Mercado et al v. Dallas County, Texas et al

Filing 53

MEMORANDUM OPINION AND ORDER denying as moot 35 MOTION to Compel and Lift Stay filed by Pablo Carranza, Carlos Alvarez Castro, Jeremias Chevez, Sergio Diaz, Miguel Flores, Mario Garibaldi, Ricardo Garza, Jose Gutierrez, Luis Hernandez, Heydy Jarqui n Jimenez, Jose Lopez-Aranda, Felipe Gon zalez Lujan, Rodolfo Marmolejo, Moises Martinez, Arturo Mercado, Javier Navarrete, Efren Perez Villegas, Miguel Rodriguez, Eleazar Saavedra, Andres Torres Cabrera, Jose Valenciano, Moises Vega Costilla; denyin g 39 MOTION to Strike 32 Additional Attachments to Main Document, 31 Amended Complaint, filed by Dallas County Texas; and granting in part and denying in part 40 Second MOTION to Dismiss Under Fed. R. Civ. P. 12(b)(1)(6)(7) filed by Dallas County Texas and 41 Amended MOTION to Dismiss Under Fed. R. Civ. P. 12(b)(1)(6)(7) filed by Dallas County Texas. (Ordered by Judge Sidney A Fitzwater on 1/17/2017) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ARTURO MERCADO, et al.,
Plaintiffs,
VS.
DALLAS COUNTY, TEXAS,
Defendant.

§
§
§
§ Civil Action No. 3:15-CV-3481-D
§ (Consolidated with Civil Action No.
§ 3:15-CV-4008-D)
§
§
§

MEMORANDUM OPINION
AND ORDER
Plaintiffs in these consolidated actions bring claims under 42 U.S.C. § 1983 against
defendant Dallas County, Texas (“Dallas County”), alleging that it violated their Fourth and
Fourteenth Amendment rights by refusing to grant them immediate release on bond and by
detaining them based on immigration holds after they were otherwise eligible for release.
Dallas County moves in a first amended motion1 to dismiss under Fed. R. Civ. P. 12(b)(1),
(6), and (7) for lack of subject matter jurisdiction, failure to state a claim upon which relief
can be granted, and failure to join an indispensable party under Rule 19. It separately moves
under Rule 12(f) to strike the exhibits to plaintiffs’ first amended complaint (“amended
complaint”). Plaintiffs move to lift the discovery stay currently in place and to compel
1

Dallas County filed its motion to dismiss on August 19, 2016 and filed its first
amended motion on August 30, 2016. In the first amended motion, Dallas County has
withdrawn the affidavit of Jim Patterson that it filed in support of its motion in order to assert
a facial attack in lieu of a factual attack on the court’s subject matter jurisdiction. In this
memorandum opinion and order, the court will refer to the amended motion as Dallas
County’s motion to dismiss. The original motion is deemed to have been superseded by the
first amended motion.

Dallas County to produce their individual immigration detainers. For the following reasons,
the court grants in part and denies in part Dallas County’s motion to dismiss, denies Dallas
County’s motion to strike, and denies plaintiffs’ motion to compel detainers and lift stay as
moot.
I
Because this case is the subject of a prior memorandum opinion and order, see
Mercado v. Dallas County, Texas, 2016 WL 3166306 (N.D. Tex. June 7, 2016) (Fitzwater,
J.) (“Mercado I”), the court will recount only the background facts and procedural history
that are pertinent to this decision.
Plaintiffs are former detainees of the Dallas County jail (“DCJ”).2 They allege that,
while they were being held in detention by Dallas County in connection with state criminal
charges, they were the subjects of federal immigration detainers issued by U.S. Immigration

2

In deciding Dallas County’s Rule 12(b)(6) motion, the court construes the amended
complaint in the light most favorable to plaintiffs, accepts as true all well-pleaded factual
allegations, and draws all reasonable inferences in plaintiffs’ favor. See, e.g., Lovick v.
Ritemoney Ltd., 378 F.3d 433, 437 (5th Cir. 2004). “The court’s review [of a Rule 12(b)(6)
motion] is limited to the [amended] complaint, any documents attached to the [amended]
complaint, and any documents attached to the motion to dismiss that are central to the claim
and referenced by the [amended] complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays
Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
A Rule 12(b)(1) motion can mount either a facial or factual challenge. See, e.g.,
Hunter v. Branch Banking & Tr. Co., 2013 WL 607151, at *2 (N.D. Tex. Feb. 19, 2013)
(Fitzwater, C.J.) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981)).
When a party makes a Rule 12(b)(1) motion without including evidence, the challenge to
subject matter jurisdiction is facial. Id. The court assesses a facial challenge as it does a
Rule 12(b)(6) motion in that it “looks only at the sufficiency of the allegations in the pleading
and assumes them to be true. If the allegations are sufficient to allege jurisdiction, the court
must deny the motion.” Id. (citation omitted) (citing Paterson, 644 F.2d at 523).
-2-

and Customs Enforcement (“ICE”), an agency of the U.S. Department of Homeland Security
(“DHS”), that requested, inter alia, that Dallas County detain them for up to 48 hours after
the time they otherwise would have been released, in order to facilitate their arrest by ICE.
According to the amended complaint, each plaintiff either attempted to post bond and was
denied pretrial release due to an ICE detainer or did not attempt to post bond because he
believed that doing so would be futile. In addition, after each plaintiff was cleared for
release,3 he was detained solely on the basis of the ICE detainer.
In their amended complaint, plaintiffs sue Dallas County4 under 42 U.S.C. § 1983.
They allege that Dallas County did not allow them immediate release on bond,5 in violation
of their Fourth and Fourteenth Amendment rights, and detained them after they were
otherwise cleared for release, without requiring probable cause to believe that they had
committed a criminal offense,6 in violation of their Fourth Amendment rights. Dallas County
moves to dismiss under Rules 12(b)(1), (6), and (7). It also moves under Rule 12(f) to strike
the exhibits attached to plaintiffs’ amended complaint. Plaintiffs oppose Dallas County’s

3

Plaintiffs allege that each plaintiff was detained after (i) Dallas County dropped all
pending criminal charges, (ii) the detainee was found innocent of all pending criminal
charges, (iii) the detainee pleaded guilty but received no additional jail time, or (iv) the
detainee pleaded guilty and served his sentence in the DCJ.
4

Although plaintiffs initially sued Dallas County Sheriff Lupe Valdez (“Sheriff
Valdez”), they do not name Sheriff Valdez as a defendant in their amended complaint.
5

All plaintiffs except Mario Garibaldi and Rodolfo Marmolejo assert the § 1983 claim
for denial of pretrial release.
6

Plaintiffs refer to this claim as their “overdetention” claim and assert it on behalf of
all plaintiffs except Sergio Diaz and Ricardo Garza.
-3-

motions and move to lift the discovery stay currently in place and to compel Dallas County
to produce plaintiffs’ ICE detainers.
II
The court first considers Dallas County’s motion to dismiss plaintiffs’ claims under
Rules 12(b)(1), in which it challenges plaintiffs’ standing.7
A
“Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by
statute, lack the power to adjudicate claims.” Stockman v. Fed. Election Comm’n, 138 F.3d
144, 151 (5th Cir. 1998). A Rule 12(b)(1) motion can mount either a facial or factual
challenge. See, e.g., Hunter v. Branch Banking & Tr. Co., 2013 WL 607151, at *2 (N.D.
Tex. Feb. 19, 2013) (Fitzwater, C. J.) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th
Cir. May 1981)). When a party makes a Rule 12(b)(1) motion without including evidence,
the challenge to subject matter jurisdiction is facial. Id. The court assesses a facial challenge
as it does a Rule 12(b)(6) motion in that it “looks only at the sufficiency of the allegations
in the pleading and assumes them to be true. If the allegations are sufficient to allege
jurisdiction, the court must deny the motion.” Id. (citation omitted) (citing Paterson, 644
F.2d at 523). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party
asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that

