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Guo Hua Ke, Hector Enrique Estrada Gonzales, Wen Jian He, Ji v. John Morton

September 29, 2012


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:


In this action, brought pursuant to 42 U.S.C. §§ 1983 and 1985, Plaintiffs claim that their civil rights were violated when Immigration and Customs Enforcement ("ICE") Work Site Enforcement Unit ("WSE") agents entered Plaintiffs' residence, questioned Plaintiffs about their immigration status, and arrested them for civil immigration violations, all in furtherance of a criminal investigation. (See Am. Cmplt.) Defendants now move to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6) or, in the alternative, for summary judgment. (See Not. of Mot.) For the reasons stated below, Defendants' motion to dismiss will be GRANTED.


Plaintiffs Guo Hua Ke, Hector Enrique Estrada Gonzalez, Wen Jian He, Ji Lin, Sau Lan Ng, Ahr Kion Tin ("AK Tin"), and Yoke Eng Tin ("YE Tin"), all resided at 937 Danbury Road in Wilton, Connecticut, on September 8, 2010, when immigration agents conducted the raid at issue in this litigation. (Am. Cmplt. ¶¶ 9-15)

Defendant John Morton, is the Director of ICE in Washington, D.C. (Id. ¶ 16) Defendant James Chaparro is Executive Associate Director of ICE's Office of Enforcement and Removal Operations ("ERO") in Washington, D.C. (Id. ¶ 17) Defendant Christopher Shanahan is the Field Office Director for ICE ERO in New York. (Id. ¶ 18) Defendant James Dinkins is the Executive Associate Director for ICE's Office of Homeland Security Investigations ("HSI") in Washington, D.C. (Id. ¶ 19) Defendant James T. Hayes Jr. is the Special Agent-in-Charge of ICE HSI in New York. (Id. ¶ 20) Defendant Thomas F. Farrell is Assistant Inspector General at the U.S. Department of Labor ("DOL") in Washington, D.C. (Id. ¶ 21) Defendant Patrick Heerey was the ICE ERO Case Officer for this matter in New York. (Id. ¶ 22)*fn1

The Office of Enforcement and Removal Operations, and the Office of Homeland Security Investigations, operate within different directorates at ICE, with different chains of command, and with different responsibilities. HSI conducts investigations and arrests illegal aliens. ERO manages and oversees the civil immigration detention system, and is thus responsible for detaining and removing illegal aliens after they are arrested. (Buchanan Decl., Exs. K, N, M, E at 33-35, 71-73)

Plaintiffs allege that on the morning of September 8, 2010, ICE agents raided the "employee dormitory" where they resided. (Id. ¶ 25) The housing was provided by the restaurant where Plaintiffs worked. (Id. ¶ 25) ICE agents woke the Plaintiffs, asked them to assemble in the living room, and asked for identification documents and immigration status. (Id. ¶¶ 25-32) Plaintiff AK Tin alleges that an ICE agent followed her to her room to retrieve her identification, and that the agent watched as she changed her clothes and went to the bathroom. (Id. ¶ 31) Plaintiffs also complain that agents told them that if they did not tell the truth they "will have trouble." (Id. ¶¶ 30-31) ICE agents arrested all of the Plaintiffs, placing Ke and Lin in metal handcuffs, and the rest in rope ties. (Id. ¶ 25) Plaintiffs further allege that the ICE agents did not show Plaintiffs any identification or paperwork, such as a search warrant. (Id. ¶¶ 27, 33)

ICE agents drove the Plaintiffs to New York and placed them in a "cold and dirty" room that had "food and garbage all over the floor." (Id. ¶ 35) Agents then interrogated the Plaintiffs. Plaintiff Ke alleges that he was "in a very bad condition mentally at the time" and that he was "confused." (Id. ¶ 35) Plaintiff AK Tin alleges that the ICE agent never informed her of her rights. (Id. ¶ 36) Plaintiffs also allege that they were shown a photo array, and asked to identify the "boss" or "owner" of the restaurant where they worked. (Id. ¶¶ 38-39)

