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Carrero v. Farrelly

United States District Court, D. Maryland

September 19, 2017

MIRNA RUBIDIA ARTIGA CARRERO, Plaintiff,
v.
CHRISTOPHER FARRELLY, et al., Defendants.

          MEMORANDUM

          James K. Bredar United States District Judge

         Mirna Rubidia Artiga Carrero ("Plaintiff) filed a five-count complaint against various state and federal officials and entities seeking declaratory and injunctive relief, compensatory damages, and punitive damages stemming from her alleged unlawful arrest in 2014, which she contends was caused in part by federal policy regarding the identification and apprehension of aliens, like her, that are subject to a final order of removal. Pending before the Court is a motion to dismiss Counts 1 and 2 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative for summary judgment, filed by Defendants Christopher Farrelly and Baltimore County (the "State Defendants"). Also before the Court is a motion to dismiss Counts 3 through 5 pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, filed by Defendants the United States of America; Jefferson B. Sessions III, Attorney General of the United States; John F. Kelly, Secretary of the U.S. Department of Homeland Security ("DHS"); and Thomas D. Homan, Acting Director of Immigration and Customs Enforcement ("ICE") (the "Federal Defendants"). The motions have been fully briefed (ECF Nos. 13, 24, 27, and Nos. 28, 31, 32), and no hearing is required, Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, the State Defendants' motion will be denied and the Federal Defendants' motion will be granted in part and held in abeyance in part.

         I. Background

         Plaintiff is a citizen of El Salvador residing in Maryland. She originally entered the United States in 2005, at which time she was apprehended by United States Border Patrol and served a Notice to Appear before an immigration judge. In February 2006, Plaintiff failed to appear for her scheduled hearing and an order of removal was entered against her in absentia. Sometime shortly thereafter, ICE officials entered a civil warrant of removal for Plaintiff in the National Crime Information Center ("NCIC") database.

         The NCIC is an electronic database hosted by the Federal Bureau of Investigation ("FBI") and accessed daily by federal, state, and local law enforcement. The NCIC contains extensive criminal and civil identification records that are divided into twenty-one categories or "files." The database includes records of stolen property (e.g., boats, guns, license plates, vehicles) and records of persons (e.g., arrest records, wanted persons, sex offenders, gang members). One such file is the "Immigration Violator File, " which includes records of aliens, like Plaintiff, with outstanding civil warrants of removal.

         Throughout much of its history, the NCIC database did not include identification information for individuals with outstanding civil immigration warrants. This decision was based on FBI policy that limited "use of the NCIC Wanted Person File only to those persons for whom warrants have been issued and who may be arrested by any law enforcement officer with the power to arrest'' (Compl. Ex. 7, ECF No. 1-7, Memorandum for Joseph R. Davis, Assistant Director - Legal Counsel FBI, from United States Department of Justice Office of Legal Counsel, at 1 (April 11, 1989) (emphasis added).) Because state and local law enforcement officers "are not authorized to execute INS warrants of arrest, " id. at 2 n.3, individuals subject to such warrants cannot be arrested "by any law enforcement officer with the power to arrest, " id. at I. Therefore, the memorandum concluded that civil warrants of removal could not be included in the NCIC database consistent with FBI policy. The OLC reaffirmed this view in a subsequent memorandum issued in 1996. (ECF No. 1-8, Memorandum Opinion for the United States Attorney Southern District of California (Feb. 5, 1996).) However, in late 2001 and early 2002, the Department of Justice, through its then-subordinate agency the Immigration and Naturalization Service, shifted course and began to include records of individuals with outstanding civil warrants of removal in the NCIC. Plaintiff is one such individual.

         II. Allegations of the Complaint[1]

         On August 26, 2014, at approximately 12:30 a.m., Plaintiff was driving home with her sister after completing her shift at a fast food restaurant. She came to a stop at a red light next to a Baltimore County police patrol car driven by Defendant Officer Farrelly. Plaintiff alleges that Officer Farrelly turned to look at her and observed that she was Latina. After both vehicles proceeded through the intersection, Officer Farrelly moved into the right lane behind Plaintiff and activated his signal lights for her to pull over. Plaintiff stopped immediately. Officer Farrelly approached the vehicle and asked for her driver's license and proof of insurance, and Plaintiff provided her license which was marked "Not Acceptable for Federal Purposes." (ECF No. 1 ¶ 20.)[2]

         Approximately ten minutes later, Officer Farrelly returned to Plaintiffs vehicle and informed her that he had stopped her because she did not have insurance. However, Plaintiff had valid insurance for the vehicle at the time of the stop. Officer Farrelly then went back to his vehicle. During one of his trips to his vehicle Officer Farrelly entered Plaintiffs identification information in the NCIC database, which revealed that she had an outstanding civil warrant of removal but no criminal record. Ten more minutes passed and Officer Farrelly again approached Plaintiffs car and, without mentioning her insurance, asked her a series of questions regarding her immigration status. After questioning Plaintiff about her family and immigration history, Officer Farrelly stated that he "had to arrest her" and needed to "investigate her situation further and ... get more information." (ECF No. 1 ¶ 25.)