7

“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the
court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on
the merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam)
(citations omitted).
-4-

jurisdiction does in fact exist.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)
(per curiam) (citations omitted).
B
The standing doctrine addresses the question of who may properly bring suit in federal
court, and “is an essential and unchanging part of the case-or-controversy requirement of
Article III.”8 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). It “involves both
constitutional limitations on federal-court jurisdiction and prudential limitations on its
exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975). To establish standing, a plaintiff must
meet both constitutional and prudential requirements. See, e.g., Procter & Gamble Co. v.
Amway Corp., 242 F.3d 539, 560 (5th Cir. 2001). Dallas County contends that plaintiffs lack
constitutional standing, which requires that a litigant establish three elements: (1) an
injury-in-fact that is concrete and actual or imminent, not hypothetical; (2) a fairly traceable
causal link between the injury and the defendants’ actions; and (3) that the injury will likely
be redressed by a favorable decision. See, e.g., Bennett v. Spear, 520 U.S. 154, 162 (1997);
Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009).
C
Dallas County maintains that plaintiffs cannot meet the “causal link” requirement of
constitutional standing with respect to their “overdetention” claim because 8 C.F.R. §

8

“‘Standing is an issue of subject matter jurisdiction, and thus can be contested by a
Rule 12(b)(1) motion to dismiss.’” Little v. Tex. Attorney Gen., 2015 WL 5613321, at *2 n.5.
(N.D. Tex. Sept. 24, 2015) (Fitzwater, J.) (citation omitted), aff’d, 655 Fed. Appx. 1027 (5th
Cir. 2016).
-5-

287.7(d) provides that the local law enforcement agency “shall” maintain custody of an alien
pursuant to an ICE detainer, and plaintiffs’ alleged detention in the DCJ after they were
otherwise eligible for release was caused by the independent action of ICE in issuing the
immigration detainers, not by Dallas County. Regarding plaintiffs’ § 1983 claim based on
Dallas County’s alleged failure to allow bond, Dallas County contends that plaintiffs have
failed to allege that Dallas County or Dallas County Sheriff Lupe Valdez (“Sheriff Valdez”)
had the authority to set bond or to allow them to post bond in connection with the state
criminal charges pending against them (only the presiding judge in these cases had authority
to set bonds in connection with the state criminal charges); plaintiffs do not allege that they
actually tendered bond in the requisite amount in order to become eligible for release; and
plaintiffs have therefore failed to demonstrate a causal connection between the injury
complained of (denial of bond) that is fairly traceable to Dallas County or Sheriff Valdez and
is not the independent action of a third party not before the court (the presiding judge in each
respective criminal case).
Plaintiffs respond that Dallas County’s standing argument raises issues that should be
addressed on the merits (i.e., whether Dallas County is ultimately responsible for the
overdetention of plaintiffs and whether it was futile for plaintiffs to attempt to post bail); that
Dallas County’s treatment of plaintiffs (i.e., detaining them for 48 hours rather than almost
instantaneously transferring them to ICE custody) was a policy choice that resulted in
plaintiffs’ overdetention; that plaintiffs did not post bail because attempting to do so is
known to be futile for those with immigration holds because it will not result in immediate
-6-

release and it is Dallas County’s policy choices that caused plaintiffs’ pretrial detention,
regardless of whether plaintiffs attempted to post bail; and that Dallas County’s policies and
practices removed the possibility of pretrial release because a detainee with an immigration
hold will not be released even if he posts bail, thus nullifying the judges’ decisions to set bail
for the plaintiffs.
D
Defendants do not dispute that plaintiffs were injured for purposes of Article III
standing or that their injuries are redressable. To the extent Dallas County challenges the
“fairly traceable” element of standing, the court rejects Dallas County’s arguments,
concluding that plaintiffs have adequately pleaded the facts necessary for the court to
conclude that they have Article III standing.
“[T]he fairly traceable element of standing doctrine imposes a causation standard that
is lower than the tort standard of proximate causation.” TF-Harbor, LLC v. City of Rockwall,
Tex., 18 F.Supp.3d 810, 820 (N.D. Tex. 2014) (Fitzwater, C.J.) (citing League of United
Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 431 (5th Cir. 2011)), aff’d, 592
Fed. Appx. 323 (5th Cir. 2015); see also, e.g., Rothstein v. UBS AG, 708 F.3d 82, 91-92 (2d
Cir. 2013) (collecting cases and discussing difference between “fairly traceable” standard and
proximate causation). “[T]he fairly traceable element does not require that the defendant’s
challenged action be the last act in the chain of events leading to the plaintiff’s injury. TFHarbor, 18 F.Supp.3d at 820 (citing Bennett, 520 U.S. at 168-69).
In support of their “overdetention” claim, plaintiffs allege that ICE detainers are
-7-

“requests” that Dallas County could have refused to honor,9 and that it was Dallas County’s
decision to honor ICE detention requests that resulted in the deprivation of their Fourth
Amendment rights. The court addresses below the merits of the parties’ arguments regarding
the voluntary nature of the ICE detainers. See infra § III (C)(3). But for purposes of the
“fairly traceable” element of Article III standing, it is sufficient that plaintiffs have alleged
that ICE detainers are “requests” that Dallas County could have refused to honor, and that
Dallas County’s policy of honoring these requests and detaining individuals subject to
immigration holds after they were otherwise eligible for release violated their Fourth
Amendment rights.
In support of their denial of pretrial release claim, plaintiffs allege that, even when a
court nominally sets bail, Dallas County does not allow an opportunity for pretrial release
because if a detainee with an ICE detainer posts bail, Dallas County either continues to hold
the detainee for transfer to ICE or asks the District Attorney to petition the court to find that
the amount of bail is insufficient. In other words, plaintiffs assert that the actions of Dallas
County (not of the presiding judge who sets the bail amount) in refusing to release on bond
detainees with immigration holds results in depriving these detainees of their constitutional
rights. These allegations are sufficient to satisfy the “fairly traceable” element of Article III
standing.
As to the plaintiffs who did not post bond in the requisite amount (i.e., all but Jose

9

Plaintiff allege that “[b]ecause detainers are ‘requests,’ local law-enforcement
agencies need not respond or comply with detainers.” Am. Compl. ¶ 11.
-8-

Lopez-Aranda, Moises Martinez, and Eleazar Saavedra), it is clearly established in this
circuit that
[t]o achieve standing, a plaintiff must have suffered an injury in
fact, and generally, “must submit to the challenged policy”
before pursuing an action to dispute it. Ellison v. Connor, 153
F.3d 247, 254-55 (5th Cir. 1998). However, strict adherence to
the standing doctrine may be excused when a policy’s flat
prohibition would render submission futile. Ellison, 153 F.3d at
255 (citing Moore v. United States Dept. of Agric., 993 F.2d
1222 (5th Cir. 1993)).
LeClerc v. Webb, 419 F.3d 405, 413 (5th Cir. 2005) (some citations omitted). The plaintiffs
who did not post bond have alleged that they could have and would have done so to secure
their pretrial release, but because it “was well known that Dallas County refused immediate
release on bond for any detainee with an immigration hold,” and because they each knew that
they were the subject of an immigration hold, they did not attempt to post bond because they
believed that doing so would be futile. Am. Compl. ¶ 78. In other words, plaintiffs have
alleged that Dallas County’s well-known practice of refusing immediate release on bond for
any detainee with an immigration hold made it futile for the plaintiffs who were the subject
of these immigration holds to post bond. Based on these allegations, the court concludes that
“[t]he non-conforming plaintiffs’ [posting bond in the requisite amount] would have been a
futility for standing purposes,” LeClerc, 419 F.3d at 414, and that despite their failure to post
bond, plaintiffs have standing to pursue their denial of pretrial release claim.
The court thus concludes that plaintiffs have standing to bring their § 1983 claims, and
it denies Dallas County’s motion to dismiss plaintiffs’ claims under Rule 12(b)(1).

