Turner v. UNITED STATES OF AMERICA et al

Filing 23

MEMORANDUM AND ORDER (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHNISA TURNER, individually,
and JOHNISA TURNER, as next
of friend of JANE DOE, a minor,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
et al.,
Defendants.

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CIVIL ACTION NO. 4:13-cv-932

MEMORANDUM AND ORDER
This civil rights case arises from the United States’ deportation of a fourteen
year old who intentionally and consistently provided a false name to local Houston
law enforcement officers and thereafter to immigration authorities under oath at a live
hearing, leading the immigration authorities to conclude that she was a citizen of
Colombia and not a citizen of the United States.
The case is before the Court on the Motion to Dismiss of Defendants James T.
Hayes (“Hayes”), Kenneth Landgrebe (“Landgrebe”), John Abraham (“Abraham”),
and Rolando Cortez (“Cortez,” and, together with Hayes, Landgrebe, and Abraham,
the “Individual Defendants”) [Doc. # 11] and the Motion to Dismiss of Defendants
United States of America, Eric H. Holder, Jr. (“Holder”), Janet Napolitano

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(“Napolitano”), Juan P. Osuna (“Osuna”), and John Sandweg1 (“Sandweg,” and,
together with Holder, Napolitano, and Osuna, the “Official-Capacity Defendants”)2
[Doc. # 12].3 Plaintiffs Johnisa Turner (“Turner”) and Johnisa Turner as next friend
of Jane Doe (“JD,” and, together with Turner, “Plaintiffs”) have responded to both
motions.4 The motions are ripe for decisions. Having considered the parties’ briefing,
the applicable legal authorities, and all matters of record, the Court grants
Defendants’ Motions to Dismiss. Plaintiffs’ causes of action against the Individual
Defendants (Counts 1, 2 and 3) are dismissed with prejudice. Plaintiffs’ causes of
action against the United States (Counts 4, 5 and 6)5 and Plaintiffs’ request for

1

John Sandweg has replaced John T. Morton (“Morton”) as Director of U.S.
Immigration and Customs Enforcement (“ICE”). Accordingly, the Court substitutes
Sandweg (in place of Morton) as an official-capacity defendant in this case. See FED. R. CIV.
P. 25(d); Kentucky v. Graham, 473 U.S. 159, 166 n.11 (1985) (“In an official-capacity action
in federal court, death or replacement of the named official will result in automatic
substitution of the official’s successor in office.”).
2

The United States, Individual Defendants, and Official-Capacity Defendants
collectively will be referred to as “Defendants.”
3

The Court will refer to the Motion to Dismiss of the Individual Defendants [Doc.
# 11] as “Individual Defendants’ Motion” and the Motion to Dismiss of the United States and
the Official-Capacity Defendants [Doc. # 12] as “Official-Capacity Defendants’ Motion.”
4

Plaintiffs filed a Response to the Individual Defendants’ Motion [Doc. # 18], to
which the Individual Defendants filed a Reply [Doc. # 21]. Plaintiffs also filed a Response
to the Official-Capacity Defendants’ Motion [Doc. # 17], to which the United States and the
Official-Capacity Defendants filed a Reply [Doc. # 22].
5

As the Court explains below, see infra Part IV.B, no causes of action have been
alleged against the Official-Capacity Defendants.
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injunctive relief against the Official-Capacity Defendants are dismissed without
prejudice.
I.

BACKGROUND
On April 2, 2011, Jane Doe (“JD”), at the time fourteen years old, was arrested

for shoplifting at Greenspoint Mall in Houston, Texas, and taken into custody by the
Houston Police Department (“HPD”).6 When taken into custody and at all times
thereafter, JD gave HPD officers a false name, telling them that she was “Tika
Cortez.”7 Tika Cortez, as it turns out, was the name of a twenty-one year old
Colombian national that Plaintiffs allege was “either wanted by Colombian officials
or flagged as being in the United States illegally.”8 JD’s bail in her misdemeanor case

6

Plaintiffs’ Original Complaint [Doc. # 1] (“Complaint”), ¶ 25. JD ran away from her
home in Dallas, Texas, in the fall of 2010 after the death of her grandfather. Complaint, ¶
1, 20. She was lured away from her home by a “child predator” who brought her down to
Houston, Texas. Id., ¶¶ 20-21. While in Houston, JD was forced to sell and consume drugs
and was subject to physical and sexual abuse. Id., ¶ 23. JD routinely “put herself at risk with
men that were more than twice her age.” Id. Eventually, JD ran away from her “captor” and
“began trying to earn money to return to her family.” Id., ¶¶ 24-25.
7

Id., ¶¶ 26-27.

8

Id., ¶ 27; see also Defendant Summary for Tika Cortez [Exh. B to Doc. # 11-1], at
1 (noting date of birth of Tika Cortez as March 24, 1990, and place of birth as “CB,” the code
for Columbia).
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was set at $35,000 on the recommendation of the Harris Country District Attorney,
since “Defendant is [an] illegal immigrant.”9
Counsel was appointed for JD.10 JD signed the order appointing counsel “Tika
Cortez.”11 On April 4, 2011, JD, still using the name “Tika Cortez,” pleaded guilty
to the misdemeanor offense of theft.12 The one-page plea form noted that “[i]f you are
not a citizen of the United States your plea will most likely effect [sic] your continued
presence in this country.”13 JD signed the form “Tika Cortez.”14 JD alleges that she
had no conversation with her attorney “regarding the ramifications of a guilty plea.”15
The same day as her guilty plea, while detained in the Harris County Jail in
Houston, Texas, JD was interviewed by ICE Officers Cortez16 and Abraham. The
interview was memorialized in an immigration “Form I-213.”17

The form

summarizing JD’s interview reflects that JD stated “she was [a] citizen and national

9

Motion and Order Setting Bail [Exh. D to Doc. # 11-1], at 1.

10

Complaint, ¶ 28.

11

Request and Order for Appointment or Waiver of Counsel [Exh. C to Doc. # 11-1].

12

Misdemeanor Plea of Guilty [Exh. E to Doc. # 11-1], at 1.

13

Id.

14

Id.

15

Complaint, ¶ 28.

16

Officer Cortez is not related to JD or Tika Cortez.

17

Complaint, ¶ 29.