         Officer Farrelly placed Plaintiff in the back of his patrol car and transported her to the Howard County Detention Center in Jessup, Maryland. During the ride, Officer Farrelly used his cell phone to call someone who appeared to be instructing him to bring Plaintiff to the detention center. Officer Farrelly and Plaintiff arrived at approximately 2 a.m. and were met in the parking lot by an ICE agent who took custody of Plaintiff and placed her in handcuffs. After being processed in Baltimore the next day, Plaintiff was taken to an immigration facility in Snow Hill, MD, where she remained for six weeks.

         Plaintiff alleges five causes of action stemming from the entry of her information in the NCIC database and her subsequent seizure based on that information. She brings two claims against the State Defendants pursuant to 42 U.S.C. § 1983 and Monell v. Dep 't of Soc. Servs. of City of New York, 436 U.S. 658 (1978):

• Count 1 - unreasonable seizure in violation of the Fourth and Fourteenth Amendments; and
• Count 2 - discrimination on the basis of race (and/or national origin) in violation of the Fifth and Fourteenth Amendments.

         Her remaining three claims implicate only the Federal Defendants. First, she seeks declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202, alleging that she is at imminent risk of suffering an unlawful seizure in the future in violation of the Fourth Amendment (Count 3) and that the individual Federal Defendants have exceeded their statutory authority by including civil warrant information in the NCIC database (Count 4). Specifically, she seeks a declaration "that the federal defendants' policy and practice of entering and disseminating civil immigration information to state and local law enforcement officials through the NCIC database is not authorized by statute, " and an injunction prohibiting the Federal Defendants "from maintaining a record of [her] civil immigration information in the NCIC database, " and ordering "its immediate expungement from that database." (ECF No. 1 at 17.) Finally, Plaintiff seeks damages against the United States pursuant to the Federal Tort Claims Act ("FTCA"), alleging that the federal government caused her to be falsely arrested and imprisoned (Count 5).

         III. Standard of Review

         A. Standard for Dismissal under Rule 12(b) (1)

         The Plaintiff bears the burden of proving subject-matter jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see also Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (noting challenge may be either facial, i.e., complaint fails to allege facts upon which subject-matter jurisdiction can be based, or factual, i.e., jurisdictional allegations of complaint are not true); Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) ("When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff"). In the case of a factual challenge, it is permissible for a district court to "consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg, 945 F.2d at 768 (citing Adams, 697 F.2d at 1219). A challenge to a plaintiffs standing "implicates th[e] court's subject matter jurisdiction." Long Term Care Partners, LLC v. United States, 516 F.3d 225, 230 (4th Cir. 2008).

         B. Standard for Dismissal under Rule 12(b) (6)

         A complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. An inference of a "mere possibility of misconduct" is not sufficient to support a plausible claim. Id. at 679. However, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable." Twombly, 550 U.S. at 556. Even so, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 555. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (alteration in original) (citation omitted) (quoting Twombly, 550 U.S. at 555, 557).

         IV. Analysis

         A. The State Defendants' Motion to Dismiss

         Plaintiff alleges that Officer Farrelly violated her constitutional rights when he stopped, detained, and ultimately arrested her. More specifically, she contends that Officer Farrelly initially stopped her solely because she appeared to be Latina. Further, she alleges that even if the initial stop was justified, Officer Farrelly unreasonably prolonged the stop solely in order to investigate her immigration status. Plaintiff argues that both the initial stop and subsequent detention violated her Fourth and Fifth Amendment rights. Moreover, she contends that Baltimore County is liable under Monell because it failed to adequately train Officer Farrelly.

         The State Defendants put forth a number of arguments in support of their motion to dismiss. First, they contend that the Complaint fails to state a claim against Officer Farrelly or the County because: (1) Plaintiff does not allege she is a "citizen of the United States or other person within the jurisdiction thereof, " (State Def 's Mot., ECF No. 13 at 1); (2) Plaintiff fails to allege that the State Defendants caused her injury; and (3) Officer Farrelly was acting under color of federal-not state-law when he stopped and arrested Plaintiff. Furthermore, the State Defendants offer two individual defenses: (1) the County provided adequate training, and therefore it is not liable under Monell; and (2) Officer Farrelly is entitled to qualified immunity. In addition, the State Defendants refute many of the material allegations in Plaintiffs Complaint and argue in the alternative that the Court should grant summary judgment in their favor. The Court declines to consider these materials and convert the motion into one for summary judgment.[3] Rather, taking the allegations in the Complaint as true and drawing all reasonable inferences in Plaintiffs favor, as the Court must, the Court concludes that the Complaint states a plausible claim for relief against the State Defendants.

