Saucedo-Carrillo et al v. United States of America
Filing
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Memorandum Opinion and Order granting 28 Defendant's Motion for summary judgment as to all claims. This case is dismissed. Judge Jack Zouhary on 10/21/2013. (D,L)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Rocío Anani Saucedo-Carrillo, et al.,
Plaintiffs,
Case No. 3:12 CV 2571
MEMORANDUM OPINION
AND ORDER
-vsJUDGE JACK ZOUHARY
United States of America,
Defendant.
INTRODUCTION
Plaintiffs, a mother and daughter from Mexico now living in Ohio, bring claims under the
Federal Tort Claims Act (“FTCA”) against the United States, in connection with a September 2009
questioning and subsequent administrative detention by the U.S. Border Patrol for remaining in the
United States illegally. This case is related to a civil rights suit brought as a class action in this Court
and dismissed in November 2012, in which Plaintiffs were named plaintiffs. See Muniz-Muniz v.
U.S. Border Patrol, No. 3:09 CV 2865, 2012 WL 5197250 (N.D. Ohio 2012).
Pending before this Court is Defendant United States’ Motion for Summary Judgment (Doc.
28), which Plaintiffs have opposed (Doc. 29). For the reasons stated below, the Motion is granted.
BACKGROUND
Plaintiffs Rocío Saucedo-Carrillo and Rosa Carrillo-Vasquez are daughter and mother who
legally entered the United States through Laredo, Texas under a six-month visitors visa on or about
January 13, 2001 (Doc. 28-3, Saucedo-Carrillo Dep. 8; Doc. 28-2, Carrillo-Vasquez Dep. 8–9; Doc.
28-1, Shaver Dep. 96; Doc. 28-4, Shaver Decl. ¶ 4). Plaintiffs overstayed their six-month visas and
are currently in the United States without proper documentation (Shaver Dep. 96).
On September 13, 2009, U.S. Border Patrol Agent Bradley Shaver encountered Plaintiffs at
a Norwalk, Ohio Marathon gas station. Plaintiffs stopped for gas after a trip to the nearby K-Mart
(Saucedo-Carrillo Dep. 18; Carrillo-Vasquez Dep. 15). Rocío had been driving and Rosa was in the
passenger seat (Saucedo-Carrillo Dep. 19). They were traveling in a blue truck with two silver
scorpion decals in the back window with the words “Durango Durango” (Saucedo-Carrillo Dep.
19–20; Shaver Dep. 46; Carrillo-Vasquez Dep. 16). The rear windows were tinted (Saucedo-Carrillo
Dep. 21). The truck also had flares such that the wheel wells flared out from the truck and a vanity
license plate with the name “Anani” (Rocío’s middle name) (Shaver Dep. 46; Saucedo-Carrillo Dep.
21–22).
Agent Shaver was traveling on State Route 250 when he observed the truck parked at the gas
station (Shaver Dep. 46). Agent Shaver testified that, in his experience, large flares were “often used
to hide narcotics on the undercarriage of the vehicle” (id.) and that “Durango” is a state in Mexico
“known with drug-trafficking organizations . . . down in that area for use in smuggling across the
country, narcotics into the country” (id.). Agent Shaver further testified that “scorpions are one of
the logos used by drug-trafficking organizations” (id. 47). Given the appearance of the truck and its
close proximity to the Ohio turnpike, Agent Shaver testified he suspected the truck may be involved
in illegal narcotic activity and decided to investigate further (id.).
Agent Shaver then pulled into the gas station parking lot “to get a closer look at the vehicle”
(id.). At that time he observed Rosa in the front passenger seat (id.). However, Rocío testified that
Agent Shaver pulled into the gas station only after he saw her exiting the station food mart back to
her car which was parked at a gas pump (Saucedo-Carrillo Dep. 32) (“I saw the gentleman from the
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truck from Border Patrol. We looked at each other’s eyes, he looked at me, I looked at him, and he
put his signals [on].”).
As Rocío walked by Agent Shaver’s vehicle, he began speaking to her in English (Shaver Dep.
49). Agent Shaver testified that, at this point, his vehicle was in between the food mart and the front
of Plaintiffs’ truck, but not blocking Plaintiffs’ truck; they could have pulled forward or reversed (id.).
In contrast, Rocío testified that Agent Shaver parked his vehicle immediately in front of her truck such
that she could not have pulled forward (Saucedo-Carrillo Dep. 37–39), but could have put her truck
in reverse and backed out (id. 38–39).
