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U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:17−cv−05052−SCJ

J.A.M. et al v. The United States of America Assigned to: Judge Steve C. Jones Cause: 28:2671 Federal Tort Claims Act Plaintiff Carlos Rene Morales TERMINATED: 08/06/2018
Plaintiff Rosa Vargas Morals TERMINATED: 08/06/2018

Date Filed: 12/11/2017 Jury Demand: None Nature of Suit: 360 P.I.: Other Jurisdiction: U.S. Government Defendant
represented by Bradley Bruce Banias Wasden Banias, LLC 1037 Chuck Dawley Blvd. Mount Pleasant, SC 29464 843−410−9340 Fax: 843−577−7708 Email: brad@wasdenbanias.com TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner Radford & Keebaugh, LLC Suite 1080 315 W. Ponce de Leon Avenue Decatur, GA 30030 404−271−0300 Email: dan@decaturlegal.com TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill Southern Poverty Law Center Suite 505 1055 St. Charles Avenue New Orleans, LA 70130 504−486−8982 Email: lisa.graybill@splcenter.org TERMINATED: 03/27/2020 LEAD ATTORNEY
Carlos M. Polanco , III Carlos M Polanco 2521 Piedmont Road, NE, Suite 2225 Atlanta, GA 30324 202−321−0770 Fax: 404−393−2837 Email: nycarlos@mac.com ATTORNEY TO BE NOTICED
represented by Bradley Bruce Banias (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill (See above for address)

Plaintiff Juan Mijangos Vargas TERMINATED: 08/06/2018
Plaintiff Juneidy Mijangos Vargas TERMINATED: 08/06/2018
Plaintiff D.M.V. TERMINATED: 08/06/2018

TERMINATED: 03/27/2020 LEAD ATTORNEY
Carlos M. Polanco , III (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Bruce Banias (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Carlos M. Polanco , III (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Bruce Banias (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Carlos M. Polanco , III (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Bruce Banias (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY

Plaintiff J.A.M. TERMINATED: 09/04/2018
Plaintiff Salvador Alfaro TERMINATED: 08/06/2018
Plaintiff Johana Guiterrez TERMINATED: 08/06/2018

Carlos M. Polanco , III (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Bruce Banias (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Carlos M. Polanco , III (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Bruce Banias (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
represented by Bradley Bruce Banias (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Jacob Rhein Ney Rhein, LLC 265 South Culver Street Lawrenceville, GA 30046 404−954−2220 Fax: 470−401−2539 Email: jacob@neyrhein.com

Plaintiff Y.S.G.R TERMINATED: 09/04/2018
Plaintiff J.I.G.R. TERMINATED: 09/04/2018
Plaintiff Lesly Padilla Padilla TERMINATED: 08/06/2018
Plaintiff

TERMINATED: 03/27/2020
represented by Bradley Bruce Banias (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Jacob Rhein (See above for address) TERMINATED: 03/27/2020
represented by Bradley Bruce Banias (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Jacob Rhein (See above for address) TERMINATED: 03/27/2020
represented by Bradley Bruce Banias (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Carlos M. Polanco , III (See above for address) ATTORNEY TO BE NOTICED

E.D.N.P. TERMINATED: 08/06/2018
Plaintiff E.I.N.P. TERMINATED: 08/06/2018
Plaintiff Juneidy Mijangos Vargas on behalf a minor, J.A.M.
Plaintiff Johana Gutierrez on behalf of minors, Y.S.G.R. and J.I.G.R.

represented by Bradley Bruce Banias (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Carlos M. Polanco , III (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Bruce Banias (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Carlos M. Polanco , III (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley Bruce Banias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Werner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa S Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlos M. Polanco , III (See above for address) ATTORNEY TO BE NOTICED
represented by Ann Grunewald Fort Eversheds Sutherland (US) LLP−GA Suite 2300

999 Peachtree Street, N.E. Atlanta, GA 30309−3996 404−853−8493 Email: annfort@eversheds−sutherland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley Bruce Banias (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Daniel Werner (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Lisa S Graybill (See above for address) TERMINATED: 03/27/2020 LEAD ATTORNEY
Jacob Rhein (See above for address) TERMINATED: 03/27/2020

V. Defendant The United States of America

represented by Gabriel Adam Mendel Office of the United States Attorney−ATL600 Northern District of Georgia 600 United States Courthouse 75 Ted Turner Dr., S.W. Atlanta, GA 30303 404−581−4623 Fax: 404−581−6181 Email: Gabriel.Mendel@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 12/11/2017
12/11/2017 12/11/2017
12/13/2017

# Docket Text
1 COMPLAINT, filed by J.A.M., Lesly Padilla Padilla, Juan Mijangos Vargas, Salvador Alfaro, Y.S.G.R, Rosa Vargas Morals, E.D.N.P., Johana Guiterrez, Juneidy Mijangos Vargas, Carlos Rene Morales, E.I.N.P., J.I.G.R., D.M.V.. ( Filing fee $ 400 receipt number 113E−7557215.) (Attachments: # 1 Civil Cover Sheet)(bnw) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 12/11/2017)
2 Electronic Summons Issued as to The United States of America. (Attachments: # 1 Summons Jefferson Sessions)(bnw) (Entered: 12/11/2017)
3 APPLICATION for Admission of Bradley Banias Pro Hac Vice (Application fee $ 150, receipt number 113E−7558960)by Salvador Alfaro, D.M.V., E.D.N.P., E.I.N.P., Johana Guiterrez, J.A.M., J.I.G.R., Juneidy Mijangos Vargas, Carlos Rene Morales, Rosa Vargas Morals, Lesly Padilla Padilla, Juan Mijangos Vargas, Y.S.G.R. (Attachments: # 1 Text of Proposed Order)(Werner, Daniel) (Entered: 12/11/2017)
4 APPLICATION for Admission of Lisa Graybill Pro Hac Vice (Application fee $ 150, receipt number 113E−7563459)by Salvador Alfaro, D.M.V., E.D.N.P., E.I.N.P., Johana Guiterrez, J.A.M., J.I.G.R., Juneidy Mijangos Vargas, Carlos Rene Morales, Rosa Vargas Morals, Lesly Padilla Padilla, Juan Mijangos Vargas, Y.S.G.R.

12/13/2017
12/20/2017 12/20/2017 12/21/2017
12/21/2017
12/27/2017 01/03/2018
01/04/2018 01/04/2018 01/04/2018
01/22/2018 02/16/2018 02/23/2018

(Attachments: # 1 Text of Proposed Order)(Werner, Daniel) (Entered: 12/13/2017)
5 ORDER OF RECUSAL. Judge Clarence Cooper recused. Case reassigned to Judge Steve C Jones for all further proceedings NOTICE TO ALL COUNSEL OF RECORD: The Judge designation in the civil action number assigned to this case has been changed to 1:17−cv−5052−SCJ. Please make note of this change in order to facilitate the docketing of pleadings in this case. Signed by Judge Clarence Cooper on 12/13/2017. (dob) (Entered: 12/13/2017)
RETURN of 3 APPLICATION for Admission of Bradley Banias Pro Hac Vice (Application fee $ 150, receipt number 113E−7558960) to attorney for correction. Residential address. (jkm) (Entered: 12/20/2017)
APPROVAL by Clerks Office re: 4 APPLICATION for Admission of Lisa Graybill Pro Hac Vice (Application fee $ 150, receipt number 113E−7563459). Attorney Daniel Werner added appearing on behalf of Carlos Rene Morales (jkm) (Entered: 12/20/2017)
6 APPLICATION for Admission of Bradley Banias Pro Hac Vice by Salvador Alfaro, D.M.V., E.D.N.P., E.I.N.P., Johana Guiterrez, J.A.M., J.I.G.R., Juneidy Mijangos Vargas, Carlos Rene Morales, Rosa Vargas Morals, Lesly Padilla Padilla, Juan Mijangos Vargas, Y.S.G.R. (Attachments: # 1 Text of Proposed Order)(Werner, Daniel) (Entered: 12/21/2017)
7 Return of Service Executed by J.A.M., Lesly Padilla Padilla, Juan Mijangos Vargas, Salvador Alfaro, Y.S.G.R, Rosa Vargas Morals, E.D.N.P., Johana Guiterrez, Juneidy Mijangos Vargas, Carlos Rene Morales, E.I.N.P., J.I.G.R., D.M.V.. All Defendants. (Attachments: # 1 Exhibit A: Return Receipt, Proof of Service on U.S. Attorney, N.D. Ga.)(Werner, Daniel) (Entered: 12/21/2017)
8 ORDER granting 4 Application for Admission Pro Hac Vice for Petitioner Lisa Graybill. Signed by Judge Steve C Jones on 12/27/2017. (rjs) (Entered: 12/27/2017)
APPROVAL by Clerks Office re: 6 APPLICATION for Admission of Bradley Banias Pro Hac Vice. Attorney Daniel Werner added appearing on behalf of Salvador Alfaro, D.M.V., E.D.N.P., E.I.N.P., Johana Guiterrez, J.A.M., J.I.G.R., Juneidy Mijangos Vargas, Carlos Rene Morales, Rosa Vargas Morals, Lesly Padilla Padilla (jkm) (Entered: 01/03/2018)
9 ORDER granting 6 Application for Admission Pro Hac Vice for Petitioner Bradley Banias. Signed by Judge Steve C Jones on 1/4/2018. (rjs) (Entered: 01/04/2018)
Clerks Certificate of Mailing to Bradley Banias re 9 Order on Application for Admission PHV. (rjs) (Entered: 01/04/2018)
10 Return of Service Executed by J.A.M., Lesly Padilla Padilla, Juan Mijangos Vargas, Salvador Alfaro, Y.S.G.R, Rosa Vargas Morals, E.D.N.P., Johana Guiterrez, Juneidy Mijangos Vargas, Carlos Rene Morales, E.I.N.P., J.I.G.R., D.M.V.. All Defendants. (Attachments: # 1 Exhibit A: Proof of Service, United States Attorney General)(Werner, Daniel) (Entered: 01/04/2018)
11 ADMINISTRATIVE ORDER STAYING CIVIL PROCEEDINGS IN LIGHT OF LAPSE OF APPROPRIATIONS. Signed by Judge Thomas W. Thrash, Jr on 1/22/2018. (rjs) (Entered: 01/22/2018)
12 MOTION to Dismiss with Brief In Support by The United States of America. (Attachments: # 1 Exhibit A − Vargas Orders of Removal, # 2 Exhibit B − Gutierrez Orders of Removal, # 3 Exhibit C − Padilla Orders of Removal)(Mendel, Gabriel) (Entered: 02/16/2018)
13 Consent MOTION for Extension of Time to File Response to the Defendant's Motion to Dismiss re: 12 MOTION to Dismiss with Brief In Support by Salvador Alfaro, D.M.V., E.D.N.P., E.I.N.P., Johana Guiterrez, J.A.M., J.I.G.R., Juneidy Mijangos Vargas, Carlos Rene Morales, Rosa Vargas Morals, Lesly Padilla Padilla, Juan Mijangos Vargas, Y.S.G.R. (Attachments: # 1 Brief in support of motion)(Banias, Bradley) (Entered: 02/23/2018)

02/27/2018
03/16/2018 03/30/2018 03/30/2018 08/06/2018
09/04/2018
09/18/2018 10/02/2018 10/16/2018 10/17/2018 12/26/2018 08/28/2019
09/10/2019 09/10/2019

14 ORDER granting 13 Motion for Extension of Time. The deadline for Plaintiffs to file a response to Defendant's 12 Motion to Dismiss is extended through and including March 16, 2018. The parties are advised that all future consent and/or joint motions must be accompanied by a proposed order. Signed by Judge Steve C Jones on 2/27/2018. (rjs) (Entered: 02/27/2018)
15 RESPONSE re 12 MOTION to Dismiss filed by Salvador Alfaro, D.M.V., E.D.N.P., E.I.N.P., Johana Guiterrez, J.A.M., J.I.G.R., Juneidy Mijangos Vargas, Carlos Rene Morales, Rosa Vargas Morals, Lesly Padilla Padilla, Juan Mijangos Vargas, Y.S.G.R. (Banias, Bradley) (Entered: 03/16/2018)
16 REPLY to Response to Motion re 12 MOTION to Dismiss filed by The United States of America. (Mendel, Gabriel) (Entered: 03/30/2018)
Submission of 12 MOTION to Dismiss to District Judge Steve C Jones. (rjs) (Entered: 03/30/2018)
17 ORDER: Defendant's 12 Motion to Dismiss is GRANTED as to Plaintiffs Carlos Rene Morales, Rosa Vargas Morales, Juan Mijangos Vargas, Juneidy Mijangos Vargas, D.M.V., Salvador Alfaro, Johana Gutierrez, Lesly Padilla Padilla, E.D.N.P. and E.I.N.P., and DENIED WITHOUT PREJUDICE TO REFILE as to Plaintiffs J.A.M., Y.S.G.R., and J.I.G.R. The remaining Plaintiffs shall replead their Complaint (in accordance with the instructions herein) within thirty days of the entry of this order. Signed by Judge Steve C. Jones on 8/6/2018. (rjs) (Entered: 08/06/2018)
18 First AMENDED COMPLAINT against The United States of America filed by J.A.M., Y.S.G.R, J.I.G.R..(Banias, Bradley) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions and Pretrial Associated Forms which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 09/04/2018)
19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support by The United States of America. (Attachments: # 1 Exhibit A − Vargas Orders of Removal, # 2 Exhibit B − Gutierrez Orders of Removal)(Mendel, Gabriel) (Entered: 09/18/2018)
20 RESPONSE in Opposition re 19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Johana Gutierrez, J.A.M., J.I.G.R., Juneidy Mijangos Vargas, Y.S.G.R. (Banias, Bradley) (Entered: 10/02/2018)
21 REPLY to Response to Motion re 19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by The United States of America. (Mendel, Gabriel) (Entered: 10/16/2018)
Submission of 19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM to District Judge Steve C. Jones. (rjs) (Entered: 10/17/2018)
22 Administrative Order Staying Civil Proceedings in Light of Lapse of Appropriations. Signed by Judge Thomas W. Thrash, Jr. on 12/26/2018. (rjs) (Entered: 12/27/2018)
23 ORDER: Defendant's 19 Motion to Dismiss Plaintiff's First Amended Complaint is GRANTED in part and DENIED in part. More specifically, Defendant's motion is granted as to Plaintiffs' claims for trespass, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress, as well as the claims for punitive damages, attorney's fees, and declaratory relief. The motion is denied as to Plaintiffs' claim for false imprisonment. Defendant shall file its answer in accordance with the requirements of Federal Rule of Civil Procedure 12 and applicable law. Signed by Judge Steve C. Jones on 8/28/2019. (rjs) (Entered: 08/29/2019)
24 Consent MOTION for Extension of Time to File Answer re 18 Amended Complaint, with Brief In Support by The United States of America. (Mendel, Gabriel) (Entered: 09/10/2019)
25 ORDER granting 24 Motion for Extension of Time to Answer. The United States of America shall be granted an extension of time to file an Answer through and including November 1, 2019. Signed by Judge Steve C. Jones on 9/10/2019. (rjs) (Entered: 09/10/2019)

10/17/2019 10/18/2019 12/19/2019 12/19/2019 02/27/2020 02/27/2020 03/02/2020 03/03/2020
03/10/2020
03/11/2020 03/12/2020 03/16/2020 03/17/2020
03/18/2020 03/19/2020 03/20/2020
03/23/2020

26 Joint MOTION to Stay with Brief In Support by The United States of America. (Mendel, Gabriel) (Entered: 10/17/2019)
27 ORDER granting 26 Motion to Stay. All deadlines in this matter are stayed until 12/16/2019. Signed by Judge Steve C. Jones on 10/18/2019. (rjs) (Entered: 10/18/2019)
28 Joint MOTION to Stay with Brief In Support by The United States of America. (Mendel, Gabriel) (Entered: 12/19/2019)
29 ORDER granting 28 Motion to Stay. All deadlines in this matter are stayed until March 1, 2020. Signed by Judge Steve C. Jones on 12/19/2019. (rjs) (Entered: 12/20/2019)
30 NOTICE of Appearance by Jacob Rhein on behalf of Johana Guiterrez, Johana Gutierrez, J.I.G.R., Y.S.G.R (Rhein, Jacob) (Entered: 02/27/2020)
31 MOTION to Substitute Attorney Jacob D. Rheinby Johana Guiterrez, Johana Gutierrez, J.I.G.R., Y.S.G.R. (Rhein, Jacob) (Entered: 02/27/2020)
32 ANSWER to 18 Amended Complaint by The United States of America. Discovery ends on 7/30/2020.(Mendel, Gabriel) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 03/02/2020)
33 MOTION to Substitute Attorney Carlos Polancoby D.M.V., E.D.N.P., E.I.N.P., J.A.M., Juneidy Mijangos Vargas, Carlos Rene Morales, Rosa Vargas Morals, Lesly Padilla Padilla, Juan Mijangos Vargas, Juneidy Mijangos Vargas. (Polanco, Carlos) (Entered: 03/03/2020)
34 (STRICKEN PER ORDER AT DOC. 40 )NOTICE of Acceptance of Offer of Judgment by Juneidy Mijangos Vargas , Rosa Vargas Morales, Carlos Rene Morales, Juan Mijangos Vargas, D.M.V., J.A.M., Lesley Padilla Padilla, E.I.N.P., and E.D.N.P. (Attachments: # 1 Exhibit A: Offer of Judgment, # 2 Exhibit B: Acceptance and Proof of Service, # 3 Text of Proposed Order)(Banias, Bradley) Modified on 3/24/2020 (rjs). (Entered: 03/10/2020)
35 RESPONSE re 34 Notice of Acceptance of Offer of Judgment, filed by The United States of America. (Mendel, Gabriel) (Entered: 03/11/2020)
36 RESPONSE re 34 Notice of Acceptance of Offer of Judgment, Supplemental Response filed by The United States of America. (Attachments: # 1 Exhibit A)(Mendel, Gabriel) (Entered: 03/12/2020)
37 Consent MOTION to Withdraw Jacob Rhein as Attorneyby Johana Guiterrez, J.I.G.R., Y.S.G.R. (Rhein, Jacob) (Entered: 03/16/2020)
38 REPLY re 36 Response, 35 Response filed by D.M.V., E.D.N.P., E.I.N.P., J.A.M., Juneidy Mijangos Vargas, Carlos Rene Morales, Rosa Vargas Morals, Lesly Padilla Padilla, Juan Mijangos Vargas, Juneidy Mijangos Vargas. (Banias, Bradley) Modified on 3/18/2020 (rjs). (Entered: 03/17/2020)
Submission of 31 MOTION to Substitute Attorney to District Judge Steve C. Jones. (rjs) (Entered: 03/18/2020)
Submission of 33 MOTION to Substitute Attorney to District Judge Steve C. Jones. (rjs) (Entered: 03/19/2020)
39 General Order 20−01 re: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONA VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 03/16/2020. (rvb) (Entered: 03/20/2020)
40 ORDER: The Court DIRECTS the Clerk to strike the Notice of Acceptance at Doc. No. 34 . Because Plaintiffs possibly face an order of costs at a later date, in the interest of caution, the Court will permit Plaintiffs an additional FOURTEEN DAYS from the entry of this Order to file a consistent written notice accepting the offer that accords with the Court's ruling, above and in accordance with the plain language of the United States' offer of judgment. Discovery in this case begins on APRIL 2, 2020. The attorneys of record are ORDERED to confer and file a joint preliminary