         1. The Complaint States a Valid Claim Against Both State Defendants

         The State Defendants first suggest that Plaintiffs complaint must be dismissed because she does not allege that she is "a citizen of the United States or other person within the jurisdiction thereof." (State Def's Mot. to Dismiss, ECF No. 13-1 at 10.) They provide no support for the notion that a § 1983 claim must explicitly plead United States citizenship or personhood nor can the Court find any. Rather, "[i]t is axiomatic that 'in any § 1983 action the initial inquiry must focus on whether the two essential elements of a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.'" Temkin v. Frederick Cty. Comm 'rs, 945 F.2d 716, 719 (4th Cir. 1991) (quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981)). Plaintiff has plausibly alleged these essential elements.

         The State Defendants attempt to turn the pleading standard on its head, focusing on the absence of magic words instead of the plausibility of the facts alleged. See, e.g., Twombly, 550 U.S. at 555 (rejecting pleading standard based on a "formulaic recitation of the elements of a cause of action"). In any event, Plaintiff alleges that she is "a 29-year old citizen of El Salvador" and that Officer Farrelly detained her on "U.S. Route 40" in "Baltimore County" (i.e., she alleges that she was a person within the jurisdiction of the United States at the time Officer Farrelly allegedly violated her constitutional rights). (ECF No. 1 ¶¶ 2, 9, 16.)

         The State Defendants' next summarily suggest that, "as an undocumented/illegal immigrant, Plaintiff lacks standing to bring this lawsuit." (ECF No. 13-1 at 11.) Although they offer only a partial citation in support of this argument, the Court presumes that the State Defendants intended to rely on Equal Access Educ. v. Merten, 325 F.Supp.2d 655 (E.D. Va. 2004). In Merten, the district court held that an illegal alien lacked standing to challenge state college admissions policies on the ground that those policies were preempted by federal law because the federal law at issue pertained only to legal aliens. Id. at 661. The court nowhere suggested the sweeping rule that the State Defendants appear to advocate for: that undocumented/illegal immigrants lack standing to bring suit ever. Indeed, in a prior opinion in the same case the district court held that, as "an object of the action ... at issue, " an illegal alien had standing to challenge the admissions policies themselves. Equal Access Educ. v. Merten, 305 F.Supp.2d 585, 595 (E.D. Va. 2004) (alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Moreover, the State Defendants' argument is directly at odds with the plain language of § 1983, which provides a cause of action to "any citizen of the United States or other person'' 42 U.S.C. § 1983 (emphasis added); see also Santos v. Frederick Cty. Bd. of Comm'rs, 725 F.3d 451, 457 (4th Cir. 2013) (addressing § 1983 claim brought by illegal alien); Cardenas v. Smith, 733 F.2d 909, 913 (D.C. Cir. 1984) (noting that immigration status of plaintiff is generally not relevant to standing analysis because "it is the injury and not the party that determines Article III standing").

         The State Defendants' causation argument is no more persuasive. They contend that because Plaintiff alleges her injury was caused, at least in part, by the Federal Defendants' policy of entering civil warrants of removal in the NCIC database, the State Defendants' could not have caused her injury. Section 1983 provides a cause of action to a person deprived of her constitutional rights against any person who "subjects, or causes [her] to be subjected" to such deprivation. 42 U.S.C. § 1983. A defendant need not be the sole cause of the harm suffered by the plaintiff. Rather, a person may be held liable under § 1983 "if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978); see Skundor v. Coleman, No. CIV.A. 5:02-0205, 2003 WL 22088342, at *9 (S.D. W.Va. July 31, 2003) (same), report and recommendation adopted sub nom. Skundor v. McBride, 280 F.Supp.2d 524 (S.D. W.Va. 2003), aff'dsub nom. Skundor v. Coleman, 98 F.App'x 257 (4th Cir. 2004); Salih v. Smith, No. CIV. HAR 93-1556, 1994 WL 750529, at *3 (D. Md. Nov. 8, 1994) ("To sustain a cause of action against a defendant pursuant to § 1983, the defendant must have directed or participated in the alleged constitutional violation of the plaintiffs civil rights." (emphasis added) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). Here, it is undisputed that Officer Farrelly stopped Plaintiffs car, detained her, and ultimately arrested her. Plaintiff alleges that each of these actions violated her Fourth and Fifth Amendment rights. Regardless of any allegations she makes against the Federal Defendants, she has plausibly alleged that Officer Farrelly directly participated in the deprivation of her constitutional rights.

