Carranza v. United States, et al

Filing 18

OPINION and ORDER - For the reasons stated, Defendants' motion 9 to dismiss is GRANTED in part and DENIED in part. IT IS SO ORDERED. DATED this 1st day of July, 2013, by United States Magistrate Judge John V. Acosta. (peg)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Civ. No. 3:12-cv-02255-AC BEN ITA PICAZO CARRANZA, OPINION AND ORDER Plaintiff, v. UNITED STATES OF AMERICA, and JOHN DOES FEDERAL LAW ENFORCEMENT AGENTS 1-5, Defendants. ACOSTA, Magistrate Judge: Introduction Defendants United States and John Doe Federal Law Enforcement Agents 1-5 ("Defendants A-E") (collectively "Defendants") move to dismiss plaintiff Benita Picazo Cananza 's ("Carranza") claims pursuant to Rule 12(b)(1) and Rule 12(b)(6). Cananza brought this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), seeking relief in the form of money damages. Defendants filed their motion to dismiss arguing: ( 1) there is no subject matter jurisdiction for claims against Defendants A-E in their official capacity, and (2) the complaint fails to state actionable tort claims under Oregon law. Specifically, Defendants OPINION AND ORDER 1 {WRC} state claims for invasion of privacy, argue the complaint does not plead facts sufficient to of process. Ca11'anza concedes that intentional infliction of emotional distress ("liED"), or abuse against the United States, but argues her claims brought under the FTCA are cognizable only as g rise to entitlement to relief for all complaint contains well-pleaded factual allegations givin three tmi claims. complaint fails to Defendants reply that under Oregon law, Ca11'anza's adequately allege any claim for relief. claims against Defendants Because Carranza has conceded that she may not state FTCA A-E in their official capacities, those claims are dismissed under 12(b)(l). Therefore, Carranza's s only. claims should be deemed as brought against the United State de") in support of their motion Defendants submitted the declaration ofRobe1i Hyde ("Hy examines whether a plausible claim to dismiss. On a motion to dismiss under 12(b)(6), the comi declaration contains paragraphs and for relief is stated, not the merits of the claim. The Hyde t the Hyde declaration and exhibits exhibits on the merits of Carranza's claim. To the exten der them. Viewing Cana nza's claims present facts bearing on the merits, the court will not consi n to dismiss under 12(b)(6) is denied, against the United States in this context, Defendants' motio for the reasons set forth below. Back groun d by Defendants A-E, believed to Ca11'anza's claims arise out of her anest and detainment Enforcement ("ICE"). Defendants Abe law enforcement officers ofim migr ation and Customs a legal resident of the United States. E arrested Ca11'anza on the pretense that she was. not (Complaint ("Comp.") ~~ r, Oregon 23-25.) At the time of her a11'est, Carranza lived in Keize with her two young daughters and her parents. (Comp. OPINION AND ORDER 2 ~~ 5, 58.) {WRC} In her complaint, Cananza alleges that on March 1, 2012, Defendants A-E came to her home, whereupon Carranza stepped onto her porch to speak with Defendant A. (Comp. Defendant A handcuffed Carranza and put her in the back of a car. (Comp. denied Cananza's request to call her lawyers. (Comp. ~~ ~ ~ 10). 40.) Defendant A 27, 29, 37, and 40.) Carranza saw her daughters and parents watching from the house and crying. (Comp. ~ 41.) Defendant D told Cananza they were looking for her brother, Moises Reyes ("Reyes"), a wanted fugitive. (Comp. ~~ 45-51.) Cananza told Defendant D that neither she nor her parents had heard from Reyes in ten years. (Comp. ~~ 52-56.) Defendant D said to Cananza: Well, you know who you should be thanking for mining your life like this right? So when you get to Mexico, because that's where you will be going, you should give your brother a call and thank him for that! It is just a matter of time but I will come back and get your Dad and then your Mom and every family member. I mean, look at what happened to your brother Armando, where is he now, he is in Mexico! And your other sister will also be there shortly so again your brother is the person to thank for everything that is going on in your lives. ~ (Comp. 74.) Defendant D continued threatening Cananza and her family, saying: Well, I'm just saying I don't know if you want to give your girls' future up for someone, because not only are you going to be sent to Mexico but I will take your girls and place them in a foster home where they will not know who the family is, and where you will never see them again. ~ (Comp. 78.) Defendant D asked permission to enter Carranza's home. (Comp. did not have a wanant to search Carranza's home. (Comp. ~~ ~ 97.) Defendants A-E 98-99.) Carranza told Defendant D that her mother was sick, her