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report/proposed scheduling order within TEN DAYS of the entry of this Order. Signed by Judge Steve C. Jones on 3/23/2020. (rjs) (Entered: 03/24/2020)
41 ORDER granting 31 Motion to Substitute Attorney. Attorney Daniel Werner; Bradley Bruce Banias and Lisa S Graybill terminated. Signed by Judge Steve C. Jones on 3/27/2020. (rjs) (Entered: 03/27/2020)
42 ORDER granting 37 Motion to Withdraw as Attorney. Attorney Jacob Rhein terminated. Plaintiff Johana Gutierrez is ORDERED pursuant to Local Rule 83.1(E)(4) to notify this Court in writing within fourteen (14) days of the date of this Order of her new counsel or of her intention to proceed pro se. Plaintiff must also provide the Court with the current telephone number and address of her new counsel or of her current telephone number and address if she is proceeding pro se. The Clerk is DIRECTED to submit this matter to the undersigned if Plaintiff fails to comply. Signed by Judge Steve C. Jones on 3/27/2020. (rjs) (Entered: 03/27/2020)
Clerk's Certificate of Mailing as to Johana Gutierrez re 42 Order. (rjs) (Entered: 03/27/2020)
43 ORDER granting 33 Motion to Substitute Attorney. Carlos Polanco is substituted as counsel for Daniel Werner in the above captioned case for the following Plaintiffs: Rosa Vargas Morales, Carlos Rene Morales, Juan Mijangos Vargas, Juneidy Mijango Vargas, D.M.V., J.A.M., Lesley Padilla Padilla, E.I.N.P., and E.D.N.P. Further, Mr. Polanco will act as local counsel for both attorneys appearing pro hac vice in this case, Bradley Banias and Lisa Greybill. Signed by Judge Steve C. Jones on 3/27/2020. (rjs) (Entered: 03/27/2020)
Clerk's Certificate of Mailing as to Johana Gutierrez re 43 Order. (rjs) (Entered: 03/27/2020)
44 Joint MOTION for Extension of Time to extend deadline for Joint Preliminary Report and Discovery Plan with Brief In Support by The United States of America. (Mendel, Gabriel) (Entered: 04/01/2020)
45 ORDER granting 44 Motion for Extension of Time. It is ORDERED that the deadline for filing the parties' Joint Preliminary Report and Discovery Plan is extended until 4/10/2020. Signed by Judge Steve C. Jones on 4/1/2020. (rjs) (Entered: 04/01/2020)
Clerk's Certificate of Mailing as to Johana Gutierrez re 45 Order. (rjs) (Entered: 04/01/2020)
46 Amended General Order 20−01 re COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONA VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 3/30/20. (mmc) (ADI) (Entered: 04/02/2020)
Clerk's Certificate of Mailing as to Johana Gutierrez re 46 Notice (Other). (rjs) (Entered: 04/02/2020)
47 JOINT PRELIMINARY REPORT AND DISCOVERY PLAN filed by The United States of America. (Mendel, Gabriel) (Entered: 04/10/2020)
48 SECOND AMENDMENT TO GENERAL ORDER 20−01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONA VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 04/30/2020. (rvb) (ADI) (Entered: 05/04/2020)
Clerk's Certificate of Mailing as to Johana Gutierrez re 48 Notice (Other). (rjs) (Entered: 05/05/2020)
49 MOTION for Sanctions with Brief In Support by Juneidy Mijangos Vargas. (Attachments: # 1 Memorandum In Support, # 2 Exhibit A: Mediation Agreement)(Banias, Bradley) (Entered: 05/05/2020)
NOTICE OF ZOOM VIDEO PROCEEDING: Status Conference set for 5/14/2020 at 10:30 AM before Judge Steve C. Jones. Connection Instructions: Join ZoomGov Meeting https://ganduscourts.zoomgov.com/j/1608560852 Meeting ID: 160 856 0852 Password: 348282 One tap mobile +16692545252,,1608560852#,,1#,348282# US (San Jose) +16468287666,,1608560852#,,1#,348282# US (New York) Dial by your

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05/14/2020 05/14/2020 05/21/2020

location +1 669 254 5252 US (San Jose) +1 646 828 7666 US (New York) Meeting ID: 160 856 0852 Password: 348282 Find your local number: https://ganduscourts.zoomgov.com/u/abDCmQ6IDK Join by SIP 1608560852@sip.zoomgov.com Join by H.323 161.199.138.10 (US West) 161.199.136.10 (US East) Meeting ID: 160 856 0852 Password: 348282 You must follow the instructions of the Court for remote proceedings available here. Photographing, recording, or broadcasting of any judicial proceedings, including proceedings held by video teleconferencing or telephone conferencing, is strictly and absolutely prohibited. (pdw) (Entered: 05/05/2020)
50 SCHEDULING ORDER: re: 47 Joint Preliminary Report and Discovery Plan. The parties' request for an extended discovery period beginning June 1, 2020 is DENIED. Discovery in this matter will commence on May 11, 2020 conclude on September 11, 2020. Any motions for summary judgment or the proposed consolidated pretrial order must be filed on or before October 11, 2020. If a motion for summary judgment is filed, the proposed consolidated pretrial order must be filed within 30 days after this Courts ruling thereon. If neither motion(s) for summary judgment nor the proposed pretrial order are timely filed, the Clerk is directed to submit this matter for the Court for consideration. Signed by Judge Steve C. Jones on 5/5/2020. (rjs) (Entered: 05/05/2020)
Clerk's Certificate of Mailing as to Johana Gutierrez re 50 Scheduling Order. (rjs) (Entered: 05/05/2020)
51 CERTIFICATE OF SERVICE First Request to Produce to Plaintiff Johana Gutierrez, on behalf of minors Y.S.G.R. and J.I.G.R. by The United States of America.(Mendel, Gabriel) (Entered: 05/11/2020)
52 CERTIFICATE OF SERVICE First Request to Produce to Juneidy Mijangos Vargas, on behalf of minor J.A.M. by The United States of America.(Mendel, Gabriel) (Entered: 05/11/2020)
53 CERTIFICATE OF SERVICE Defendant's Initial Disclosures by The United States of America.(Mendel, Gabriel) (Entered: 05/11/2020)
54 RESPONSE in Opposition re 49 MOTION for Sanctions filed by The United States of America. (Mendel, Gabriel) (Entered: 05/11/2020)
55 ORDER: The Court REFERS this matter to Chief Magistrate Judge Alan J. Baverman for assignment to a magistrate judge to appoint an attorney to represent the legal interests of Plaintiffs/minors, Y.S.G.R. and J.I.G.R. and serve as the attorney of record in this case. The mother/representative for Y.S.G.R. and J.I.G.R., Ms. Johana Guiterrez, shall have TEN DAYS from the entry of this order to file a written objection to this Order. Said objections shall be mailed to the Clerks Office for the Northern District of Georgia at the following address: Richard B. Russell Federal Building 2211 United States Courthouse 75 Ted Turner Drive, S.W. Atlanta, Georgia 30303−3309. The Clerk is DIRECTED to mail a copy of this Order to Ms. Guiterrez at both the address of record on the Clerk's docket and to the following address: 1115 Sunrise Field Court Lawrenceville, Georgia 30043. Ms. Guiterrez is further ADVISED of her duty pursuant to Local Rule 41.2(B) to keep the Clerk's Office informed of her current address. To this regard, upon receipt of this Order, Ms. Guiterrez must immediately send written confirmation of her address to the Clerk's Office at the Clerk's Office address listed above. Signed by Judge Steve C. Jones on 5/14/2020. (rjs) (Entered: 05/14/2020)
Clerk's Certificate of Mailing as to Johana Gutierrez re 55 Order to both addresses. (rjs) (Entered: 05/14/2020)
56 Minute Entry for proceedings held before Judge Steve C. Jones: Status Conference held on 5/14/2020 via Zoom. Counsel advised the Court that a global settlement has not yet been achieved. (Court Reporter David Ritchie)(pdw) (Entered: 05/19/2020)
57 ORDER: The Court APPOINTS Ann Grunewald Fort of the law firm, Eversheds Sutherland (US) LLP to serve as pro bono counsel for the plaintiffs−minors, Y.S.G.R. and J.I.G.R. It is further ORDERED that former counsel for the plaintiffs−minors (Bradley Banias, Daniel Werner, and Lisa Graybill) shall immediately contact Ms. Fort and provide the full legal names of the plaintiffs−minors. Signed by Judge Steve

C. Jones on 5/21/2020. (rjs) (Entered: 05/21/2020)

 
 Case 1:17-cv-05052-SCJ Document 1 Filed 12/11/17 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

Carlos Rene Morales, Rosa Vargas

)

Morales, Juan Mijangos Vargas, Juneidy )

MijangosVargas, D.M.V., J.A.M.,

)

Salvador Alfaro, Johana Gutierrez,

)

Y.S.G.R., J.I.G.R., Lesly Padilla Padilla, )

E.D.N.P, and E.I.N.P.,

)

)

Plaintiffs, )

)

v.

)

)

The United States of America,

)

)

Defendant. )

___________________________________ )

C/A No.:_____________________

COMPLAINT When “police” knock on your door, show you a picture of a “criminal,” and tell you they are looking for him or her, it is reasonable to fling your door wide open. But when it turns out the agents are not police, and they are not looking for a criminal (because there is no criminal), and they are, in fact, immigration agents looking for one of your family members, it cannot reasonably be argued that you provided knowing consent for a complete search of your home. This case arises from a series of immigration raids in and around Atlanta targeting families during New Year’s in 2016. Immigration agents used “ruses” to gain access to three families’ homes. Such conduct is egregious; its victims are innocent parents and their children; and its damages are lasting and substantial.