-9-

III
The court now turns to Dallas County’s Rule 12(b)(6) motion to dismiss plaintiffs’
constitutional claims brought under § 1983 for failure to state a claim on which relief can be
granted.
A
In deciding a Rule 12(b)(6) motion, the court evaluates the sufficiency of plaintiffs’
amended complaint “by accepting all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff[s].” Bramlett v. Med. Protective Co. of Fort Wayne, Ind., 855
F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (internal quotation marks and brackets
omitted) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)).
To survive a motion to dismiss under Rule 12(b)(6), the plaintiffs must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
554, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556); see also Twombly,
550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the
speculative level[.]”). “[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged—but it has not
‘shown’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (brackets omitted)
-10-

(quoting Rule 8(a)(2)). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements do not suffice.” Id. at 678. Furthermore, under Rule 8(a)(2),
a pleading must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Although “the pleading standard Rule 8 announces does not require
‘detailed factual allegations,’” it demands more than “labels and conclusions.” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555). “[A] formulaic recitation of the elements
of a cause of action will not do.” Id. (quoting Twombly, 550 U.S. at 555).
B
“Section 1983 provides a private right of action against parties acting ‘under color of
any statute, ordinance, regulation, custom, or usage, of any State’ to redress the deprivation
of rights secured by the United States Constitution or federal law.” Bauer v. Texas, 341 F.3d
352, 357 (5th Cir. 2003) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988)).
“Section 1983 is not itself a source of substantive rights; it merely provides a method for
vindicating already conferred federal rights.” Id. (citing Albright v. Oliver, 510 U.S. 266,
271 (1994)). To prevail on a § 1983 claim, plaintiffs “must show that: 1) the offending
conduct was committed by a person acting under color of state law; and 2) the conduct
deprived the plaintiff of rights secured by the Constitution or federal law.” Id. (citing Parratt
v. Taylor, 451 U.S. 527, 535 (1981)).
Because plaintiffs are suing Dallas County, they also must satisfy additional
requirements to recover under § 1983. A county “can be found liable under § 1983 only
where the [county] itself causes the constitutional violation at issue.” City of Canton, Ohio
-11-

v. Harris, 489 U.S. 378, 385 (1989) (citing Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S.
658, 694-95 (1978)) (addressing municipal liability). A county cannot be held liable simply
on a theory of respondeat superior. Monell, 436 U.S. at 691. Accordingly, to recover against
Dallas County under § 1983, plaintiffs must prove: “(1) an official policy (or custom), of
which (2) a policymaker can be charged with actual or constructive knowledge, and (3) a
constitutional violation whose ‘moving force’ is that policy or custom.” Valle v. City of
Houston, 613 F.3d 536, 541-42 (5th Cir. 2010) (quoting Pineda v. City of Houston, 291 F.3d
325, 328 (5th Cir. 2002)).
C
The court first considers whether plaintiffs have plausibly alleged that their Fourth
Amendment rights were violated when they were detained for up to 48 hours10 after they
were otherwise eligible for release, without probable cause to believe that a different criminal
offense had been or was being committed.
1
Dallas County contends that plaintiffs’ “overdetention” claim does not allege a
violation of the Fourth Amendment. It maintains that the touchstone of Fourth Amendment
analysis is whether probable cause exists to support a detention; that “[t]he unchallenged

10

Plaintiffs allege that “at times, Dallas County detains individuals for ICE for more
than 48 hours,” Am. Compl. ¶ 30, and that Dallas County detained plaintiffs Heydy Jarquin
Jimenez and Miguel Rodriguez for more than 48 hours for transfer to ICE. Dallas County
disputes these allegations, but does move to dismiss plaintiffs’ § 1983 claim on the basis that
holding a detainee for more than 48 hours based solely on an ICE detainer would not result
in a violation of the detainee’s constitutional rights.
-12-

existence of probable cause to support removability under the immigration laws was all that
was required to support the Plaintiffs’ immigration detainers,” D. 8/19/16 Br. 20; that
plaintiffs have not alleged that any of their immigration detainers were not supported by
probable cause; that after the plaintiffs were otherwise entitled to release from custody, no
plaintiff was detained for a period in excess of the time authorized by the federal regulation;
that if any plaintiff was detained after the time he was eligible for release on state criminal
charges, such detention was mandated by 8 C.F.R. § 287.7(d); and that even if plaintiffs had
alleged that the immigration detainers were unsupported by probable cause, they still would
not be able to state a § 1983 Fourth Amendment claim because they do not allege that the
immigration detainers were facially invalid.
Plaintiffs respond that, to detain a suspect, the Fourth Amendment requires probable
cause to believe that the suspect has committed, is committing, or is about to commit a crime;
that because immigration violations are generally civil in nature, belief that a detainee has
committed a run-of-the mill immigration violation does not meet the Fourth Amendment
probable cause standard; that although federal immigration officials may arrest based on
probable cause to believe the suspect has committed a civil immigration violation, Dallas
County cannot rely on this exception and instead must satisfy the traditional criminal
probable cause standard; that ICE requests to detain do not confer federal immigration
authority to arrest, without a warrant, those in the country illegally; that even an ICE officer
cannot arrest without a warrant unless special circumstances (not present here) exist, and ICE
officers cannot delegate powers that they cannot exercise themselves; that an ICE detainer
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suggests unlawful presence, but does not show probable cause to believe a crime has been
committed, and an ICE detainer does not therefore provide probable cause sufficient for
Dallas County to arrest plaintiffs; that ICE detainers only show probable cause of a civil
violation, not a crime; and that, even if Dallas County were permitted to hold plaintiffs, it
was not allowed to hold them for more than 48 hours, and plaintiffs should be permitted to
determine through discovery which plaintiffs were overdetained more than 48 hours.
2
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons . . . against unreasonable . . . seizures, shall not be violated [.]” U.S. Const. amend.
IV. “Pretrial detention constitutes a ‘seizure’ within the meaning of the Fourth Amendment.”
Whittington v. Maxwell, 455 Fed. Appx. 450, 458 (5th Cir. 2011) (citing Cnty. of Sacramento
v. Lewis, 523 U.S. 833, 844 (1998)).
Under the Fourth Amendment, “a fair and reliable determination of probable cause”
must be provided “as a condition for any significant pretrial restraint of liberty.” Baker v.
McCollan, 443 U.S. 137, 142 (1979) (citation omitted); see also Gerstein v. Pugh, 420 U.S.
103, 114 (1975) (“[W]e hold that the Fourth Amendment requires a judicial determination
of probable cause as a prerequisite to extended restraint of liberty following arrest.”). The
Supreme Court has defined “probable cause” as “facts and circumstances ‘sufficient to
warrant a prudent man in believing that the (suspect) had committed or was committing an
offense.’” Gerstein, 420 U.S. at 111-12 (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).
“Probable cause exists if, under the totality of circumstances, there is a fair probability that
-14-

. . . an illegal act is taking place.” United States v. Thompson, 2012 WL 1161609, at *3
(N.D. Tex. Apr. 9, 2012) (Fitzwater, C.J.) (citing United States v. Newman, 472 F.3d 233,
236-37 (5th Cir. 2006)).
The parties appear to agree that, under Fourth Amendment jurisprudence, absent
“probable cause,” Dallas County was not permitted to detain the plaintiffs after they were
otherwise eligible for release. As stated above, probable cause exists when the arresting
officer has reason to believe that the suspect has committed or is committing a criminal
offense. Gerstein, 420 U.S. at 111-12; see also Devenpeck v. Alford, 543 U.S. 146, 152
(2004) (“a warrantless arrest by a law officer is reasonable under the Fourth Amendment
where there is probable cause to believe that a criminal offense has been or is being
committed.”). Generally, a reasonable belief that the suspect has committed or is committing
a civil offense is insufficient to withstand Fourth Amendment scrutiny. See, e.g., John Doe
v. Metro. Police Dep’t of D.C., 445 F.3d 460, 469 (D.C. Cir. 2006) (“Because the four Jane
Does were arrested for a civil offense, their claims state a cause of action under the Fourth
Amendment.”); see also Allen v. City of Portland, 73 F.3d 232, 237 (9th Cir. 1995)
(“probable cause can only exist in relation to criminal conduct”); McKinney v. Fields, 2010
WL 3583017, at *6 (E.D. Mich. Sept. 10, 2010) (“The concept of probable cause makes
sense only in relation to criminal offenses . . . [and as] a result, an arrest for a ‘civil
infraction,’ . . . is ‘unreasonable.’” (citations omitted)).11

11

As the court noted in Mercado I:
-15-

The Supreme Court has characterized deportation and removal proceedings as “civil
in nature.” Padilla v. Kentucky, 559 U.S. 356, 365 (2010); see also Arizona v. United States,
___ U.S. ____, 132 S.Ct. 2492, 2505 (2012) (“As a general rule, it is not a crime for a
removable alien to remain present in the United States.”). Lower federal courts have done
so as well. See, e.g., Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451, 465 (4th Cir.
2013) (“Because civil immigration violations do not constitute crimes, suspicion or
knowledge that an individual has committed a civil immigration violation, by itself, does not
give a law enforcement officer probable cause to believe that the individual is engaged in
criminal activity.”); Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012) (“[B]ecause
mere unauthorized presence is not a criminal matter, suspicion of unauthorized presence
alone does not give rise to an inference that criminal activity is ‘afoot.’” (citation omitted)).12
In Santos the Fourth Circuit held that “absent express direction or authorization by federal
statute or federal officials, state and local law enforcement officers may not detain or arrest
an individual solely based on known or suspected civil violations of federal immigration
law.” Santos, 725 F.3d at 465.