Rocío began filling the truck with gas, and Agent Shaver began asking Rocío questions about
where she was from (Shaver Dep. 51; Saucedo-Carrillo Dep. 40). The parties dispute whether Agent
Shaver was in his vehicle or on foot when he began asking Rocío questions (Saucedo-Carrillo Dep.
52; Carrillo-Vasquez Dep. 24–25; Shaver Dep. 50–52). Rocío testified Agent Shaver was “less than
one meter” from her as she filled her truck with gas, and he began asking her questions (SaucedoCarrillo Dep. 53). Agent Shaver testified he remained in his vehicle during this initial questioning
and did not exit his vehicle until Rocío leaned into the truck to speak with Rosa (Shaver Dep. 52).
Agent Shaver asked Rocío for identification and for her “papers” (Saucedo-Carrillo Dep.
43–44). She provided Agent Shaver with a Michigan driver’s license (id. 40) which Agent Shaver
kept “throughout the whole time” (id. 44). Rosa provided Agent Shaver with a health insurance card
(id.; Carrillo-Vasquez Dep. 32). Rocío continued filling the truck with gas (Saucedo-Carrillo Dep.
51). Agent Shaver never told Plaintiffs they could not leave (id. 54).
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At some point,1 Agent Shaver asked Rocío who owned the truck. Rocío responded that the
truck was hers, but it was registered in the name of Rocío’s brother-in-law (Saucedo-Carrillo Dep.
22–23; Shaver Dep. 51).
As Rocío continued filling the truck with gas, Agent Shaver spoke with Rosa (who was still
seated in the truck’s passenger seat) in Spanish and asked if she was from the area (Saucedo-Carrillo
Dep. 51; Shaver Dep. 51–52). Rosa responded that she was originally from Mexico (Shaver Dep. 52).
Plaintiffs told Agent Shaver they entered the United States on a visa permitting them to stay in the
United States for ten years (Saucedo-Carrillo Dep. 46). There is no such visa (Shaver Decl.¶ 5).
Agent Shaver obtained Plaintiffs’ names and birth dates to radio the Detroit sector for an immigration
inquiry (Shaver Dep. 61).
Rocío testified she was afraid of Agent Shaver because he was “very aggressive” and because
of the “tone” he used in his questioning (Saucedo-Carrillo Dep. 54–55). Rosa testified she felt
“scared because of the way he put his car – truck in front of us” and because he was “authoritative”
(Carrillo-Vasquez Dep. 38, 40).
Plaintiffs admitted to Agent Shaver that they had overstayed their visas (id. at 96; SaucedoCarrillo Dep. 46). Agent Shaver then asked Rocío to move her car away from the gas pump and into
a parking spot, which she did (Saucedo-Carrillo Dep. 48). Agent Shaver allowed Rocío to give her
truck keys to an acquaintance who happened to be at the gas station (id. 49)
He then took Plaintiffs into custody, placing them in the back of his vehicle and transporting
them to the Border Patrol station in nearby Sandusky for administrative processing (Shaver Decl.
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Agent Shaver testified he asked who owned the truck near the beginning of the encounter, before he asked
Plaintiffs for identification (Shaver Dep. 51). Rocío testified the discussion about who owned the truck
occurred near the conclusion of the encounter at the gas pump, after Plaintiffs provided Agent Shaver with
identification and after telling Agent Shaver they entered the United States on a visa (Saucedo-Carrillo Dep.
45–46).
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¶¶ 7– 8). When Plaintiffs were in the back of Agent Shaver’s vehicle, Rosa informed Agent Shaver
that Rocío was pregnant (Saucedo-Carrillo Dep. 57). Plaintiffs were processed and released that day
(Shaver Dep. 103–04). At no time were Plaintiffs handcuffed (id. 105).
STANDARD OF REVIEW
Pursuant to Federal Civil Rule 56(a), summary judgment is appropriate where there is “no
genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of
law.” This burden “may be discharged by ‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). When considering a motion for summary judgment, this Court must draw all
inferences from the record in the light most favorable to the non-moving party. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). This Court is not permitted to weigh the
evidence or determine the truth of any matter in dispute; rather, this Court determines only whether
the case contains sufficient evidence from which a jury could reasonably find for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
ANALYSIS
Under the FTCA, the United States is liable for certain torts committed by its employees “in
the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C.
§ 2674. Ohio law governs Defendant’s liability in this case. See 28 U.S.C. § 1346(b).