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PARTIES 1. Plaintiff Rosa Vargas Morales is a national and citizen of Guatemala. She permanently
resides in Stone Mountain, Georgia, in DeKalb County. She is the mother of co-Plaintiffs Juan Mijangos Vargas, Juneidy Mijangos Vargas, and D.M.V; the sister to co-Plaintiff Carlos Rene Morales; and the grandmother to co-Plaintiff J.A.M. 2. Plaintiff Carlos Rene Morales is a national and citizen of Guatemala. He permanently resides in Stone Mountain, Georgia, in DeKalb County. He is the uncle to co-Plaintiffs Juan Mijangos Vargas, Juneidy Mijangos Vargas, and D.M.V.; the brother to co-Plaintiff Rosa Vargas Morales; and the great-uncle to co-Plaintiff J.A.M. 3. Plaintiff Juan Mijangos Vargas is a national and citizen of Guatemala. He permanently resides in Stone Mountain, Georgia, in DeKalb County. He is the brother of co-Plaintiffs Juneidy Mijangos Vargas and D.M.V.; the nephew to co-Plaintiff Carlos Rene Morales; the uncle to co-Plaintiff J.A.M.; and the son of co-Plaintiff Rosa Vargas Morales. He was 17years old at the time of the raid. 4. Plaintiff Juneidy Mijangos Vargas is a national and citizen of Guatemala. She permanently resides in Stone Mountain, Georgia, in DeKalb County. She is the sister of co-Plaintiffs Juan Mijangos Vargas and D.M.V.; the niece to co-Plaintiff Carlos Rene Morales; the mother of co-Plaintiff J.A.M.; and the daughter of co-Plaintiff Rosa Vargas Morales. 5. Plaintiff D.M.V. is a national and citizen of Guatemala. She permanently resides in Stone Mountain, Georgia, in DeKalb County. She is the sister of co-Plaintiffs Juan Mijangos Vargas and Juneidy Mijangos Vargas; the niece to co-Plaintiff Carlos Rene Morales; the aunt of co-Plaintiff J.A.M.; and the daughter of co-Plaintiff Rosa Vargas Morales. Plaintiff D.M.V. is a minor; she is 13-years old. She was ten years old at the time of the raid.
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6. Plaintiff J.A.M. is a national and citizen of the United States. He permanently resides in Stone Mountain, Georgia, in DeKalb County. He is the nephew of co-Plaintiffs Juan Mijangos Vargas and D.M.V.; he is the great nephew to co-Plaintiff Carlos Rene Morales; he is the daughter of co-Plaintiff Juneidy Mijangos Vargas; and the grandson of co-Plaintiff Rosa Vargas Morales. Plaintiff J.A.M. is a minor; he is three years old. He was one year and five months old at the time of the raid.
7. Plaintiff Salvador Alfaro is a national and citizen of El Salvador. He permanently resides in Norcross, Georgia, in Gwinnett County. He is the husband to co-Plaintiff Johana Gutierrez.
8. Plaintiff Johana Gutierrez is a national and citizen of Honduras. She permanently resides in Norcross, Georgia, in Gwinnett County. She is the wife of co-Plaintiff Salvador Alfaro and the mother of co-Plaintiffs Y.S.G.R. and J.I.G.R.
9. Plaintiff Y.S.G.R. is a United States citizen. Y.S.G.R. permanently resides in Norcross, Georgia, in Gwinnett County. Y.S.G.R. is the child of co-Plaintiff Johana Gutierrez. Y.S.G.R. is a minor; she is 14 years old. She was 12 years old at the time of the raid.
10. Plaintiff J.I.G.R. is a United States citizen. He permanently resides in Norcross, Georgia, in Gwinnett County. J.I.G.R. is the child of co-Plaintiff Johana Gutierrez. J.I.G.R. is a minor; he is ten years old. He was nine years old at the time of the raid.
11. Plaintiff Lesly Padilla Padilla is a national and citizen of Honduras. She permanently resides in Atlanta, Georgia, in DeKalb County. She is the mother of co-Plaintiffs E.D.N.P. and E.I.N.P.
12. Plaintiff E.D.N.P is a national and citizen of Honduras. He permanently resides in Atlanta, Georgia, in DeKalb County. He is the son of co-Plaintiff Lesly Padilla Padilla and the twin
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brother of co-Plaintiff E.I.N.P. Plaintiff E.D.N.P. is a minor; he is 11 years old. He was nine years old at the time of raid. 13. Plaintiff E.I.N.P. is a national and citizen of Honduras. He permanently resides in Atlanta, Georgia, in DeKalb County. He is the son of co-Plaintiff Lesly Padilla Padilla, and the twin brother of co-Plaintiff E.D.N.P. E.I.N.P. is a minor; he is 11 years old. He was nine years old at the time of the raid. 14. Defendant United States of America is the appropriate defendant under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., for the tort claims in this Complaint.
JURISDICTION AND VENUE 15. This Court has jurisdiction over all claims in this case under 28 U.S.C. § 1331, 28 U.S.C.
§ 1346(b)(1), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq. 16. This Court has authority to enter declaratory relief under 28 U.S.C. § 2201. 17. This complaint is timely under 28 U.S.C. § 2401(b) because the tortious acts occurred on or
before January 2, 2016; the Plaintiffs filed the administrative complaints with the DHS and ICE on October 27, 2016; the agencies denied those claims on June 12, 2017; and this suit was filed on December 11, 2017. 18. Venue is proper in the Northern District of Georgia under 28 U.S.C. §§ 1391, 1402(b) because a substantial part of the events giving rise to the claims occurred in this district and the Plaintiffs reside in this district. 19. All administrative remedies have been exhausted under 28 U.S.C. § 2675.
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FACTS Operation Border Resolve 20. In December 2015, the United States Department of Homeland Security (“DHS”) approved an Enforcement and Removal Operation (“ERO”) entitled “Operation Border Resolve.” The objective of Operation Border Resolve was to target “Family Units” for deportation. 21. DHS directed its sub-agency, Immigration and Customs Enforcement (“ICE”), to execute Operation Border Resolve. 22. Operation Border Resolve specifically targeted family units from El Salvador, Honduras, and Guatemala living in nine major U.S. metropolitan areas, including Atlanta, Georgia. 23. DHS set a numeric goal for apprehensions and deportations at 400 individuals. 24. DHS encouraged ICE field offices to allocate more agents to each enforcement team than it typically would. DHS allocated funds to cover the cost of the additional agents. 25. Because Operation Border Resolve targeted family units, DHS directed ICE field offices to ensure that the enforcement teams took the necessary supplies to detain children—including car seats, diapers, baby food, and baby formula. 26. DHS did not require ICE field offices to notify local law enforcement agencies about the planned raids. 27. DHS directed ICE to conduct the raids on January 2 and 3, 2016, between the hours of 6:00 AM and 10:00 PM. 28. DHS directed that all personnel assigned to Operation Border Resolve be trained on the Fourth Amendment. 29. ICE specifically instructs its agents that, if they claim to be a member of local law enforcement during a ruse, the agents must notify the local law enforcement agency beforehand.
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30. On January 2 and 3, 2016, ICE agents conducted this multistate enforcement operation, sweeping into homes across Georgia, North Carolina, and Texas.
31. ICE agents arrested 121 people during Operation Border Resolve and transferred them to an immigration detention facility in Dilley, Texas.
32. The ICE Field Office Director for Atlanta seeks to scare foreign nationals through such raids and searches. He is quoted as saying: “If you’re in this country illegally, you should be scared. . . . We’re probably going to come knocking at some point.” Lee, Vivian, “Please, God, Don’t Let Me Get Stopped”: Around Atlanta, No Sanctuary for Immigrants, N.Y. Times at A1 (Nov. 26, 2017). The Vargas Family
33. Plaintiff Rosa Vargas Morales (“Ms. Vargas”) lives in the Stone Mountain home with her son Plaintiff Juan Mijangos Vargas; her daughters, Plaintiff Juneidy Mijangos Vargas and D.M.V.; her grandchild J.A.M.; and her brother, Plaintiff Carlos Rene Moran Morales.
34. At approximately 4:00 AM on Saturday, January 2, 2016, the family was awakened by the doorbell ringing, banging on the front door, and flashlights shining through the windows of the home.
35. Plaintiff Carlos Rene Morales (“Mr. Morales”) looked out the window and saw approximately nine unmarked and unfamiliar cars outside his home and approximately five officers standing outside. He observed “POLICE” labels on the back of the officers’ jackets, and “ICE” on the back of one agent’s jacket.
36. This knocking, doorbell ringing, and shining of flashlights into the house persisted while the family cowered in the hallway, unsure of what to do.
37. At one point, Mr. Morales opened a bathroom window to speak to the officers.
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38. They asked Mr. Morales to open the door so they could speak to him, but when he asked for an explanation, they refused to provide any information about why they wanted to speak with him.
39. The officers eventually left. 40. The family was terrified to leave their home that day, but they needed certain food items.
Later that morning, Mr. Morales left the house to go to the grocery store. 41. When he returned home, two cars stopped him near the driveway of the house. 42. Two men, wearing jackets labeled “ICE” exited the cars, approached Mr. Morales’ car, and
asked to see his driver’s license. 43. In Spanish, Mr. Morales asked the agents why they had pulled him over. They provided no
traffic-related reason for stopping him. 44. Rather, the agents stated in Spanish that they knew a criminal suspect named “Miguel Soto”
was in Mr. Morales’ home. They told Mr. Morales that they could arrest him for obstructing a criminal investigation. 45. Mr. Morales explained that there was no Miguel Soto in the home; the agents then stated that they saw Mr. Soto enter the house that morning. Mr. Morales provided the agents with the names of the people who were present in the house to explain that no one named Miguel Soto lived or was currently staying there. 46. The agents continued to insist to Mr. Morales that they needed to enter the house. They repeatedly threatened that he would be arrested for obstructing a criminal investigation if he did not let them in the house. Mr. Morales feared the agents would arrest him unless he proved to them that no one named “Miguel Soto” was in the house.
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47. Mr. Morales again—and repeatedly—tried to explain that no one named “Miguel Soto” lived in his home.
48. Mr. Morales observed guns on both agents. 49. Both agents yelled at and threatened Mr. Morales throughout the interaction. 50. Mr. Morales told the agents that he would obtain the identification cards of the people
currently present in the home to show that no one named “Miguel Soto” was present there. The agents followed him to his front door. 51. The agents told Mr. Morales that they wanted to enter the home. He asked them if they had a warrant. The agents told him that a judge had signed a warrant and they needed to come in. They never produced or otherwise proved to Mr. Morales that they had a warrant to enter his home. 52. At the entry to the home—and prior to touching the door knob—Mr. Morales explained to the agents that he would enter the home to obtain the identification cards of the people inside. He specified that the agents should wait outside, and they verbally agreed. 53. The agents did not seek his consent to enter the home. 54. He did not provide them with consent to enter his home. 55. Regardless, as Mr. Morales turned the door knob to enter his home, he observed one agent put his hand on the door above his head to push the door, and he heard the other agent simultaneously kick on the door. 56. The door opened, and the agents entered the home. 57. Mr. Morales never gave the agents verbal permission to enter the home, and he never indicated otherwise that he consented to their entry. Nor did any other occupant of the house provide verbal or other consent to the agents’ entry.
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58. The two ICE agents ordered the family members to gather in the living room and provide identification.
59. Mr. Morales provided identification for his entire family. After the agents looked at the IDs, Mr. Morales asked the agents why they were still there. They falsely stated that they were waiting on another agent with a scanner to check that the IDs were real. This was a lie, as no agent ever scanned their IDs.
60. Mr. Morales, Ms. Vargas, her two adult children, and her infant grandchild then waited in the room for approximately 40 minutes, until a female agent arrived. D.M.V. remained asleep in her room. During this time, the Vargas Family felt that they were not free to leave the room, where the armed agents were detaining them.
61. At one point, Mr. Morales stood up to relieve discomfort in his back, and an agent pushed him down, telling Mr. Morales to stay seated or he would be arrested.
62. Upon arriving, the female agent read aloud the names of Rosa Vargas Morales, and her children, Juan Mijangos Vargas, Juneidy Mijangos Vargas and D.M.V. She explained that the agents were there to arrest them, because Ms. Vargas had missed an immigration court date. The agent said that Ms. Vargas and all three of her children would need to pack bags and come with them. Mr. Morales stated that Ms. Vargas had not missed a single court date, but the agent responded that she did not want to hear the family’s explanations.
63. The agents gave Ms. Vargas and her children bags and instructed them to pack personal belongings for the trip.
64. The agents then asked about D.M.V. Ms. Vargas explained she was downstairs sleeping. 65. Ms. Vargas escorted the female agent to D.M.V.’s bedroom. The agent took the blanket and
sheets off D.M.V. and physically shook her awake.
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66. D.M.V. woke up terrified and trembling. The agent told D.M.V. they had to leave, grabbed her by the shoulders, and pulled her up. D.M.V. was ten years old at the time.
67. The agents decided not to bring Ms. Vargas’s older daughter, Juneidy Mijangos Vargas, with them, because she is the mother of J.A.M. who was an infant at the time. The agents escorted Ms. Vargas, Juan Mijangos Vargas and D.M.V. to a vehicle and drove them to an immigration detention center in Atlanta.
68. During the transport to the Atlanta detention center and while detained there, Ms. Vargas complained of a migraine and asked for water. She was never given water. She asked the detention staff in Atlanta for access to prescription Ibuprofen that she had brought with her other belongings. They refused to give it to her.
69. At the Atlanta detention center, agents pressured Ms. Vargas to sign papers. They refused to explain the nature or content of the documents. She repeatedly refused and requested a phone call to speak with her immigration attorney. They denied her the opportunity to speak with her attorney. Eventually, she succumbed to their pressure and signed the documents.
70. In the evening of that same day, Ms. Vargas and her children were transported by plane to Texas. On the flight, Ms. Vargas again requested her medication and was denied. Ms. Vargas fainted on the plane.
71. A few days after arriving in Texas, the Board of Immigration Appeals granted Ms. Vargas and her two minor children a stay of deportation. However, ICE continued to detain them for several weeks, at detention centers in Texas and Pennsylvania. The Board of Immigration Appeals subsequently vacated the removal orders against them.
72. Ms. Vargas and her children were detained altogether for over a month in ICE detention facilities located in Georgia, Texas, and Pennsylvania.
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73. Ms. Vargas and her children returned to their home in Stone Mountain. 74. Plaintiff Rosa Vargas Morales experienced and continues to experience serious emotional
pain and suffering as a result of the agents’ actions during the raid. Since the raid, she suffers from debilitating mood swings. She often isolates herself. She saw both a counselor and psychiatrist for treatment at a mental health service provider in Atlanta. The provider discontinued treatment after January 2017. 75. Ms. Vargas also saw and continues to see an out-of-state psychologist via video calls. 76. While detained in Texas, Ms. Vargas was treated for depression. Her headaches got so bad on two occasions during her detention that she was transported to a local hospital for treatment. 77. After the raid, Plaintiff D.M.V. woke up every morning in tears. She struggled with nightmares for months. She didn’t want to go to school. D.M.V. refused to walk to the school bus without an escort, even though the bus stop was just outside of her house. Her performance in school suffered significantly. 78. After the raid, Plaintiff Juan Mijangos Vargas refused to take the bus to school. He became more irritable and aggressive at school, and his academic performance suffered. Because his teachers noticed a marked change in his behavior and performance, the school counselor requested to meet with him and met with him several times. She recommended additional counseling. 79. After the raid, Plaintiff Juneidy Mijangos Vargas stayed in the house and refused to leave. She had never before been separated from her mother. During that time, she often refused to leave her bedroom and interact with the other family members. She ate very little for a month following the raid. She refused to eat dinner with the family at the dinner table. Though she
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had been an excellent student, she dropped out of high school after the raid. Because ICE did not take Ms. Mijangos Vargas on account of J.A.M., she believed that ICE would take her at a later time, when she was not with her child. Counselors, teachers, and family tried to convince her to go back to school, but she continued to refuse. Her mental anguish has gone untreated. 80. After the raid, Ms. Mijangos Vargas would not leave J.A.M. alone. Before, she was able to leave him with other people. She feels very protective of him. Now, when J.A.M. is around a new person, he is frightened and nervous. 81. After the raid, Mr. Morales suffered mental anguish. He struggles to overcome feelings of anger and helplessness. His mental anguish has gone untreated. 82. ICE agents did not have a warrant that permitted them to enter or search the Vargas Family home or detain Plaintiffs Rosa Vargas Morales, Carlos Rene Morales, Juan Mijangos Vargas, Juneidy Mijangos Vargas, D.M.V., and J.A.M. 83. No exigent circumstances existed that would allow ICE agents to enter or search the Vargas Family home or detain Plaintiffs Rosa Vargas Morales, Carlos Rene Morales, Juan Mijangos Vargas, Juneidy Mijangos Vargas, D.M.V., and J.A.M. 84. Mr. Morales did not give consent for ICE agents to enter or search the Vargas Family home or detain Plaintiffs Rosa Vargas Morales, Carlos Rene Morales, Juan Mijangos Vargas, Juneidy Mijangos Vargas, D.M.V., and J.A.M. Nor did any other occupant or resident give consent to the agents’ entry and search of the Vargas Family home.
The Gutierrez Family 85. The Gutierrez Family comprises Plaintiffs Salvador Alfaro, Johana Gutierrez, and her
children, Y.S.G.R., and J.I.G.R.
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86. At approximately 5:00 AM, on Saturday, January 2, 2016, residents of the Gutierrez Family home awoke to the sound of loud banging on the front door and ringing of the doorbell.
87. At that time, Plaintiffs Gutierrez, Alfaro, Y.S.G.R. (age 12), and J.I.G.R. (age 9) along with Ms. Gutierrez’s niece, Ana Lizeth Mejia Gutierrez, and her son, W.G.M. (age 10) were present and asleep in the home.
88. Ms. Gutierrez and Mr. Alfaro got out of bed and went downstairs to the front door. Through the front window, they could see officers with flashlights and unfamiliar, unmarked cars in front of the house.
89. In English, Ms. Gutierrez asked, “Who is it?” 90. The officers held up a photo through the window, and shined their flashlights on it. It was a
picture of an African American man. They indicated that the man was a criminal suspect and they had been told that the person in the photo was in the Gutierrez Family home. 91. Ms. Gutierrez had repeatedly been a victim of assault. She was frightened by the possibility that a strange man might be in her home. 92. Mr. Alfaro opened the door and approximately five or six officers pushed past them and immediately entered the house. 93. The officers who entered the house had guns on their hips. 94. The officers searched the entire house—some going into the living room, others going upstairs. They checked all rooms, including the laundry room, kitchen, and garage, and they looked underneath beds and in closets. 95. The officers woke everyone in the house and brought them—in their pajamas—into the living room where they detained them for 30 minutes to an hour. Everyone was scared and confused. The children were crying.
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96. The officers asked for Ms. Ana Mejia Gutierrez, and her son, W.G.M. 97. When Ms. Gutierrez realized that the officers were not police, but rather ICE agents, she tried
to get her phone to make a call, but an agent told her not to move. 98. One agent stood between the family in the living room and the front door throughout the raid.
None of the Plaintiffs felt free to leave. At one point, the agents asked for identification cards. Ms. Gutierrez offered to go upstairs to get the IDs, and the agent in the living room told her not to move, placing his hand on his holstered gun. 99. The agents instructed Ms. Ana Mejia Gutierrez to get a change of clothes for herself and her son, W.G.M. She went upstairs with an agent to gather some clothes. The agents looked through all of their things, and then brought her downstairs where they patted her down. 100. Ms. Gutierrez asked the agents why they had lied to enter the house. They told her to be quiet. She asked about her rights. The agent standing at the door told her that she would get her rights once they left with her niece, Ms. Ana Mejia Gutierrez. 101. The agent guarding the door threatened to arrest Ms. Gutierrez several times. 102. Ms. Gutierrez told the agents that they were violating her rights. She told them they were traumatizing the children, that they should have a warrant, and that they had lied. The interpreter heard her, but stopped interpreting what she said. 103. Ms. Gutierrez’s young nephew, W.G.M., was sitting alone, away from the others in the living room. Ms. Gutierrez saw that he was trembling. She motioned for W.G.M. to come over to her, so that she could comfort him. The agent stationed in the living room commanded W.G.M. not to move. 104. The agents arrested Ms. Ana Mejia Gutierrez and W.G.M. On their way out, Ms. Gutierrez tried to hug W.G.M. but an agent put his hand between them, blocking her.
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105. The agents took Ms. Ana Mejia Gutierrez and W.G.M. to several detention facilities in different states. The Board of Immigration Appeals subsequently vacated the final removal orders against Ms. Ana Mejia Gutierrez and W.G.M.
106. After the raid, Y.S.G.R. missed school for a week. Y.S.G.R. refused to sleep alone. Y.S.G.R. indicated to a classmate that she was thinking about harming herself. She was reported to a school counselor who referred her to a psychologist. She met with the psychologist and later her pastor to work through the mental anguish and pain as a result of the raid.
107. As a result of the raid, J.S.G.R. has suffered significant emotional pain and distress. J.S.G.R. has met with the family’s pastor.
108. As a result of the raid, Ms. Gutierrez has suffered emotional pain and distress. She has trouble remembering things and she struggles with constant anxiety and nervousness.
109. As a result of the raid, Mr. Alfaro suffered emotional pain and suffering. He has experienced increased stress and anguish. He felt helpless because he could not help Ms. Gutierrez with her fears and anxiety. For a year after the raid, their marital relationship suffered.
110. ICE agents did not have a warrant that permitted them to enter or search the Gutierrez family home or detain Ms. Gutierrez, Mr. Alfaro, Y.S.G.R., or J.S.G.R.
111. No exigent circumstances existed that would allow ICE agents to enter or search the Gutierrez family home or detain Ms. Gutierrez, Mr. Alfaro, Y.S.G.R., or J.S.G.R.
112. Neither Ms. Gutierrez nor Mr. Alfaro gave and could have given knowing or voluntary consent for ICE agents to enter or search the Gutierrez family home or detain Ms. Gutierrez,
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Mr. Alfaro, Y.S.G.R., or J.S.G.R. because the ICE agents gained entry by lying about their purpose for entry and remained after Ms. Gutierrez asserted her rights.
The Padilla Family 113. The Padilla Family comprises Plaintiffs Lesly Padilla Padilla and her minor sons,
E.D.N.P. and E.I.N.P, who are twin brothers. 114. From mid-2014 to January 2016, approximately a year and a half, the family lived in a
first-floor, two-bedroom apartment in Norcross, Georgia. 115. At approximately 8:00 AM on Saturday, January 2, 2016, officers knocked loudly on Ms.
Padilla’s door. 116. Ms. Padilla left her bedroom, where her boys were sleeping, and went to the front door.
Through the closed door, in Spanish, she asked, “How can I help you?” The officers initially responded in English, then switched to Spanish, stating that they believed a criminal suspect was present in her apartment. 117. Ms. Padilla looked through the peephole. She could see approximately five officers outside of her apartment. She saw “POLICE” on the back of one officer’s jacket. The ICE agents did not inform her that they were immigration agents; nor did they present any identification or identify themselves as “ICE” on their clothing. 118. An officer showed her a photo of an African American man, and stated in Spanish that the man in the photo was a criminal suspect named “David.” The officer told her that they had been told that the suspect lived at her address. 119. Ms. Padilla told the officers that the man did not live at her apartment and he was not in her apartment.
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120. The officers again requested to enter and search the home to ensure the criminal suspect was not in the apartment.
121. Ms. Padilla believed that the officers were conducting a criminal investigation and looking for a criminal suspect named “David.” Based on this belief, she opened the door and the officers entered her apartment.
122. Had Ms. Padilla been informed or otherwise learned that the agents were immigration officers, she would have refused their entry.
123. Approximately five officers entered the home, and they immediately ordered everyone to gather in the living room.
124. The officers searched the entire apartment, including closets and cabinets. 125. The officers asked everyone in the apartment for their names and identification. 126. Ms. Padilla and her children (age 9) did not believe that they were free to leave the living
room, where they were detained by the officers. Ms. Padilla asked the officers if she could check her phone, because she was expecting a call from her boss. An officer took her phone and refused to give it to her. 127. After completing the search, an agent asked Ms. Padilla in Spanish for her full name and the length of time she had been residing in the Norcross apartment. Immediately after Ms. Padilla provided the information, the officer exited the apartment and quickly returned with documents and two additional officers. The officers then revealed that they were ICE agents, not police officers, and that they were there to arrest Ms. Padilla and her children for deportation.
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128. She told them she was not aware of any deportation order in her case, and that she had an immigration attorney and an ankle monitor. She asked to call her attorney and the ICE agents refused.
129. The agents then told her that she and her children had to come with them. They instructed her to bring extra clothing, but she insisted that they wouldn’t need it. Two agents followed Ms. Padilla into her bedroom, with her sons. One of her boys asked, “Why are they taking us? What did we do wrong?” She helped them with their jackets, and then the agents loaded her and her two crying children into an unmarked car. The children cried throughout the encounter.
130. ICE detained and transported Ms. Padilla, E.D.N.P., and E.I.N.P. to a detention center in Atlanta and that evening, they were transported by plane to a detention center in Dilley, Texas.
131. The Padilla Family was detained altogether for approximately one month and four days in ICE facilities located in Georgia, Texas, and Pennsylvania.
132. After their release, Ms. Padilla and her two sons returned to the Atlanta area. 133. As a result of the immigration raid, Ms. Padilla, and her sons E.D.N.P. and E.I.N.P., have
suffered serious emotional distress. This includes E.D.N.P. and E.I.N.P. having nightmares for months after the raid. They also get very anxious if someone knocks at the door. When someone knocks at the front door, they demand that Ms. Padilla check whether it is immigration agents before opening the door. 134. Prior to the raid, E.D.N.P. and E.I.N.P. both attended school regularly, and they were doing well academically. Since the raid, they have been performing poorly in school.
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135. Ms. Padilla sought mental health treatment for post-raid stress and guilt experienced by herself and her sons, but she could not afford anything beyond an initial consult.
136. Thus, their conditions have gone untreated. 137. Ms. Padilla suffers physical illness when she thinks about raid. 138. The trauma from the 2016 raid has compounded prior trauma experienced by the Padilla
Family in their home country, Honduras. They fled Honduras because the father of E.D.N.P. and E.I.N.P. was extremely abusive to Ms. Padilla, and the authorities in Honduras failed to stop the abuse. 139. During her detention, Ms. Padilla lost her apartment and the family possessions located in the apartment. 140. ICE agents did not have a warrant that permitted them to enter or search the Padilla family home or detain Ms. Padilla, E.D.N.P., or E.I.N.P. 141. No exigent circumstances existed that would allow ICE agents to enter or search the Padilla family home or detain Ms. Padilla, E.D.N.P., or E.I.N.P. 142. Ms. Padilla did not give and could not have given knowing or voluntary consent for ICE agents to enter or search the Padilla family home or detain Ms. Padilla, E.D.N.P., or E.I.N.P. because the ICE agents gained entry by lying about their purpose for entry. 143. During all raids of the Vargas Family, the Gutierrez Family, and the Padilla Family, ICE agents were acting within the scope of their employment. 144. During all raids of the Vargas Family, the Gutierrez Family, and the Padilla Family, ICE agents had no judicially issued warrant. 145. During all raids of the Vargas Family, the Gutierrez Family, and the Padilla Family, ICE agents were not engaged in discretionary decision making.
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146. During all raids of the Vargas Family, the Gutierrez Family, and the Padilla Family, ICE agents did not exercise due care.
147. During all raids of the Vargas Family, the Gutierrez Family, and the Padilla Family, ICE agents were acting in an investigative or law enforcement role.
148. During all raids of the Vargas Family, the Gutierrez Family, and the Padilla Family, ICE agents violated the Fourth Amendment rights of each plaintiff.
149. As a consequence of the raids of the Vargas Family, the Gutierrez Family, and the Padilla Family, each Plaintiff has suffered harm, including but not limited to emotional distress, pain and suffering, property loss, loss of consortium, either spousal or filial, and trauma. FIRST CAUSE OF ACTION (False Imprisonment)
150. Plaintiffs re-allege all facts averred herein as though restated. 151. ICE, through its investigative and law enforcement agents, intentionally and unlawfully
deprived each Plaintiff of his or her personal liberty by entering their homes without a judicial warrant or voluntary consent and absent exigent circumstances and by detaining Plaintiffs against their will in violation of O.C.G.A. § 51-7-20; Ferrel v. Mikula, 672 S.E.2d 7, 10 (Ga. App. 2008); Lyttle v. United States, 867 F. Supp. 2d 1256, 1297 (M.D. Ga. 2012). 152. The ICE agents committed these acts as employees of the U.S. while acting within the scope of their employment at all relevant times. 153. The ICE agents were acting in an investigative or law enforcement role at all relevant times. 154. All of the Plaintiffs were detained; they were unable to leave their homes while ICE agents conducted an unlawful, pre-textual search. 155. Plaintiffs’ detention was unlawful because:
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a. ICE had no probable cause to detain any Plaintiff; b. ICE had no search warrant; c. ICE used an unconstitutional “ruse” to gain entrance or consent to enter each
Plaintiff’s home; d. ICE entered each Plaintiff’s home without knowing and voluntary consent; e. No exigent circumstances existed that would allow ICE to enter any Plaintiffs’ home;
and f. ICE’s detention of each Plaintiff was otherwise unlawful. 156. The due care exception under 28 U.S.C. § 2680(a) does not apply to this cause of action. Lyttle v. United States, 867 F. Supp. 2d. 1256, 1257 (M.D. Ga. 2012). 157. The discretionary function exception under 28 U.S.C. § 2680(a) does not apply to false imprisonment. Nguyen v. United States, 556 F.3d 1244, 1260 (11th Cir. 2009). 158. This false imprisonment caused Plaintiffs damages. 159. Those damages include but are not limited to: a. Property damage and loss; b. Emotional distress; c. Lost wages; d. Mental anguish; e. Loss of consortium, filial and spousal; and f. Other damages to be proven at trial. 160. Plaintiffs are entitled to damages against the United States for false imprisonment to the full extent allowed under Georgia law and the FTCA, in an amount to be determined by the trier of fact.
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161. Under the Federal Tort Claims Act, defendant United States of America is liable for these actions. SECOND CAUSE OF ACTION (Trespass)
162. Plaintiffs re-allege all facts herein as though restated. 163. The ICE agents were acting within the scope of their employment at all relevant times. 164. The ICE agents were acting in an investigative or law enforcement role at all relevant
times. 165. The ICE agents intentionally and unlawfully interfered with Plaintiffs’ enjoyment of
private property in which Plaintiffs had a possessory interest under O.G.C.A. § 51-9-1. 166. The ICE agents unconstitutionally entered all of Plaintiffs’ homes without a judicially
issued warrant or voluntary consent and absent exigent circumstances. 167. Further, the ICE agents unconstitutionally entered Plaintiffs’ homes by using an
unconstitutional “ruse” to gain entry. 168. All such actions violated Plaintiffs’ Fourth Amendment rights to be free from
unreasonable searches and seizures. 169. Defendant’s actions were not discretionary because Defendant has no discretion to act
unconstitutionally. Rosas v. Brock, 826 F.2d 1004, 1008 (11th Cir.1987); Mancha v. Immigration & Customs Enf't, No. 106-CV-2650-TWT, 2009 WL 900800, at *4 (N.D. Ga. Mar. 31, 2009). 170. This unconstitutional trespass caused Plaintiffs damages. 171. Those damages include but are not limited to:
a. Property damage and loss; b. Emotional distress;
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c. Lost wages; d. Mental anguish; e. Loss of consortium, filial and spousal; and f. Other damages to be proven at trial. 172. Plaintiffs are entitled to damages against the United States for trespass to the full extent allowed under Georgia law and the FTCA, in an amount to be determined by the trier of fact. 173. Under the Federal Tort Claims Act, defendant United States of America is liable for these actions.
THIRD CAUSE OF ACTION (Negligence)
174. Plaintiffs re-allege all facts herein as though restated. 175. The ICE agents were acting within the scope of its employment at all relevant times. 176. The ICE agents were acting in an investigative or law enforcement role at all relevant
times. 177. ICE had a duty to act with reasonable care and to abide by the U.S. Constitution during
enforcement actions including but not limited to entering and searching a home only when there is a judicially issued warrant, exigent circumstances, or knowing and voluntary consent to do so. 178. ICE also had a duty to act with reasonable care and to follow its own practices and procedures, including but not limited to notifying local law enforcement authorities that it intended on claiming to be “police” during the course of its raids. 179. ICE breached these duties by unlawfully entering and searching Plaintiffs’ homes without a judicially issued warrant, exigent circumstances, or knowing consent.
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180. ICE also breached internal, non-discretionary DHS practices and policies, including but not limited to policies related to the use of “ruses.”
181. As a direct and proximate result of Defendant’s breaches of duties, Plaintiffs have suffered and continue to suffer damages including, but not limited to: a. Property damage and loss; b. Emotional distress; c. Lost wages; d. Mental anguish; e. Loss of consortium, filial and spousal; and f. Other damages to be proven at trial.
182. Plaintiffs are entitled to damages against the United States for trespass to the full extent allowed under Georgia law and the FTCA, in an amount to be determined by the trier of fact.
183. Under the Federal Tort Claims Act, defendant United States of America is liable for these actions. FOURTH CAUSE OF ACTION (Intentional Infliction of Emotional Distress)
184. Plaintiffs re-allege all facts herein as though restated. 185. The ICE agents were acting within the scope of its employment at all relevant times. 186. The ICE agents were acting in an investigative or law enforcement role at all relevant
times. 187. The ICE agents acted intentionally or recklessly when they unlawfully entered and
searched Plaintiffs’ homes. They also acted intentionally and recklessly when they unlawfully detained each Plaintiff. 188. The ICE agents’ actions were extreme and outrageous.
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189. ICE used racial stereotypes to scare the Gutierrez and Padilla Families into “consenting” to their search.
190. The ICE agents forcefully entered the Vargas’ home without requesting or obtaining consent.
191. The ICE agents also entered the Vargas’s home by repeatedly threatening arrest for a falsified charge of “obstruction of justice.”
192. The ICE agents gained entry into all of the Plaintiffs’ homes by deliberately lying about the presence of fictitious criminal suspects in their homes and preying on their fear of safety to unlawfully gain entry into their homes.
193. All such conduct is extreme and outrageous. 194. The ICE agents’ outrageous and extreme conduct directly caused Plaintiffs emotional
distress and other damages. 195. Those damages include but are not limited to:
a. Property damage and loss; b. Emotional distress; c. Lost wages; d. Mental anguish; e. Loss of consortium, filial and spousal; and f. Other damages to be proven at trial. 196. The emotional distress is severe, lasting, and grave. 197. Plaintiffs are entitled to damages against the United States for intentional infliction of emotional distress to the full extent allowed under Georgia law and the FTCA, in an amount to be determined by the trier of fact.
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198. Under the Federal Tort Claims Act, defendant United States of America is liable for these actions. FIFTH CAUSE OF ACTION (Negligent Infliction of Emotional Distress)
199. Plaintiffs re-allege all facts herein as though restated. 200. The ICE agents were acting within the scope of its employment at all relevant times. 201. The ICE agents were acting in an investigative or law enforcement role at all relevant
times. 202. Alternatively, the ICE agents acted negligently when they unlawfully entered and
searched Plaintiffs’ homes. 203. ICE’s negligence was extreme and outrageous. 204. The ICE agents used racial stereotypes to scare the Gutierrez and Padilla Families into
“consenting” to their search. 205. The ICE agents forcefully entered the Vargas’ home without requesting or obtaining
consent. 206. The ICE agents also entered the Vargas’ home by repeatedly threatening arrest for a
falsified charge of “obstruction of justice.” 207. ICE gained entry into all of the Plaintiffs’ homes by lying. 208. All such conduct is extreme and outrageous. 209. ICE’s outrageous and extreme conduct caused Plaintiffs’ damages. 210. Those damages include but are not limited to:
a. Property damage and loss; b. Emotional distress; c. Lost wages;
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d. Mental anguish;