daughters were in the house, and again asked to call her lawyer. (Comp. ~ 102.) Defendant D responded: "No you cannot make any phone calls and if you don't let me in your house I will just come back over and over until I go in. I'm gonna come back tomonow and the following day." (Comp. ~ 103.) Defendant D counted the days on his fingers and said, "I just want to make sure your brother is not in there." (Comp. OPINION AND ORDER 3 ~ 103.) Defendant D {WRC} told Carranza he would not speak with her parents or children. (Comp. ~ 105.) Carranza consented to a limited search of her home because she believed Defendant D would follow through on his threats. (Comp. ~~ 106-1 08.) Defendants A-E entered Carranza's home. (Comp. ~ Ill.) While in Cananza's home, Defendant D spoke with Carranza's parents and interacted with her five-year-old daughter. (Comp. ~~ 115-127.) Defendant D threatened Cananza's parents that he would go to each of ~ their sons' houses looking for Reyes. (Comp. 123.) Defendants completed their search of Carranza's home and did not find Reyes. (Comp. ~ 133.) Defendants transported Carranza to the ICE detention facility in Portland, Oregon. (Comp. ~ 134.) Defendant D again tlll'eatened to deport Cananza and her family if she did not ~~ help him find Reyes. (Comp. Reyes. (Comp. ~ 138-142.) Carranza repeated that she did not know how to find 143.) Defendant D continued to threaten Cananza with deportation and placing her daughters in foster care. (Comp. ~ 150.) Carranza thought of instances from her childhood and became emotionally distressed thinking of what might happen to her daughters if she were deported. (Comp. abused. (Comp. ~ ~ 155.) As a child Carranza worked on the streets and was sexually 155.) She also witnessed other children get beaten, abused, and killed. (Comp. ~ 155.) Eventually Carranza's attorneys came to the ICE facility and spoke with her. (Comp. ~ 158.) Defendant E told the attorneys Carranza was being transported to another facility because she was not cooperating. (Comp. ~ 159.) Carranza's attorneys infonned Defendants that Carranza was eligible for and in the process of obtaining permanent resident status. (Comp. 160.) Cananza was transpotied to another facility and held ovemight. OPINION AND ORDER 4 (Comp. ~ ~ 162.) {WRC} Defendant D communicated to other ICE officers that Cananz a should not be released. (Comp. ~ 163.) On March 2, 2012, Cananz a's attomey delivered a packet of infotmation to ICE, outlining the foll'lls of relief Cananza was eligible for and requesting her release. (Comp. Defendant E then told Carranza that she was to be released. (Comp. ~ ~ 174.) 175.) Defendant E returned Cananz a's possessions to her, but her business card had been removed from her wallet. (Comp. ~ 178.) Defendant E told Carranza that Defendant D is not stopping and might call Cananz a's employer. (Comp. about Reyes. (Comp. ~ ~ 179.) Carranza reiterated that she did not have any information 180.) Legal Standard In Bell Atlantic Cmp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court addressed the Rule pleading standard to adequately state a claim under the Federal Rules of Civil Procedure. the 8(a) governs pleadings and calls for "a short and plain statement of the claim showing that to pleader is entitled to relief .... " FED. R. CIV. P. 8(a) (2009). Twombly emphasized the need a include sufficient facts in the pleading to give proper notice of the claim and its basis: "While complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintif fs obligation to provide the 'grounds' of his 'entitlement to relief requires action more than labels and conclusions, and a fotmulaic recitation of the elements of a cause of aded will not do." !d. at 555 (brackets omitted). Even so, the court noted that "a well-ple is complaint may proceed even if it strikes a savvy judge that actual proof of those facts v. improbable, and 'that a recovery is very remote and unlikely."' !d. at 556 (quoting Scheuer Rhodes, 416 U.S. 232,236 (1974)). OPINION AND ORDER 5 {WRC} Since Twombly, the Supreme Court made clear that the pleading standard announced therein is generally applicable to cases govemed by the Federal Rules of Civil Procedure, and not just those cases involving antitrust allegations. As the Court held in Twombly, the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555) (internal citations omitted); see also Villegas v. J.P Morgan Chase & Co., No. C 09-00261 SBA, 2009 U.S. Dist. LEXIS 19265, at *7-8 (N.D. Cal. Mar. 6, 2009) ("The Twombly standard, moreover, is of general application and is as easily applied to wage and hour litigation as antitrust."). The Court went on to identify two principles informing the decision in Twombly. First, although the ,,_ court must assume true all facts asserted in a pleading, it need not accept as true any