Qu v. Central Falls Detention Facility Corporation et al
Filing
280
OPINION AND ORDER granting 243 Motion to Dismiss the seventh count of the fourth Amended Complaint. So Ordered by Judge William E. Smith on 7/19/11. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
________________________________________
LIN LI QU (a/k/a Michelle Ng)
as Administratrix of the
Estate of Hiu Lui Ng
(a/k/a Jason Ng) and individually
as the surviving spouse of
Hiu Lui Ng and as guardian
and next-of-friend of their
minor children, Raymond Ng and
Johnny Ng,
Plaintiff,
v.
CENTRAL FALLS DETENTION FACILITY
CORPORATION; WAYNE T. SALISBURY, JR.;
TIMOTHY E. TAPLEY; BENJAMIN RAY
CANDELARIA, JR.; DEAN MOUGENOT;
ALFRED BENEDUCE; PEDRO SANCHEZ;
FRANK J. BOTELHO; CRYSTAL NORTHUP;
LYNNE LEMOINE-MCGUIRK; AMY ROCHEFORT;
CHRISTOPHER DEMERS; PATRICK BRADY;
BRIAN CREAMER; JOSHUA STROM;
PETER BARLETTA; GREGORY RICHARD;
CAROL STIMPSON; ANTONIO SANTOS;
JACOB SULLIVAN; KEVIN BRADY;
BONNIE WHITE; CORY CLOUD; PATRICK
LEVESQUE, M.D.; JOHN RIEDEL, M.D.;
FADI F. MANSOURATI, M.D.; AVCORR
MANAGEMENT, LLC;
ANTHONY VENTETUOLO, JR.;
CORNELL COMPANIES, INC.; CORNELL
CORRECTIONS OF RHODE ISLAND, INC.;
UNKNOWN CORNELL COMPANIES, INC. STAFF;
UNKNOWN CORNELL CORRECTIONS OF
RHODE ISLAND, INC. STAFF; FRANKLIN
COUNTY JAIL; FRANKLIN COUNTY
SHERIFF’S OFFICE; ROBERT W. NORRIS;
UNKNOWN FCJ STAFF; THE MEMORIAL
HOSPITAL OF RHODE ISLAND;
MARCIA ROBITAILLE, M.D.;
LAWRENCE SMITH; ALDEAN BEAUMONT;
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CA. No. 09-53 S
NADINE MESEREAU; DAVID HAMILTON;
BRIAN LANZIERI; WILFREDO RODRIGUEZ;
CHRISTIAN MANNS; and
THE UNITED STATES OF AMERICA,
)
)
)
)
)
Defendants.
)
________________________________________)
OPINION AND ORDER
Before the Court is a motion to dismiss the seventh count
of the fourth amended complaint (the “complaint”) in this case.
For the reasons set forth below, the motion is granted.
I.
BACKGROUND
Plaintiff Lin Li Qu (a/k/a Michelle Ng) (“Michelle”) is the
former wife of Hiu Lui Ng (a/k/a Jason Ng) (“Jason”), who died
while in custody as an immigration detainee.
individually
and
as
administratix
of
She brought suit
Jason’s
estate,
and
as
guardian and next-friend of their minor children, alleging a
harrowing pattern of abuse and disregard for Jason’s serious and
worsening medical condition while in custody.
The defendants
include Central Falls Detention Facility Corporation (“CFDFC”),
which
was
the
owner
and
operator
of
the
Donald
W.
Wyatt
Detention Facility in Central Falls, Rhode Island (“Wyatt”), and
certain people and corporations connected to Wyatt; the Franklin
County Jail (“FCJ”) in St. Albans, Vermont, and certain people
and
corporations
Rhode
Island
and
connected
a
to
FCJ;
physician
the
there;
2
Memorial
the
United
Hospital
of
States
of
America; and, finally, seven named officers of Immigration and
Customs
Enforcement
(“ICE”).
These
ICE
officers
moved
to
dismiss on the grounds that the complaint fails to state a claim
against them and that they are entitled to qualified immunity.
The main focus of the allegations in the complaint is on
the actions and inactions of the Wyatt defendants, who have not
moved to dismiss.
In their motion to dismiss, the ICE officers
contend that they were not involved in the alleged wrongdoings
and that the complaint improperly lumps them together with the
main players at Wyatt.
on June 8, 2011.
The Court held a hearing on the motion
Some of the counts in the complaint were
voluntarily dismissed prior to the hearing, and some of them
were ruled on from the bench after the hearing.
(See Minute
Entry for June 8, 2011; Text Order dated June 9, 2011.)
The
only issue remaining to be decided is whether the seventh count
should be dismissed.
II.
DISCUSSION
Count seven, styled “Bivens claim for wrongful detention
and imprisonment,” alleges that “ICE Officials violated Mr. Ng’s
clearly established constitutional right to not be detained for
a prolonged period.”
(Compl., ECF No. 214, ¶ 185.)1
1
They did
This count was originally alleged against ICE officers
Lawrence J. Smith and Nadine Mesereau. The claim against Smith
was voluntarily dismissed, and only the claim against Mesereau
remains.
3
so, according to the complaint, by failing to conduct a custody
review
“[d]espite
federal
regulations
that
require
ICE
to
conduct a custody review within 120 days to determine whether to
release or continue to detain a person, or refer them to the
Post-Order Detention Unit (8 C.F.R. §241.4(c)).”
(Id.)
As the Court’s opinion and order denying the United States’
motion to dismiss noted, “Plaintiff has failed to cite with
precision where any purported right to a 120-day review exists
within
these
Order,
ECF
complicated
No.
172,
at
regulatory
provisions.”
9
The
n.4.)
(Opinion
complaint’s
&
isolated
references to a purported right to 120-day review and citations
to 8 C.F.R. § 241.4(c) clearly fail to show where the purported
statutory right to review comes from, whether it carries with it
a
private
right
of
action,
and
what
relevance
it
has
to
a
constitutional claim for wrongful detention and imprisonment.
Nor
has
Plaintiff
explanations,
argument.
or
provided
any
specification
in
more
detailed
her
opposition
allegations,
or
at
oral
The Court has reviewed 8 C.F.R. § 241.4(c) and, in
the absence of any meaningful guidance from Plaintiff, cannot
decipher any right to a 120-day review in it nor discern a
violation of a constitutional or statutory right based on it.2
The seventh count of the complaint fails to state a claim.
2
Moreover, the moving defendants pointed out at oral
argument that 8 U.S.C. § 1252 provides for exclusive judicial
4
III. CONCLUSION
For the foregoing reasons, the motion to dismiss count
seven of the complaint is GRANTED.
SO ORDERED:
/s/ William E. Smith
William E. Smith
United States District Judge
Date: July 19, 2011
review of this type of claim in the United States Courts of
Appeals, and that the Court does not have subject matter
jurisdiction over it. See Aguilar v. U.S. Immigration & Customs
Enforcement Div. of Dep’t of Homeland Sec., 510 F.3d 1 (1st Cir.
2007).
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?