The court’s holding today is limited to the facts alleged and does
not address whether, and to what extent, the Fourth Amendment
limits federal immigration officials (or those to whom
immigration authority has been properly delegated) from
arresting individuals suspected of immigration violations.
Mercado I, 2016 WL 3166306, at *6 n.14.
12

Dallas County agrees that “[i]mmigration proceedings are civil in nature.” Supp.
Reply 4.
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In Mercado I the court dismissed plaintiffs’ § 1983 claims, holding, inter alia, that
they had failed to plausibly allege that Dallas County lacked probable cause to believe that
they had committed a criminal offense. Mercado I, 2016 WL 3166306, at *7. In their
amended complaint, plaintiffs allege, inter alia, for each individual plaintiff, that after he was
arrested, an immigration hold was placed on his file; that ICE sent detainers requesting that
Dallas County detain each plaintiff for transfer to ICE after he would otherwise have been
released; that each plaintiff was eligible for release due to Dallas County’s dropping all
pending criminal charges, the detainee’s being found innocent of all pending criminal
charges, the detainee’s pleading guilty but receiving no additional jail time, or the detainee’s
pleading guilty and serving his sentence in the DCJ, such that Dallas County no longer had
probable cause to hold him for his original alleged criminal offense; that instead of releasing
each plaintiff, Dallas County maintained custody over him for transfer to ICE; that the ICE
detainer for each plaintiff does not indicate that he had committed or was committing a
crime13; that no plaintiff was charged or convicted of an immigration crime and or guilty of

13

Dallas County has refused to provide plaintiffs copies of the detainers that ICE sent
to Dallas County for each individual plaintiff. For some plaintiffs, the amended complaint
alleges that “the detainer does not indicate that [the individual plaintiff] had committed or
was committing a crime,” and that “[t]he form used by ICE generally indicates civil
immigration violations, not criminal violations.” Am. Compl. ¶ 54; see also id. at ¶¶ 55-63,
65-73. For plaintiffs who were arrested after June 2015, plaintiffs allege:
ICE used either the I-247N or I-247D form. Neither the I-247D
form nor the I-247N form provides probable cause of a criminal
violation. The I-247D form explicitly only claims that
“probable cause exists that the subject is a removable alien,” and
the I-247N form explicitly only claims that “DHS suspects that
-17-

an immigration crime14; that there was nothing in the IDENT database that would indicate
that the plaintiff had committed or was committing a crime; that Dallas County overdetained
each plaintiff solely based on an ICE detainer that did not indicate that he had committed or
were committing a crime; and that Dallas County held each plaintiff for transfer to ICE
without probable cause to believe that he had committed or was committing a crime. Am.
Compl. ¶¶ 54-73. The court concludes that these allegations are sufficient to allege that
Dallas County detained the plaintiffs after they were otherwise eligible for release, solely on
the basis of Dallas County’s belief that plaintiffs had committed a civil immigration offense
and without probable cause to believe they had committed a criminal offense. In other
words, plaintiffs have plausibly alleged—and Dallas County does not dispute—that Dallas

the subject is a removable alien.”
Id. at ¶¶ 56, 68, 69, 70, 71, 73. And for plaintiff Andres Torres Cabrera, the amended
complaint alleges that “[t]he detainer for Mr. Torres Cabrera only shows that he was ‘subject
to removal’ and ‘has a prior felony conviction.’” Id. at ¶ 64.
14

Plaintiffs allege, for each individual detainee other than Jose Lopez-Aranda, Javier
Navarette, Andres Torres Cabrera, Jeremias Chevez, and Jose Valenciano, that they were
innocent of any of the following immigration crimes: bringing
in and harboring aliens (8 U.S.C. § 1324); unlawful employment
of aliens (8 U.S.C. § 1324a); willful failure to disclose role as
document preparer (8 U.S.C. § 1324c(e)(1)); improper entry (8
U.S.C. § 1324(a)); marriage fraud (8 U.S.C. § 1325(c));
immigration-related entrepreneurship fraud (8 U.S.C. §
1325(d)); illegal reentry (8 U.S.C. § 1326); aiding or assisting
certain aliens to enter (8 U.S.C. § 1327); and importation of
alien for immoral purpose (8 U.S.C. § 1328).
Am. Compl. ¶ 54.
-18-

County detained them after they were otherwise eligible for release, without probable cause
to believe they had committed or were committing a criminal offense. These allegations
plausibly allege a violation of the Fourth Amendment.
3
Dallas County maintains that its conduct was justified based on the mandatory nature
of the ICE detainers. It contends that, to the extent it detained any plaintiff after he was
otherwise eligible for release, it did so “in compliance with 8 C.F.R. § 287.7(d) and the ICE
detainer,” and it “was simply complying with its duty to cooperate with ICE and follow
federal law.” Reply 6. The court concludes, however, that 8 C.F.R. § 287.7(d) does not
mandate that local law enforcement detain persons who are subject to detainers; instead, it
only requests voluntary compliance in detaining suspected aliens.
8 C.F.R. § 287.7(a) authorizes the issuance of detainers, providing, in pertinent part:
[a] detainer serves to advise another law enforcement agency
that the Department seeks custody of an alien presently in the
custody of that agency, for the purpose of arresting and
removing the alien. The detainer is a request that such agency
advise the Department, prior to release of the alien, in order for
the Department to arrange to assume custody, in situations when
gaining immediate physical custody is either impracticable or
impossible.
8 C.F.R. § 287.7(a) (emphasis added).

Section 287.7(d) states, under the heading

“Temporary detention at Department request”:
Upon a determination by the Department to issue a detainer for
an alien not otherwise detained by a criminal justice agency,
such agency shall maintain custody of the alien for a period not
to exceed 48 hours, excluding Saturdays, Sundays, and holidays
-19-

in order to permit assumption of custody by the Department.
Id. § 287.7(d).
In Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014), the Third Circuit addressed
whether immigration detainers issued pursuant to 8 C.F.R. § 287.7 impose mandatory
obligations on state and local law enforcement agencies to detain suspected aliens subject to
removal. Id. at 639. It concluded that 8 C.F.R. § 287.7 does not compel state or local law
enforcement agencies to detain suspected aliens subject to removal pending release to
immigration officials. Instead, it “merely authorizes the issuance of detainers as requests to
local [law enforcement agencies].” Id. at 645. In reaching its holding, the court first
considered the language of 8 C.F.R. § 287.7. It explained that
[t]he words “shall maintain custody,” in the context of the
regulation as a whole, appear next to the use of the word
“request” throughout the regulation. Given that the title of
§ 287.7(d) is “Temporary detention at Department request” and
that § 287.7(a) generally defines a detainer as a “request,” it is
hard to read the use of the word “shall” in the timing section to
change the nature of the entire regulation.
Id. at 640. The court then noted that, even if the use of the word “shall” in § 287.7(d) created
some ambiguity, no court of appeals had ever described ICE detainers as anything but
requests; no provisions of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et
seq., authorized federal officials to command local or state officials to detain suspected aliens
subject to removal; and all federal agencies and departments having an interest in the matter
had consistently described such detainers as requests. Id. Moreover, the court held that,
“[e]ven if there were any doubt about whether immigration detainers are requests and not
-20-