legal conclusions set forth in a pleading. Second, the complaint must set f01th a plausible claim for relief and not merely a possible claim for relief. The Comt advised that "[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft, 129 S. Ct. at 1949-50 (citing Iqbal v. Hasty, 490 F.3d 143, 157-158 (2nd Cir. 2007)). In conclusion, the Court wrote: "While legal conclusions can provide the framework of a complaint, they must be supp01ted by factual allegations. When there are well-pleaded factual allegations, a comt should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id at 1950. OPINION AND ORDER 6 {WRC} Discussion The Federal Tort Claims Act I. cetiain claims against the The FTCA gives the comt subject matter jurisdiction over act United States for injuries caused by the negligent or wrongful or omission of any government C. § 1346(b)(2). Jurisdiction over employee acting within the scope of employment. 28 U.S. d States, if a private person, would be these claims is limited to "circumstances where the Unite the place where the act or omission liable to the claimant in accordance with the law of claims under the FTCA "in the same occuned." !d. Thus, the United States is liable for t01t like circumstances." 28 U.S.C. § manner and to the same extent as a private individual under 2674. ity for "any claim arising out The FTCA provides an exception to the United States' liabil ious prosecution, abuse of process, of assault, battery, false imprisonment, false arrest, malic with contract rights." libel, slander, misrepresentation, deceit, or interference 28 U.S.C. § restores the United States' liability for 2680(h). However, the FTCA's law enforcement proviso false anest, abuse of process, or claims arising out of "assault, battery, false imprisonment, nt officer. !d. malicious prosecution" committed by a federal law enforceme on the liability of a private The United States' liability under the FTCA is based solely (2005). In Olson, the Supreme Comt party under local law. United States v. Olson, 546 U.S. 43 waive the United States' sovereign reversed Ninth Circuit precedent that allowed courts to a state or municipal entity liable. !d. immunity in cettain instances where local law would make immunity under circumstances where at 44. The Comt held the FTCA does not waive sovereign cipal entity. !d. at 45-46. Regarding the United States would be liable if it were a state or muni t as a private individual under like the language "in the same manner and to the same exten OPINION AND ORDER 7 {WR C} l employee's conduct is circumstances," the Court held the United States is liable where a federa party. Id. at 46-47. When analogous to behavior that would be tortious if performed by a private the allegedly tottious conduct arises out of"uni quely governmental functio ns," comts should still consider whether analogous private party conduct would be subject to tot1lia bility. Id. ent and allowed Applying Olson, the Ninth Circuit reversed a grant of summary judgm the actions of federal law several tort claims to be brought against the United States based on States, 511 F.3d 839 enforcement officers serving search and anest warrants. Tekle v. United for torts committed by (9th Cir. 2007). In Tekle, the court held the United States may be liable ity. Id. at 852. The federal law enforcement officers while acting within their statutory author States liable for torts Cotn1 reasoned "it is the very purpose of the FICA to hold the United scope of his office or committed by a government employee 'while acting within the employment."' Id. (quoting 28 U.S.C. § 1346(b)). FICA . Id. at 840. In Tekle, a thirteen-year-old boy sued the United States pursuant to the when federal agents The plaintiff (only eleven at the time) was taking out trash at his home ff initially ran towards his anived to serve arrest wanants on his parents. Id. at 842. The plainti and lie face down. Id. at house, but stopped when the agents commanded him to turn around him, and searched him. 843. While on the ground, the agents held a gun to his head, handcuffed lk where ld. The agents pulled him up by the handcuffs and sat him on the sidewa he sat with his ed. Id. About twenty bare feet in the gutter for fifteen minutes before the handcuffs were remov d to use the restroom agents continued to point their guns at the plaintiff, he was not allowe spit on them. !d. The unsupervised, and an agent tluew the plaint iffs shoes on the ground and assault and battery, and Ninth Circuit analyzed the liability of a private party for false arrest, of their employment, the TIED. Id. at 854. Although the agents were acting within the scope OPINION AND ORDER 8 {WRC} material fact about whether the agents acted t held the plaintiff raised genuine issues of cour summary judgment on all three claims. Id. at beyond