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of Colombia” and “that she was not a United States citizen,” gives her date of birth
as March 24, 1990, and her place of birth as Bontana, Colombia.18 JD asserts
conclusorily that she “initially asserted and insisted” that she was a United States
citizen,19 but Plaintiffs supply no detail as to the time, date, or place of any such
statements. Nowhere do Plaintiffs allege that JD ever provided the ICE officers or
anyone else her true name. Plaintiffs complain that Officers Cortez and Abraham had
a desire to deport her to Colombia and “knowingly or with reckless disregard for the
truth, fabricated information memorialized in the Form I-213,” such as that JD was a
national and citizen of Colombia (including the details of her identity) and not a
citizen of the United States.20 Plaintiffs also complain that Officers Cortez and
Abraham did not use other methods to determine JD’s identity, such as fingerprint or
DNA analysis, family interviews, or exploration of various databases.21

18

Form I-213 [Exh. A to Doc. # 1], at 1-2. It is noted that this information also is in
the HPD records that were likely prepared when JD was booked or charged. See Defendant
Summary for Tika Cortez [Exh. B to Doc. # 11-1].
19

Complaint, ¶ 29.

20

Id.

21

Id., ¶ 31. It is apparent that JD was also given the opportunity by the ICE officers
to place a call to someone within the United States, but refused to make a call. See Form I213 [Exh. A to Doc. #1], at 3.
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ICE provided JD with an English-language version of a Notice to Appear (Form
I-862) on April 5, 2011, which she signed “Tika Cortez.”22 JD also received a form
notifying her of her rights (Form I-826) and oral notice of her removal hearing (Form
I-862), both in Spanish, a language which she does not speak.23 JD signed both of
these documents “Tika Cortez.”24 After serving an eight-day sentence on her theft
offense, JD apparently was taken into ICE custody on April 10, 2011, pursuant to an
arrest warrant issued April 5, 2011, and prepared based on the name she gave to the
HPD and ICE officers.25
All told, JD signed her name “Tika Cortez” at least five times during the
criminal and immigration proceedings.26 She did not disclose any other identity.
JD appeared before Immigration Judge Saul Greenstein on April 14, 2011, for

22

Notice to Appear [Exh. B to Doc. # 1].

23

Form I-826 [Exh. A to Doc. # 18]; Notice to Appear [Exh. B to Doc. #1]; Complaint,
¶ 30. Defendants suggest that JD received and signed Form I-862 once she was in ICE
custody. Individual Defendants’ Motion, at 4; Official-Capacity Defendants’ Motion, at 4-5.
However, the Notice to Appear reflects that it was served on April 5, 2011, while JD appears
still to have been in state custody serving an eight-day criminal sentence, ending on April 10,
2011. Thus, it appears that JD received and signed Form I-862 while still being held in state
custody under the name of Tika Cortez, the only name she supplied to law enforcement or
the court.
24

Form I-826 [Exh. A to Doc. # 18]; Notice to Appear [Exh. B to Doc. #1].

25

Complaint, ¶ 28; Warrant for Arrest of Alien [Exh. F to Doc. # 11-1], at 1.

26

See Request and Order for Appointment or Waive of Counsel [Exh. C to Doc. # 111]; Misdemeanor Plea of Guilty [Exh. E to Doc. # 11-1]; Notice to Appear [Exh. B to Doc.
# 1]; Form I-826 [Exh. A to Doc. # 18].
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a master calendar hearing.27 At the hearing, at which multiple respondents appeared,
Judge Greenstein spoke in English. Apparently, his statements were translated into
Spanish by an interpreter.28 All of the respondents, including JD, were placed under
oath.29 Judge Greenstein asked the respondents to stand “[i]f anyone believes that
they were born in the United States” or “[i]f anyone has a mother or father who is a
United States citizen”; the transcript reflects that no respondent stood.30
Later, JD was questioned individually by Judge Greenstein in English. JD
stated under oath that she was not a citizen or national of the United States.31 She
further testified under oath that she was a native and citizen of Colombia, that she
arrived in the United States in 1993, that she was not admitted or paroled into the
United States, and that she was removable.32 Judge Greenstein found that JD, under
her assumed identity, was removable.33 JD also testified at the hearing that her only
United States citizen relative (parent, child, or spouse) was a spouse by common-law

27

Transcript of Immigration Hearing [Exh. A to Doc. # 11-1].

28

Id. at 3:25-4:3.

29

Id. at 6:2-7.

30

Id. at 9:20-10:2.

31

Id. at 15:1-3.

32

Id. at 15:4-18.

33

Id. at 15:19-20.

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marriage.34 Finally, JD stated that she had a valid Colombian passport.35
None of JD’s sworn testimony was true. JD never disclosed to the immigration
judge the true facts of her name, place of birth, her own citizenship, or the citizenship
of her parents. JD chose not to appeal Judge Greenstein’s decision.36
On May 23, 2011, JD was deported to Bogota, Colombia, where she remained
for approximately seven months.37 In December, 2011, after JD’s grandmother
contacted the Dallas Police Department regarding JD’s wrongful deportation, JD was
returned to the United States.38
On April 2, 2013, Johnisa Turner, JD’s mother, brought this lawsuit on behalf
of herself and JD. Plaintiffs allege three causes of action against the Individual
Defendants and an unspecified number of ICE Does under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971): violation of the Due
Process Clause of the Fifth Amendment (Count 1); violation of the Equal Protection
Clause of the Fifth Amendment (Count 2); and violation of the Fourth Amendment

34

Id. at 16:24-18:2.

35

Id. at 18:14-25. On multiple occasions during the exchange, Judge Greenstein asked
JD if she would like to speak to an attorney. JD declined the invitation each time. Id. at
14:19-22, 18:3-5, 19:8-11.
36

Id. at 19:16-19.

37

Complaint, ¶ 38.

38

Id., ¶ 38-39.

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(Count 3).39 Plaintiffs also allege three causes of action against the United States
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b): false
imprisonment (Count 4); negligence (Count 5); and intentional infliction of emotional
distress (Count 6).40 Finally, Plaintiffs seek injunctive relief against the OfficialCapacity Defendants, “requiring the Attorney General, the Executive Office of
Immigration Review, and the Department of Homeland Security to promulgate
safeguards and policies as set forth herein and to adequately train and supervise
employees in order to safeguard the rights of United States citizens subject to
detention and possible deportation.”41
II.

LEGAL STANDARD
The Individual Defendants seek dismissal of all claims against them (Counts

1 through 3) under Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the
grounds that Plaintiffs have not alleged a legally viable claim upon which relief can
be granted. The United States and the Official-Capacity Defendants seek dismissal
of all claims or relief brought against them (Counts 4 through 6) under Rules 12(b)(1)
and 12(b)(6) of the Federal Rules of Civil Procedure for, respectively, lack of subject
matter jurisdiction and for failure to state a claim upon which relief can be granted.

39

Id., ¶¶ 40-57.

40

Id., ¶¶ 58-74.

41

Id., Prayer for Relief, at 22, ¶ 5.

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A.