e. Loss of consortium, filial and spousal; and

f. Other damages to be proven at trial.

211. The emotional distress is severe, lasting, and grave.

212. Plaintiffs are entitled to damages against the United States for negligent infliction of

emotional distress to the full extent allowed under Georgia law and the FTCA, in an amount

to be determined by the trier of fact.

213. Under the Federal Tort Claims Act, defendant United States of America is liable for these

actions.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request:

1. Compensatory damages;

2. Punitive damages;

3. Reasonable attorneys’ fees and costs pursuant to 28 U.S.C. § 2678, the Equal Access to

Justice Act, the Court’s inherent powers, and any other applicable law;

4. Declaratory relief; and

5. Any other such relief the Court deems just and proper.

December 11, 2017

Respectfully submitted,

Daniel Werner Georgia Bar No. 422070 SOUTHERN POVERTY LAW CENTER 1989 College Ave. NE Atlanta, GA 30317 (404) 521-6700 (Tel) (404) 221-5857 (Fax) daniel.werner@splcenter.org
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Lisa S. Graybill* Texas Bar No. 24054454 SOUTHERN POVERTY LAW CENTER 1055 St. Charles Avenue, Suite 505 New Orleans, LA 70130 (504) 486-8982 (Tel) (504) 486-8947 (Fax) LisaSGraybill@splcenter.org *Pro hac vice application forthcoming
BRADLEY B. BANIAS* South Carolina Bar No. 76653 Barnwell, Whaley, Patterson & Helms, LLC 288 Meeting Street, Suite 200 Charleston, South Carolina 29401 P: 843.577.7700 F: 843.577.7708 bbanias@barnwell-whaley.com *Pro hac vice application forthcoming Attorneys for Plaintiffs
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 Case 1:17-cv-05052-SCJ Document 12 Filed 02/16/18 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

Carlos Rene Morales, Rosa Vargas,

:

Morales, Juan Mijangos Vargas, Juneidy :

Mijangos Vargas, D.M.V., J.A.M.,

:

Salvador Alfaro, Johana Gutierrez,

:

Y.S.G.R., J.I.G.R., Lesly Padilla Padilla, :

E.D.N.P, and E.I.N.P.,

:

:

Plaintiffs,

:

:

v.

:

:

The United States of America,

:

:

Defendant.

:

Civil Action No. 1:17-CV-05052-SCJ

DEFENDANT’S MOTION TO DISMISS COMES NOW Defendant the United States of America (“United States”), by and through the United States Attorney for the Northern District of Georgia, and moves the Court to dismiss Plaintiffs’ Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and the jurisdiction-stripping provisions of 8 U.S.C. § 1252(g). The grounds for this Motion are set forth more fully in the attached Memorandum of Law.

Respectfully submitted,
BYUNG J. PAK UNITED STATES ATTORNEY

Case 1:17-cv-05052-SCJ Document 12 Filed 02/16/18 Page 2 of 29
s/ Gabriel Mendel Gabriel Mendel Assistant United States Attorney Georgia Bar No. 169098 600 United States Courthouse 75 Ted Turner Drive, S.W. Atlanta, Georgia 30303 Voice: (404) 581-6000 Facsimile: (404) 581-4667

Case 1:17-cv-05052-SCJ Document 12 Filed 02/16/18 Page 3 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

Carlos Rene Morales, Rosa Vargas,

:

Morales, Juan Mijangos Vargas, Juneidy :

MijangosVargas, D.M.V., J.A.M.,

:

Salvador Alfaro, Johana Gutierrez,

:

Y.S.G.R., J.I.G.R., Lesly Padilla Padilla, :

E.D.N.P, and E.I.N.P.,

:

:

Plaintiffs,

:

:

v.

:

:

The United States of America,

:

:

Defendant.

:

Civil Action No. 1:17-CV-05052-SCJ

DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS

Defendant the United States of America (“United States”) has moved to

dismiss Plaintiffs’ Complaint (“Complaint”) and various allegations set forth therein,

and as grounds would show the Court the following:

I. FACTUAL BACKGROUND

In late December 2015 and early January 2016, the United States Department

of Homeland Security (“DHS”) and U.S. Immigration and Customs Enforcement

(“ICE”) planned and executed Operation Border Resolve, an enforcement and

removal operation that targeted family units for removal from the United States. See

-1-

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Complaint, Doc. 1, at ¶¶ 20-23. On January 2 and 3, 2016, ICE agents conducted enforcement and removal operations in Georgia, North Carolina, and Texas. Id. at 30.
Plaintiff Rosa Vargas Morales (“Ms. Vargas”) is a national and citizen of Guatemala. Id. at ¶ 1. Ms. Vargas and several of her family members allege that, beginning on the morning of January 2, 2016, as part of Operation Border Resolve they were subject to a variety of law enforcement actions by ICE agents resulting in the detention of Ms. Vargas and her children, their transportation to immigration detention centers in Georgia, Texas, and Pennsylvania, and their release to Georgia. Id. at ¶¶ 34-73. Plaintiffs allege various misconduct by ICE agents during these events, including the use of a “ruse” to attempt to gain consent to enter the home, entry into her home without consent, and failure to provide Ms. Vargas with water or her prescription drugs. Id. At the time of these events, Ms. Vargas and her children were subject to final administrative orders of removal, which were subsequently vacated. Id. at 71; see also Vargas Orders of Removal, attached hereto as Exhibit A.1
1 The court may consider a document attached to a motion to dismiss without converting the motion into one for summary judgment “if the attached document is: (1) central to the plaintiff's claim; and (2) undisputed.” Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). The attached orders of removal (and accompanying
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Plaintiff Johana Gutierrez (“Ms. Gutierrez”) is a national and citizen of Honduras. Id. at ¶ 8. Ms. Gutierrez and several of her family members allege that, beginning on the morning of January 2, 2016, as part of Operation Border Resolve they were subject to a variety of law enforcement actions by ICE agents resulting in the detention of Ms. Gutierrez’s niece, Ana Mejia Gutierrez and her son, their transportation to immigration detention centers in several states, and their release. Id. at ¶¶ 85-105. Plaintiffs alleges various misconduct by ICE agents during these events, including the use of a “ruse” to gain consent to enter the home. Id. At the time of these events, Ana Mejia Gutierrez and her son were subject to orders of removal, which were subsequently vacated. Id. at 105; see also Gutierrez Orders of Removal, attached hereto as Exhibit B.
Plaintiff Lesly Padilla Padilla (“Ms. Padilla”) is a national and citizen of Honduras. Id. at ¶ 11. Ms. Padilla and her children allege that, beginning on the
notices to appear) are specifically referenced by Plaintiffs (Complaint at ¶¶ 71, 105), cannot be disputed, and are central to Plaintiffs’ claims. See, e.g., Hodges v. Collins, No. 5:12-CV-202 MTT, 2013 WL 557183, at *3 (M.D. Ga. Feb. 12, 2013) (permitting consideration of search warrant affidavit because “it is central to [plaintiff’s] claims premised on his unlawful arrest because it establishes whether [defendant] had probable cause”); Brown v. Benefield, 757 F. Supp. 2d 1165, 1169 (M.D. Ala. 2010) (“the Court is free to consider the supporting affidavit and warrant, even in the context of a motion to dismiss, because the Plaintiffs refer to these documents in the complaint and these documents are central to their claims.”).
-3-