the scope of their authority and reversed 854-856. es that federal law enforcement officers Like the plaintiff in Tekle, Carranza alleg orization, while acting within the scope of their committed tortious conduct, beyond their auth to t D threatened her and her family, intending employment. Carranza alleges that Defendan and in her involuntary consent to enter her home, inflict severe emotional distress on her, obta (Comp. ~ 79.) Can anza also alleges that obtain information about her brother, Reyes. the immigration detention process against her for Defendants were not authorized to use the is t Reyes. (Comp. ~ 201.) Because Carranza ulterior purpose of obtaining infonnation abou s s to the liability of private patties in analogou suing pursuant to the FTCA, the court look g the alleged conduct of Defendants A-E. situations and under Oregon law when examinin A. Invasion ofPriv acy 's invasion of privacy claim. Defendants Defendants move for dismissal of Can anza her Defendants lacked consent to enter and search argue that Carranza failed to adequately allege the thorized intmsion. Defendants also argue that home or Defendants intended to cause an unau t violations. Carranza responds that the complain FTCA does not apply to Fom1h Amendment e and was therefore involuntary; it is therefor alleges her consent was given under duress, to le belief, after issuing the specific threats plausible that Defendants lacked a reasonab A, n. Carranza also argues that, under the FTC Carranza, that her consent was voluntarily give governmental functions. government actors can be held liable for uniquely one of four forms: "(1) intrusion upon A claim for invasion of privacy may take on of e or likeness; (3) false light; and (4) publicati seclusion; (2) appropriation of another's nam OPINION AND ORDER 9 {WR C} (1996), citing Humphers v. First Interstate private facts." Mauri v. Smith, 323 Or. 476, 482 the tort of invasion of privacy based on a Bank, 298 Or. 706, 714 (1985). Under Oregon law, that must be proven: "(1) an intentional theory of intrusion on seclusion has three elements solitude or seclusion, or private affairs or intrusion, physical, or otherwise, (2) upon plain tiffs reasonable person." Id at 483. At issue here concems, (3) which would be highly offensive to a tituted an "intentional intrusion." is the first element, whether Defendants' conduct cons sion. !d. at 484 (citing Gilmore v. An "intentional intrusion" is a nonconsensual intru r Oregon law, an invasion of privacy claim Enogex, Inc., 878 P.2d 360, 366 (Okla. 1994)). Unde Leggett v. First Interstate Bank of Oregon, requires proving that the defendant lacked consent. NA., 86 Or.App. 523, 528 (1987). nt The Oregon Supreme Court follows the Restateme Or. at 482-484. It provides that" [c]onsent (Second) of Torts with respect to the tmt. Mauri, 324 EMENT (SECOND) OF TOR TS§ 892B(3) is not effective if it is given under duress." RESTAT relevant pmtion: (1979). The comment to subsection (3) reads, in the render the consent ineffective The cases to date in which duress has been found to drastic in their nature and that have involved those forms of duress that are quite of the will. These include clearly and immediately amount to an overpowering enting or the members of his force or threats of force against the person cons also arrest, imprisonment or immediate family or his valuable property; and n consenting or a member prosecution upon a serious criminal charge of the perso . of his family, as well as immediate threats of that force cmt. j (1979). RESTATEMENT (SECOND) OF TOR TS§ 892B(3) s the element of lack of consent. First, the parties dispute whether Ca!Tanza plead drawing all reasonable inferences in favor Accepting the allegations of the complaint as h·ue and this element. Carranza was not infm med of of Carranza, the com t finds she has properly pleaded e or after being handcuffed and placed in the wana nt for her arrest or advised of her rights befor she had a criminal record and a depottation the back of the car. Defendants told CatTanza that OPINION AND ORD ER 10 {WRC} dants denied her request to order. After Canan za acknowledged not having a green card, Defen Canan za was handcuffed call her lawyer, handcuffed her, and put her in the back of a car. While za and her family, and in the back of the car, Defendants threatened the deportation of Canan never see them again. threatened to have her daughters placed in foster care so that she would her home, and Carranza Defendants made these threats to coerce Canan za's consent to enter Carranza consented to the believed Defendants' threats. Fearing she would lose her daughters, tely alleges that Canan za's search of her home. Based on the above facts, the complaint adequa consent was ineffective because she was under duress when she consen ted. intent