Failure to State a Claim

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure is viewed with disfavor and is rarely granted. Turner v. Pleasant, 663 F.3d
770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d
141, 147 (5th Cir. 2009)). The complaint must be liberally construed in favor of the
plaintiff, and all facts pleaded in the complaint must be taken as true. Harrington, 563
F.3d at 147. The complaint must, however, contain sufficient factual allegations, as
opposed to legal conclusions, to state a claim for relief that is “plausible on its face.”
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Patrick v. Wal-Mart, Inc., 681 F.3d
614, 617 (5th Cir. 2012). When there are well-pleaded factual allegations, a court
should presume they are true, even if doubtful, and then determine whether they
plausibly give rise to an entitlement to relief. Iqbal, 556 U.S. at 679. Additionally,
regardless of how well-pleaded the factual allegations may be, they must demonstrate
that the plaintiff is entitled to relief under a valid legal theory. See Neitzke v.
Williams, 490 U.S. 319, 327 (1989); McCormick v. Stalder, 105 F.3d 1059, 1061 (5th
Cir. 1997). Plaintiffs “need not establish every element of their prima facie case, but
must nonetheless state a plausible claim for relief under the pleading standard set forth
in Twombly and Iqbal.” EEOC v. Bass Pro Outdoor World, LLC, 884 F. Supp. 2d
499, 515-16 (S.D. Tex. 2012) (Ellison, J.).

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As noted, when faced with a motion to dismiss under Rule 12(b)(6), “courts
must . . . accept all factual allegations in the complaint as true.” Tellabs, Inv. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A court must ordinarily limit itself
to the contents of the pleadings and its attachments. Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing FED. R. CIV. P. 12(b)(6)). Thus, in
the general case, if “matters outside the pleading are presented to and not excluded by
the court, the motion shall be treated as one for summary judgment.” FED. R. CIV. P.
12(d); see also In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.
2007).
However, a court may consider certain other documents without treating the
motion as one for summary judgment. “Documents that a defendant attaches to a
motion to dismiss are [also] considered part of the pleadings if they are referred to in
the plaintiff’s complaint and are central to her claim.” Id. (quoting Causey v. Sewell
Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004)); see also Hicks v. Lingle,
370 F. App’x 497, 498 (5th Cir. 2010); Kane Enters. v. MacGregor (USA), Inc., 322
F.3d 371, 374 (5th Cir. 2003). “In so attaching, the defendant merely assists the
plaintiff in establishing the basis of the suit, and the court in making the elementary
determination of whether a claim has been stated.” Collins, 224 F.3d at 499.
Moreover, the Court may also consider “other sources courts ordinarily examine when
ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into
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the complaint by reference, and matters of which a court may take judicial notice.”
Tellabs, 551 U.S. at 322; see also Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir.
1995) (“Federal Courts are permitted to refer to matters of public record when
deciding a 12(b)(6) motion to dismiss.” (citing Cinel v. Connick, 15 F.3d 1338, 1343
(5th Cir. 1994))); Ratcliff v. Rainwater, 93 F. App’x 623, 625 (5th Cir. 2004)
(unpublished).42
B.

Lack of Subject Matter Jurisdiction

“A case is properly dismissed for lack of subject matter jurisdiction when the
court lacks the statutory or constitutional power to adjudicate the case.” Krim v.
pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (citations omitted). In
considering a challenge to subject matter jurisdiction, the district court is “free to
weigh the evidence and resolve factual disputes in order to satisfy itself that it has the

42

Plaintiffs have attached three exhibits to their Complaint [Doc. # 1], as well as
several exhibits to their Responses to Defendants’ motions to dismiss [Docs. # 17 and # 18].
The Court considers these documents in ruling on the pending motions to dismiss.
Additionally, both the Individual Defendants’ Motion and the Official-Capacity Defendants’
Motion include appendices attaching additional exhibits [Docs. # 11 and # 12]. Plaintiffs
object to these exhibits in each Response. See Plaintiffs’ Response [Doc. # 17], at 1 (“Rather
than dealing only with the pleaded facts, Defendants go OUTSIDE of the four corners of the
complaint and attach and reference evidence in violation of controlling 12(b)(6) standards.”);
Plaintiffs’ Response [Doc. # 18], at 1 (same). However, Plaintiffs supply no authority that
supports their assertion and that would preclude reliance on these documents. Moreover, all
of the documents that Defendants have submitted are either public records subject to judicial
notice or incorporated into the Plaintiffs’ complaint by reference, as Defendants have
demonstrated in both of their motions. See Individual Defendants’ Motion [Doc. # 11], at
2 n.4, 3 n.5, 4 nn.6-7; Official-Capacity Defendants’ Motion [Doc. # 12], at 2 n.3, 3 n.4, 4
nn.5-6. Accordingly, the Court considers these documents in ruling on the motions.
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power to hear the case.” Id. When the court’s subject matter jurisdiction is
challenged, the party asserting jurisdiction bears the burden of establishing it. See
Castro v. United States, 560 F.3d 381, 386 (5th Cir. 2009).
A motion to dismiss for lack of subject matter jurisdiction should be granted
only if it appears certain that the plaintiff cannot prove a plausible set of facts that
establish subject matter jurisdiction. Id. The Court must “take the well-pled factual
allegations of the complaint as true and view them in the light most favorable to the
plaintiff.” Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2007).
III.

INDIVIDUAL DEFENDANTS
A.

Existence of a Bivens Remedy

At the most general level, this case raises the issue of whether a Bivens claim
can be asserted against immigration officials for detaining and deporting a United
States citizen. More precisely, however, this case presents the question whether there
is a Bivens remedy for a United States citizen who never disclosed her true name and
instead assumed the identity of a person who was a removable alien, and was
thereafter deported from this country. The Court addresses only the second question.
In Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971), the Supreme Court recognized a cause of action against federal officers for the
violation of a plaintiff’s constitutional rights. There, the plaintiff brought Fourth
Amendment claims against federal agents based on an unconstitutional search, seizure,
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and arrest performed by those agents. Id. at 389-390. The Supreme Court, reversing
the dismissal by lower courts, recognized the viability of this cause of action, noting:
[T]he Fourth Amendment operates as a limitation upon the exercise of
federal power regardless of whether the State in whose jurisdiction that
power is exercised would prohibit or penalize the identical act if engaged
in by a private citizen. It guarantees to citizens of the United States the
absolute right to be free from unreasonable searches and seizures carried
out by virtue of federal authority. And where federally protected rights
have been invaded, it has been the rule from the beginning that courts
will be alert to adjust their remedies so as to grant the necessary relief.
Id. at 392 (internal citations omitted). In short, under Bivens, plaintiffs are entitled to
recover damages against federal officers who violate the victim’s constitutional rights,
even when a federal statute conferring such a right is absent. See Carlson v. Green,
446 U.S. 14, 18 (1980).
Two limitations on this rule apply. First, Bivens claims are unavailable “when
defendants demonstrate special factors counselling hesitation in the absence of
affirmative action by Congress.” Id. (quoting Bivens, 403 U.S. at 396). Second, no
Bivens remedy can be had where “defendants show that Congress has provided an
alternative remedy which it explicitly declared to be a substitute for recovery directly
under the Constitution and viewed as equally effective.” Id. at 18-19 (citing Bivens,
403 U.S. at 397) (emphasis in original).
With these exceptions in mind, the Supreme Court has devised a two-step
approach to determining whether to recognize a Bivens remedy. See Wilkie v.