mandatory orders to local law enforcement officials, settled constitutional law clearly
establishes that they must be deemed requests.” Id. at 643. This is because “[u]nder the
Tenth Amendment, immigration officials may not order state and local officials to imprison
suspected aliens subject to removal at the request of the federal government,” and “a
conclusion that a detainer issued by a federal agency is an order that state and local agencies
are compelled to follow, is inconsistent with the anti-commandeering principle of the Tenth
Amendment.” Id. Accordingly, on the basis that ICE detainers are requests, not mandatory
orders, the Third Circuit concluded that the defendant county “was free to disregard the ICE
detainer, and it therefore [could not] use as a defense [to the plaintiff’s § 1983 claim] that its
own policy did not cause the deprivation of [the plaintiff’s] constitutional rights.” Id. at 645.
Although the Fifth Circuit has not yet addressed this issue, several district courts have
agreed with the reasoning in Galarza and have held that ICE detainers are requests that state
law enforcement agencies are not required to follow. See, e.g., Flores v. City of Baldwin
Park, 2015 WL 756877, at *4 (C.D. Cal. Feb. 23, 2015) (“federal law leaves compliance
with immigration holds wholly within the discretion of states and localities.”); Lucatero v.
Haynes, 2014 WL 6387560, at *2 (W.D.N.C. Nov. 14, 2014) (“As the regulation itself
explains, a Form I-247 detainer is merely a request, not a directive, for law enforcement
agencies to inform the [DHS] of a pending release date for the person for whom a detainer
has been issued.”); Moreno v. Napolitano, 2014 WL 4911938, at *5 (N.D. Ill. Sept. 30, 2014)
(“[T]his Court is persuaded that state and local [law enforcement agencies] are not legally
required to comply with I-247 detainers.”); Villars v. Kubiatowski, 45 F.Supp.3d 791, 802
-21-

(N.D. Ill. 2014) (“The Third Circuit’s well-reasoned opinion [in Galarza] and the plain
language of the detainer itself persuade the Court that the [defendants] were not obligated to
detain [the plaintiff] pursuant to the ICE detainer.”); Miranda-Olivares v. Clackamas Cnty.,
2014 WL 1414305, at *8 (D. Or. Apr. 11, 2014) (“[T]his court concludes that 8 C.F.R. §
287.7 does not require [law enforcement agencies] to detain suspected aliens upon receipt
of a Form I-247 from ICE and that the Jail was at liberty to refuse ICE’s request to detain
[the plaintiff] if that detention violated her constitutional rights. Accordingly, the County
cannot avail itself of the defense that its practice and custom did not cause the allegedly
unlawful detention”).
Absent Fifth Circuit authority to the contrary, the court will follow Galarza and the
district courts that rely on its reasoning or otherwise reach the same result. Under Galarza
although 8 C.F.R. § 287.7(d) uses the word “shall,” “the word ‘shall’ serves only to inform
an agency that otherwise decides to comply with an ICE detainer that it should hold the
person no longer than 48 hours.” Galarza, 745 F.3d at 640. 8 C.F.R. § 287.7 does not
compel state or local law enforcement agencies to detain suspected aliens subject to removal
pending release to immigration officials, but “merely authorizes the issuance of detainers as
requests to local [law enforcement agencies].” Id. at 645. Accordingly, the court rejects
Dallas County’s argument that “if any of the Plaintiffs was detained in the DCJ after the time
he was eligible for release on state criminal charges it was mandated by [8 C.F.R. §
287.7(d)].” D. 8/19/16 Br. 21.

-22-

4
The court also declines to accept Dallas County’s argument that plaintiffs have failed
to state a claim because they have not alleged “that the immigration detainers were facially
invalid.” Id. Dallas County maintains that, when a law enforcement official detains a person
on the basis of some form of legal process authorizing the detention, the official’s actions do
not violate the Fourth Amendment so long as the process relied on is facially valid. The two
Fifth Circuit cases on which Dallas County relies, however, are not factually on point.15
In Mays v. Sudderth, 97 F.3d 107 (5th Cir. 1996), the arresting officer acted in
compliance with a facially valid court order. Id. at 113 (holding that official acting within
scope of his authority is entitled to absolute immunity when he acts in compliance with
facially valid judicial order issued by court acting within its jurisdiction). In Duckett v. City
of Cedar Park, Texas, 950 F.2d 272 (5th Cir. 1992), the arresting officer was acting pursuant
to a facially valid warrant. Id. at 280 (holding that facially valid warrant provided probable
cause to arrest suspect, and officer who made arrest pursuant to facially valid warrant was
entitled to qualified immunity). The present case involves neither a facially valid court order

15

Dallas County also cites Chavez v. City of Petaluma, 2015 WL 6152479, at *6, 11
(N.D. Cal. Oct. 20, 2015), Gardner v. California Highway Patrol, 2015 WL 4456191, at *16
(E.D. Cal. July 20, 2015), and Puccini v. United States, 1996 WL 556987, at *1 (N.D. Ill.
Sept. 26, 1996), for the proposition that, when a law enforcement official detains a person
on the basis of some form of legal process authorizing the detention—including detainers or
holds issued by non-judicial entities—the official’s actions do not violate the Fourth
Amendment so long as the process relied upon is facially valid. These cases, however, are
not binding on this court. Nor are they factually persuasive because none involves detention
on the basis of a non-binding ICE detainer that does not provide probable cause to believe
that the detainee has committed a criminal offense.
-23-

nor a facially valid warrant. Instead, plaintiffs allege that they were detained “solely based
on an ICE detainer,” Am. Compl. ¶ 54, that, unlike a warrant, did not provide Dallas County
probable cause to believe that the plaintiffs had committed or were committing a criminal
offense. And unlike a facially valid court order, which leaves the official charged with
executing it “no choice but to do so,” Mays, 97 F.3d at 113, an ICE detainer is a “request”
that Dallas County was at liberty to ignore.16 Thus although plaintiffs have not alleged that
the ICE detainers were facially invalid, they have plausibly pleaded that, on their face, the
ICE detainers did not provide Dallas County sufficient probable cause to withstand Fourth
Amendment scrutiny. The court concludes above that plaintiffs have plausibly alleged a
violation of their Fourth Amendment rights. Plaintiffs’ failure to allege that the ICE
detainers were facially invalid does not change this conclusion.17
16

Mays and Duckett are also distinguishable because they address an arresting officer’s
ability to rely on a facially valid court order/warrant in the context of the doctrines of
absolute immunity and qualified immunity.
17

In their first supplemental reply to plaintiffs’ response, Dallas County makes the
following arguments: (1) the detainer authority of DHS arises from the Secretary’s power
under 8 U.S.C. § 1103(a)(3) and from DHS’s general authority to arrest and detain
individuals subject to removal pursuant to §§ 236 and 287 of the INA; (2) under 8 U.S.C. §
1252c, DHS may delegate arrest authority to state and local officials; (3) detention by state
and local government officials pursuant to a federal immigration detainer is authorized by
federal law, including 8 U.S.C. §§ 1357(g)(10), which states that a formal agreement is not
necessary for “any officer or employee of a State or political subdivision of a State . . . to
cooperate with the Attorney General in the identification, apprehension, detention, or
removal of aliens not lawfully present in the United States”; (4) state and local law
enforcement agencies may rely on a detainer as a matter of comity and pursuant to the
“collective knowledge doctrine”; and (5) immigration proceedings are civil in nature and
therefore the various protections that apply in the context of a criminal trial do not apply in
the immigration context. Dallas County did not raise any of these grounds for dismissal in
its initial motion, however, and this court has long declined to consider arguments raised for
-24-

D
The court next considers Dallas County’s challenge to plaintiffs’ § 1983 substantive
due process claim based on Dallas County’s alleged refusal to allow plaintiffs pretrial release
on bond.
1
Dallas County contends that, to the extent plaintiffs’ § 1983 claim based on the denial
of pretrial release on bond is brought under the Due Process Clause of the Fourteenth
Amendment, this claim must be dismissed because plaintiffs have also invoked the Fourth
Amendment, which provides an explicit textual source of constitutional protection against
unreasonable seizures by governmental officials, and the Fourth Amendment, rather than the
more generalized notion of substantive due process, must be the exclusive guide for
analyzing plaintiffs’ claims under § 1983.
Plaintiffs respond that freedom from pretrial detention is a fundamental right protected
by the Due Process Clause of the Fourteenth Amendment; that due process protections are
not duplicative of those provided by the Fourth Amendment; that under the decisions in
United States v. Salerno, 481 U.S. 739 (1987), and Lopez-Valenzuela v. Arpaio, 770 F.3d 772

the first time in a reply brief. See, e.g., Jacobs v. Tapscott, 2006 WL 2728827, at *7 (N.D.
Tex. Sept. 25, 2006) (Fitzwater, J.) (“[T]he court will not consider an argument raised for the
first time in a reply brief.” (citing Senior Unsecured Creditors’ Comm. of First RepublicBank
Corp. v. FDIC, 749 F. Supp. 758, 772 (N.D. Tex. 1990) (Fitzwater, J.))), aff’d, 277 Fed.
Appx. 483 (5th Cir. 2008). To the extent that Dallas County is doing anything more than
merely responding to plaintiffs’ arguments in their opposition brief, the court declines to
consider these arguments as new grounds supporting dismissal.
-25-

