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)
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
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