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morning of January 2, 2016, as part of Operation Border Resolve, they were subject to a variety of law enforcement actions by ICE agents resulting in the detention of Ms. Padilla and her children, their transportation to immigration detention centers in Georgia and, Texas, and Pennsylvania, and their release to Georgia. Id. at ¶¶ 113132. Plaintiffs allege various misconduct by ICE agents during these events, including the use of a “ruse” to gain consent to enter the home. Id. At the time of these events, Ms. Padilla and her children were subject to orders of removal. See Padilla Orders of Removal, attached hereto as Exhibit C.
II. DISCUSSION A. Applicable Standards for Dismissal of Claims.
“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3); Fed.R.Civ.P. 12(b)(1). “Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction can be asserted on either facial or factual grounds.” Carmichael v. Kellogg, Brown & Root Services, Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). “A facial attack challenges whether the complaint itself has sufficiently alleged subject matter jurisdiction, whereas a factual attack challenges the existence of subject matter jurisdiction in fact, looking to matters outside the pleadings.” Lawrence v. U.S., 597 F. App’x. 599, 601-02 (11th Cir. 2015).
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When deciding a facial attack to subject matter jurisdiction, a district court may consider documents attached to a motion to dismiss “if the documents are central to the plaintiff's claim and their authenticity is not disputed.” Id. at 602. “[I]n a factual challenge to subject matter jurisdiction, a district court can ‘consider extrinsic evidence such as deposition testimony and affidavits.’ ” Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir. 2013).
In response to a facial challenge, “Plaintiff bears the burden of alleging sufficient facts to show” that subject matter jurisdiction exists. Neforos v. Cooper Vision, Inc., No. 3:15-CV-437-J-20JRK, 2016 WL 7206079, at *2 (M.D. Fla. Sept. 28, 2016). By contrast, “[i]n the face of a factual challenge to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists.” OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002). In determining whether subject matter jurisdiction exists, a court can investigate widely and has authority to look beyond the pleadings and weigh the evidence to satisfy itself as to the existence of its power to hear the case. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (per curiam). Regardless of the type of motion asserted under Rule 12(b)(1), the plaintiff always bears the burden of showing that federal jurisdiction is proper. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 376-78 (1994).
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In this case, the result is the same whether Defendants’ motion is construed as a “facial attack,” in which the Court considers only the allegations of the Complaint and the documents central to those claims, or a “factual attack,” wherein the Court looks at additional evidence that Plaintiffs were subject to orders of removal that resulted in the alleged misconduct. That is because the controlling fact is undisputed: the enforcement operations at issue arose from efforts to commence and enforce removal proceedings against the Plaintiffs and their family members.2 As such, Plaintiffs’ claims should be dismissed under either standard for the reasons stated below.
With respect to a motion to dismiss under Rule 12(b)(6), a complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim when a complaint does not contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007). A complaint must offer more than “naked assertion[s],” “labels and conclusions, [or] a
2 Importantly, these dispositive facts are not “inextricably intertwined” with disputed merits of Plaintiffs’ claims. See Eaton v. Dorchester Development, Inc., 692 F.2d 727, 734 (11th Cir. 1982). Here, Plaintiffs never allege, nor would their claims require, that they were not subject to orders of removal at the time of the alleged misconduct. Instead, they admit that they were subject to such orders, but allege that those orders were subsequently vacated. See Complaint at ¶¶ 71, 105. Accepting this allegation as true, even without reference to the documents attached to this motion, Plaintiffs’ claims are subject to dismissal for the reasons stated below.
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formulaic recitation of the elements of a cause of action.” Id. at 555, 557. “Plausibility” requires more than a “sheer possibility that a defendant has acted unlawfully,” and a complaint that alleges facts that are “merely consistent with” liability “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Chandler v. Sec’y of Fla. Dept. of Transp., 695 F.3d 1194, 1199 (11th Cir. 2012) (quoting Iqbal, 556 U.S. at 678). “Further, courts may infer from the factual allegations in the complaint obvious alternative explanations, which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App'x 136, 138 (11th Cir. 2011). B. The District Court Lacks Subject Matter Jurisdiction Over Plaintiffs’
Claims Pursuant to the Immigration and Nationality Act. Plaintiffs’ claims challenge the legality of the manner in which they (or their family members) were arrested, detained, and processed for removal from the United States. See generally Complaint. However, Congress has specifically divested federal district courts of jurisdiction to hear such claims. In 1996, Congress amended the Immigration and Nationality Act through the Illegal Immigration
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Reform and Immigrant Responsibility Act (“IIRIRA”), a statute that “significantly restructur[ed] the scope of judicial review of immigration decisions.” Humphries v. Various Fed. USINS Employees, 164 F.3d 936, 941 (5th Cir. 1999). The IIRIRA provisions at issue here divest the district courts of jurisdiction to review particular immigration actions or decisions as part of an intricate statutory scheme that channels all Article III judicial review into the courts of appeals. See Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999).
This “jurisdiction-channeling” is evident in the provision that divests this Court of jurisdiction—8 U.S.C. § 1252(g)—which provides as follows:
Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under [the Immigration and Nationality Act]. 8 U.S.C. § 1252(g) (emphasis added). The Supreme Court held that § 1252(g) does not encompass all possible acts and events that tangentially relate to removal proceedings, but applies to case arising from three discrete decisions or actions: the “decision or action” to “commence proceedings, adjudicate cases, or execute removal orders.” Reno v. American-Arab
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Anti-Discrimination Committee, 525 U.S. 471, 482-483 (1999) (emphasis in original). Congress promulgated § 1252(g) in order “to give some measure of protection” from litigation stemming from the specific decisions referenced in the statutory language. Id. at 485.
Courts have routinely applied the jurisdiction-stripping provision of § 1252(g) with regard to FTCA and Bivens claims in situations similar to those alleged by Plaintiffs. As the Eleventh Circuit has held:
Section 1252(g) is unambiguous: it bars federal courts’ subject-matter jurisdiction over any claim for which the “decision or action” of the Attorney General3 (usually acting through subordinates) to commence proceedings, adjudicate cases, or execute removal orders is the basis of the claim. Securing an alien while awaiting a removal determination constitutes an action taken to commence proceedings. Gupta v. McGahey, 709 F.3d 1062, 1065 (11th Cir. 2013); see also Sissoko v. Rocha, 509 F.3d 947, 949–51 (9th Cir. 2007) (noting that the district court lacked jurisdiction under § 1252(g) to review a Bivens claim by an alien alleging improper detention while awaiting removal); Foster v. Townsley, 243 F.3d 210, 213–15 (5th Cir. 2001) (holding that § 1252 stripped the district court of jurisdiction to hear
3 In light of legislation transferring functions of the former Immigration and Naturalization Service to the United States Department of Homeland Security, 6 U.S.C. §§ 202, 251, 557, the statutory reference to “Attorney General” is construed to mean the Secretary of Homeland Security. Elgharib v. Napolitano, 600 F.3d 597, 606-07 (6th Cir. 2010).
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Bivens claims for constitutional deprivations resulting from the plaintiff's removal, even when the actions taken were non-discretionary and in violation of regulatory requirements); Kareva v. United States, 9 F.Supp.3d 838, 844–45 (S.D. Ohio 2014) (finding that an alien's FTCA claims for false arrest and imprisonment, based on actions by ICE officials to secure her for removal, lack jurisdiction under § 1252 because they arise from the decision to execute a removal order); Guardado v. United States, 744 F.Supp.2d 482, 493 (E.D. Va. 2010) (dismissing alien's assault, battery, and false imprisonment claims under the FTCA due to lack of jurisdiction under § 1252(g), based on the facts that ICE agents handcuffed the plaintiff and placed him on an airplane during removal).
In Gupta, which is controlling authority here, the plaintiff alleged that “agents violated his rights under the Fourth and Fifth Amendments by wrongfully procuring a warrant for his arrest, arresting him unlawfully, illegally searching his apartment and car, illegally seizing his personal items, and wrongfully detaining him following the arrest.” 709 F.3d. at 1064. Affirming the district court’s dismissal of plaintiff’s claims, the Eleventh Circuit held that § 1252(g) divested the district court of jurisdiction because plaintiff’s claims that defendant had “illegally procured an arrest warrant, that the agents illegally arrested him, and that the agents illegally detained him each arise from an action taken to commence removal proceedings.”
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Id. at 1065. Similarly, the court held that the district court lacked jurisdiction over plaintiff’s “claims that the agents illegally searched his apartment and illegally seized certain items of his personal property” because such claims “also arise from actions taken to commence proceedings.” Id.
Similar conclusions have been reached by courts in this and other districts on facts similar to those alleged by Plaintiffs. In Magallenes v. United States, the plaintiffs, a Mexican national and his U.S. citizen wife, brought an action for a writ of mandamus, FTCA claims for kidnapping and loss of consortium, and Bivens claims alleging constitutional violations. See Magallanes v. United States, 184 F. Supp. 3d 1372, 1374 (N.D. Ga. 2015). In particular, the Magallenes plaintiffs alleged that “several [ICE] agents obtained entry into Plaintiffs' private residence” by “obtain[ing] Ms. Magallanes's consent through a ‘ruse’ in which they showed her a picture of a man and told her that they were looking for a fugitive.” Id. at 1373.
Applying the ruling in Gupta, the Magallenes court dismissed the plaintiffs’ claims, holding that “alleged injuries resulting from ICE agents searching an alien's apartment and detaining him were in an effort to secure him and therefore arose from the decision to commence removal proceedings” and the court lacked subject matter jurisdiction. Id. at 1378; see also Lopez v. Prendes, No. 3-11-CV-3184-M-BD, 2012 WL 3024209, at *1 (N.D. Tex. June 27, 2012), report and recommendation adopted,
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No. 3-11-CV-3184-M, 2012 WL 3024750 (N.D. Tex. July 24, 2012) (dismissing claims arising from “actions of ICE agents in gaining entry into the [plaintiff’s] home and reinstating [plaintiff’s] prior removal order” where “agents allegedly perpetrated a ruse, misleading [plaintiff] and her husband into permitting them into their home” because those “actions… are directly and immediately connected with the initiation or prosecution of various stages in the deportation process.”).
As in the cases cites above, Plaintiffs’ claims all “aris[e] from the decision… to commence proceedings, adjudicate cases, or execute removal orders” and thus fall outside this Court’s jurisdiction pursuant to 8 U.S.C. § 1252(g). In particular, Plaintiffs’ claims arise from the decision to commence proceedings and execute removal orders against Ms. Vargas and her children, Ms. Padilla and her children, and Ana Mejia Gutierrez and her son, as acknowledged in Plaintiffs’ complaint. The Court lacks jurisdiction under § 1252(g) and all claims must be dismissed. C. Plaintiffs Fail to State a Claim For Relief.
Though all claims brought by alien Plaintiffs are plainly outside of the Court’s jurisdiction, Plaintiffs’ complaint also includes claims brought by Plaintiffs J.A.M., Y.S.G.R., and J.I.G.R., who are alleged to be citizens of the United States and ages 17 months, 12 years, and 9 years, respectively, at the time of the enforcement actions. See Complaint, ¶¶ 6, 9-10. Those claims are inextricably intertwined with claims
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brought “on behalf of any alien” pursuant to 8 U.S.C. § 1252(g). See Magallanes, 184 F. Supp. 3d 1372 at 1379 (dismissing claims brought by both alien plaintiff and U.S. citizen spouse because their “claims rest entirely upon the allegation that the Attorney General's decisions to commence removal proceedings and execute an order of removal were improper”). Insofar as the Court determines it has jurisdiction over the claims brought by Plaintiffs J.A.M., Y.S.G.R., and J.I.G.R., the claims are still subject to dismissal under Rule 12(b)(6).
Under the FTCA, the United States is held liable, in a tort action, only in the same manner and to the same extent that a private individual would be under the law of the place where the tort occurred. 28 U.S.C. § 2674; Daniels v. United States, 704 F.2d 587, 591 (11th Cir. 1983). The Supreme Court has held that “§ 1346(b)’s reference to the ‘law of the place’ means law of the State -- the source of substantive liability under the FTCA.” FDIC v. Meyer, 510 U.S. 471, 478 (1994). Since the relevant events in this case occurred in Georgia, the law to be applied is that of the State of Georgia. See Tisdale v. United States, 838 F. Supp. 592, 597 (N.D. Ga. 1993) aff’d, 62 F.3d 1367 (11th Cir. 1995).
a. False Imprisonment Under Georgia law, “[f]alse imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his
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personal liberty.” O.C.G.A. § 51–7–20. The tort of false imprisonment has two essential elements: a detention and the detention's unlawfulness. Ferrell v. Mikula, 295 Ga.App. 326, 329, 672 S.E.2d 7, 10 (2008). With respect to the second element, unlawfulness, Georgia courts have refined the false-imprisonment claim when an arrest and detention is made pursuant to legal process:
When the detention is predicated upon procedurally valid process, false imprisonment is not an available remedy, ... because detention effectuated pursuant to procedurally valid process, such as an arrest warrant, is not “unlawful.” Erfani v. Bishop, 251 Ga.App. 20, 553 S.E.2d 326, 330 (2001) (quoting Williams v. Smith, 179 Ga.App. 712, 348 S.E.2d 50, 52–52 (1986)) (emphasis in original). Though Plaintiffs offer conclusory allegations that the enforcement actions were conducted without warrants, they admit that the entry of law enforcement agents into their homes were part of operations conducted to effectuate removal of aliens subject to removal orders. See Complaint at ¶¶ 20-23, 71, 105; see also Exhibits A, B, C. Though Plaintiffs allege that these removal orders were subsequently vacated, they do not allege the removal orders were void, defective, or obtained in bad faith. As such, although Plaintiffs may argue they were detained, see Lyttle v. United States, 867 F. Supp. 2d 1256, 1298 (M.D. Ga. 2012), they were detained by valid legal process. Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998),
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instructs that a detention or an arrest must be supported by probable cause to be lawful. “[P]robable cause to arrest exists when an arrest is objectively reasonable based on the totality of the circumstances.” Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003). “To seize and detain a person for being an illegal alien, an officer must have probable cause to believe that the individual is an illegal alien.” Lyttle, 876 F. Supp. 2d at 1281.
Pursuant to 8 U.S.C. § 1357(a), ICE agents have the power, without warrant, “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States “ and to arrest any alien without a warrant if he has “reason to believe” the alien is in the United States illegally. See also 8 C.F.R. § 287.5. In this case, it is undisputed that the ICE agents who conducted the enforcement operations at issue in the Complaint were in possession of lawful orders of removal for aliens in the subject residences and had legal authority to effectuate those arrests. See Complaint at ¶¶ 20-23, 71, 105; see also Exhibits A, B, C; Douglas v. United States, 796 F. Supp. 2d 1354, 1368 (M.D. Fla. 2011) (dismissing false imprisonment claim because ICE agents were operating pursuant to a Notice to Appear4 and thus the “United States has established that [plaintiff’s] arrest was made
4“A Notice to Appear is essentially an administrative arrest warrant that is not reviewed by a neutral magistrate.” Douglas, 796 F. Supp. at 1360, n.5 (citing United
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under legal authority”); Belleri v. United States, No. 10-81527-CIV, 2012 WL 12892399, at *9 (S.D. Fla. Jan. 17, 2012), vacated on other grounds, 712 F.3d 543 (11th Cir. 2013) (“ICE had the lawful authority to issue the warrant for Plaintiff's arrest and the notice to appear, so Plaintiff cannot state a claim for false imprisonment and this claim will be dismissed.”); Valencia–Mejia v. United States, No. CV 08–2943, 2008 WL 4286979, at *5 (C.D.Cal. Sept. 15, 2008) (noting that immigration officers have a “lawful privilege” to arrest aliens, which bars a false imprisonment claim under California law); Tovar v. United States, No. 3:98–cv– 1682, 2000 WL 425170, *7–8 (N.D. Tex. Apr. 18, 2000) (noting that INS agents had “legal authority” to detain plaintiff under INA, barring false imprisonment claim under Texas law). As such, the ICE agents had legal authority to enter the premises to effectuate arrests and detentions for purposes of enforcing federal immigration laws, thereby barring Plaintiffs’ claim.
b. Trespass Plaintiffs’ claims for trespass fail to state a claim, as Plaintiffs fail to identify any property for which Plaintiffs J.A.M., Y.S.G.R., and J.I.G.R., all minor children, had any possessory interest. In the case of personal property, typically trespass
States v. Abdi, 463 F.3d 547, 551 (6th Cir. 2006)).
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involves a wrongful taking or detention of property, or damage to the property. See Lowery v. McTier, 108 S.E.2d 771, 772 (1959). There are no such allegations here. To the extent the allegation alleges trespass on real property, Georgia allows that a “landowner may recover damages arising from 'any wrongful, continuing interference with a right to the exclusive use and benefit of a property right.’” Navajo Constr., Inc. v. Brigham, 608 S.E.2d 732, 734 (Ga. Ct. App. 2004) (emphasis added); see also Phillips v. Publ'g Co., Inc., No. CV213-069, 2015 WL 5821501, at *24 (S.D. Ga. Sept. 14, 2015) (“Georgia law expressly contemplates real property rights as the type of rights protected in a trespass claim.”). There is no allegation in the complaint that Plaintiffs J.A.M., Y.S.G.R., and J.I.G.R., all minor children, have standing to assert any property interest in the real property that was the subject of the enforcement operations at issue, or possess any property interest of their own.
Moreover, “[u]nder Georgia law, a state officer does not commit trespass when he acts within the scope of his official duties.” Lavassani v. City of Canton, Ga., 760 F. Supp. 2d 1346, 1371 (N.D. Ga. 2010) (citing Morton v. McCoy, 420 S.E.2d 40 (Ga. App.1992)). Similar to Lavassani in which the court found that the police officers were acting within the scope of their official duties, there is no dispute that ICE agents were acting within their official capacity when they entered the subject
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residences and arrested and detained Plaintiffs. Therefore, the trespass claim is subject to dismissal.
c. Negligence Under Georgia law, a plaintiff must establish four elements in order to state a cause of action for negligence: (1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty. See Galanti v. United States, 709 F.2d 706 (11th Cir. 1983). Plaintiffs fail to satisfy the elements required for a negligence claim under Georgia law because Plaintiffs fail to allege a duty that the United States owed to them. “Unless Plaintiffs can identify corresponding state law duties, they have, at the least, failed to state a claim, and arguably their lapse deprives the court of even subject matter jurisdiction over the action.” Zelaya v. United States, 781 F.3d 1315, 1325 (11th Cir. 2015). In the absence of identifying any state law duty owed by the United States, Plaintiffs instead cite to purported duties created by: 1) the U.S. Constitution; and 2) ICE practices and procedures. See Complaint at ¶¶ 177-180. Neither can support an FTCA claim.
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The United States has not waived sovereign immunity for damage suits based upon alleged violations of the U.S. Constitution, and such a claim must be dismissed. See Federal Deposit Ins. Co. v. Meyer, 510 U.S. 471, 478 (1994) (holding that constitutional tort claim is not cognizable under jurisdictional grant of FTCA); Denson v. United States, 574 F.3d 1318, 1336 (11th Cir. 2009) (holding that suits for constitutional violations are not actionable under the FTCA).
With respect to purported violations of internal practice and procedures, such violations do not constitute the breach of a legal duty under state law to support a negligence claim under the FTCA. The Eleventh Circuit has held that:
[T]he fact that a federal employee has failed to perform duties imposed by federal law is insufficient by itself to render the federal government liable under the FTCA. Pate v. Oakwood Mobile Homes, Inc., 374 F.3d 1081, 1084 (11th Cir. 2004). Instead, a state tort cause of action is a sine qua non of FTCA jurisdiction, and we have dismissed FTCA suits that have pleaded breaches of federal duties without identifying a valid state tort cause of action. Zelaya, 781 F.3d at 1323-24; see also Dalrymple v. United States, 460 F.3d 1318 (11th Cir. 2006) (violating an internal policy or procedure does not create a cause of action under the FTCA against the government unless the challenged conduct is independently tortious under applicable state law). Moreover, Plaintiffs’ vague and conclusory allegations regarding “internal, non-discretionary DHS” policies fail to satisfy the pleading standards of Twombly and Iqbal. Because Plaintiffs fail to allege
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a state law duty owed to them, their negligence claim fails as a matter of law. See, e.g., Appolon v. United States, No. 16-2275, 2017 WL 3994925, at *16 (E.D.N.Y. Sept. 6, 2017) (negligent investigation claim against ICE dismissed because of a lack of private analogue under Georgia law).
d. Intentional Infliction of Emotional Distress Georgia courts have recognized the tort of intentional infliction of emotional distress by stating: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. Yarbray v. S. Bell Tel. & Tel. Co., 409 S.E.2d 835, 837 (Ga. 1991). In order to sustain a cause of action, the defendant's actions must have been “so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Cornelius v. Auto Analyst, Inc., 476 S.E.2d 9, 11 (1996). A claim for intentional infliction of emotional distress requires more than an allegation that a plaintiff was offended or insulted. Kornegay v. Mundy, 379 S.E.2d 14, 16 (Ga. App. 1989). In fact, the burden on a plaintiff is “a stringent one.” Ingram v. JIK Realty Co., 404 S.E.2d 802 (Ga. App. 1991). Moreover, the claim must show that “the intentional act was directed toward the plaintiff.” Wellborn v. DeKalb County School Dist., 489 S.E.2d 345, 347 (Ga. App.1997).
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Whether conduct is sufficiently outrageous and whether the resulting emotional distress is sufficiently severe to support a claim of intentional infliction of emotional distress are questions of law. See Yarbray, 409 S.E.2d at 838. In this case, the allegations brought by Plaintiffs J.A.M., Y.S.G.R., and J.I.G.R. fail to rise to the level required for intentional infliction of emotional distress.
Plaintiffs identify no outrageous conduct directed toward Plaintiff J.A.M., who was seventeen months-old. Instead, Plaintiffs simply allege that J.A.M. was physically present at the time that ICE agents detained other members of his family pursuant to lawful removal orders. See Complaint at ¶¶ 33, 60, 71. In fact, Plaintiffs acknowledge that although the ICE agents came to the residence to arrest his mother, Plaintiff Juneidy Mijangos Vargas, the agents “decided not to bring… Juneidy Mijangos Vargas, with them, because she is the mother of J.A.M. who was an infant at the time.” Id. at 67. The agents exercised their prosecutorial discretion to allow the mother of J.A.M. to remain and she was not separated from J.A.M. Plaintiffs also fail to allege that the seventeen month-old J.A.M. was cognizant of the enforcement actions or severely distressed by them, instead alleging only that when the now-three year old “is around a new person, he is frightened and nervous.” Id. at 80. These allegations show neither conduct that is sufficiently outrageous nor resulting emotional distress that is sufficiently severe to support a claim of
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intentional infliction of emotional distress. See Miraliakbari v. Pennicooke, 561 S.E.2d 483, 486 (Ga. App. 2002) (finding insufficient severity when supervisor refused to allow mother to contact school regarding injured child and threatened to fire her); Odem v. Pace Acad., 510 S.E.2d 326, 332 (Ga. App. 1998) (“Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threat, annoyances, petty oppressions, or other trivialities.”).
Similarly, with respect to Plaintiffs Y.S.G.R. and J.I.G.R, Plaintiffs allege no outrageous conduct directed toward them. Indeed, there are no specific allegations regarding conduct toward these individuals at all during the enforcement actions. See Complaint at ¶¶ 85-105. Instead, Plaintiffs simply allege that Y.S.G.R. and J.I.G.R were physically present at the time that ICE agents detained other members of their family pursuant to lawful removal orders. Id. Plaintiffs also fail to make specific factual allegations sufficient to show these Plaintiffs were severely distressed by any intentional conduct directed toward them. Instead, the allegations with respect to Y.S.G.R. are that she missed one week of school, did not want to sleep alone, and made a single remark to a classmate that she had thoughts of selfharm. Id. at 106. With respect to J.I.G.R., the complaint offers only the conclusory assertion that he “suffered significant emotional pain and distress.” Id. at 107.
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These allegations show neither conduct that is sufficiently outrageous nor resulting emotional distress that is sufficiently severe to support a claim of intentional infliction of emotional distress. See Cho v. United States, No. 13-153, 2016 WL 1611476, at *9 (M.D. Ga. Apr. 21, 2016), aff’d, 687 F. App’x. 833 (11th Cir. 2017) (finding that allegations of denial of medical care, assault, false arrest and imprisonment, and conditions of trips to Immigration Court did not support a claim for intentional infliction of emotional distress); Bridges v. Winn-Dixie Atlanta, Inc., 335 S.E.2d 445, 448 (Ga. App. 1985) (“Emotional distress inflicted by another is not an uncommon condition; emotional distress includes all highly unpleasant mental reactions such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that liability arises… The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.”).
e. Negligent Infliction of Emotional Distress In Georgia, to prevail on a negligent infliction of emotional distress claim, a plaintiff must satisfy the Georgia impact rule requirements, which are that “(1) he suffered a physical impact; (2) the physical impact caused him physical injury; and (3) the physical injury caused his mental suffering or emotional distress.” Kirkland v. Earth Fare, Inc., 658 S.E.2d 433, 436 (Ga. App. 2008). A plaintiff must allege or
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proffer evidence of a physical injury to pursue this cause of action. Id.; see also Bullard v. MRA Holding, LLC, 890 F. Supp. 2d 1323, 1330 (N.D. Ga. 2012) (citing Lee v. State Farm Mut. Ins. Co., 533 S.E.2d 82 (Ga. 2000) (“In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.”)); Coon v. Med. Ctr., Inc., 797 S.E.2d 828, 836 (Ga. 2017) (reaffirming “that Georgia follows the physical impact rule for claims of negligent infliction of emotional distress”). Because Plaintiffs, particularly Plaintiffs J.A.M., Y.S.G.R., and J.I.G.R, do not allege that the United States “caused plaintiff[s] any physical injury, a negligent infliction of emotional distress claim necessarily fails.” Bullard, 890 F. Supp. 2d at 1330-31. D. Plaintiffs May Not Recover Punitive Damages, Attorneys’ Fees, or
Declaratory Relief. In their Prayer for Relief, Plaintiffs request punitive damages, attorneys’ fees, and declaratory relief. See Complaint at 27. These are not available under the FTCA. See 28 U.S.C. § 2674 (no punitive damages); 28 U.S.C. § 2678 (attorney fees); see also Douglas, 796 F. Supp. 2d at 1363 (government not liable for punitive damages); Mathis v. Laird, 324 F. Supp. 885 (M.D. Fl. 1971) (dicta) (FTCA cannot be invoked by claimant seeking declaratory relief); Moher v. United States, 875 F.
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Supp. 2d 739, 754-55 (W.D. Mich. 2012) (money damages is exclusive FTCA remedy; declaratory/injunctive relief claim dismissed).
CONCLUSION The Court lacks subject matter jurisdiction over Plaintiffs’ claims, and Plaintiffs fail to state a claim for relief. For all of the foregoing reasons, the United States requests that the Court dismiss the Complaint.
Respectfully submitted, BYUNG J. PAK UNITED STATES ATTORNEY s/ Gabriel Mendel Gabriel Mendel Assistant United States Attorney Georgia Bar No. 169098 600 United States Courthouse 75 Ted Turner Drive, S.W. Atlanta, Georgia 30303 Voice: (404) 581-6000 Facsimile: (404) 581-6181
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