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Robbins, 551 U.S. 537, 540 (2007). First, courts must look to see “whether any
alternative, existing process for protecting the interest amounts to a convincing reason
for the Judicial Branch to refrain from providing a new and freestanding remedy in
damages.”

Id.

Second, “the federal courts must make the kind of remedial

determination that is appropriate for a common-law tribunal, paying particular heed,
however, to any special factors counselling hesitation before authorizing a new kind
of federal litigation.” Id. (internal citation omitted).
1.

Existence of an Alternative Process to Protect Interests

Courts, and particularly the Supreme Court, have been wary of extending
Bivens claims into new contexts. See Schweiker v. Chilicky, 487 U.S. 412, 421 (1988)
(“Our more recent decisions have responded cautiously to suggestions that Bivens
remedies be extended into new contexts.”). In fact, since Bivens itself, the Supreme
Court has only recognized Bivens remedies in two other contexts: (1) gender
discrimination claims under the Due Process Clause of the Fifth Amendment brought
by a congressional employee against a U.S. Congressman (where, unlike most other
employment contexts, no statutory claim was available), see Davis v. Passman, 442
U.S. 228 (1979); and (2) cruel and unusual punishment claims in violation of the
Eighth Amendment against federal prison officials, see Carlson v. Green, 446 U.S.
14 (1980). Since Carlson, the Supreme Court has repeatedly declined to recognize

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Bivens remedies in other contexts. See Bush v. Lucas, 462 U.S. 367 (1983) (violations
of First Amendment rights by federal employers); United States v. Stanley, 483 U.S.
669 (1987) (harms incident to military service); Schweiker v. Chilicky, 487 U.S. 412
(1988) (wrongful denial of Social Security benefits); FDIC v. Meyer, 510 U.S. 471
(1994) (decisions made by federal agencies); Corr. Servs. Corp. v. Malesko, 534 U.S.
61 (2001) (Eighth Amendment violations by private corporations acting under federal
contracts); Wilkie v. Robbins, 551 U.S. 537 (2007) (federal officials’ retaliation
against private landowners); Minneci v. Pollard, 131 S. Ct. 617 (2012) (Eighth
Amendment claims against private prison employees). The Supreme Court has not
addressed, however, whether actions by federal immigration officials involving aliens
or United States citizens, which actions are subject to the Immigration and Nationality
Act (“INA”), can be challenged under Bivens.
The parties at bar disagree whether the federal immigration statutory scheme
precludes a Bivens remedy. The Individual Defendants contend that the INA is a
comprehensive regulatory scheme that provides ample opportunities for those in
removal proceedings to contest the charges against them, and that Congress’ plenary
power over immigration counsels against recognizing a federal remedy.43 Plaintiffs,
in response, argue that the INA does not provide a meaningful remedy for the actions

43

Individual Defendants’ Motion [Doc. # 11], at 10-16.

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that occurred here, and that, in any event, the INA is not applicable to JD because she
is a United States citizen.44 No appellate court has addressed the issue as presented
in this case.
The core threshold issue posed by this disagreement is the “context” in which
this case appears. The Individual Defendants suggest the case falls within the ambit
of immigration proceedings and focus on the elaborate processes provided by the INA.
Plaintiffs, in contrast, focus on JD’s United States citizenship and her unlawful
deportation. As other courts have noted, “context is not defined in the case law.”
Arar v. Ashcroft, 585 F.3d 559, 572 (2d Cir. 2009) (en banc). Courts approach this
issue with caution:
To answer this question requires us to enter by a narrow gate. Examining
the availability of a Bivens remedy at a “high level of generality” would
“invite claims in every sphere of legitimate governmental action”
touching, however tangentially, on a constitutionally protected interest.
Examining the question at too low a level of generality would invite
never ending litigation because “every case has points of distinction.” As
such, we join our sister circuit and “construe the word ‘context’ as it is
commonly used in law: to reflect a potentially recurring scenario that
has similar legal and factual components.”
Mirmehdi v. United States, 689 F.3d 975, 981 (9th Cir. 2012) (O’Scannlain, J.)
(emphasis added).

44

Plaintiffs’ Response [Doc. #18], at 12, 14-15, 17-19.

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This Court takes no position on the broadest issue—whether there are any
circumstances in which a United States citizen who is deported can bring a Bivens
claim. That is a question drawn at too “high level of generality” and is not presently
before this Court.
Before the Court, rather, is a more narrow and unusual issue: Is a United States
citizen who declines to give her true name to federal officers, and who thus leads
those officers to believe that she is a detainable and deportable alien, entitled to relief
under Bivens on account of her detention and deportation?45 The Court concludes that
no Bivens remedy is proper in this “context.” The uncontroverted facts before this
Court are that JD failed to provide her real name to the ICE officers and instead used

45

Plaintiffs have made no claim of unlawful detention absent these proceedings. For
example, JD, unlike plaintiffs in other cases, does not complain of conditions of
administrative confinement or the actions of officers during her arrest, i.e., her treatment
outside of the administrative removal processing context. See, e.g., Turkmen v. Ashcroft, 915
F. Supp. 2d 314, 352-53 (E.D.N.Y. 2013) (“[Plaintiffs] are complaining about their treatment
before they were deported . . . . [T]he Plaintiffs allege a series of acts that were directed only
at them . . . with the specific intent to deny them the right to practice their religion. They
have sued the individual who they allege engaged in those acts, and there is no
scheme—statutory or regulatory, comprehensive or otherwise—for a person detained in a
federal facility to seek any remedy from an officer for intentionally and maliciously
interfering with his right to practice his religion.” (emphasis in original)); Argueta v. U.S.
Immigration and Customs Enforcement, 2009 WL 1307236, at *14 (D.N.J. May 7, 2009)
(“The specific conduct of which Ontaneda complains does not involve deportation
proceedings in Immigration Court. Rather, it is the entry into and search of his home by ICE
agents without his consent, without a valid search or arrest warrant . . . and without probable
cause . . . all of which he claims are violations of his Fourth Amendment right . . . that form
the basis of Ontaneda’s Bivens claims.”).
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falsely the name of a removable alien. JD compounded this false identification by
stating in writing and swearing under oath, at a live administrative hearing conducted
in her native language, that she was not a United States citizen. She also, under oath
at the hearing, claimed Colombian citizenship. By insisting on use of a false identity,
an identity which she learned was that of a removable alien, and by affirmatively
denying U.S. citizenship, JD subjected herself to the regulatory scheme of the INA in
the posture of an alien.46
46