to cause an Second, Defendants argue that Canan za fails to plead Defendants' to plausibly allege that unauthorized intrusion. However, the complaint pleads sufficient facts consent was ineffective. Canan za's consent was ineffective and that Defendants knew the Defendants did not have a wanan t and knew they needed Canan za's consent to search her home. reason to think Reyes was Defendants were at Canan za's home looking for Reyes, and had no dants arrested Carranza there other than that Reyes and Canan za are related. Nonetheless, Defen she helped them find and threatened to deport her and separate her from her daughters unless upset. Finally, Canan za Reyes. Canan za could see that her children and parents were visibly . If Defendants knew that consented to the search only because she believed Defendants' threats eless entered Canan za's Carranza's consent was ineffective because it was coerced and noneth orized intrusion. home, it is reasonable to infer that Defendants intended to cause an unauth violating the Fourth Third, Defendants argue that Canan za can not bring a claim for dment protects individuals Amendment under the FTCA. Defendants argue that the Fourth Amen t be held liable under the from government intrusion, and therefore the United States canno the United States liable FTCA for violating the Fourth Amendment because the FTCA holds OPINION AND ORDE R 11 {WRC} be liable. However, in her complaint, Carranza only to the same extent a private party could home unlawfully searched in violation of the does not allege her consent was obtained or her ndants threatened the well-being of her and her Fourth Amendment. Can anza alleges that Defe eration. Cmm nza' s point is that under those family in order to coerce her consent and coop er to who m it was given, because it was given circumstances her consent was ineffective, no matt is ment misses the point; the Fout ih Amendment while she was under duress. Defendants' argu not relevant to Can anza 's claim. e of Carr anza 's consent and whether Finally, both patties also dispute the scop However, the co uti need not explore this issue Defendants' search wen t beyond that scope. support a claim for invasion of privacy based on because the complaint pleads facts sufficient to a theory of intmsion on seclusion. iss Carr anza 's claim for invasion of For these reasons, Defendants' motion to dism privacy is denied. B. liED 's liED claim. Defendants move for dismissal of Carranza Defendants argue that cause her severe emotional distress or that she Carranza failed to allege Defendants intended to also argue their statements and actions did not suffered severe emotional distress. Defendants anza responds that she sufficiently alleged rise to the level of intolerable conduct. Carr l l distress and that she suffered severe emotiona Defendants' intent to cause her severe emotiona argues that whether Defendants' conduct was distress as a result of their conduct. Carranza also take into account the special relationship created intolerable is a fact-specific inquiry that must whe n Defendants took her into custody. OPINION AND ORD ER 12 {WR C} e facts for liED , a plaintiff must plead plausibl Under Oregon law, to set out a claim al distress on ndant intended to inflict severe emotion establishing three elements: "(1) the defe tional distress; e the cause of the plai ntif fs severe emo the plaintiff; (2) the defendant's acts wer nds of socially an extraordinary transgression of the bou and (3) the defendant's acts constituted Defendants argue Are na Corp., 333 Or. 401, 411 (2002). tolerable conduct." Bobick v. Oregon meeting any of the three elements. the complaint pleads no plausible facts 1. Intent nition of the Restatement (Second) of Torts defi The Oregon Supreme Court follows (1195)). Staudenraus, 321 Or. 532, 550-551 Id. at 411-412 (citing McGanty v. intent. ndant desired to stage the plaintiff must allege the defe Accordingly, at the motion to dismiss to result from a w such distress was substantially certain inflict severe emotional distress or kne fs need allege Oregon Supreme Court held that plaintif volitional act. Id. at 412. In Bobick, the al distress." Id. ose of causing plaintiffs severe emotion only that a defendant "act ed with a purp ... inflict severe so acting, defendant ... intended to The plaintiffs in Bobick alleged: "In court held this allegation of intent was ress on plaintiffs." Id. The Bob ick emotional dist iss stage. Id. sufficient to get past the motion to dism intended to ick, Carranza alleges that Defendants Here, similar to the plaintiffs in Bctb than did the she alleges intent with far more detail ict severe emotional distress on her and infl plaintiffs in Bobick._ Carranza assetts: emotional distress upo n Plai ntif f by Defendant D intended to inflict severe er take