone]
Fax:
[phone]
E-mail:
[e-mail]
D.C. Bar No. 987694

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