In its Motion, Defendant argues that all of Plaintiffs’ tort claims fail on the merits. In the
alternative, Defendant asserts it is entitled to immunity under Ohio Revised Code § 2744.03(A)(6).
Because this Court grants in full Defendant’s Motion on the merits, it declines to address the
immunity argument.
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Assault and Negligent Infliction of Emotional Distress Claims
Plaintiffs concede summary judgment is appropriate with respect to their assault and negligent
infliction of emotional distress claims (Doc. 29 at 1).
False Imprisonment/False Arrest Claim
The tort of false imprisonment concerns “purely a matter between private persons for a private
end,” as opposed to a false arrest, which is an unlawful detention “by reason of an asserted legal
authority to enforce the process of law.” Rogers v. Barbera, 170 Ohio St. 241, 243 (1960). However,
the elements of the two torts are nearly identical, Evans v. Smith, 97 Ohio App. 3d 59, 70 (1994),
requiring: (1) an intentional detention (2) taking place in a limited area (3) for any appreciable time,
“however short” (4) without a lawful privilege and (5) without the detainee’s consent. Kaylor v.
Rankin, 356 F. Supp. 2d 839, 854–55 (N.D. Ohio 2005) (citing Feliciano v. Kreiger, 50 Ohio St. 2d
69, 71 (1977) and Thacker v. City of Columbus, 328 F.3d 244, 261 (6th Cir. 2003)). Malice, motive,
or lack of probable cause are not elements. Thacker, 328 F.3d at 261 (citing Tucker v. Kroger Co.,
133 Ohio App. 3d 140, 146 (1999)).
Plaintiffs claim they were unlawfully detained when Agent Shaver initially approached them
near the gas pumps and began asking Plaintiffs for identification (Doc. 29 at 11). Construing the facts
in favor of Plaintiffs, as this Court must, such that Agent Shaver parked directly in front of Plaintiffs’
truck and began questioning in an aggressive manner, this Court finds Plaintiffs were not detained at
the outset of the encounter. It is undisputed that Agent Shaver never told Plaintiffs they were not
allowed to leave; Plaintiffs were initially free to continue their business, which Rocío did as she
continued to fill the gas tank. Even if Agent Shaver’s vehicle was parked directly in front of the truck,
Plaintiffs admit they had sufficient room to back up and leave. In Williams v. Franklin County Bd.
of Comm’rs, the court held that plaintiff failed to establish the confinement element of her false
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imprisonment claim because “there was no evidence . . . that she would have been prevented [from
leaving] had she tried,” noting “there was at least one other means of egress.” 145 Ohio App. 3d 530,
550 (2001). That Plaintiffs believed they were confined by the placement of Agent Shaver’s vehicle
is not determinative. See Sharp v. Cleveland Clinic, 176 Ohio App. 3d 226, 233 (2008) (“False
imprisonment may not be predicated on a person’s unfounded belief that she was restrained.”). In
fact, it is common for cars to park immediately in front of other cars at gas station pumps, requiring
a car to reverse to depart. Surely such instances do not constitute confinement.
Nor does the fact Agent Shaver asked questions require a conclusion that Plaintiffs were
restrained. “[S]ubmission to the mere verbal direction of another, unaccompanied by force or threats
of any character, cannot constitute false imprisonment, . . . and false imprisonment may not be
predicated on a person’s unfounded belief that he was restrained.” Bauman v. Bob Evans Farms, Inc.,
2007-Ohio-145 at ¶ 18 n.4 (Ohio Ct. App. 2007) (quoting Kinney v. Ohio Dep’t of Admin. Servs.,
1988 WL 92433 (Ohio Ct. App. 1988)); see also Ferraro v. Phar-Mor, Inc., 2000 WL 459686 (Ohio
Ct. App. 2000) (holding that “mere submission to verbal direction, unaccompanied by force or threat,
cannot constitute confinement or detention”). The record is devoid of evidence that Agent Shaver’s
questions were “accompanied by force or threat.” Testimony that Agent Shaver’s tone was “harsh”
does not equate to “force or threat.” Furthermore, Agent Shaver was permitted to ask questions
without cause. See United States v. Mendenhall, 446 U.S. 544, 553 (1980) (“The purpose of the
Fourth Amendment is not to eliminate all contact between the police and the citizenry.”). Agent
Shaver also was free to ask for Plaintiffs’ identification, provided he did not condition their departure
on production of identification or “convey a message that compliance with [his] requests is required.”
