Castillo v. Skwarski, No. C08-5683BHS, 2009 U.S. Dist. Lexis 11516 (W.D. WASH. Dec. 10, 2009).

If, on a motion to dismiss for failure to state a claim, matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. Fed. R. Civ. P. 12(d). In compliance with this rule of procedure, the Court will first consider Defendants' motion to dismiss and arguments regarding Plaintiff's failure to state a claim.

The adequacy of pleadings is governed by Fed. R. Civ. P. 8(a)(2), which requires that a complaint allege a short and plain statement of the claim showing that the pleader is entitled to relief. This rule requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Plaintiffs must allege enough facts to state a claim to relief that is plausible on its face.

Determining whether the allegations in a complaint are "plausible" is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. If the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint should be dismissed for failing to show that the pleader is entitled to relief as required by Rule 8(a)(2).

Bivens v. Six Unknown Named Agents of the Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) was the first Supreme Court decision authorizing plaintiffs to bring claims for money damages against individual federal officials based on constitutional violations where no federal statute authorized such a suit; courts have subsequently referred to these as "Bivens claims."

In Ashcroft v. Iqbal, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009), the Supreme Court stated that because vicarious liability is inapplicable to Bivens suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution. Although this holding seems to have limited the liability of supervisors, the Court disagrees with Defendants' proposition that supervisor liability has been "eliminated."

In an opinion issued post-Iqbal, the Ninth Circuit identified four general situations in which supervisory liability may be imposed: (1) for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury; (2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinates; or (4) for conduct that shows a reckless or callous indifference to the rights of others.

Where the plaintiff alleges only that the defendant "was responsible for training and supervision" and that he failed to provide "proper and adequate training," the pleaded facts against the defendant are no more than labels and conclusions. Based on these assertions, the Court is left to simply infer the mere possibility of culpable conduct by the defendant. Therefore, this court grants the defendants' motion on this issue and the plaintiff's claims against the defendant are dismissed without prejudice.

Where the plaintiff has alleged that (1) the defendant unlawfully approved the Form I-213 and issued an invalid Notice to Appear when he knew, or recklessly or callously disregarded evidence that the plaintiff was a United
States citizen, and (2) the defendant's failure to conduct any investigation into the I-213, despite inconsistencies, demonstrates deliberate indifference to the plaintiff's constitutional rights, this court finds that the plaintiff has pled sufficient facts to state a claim that is plausible on its face. Therefore, this court denies the defendants' motion to dismiss the plaintiff's claim against the defendant.

The seizure of an individual violates the Fourth Amendment if it is objectively unreasonable under the circumstances. Where the complaint alleges that both the arrest warrant and the supporting documents (Form I-213 and Form I-862) plainly were replete with material omissions -- including the omission of the plaintiff’s detailed statements that he is a U.S. Citizen – and they are replete with false statements -- including inaccurate reports of the plaintiff’s immigration history rendering those documents invalid, this court agrees that the complaint contains sufficient factual allegations to create a plausible claim for a violation of an individual's Fourth Amendment rights. Therefore, the defendants' motion is denied on this issue.

With respect to the Fifth Amendment, the Ninth Circuit has recently held that, when a court is dealing with the detention of an individual who claims to be a United States citizen, if the individual's claim is true, his detention under the Immigration and Nationality Act violates the Non-Detention Act as well as the Due Process Clause of the Constitution. Where it is undisputed that the plaintiff was a United States citizen and that he was detained by ICE, this court finds that the plaintiff has alleged facts that create a plausible claim for a violation of the plaintiff's due process rights. Therefore, the defendants' motion is denied on this issue.

Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth.

The determination of the existence of a material fact is often a close question. This court must consider the substantive evidentiary burden that the nonmoving party must meet at trial -- e.g., a preponderance of the evidence in most civil cases. This court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed.

Government officials enjoy qualified immunity from civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Thus, if a constitutional violation occurred, officials are entitled to qualified immunity if they acted reasonably under the circumstances. Qualified immunity balances two important interests -- the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably and protects all but the plainly incompetent or those who knowingly violate the law. In resolving a claim of qualified immunity, courts must determine whether, taken in the light most favorable to a plaintiff, the defendant's conduct violated a constitutional right, and if so, whether the right was clearly established. While often beneficial to address in that order, courts have discretion to address the two-step inquiry in the order they deem most suitable under the circumstances.

The Supreme Court has recognized that limited discovery, tailored to the issue of qualified immunity, will sometimes be necessary before a district court can resolve a motion for summary judgment. This court agrees with the plaintiff to the extent that limited discovery is appropriate to develop the record as to the facts regarding qualified immunity issues. Therefore, this court will deny the defendants' motion for summary judgment without prejudice pursuant to Fed. R. Civ. P. 56 (f)(1). The parties are ordered to confer and submit (1) a proposed limited discovery schedule and (2) a deadline for either a dispositive motion re: qualified immunity or a full joint status report as previously ordered by this court.

Silva-Trevino v. Waktins, No. 1:09-cv-00001 (TXSD Dec. 10, 2009).

