Abriq v. Hall et al

Filing 174

MEMORANDUM OPINION OF THE COURT. Signed by District Judge William L. Campbell, Jr on 5/7/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ABDULLAH ABRIQ,
On behalf of himself and all others
similarly situated,

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Plaintiff,
v.
METROPOLITAN GOVERNMENT
OF NASHVILLE/DAVIDSON
COUNTY,
Defendants.

NO. 3:17-cv-00690
JUDGE CAMPBELL

MEMORANDUM
Pending before the Court is Plaintiff’s Motion for Class Certification (Doc. No. 94). For
the reasons stated herein, Plaintiff’s Motion is DENIED.

BACKGROUND
This action challenges the constitutionality of Defendant Metropolitan Government of
Nashville/Davidson County’s policy of detaining immigrants subject to detainers from the U.S.
Department of Homeland Security, Immigration and Customs Enforcement (“ICE”). Plaintiff’s
remaining claim is for violation of his Fourth Amendment rights. 1
The First Amended Complaint (Doc. No. 26) alleges that ICE 2 arrested Plaintiff pending
civil removal proceedings, without a warrant and without probable cause, and that that arrest was
1

Plaintiff’s claims for violation of the Fourteenth Amendment, unjust enrichment, false
imprisonment and ultra vires acts have been dismissed. See Doc. Nos. 136-37 and 161.
2

ICE is not a Defendant in this action.

a “seizure” within the meaning of the Fourth Amendment. Plaintiff alleges that ICE then
transferred custody of Plaintiff to Defendant (at the Davidson County Jail), which effectuated a
new “seizure” of Plaintiff by Defendant, without probable cause and without a warrant. Plaintiff
contends that Defendant had no lawful authorization to provide immigration detention services
from August 2012 (when its agreement with ICE expired) forward and, thus, no authorization to
detain him. Plaintiff also asserts that Defendant has used Davidson County facilities unlawfully
to detain hundreds of immigration detainees like him since its agreement with ICE expired in
2012. Plaintiff seeks declaratory and injunctive relief, plus the creation of an equitable or
constructive trust.
Plaintiff asks the Court through his motion, pursuant to Fed. R. Civ. P. 23(a) and
23(b)(2), to certify a class of persons defined as follows:
From April 7, 2016 forward, all individuals who have been, are being, or will be
housed by the DCSO [Davidson County Sheriff’s Office] on behalf of Metro
Nashville on federal civil immigration charges for Immigration and Customs
Enforcement in return for compensation from the federal government.
Doc. No. 94. 3
CLASS CERTIFICATION
In order to certify a class, the Court must be satisfied that Plaintiff has met the
requirements of both Rule 23(a) and Rule 23(b) of the Federal Rules of Civil Procedure. Rule
23(a) establishes four requirements for class certification: (1) the class is so numerous that