         The same is true with respect to the Complaint's allegations against Baltimore County. Plaintiff alleges that, at the time she was detained, "Baltimore County supervisors and officials were aware that their police officers d[id] not have th[e] authority" to unilaterally stop and detain individuals based solely on suspected civil immigration violations. (ECF No. 1 ¶ 31.) The Complaint further alleges that the County failed to "provide specific training to Officer Farrelly or to any of his fellow patrol officers about the unlawfulness of stopping and arresting a person solely on suspicion of a civil immigration violation." (Id. ¶ 33.) And she contends that Baltimore County's failure to train Officer Farrelly, "caused [her] unlawful detention." (Id. ¶ 53, 56.) Her allegations against the Federal Defendants do not undermine her claims against the County any more so than they do her claims against Officer Farrelly. Plaintiff has plausibly alleged that the State Defendants' failure to train Officer Farrelly caused her to be deprived of her constitutional rights-nothing more is required at this time.

         2. Monell Claim

         The State Defendants next argue that Plaintiff fails to state a claim against the County as a matter of law because the Complaint does not allege that the failure to train Officer Farrelly "amounted to deliberate indifference to rights of persons with whom police come into contact."[4](ECF No. 13-1 at 13 (citing City of Canton v. Harris, 489 U.S. 378, 388-89 (1989).) The County also asserts that the Monell claim fails as a matter of fact because the County did in fact train Officer Farrelly regarding his authority (or lack thereof) to detain aliens suspected of civil immigration violations.[5] The Court concludes that the allegations in the Complaint, taken as true, state a plausible claim for Monell liability against Baltimore County.

         "Under Monell, a municipality's liability 'arises only where the constitutionally offensive actions of employees are taken in furtherance of some municipal "policy or custom.'"" Walker v. Prince George's Cty., 575 F.3d 426, 431 (4th Cir. 2009) (quotingMilligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir. 1984); see Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) ("Only in cases where the municipality causes the deprivation 'through an official policy or custom' will liability attach." (quoting Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999))). A policy or custom need not be express, however. Rather, it may present itself in one of several forms, including "through an omission, such as a failure to properly train officers, that 'manifest[s] deliberate indifference to the rights of citizens.'" Lytle, 326 F.3d at 471 (quoting Carter, 164 F.3d at 217); see Id. at 473 ("Section 1983 liability may attach if officers are not adequately trained 'in relation to the tasks the particular officers must perform, ' and this deficiency is 'closely related to the ultimate injury.'" (quoting Canton, 489 U.S. at 390-91)).

         To impose liability on a municipality based on a failure to train, a plaintiff must plead (and ultimately prove) that: (1) an employee of the municipality violated the plaintiffs constitutional or statutory rights; (2) the municipality failed to train its employees, manifesting a "deliberate indifference" to the rights of citizens; and (3) the failure to train actually caused the employees to violate the plaintiffs rights. See Canton, 489 U.S. at 388-92; Doe v. Broderick, 225 F.3d 440, 456 (4th Cir. 2000).

         A Plaintiff seeking to impose Monell liability based on a municipality's failure to train faces an uphill battle. '"[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Connick v. Thompson, 563 U.S. 51, 61 (2011) (quoting Bd. of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997)); Parrish v. Cleveland, 372 F.3d 294, 302-03 (4th Cir. 2004) ('"Deliberate indifference is a very high standard . . . .'"; it requires a showing that "the official in question subjectively recognized a substantial risk of harm" and "subjectively recognized that his actions were 'inappropriate in light of that risk'" (first quoting Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999), then quoting Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997))). For this reason, "[a] municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Connick, 563 U.S. at 61. Generally, "a failure to train can only form a basis for liability if 'it can be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional violations.'" Lytle, 326 F.3d at 474 (quoting Canton, 489 U.S. at 397 (O'Connor, J., concurring in part and dissenting in part)); see Connick, 563 U.S. at 62 ("A pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train." (quoting Bryan Cty., 520 U.S. at 409)).

         The Supreme Court, however, has opined that, '"in a narrow range of circumstances, ' a pattern of similar violations might not be necessary to show deliberate indifference." Connick, 563 U.S. at 63 (quoting Bryan Cty., 520 U.S. at 409). This so called "single incident" exception must be applied judiciously, however, to "avoid running afoul of the Supreme Court's consistent rejection of respondeat superior liability" arising from Monell claims. Valle v. City of Houston,613 F.3d 536, 549 (5th Cir. 2010); see Connick, 563 U.S. at 70 (noting that in failure to train cases courts "must adhere to a 'stringent standard of fault, ' lest municipal liability under § 1983 collapse into respondeat superior" (quoting Bryan Cty., 520 U.S. at 406)). Thus, to prove deliberate indifference based on a single incident, a Plaintiff must show that the constitutional violation at issue was the "patently obvious" or "highly predictable" consequence of the municipality's failure to provide additional specified training. Connick, 563 U.S. ...


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