United States v. Hinojosa, 2013 WL 4483523, at *3 (6th Cir. 2013) (quoting Florida v. Bostick, 501
U.S. 429, 437 (1991)).
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Here, the administrative detention did not occur until after Plaintiffs told Agent Shaver they
entered the United States on a ten-year visa and admitted that they were in the country illegally.
Agent Shaver then instructed Plaintiffs to move the truck and to get in the back seat of his vehicle.
At this juncture, Agent Shaver had probable cause to detain Plaintiffs, and thus the detention was
privileged. See 8 U.S.C. § 1357; United States v. Quintana, 623 F.3d 1237, 1241 (8th Cir. 2010)
(finding border patrol agent had probable cause to believe defendant was an alien subject to
deportation, as required to make a warrantless administrative arrest under 8 U.S.C. § 1357).
Intentional Infliction of Emotional Distress Claim
Defendant argues that the tort of intentional infliction of emotional distress (“IIED”) is
excepted from liability under the “law enforcement proviso” found in 28 U.S.C. § 2680(h) (Doc. 28
at 18). Defendant, however, has not directed this Court to any controlling case law holding that the
proviso bars Plaintiffs’ IIED claim, and this Court declines to make a finding about the application
of the law enforcement proviso to this claim. However, Defendant’s Motion is granted with respect
to this claim because Plaintiffs have not pointed to evidence from which a jury could reasonably find
in their favor.
A plaintiff in an action for IIED must establish the following:
(1) the defendant intended to cause, or knew or should have known that his actions
would result in serious emotional distress; (2) the defendant’s conduct was so extreme
and outrageous that it went beyond all possible bounds of decency and can be
considered completely intolerable in a civilized community; (3) the defendant’s
actions proximately caused psychological injury to the plaintiff; and (4) the plaintiff
suffered serious mental anguish of a nature no reasonable person could be expected
to endure.
Morrow v. Reminger & Reminger Co. LPA, 183 Ohio App. 3d 40, 61 (2009) (citing Ashcroft v. Mt.
Sinai Med. Ctr., 68 Ohio App. 3d 359, 366 (1990)).
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This claim requires the plaintiff to suffer emotional distress that is serious. See Paugh v.
Hanks, 6 Ohio St. 3d 72, 78 (1983); Watkins v. Millennium Sch., 290 F. Supp. 2d 890, 903 (S.D. Ohio
2003) (citing Yeager v. Local Union 20, 6 Ohio St. 3d 369 (1983)). The seriousness of the emotional
distress goes “beyond trifling mental disturbance, mere upset or hurt feelings.” Paugh, 6 Ohio St. 3d
at 78. The emotional injury must be “both severe and debilitating,” such that a reasonable person
“would be unable to cope adequately with the mental distress engendered by the circumstances of the
occurrence.” Id.; see also Watkins, 290 F. Supp. 2d at 903 (citing Miller v. Currie, 50 F.3d 373, 378
(6th Cir. 1995)).
In order to defeat a summary judgment motion for a claim of emotional distress, a plaintiff
must submit sufficient evidence to create an issue of fact regarding the severity of his or her injury.
Watkins, 290 F. Supp. 2d at 903 (finding that plaintiff raised a genuine issue of material fact as to his
emotional distress when he submitted an affidavit from his wife detailing the various symptoms of
his distress). It is appropriate for a district court to determine on a summary judgment motion whether
a plaintiff’s alleged emotional distress is sufficiently serious as a matter of law. Miller, 50 F.3d at
377–78; Miller v. City of Columbus, 920 F. Supp. 807, 824 (S.D. Ohio 1996).
This Court finds Plaintiffs’ allegations of emotional distress fail because they did not submit
evidence of mental suffering that goes beyond mere run-of-the-mill fear of an encounter with an
authoritative figure. See Paugh, 6 Ohio St. 3d at 78. Being scared and intimidated during their
conversation with Agent Shaver is simply not enough.
In short, there is no record evidence supporting an assertion that Plaintiffs’ alleged emotional
distress was serious and debilitating. Plaintiffs submitted no affidavits detailing symptoms of their
distress, no evidence that they sought medical or psychiatric help post-incident, or that they were
unable to function normally. See City of Columbus, 920 F. Supp. at 824 (“Ohio courts have held that
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an emotional injury is not severe and debilitating where the plaintiff fails to show that he sought
medical or psychiatric help or was unable to work or otherwise function in his daily life.”) (internal
citations omitted).