The Court recognizes Plaintiffs’ allegation that JD “asserted and insisted that she
was a United States citizen.” Complaint, ¶ 29. This allegation lacks any detail or context,
such as the time, place, or manner in which JD made such an assertion. Moreover, this
allegation does not change the undisputed facts, which Plaintiffs acknowledge, see id., ¶¶ 2627, 33, that JD pleaded guilty to her misdemeanor offense as Tika Cortez, whom she then
knew was an alien, see Misdemeanor Plea of Guilty [Exh. E to Doc. # 11-1], and testified
under oath before an immigration judge that she was a Colombian citizen and was not a
United States citizen, see Transcript of Immigration Hearing [Exh. A to Doc. # 11-1], at
15:1-6. Thus, even assuming Plaintiffs’ allegation to be true (as this Court must for a Rule
12(b)(6) motion to dismiss), the circumstances here suggest that JD repeatedly asserted her
(fake) Colombian identity and denied her (true) United States identity.
The Court also notes Plaintiffs’ allegation that Officers Cortez and Abraham “failed
to confirm JD’s identity with fingerprint analysis, genetically specific markers that
suggest a person’s origin, or other methods more definitive than just having a name
and no documentation . . . . [and] failed to consult any sources to verify JD’s, the
alleged alien’s, identity. ICE officials failed to talk with any family members or
check the Non-Immigrant Information System (NIIS) for entry information and
passport number. Nor did they contact the International Criminal Police.” Complaint,
¶ 31. Plaintiffs also allege that Officers Cortez and Abraham failed to “tak[e] the
simple step of checking [the] National Child Runaway list.” Id., ¶ 30. Plaintiffs’
argument fails to account for the fact that JD, according to Plaintiffs’ own pleadings
and the documents provided, repeatedly signed her name as “Tika Cortez” and never
provided her real name to the ICE officers; thus, the officers were without a means
(continued...)
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In any event, JD had various remedies available to her under the extensive
remedial administrative procedures set forth in the INA and in administrative policies,
as well as other means, all of which she chose not to use. First and foremost, she was
able simply to disclose her true name and identity (and thus her U.S. citizenship), but
declined to do so. Under the Morton Memo,47 had JD disclosed her true name and
claimed U.S. citizenship, she would have been entitled to a thorough examination of
her claim to citizenship, if not avoided the immigration process altogether. See
Morton Memo [Exh. C to Doc. # 18-1]. Furthermore, JD was entitled to, and
received, a live hearing on her removability. She was able to contest the charge that
she was removable, 8 U.S.C. § 1534, and was offered opportunities for assistance and
an appeal. Finally, under the INA, had JD unsuccessfully claimed to be a United
States citizen in her removal proceedings, she would have been entitled to review of

46

(...continued)
to check her “true identity.” Moreover, Plaintiffs have supplied no authority for the
proposition that Officers Cortez and Abraham were under a legal obligation to search
various databases for a person representing herself to be someone else. There are also
no allegations that JD’s fingerprints were available elsewhere.
47

The “Morton Memo” refers to a memorandum issued by former ICE Director John
Morton to ICE Field Office Directors, Special Agents in Charge, and Chief Counsels on
November 19, 2009. The memorandum provides guidance to ICE officers with regard to
claims to U.S. citizenship by suspected aliens, and details the steps that ICE officials should
take with regard to those claims. See Morton Memo [Exh. C to Doc. # 18]. The Morton
Memo superseded the “Hayes Memo,” a memorandum issued by former ICE Director James
Hayes to ICE Field Officer Directors on November 6, 2008, that provided guidance on the
same topic. See Hayes Memo [Exh. E to Doc. # 18].
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that claim in a federal circuit court of appeals. 8 U.S.C. § 1252(b)(5)(A) (“If the
petitioner claims to be a national of the United States and the court of appeals finds
from the pleadings and affidavits that no genuine issue of material fact about
petitioner’s nationality is presented, the court shall decide the nationality claim.”). If
the court of appeals determined that a genuine issue of material fact existed regarding
her claim to citizenship, it could transfer the proceeding to a federal district court for
a hearing on that issue. 8 U.S.C § 1252(b)(5)(B).48 Given the various options to
contest immigration detention and deportation, the Court finds that there existed a
meaningful alternative process to protect JD’s interests, which makes a Bivens remedy
improper in this case.
It is noted that the remedies available to JD could have prevented her detention
and deportation. The available remedies would not have provided an opportunity for
monetary compensation after a detention or deportation. The Supreme Court was
faced with a similar issue in Schweiker. There, the Court refused to create a Bivens
remedy where federal officials improperly denied Social Security benefits to three
individuals. The Court recognized that the Social Security Act (“SSA”) itself did not

48

Judge Greenstein also provided JD with the opportunity to challenge her removal
on administrative grounds, which JD declined. See, e.g., Transcript of Immigration Hearing
[Exh. A to Doc. # 11-1], at 14:7-19:19. While in ICE custody prior to her deportation, JD
could also have brought a habeas corpus claim contesting her detention.
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provide remedies for the alleged unconstitutional conduct, and that creating a Bivens
remedy “would obviously offer the prospect of relief for injuries that must now go
unredressed.” Schweiker, 487 U.S. at 424-25. The Court, however, noted that
Congress had provided “meaningful safeguards or remedies” under the SSA for those
in the plaintiffs’ position and that “Congress is in a better position to decide whether
or not the public interest would be served” by creating a remedy for the conduct
alleged. Id. at 425, 427. Furthermore, the Schweiker Court stressed:
In the end, respondents’ various arguments are rooted in their insistent
and vigorous contention that they simply have not been adequately
recompensed for their injuries . . . . We agree that suffering months of
delay in receiving the income on which one has depended for the very
necessities of life cannot be fully remedied by the ‘belated restoration of
back benefits’ . . . . Congress, however, has addressed the problems
created by state agencies’ wrongful termination of disability benefits.
Whether or not we believe that its response was the best response,
Congress is the body charged with making the inevitable compromises
required in the design of a massive and complex welfare benefits
program.
Id. at 428-29. Here, too, the Court notes that Congress, through the INA, has
considered the issue of citizens who are wrongfully placed into removal proceedings,
and devised a remedy allowing for those citizens to contest the proceedings in federal
court. Congress did not, however, take the further step of providing those citizens
with the opportunity to seek damages against the officers who instituted those
proceedings. “Whether or not we believe that [Congress’] response was the best