Carlos Rene Morales, Rosa Vargas,

:

Morales, Juan Mijangos Vargas, Juneidy :

MijangosVargas, D.M.V., J.A.M.,

:

Salvador Alfaro, Johana Gutierrez,

:

Y.S.G.R., J.I.G.R., Lesly Padilla Padilla, :

E.D.N.P, and E.I.N.P.,

:

:

Plaintiffs,

:

:

v.

:

:

The United States of America,

:

:

Defendant.

:

Civil Action No. 1:17-CV-05052-SCJ

CERTIFICATE OF COMPLIANCE I certify that the documents to which this certificate is attached have been prepared with one of the font and point selections approved by the Court in LR 5.1B for documents prepared by computer.

Respectfully submitted,

s/ Gabriel Mendel Gabriel Mendel Assistant U.S. Attorney

Case 1:17-cv-05052-SCJ Document 12 Filed 02/16/18 Page 29 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

Carlos Rene Morales, Rosa Vargas,

:

Morales, Juan Mijangos Vargas, Juneidy :

MijangosVargas, D.M.V., J.A.M.,

:

Salvador Alfaro, Johana Gutierrez,

:

Y.S.G.R., J.I.G.R., Lesly Padilla Padilla, :

E.D.N.P, and E.I.N.P.,

:

:

Plaintiffs,

:

:

v.

:

:

The United States of America,

:

:

Defendant.

:

Civil Action No. 1:17-CV-05052-SCJ

CERTIFICATE OF SERVICE

I certify that I electronically filed the within and foregoing with the Clerk of

Court using the CM/ECF system.

This 16th day of February, 2018.

Respectfully submitted,
s/ Gabriel Mendel Gabriel Mendel Assistant U.S. Attorney

 
 Case 1:17-cv-05052-SCJ Document 17 Filed 08/06/18 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

CARLOS RENE MORALES, et al., Plaintiffs, v.
UNITED STATES OF AMERICA, Defendant.

: : : CIVIL ACTION NO. : 1:17-CV-5052-SCJ : : : : : :

ORDER

This matter appears before the Court on Defendant’s Motion to Dismiss

(Doc. No. [12]).

I. BACKGROUND

Plaintiffs Carlos Rene Morales, Rosa Vargas Morales, Juan Mijangos

Vargas, Juneidy Mijangos Vargas, D.M.V., J.A.M., Salvador Alfaro, Johana

Gutierrez, Y.S.G.R., J.I.G.R., Lesly Padilla Padilla, E.D.N.P., and E.I.N.P.,

(“Plaintiffs”) filed a complaint against The United States of America

(“Defendant”) on December 11, 2017 relating to Operation Border Resolve. Doc. No. [1].1

1 The Complaint states that Operation Border Resolve was an Enforcement and Removal Operation (“ERO”) approved by the United States Department of Homeland Security (“DHS”) in December 2015 to target the deportation of “Family Units” from El Salvador, Honduras, and Guatemala. Doc. No. [1], ¶¶ 20–21. The operation was carried out

AO 72A (Rev.8/82)

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The Plaintiffs consist of three different family units (the Vargas Family, the Gutierrez Family, and the Padilla Family). Doc. No. [1], pp. 6, 12, and 16. Most of the Plaintiffs are nationals and citizens of one of three countries, Guatemala, El Salvador, and Honduras. Id. at pp. 2–4. Three of the Plaintiffs are United States citizens, Plaintiffs J.A.M., Y.S.G.R., and J.I.G.R. Id. at ¶¶ 6, 9 and 10.
Plaintiffs claim that Immigration and Customs Enforcement (“ICE”) entered their homes under a ruse and without a warrant, exigent circumstances, and consent. Id. at pp. 12–28. Plaintiffs indicate that the agents who entered their home detained them in such a manner that they felt that they were not free to leave. Id. ¶¶ 60, 62, 95, 98. As to the Gutierrez Family, the officers searched the entire house. Id. ¶ 94. The Padilla family’s apartment was also searched. Id. ¶ 124. It also appears that the Vargas family’s home was searched. Id. ¶¶ 82–84.
The following Plaintiffs were transported to detention centers: (1) Ms. Rosa Vargas Morales, and her children, Juan Mijangos Vargas, Juneidy Mijangos
by Immigration and Customs Enforcement (“ICE”) on January 2 and 3, 2016 and had a goal of deporting 400 individuals that were nationals from El Salvador, Honduras, and Guatemala. Doc. No. [1], ¶¶ 23, 27. Over 120 individuals were arrested during Operation Border Resolve and transported to an immigration detention facility in Dilley, Texas. Id. ¶ 31.
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Bargas,2 and D.M.V.— for Ms. Vargas missing an immigration court date; (2) Ms.
Ana Mejia Gutierrez and her son, W.G.M.; and (3) Ms. Padilla and her twin sons,
E.D.N.P. and E.I.N.P. Doc. No. [1], ¶¶ 11, 62, 96, 130. According to the
Defendant, at the time of these events, Ms. Vargas and her children were subject
to final administrative orders of removal, which were subsequently vacated; Ms.
Ana Mejia Gutierrez and her son were subject to orders of removal, which were
subsequently vacated; and Ms. Padilla and her children were subject to orders of removal. Doc. No. [12], pp. 4–6; Doc. Nos. [12-1], [12-2], and [12-3].3
Plaintiffs further allege that the agents engaged in misconduct and threats
in the context of the raids. Doc. No. [1], pp. 5–20. Plaintiffs state that the raids
2 Junedity Mijangos Vargas was not taken into custody, because she was the mother of an infant, J.A.M. Doc. No. [1], ¶ 67.
3 In support of its motion, Defendant attached orders of removal concerning the various plaintiffs. Doc. Nos. [12-1], [12-2], and [12-3]. The Court finds it proper to consider these orders in the factual attack context of a subject matter jurisdiction review, which appears to be at hand, even though the Defendant does not specifically state the type of attack that it is bringing. See Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003) (internal citations omitted) (“In resolving a factual attack, the district court may consider extrinsic evidence . . . .”); cf. Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (“where the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff’s claim, then the court may consider the documents part of the pleadings for the purposes of Rule 12(b)(6) dismissal”). The Complaint also references vacated orders of removal concerning Ms. Vargas and her two minor children (¶ 71). There is also a reference to vacated final removal orders against Ms. Ana Mejia Guiterrez and W.G.M. (¶ 105). The Court recognizes that “Plaintiffs do not concede that any of the alleged removal orders were valid at the time of their arrest and seizure.” Doc. No. [15], p. 6, n.3.
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on their families “violated the Fourth Amendment rights of each plaintiff,” resulting in harm, inclusive of emotional distress, pain and suffering, property loss, loss of consortium, and trauma. Doc. No. [1], ¶¶ 148–49.
Under the Federal Tort Claims Act, 28 U.S.C. § 2671, Plaintiffs assert claims of False Imprisonment, Trespass, Negligence, Intentional Infliction of Emotional Distress, and Negligent Inflict of Emotional Distress by the ICE agents involved with Operation Border Resolve. Id. ¶ 14 and at pp. 20–27. The Complaint states that all administrative remedies have been exhausted under 28 U.S.C. § 2675. Id. ¶ 19.
On February 16, 2018, Defendant filed a motion to dismiss Plaintiffs’ Complaint. Doc. No. [12]. Defendant moves to dismiss Plaintiffs’ Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and the jurisdiction-stripping provisions of 8 U.S.C. § 1252(g). Doc. No. [12], p. 1. The matter has been fully briefed and is now ripe for review.
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II. LEGAL STANDARD The United States seeks to dismiss Plaintiffs’ Complaint for lack of subject
matter jurisdiction and failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). Doc. No. [12].
“Subject matter jurisdiction defines the court’s authority to hear a given type of case; it represents the extent to which a court can rule on the conduct of persons or the status of things.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (internal quotations and citations omitted).
A party may challenge the court’s subject-matter jurisdiction by filing a motion pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. A party asserting a lack of subject matter jurisdiction may employ a facial or a factual attack.
Facial attacks challenge subject matter jurisdiction based on the allegations in the complaint, and the district court takes the allegations as true in deciding whether to grant the motion. Factual attacks challenge subject matter jurisdiction in fact, irrespective of the pleadings. In resolving a factual attack, the district court may consider extrinsic evidence such as testimony and affidavits. Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003) (internal citations omitted).
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The Defendant does not state which type of attack it is bringing, but states that Plaintiffs’ claims should be dismissed under either standard. Doc. No. [12], p. 8. Because the Court has considered matters outside of the Complaint, i.e., the final administrative orders of removal, the Court deems the Defendant to have brought a factual attack. “[W]hen the attack is factual, the trial court may proceed as it never could under 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).
Also, “[i]n the face of a factual challenge to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists.” OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002); see also Lawrence v. United States, 597 F. App’x 599, 602 (11th Cir. 2015) (citing Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir.2005)).
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As to the Federal Rule of Civil Procedure 12(b)(6) ground of the pending motion to dismiss,4 a complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face.5 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (explaining “only a complaint that states a plausible claim for relief survives a motion to dismiss”) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561–62, 570 (2007) (retiring the prior Conley v. Gibson, 355 U.S. 41, 45–46 (1957) standard which provided that in reviewing the sufficiency of a complaint, the complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”). In Iqbal, the Supreme Court reiterated that although Rule 8 of the Federal Rules of Civil Procedure does not require detailed factual allegations, it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. I n T w o m b l y , t h e S u p r e m e C o u r t emphasized that a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 550 U.S. at
4 “In ruling on a 12(b)(6) motion, the Court accepts the factual allegations in the complaint as true and construes them in the light most favorable to the plaintiff.” Speaker v. U.S. Dep’t of Health and Human Servs. Ctrs for Disease Control and Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010).
5 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
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555. Factual allegations in a complaint need not be detailed but “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).” Id. at 555 (internal citations and emphasis omitted). III. ANALYSIS
A. Immigration and Nationality Act (“INA”) Defendant asserts that this Court lacks subject matter jurisdiction over Plaintiffs’ claims pursuant to the Immigration and Nationality Act (“INA”) and the jurisdictional channeling provision of 8 U.S.C. § 1252(g). Doc. No. [12], p. 9. Defendant states that “Plaintiffs’ claims challenge the legality of the manner in which they (or their family members) were arrested, detained, and processed for removal from the United States,” and “Congress has specifically divested federal district courts of jurisdiction to hear such claims.” Id. Section 1252(g) of Title 8 of the United States Code states in relevant part: Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory) . . . , no court shall have jurisdiction to hear any cause or claim by or on behalf of
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any alien6 arising from7 the decision or action by the [Secretary of Homeland Security]8 to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
8 U.S.C.A. § 1252(g).
The Supreme Court has indicated that § 1252(g) “applies only to three
discrete actions that the [Secretary of Homeland Security] may take: her
‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute
6 The INA defines an “alien” as “any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3); see also 8 U.S.C. § 1401 et seq. (defining a United States citizen and national at birth) and 8 U.S.C. § 1101(a)(22) (defining national).
7 “Congress has provided no explicit definition of the phrase ‘arising from,’ and courts have not always agreed on its plain meaning.” Humphries v. Various Fed. USINS Employees, 164 F.3d 936, 943 (5th Cir. 1999). “As a general matter, ‘arising from’ does seem to describe a nexus somewhat more tight than the also frequently used phrase ‘related to.’” Id. Supreme Court Justice Samuel Alito has written in an opinion that the term “arising from” is “capacious,” and further stated that “[the Supreme Court] did not interpret this language to sweep in any claim that can technically be said to ‘arise from’ the three listed actions of the Attorney General. Instead, [the Supreme Court] read the language to refer to just those three specific actions themselves [i.e., the decision or action to commence proceedings, adjudicate cases, or execute removal orders].” Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018) (Alito, J.) (citing American–Arab Anti–Discrimination Comm., 525 U.S. at 482–83).
8 Per Defendant, in light of legislation transferring functions of the former Immigration and Naturalization Service to the United States Department of Homeland Security, 6 U.S.C. §§ 202, 251, 557, the statutory reference to “Attorney General” is construed to mean the Secretary of Homeland Security. Doc. No. [12], p. 11, n.3 (citing Elgharib v. Napolitano, 600 F.3d 597, 606–07 (6th Cir. 2010)). The Court agrees. It has also been held that “Section 1252(g) is not limited to the Attorney General’s decisions and actions, but also applies to decisions and actions taken by the Attorney General’s subordinates.” Magallanes v. United States, 184 F. Supp. 3d 1372, 1376 (N.D. Ga. 2015) (citing Gupta, 709 F.3d at 1065).
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removal orders.’” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (emphasis omitted).
In Gupta v. McGahey, 709 F.3d 1062, 1063–64 (11th Cir. 2013), the Eleventh Circuit Court of Appeals “considered whether a district court lacked jurisdiction under § 1252(g) to consider an alien’s challenge under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), to the constitutionality of his arrest and detention by immigration agents, and the agents’ search and seizure of his personal property, related to the initiation of removal proceedings against him.” Wallace v. Sec’y, U.S. Dep’t of Homeland Sec., 616 F. App’x 958, 960 (11th Cir. 2015). In Gupta, a removable alien argued that federal agents “illegally procured an arrest warrant, that the agents illegally arrested him, and that the agents illegally detained him.” Alvarez v. U.S. Immigration & Customs Enf’t, 818 F.3d 1194, 1203–04 (11th Cir. 2016), cert. denied sub nom. Alvarez v. Skinner, 137 S. Ct. 2321 (2017). The Eleventh Circuit “concluded that the district court lacked subject matter jurisdiction under § 1252(g) to consider those claims, as they pertained to actions taken to secure [plaintiff-alien] and prevent the perceived threat that he posed pending a final removal determination.” Wallace, 616 F. App’x at 960. “As such, [the Eleventh Circuit] determined that [the plaintiffalien’s] challenge to the governmental actions at issue necessarily qualified as a
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claim ‘arising from’ a ‘decision . . . to commence proceedings’ under § 1252(g), and affirmed the district court’s dismissal for lack of jurisdiction.” Wallace, 616 F. App’x at 960.
As indicated above, in the case sub judice, Defendant argues that “Plaintiffs’ claims all ‘aris[e] from the decision . . . to commence proceedings, adjudicate cases, or execute removal orders’ and thus fall outside this Court’s jurisdiction pursuant to 8 U.S.C. § 1252(g).” Doc. No. [12], p. 14.
After review, this Court agrees with Defendant’s argument as to the alienplaintiffs, as seizing an alien subject to a removal order constitutes an action to execute a removal order and § 1252(g) bars this Court from reaching the merits of the plaintiff-alien’s claims, which arise from the decision to execute the removal orders. While the plaintiffs-aliens do argue that they were detained by means of misrepresentations and disregard for policy, because the plaintiff-aliens challenge the methods that ICE used to detain them in the execution of the removal orders, these claims are foreclosed by § 1252(g) and the Eleventh Circuit’s binding decision in Gupta. See Alvarez v, 818 F.3d at 1203–04. As stated by another district judge, “[a]lthough [d]efendants are alleged to have violated the statutory rules in executing [the removal orders], [p]laintiffs’ claims still fall within the parameters of § 1252(g). The fact that the removal may have
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been improper does not allow this Court to exercise jurisdiction where Congress clearly intended that it not.” Magallanes v. United States, 184 F. Supp. 3d 1372, 1379 (N.D. Ga. 2015).
The Court recognizes Plaintiffs’ public policy and slippery slope arguments, as well as their attempts to distinguish Gupta on the ground that the conduct of the agents at issue here was not discretionary and was “entirely divorced from execution of removal orders by the agents’ decision to act outside their authority.” Doc. No. [15]. pp. 5, 9, 11. Plaintiffs also argue that in Gupta, there was no indication that the agents were acting outside of agency policy, as the allegations in the case sub judice suggest and the present case was not for purposes of commencing removal proceedings, as the removal proceedings had already commenced before the seizures at issue here. Id. at p. 13.
After review, the Court is unable to uphold Plaintiffs’ arguments and attempts to distinguish the binding authority9 of the Gupta decision, as contrary to Plaintiffs’ arguments, it does appear that the Gupta case involved allegations of non-discretionary acts outside of agency policy in that the plaintiff in Gupta alleged that agents wrongfully procured a warrant for his arrest, unlawfully
9 See McGinley v. Houston, 361 F.3d 1328, 1331 (11th Cir. 2004) (“A circuit court’s decision binds the district courts sitting within its jurisdiction . . . .”) (citations omitted).
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arrested him, illegally searched his apartment and seized his personal items, and wrongfully detained him—and the Eleventh Circuit still applied the jurisdictional bar of §1252(g). 706 F.3d at 1064. Further, while Gupta did involve commencement of removal proceedings—this case involves execution of removal orders, which is analogous and still within the exclusion of § 1252(g).
Lastly, while the Court finds that the Plaintiff-aliens’ claims are barred, the Court does not find that § 1252(g) bars the claims of the United States citizen Plaintiffs, J.A.M., Y.S.G.R., and J.I.G.R.10 As stated by one court, “[b]ecause Plaintiff is a citizen, § 1252(g) by its terms does not act as a jurisdictional bar to this case.” Nwozuzu v. United States, No. 14 CIV. 8589 LGS, 2015 WL 4865772, at *4 (S.D.N.Y. Aug. 12, 2015), aff’d, 712 F. App’x 31 (2d Cir. 2017) (citing Kucana v. Holder, 558 U.S. 233, 251 (2010)); see also Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615, 623 (6th Cir. 2010) (“We hold that a complaint brought by a U.S. citizen child who asserts his or her own distinct constitutional rights and separate
10 The Court recognizes non-binding authority that could be construed as contrary authority. See Magallanes, 184 F. Supp. 3d at 1379 (dismissing claims brought by both alien plaintiff and U.S. citizen spouse because their “claims rest entirely upon the allegation that the Attorney General’s decisions to commence removal proceedings and execute an order of removal were improper”). However, because the citizen-Plaintiffs are attempting to assert their own distinct rights and separate injuries, the jurisdictional bar does not apply here. See also McGinley, 361 F.3d at 1331 (“The general rule is that a district judge’s decision neither binds another district judge nor binds him, although a judge ought to give great weight to his own prior decisions.) (citations omitted).
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injury does not fall fairly within the ‘on behalf of any alien’ jurisdictional bar in § 1252(g).”) and Nguyen v. United States, No. 3:00-CV-0528-R, 2001 WL 637573, at *4 (N.D. Tex. June 5, 2001), aff’d, 65 F. App’x 509 (5th Cir. 2003) (“Because the Plaintiff is a U.S. citizen and was a U.S. citizen at the time his claims arose, 1252(g) does not apply to this case. Therefore, this court has jurisdiction to hear this case . . . .”).
B. Rule 12(b)(6) As to the remainder of Defendant’s motion concerning Rule 12(b)(6) (failure to state a claim), Defendant has noted inter alia that Plaintiffs’ Complaint contains a number of cursory statements. Doc. Nos. [12], [16]. The Court also notes that the Complaint contains extensive incorporation by reference of certain facts (at ¶¶ 150, 162, 174, 184, 199)11and there is a need for compliance with Federal Rule of Civil Procedure 17(c), as the remaining plaintiffs are all minors. In light of such, the Court exercises its discretion to order that the remaining Plaintiffs replead the Complaint for Rule 17(c) compliance and to remove cursory
11 While not technically a shotgun pleading (because the Plaintiffs incorporate facts instead of allegations), additional clarity could be added by specifically stating which facts apply to each count. See Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1321 and n.10 (11th Cir. 2015 ) (defining shotgun pleadings and indicating that the proper remedy is for the district court to take sua sponte initiative and give plaintiff an opportunity to replead).
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pleading, as well as specify the facts that apply to each particular count and to each of the remaining citizen-Plaintiffs.
CONCLUSION Defendant’s Motion to Dismiss (Doc. No. [12]) is hereby GRANTED as to Plaintiffs Carlos Rene Morales, Rosa Vargas Morales, Juan Mijangos Vargas, Juneidy Mijangos Vargas, D.M.V., Salvador Alfaro, Johana Gutierrez, Lesly Padilla Padilla, E.D.N.P. and E.I.N.P., and DENIED WITHOUT PREJUDICE TO REFILE as to Plaintiffs J.A.M., Y.S.G.R., and J.I.G.R. The remaining Plaintiffs shall replead their Complaint (in accordance with the instructions herein) within thirty days of the entry of this order.
IT IS SO ORDERED, this 6th day of August, 2018. s/Steve C. Jones HONORABLE STEVE C. JONES UNITED STATES DISTRICT JUDGE
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 Case 1:17-cv-05052-SCJ Document 18 Filed 09/04/18 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