A court may also find as a matter of law that a defendant’s conduct was not so severe and
outrageous as to be sufficient for an IIED claim. Miller, 50 F.3d at 377. This Court finds that Agent
Shaver’s conduct was not “extreme and outrageous” as to go “beyond all possible bounds of decency
and . . . be considered completely intolerable in a civilized community.” See Morrow, 183 Ohio App.
3d at 61. Agent Shaver approached Plaintiffs at a public gas station asking basic questions and for
identification. Agent Shaver neither threatened Plaintiffs nor accused them of a crime. Only after
Plaintiffs admitted they were in the country on expired visas did Agent Shaver detain them, without
handcuffs, in the back of his vehicle. Plaintiffs were released later that day after they were processed
at the Border Patrol station. Agent Shaver’s conduct of posing questions to Plaintiffs in a public place
and briefly detaining them after they admitted they were in violation of the law cannot be classified
as extreme and outrageous.
Deprivation of Civil Rights Claim
Defendant once again argues that the United States is excepted from liability for this state
statutory tort under the law enforcement proviso in 28 U.S.C. § 2680(h) (Doc. 28 at 20–21). Again,
with no controlling case law holding that the proviso bars Plaintiffs’ civil rights claim, this Court
declines to make a finding about the application of the law enforcement proviso. However,
Defendant’s Motion is granted with respect to this claim because Plaintiffs point to no evidence from
which a jury could reasonably find in their favor.
The Ohio Revised Code identifies five types of conduct that can serve as a basis for a civil
remedy when committed “by reason of the race, color, religion, or national origin of another person
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or group of persons.” R.C. § 2927.12. The five types of conduct are: (1) aggravated menacing; (2)
menacing; (3) criminal damaging or endangering; (4) criminal mischief; and (5) telecommunications
harassment. Id. Plaintiffs argue that the acts of Agent Shaver constituted menacing or aggravated
menacing (Doc. 29 at 19).
Menacing is defined as “knowingly caus[ing] another person to believe that the offender will
cause physical harm to the person or property of the other person, the person’s unborn, or a member
of the other person’s immediate family.” R.C. § 2903.22. The definition of aggravated menacing is
similar but results in a belief that the offender will cause “serious physical harm.” R.C. § 2903.21(A).
Although the offender does not need to verbalize the threat in order to engage in menacing, the victim
must “genuinely believe[] that he or she is facing physical harm to person or property.” Cleveland
Metroparks v. Lawrence, 2012-Ohio-5729, at ¶ 6 (Ohio Ct. App. 2012) (citing State v. Sperk,
2009-Ohio-1615, at ¶ 33 (Ohio Ct. App. 2009)). The offender must act to “knowingly cause[] the
victim to believe that the threat will be executed.” City of Niles v. Holloway, 1997 WL 665974 (Ohio
Ct. App. 1997) (citing Committee Comments to R.C. §§ 2903.21 and 2903.22).
Plaintiffs argue Agent Shaver’s conduct caused them to be “afraid for themselves, each other,
and for Plaintiff Saucedo-Carrillo’s unborn baby” (Doc. 29 at 19). Specifically, Plaintiffs cite Agent
Shaver’s actions of targeting them, pulling up in his vehicle, blocking their vehicle, and “walking
toward them in an aggressive manner,” in addition to asking questions and asking for identification
(id.). However, this testimony reveals no express or implied threats of physical harm to Plaintiffs,
Rocío’s unborn baby, or their property. Plaintiffs did not testify that they interpreted the questioning
as a threat of physical harm. Rather, Rosa testified she felt “scared because of the way he put his car
– truck in front of us” and because he was “authoritative” (Carrillo-Vasquez Dep. 38, 40), and Rocío
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testified she was afraid because of Agent Shaver’s non-specified “aggression” in the manner he asked
questions (Saucedo-Carrillo Dep. 53–54)
Nothing in the record supports allegations that Agent Shaver knowingly caused Plaintiffs to
reasonably believe he would physically harm them or that Plaintiffs actually believed they were facing
such harm. In fact, Rocío continued pumping gas throughout the encounter. Without evidence or fear
of harm, the claim for ethnic intimidation through menacing or aggravated menacing fails as well as
a matter of law.
CONCLUSION
Defendant’s Motion for Summary Judgment (Doc. 28) is granted as to all claims, and this case
dismissed.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
October 21, 2013
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