(9th Cir. 2014) (en banc), Dallas County’s policy of denying pretrial release for those with
immigration holds offends due process, because Dallas County does not use “narrowly
focused,” “carefully limited exceptions” to the general prohibition against pretrial detention
before a finding of guilt, P. Br. 21 (brackets and citations omitted); that Dallas County’s
practice of refusing immediate pretrial release on bond after Dallas County courts set bail
violates due process by imposing punishment before trial; and that Dallas County also
offends due process by ignoring the liberty interest created by Tex. Code Crim. Proc. Ann.
Art. 17.29,18 which guarantees immediate release on bond.
2
In Mercado I the court sua sponte dismissed plaintiffs’ § 1983 substantive due process
claim based on the denial of pretrial release on bond, holding that plaintiffs failed to
plausibly allege that Dallas County or Sheriff Valdez had refused to allow them to post bond
and secure their release. Mercado I, 2016 WL 3166306, at *8. The court also dismissed
plaintiffs’ § 1983 substantive due process claim based on Dallas County and Sheriff Valdez’s
policy of honoring ICE requests to detain, and detaining individuals subject to an
immigration hold even after they were otherwise cleared for release. As the court explained:
“Where a particular Amendment ‘provides an explicit textual
source of constitutional protection’ against a particular sort of
government behavior, ‘that Amendment, not the more
generalized notion of “substantive due process,” must be the

18

Tex. Code Crim. Proc. Ann. Art. 17.29(a) provides: “[w]hen the accused has given
the required bond, either to the magistrate or the officer having him in custody, he shall at
once be set at liberty.”
-26-

guide for analyzing these claims.’” Albright, 510 U.S. at 273
(quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).
Plaintiffs’ remaining substantive due process claim is based on
the allegation that Dallas County honored ICE requests to
detain, and detained, individuals subject to immigration holds,
even after those individuals were otherwise cleared for release.
This is the same factual basis that plaintiffs rely on to support
their Fourth Amendment claim. As explained above, the Fourth
Amendment protects against “unreasonable searches and
seizures” by the government. It is undisputed that pretrial
detention constitutes a “seizure” within the meaning of the
Fourth Amendment. Because the Fourth Amendment protects
against the type of conduct plaintiffs allege in support of their
substantive due process claim, this claim is “covered by” the
Fourth Amendment and should be analyzed only under that
constitutional provision.
Mercado I, 2016 WL 3166306, at *9 (some citations omitted).
In their amended complaint, plaintiffs plead their substantive due process claim only
in connection with their allegation that they were denied pretrial release on bond. In support
of this claim, plaintiffs allege that “Defendants imposed pretrial detention on Plaintiffs,
infringing the Plaintiffs’ strong interest in liberty. This intentional or reckless pretrial
detention is not narrowly tailored to serve a compelling state interest.”19 Am. Compl. ¶ 104.
As in Mercado I, however, the factual basis on which plaintiffs rely in support of their due
process claim—i.e., that Dallas County denied them the opportunity for pretrial release on
bond—is the same factual basis that they rely on to support their Fourth Amendment claim.

19

Plaintiffs acknowledge in footnote 6 of their amended complaint that, although they
have repleaded their “pretrial-release claims” under both the Fourth Amendment and the Due
Process Clause, they “do not expect that the due process claims will survive if the Court
reapplies the reasoning in its prior opinion.” Am. Compl.¶ 104 n.6.
-27-

Plaintiffs allege that the Fourth Amendment prevents arrests and seizures, absent probable
cause; that Dallas County must allow an opportunity for pretrial release that satisfies the
Fourth Amendment; and that “[i]f Dallas County had allowed bail, Dallas County would
have needed to release Plaintiffs if Plaintiffs had paid bail, as Dallas County had no other
probable cause to believe that any Plaintiff had committed or was committing criminal
activity[.]”20 Id. ¶ 107. Accordingly, the court holds, as it did in Mercado I, that “[b]ecause
the Fourth Amendment protects against the type of conduct plaintiffs allege in support of
their substantive due process claim, this claim is ‘covered by’ the Fourth Amendment and
should be analyzed only under that constitutional provision.” Mercado I, 2016 WL 3166306,
at *9 (citation omitted). The court therefore grants Dallas County’s motion to dismiss
plaintiffs’ substantive due process claim for the reasons explained in Mercado I and here.
Id.
E
The court now turns to Dallas County’s remaining arguments directed at plaintiffs’
§ 1983 claim based on the allegation that Dallas County’s alleged refusal to allow them
pretrial release on bond violated their constitutional rights.
1
Dallas County argues that plaintiffs’ Fourth Amendment “failure to allow bond claim”

20

Plaintiffs clarify in their response their belief that Dallas County violated their
Fourth Amendment rights by denying them pretrial release on bond (i.e., by further detaining
or “seizing” them), without probable cause to believe they had committed or were
committing a crime.
-28-

fails because they have not alleged that Dallas County or Sheriff Valdez had the authority
to set or allow them to post bonds in connection with the state criminal charges pending
against them; plaintiffs do not allege that any of them actually posted bond in the requisite
amount to become eligible for release on bond, and, absent specific allegations that the
plaintiffs actually posted bonds, none of them had a right to be released regardless of the
existence of an immigration detainer; and the uncontroverted evidence submitted by Dallas
County establishes that none of the plaintiffs was denied bond because of an immigration
detainer or detained after he posted bond.
Plaintiffs respond that they have plausibly alleged that Dallas County does not allow
immediate pretrial release of those with immigration holds, regardless of whether they post
bail; that accepting the pleaded facts as true, plaintiffs have plausibly alleged that Dallas
County would have refused immediate release for any plaintiff who may have posted bail;
that certain plaintiffs allege that they attempted to post bail but were rebuffed; and that for
the remaining plaintiffs—all of whom have alleged a belief that posting bail would be
futile—the court should not require plaintiffs to attempt to post bail to bring suit.
2
Plaintiffs have alleged that Jose Lopez-Aranda “attempted to pay bond, and Dallas
County would not accept the bond,” Am. Compl. ¶ 83; that Moises Martinez “attempted to
pay bond, but Dallas County would not allow Mr. Martinez to do so, due to the immigration
hold,” id. at ¶ 84; and that Eleazar Saavedra “attempted to pay bail, but Dallas County would
not allow him to because of the pending immigration hold,” id. ¶ 88. For each remaining
-29-

plaintiff, they allege that bail was nominally set for the plaintiff, showing that he was eligible
for pretrial release; that the plaintiff did not attempt to post bond because he believed it was
futile to do so; that “[i]t was well known that Dallas County refused immediate release on
bond for any detainee with an immigration hold”; that the plaintiff knew he had an
immigration hold; and that but for Dallas County’s practices of refusing immediate release
on bond for any detainee with an immigration hold, the plaintiff “could have and would have
secured a bond to ensure pretrial release.” Id. ¶ 78; see also ¶¶ 79-82, 85-87, 89-97. The
court has already concluded that, under the futility doctrine, plaintiffs have standing to bring
their § 1983 claim based on the denial of pretrial release. See infra § II (D). The court
concludes that the allegations in the amended complaint are also sufficient to plausibly allege
that Dallas County had a widespread and widely known practice of refusing to release on
bond pretrial detainees with immigration holds, that bond was set for each of the plaintiffs,
and that, despite bond being set, each plaintiff was denied pretrial release on bond either
because (i) he attempted to post bond and it was refused, or (ii) any attempt to post bond
would have been futile due to Dallas County’s widely known practice of refusing to release
on bond pretrial detainees who were subject to immigration holds.21