ICE's Worksite Enforcement Unit, which is part of the HSI directorate, conducted the September 2010 raid at issue. (Id. ¶ 49) After Plaintiffs had been arrested and their sworn statements were memorialized, Plaintiffs Ke, Lin, and He were turned over to ERO for detention, because each was subject to a final order of removal. (Buchanan Decl., Ex. E at 72-73, Ex. P at 5-6, 27-29, 32) The other Plaintiffs were released the same day as their arrest. (Id., Ex. P at 11, 16, 21, 26)

ICE initiated criminal proceedings against Ke*fn2 , and on October 12, 2010, he was transferred from immigration custody to the Metropolitan Detention Center in Brooklyn, New York. (Id. ¶¶ 46-47)

The Amended Complaint alleges that Defendants Morton, Chaparro, Shanahan, Dinkins, Hayes, and Farrell (collectively, the "Supervisory Defendants") oversee and directly implement ICE policy establishing the Worksite Enforcement Unit, which carried out the raid at issue. (Id. ¶ 49) The Complaint further asserts that public comments made by the Supervisory Defendants suggest that they have acquiesced to "repeated . . . inappropriate action taken by ICE personnel in carrying out agency policy." (Id. ¶ 48)

The Amended Complaint alleges that the Supervisory Defendants also oversee and directly implement ICE policy that established Fugitive Operations Teams ("FOT"). Citing to a 2006 ICE memorandum, Plaintiffs allege that the Supervisory Defendants pressured Defendants Heerey and the John Doe and Jane Roe Defendants "to meet an annual quota of capturing 1,000 fugitive aliens per [FOT]." (Id. ¶ 50) Plaintiffs further allege that ICE policy has changed to permit collateral arrests of civil status violators to count toward FOT arrest quotas, thus removing the requirement that FOT focus on "criminal aliens." (Id. ¶ 51) The Supervisory Defendants allegedly encourage these "collateral arrests." (Id. ¶ 54)

Plaintiffs further allege that "lawsuits against DHS and ICE officials throughout the country" have placed the Supervisory Defendants on notice of "unconstitutional home raids conducted by ICE agents." (Id. ¶ 52) Plaintiffs go on to allege that the Supervisory Defendants encouraged Heerey and the John Doe and Jane Roe defendants to not obtain warrants before entering the Plaintiffs' residence. (Id. ¶ 53) In support of this allegation, Plaintiffs cite to a June 14, 2007 fax sent by Michael Chertoff, then Secretary of the Department of Homeland Security, to former Senator Christopher Dodd, stating that "[a] warrant is not necessary when arresting someone who is in the country illegally." (Id., Ex. C) In connection with the raid at issue here, Plaintiffs allege that Heerey and John Doe and Jane Roe Defendants utilized an "administrative warrant to gain illegal entry into a residence by forcing their way through the door or climbing through windows." (Id. ¶ 54)

Finally, Plaintiffs allege that the Supervisory Defendants have not implemented any specific guidelines, protocols or training to ensure that ICE officers under their supervision conduct arrests within constitutional limits, nor have they investigated allegations of unlawful conduct during home raids such as that at issue here. (Id. ¶¶ 56-57)

This action was filed on November 17, 2010. (Dkt. No. 1) On August 26, 2011, Plaintiffs filed an Amended Complaint. (Dkt. No. 24) On October 12, 2011, Defendants moved to dismiss the Amended Complaint. (Dkt. No. 25)



A.Motion to Dismiss

"To survive a motion to dismiss," a claim "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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In making this determination, a court must be mindful of two corollary rules. "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555); see also DeJesus v. Sears, Roebuck & Co., 87 F.3d 65, 70 (2d Cir. 1996) ("[a] complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6)") (citation omitted); Iqbal, 556 U.S. at 678 ("'a formulaic recitation of the elements of a cause of action'" is insufficient to survive a motion to dismiss) (quoting Twombly, 550 U.S. at 555)). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679 (citing Twombly, 550 U.S. at 556). The Supreme Court has stated that "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679 (citation omitted).