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response,” id. at 429, this Court will not create, under the circumstances alleged, a
remedy separate from and in addition to what Congress created.
Moreover, neither of the post-Bivens Supreme Court cases that have permitted
Bivens remedies support such a holding in this case. In Carlson, the Supreme Court
allowed a Bivens claim against federal prison officials on the basis of Eighth
Amendment violations because the Federal Tort Claims Act (“FTCA”) was not
viewed as an adequate remedy. In that case, Congress had specifically declared (in
amending the FTCA) that the FTCA and Bivens were meant to be “parallel,
complementary causes of action.” Carlson, 446 U.S. at 20. Moreover, the Supreme
Court noted, among other factors, that Congress “explicitly [states] when it means to
make FTCA an exclusive remedy.” Id. Similarly, in Davis, the Supreme Court held
that Congress had not enacted a scheme to remedy the plaintiff’s claims, since the
protections of Title VII were not extended to congressional employees.49 Davis, 442
U.S. at 247. In short, both Carlson and Davis involved situations where, unlike the
case at bar, no meaningful relief was available to the plaintiffs, thus impelling the
Supreme Court’s creation of a Bivens remedy.
Several circuit court cases support the conclusion that a Bivens remedy should

49

The Supreme Court also refused to read Title VII’s failure to include employees in
the plaintiff’s position as an implicit prohibition on remedies for someone in that position.
See Davis, 442 U.S. at 247.
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not be available in this case. In Mirmehdi v. United States, 689 F.3d 975 (9th Cir.
2012) (O’Scannlain, J.), the Ninth Circuit held that aliens who complained of unlawful
detention in their deportation proceedings were barred from asserting a Bivens claim.
See id. at 981-82. The court there noted that Congress, through the INA, established
a “substantial, comprehensive, and intricate remedial scheme in the context of
immigration.” Id. at 982. The Ninth Circuit opined also that the lack of a monetary
remedy under the INA was not inadvertent, and concluded that instituting a monetary
remedy for aliens under Bivens would be “plainly inconsistent with Congress’
authority in the field.” Id. at 982 (internal citations omitted).
Similarly, in Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc), the
Second Circuit, sitting en banc, held that claims of aliens arising in the context of
“extraordinary rendition”50 could not be the subject of a Bivens remedy because of
Congress’ enactment of the INA. See id. at 572-73. Other cases have also rejected
a Bivens remedy in the immigration context. See, e.g., D’Alessandro v. Chertoff, 2011
WL 6148756, at *4 (W.D.N.Y. Dec. 12, 2011) (rejecting Bivens remedy where legal
permanent resident was able to challenge his unlawful immigration detention through

50

“Extraordinary rendition” is “[t]he transfer, without formal charges, trial, or court
approval, of a person suspected of being a terrorist or supporter of a terrorist group to a
foreign nation for imprisonment and interrogation on behalf of the transferring nation.”
BLACK’S LAW DICTIONARY 1410 (9th ed. 2009).
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a habeas proceeding).
Plaintiffs point to cases that reach the opposite conclusion. These rulings are
not binding or persuasive authority under the facts at bar. For example, the district
court in Argueta v. U.S. Immigration and Customs Enforcement, 2009 WL 1307236
(D.N.J. May 7, 2009), held that a Bivens cause of action could be created because,
despite the immigration context presented, the gravamen of the complaint was that
ICE agents’ allegedly unconstitutional searches of multiple plaintiffs’ homes,51
searches executed without consent and without a warrant, were constitutional
violations incidental to the subsequent removal proceedings. See id. at *18-19.
Accordingly, those claims did not fall within the INA’s regulatory and remedial
scheme.
Other decisions that Plaintiffs cite, all by district courts, are equally
distinguishable. See Turkmen, 915 F. Supp. 2d at 352-53 (recognizing Bivens claim
where plaintiffs challenged the “harsh confinement policy” of the government which,
among other things, discriminated against the plaintiffs on the basis of their Muslim
faith); Turnbull v. United States, 2007 WL 2153279, at *11 (N.D. Ohio July 23, 2007)

51

Argueta was a suit brought by thirteen plaintiffs alleging similar claims against ICE
agents. See Argueta, 2009 WL 1307236, at *1 (“In each case, Plaintiffs allege that ICE
agents entered their home in the early morning hours without appropriate consent and/or
warrants.”). The court’s discussion of Bivens remedies dealt with five of those plaintiffs.
See id. at *17.
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(allowing Bivens claims based on plaintiff’s removal in violation of a judicial order
because “Plaintiff’s proposed Bivens claims do not challenge the decision to remove
him from this country, but rather focus upon the alleged violation of his rights that
occurred incident to the administration of the removal process”).52
Similarly, Lyttle v. United States, 867 F. Supp. 2d 1256 (M.D. Ga. 2012), is
distinguishable from this case. In Lyttle, the ICE agents believed that plaintiff was a
Mexican citizen with a name different from the one he used. Lyttle, a United States
citizen, alleged, and the court assumed for the purposes of the defendants’ motion to
dismiss, that he consistently provided the ICE agents with his true name prior to and
during the removal proceedings; that this name was associated in government

52

Plaintiffs urge that two Fifth Circuit cases “acknowledg[e] the existence of a Bivens
remedy for violations of constitutional rights in the context of immigration proceedings.”
Plaintiffs’ Response [Doc. # 18], at 8 & n.1. Neither case supports this characterization. In
Pelayo v. U.S. Border Patrol Agent No. 1, 82 F. App’x 986 (5th Cir. 2003), plaintiff brought
a Bivens suit against border patrol agents on the grounds that the agents had wrongfully
deported her son as an illegal alien, and that subsequent to his deportation the son died. The
Fifth Circuit affirmed in part and vacated and remanded in part the dismissal of the suit on
qualified immunity grounds. The Court of Appeals in Pelayo did not address the question
of whether a Bivens claim was cognizable; significantly, there is no indication this issue was
raised by the parties. Similarly, in Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir.
2006), the Fifth Circuit affirmed the district court’s denial of summary judgment on the
grounds that a citizen of Mexico had sufficient contacts with the United States such that she
was able to bring a Bivens claim for unlawful arrest and excessive use of force under the
Fourth Amendment. There, as in many of the cases Plaintiff cites, the Bivens claim related
to the acts of a border patrol agents that were incident to an “immigration proceeding,” the
attempted entry of plaintiff into the United States. The Fifth Circuit was not asked to decide
whether claims arising out of removal proceedings per se can give rise to a Bivens claim.
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databases with a United States citizen; that he stated unequivocally and repeatedly to
the agents that he was a United States citizen; that he persistently denied being a
citizen of Mexico; that he consistently denied being the person the ICE agents
asserted; that he was mentally disabled; and that the ICE agents were aware of his
disability. See, e.g., id. at 1269-72, 1278, 1282-83. The court there found the
reasoning in Mirmehdi and Arar unpersuasive, as those cases involved individuals
who were not United States citizens. See id. at 1276. Rather, the court held that a
United States citizen in Lyttle’s circumstances could bring a Bivens action to remedy
alleged constitutional violations. The court repeatedly emphasized that its holding
was grounded on the facts alleged.53
This Court is not persuaded by the Lyttle court’s reasoning for application at
bar. Here, unlike in Lyttle, JD repeatedly stated and signed “Tika Cortez” as her
name, even though she was informed that person was a Colombian citizen and
removable. Plaintiffs do not allege at any point in their 22-page complaint or their