21

Defendants contend that “the uncontroverted evidence submitted by Dallas County
establishes that (1) none of the Plaintiffs was denied bond because of an immigration
detainer; or (2) detained after he posted bond.” D. 8/19/16 Br. 24-25 (citing D. App. 3). But
the court cannot rely on evidence outside of the complaint and not referenced by it without
converting Dallas County’s motion into a motion for summary judgment. See Sivertson v.
Clinton, 2011 WL 4100958, at *3 n.4 (N.D. Tex. Sept. 14, 2011) (Fitzwater, C.J.). The court
declines to convert Dallas County’s motion to dismiss into a summary judgment motion.
-30-

Dallas County does not otherwise argue that plaintiffs’ denial of pretrial release on
bond claim fails to allege a constitutional violation. Accordingly, the court will assume, for
purposes of this motion, that plaintiffs have adequately pleaded a violation of the Fourth
Amendment as a result of Dallas County’s practice of denying pretrial release on bond.
F
Dallas County contends that plaintiffs have failed to plead a policymaker and an
official policy or practice that served as the moving force behind the alleged constitutional
violation.
1
A municipality is a “person” subject to suit under § 1983 under certain circumstances.
See Monell, 436 U.S. at 690. Although a municipality cannot be held liable simply on a
theory of respondeat superior, id. at 691, it can be held liable if a deprivation of a
constitutional right was inflicted pursuant to an official policy or custom, Piotrowski v. City
of Houston, 237 F.3d 567, 579 (5th Cir. 2001). Municipal liability requires proof of three
elements: “(1) an official policy (or custom), of which (2) a policymaker can be charged with
actual or constructive knowledge, and (3) a constitutional violation whose ‘moving force’
is that policy or custom.” Valle, 613 F.3d at 541-42 (quoting Pineda, 291 F.3d at 328).
The first element requires that plaintiffs adequately plead an official policy or custom.
“[A] policy can be shown through evidence of an actual policy, regulation, or decision that
is officially adopted and promulgated by lawmakers or others with policymaking authority.”
Id. at 542 (citing Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003)).
-31-

Although a “single decision by a policy maker may, under certain circumstances, constitute
a policy for which a municipality may be liable[,] . . . this ‘single incident exception’ is
extremely narrow and gives rise to municipal liability only if the municipal actor is a final
policymaker.” Id. (citations, brackets, and some internal quotation marks omitted). A
custom is “a persistent, widespread practice of City officials or employees, which, although
not authorized by officially adopted and promulgated policy, is so common and well-settled
as to constitute a custom that fairly represents municipal policy.” Piotrowski, 237 F.3d at
579 (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc) (per
curiam)).
To satisfy the second element, plaintiffs must adequately plead the identity of a
policymaker with “final policymaking authority.” Rivera v. Hous. Indep. Sch. Dist., 349 F.3d
244, 247 (5th Cir. 2003) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)).
“A ‘policymaker’ must be one who takes the place of the governing body in a designated
area of city administration.” Webster, 735 F.2d at 841 (citing Bennett v. City of Slidell, 728
F.2d 762, 769 (5th Cir. 1984) (en banc)). “City policymakers not only govern conduct; they
decide the goals for a particular city function and devise the means of achieving those goals.
. . . [T]hey are not supervised except as to the totality of their performance.” Bennett, 728
F.2d at 769. “[The court’s] analysis must also take into account the difference between final
decisionmaking authority and final policymaking authority, a distinction that this circuit
recognized as fundamental[.] . . . [D]iscretion to exercise a particular function does not
necessarily entail final policymaking authority over that function.” Bolton v. City of Dallas,
-32-

Tex., 541 F.3d 545, 548-49 (5th Cir. 2008) (per curiam) (citations omitted); see also Jett v.
Dall. Indep. Sch. Dist., 7 F.3d 1241, 1246-47 (5th Cir. 1993) (explaining distinction between
final policymaking authority and mere decisionmaking).
The third element requires that plaintiffs adequately plead that the municipal policy
or custom was the “moving force” of the constitutional deprivation, which requires a “high
threshold of proof.” Piotrowski, 237 F.3d at 580 (citing Monell, 436 U.S. at 694). Plaintiffs
“must show that the municipal action was taken with the requisite degree of culpability and
must demonstrate a direct causal link between the municipal action and the deprivation of
federal rights.” Valle, 613 F.3d at 542 (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S.
397, 404 (1997)). Plaintiffs therefore “must demonstrate that a municipal decision reflects
deliberate indifference to the risk that a violation of a particular constitutional or statutory
right will follow the decision.” Id. (quoting Bd. of Cnty. Comm’rs of Bryan Cnty., Okla., 520
U.S. at 411). Simple or even heightened negligence is insufficient to meet the deliberate
indifference requirement. Piotrowski, 237 F.3d at 579 (quoting Bd. of Cnty. Comm’rs, 520
U.S. at 407).
2
Dallas County’s argument with respect to the additional requirements for municipal
liability is as follows:
Here the plaintiffs have failed to articulate any specific facts to
establish that an official governmental policy of Dallas County
promulgated by an official county policy maker was the moving
force behind or actual cause of the violation of their
constitutional rights. . . . The Plaintiffs have also failed to show
-33-

that the alleged governmental policy was adopted with
deliberate indifference to the known or obvious fact that a
constitutional violation would result from complying with the
federal regulation under the immigration detainers. Because the
Plaintiffs have failed to plead any facts upon which the Court
might reasonably infer that an official Dallas County policy, as
defined above, was the moving force behind the violation of
their constitutional rights under the Fourth Amendment their
claims against it should also be dismissed for this reason.
D. 8/19/16 Br. 23. With respect to plaintiffs’ claim for failure to allow bond, Dallas County
argues:
Finally the Plaintiffs have also failed to show that a Dallas
County policy, promulgated by an official policymaker with
deliberate indifference to their constitutional rights, denied them
bond or detained them after they made bail or were otherwise
cleared for release. . . . Because the Plaintiffs have also failed
to plead specific facts upon which this Court might reasonably
infer that an official Dallas County policy was the moving force
behind the violation of their constitutional rights under the
Fourth Amendment in this regard, this claim must also fail as a
matter of law.
Id. at 25. The court disagrees.
In support of their denial of pretrial release claim, plaintiffs allege that Dallas County
had a widespread policy and practice of refusing immediate release on bond for detainees
with immigration holds and that this policy is the “moving force” for their § 1983 claim.
They further allege that “Dallas County and Sheriff Valdez are responsible for these policies
and practices,” and that, in particular, “Sheriff Valdez oversees and is responsible for Dallas
County’s decisions on (i) whether to refuse bond posted for those with immigration holds,
and (ii) whether to detain individuals with immigration holds that are otherwise cleared for

-34-

release.” Am. Compl. ¶ 108. In support of their “overdetention” claim, plaintiffs allege that
Dallas County had a policy and practice of detaining individuals with immigration holds who
have otherwise been cleared for release, without requiring probable cause to believe that a
different criminal offense has been or is being committed or other authority that would
satisfy the Fourth Amendment, and that this policy was the “moving force” for plaintiffs’ §
1983 claim. In addition, they allege that “Dallas County and Sheriff Valdez are responsible
for the policy,” and that “[i]n particular, Sheriff Valdez oversees and is responsible for Dallas
County’s decision on whether to detain individuals with immigration holds that are otherwise
cleared for release.” Id. ¶ 117. These allegations are sufficient at the Rule 12(b)(6) stage to
plausibly allege the elements for municipal liability. Moreover, this court has explained that
“it is not sufficient in the context of [a] motion[] to dismiss for defendant[] to effectively shift
to the court the burden of scrutinizing the amended complaint to determine whether there are
deficiencies with respect to” plaintiffs’ allegations. Clapper v. Am. Realty Inv’rs, Inc., 2015
WL 3504856, at *13 (N.D. Tex. June 3, 2015) (Fitzwater, J.). “Generally, a movant under
Rule 12(b)(6) . . . must show why the pleading being challenged is insufficient rather than
simply point to the pleading and assert that it is defective.” Id. at *13 n.21. Dallas County
has failed to point to any specific deficiency in the amended complaint with respect to
plaintiffs’ pleading of municipal liability under § 1983. Accordingly, the court denies Dallas
County’s motion to dismiss the amended complaint on this basis.
In sum, the court concludes that Dallas County is not entitled to a dismissal of
plaintiffs’ § 1983 claim based on an alleged violation of the Fourth Amendment.
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Accordingly, the court denies Dallas County’s motion to dismiss this claim.
IV
Dallas County moves to dismiss plaintiffs’ amended complaint under Rule 12(b)(7),
contending that, under Rule 19(a),22 the United States is a required and indispensable party
to this action, and that it may not feasibly be joined because it is entitled to sovereign
immunity.
Rule 12(b)(7) enables a party to move for dismissal for “failure to join a party under
Rule 19.” “‘Once an issue of compulsory joinder is raised, the court initially must determine
whether the absent person’s interest in the litigation is sufficient to satisfy one or more of the
tests set out in the first sentence of Rule 19(a).’” Johnston v. Capital Accumulation Plan of
Chubb Corp., 1998 WL 907002, at *4 (N.D. Tex. Dec. 17, 1998) (Fitzwater, J.) (quoting 7
Charles A. Wright, et al., Federal Practice & Procedure § 1604, at 40 (2d ed. 1986)).
If joinder is warranted, then the person will be brought into the
lawsuit. But if such joinder would destroy the court’s
jurisdiction, then the court must determine under Rule 19(b)