Juneidy Mijangos Vargas, on behalf )

a minor, J.A.M.; and Johana

)

Gutierrez, on behalf of minors,

)

Y.S.G.R. and J.I.G.R.,

)

)

Plaintiffs, )

)

v.

)

)

The United States of America,

)

)

Defendant. )

C/A No. 1:17-cv-05052-SCJ

FIRST AMENDED COMPLAINT

With no search or arrest warrant, Defendant unlawfully detained three

United States citizen children during the course of pre-planned raid. Based

on this Court’s August 6, 2018 order1 and Federal Rule of Civil Procedure

Rule 17(c), Plaintiff J.A.M, by and through his guardian and mother,

Juneidy Mijangos Vargas, and Plaintiffs Y.S.G.R. and J.I.G.R. by and

through their guardian and mother, Johana Gutierrez, seek to recover

damages based on such unlawful detention and allege as follows:

1 This Court directed that Plaintiffs re-plead the Complaint and, inter alia, remove the Plaintiffs who were dismissed pursuant to Rule 12(b)(6). Doc. 17. Plaintiffs’ compliance with the Court’s order should not be construed as a waiver of the right to appeal dismissal of the non-citizen Plaintiffs.
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PARTIES 1. Plaintiff J.A.M. is a United States citizen. He permanently resides in
Stone Mountain, Georgia, in DeKalb County, with his mother, Juneidy Mijangos Vargas. Pursuant to Rule 17(c), he is bringing this suit by and through his mother and guardian, Ms. Vargas, because Plaintiff J.A.M. is a minor. He is four years old. 2. Plaintiff Y.S.G.R. is a United States citizen. Y.S.G.R. permanently resides in Norcross, Georgia, in Gwinnett County with her mother, Johana Gutierrez. Pursuant to Rule 17(c), Y.S.G.R. is bringing this suit by and through her mother and guardian, Ms. Gutierrez, because she is a minor. She is fourteen years old. 3. Plaintiff J.I.G.R. is a United States citizen. He permanently resides in Norcross, Georgia, in Gwinnett County with his mother, Johana Gutierrez. Pursuant to Rule 17(c), J.I.G.R. is bringing this suit by and through his mother and guardian, Ms. Gutierrez, because he is a minor. He is eleven years old. 4. Defendant United States of America is the appropriate defendant under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., for the tort claims in this Complaint.
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JURISDICTION AND VENUE 5. This Court has jurisdiction over all claims in this case under 28 U.S.C.
§ 1331, 28 U.S.C. § 1346(b)(1), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq. 6. This Court has authority to enter declaratory relief under 28 U.S.C. § 2201. 7. This complaint is timely under 28 U.S.C. § 2401(b) because the tortious acts occurred on or before January 2, 2016; the Plaintiffs filed the administrative complaints with the DHS and ICE on October 27, 2016; the agencies denied those claims on June 12, 2017; and this suit was initially filed on December 11, 2017. 8. On August 6, 2018, this Court ordered Plaintiffs to file an amended complaint within 30 days. This suit is timely under the Court’s order. 9. Venue is proper in the Northern District of Georgia under 28 U.S.C. §§ 1391, 1402(b) because a substantial part of the events giving rise to the claims occurred in this district and the Plaintiffs reside in this district. 10.All administrative remedies have been exhausted under 28 U.S.C. § 2675.
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FACTS Operation Border Resolve 11. In December 2015, the United States Department of Homeland Security (“DHS”) approved an Enforcement and Removal Operation entitled “Operation Border Resolve.” The objective of Operation Border Resolve was to target “Family Units” for deportation. 12.DHS directed its sub-agency, Immigration and Customs Enforcement (“ICE”), to execute Operation Border Resolve. 13. Operation Border Resolve specifically targeted family units from El Salvador, Honduras, and Guatemala living in nine major U.S. metropolitan areas, including Atlanta, Georgia. 14. DHS set a numeric goal for apprehensions and deportations at 400 individuals. 15. DHS encouraged ICE field offices to allocate more agents to each enforcement team than it typically would. DHS allocated funds to cover the cost of the additional agents. 16. Because Operation Border Resolve targeted family units, DHS directed ICE field offices to ensure that the enforcement teams took the necessary
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supplies to detain children—including car seats, diapers, baby food, and baby formula. 17. DHS did not require ICE field offices to notify local law enforcement agencies about the planned raids. 18. DHS directed ICE to conduct the raids on January 2 and 3, 2016, between the hours of 6:00 AM and 10:00 PM. 19. DHS directed that all personnel assigned to Operation Border Resolve be trained on the Fourth Amendment. 20. ICE specifically instructs its agents that, if they claim to be a member of local law enforcement during a ruse, the agents must notify the local law enforcement agency beforehand. 21. On January 2 and 3, 2016, ICE agents conducted this multistate enforcement operation, sweeping into homes across Georgia, North Carolina, and Texas. 22. ICE agents arrested 121 people during Operation Border Resolve and transferred them to an immigration detention facility in Dilley, Texas. 23. The ICE Field Office Director for Atlanta seeks to scare foreign nationals through such raids and searches. He is quoted as saying: “If you’re in this country illegally, you should be scared. . . . We’re probably
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going to come knocking at some point.” Lee, Vivian, “Please, God, Don’t Let Me Get Stopped”: Around Atlanta, No Sanctuary for Immigrants, N.Y. Times at A1 (Nov. 26, 2017).
The Vargas Family 24. Plaintiff J.A.M. lives in Stone Mountain with his family, including his
mother and guardian, Juneidy Mijangos Vargas. He also lives with his extended family, comprising Rosa Vargas Morales (grandmother), Juan Mijangos Vargas (uncle), D.M.V. (aunt), and Carlos Rene Moran Morales (great uncle). 25. At approximately 4:00 AM on Saturday, January 2, 2016, J.A.M. and his family were awakened by the doorbell ringing, banging on the front door, and flashlights shining through the windows of the home. 26. Carlos Rene Morales looked out the window and saw approximately nine unmarked and unfamiliar cars outside his home and approximately five officers standing outside. He observed “POLICE” labels on the back of the officers’ jackets, and “ICE” on the back of one agent’s jacket. 27. This knocking, doorbell ringing, and shining of flashlights into the house persisted while the family cowered in the hallway, unsure of what to do.
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28. At one point, Mr. Morales opened a bathroom window to speak to the officers.
29. They asked Mr. Morales to open the door so they could speak to him, but when he asked for an explanation, they refused to provide any information about why they wanted to speak with him.
30. The officers eventually left. 31. The family was terrified to leave their home that day, but they needed
certain food items. Later that morning, Mr. Morales left the house to go to the grocery store. 32. When he returned home, two cars stopped him near the driveway of the house. 33. Two men, wearing jackets labeled “ICE” exited the cars, approached Mr. Morales’ car, and asked to see his driver’s license. 34. In Spanish, Mr. Morales asked the agents why they had pulled him over. They provided no traffic-related reason for stopping him. 35. Rather, the agents stated in Spanish that they knew a criminal suspect named “Miguel Soto” was in Mr. Morales’ home. They told Mr. Morales that they could arrest him for obstructing a criminal investigation.
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36. Mr. Morales explained that there was no Miguel Soto in the home; the agents then stated that they saw Mr. Soto enter the house that morning. Mr. Morales provided the agents with the names of the people who were present in the house to explain that no one named Miguel Soto lived or was currently staying there.
37. The agents continued to insist to Mr. Morales that they needed to enter the house. They repeatedly threatened that he would be arrested for obstructing a criminal investigation if he did not let them in the house. Mr. Morales feared the agents would arrest him unless he proved to them that no one named “Miguel Soto” was in the house.
38. Mr. Morales again—and repeatedly—tried to explain that no one named “Miguel Soto” lived in his home.
39. Mr. Morales observed guns on both agents. 40. Both agents yelled at and threatened Mr. Morales throughout the
interaction. 41. Mr. Morales told the agents that he would obtain the identification cards
of the people currently present in the home to show that no one named “Miguel Soto” was present there. The agents followed him to his front door.
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42. The agents told Mr. Morales that they wanted to enter the home. He asked them if they had a warrant. The agents told him that a judge had signed a warrant and they needed to come in. They never produced or otherwise proved to Mr. Morales that they had a warrant to enter his home.
43. At the entry to the home—and prior to touching the door knob—Mr. Morales explained to the agents that he would enter the home to obtain the identification cards of the people inside. He specified that the agents should wait outside, and they verbally agreed.
44. The agents did not seek his consent to enter the home. 45. He did not provide them with consent to enter his home. 46. Regardless, as Mr. Morales turned the door knob to enter his home, he
observed one agent put his hand on the door above his head to push the door, and he heard the other agent simultaneously kick on the door. 47. The door opened, and the agents entered the home. 48. Mr. Morales never gave the agents verbal permission to enter the home, and he never indicated otherwise that he consented to their entry. Nor did any other occupant of the house provide verbal or other consent to the agents’ entry.
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49. The two ICE agents ordered all family members, including J.A.M., to gather in the living room and provide identification.
50. Mr. Morales provided identification for his entire family. After the agents looked at the IDs, Mr. Morales asked the agents why they were still there. They falsely stated that they were waiting on another agent with a scanner to check that the IDs were real. This was a lie, as no agent ever scanned their IDs.
51. J.A.M and his family were held in the room for approximately 40 minutes, until a female agent arrived. D.M.V. remained asleep in her room. During this time, J.A.M.’s family was not free to leave the room, where the armed agents were detaining them.
52. At one point, Mr. Morales stood up to relieve discomfort in his back, and an agent pushed him down, telling Mr. Morales to stay seated or he would be arrested.
53. Upon arriving, the female agent read aloud the names of Rosa Vargas Morales, Juan Mijangos Vargas, Juneidy Mijangos Vargas, and D.M.V. She did not read the name of J.A.M. She explained that the agents were there to arrest them, because Rosa Vargas Morales had missed an immigration court date. The agent said that Rosa Vargas Morales and all 10

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three of her children would need to pack bags and come with them. Mr. Morales stated that Rosa Vargas Morales had not missed a single court date, but the agent responded that she did not want to hear the family’s explanations. 54. The agents gave Rosa Vargas Morales and her children bags and instructed them to pack personal belongings for the trip. 55. At one point, J.A.M. offered one of his toys to an ICE agent and the agent aggressively directed him to return it to his mother. J.A.M. cried inconsolably throughout the raid. 56. The agents decided not to bring Juneidy Mijangos Vargas, with them, because she is the mother of J.A.M., who was an infant at the time. 57. The agents escorted Rosa Vargas Morales, Juan Mijangos Vargas, and D.M.V. to a vehicle and drove them to an immigration detention center in Atlanta. 58. Since the raids, J.A.M. is frightened and nervous around law enforcement. When he sees police, he hides and warns his mother that the police are coming to take her. 59. J.A.M. suffered serious emotional trauma because of the raids. His mother, Juneidy Mijangos Vargas, took him to see a pediatrician because
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he has been overeating since the raid. The doctor informed Ms. Vargas that his overeating may be a symptom of anxiety. 60. ICE agents did not have a warrant that permitted them to enter or search the J.A.M’s home or detain J.A.M. 61. No exigent circumstances existed that would allow ICE agents to lawfully enter or search J.A.M. or detain J.A.M. 62. Mr. Morales did not give consent for ICE agents to enter or search the J.A.M.’s home or detain J.A.M. Nor did any other occupant or resident give consent to the agents’ entry and search of the J.A.M.’s home or detention of J.A.M.
The Gutierrez Family 63. Plaintiffs Y.S.G.R., and J.I.G.R live with their mother and guardian,
Johanna Gutierrez, and her husband, Salvador Alfaro. 64. At approximately 5:00 AM, on Saturday, January 2, 2016, Johana
Gutierrez and Salvador Alfaro awoke to the sound of loud banging on the front door and ringing of the doorbell. 65. At that time, Y.S.G.R. (age 12), J.I.G.R. (age 9), Johanna Gutierrez, Salvador Alfaro, and Ms. Gutierrez’s niece, Ana Lizeth Mejia Gutierrez, and her son, W.G.M. (age 10), were present and asleep in the home.
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66. Johanna Gutierrez and Salvador Alfaro got out of bed and went downstairs to the front door. Through the front window, they could see officers with flashlights and unfamiliar, unmarked cars in front of the house.
67. In English, Johanna Gutierrez asked, “Who is it?” 68. The officers held up a photo through the window and shined their
flashlights on it. It was a picture of an African American man. They indicated that the man was a criminal suspect and they had been told that the person in the photo was in the Gutierrez home. 69. Salvador Alfaro opened the door and, without asking for permission to enter, approximately five or six officers pushed past Mr. Alfaro and Ms. Gutierrez and immediately entered the house. 70. The officers who entered the house had guns on their hips. 71. The officers searched the entire house—some going into the living room, others going upstairs. They checked all rooms, including the laundry room, kitchen, and garage, and they looked underneath beds and in closets. 72. The officers woke everyone in the house, including but not limited to Y.S.G.R. and J.I.G.R, and brought them—in their pajamas—into the
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living room where they detained them for 30 minutes to an hour. Everyone was scared and confused. The children were crying. 73. The officers asked for Ana Mejia Gutierrez, and her son, W.G.M. 74. When Johanna Gutierrez realized that the officers were not police, but rather ICE agents, she tried to get her phone to make a call, but an agent told her not to move. 75. One agent stood between the family in the living room and the front door throughout the raid. No one felt free to leave. At one point, the agents asked for identification cards. Johanna Gutierrez offered to go upstairs to get the IDs, and the agent in the living room told her not to move, placing his hand on his holstered gun. 76. Johanna Gutierrez asked the agents why they had lied to enter the house. They told her to be quiet. She asked about her rights. The agent standing at the door told her that she would get her rights once they left with her niece, Ana Mejia Gutierrez. 77. The agent guarding the door threatened to arrest Johanna Gutierrez several times. 78. Ms. Gutierrez told the agents that they were violating her rights. She told them that they were traumatizing Y.S.G.R. and J.I.G.R, that they should
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have a warrant, and that they had lied. The interpreter heard her, but stopped interpreting what she said. 79. The agents arrested Ms. Ana Mejia Gutierrez and W.G.M and took them away. 80. After the raid, Y.S.G.R. and J.I.G.R. have changed. They are more fearful. Y.S.G.R. and J.I.G.R. refuse to answer the door when someone knocks. 81. Y.S.G.R. missed school for a week. She refused to sleep alone. Y.S.G.R. indicated to a classmate that she was thinking about harming herself. She was reported to a school counselor who referred her to a psychologist. She met with the psychologist and later her pastor to work through the mental anguish and pain as a result of the raid. 82. To this day, Y.S.G.R. intermittently cries without consolation, telling her mother that she no longer wants to live in the United States. 83. After the raid, J.I.G.R. received counseling from the family’s pastor. 84. J.I.G.R. continues to suffer significant emotional pain and distress as a result of the raid. Before the raid, he was involved in swimming classes and sporting activities. He no longer participates in those activities.
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J.I.G.R. has become insular. He prefers staying at home and has difficulty talking to strangers. 85. ICE agents did not have a warrant that permitted them to enter or search Y.S.G.R. or J.I.G.R.’s home or detain Y.S.G.R. or J.I.G.R. 86. No exigent circumstances existed that would allow ICE agents to lawfully enter or search Y.S.G.R. or J.I.G.R.’s home or detain Y.S.G.R. or J.I.G.R. 87. Neither Ms. Gutierrez nor Mr. Alfaro gave and could have given knowing or voluntary consent for ICE agents to enter or search the Y.S.G.R. or J.I.G.R.’s home or detain Y.S.G.R. or J.I.G.R. because the ICE agents gained entry by lying about their purpose for entry.
FIRST CAUSE OF ACTION (False Imprisonment)
88. ICE, through its investigative and law enforcement agents, intentionally and unlawfully deprived each J.A.M., Y.S.G.R., and J.I.G.R. of his or her personal liberty by entering their homes without a judicial warrant or voluntary consent and absent exigent circumstances and by detaining J.A.M., Y.S.G.R., and J.I.G.R. against their will in violation of O.C.G.A. § 51-7-20; Ferrel v. Mikula, 672 S.E.2d 7, 10 (Ga. App. 2008); Lyttle v. United States, 867 F. Supp. 2d 1256, 1297 (M.D. Ga. 2012). 16