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The class asserted in the First Amended Complaint is defined differently: “All civil
administrative detainees over whom the Defendants, or their designees, purporting to act as an
immigration detention services contractor for the federal government, have taken custody of or
will take custody of since September 1, 2012.” Doc. No. 26 at ¶ 100.
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joinder of all members is impracticable; 4 (2) there are questions of law or fact common to the
class; (3) the claims or defenses of the representative parties are typical of those of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class. Fed. R.
Civ. P. 23(a). To meet the requirements of Rule 23(b)(2), a plaintiff must show that the defendant
has acted or refused to act on grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting the class as a whole. Fed. R.
Civ. P. 23(b)(2).
A class action will be certified only if, after rigorous analysis, the Court is satisfied that
the prerequisites of Rule 23(a) have been met and that the action falls within one of the
categories under Rule 23(b). Castillo v. Envoy Corp., 206 F.R.D. 464, 467-68 (M.D. Tenn.
2002); Burges v. Bancorpsouth, Inc., 2017 WL 2772122 at * 2 (M.D. Tenn. June 26, 2017). The
decision whether to certify a class, committed to the sound discretion of the district judge, turns
on the particular facts and circumstances of each individual case. In re Whirlpool Corp.
Front-Loading Washers Product Liability Litig., 722 F.3d 838, 850 (6th Cir. 2013). The parties
seeking class certification bear the burden of showing that the requirements for class certification
are met. Bridging Communities Inc. v. Top Flite Financial Inc., 843 F.3d 1119, 1124 (6th Cir.
2016); Skeete v. RePublic Schools Nashville, 2017 WL 2989189 at * 2 (M.D. Tenn. Mar. 21,
2017).
Plaintiff asserts that there are numerous common facts, many of which are undisputed.
With regard to common questions of law, Plaintiff asserts that the following issues are common
to all the proposed class:
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There appears to be no dispute here that Plaintiff has established the numerosity element.
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(1) whether Defendant was authorized to continue housing immigration detainees for ICE
after the 2007-2012 agreement expired;
(2) whether, in the absence of a valid agreement, Defendant effectuated an independent
“seizure” of each class member when housing that class member as a federal civil immigration
detainee;
(3) whether, with respect to all such seizures, an I-203 Form from ICE provided probable
cause for Defendant to seize each detainee for purposes of the Fourth Amendment; and
(4) whether Defendant was required to establish independent probable cause before
housing each class member for ICE.
Doc. No. 95 at 13. 5
The First Amended Complaint alleges that Defendant violated Plaintiff’s constitutional
rights by taking custody of him without a validly executed contract. 6 Doc. No. 26 at ¶ 84. Yet
Plaintiff’s proposed class definition makes no mention of the presence or absence of a “validly
executed contract.”
Plaintiff claims that the fundamental legal issue in this case is whether, in the absence of
a valid agreement, Defendant is shielded from constitutional liability for housing a federal
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Plaintiff claims, in a footnote, that Defendant should not be housing any immigration
detainees for ICE without a valid contract. Doc. No. 95, n. 39. It is curious, therefore, that issues
3 and 4 have to do with probable cause, since under this theory, if the class covers all
immigration detainees held without a valid contract, regardless of their circumstances, then
whether there was probable cause would be irrelevant.
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For purposes of the Motion for Class Certification, Plaintiff “assumes that it was not (and
would not be) a constitutional violation for the DCSO to house immigration detainees for ICE
while a duly authorized immigration detention services contract between Metro Nashville and the
federal government is in place.” Doc. No. 95, n. 2. The First Amended Complaint alleges that a
duly authorized contract with ICE is the only means by which the Defendant can perform
immigration services otherwise reserved to the federal government. Doc. No. 26 at ¶ 124.
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immigration detainee simply because Defendant receives a slip of paper signed by an ICE agent
that states, in essence, “Detain Mr. Doe until directed otherwise.” Doc. No. 95 at n. 39. The
proposed class definition does not limit members to those being held without an agreement or
pursuant to any “slip of paper” presented to Defendant by ICE.
Plaintiff also asserts that there are two types of federal civil immigration detainees: (1)
those being held pending removal proceedings and (2) those being held after a removal
proceeding, pending deportation. Doc. No. 95, n. 1. Plaintiff was detained pending removal
proceedings. Yet, Plaintiff’s proposed class definition does not limit class members to those
being detained pending removal proceedings. 7
Plaintiff argues that he was housed by Defendant as a federal civil immigration detainee
after the agreement expired in 2012, he was detained by Defendant pursuant to an I-203 Form
issued by ICE, and he was “seized” with no independent probable cause analysis by Defendant
and no warrant from a local magistrate. Doc. No. 95 at 14. Yet the proposed class definition
mentions nothing about an agreement, an I-203 Form, the absence of a probable cause
determination, or the absence of a warrant. Plaintiff maintains that neither ICE nor Defendant
had probable cause, at the time of his arrest and detention, to arrest him for a crime. Yet there is
no language in the proposed class definition limiting class members to those for whom
Defendant made no probable cause determination or to those who had not committed a crime.
The specific circumstances under which Plaintiff was detained are not the same as the
broad circumstances alleged in his proposed class definition. Identifying potential class members
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Courts have held that an Order of Deportation or Removal from the United States
provides law enforcement with lawful authority to detain immigration detainees. See People v.
Xirum, 993 N.Y.S.2d 627, 630 (N.Y. 2014).
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like Plaintiff would involve individual determinations of whether their circumstances were like
Plaintiff’s. Plaintiff has not sufficiently established commonality for a class action.
Even if the Court found commonality for purposes of class certification, Plaintiff’s
circumstances are not typical of the proposed class members. In order for Plaintiff to show that
his claims are typical of those of the proposed class members and that he will adequately
represent those class members, Plaintiff’s claim must arise from the same event, practice, or
course of action that gives rise to the claims of other class members or Plaintiff’s claim must
arise from the same legal theory. Skeete at * 4; Graham at * 4. In other words, Plaintiff must
have been detained under the same circumstances as the proposed class members.
The Court finds that Plaintiff has failed to carry his burden to show that his claims are
“typical” of the proposed class members. The proposed class definition is not limited to the
situations alleged by Plaintiff - the absence of a valid contract between Defendant and ICE;
detainees pending removal proceedings (not deportation); detainees who were not already in jail
and being “held over” for ICE; detainees who had not committed crimes; detainees for whom
ICE provided a I-203 form but no warrant; and detainees for whom no independent probable
cause determination was made by Defendant. The proposed class definition reflects that
Plaintiff’s claims are not typical of the class. In this case, Plaintiff’s interests do not align with
those detainees whose circumstances, as indicated above, are different from his. To the extent
that any potential class members’ circumstances are like Plaintiff, any injunctive or declaratory
relief awarded in this case will benefit them as well.
CONCLUSION

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Having found that Plaintiff has not shown commonality or typicality under Fed. R. Civ. P.
23(a), the Court need not address Rule 23(b). For these reasons, Plaintiff’s Motion for Class
Certification (Doc. No. 94) is DENIED.
It is so ORDERED.

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WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE

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