her girls and place them in a fost threatening to send her to Mexico and not see them family is and where she will home where they will not kno w who the the sent to search her residence, and for again, for the purpose of securing con whereabouts of Plaintiff as to the purpose of obtaining information from ain, that severe emotional distress was cett Pla inti ffs brother. Defendant D knew conduct. or substantially certain, to result from his OPINION AND ORDER 13 {WRC} (Comp. ~ regarding the 192.) Catmnza expressly pleads intent by and knowledge of defendants dingly, under Oregon likely consequence to Carranza of their actions, physical and verbal. Accor law, Carranza's allegations meet the standard for pleading intent. 2. Causation of Severe Emotional Distress severe emotional Defendants also argue that Carranza fails to allege that she suffered severe emotional distress. distress, and therefore Defendants' actions could not have caused as fright, horror, grief, Emotional distress includes "all highly unpleasant mental reactions, such nt, worry, and nausea." shame, humiliation, embatmssment, anger, chagrin, disappointme n law, objective evidence RESTATEMENT (SECOND) OF TORTS § 46 cmt. j (1965). Under Orego ms, is not required to of severe emotional distress, such as medical, economic, or social proble 54 Or. App. 480, 488 prove a plaintiff suffered emotional distress. Bodewig v. K-Mart, Inc., re distress must be proved; (1981). Commentj to the Restatement section 46 explains that: "Seve ant's conduct is in itself but in many cases the extreme and outrageous character of the defend ND) OF TORTS§ 46 cmt. important evidence that the distress has existed." RESTATEMENT (SECO evidence of psychic harm j (1965). Furthermore, "[b]ecause proof of intent is often indirect and a defendant's conduct is is usually self-serving, proof of this tort largely turns on ... whether sufficiently outrageous." House v. Hicks, 218 Or. App. 348, 358. Accordingly, the court the alleged severity of considers the character of Defendants' conduct when determining liED claim. Carranza's emotional distress, and thus turns to the final element of an 3. Extraordinary Transgression of the Bounds of Sociable Tolerable Condu ct do not constitute Defendants argue that their statements and behavior towards Carranza ct" because they were "an extraordinary transgression of the bounds of social tolerable condu that Defendants created a based on the realities of Carranza's legal status. Carranza replies OPINION AND ORDER 14 {WRC } special relationship with her when they assumed physical custody over her, and their threats were "outrageous in the extreme." She argues that Defendants had a greater obligation to refrain from abusive, frightening, and shocking behavior than do strangers in an mm's-length encounter with one another. Determining whether conduct is extreme or outrageous requires a factual inquiry, on a case-by-case basis, that examines the circumstances in their entirety. Delaney v. Clifton, 180 Or. App. 119, 130 (2002). Under Oregon law, the existence of a special relationship between pmiies bears on the characterization of patiicular conduct as extreme or outrageous. !d. The abuse of position or authority (actual or apparent) by an actor can be detetminative of whether conduct is outrageous or extreme. RESTATEMENT (SECOND) OF TORTS § 46 cmt. e (1965). When dete1mining whether conduct was outrageous or extreme, Oregon comis will also look to whether the actor had an ulterior purpose or took advantage of a vulnerable individual. Checkley v. Boyd, 198 Or. App. 110, 125 (2000). In their reply, Defendants rely on Pakos v. Clark and argue that their conduct did not rise to the level required for liED. The plaintiff in Pakos, a former mental patient, alleged that officers: (1) told him he was "crazy as a bedbug"; (2) told him they were going to readmit him to the mental hospital; (3) told him they would take his children away; and (4) made taunting facial gestures at him. 253 Or. 113, 119-120 (1969). The plaintiff was not under arrest and left the sheriffs office at least once during the encounter. Id at 119. The Oregon Supreme Comi held that the conduct complained about was not actionable. Id. at 132. Unlike the plaintiff in Pakos, Cananza was under atTest and in custody the entire time she alleges Defendants inflicted severe emotional distress on her. Carranza alleges that Defendants created a special relationship when they took her into custody and had a heightened obligation OPINION AND ORDER 15 {WRC} who were ranza in front of her children and parents, towards her. Defendants then threatened Car to the ats continued after Carranza was brought crying and visibly upset. Defendants' thre forever ess of the situation, the threat of losing them detention facility. In light of the