In deciding a Rule 12(b)(6) motion, "the Court may consider documents that are referenced in the complaint, documents that the plaintiffs relied on in bringing suit and that are either in the plaintiffs' possession or the plaintiffs knew of when bringing suit, or matters of which judicial notice may be taken." In re Loral Space & Commc'ns. Ltd. Secs. Litigation, 01 Civ. 4388 (JOK), 2004 WL 376442, at *2 (S.D.N.Y. Feb. 27, 2004) (citing, inter alia, Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). "[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment." Int'l Audiotext Network, Inc. v. AT & T Co., 62 F.3d 69, 72 (2d Cir. 1995) (citations omitted).

A court may also consider "public documents of which the plaintiff has notice." Brodeur v. City of New York, No. 04-CV-1859(JG), 2005 WL 1139908, at *3 (E.D.N.Y. May 13, 2005) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991)). Where a complaint's allegations contradict the terms of documents incorporated by reference, "the documents control and this Court need not accept as true the allegations in [a] complaint." Rapoport v. Asia Electronics Holding Co., Inc., 88 F. Supp. 2d 179, 184 (S.D.N.Y. 2000) (citing Sazerac Co., v. Falk, 861 F. Supp. 253, 257 (S.D.N.Y. 1994)).

Here, Defendants have attached as exhibits to their moving papers the following documents, inter alia: the docket sheet, orders and opinions, transcripts of proceedings, and briefing in United States v. Ke, 10 Cr. 887(PGG) (see Buchanan Decl., Exs. B-H); ICE organizational charts and ICE website biographical information concerning several of the Defendants, and a DOL organizational chart (id., Exs. K-O); and copies of Plaintiffs' sworn statements made at the time of their arrest, and documents related to Plaintiffs' immigration status, including a release record, warrant of removal, and removal order. (Buchanan Decl., Ex. P)

The materials from the parallel Ke criminal proceeding are all public records and are properly considered on a motion to dismiss. Brodeur, 2005 WL 1139908, at *3. The organizational charts and biographical materials are also "public documents." (Id.) This Court will also consider Plaintiffs' sworn statements made at the time of their arrest, and ICE release and removal records concerning Plaintiffs. Because the Amended Complaint includes claims relating to Plaintiffs' arrest and detention, these documents are integral to the Amended Complaint.

B.Constitutional Claims Under Bivens

This Court construes Plaintiffs' claims as having been brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). "[W]here an individual 'has been deprived of a constitutional right by a federal agent acting under color of federal authority,' the individual may bring a so-called Bivens action for damages against that federal agent in an individual capacity, provided that Congress has not forbidden such an action and that the situation presents 'no special factors counseling hesitation in the absence of affirmative action by Congress.'" Lombardi v. Whitman, 485 F.3d 73, 78 (2d Cir. 2007) (internal citations omitted) (quoting Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006)). In other words, a Bivens action allows suit against a federal employee acting under color of federal law for damages resulting from the violation of an individual's constitutional rights. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70-71 (2001). The Bivens cause of action "is the federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983." Iqbal, 556 U.S. at 677.

To be liable, a Bivens defendant must have been "personally involved in the claimed constitutional violation." Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009). Because the doctrine of respondeat superior does not apply, see Iqbal, 556 U.S. at 676, "[a] supervisory official cannot be liable solely on account of the acts or omissions of his or her subordinates." Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801 (SAS), 2009 WL 1835939, at *4 (S.D.N.Y. June 26, 2009) (citation omitted); Rivera v. Lempke, 810 F. Supp. 2d 572, 576 (W.D.N.Y. 2011) ("[m]ere failure to correct, or acquiescence in, a lower-level employee's violation is not enough"). A Bivens complaint that does not allege the personal involvement of each defendant is "fatally defective on its face." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (internal quotations and citations omitted). Government officials "cannot be held liable unless they themselves" engaged in ...

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