Section 1226(c)(I) of Title 8 provides that aliens who have committed certain crimes must be detained during their removal proceedings. In Demore v. Kim, 538 U.S. 510, (2003), the Supreme Court upheld the constitutionality of mandatory detention under § 1226(c), reasoning that detention during deportation proceedings is "a constitutionally valid aspect of the deportation process" because it facilitates the effective removal of deportable aliens. A corollary of this principle is that when detention has lasted so long that its "justification - preventing flight - is weak or nonexistent where removal seems a remote possibility at best, then it can no longer bear a reasonable relation to the purpose for which the individual was committed. Thus, the Supreme Court distinguished the Demore case from that of Zadvydas because detention during removal proceedings necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed. In contrast, the Court noted that the Zadvydas petitioners were aliens for whom removal was no longer practically attainable. Hence, in Zadvydas, the Supreme Court held that detention after an alien has been ordered removed cannot be indefinite and must be limited by principles of due process, even though the statute governing post-removal detention does not specify a particular time limit. Based on its reading of Congressional intent, the Supreme Court determined that detention beyond six months would be presumptively unreasonable.

The Supreme Court has also distinguished detention under § 1226(c) from the potentially "indefinite" or "potentially permanent" detention under § 1231 (a) that it found required limits in Zadvydas v. Davis. Because detention under § 1226(c) has a definite termination point, which in the majority of cases lasts for less than the 90 days the Court considered presumptively valid in Zadvydas, and only about five months in the minority of cases in which the alien chooses to appeal, the Supreme Court rejected the habeas petition challenging § 1226(c) mandatory detention. Notably, throughout the Demore opinion, the Court explicitly stated that the detention anticipated under § 1226(c) would be for a brief period of time. The concurrence and fifth vote in favor of the judgment in Demore also hinted that the Due Process Clause limits the reach of § 1226(c) detention, concluding that were there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary to then inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.

Where DHS claims that the petitioner is dangerous, yet it will not deport him, one therefore concludes that either the petitioner is not dangerous or he is being held for some other reason. Either way, DHS cannot apprehend someone, imprison him, and then throwaway the key.

Where DHS, more than four years ago, took the then sixty-six-year-old petitioner who pleaded no contest to indecency with a minor under the age of 17 into custody pending the resolution of his removal case, and where the now seventy-year-old petitioner is still without an administratively final order of removal and is still in detention, this court must grant the habeas corpus petition, particularly when it has given the Government many months to rectify the situation. This court's holding is the direct result of the unconscionable action or, more accurately, the unconscionable inaction, of the Government. To take more than four years to deport an alien who voluntarily pleaded guilty to a serious offense--indecency with a minor--not only offends any notion of prompt justice, it breaches any semblance of constitutional propriety. This is especially true given that this court made it clear to the Government's counsel months ago that immediate action was imperative.

Even though the petitioner on occasion has exercised his rights which has at times delayed the final resolution of this matter, the total delay caused by the petitioner's actions, which amounts to no more than one year, is a mere fraction of the four years that he has been in custody. This means the Government has held the petitioner through delays unrelated to the exercise of his rights for at least three years without any resolution, well exceeding the finding by the Supreme Court in Demore v. Kim, 538 U.S. 510, (2003), that the average time for proceedings of this type was less than ninety (90) days or even that Court's conclusion that the proceedings take five months in the vast minority of circumstances where the alien appeals the IJ's decision. Thus, this Court is left with no other course of action, particularly when the Government ignored this court’s warnings on several occasions over a ten-month period against inaction. No one should be imprisoned for four years without a proper adjudication. The Government has failed in this instance to comply with the Constitution and in doing so may arguably be putting the public at risk. Nevertheless, this Court has been given no reason, much less a credible reason, for this delay.

While sympathetic to the rationales underlying the mandatory detention scheme of 8 U.S.C. § 1226(c), this Court finds that the petitioner's detention pending his removal proceedings has crossed the line of reasonableness and no longer relates to the goal of the statute. Given the past inaction, it is not reasonable to expect that actual removal will be accomplished; in fact, it is not reasonably foreseeable that it will even be ordered.

In the instant case, the petitioner’s detention cannot continue consistent with the rights guaranteed by the Fifth Amendment's Due Process Clause. His detention has lasted seven to eight times longer than six-month limit that the Supreme Court considered presumptively reasonable. Moreover, the likelihood of removal in the reasonably foreseeable future, based upon the record in this case, is virtually nil. The Government has had four-plus years to remove the petitioner, but has accomplished nothing. This Court gave the immigration officials more than a generous amount of time to reach a decision before it would even reconsider the petitioner's request for relief, yet the petitioner still awaits a final decision on his removal case. This court then gave the Government another sixty days-still nothing. Nor has the BIA ruled on the appeal since. The Government has offered not a shred of evidence to show that a final decision is likely to be reached soon or will ever be reached. Given that the goal of detention is to ensure removal, this Court finds that it is not reasonably related here because after four years, there is still no final order of removal. For the foregoing reasons, this Court grants the petitioner's Renewed Petition for Writ of Habeas Corpus.