22

Rule 19(a) provides, in pertinent part:
A person who is subject to service of process and whose joinder
will not deprive the court of subject-matter jurisdiction must be
joined as a party if: (A) in that person’s absence, the court
cannot accord complete relief among existing parties; or (B) that
person claims an interest relating to the subject of the action and
is so situated that disposing of the action in the person’s absence
may: (i) as a practical matter impair or impede the person’s
ability to protect the interest; or (ii) leave an existing party
subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations because of the interest.
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whether to press forward without the person or to dismiss the
litigation. Factors to consider under Rule 19(b) include “(1)
prejudice to an absent party or others in the lawsuit from a
judgment; (2) whether the shaping of relief can lessen prejudice
to absent parties; (3) whether adequate relief can be given
without participation of the party; and (4) whether the plaintiff
has another effective forum if the suit is dismissed.”
HS Res., Inc. v. Wingate, 327 F.3d 432, 439 (5th Cir. 2003) (footnotes omitted) (quoting
Cornhill Ins. PLC v. Valsamis, Inc., 106 F.3d 80, 84 (5th Cir. 1997)); see also Johnston,
1998 WL 907002, at *4 (“The ‘[joinder] decision has to be made in terms of the general
policies of avoiding multiple litigation, providing the parties with complete and effective
relief in a single action, and protecting the absent persons from the possible prejudicial effect
of deciding the case without them.’” (alteration in original) (citation omitted)). The court
concludes that the reasons that Dallas County offers in support of joinder fail to show that
the United States should be joined as a party under Rule 19.
Dallas County contends that the regulation at issue here, 8 C.F.R. § 287.7, is
ambiguous because subsection (a) states that an ICE detainer is a “request” while subsection
(d) provides that the local law enforcement agency “shall” maintain custody of the alien
pursuant to the ICE detainer. It argues that the detention of any plaintiff in the DCJ after the
time he was otherwise eligible for release was mandated by 8 C.F.R. § 287.7(d); that
challenges to the federal regulation itself must be addressed to the United States, which has
not been joined as a party to this suit; that the United States cannot be feasibly joined because
it is entitled to sovereign immunity from the plaintiffs’ claims for damages; that a judgment
rendered in the absence of the United States will cause substantial prejudice to the United
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States if the court’s decision creates doubt as to the validity of the federal regulation and its
applicability to state and local law enforcement agencies that detain aliens pursuant to
immigration holds, and will cause substantial prejudice to Dallas County because the
decision may expose it to multiple lawsuits in different courts with the threat of inconsistent
liabilities and obligations for detaining individuals identified as aliens, and subject to federal
immigration detainers; that the court cannot fashion an adequate remedy because there is no
judgment that will effectively settle the plaintiffs’ claims without causing substantial
prejudice to both the United States and Dallas County; and that plaintiffs have adequate
remedies available to them if this action is dismissed for non-joinder, including seeking postdeprivation compensatory relief against the individual ICE agents for wrongful issuance of
immigration detainers.
The court rejects these arguments. It has already concluded, see supra § III (C)(3) that
8 C.F.R. § 287.7 is unambiguous and does not require Dallas County to detain individuals
subject to an ICE detainer. Accordingly, there is no reason that the United States should be
joined as a necessary party under Rule 19. Moreover, there is no reason that complete relief
cannot be accorded among those already parties, and none of the general policy concerns
discussed above is present in this action.
The court therefore denies Dallas County’s motion to dismiss under Rule 12(b)(7).
V
Dallas County moves under Rule 12(f) to strike the exhibits to plaintiffs’ amended
complaint, contending that these exhibits are not permissible as written instruments under
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Rule 10(c) and should be stricken from the record.
“The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Rule 12(f). The decision to grant a motion
to strike is within the court’s discretion. Jacobs v. Tapscott, 2004 WL 2921806, at *2 (N.D.
Tex. Dec. 16, 2004) (Fitzwater, J.), aff’d on other grounds, 277 Fed. Appx. 483 (5th Cir.
2008). Motions to strike a portion of a pleading are generally viewed with disfavor and are
seldom granted, because these motions seek a “drastic remedy” and are often “sought by the
movant simply as a dilatory tactic.” FDIC v. Niblo, 821 F.Supp. 441, 449 (N.D. Tex. 1993)
(Cummings, J.) (citing Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 206 F.2d
862, 868 (5th Cir. 1962)). “Matter will not be stricken from a pleading unless it is clear that
it can have no possible bearing upon the subject matter of the litigation. If there is any doubt
as to whether under any contingency the matter may raise an issue, the motion should be
denied.” Pan Am. Life Ins. Co. v. Blanco, 311 F.2d 424, 428 n.13 (5th Cir. 1962) (citation
omitted); see also Florance v. Buchmeyer, 500 F.Supp.2d 618, 645 (N.D. Tex. 2007)
(Ramirez, J.) (stating that Rule 12(f) motions “are viewed with disfavor” and should be
granted “only when the pleading to be stricken has no possible relation to the controversy.”
(citations omitted)), rec. adopted, 500 F.Supp.2d 618 (N.D. Tex. 2007) (Lynn, J.).
Dallas County has not shown that the exhibits to plaintiffs’ amended complaint are
redundant, scandalous, immaterial, or impertinent to the controversy itself. See United States
v. Coney, 689 F.3d 365, 379 (5th Cir. 2012) (concluding that district court did not abuse its
discretion in denying motion to strike where “disputed statements were material and pertinent
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to the underlying controversy”).23 Accordingly, Dallas County’s Rule 12(f) motion to strike
is denied.
VI
The court denies as moot plaintiffs’ motion to compel Dallas County to provide them
with copies of their ICE detainers. On March 3, 2016, the court granted defendants’ motion
to stay discovery, staying “all initial disclosures and discovery . . . pending the court’s
decisions on defendants’ motions to dismiss and on whether defendant Sheriff Lupe Valdez
is entitled to qualified immunity.” Mar. 3, 2016 Order at 1. Plaintiffs do not name Sheriff
Valdez as a defendant in their amended complaint, and the court is deciding today all
pending motions to dismiss. Accordingly, as of the date this memorandum opinion and order
is filed, the discovery stay is lifted. Plaintiffs’ motion to compel is therefore denied as moot.
*

*

*

For the foregoing reasons, Dallas County’s motion to dismiss plaintiffs’ amended
complaint under Rules 12(b)(1) and 12(b)(7) is denied; its motion to dismiss plaintiffs’
complaint under Rule 12(b)(6) is granted to the extent of dismissing plaintiffs’ substantive
due process claim, but is otherwise denied; its motion under Rule 12(f) to strike the exhibits
to plaintiffs’ amended complaint is denied; and plaintiffs’ motion to compel detainers and

23

The court has not relied on any of the exhibits to plaintiffs’ amended complaint in
deciding Dallas County’s motions to dismiss.
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lift stay is denied as moot.
SO ORDERED.
January 17, 2017.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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