53

See Lyttle, 867 F. Supp. 2d at 1278 (“INA does not provide any meaningful remedy
and review procedure . . . in this case.” (emphasis added)); id. (“Specifically, the Court holds
that a United States citizen with a diminished mental capacity who has been detained without
probable cause, who the federal agents know claims to be a United States citizen, whose
claim of citizenship is not investigated, whose claim is supported by easily accessible
corroborating evidence, and who is manipulated by the federal agents through coercion and
distortion of the record, should have a claim against the responsible agents to recover
damages for his injuries caused by his detention and subsequent banishment from the United
States.” (emphasis in original)).
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extensive briefing in opposition to Defendants’ motions to dismiss that JD ever
disclosed her real name. Where, as in this case, a United States citizen fails to provide
her real name and instead provides a false name to immigration authorities, and as a
result is detained and deported as a removable alien, there can be no Bivens claim
against the immigration officers.
2.

Special Factors Counseling Hesitation

The Court also notes that “special factors” present in this case counsel
hesitation with regard to creating a Bivens remedy in this context. Congress has
plenary power with regard to the removal of aliens, and the Supreme Court has
hesitated to craft a Bivens remedy when such powers exist. See Chappell v. Wallace,
462 U.S. 296, 302-04 (1983) (rejecting Bivens remedy where “Congress has exercised
its plenary constitutional authority over the military,” because “the special nature of
military life . . . would be undermined by a judicially created remedy exposing officers
to personal liability at the hands of those they are charged to command”). This
hesitation is especially apt in the context of removal proceedings. See Mirmehdi, 689
F.3d at 982 (“[I]mmigration issues have the natural tendency to affect diplomacy,
foreign policy, and the security of the nation, which further counsels hesitation in
extending Bivens.”) (internal citation omitted). Furthermore, establishing a Bivens
remedy in this area may have the effect of dissuading individuals from becoming

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immigration officers lest they be subject to the prospect of personal liability. See
Schweiker, 487 U.S. at 425 (“The prospect of personal liability for official acts,
moreover, would undoubtedly lead to new difficulties and expense in recruiting
administrators for the programs Congress has established.”). Finally, fashioning a
Bivens remedy here might incentivize others to provide false identities to immigration
officers with the hope of either recovering damages or otherwise stymying their
removal proceedings.
These factors lead the Court to conclude that it is inappropriate to fashion a
Bivens remedy here. To be clear, the Court does not reach and does not hold that a
United States citizen who meaningfully asserts her citizenship when questioned under
oath and who is subsequently detained and deported has no remedy under Bivens.
Rather, the Court holds that under the highly unusual circumstances of the case at bar,
no Bivens remedy is proper.

Accordingly, the claims against the Individual

Defendants (Counts 1 through 3) are dismissed with prejudice.
B.

ICE Does

Plaintiffs state that they do not have sufficient information to sue the “ICE
Does” under their true names.

These defendants are sued in their individual

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capacities.54 Plaintiffs further state that they will amend the Complaint when they
learn this information.55 Because the Court grants the Individual Defendants’ Motion
on the grounds that Plaintiffs have failed to state a viable claim against the Individual
Defendants, and because the ICE Does are in the same posture as the Individual
Defendants, the Court also dismisses the claims (if any) against the ICE Does. See
Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001) (recognizing that when one
defending party establishes that the plaintiff has no cause of action, the defense
generally inures to the benefit of other similarly situated defendants).
C.

Leave to Amend

When a plaintiff’s complaint fails to state a claim, the court should generally
give the plaintiff at least one chance to amend the complaint under Rule 15(a) of the
Federal Rules of Civil Procedure before dismissing the action with prejudice. See
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th
Cir. 2002). The Court finds that allowing Plaintiffs to do so here “would prove to be
futile.” United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d
375, 387 (5th Cir. 2003). Plaintiffs, who are represented by counsel, filed this action
nearly two years after the alleged actions occurred. The key facts on which the causes

54

Complaint, ¶ 17.

55

Id.

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of action could be based, if any, are already within Plaintiffs’ knowledge.
Furthermore, in 2012, Plaintiffs filed an almost identical complaint, based on this
same set of facts, before the Honorable Sim Lake. See Turner, et al. v. Holder, et al.,
Civil Action No. 4:12-cv-01570. In that case, Plaintiffs filed an original and two
amended complaints and voluntarily dismissed the case without prejudice only in the
face of defendants’ motions to dismiss. Because Plaintiffs have had multiple
opportunities to plead their case and because all of the information material to their
causes of action is within their knowledge, the Court finds it highly unlikely that
Plaintiffs can amend to state viable claims for relief against the Individual Defendants.
IV.

UNITED STATES AND OFFICIAL-CAPACITY DEFENDANTS
A.

Failure to Exhaust Administrative Remedies

The United States enjoys sovereign immunity from lawsuits. See Cohens v.
Virginia, 19 U.S. (6 Wheat.) 264, 411-412 (Marshall, C.J.) (“The universally received
opinion is, that no suit can be commenced or prosecuted against the United States.”);
Finn v. United States, 123 U.S. 227, 232-33 (1887) (Harlan, J.) (“[T]he United States
are not liable to be sued, except with their consent . . . . [T]he government is not liable
to be sued, as of right, by any claimant . . .”). Congress, however, may enact
legislation waiving the Government’s immunity. Waivers of sovereign immunity
must be strictly construed and limited to the manner prescribed by Congress. See