seriousn timate. could reasonably be perceived as being legi on whether a special relationship existed Can anz a' s liED claim turns in large part created a gon law. Carranza alleges that Defendants between Defendants and Carranza under Ore ecting a greater obligation to refrain from subj special relationship and they therefore "had true in ann 's length encounters among to abuse, fright, or shock than would be Plaintiff ofT orts section 314A(4) states, "One who rs." (Comp. ~ 194.) The Restatment (Second) strange tances takes the custody of another under circums required by law to take or who voluntarily is ilar duty to opportunities for protection is under a sim such as to deprive the other of his n01mal ion of this TORTS§ 314A(4) (1965). The current vers the other." RESTATEMENT (SECOND) OF section of the Restatement states in relevan t part: another owes the other a duty of (a) An actor in a special relationship with within the scope of the relationship. reasonable care with regard to risks that arise the duty provided in Subsection (a) (b) Special relationships giving rise to include: (7) a custodian with those in its custody, if: custody or voluntarily (a) the custodian is required by law to take takes custody of the other; and ect the other. (b) the custodian has a superior ability to prot Oregon has & EMOT. HARM§ 40 (2012). Although RESTATEMENT (THIRD) OF TORTS: PHYS. for "useful Oregon courts look to the Restatements not specifically adopted either provision, a special relationship or status." Stewart v. regarding the duty imposed as the result of guidance (2011). Furthermore, this coutt recently of Dallas, OR, 245 Or.App. 267, 278 Kids Inc. and a een the United States Marshall Service gnized a special relationship existed betw reco OPINION AND ORDER 16 {WR C} prisoner in their custody. Crane v. United States, 3:10-CV-00068-AC, 2013 WL 1453166 (D. Or. Mar. 21, 2013) report and recommendation adopted, 3:10-CV-00068-AC, 2013 WL 1437816 (D. Or. Apr. 9, 2013). For the reasons stated above, the court finds that a special relationship existed between Defendants and Cananza while she was in their custody. Accepting the allegations of the complaint as true and drawing all reasonable inferences m favor of Cananza, the complaint sufficiently alleges that she suffered severe emotional distress caused by Defendants' behavior. A special relationship was created when Defendants exercised complete physical control over Cananza by taking her into custody. Cananza alleges Defendants' tlu·eats "constituted an extraordinary transgression of the bounds of socially tolerable conduct." Carranza also alleges Defendants preyed on her vulnerabilities with the ulterior purpose of obtaining infmmation about Reyes. Specifically, Defendants handcuffed Cananza and put her in the back of a car while her daughters watched. Then, while she could see her daughters and parents watching and crying, Defendants tlu·eatened to deport her and permanently take her daughters away from her. This caused Cananza severe emotional distress. While Cananza was detained at the ICE facility, Defendants again threatened to take Carranza's daughters from her. Cananza recalled working on the streets as a child and being sexually assaulted. She saw other children get beaten, abused, and killed. She feared what would happen to her daughters if they were taken from her. The repeated tlu·eats of losing her daughters frightened Carranza and resulted in the infliction of severe emotional distress. For the above reasons, Carranza has adequately pleaded IIED and Defendants' motion to dismiss Carranza's IIED claim is denied. OPINION AND ORDER 17 {WRC} C. Abuse ofProcess Defendants move for dismissal of Cananza's abuse of process claim. Defendants argue that Cananza cannot claim abuse of process because there was probable cause to anest and detain her, regardless of any alleged ulterior motive. They also argue that Cananza has not pleaded sufficient facts to show the immigration detention process was initiated for any purpose other than to secure her presence at immigration and removal proceedings. Cananza responds that the sole purpose for the immigration detention process is to conduct immigration and removal proceedings, and the complaint alleges Defendants abused the immigration detention process when they used it to coerce infonnation from her regarding a collateral matter. The Oregon Supreme Court has explained the requirements for a viable abuse of process claim: "[F]irst, an ulterior purpose, and second, a willful act in the use of the process not proper in the regular conduct of the proceeding. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the sunender of property or the payment of money, by the use of the process as a threat or a club." Larsen v. Credit Bureau, 279 Or. 405,408 (quoting Prosser, Law of Torts 857, § 121 (1971)). Before determining whether Cananza has alleged abuse of process, the court must determine the purpose of the immigration detention process. Carranza argues that the only legitimate use of the immigration detention process is to ensure a party's appearance in immigration and removal hearings. Carranza's argument is supported by published ICE standards: "ICE detains people for no purpose other than to secure their presence both for immigration proceedings and their removal, with a special focus on those who represent a risk to OPINION AND ORDER 18 {WRC} public safety, or for whom detention is mandatmy by law." U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ICE PERFORMANCE-BASED NATIONAL DETENTION STANDARDS 2011, PREFACE BY JOHN MORTON, DIRECTOR (2011). Also consistent with Carranza's argument, the Supreme Court has held that detaining deportable criminal aliens pending removal proceedings serves the purpose of preventing them from fleeing prior to or during removal proceedings. Demore v. Kim, 538 U.S. 510, 528 (2003). Fmihem1ore, in a memorandum regarding detention priorities, ICE director John Morton writes: "Absent extraordinary circumstances or the requirements of mandatory detention, field office directors should not expend detention resources on aliens who ... demonstrate that they are primary caretakers of children or an infi1m person, or whose detention is otherwise not in the public interest." http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf. (last visited June, 5 2013). Finally, Defendants do not argue there is any other purpose for the immigration detention process. Thus, the comi finds that the legitimate purpose of the immigration detention process is securing the presence of parties for immigration and removal proceedings. Defendants correctly argue that an ulterior purpose does not invalidate the probable cause an·est and detention of Carranza. However, "[a]buse of process is the perversion of the legal procedure to accomplish an ulterior purpose when the procedure is commenced in proper form and with probable cause." Kelly v. McBarron, 258 Or. 149, 154 (1971). Carranza does not dispute the validity of her arrest and detention; she alleges Defendants willfully used the immigration detention process against her for the illegitimate purpose of attempting to coerce information about Reyes from her. Accepting the allegations of the complaint as true and drawing all reasonable inferences in favor of Carranza, the court finds that Carranza has sufficiently pleaded that Defendants used OPINION AND ORDER 19 {WRC} the immigration detention process not to detain Cananza pursuant to an outstanding removal order, but to compel her to divulge the whereabouts of her brother, Reyes. After briefly questioning Cananza about her legal status in the United States, Defendants' inquiry focused on the whereabouts of Reyes. Defendants told Carranza that it was Reyes's fault that she was being deported. Defendants accused Cananza of lying about Reyes's whereabouts. Defendants threatened to deport Carranza and separate her permanently from her daughters if she did not help them find Reyes. While Cananza was handcuffed in a car, Defendants searched her home for Reyes. Defendants told Carranza's parents that they would go to all of their sons' houses looking for Reyes. After moving Carranza to an ICE detention facility, Defendants continued to question her about Reyes's whereabouts. Defendants told Cananza' s attorneys she was being held because she was not cooperating. Defendants instructed other ICE agents not to release Carranza. It can reasonably be infened that Defendants detained Carranza for the purpose of coercing her cooperation and that of her family in their search for Reyes. Defendants argue that Carranza's arrest and detention occurred because of her illegal status. They argue that the fact she was released after her immigration attorney made Defendants aware of mitigating circumstances highlights that there was not an abuse of process. However, the facts as pleaded plausibly connect Cananza's arrest and detention with Defendants' premeditated search for Reyes. Cananza sufficiently alleges that her arrest and detainment were discretionary and occurred only because Defendants wanted to coerce her cooperation in finding Reyes, not to secure her presence at immigration and removal proceedings. For these reasons Defendants' motion to dismiss Cananza's claim for abuse of process is denied. OPINION AND ORDER 20 {WRC} Conclusion For the reasons stated, Defendants' motion to dismiss is GRANTED in part and DENIED in part. IT IS SO ORDERED. J/~ DATED thi~ day ofJuly, 2013. ( gJ(Jt___ JOHNV. ACOSTA United~tes Magistrate Judge OPINION AND ORDER 21 {WRC}

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