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Lane v. Pena, 518 U.S. 187, 192 (1996) (“[A] waiver of the Government’s sovereign
immunity will be strictly construed, in terms of its scope, in favor of the sovereign.”);
Reid v. United States, 211 U.S. 529, 538 (1909) (“Suits against the United States can
be maintained, of course, only by permission of the United States, and in the manner
and subject to the restrictions it may see fit to impose.”).
The FTCA serves as a limited waiver of the Government’s sovereign immunity
for suits arising from certain torts of federal employees. Ali v. Fed. Bureau of Prisons,
552 U.S. 214, 217-18 (2008). It provides that:
The district courts . . . shall have exclusive jurisdiction of civil actions
on claims against the United States, for money damages . . . for injury or
loss of property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or
omission occurred.
28 U.S.C. § 1346(b).
In order to bring a claim under the FTCA, a plaintiff must first present her claim
to the federal administrative agency responsible for the actions underlying the claim.
28 U.S.C. § 2675(a) (“An action shall not be instituted upon a claim against the
United States for money damages . . . unless the claimant shall have first presented the
claim to the appropriate Federal agency and his claim shall have been finally denied
by the agency in writing . . .”). The plaintiff must present the claim to the agency
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within two years of the claim’s accrual. 28 U.S.C. § 2401(b). If the agency denies the
claim, the plaintiff then has six months to commence an action against the United
States in federal court. Id. A claim is deemed “denied” if the agency fails to make a
“final disposition of a claim” within six months of it being presented to the agency.
28 U.S.C. § 2675(a).
The requirement that a plaintiff must first exhaust administrative remedies is
a jurisdictional bar for any FTCA action—that is, if a plaintiff fails to first fully
present the claim to an administrative agency, any causes of action brought in federal
court must be dismissed for lack of subject matter jurisdiction. See McNeil v. United
States, 508 U.S. 106, 111 (1993) (“The command that an ‘action shall not be instituted
. . . unless the claimant shall have first presented the claim to the appropriate Federal
agency . . .’ is unambiguous. We are not free to rewrite the statutory text.”). This is
the case even if the administrative claim was subsequently denied before substantial
progress had taken place in the litigation. See id. at 110-12.
Plaintiffs presented their claims to the Department of Homeland Security
(“DHS”) and to Immigration and Customs Enforcement (“ICE”) on February 6,
2013.56 Plaintiffs filed this case on April 2, 2013. At that time, Plaintiffs “had not yet

56

Declaration of Steven G. Ohrvall [Exh. H-2 to Doc. # 12-1], ¶ 3.

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received a denial of the claim.”57 Furthermore, six months had not yet elapsed
between when the claim was presented to DHS and ICE and when the causes of action
were filed in this Court. Under McNeil, therefore, the FTCA claims against the United
States must be dismissed for lack of subject matter jurisdiction.
Plaintiffs concede that they did not exhaust administrative remedies before
filing this suit, but argue that they had to file their complaint “to preserve the claim
from being barred by the statute of limitations.”58 Whether or not the statute of
limitations was about to expire on one or more of Plaintiffs’ claims, this Court can
adjudicate only cases within its subject matter jurisdiction. Because Plaintiffs have
failed to exhaust their administrative remedies, Plaintiffs’ causes of action do not fall
within this Court’s jurisdiction. Accordingly, Plaintiffs’ FTCA claims against the
United States (Counts 4 through 6) are dismissed without prejudice to their refiling
once Plaintiffs have exhausted their administrative remedies.
B.

Injunctive Relief against Official-Capacity Defendants

Plaintiffs have sued Official-Capacity Defendants Holder, Osuna, Napolitano,
and Sandweg solely in their official capacities.59 The Complaint does not set forth any

57

Plaintiffs’ Response [Doc. # 17], at 8.

58

Complaint, ¶ 63; see also Plaintiffs’ Response [Doc. # 17], at 8.

59

Complaint, ¶¶ 9-12.

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facts regarding conduct by these officials.60 Moreover, none of Plaintiffs’ six causes
of action are alleged against the Official-Capacity Defendants.61 Rather, Plaintiffs
seek only injunctive relief as a remedy against these defendants, “requiring the
Attorney General, the Executive Office of Immigration Review, and the Department
of Homeland Security to promulgate safeguards and policies as set forth herein and
to adequately train and supervise employees in order to safeguard the rights of United
States citizens subject to detention and possible deportation.”62
A request for an injunction must be predicated upon a viable cause of action.
See, e.g., Turnbow v. PNC Mortg., 2013 WL 5410075, at *7 (S.D. Tex. Sept. 25,
2013) (Harmon, J.) (“To sustain a claim for injunctive relief, a plaintiff must first
plead a viable underlying cause of action.”); Denman v. Wells Fargo Bank, N.A., 2013
WL 1866580, at *2 (W.D. Tex. May 2, 2013) (“[A] request for injunctive relief must
be dismissed unless it is supported by a viable claim . . . . Here, Plaintiffs have not

60

See id., ¶¶ 20-39. The Complaint refers to the “Morton Memo,” authored by former
Director of ICE John Morton (who was previously an official-capacity defendant in this
case). See id., ¶¶ 12, 30-31. However, Plaintiffs do not criticize that memorandum; on the
contrary, they cite to it as a baseline for proper conduct. See id., ¶ 30 (“Unfortunately ICE
Defendants Rolando Cortez and John Abraham were so focused on JD’s deportation they
failed to adhere to the Morton Memo or do any due diligence on the many red flags negating
JD being deportable to Colombia.”).
61

See id., ¶¶ 40-74.

62

Id., Prayer for Relief, at 22, ¶ 5.

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asserted any cause of action against Defendant.”); Hudson v. Bd. of Regents of Tex.
S. Univ., 2008 WL 2754622, at *6 n.6 (S.D. Tex. July 14, 2008) (Ellison, J.)
(“Plaintiffs may not request injunctions that relate to unmeritorious federal law
claims.”); cf. Pajooh v. Harmon, 82 F. App’x 898, 899 (5th Cir. 2003) (upholding
denial of injunctive relief where district court had dismissed Bivens suit for failure to
state a claim). Plaintiffs have not alleged any cause of action against the OfficialCapacity Defendants. Accordingly, their request for injunctive relief is denied
without prejudice.
V.

CONCLUSION
The Court does not in any way condone deportation or removal of United States

citizens by immigration authorities. The Court’s conclusions above are narrow and
targeted. Guidance by the United States Supreme Court over many years strictly
limiting the availability of claims against federal officers for money damages, when
no such relief is provided for by Congress, establishes that Plaintiffs cannot assert a
claim against the immigration officers sued under the undisputed facts presented here.
The Court lacks jurisdiction over Plaintiffs’ claims against the United States
and those sued in their official capacities.
For all the foregoing reasons, it is therefore
ORDERED that the Individual Defendants’ Motion to Dismiss [Doc. # 11] is

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GRANTED. Plaintiffs’ claims against the Individual Defendants are DISMISSED
WITH PREJUDICE. It is further
ORDERED that the United States and Official-Capacity Defendants’ Motion
to Dismiss [Doc. # 12] is GRANTED. Plaintiffs’ claims against the United States and
the Official-Capacity Defendants are DISMISSED WITHOUT PREJUDICE.
A final order of dismissal will be filed separately.
SIGNED at Houston, Texas this 31st day of October, 2013.

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