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89. The ICE agents committed these acts as employees of the U.S. while acting within the scope of their employment at all relevant times as part of Operation Border Resolve.
90. The ICE agents were acting in an investigative or law enforcement role at all relevant times as part of Operation Border Resolve.
91. J.A.M., Y.S.G.R., and J.I.G.R. were detained by force or threat of force to a specific area in their homes controlled by the ICE agents; they were unable to leave that area or their homes while ICE agents conducted an unlawful, pre-textual search.
92. J.A.M., Y.S.G.R., and J.I.G.R.’s detention was not authorized by a judicially issued warrant, and any warrant ICE may have had for purposes of executing the operation did not extend to J.A.M., Y.S.G.R., and J.I.G.R.
93. J.A.M. alleges the following specific facts to support his claim to false imprisonment under Georgia law, see O.C.G.A. § 51-7-20: a. ICE unlawfully detained J.A.M. when agents entered his home without consent and unlawfully confined him to a specified area for approximately one hour. At 4:00 AM on Saturday, January 2, 2016, ICE awoke J.A.M. and his family by banging on the door, ringing the 17

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doorbell, and shining flashlights into the windows. Carlos Rene Morales refused to open the door for them, and they eventually left. b. Later that day, Carlos Rene Morales left the home. Upon his return, ICE officers approached him, threatened him with arrest, and alleged that a criminal suspect was located in the home of J.A.M. and his family. Carlos Rene Morales refused to consent to ICE to enter the home, but as Mr. Morales turned the doorknob of the front door, ICE officers pushed the door opened, forcefully entered the home, raided the home, and detained J.A.M. and his family. No one gave ICE consent to enter the home. c. Thereafter, ICE detained J.A.M. and his family in the living room by force or threat of force for approximately an hour. J.A.M. could not leave. d. Eventually, ICE left. 94. Based on these specific facts and those alleged elsewhere in this amended complaint, ICE falsely imprisoned J.A.M. precluding him from leaving the living room during the actual raid. This detention was unlawful under Georgia and federal law for the following specific reasons:
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a. ICE had no probable cause to detain J.A.M. during the operation, because he is a United States citizen;
b. ICE had no judicially issued warrant authorizing the entry in and search of J.A.M.’s home;
c. ICE used an unconstitutional “ruse” to gain entrance or consent to enter J.A.M.’s home;
d. ICE unlawfully entered J.A.M.’s home without knowing and voluntary consent;
e. No exigent circumstances existed that would allow ICE to lawfully enter any J.A.M.’s home without a warrant or consent; and
f. ICE’s detention of J.A.M. was otherwise unlawful. 95. This unlawful detention caused J.A.M. mental anguish with lasting
consequences, including but not limited to his fear of police and ongoing significant anxiety. 96.Y.S.G.R. and J.I.G.R. allege the following specific facts to support their specific claims to false imprisonment under Georgia law, see O.C.G.A. § 51-7-20: a. At 5:00 AM on Saturday, January 2, 2016, ICE agents began banging
on the front door and ringing the doorbell of Y.S.G.R. and J.I.G.R.’s 19

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home. Y.S.G.R. and J.I.G.R.’s mother, Johana Gutierrez, and her husband, Salvador Alfaro, went downstairs to investigate the source of the ruckus. There were ICE agents at the door, claiming that an African American man was a criminal suspect who was in their home. Salvador Alfaro opened the door and five or six officers rushed past him and forcefully entered the home. No one, including Mr. Alfaro, gave the ICE officers consent to enter the home. b. ICE agents searched the home. c. ICE agents detained Y.S.G.R. and J.I.G.R. along with others in the living room by force or threat of force for approximately 30 minutes to an hour. One ICE agent with a visible gun stood between the family in the living room and the front door throughout the raid. Y.S.G.R. and J.I.G.R. did not feel they could leave. They were scared and crying. Eventually, ICE took Y.S.G.R. and J.I.G.R.’s cousins into custody. Y.S.G.R. and J.I.G.R. watched ICE yell at their mother and threaten her arrest. 97.Based on these specific facts and those alleged elsewhere in this amended complaint, ICE falsely imprisoned Y.S.G.R. and J.I.G.R.by forcing them out of their bedrooms and confining them by force or threat of force in
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the living room for up to an hour. This detention was unlawful under Georgia and federal law for the following specific reasons:
a. ICE had no probable cause to detain Y.S.G.R. and J.I.G.R. during the operation because they are United States citizens;
b. ICE had no judicially issued warrant authorizing the entry in and search of Y.S.G.R. and J.I.G.R.’s home;
c. ICE used an unconstitutional “ruse” to gain entrance or consent to enter Y.S.G.R. and J.I.G.R.’s home;
d. ICE unlawfully entered Y.S.G.R. and J.I.G.R.’s home without knowing and voluntary consent;
e. No exigent circumstances existed that would allow ICE to enter Y.S.G.R. and J.I.G.R.’s home without a warrant or consent; and
f. ICE’s detention of Y.S.G.R. and J.I.G.R. was otherwise unlawful. 98. This false imprisonment caused Y.S.G.R. significant mental anguish,
including but not limited to paralyzing anxiety that forced her to miss school for a week and prevented her from sleeping alone, and trauma that led to thoughts of self-harm and ongoing crying spells. 99.Y.S.G.R. has had sought assistance from a school counselor, private psychologist, and clergy to overcome her ongoing mental anguish.
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100. The unlawful detention caused J.I.G.R. significant mental anguish, including but not limited to a significant decrease in social engagement and fear of leaving home.
101. The due care exception under 28 U.S.C. § 2680(a) does not apply to this cause of action. Lyttle v. United States, 867 F. Supp. 2d. 1256, 1257 (M.D. Ga. 2012).
102. The discretionary function exception under 28 U.S.C. § 2680(a) does not apply to false imprisonment. Nguyen v. United States, 556 F.3d 1244, 1260 (11th Cir. 2009).
103. This false imprisonment caused Plaintiffs damages. 104. Those damages include but are not limited to:
a. Property damage and loss; b. Emotional distress; c. Mental anguish; and d. Other damages to be proven at trial. 105. Plaintiffs are entitled to damages against the United States for false imprisonment to the full extent allowed under Georgia law and the FTCA, in an amount to be determined by the trier of fact.
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106. Under the Federal Tort Claims Act, defendant United States of America is liable for these actions. SECOND CAUSE OF ACTION (Trespass)
107. The ICE agents were acting within the scope of their employment at all relevant times.
108. The ICE agents were acting in an investigative or law enforcement role at all relevant times.
109. The ICE agents intentionally and unlawfully interfered with Plaintiffs’ enjoyment of private property in which Plaintiffs had a possessory interest under O.G.C.A. § 51-9-1.
110. The ICE agents unconstitutionally entered all of Plaintiffs’ homes without a judicially issued warrant or voluntary consent and absent exigent circumstances.
111. Further, the ICE agents entered Plaintiffs’ homes by using an unconstitutional “ruse” to gain entry.
112. All such actions violated Plaintiffs’ Fourth Amendment rights to be free from unreasonable searches and seizures.
113. More specifically, ICE trespassed against J.A.M. because:
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a. J.A.M. was a resident and legal tenant of the home ICE raided, and therefore, J.A.M. had a possessory interest under Georgia law.
b. No person at the home gave consent to ICE to enter the home; rather, Carlos Rene Morales explicitly refused consent, the ICE agents nonetheless entered by force.
c. There were no exigent circumstances that would allow ICE to lawfully enter J.A.M.’s home.
d. ICE lied to Carlos Rene Morales in an effort to obtain entry into J.A.M.’s home by knowingly and falsely claiming there was a criminal suspect inside of the home.
e. ICE had no warrant for the detention of J.A.M. or the search of J.A.M.’s home.
114. ICE interfered with J.A.M.’s right to quiet enjoyment with willfulness, malice, or corruption; ICE did not have a valid warrant, voluntary consent or exigent circumstances that would justify entering the home; ICE lied in its efforts to get in and then forcefully entered and detained J.A.M.
115. Y.S.G.R. and J.I.G.R. allege the following specific facts to support their claim to trespass under Georgia law, see O.C.G.A. § 51-7-20: 24

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a. Y.S.G.R. and J.I.G.R. were resident and legal tenants of the home that ICE raided; Y.S.G.R. and J.I.G.R. had a possessory interest in the home.
b. At 5:00 AM on Saturday, January 2, 2016, Salvador Alfaro did not provide voluntary consent to ICE to enter the home, yet when he opened the door and five or six officers forced their way into Y.S.G.R. and J.I.G.R.’s home.
c. There were no exigent circumstances that would justify ICE lawfully entering Y.S.G.R. and J.I.G.R.’s home;
d. ICE lied to try to get into Y.S.G.R. and J.I.G.R.’s home by knowingly and falsely claiming there was a criminal suspect inside of the home.
116. ICE interfered with Y.S.G.R. and J.I.G.R.’s right to quiet enjoyment with willfulness, malice, or corruption; ICE did not have a valid warrant, voluntary consent or exigent circumstances that would justify entering the home; ICE lied in its efforts to get in and then forcefully entered and detained Y.S.G.R. and J.I.G.R.
117. Defendant’s actions were not discretionary because Defendant has no discretion to act unconstitutionally. Rosas v. Brock, 826 F.2d 1004, 1008
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(11th Cir. 1987); Mancha v. Immigration & Customs Enf't, No. 106-CV2650-TWT, 2009 WL 900800, at *4 (N.D. Ga. Mar. 31, 2009). 118. This unconstitutional trespass caused Plaintiffs’ damages. 119. Plaintiffs are entitled to damages against the United States for trespass to the full extent allowed under Georgia law and the FTCA, in an amount to be determined by the trier of fact. 120. Under the Federal Tort Claims Act, defendant United States of America is liable for these actions.
THIRD CAUSE OF ACTION (Negligence)
121. The ICE agents were acting within the scope of its employment at all relevant times.
122. The ICE agents were acting in an investigative or law enforcement role at all relevant times.
123. ICE had a duty to act with reasonable care when exercising authority to detain Plaintiffs and search their homes and to abide by the U.S. Constitution during the operation, including but not limited to entering and searching a home only under the authority of a judicially issued warrant, exigent circumstances, or knowing and voluntary consent by a person authorized to consent. 26

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124. ICE also had a duty to act with reasonable care and to follow its own practices and procedures, including but not limited to notifying local law enforcement authorities that it intended on purporting to be local “police” during the course of its raids.
125. ICE breached these duties by unlawfully entering and searching Plaintiffs’ homes without a judicially issued warrant, exigent circumstances, or knowing and voluntary consent and unlawfully detaining the Plaintiffs.
126. ICE also breached internal, non-discretionary DHS practices and policies, including but not limited to DHS policies related to the use of “ruses.”
127. Specifically, ICE failed to act with reasonable care when ICE agents unlawfully entered and searched J.A.M.’s home and detained J.A.M. without a warrant, voluntary consent or exigent circumstances to justify their actions.
128. Similarly, ICE failed to act with reasonable care when ICE agents unlawfully entered and searched the home of Y.S.G.R and J.I.G.R. and detained Y.S.G.R and J.I.G.R. without a warrant, voluntary consent or exigent circumstances to justify their actions. 27

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129. This breach of duty caused J.A.M. mental anguish and ongoing trauma, including but not limited to his fear of police and ongoing significant anxiety.
130. This breach of duty caused Y.S.G.R. significant mental anguish, including but not limited paralyzing anxiety that forced her to miss school for a week and prevented her from sleeping alone, and trauma that led to thoughts of self-harm and ongoing crying spells.
131. Y.S.G.R. has had to speak with a school counselor, private psychologist, and clergy to try to overcome this harm.
132. This breach of duty caused J.I.G.R. significant mental anguish, including but not limited to a significant decrease in social engagement and fear of leaving home.
133. As a direct and proximate result of Defendant’s breaches of duties, Plaintiffs have suffered and continue to suffer damages including, but not limited to: a. Property damage and loss; b. Emotional distress; c. Mental anguish; and d. Other damages to be proven at trial. 28

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134. Plaintiffs are entitled to damages against the United States for negligence to the full extent allowed under Georgia law and the FTCA, in an amount to be determined by the trier of fact.
135. Under the Federal Tort Claims Act, defendant United States of America is liable for these actions. FOURTH CAUSE OF ACTION (Intentional Infliction of Emotional Distress)
136. The ICE agents were acting within the scope of its employment at all relevant times.
137. The ICE agents were acting in an investigative or law enforcement role at all relevant times.
138. The ICE agents acted intentionally or recklessly when they unlawfully entered and searched J.A.M., Y.S.G.R., and J.I.G.R.’s and unlawfully detained J.A.M., Y.S.G.R., and J.I.G.R, who are United States citizens and children.
139. The ICE agents’ actions were extreme and outrageous because they carried visible firearms, threatened the families of J.A.M., Y.S.G.R., and J.I.G.R., forced J.A.M., Y.S.G.R., and J.I.G.R. out of bed, and detained United States citizens J.A.M., Y.S.G.R., and J.I.G.R.
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140. ICE used racial stereotypes to scare the Gutierrez and Padilla Families into “consenting” to their search.
141. The ICE agents compelled Carlos Rene Morales to enter his home, in order to obtain I.D.’s of the residents, by repeatedly threatening arrest for a knowingly falsified charge of “obstruction of justice.”
142. The ICE agents entered J.A.M’s home without obtaining voluntary and knowing consent, by pushing the door open as Carlos Rene Morales turned the doorknob to obtain the I.D.’s and forcefully entering the home.
143. The ICE agents gained entry into J.A.M., Y.S.G.R., and J.I.G.R.’s homes by preying on their families’ fears and deliberately lying about the presence of fictitious criminal suspects in their homes.
144. Specifically, ICE engaged in intentional infliction of emotional distress towards J.A.M. by threatening to arrest and to take away his mother, forcing him and his family to cower in the hallway as they first attempted to enter the home, forcing him to remain in the living room, yelling at him and subjecting him these actions despite that he was an infant and is a United States citizen.
145. Specifically, ICE engaged in intentional infliction of emotional distress towards Y.S.G.R. and J.I.G.R. by threating to arrest and take 30

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away their parents, forcing them out of their beds in the early hours of the day, forcing them to stay in the living room, and subjecting them to these actions despite that they were children and are United States citizens. 146. All such conduct is extreme and outrageous. 147. The ICE agents’ outrageous and extreme conduct directly caused Plaintiffs emotional distress and other damages. 148. ICE’s tortious conduct caused J.A.M. mental anguish, including but not limited to his fear of police and ongoing significant anxiety. 149. ICE’s tortious conduct caused Y.S.G.R. significant mental anguish, including but not limited paralyzing anxiety that forced her to miss school for a week and prevented her from sleeping alone, and trauma that led to thoughts of self-harm and ongoing crying spells. 150. Y.S.G.R. has had to speak with a school counselor, private psychologist, and clergy to try to overcome this harm. 151. ICE’s tortious conduct caused J.I.G.R. significant mental anguish, including but not limited to a significant decrease in social engagement and fear of leaving home. 152. Those damages include but are not limited to:
a. Property damage and loss; 31

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b. Emotional distress; c. Mental anguish; and d. Other damages to be proven at trial. 153. The emotional distress is severe, lasting, and grave. 154. Plaintiffs are entitled to damages against the United States for intentional infliction of emotional distress to the full extent allowed under Georgia law and the FTCA, in an amount to be determined by the trier of fact. 155. Under the Federal Tort Claims Act, defendant United States of America is liable for these actions.
FIFTH CAUSE OF ACTION (Negligent Infliction of Emotional Distress) 156. The ICE agents were acting within the scope of its employment at all relevant times. 157. The ICE agents were acting in an investigative or law enforcement role at all relevant times. 158. Alternatively, the ICE agents acted negligently when they unlawfully entered and searched J.A.M., Y.S.G.R., and J.I.G.R.’s homes and unlawfully detained J.A.M., Y.S.G.R., and J.I.G.R. 159. ICE’s negligence was extreme and outrageous.
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160. The ICE agents used racial stereotypes to scare Y.S.G.R. and J.I.G.R.’s family into “consenting” to their search.
161. The ICE agents forcefully entered the J.A.M.’s home without a valid warrant authorizing the entry, or voluntary and knowing consent or exigent circumstances that would otherwise justify their entry.
162. The ICE agents also entered the J.A.M.’s home by repeatedly threatening to arrest Carlos Rene Morales for a falsified charge of “obstruction of justice.”
163. ICE gained entry into J.A.M., Y.S.G.R., and J.I.G.R.’s homes by lying.
164. All such conduct is extreme and outrageous for officers bound by duty to follow federal and state law.
165. All such conduct is extreme and outrageous as to United States citizens when ICE agents were limited to executing an immigration enforcement action premised on judicial deportation orders.
166. All such conduct is extreme and outrageous as to children. 167. ICE’s outrageous and extreme conduct caused Plaintiffs’ damages. 168. ICE’s tortious conduct caused J.A.M. mental anguish, including but
not limited to his fear of police and ongoing significant anxiety. 33

Case 1:17-cv-05052-SCJ Document 18 Filed 09/04/18 Page 34 of 37
169. ICE’s tortious conduct caused Y.S.G.R., including but not limited to paralyzing anxiety that forced her to miss school for a week and prevented her from sleeping alone, and trauma that led to thoughts of self-harm and ongoing crying spells.
170. Y.S.G.R. has had to speak with a school counselor, private psychologist, and clergy to try to overcome this harm.
171. ICE’s tortious conduct caused J.I.G.R. significant mental anguish, including but not limited to a significant decrease in social engagement and fear of leaving home.
172. The damages suffered by J.A.M., Y.S.G.R., and J.I.G.R. include but are not limited to: a. Property damage and loss; b. Emotional distress; c. Mental anguish; and d. Other damages to be proven at trial.
173. The emotional distress is severe, lasting, and grave. 174. Plaintiffs are entitled to damages against the United States for
negligent infliction of emotional distress to the full extent allowed under
34

Case 1:17-cv-05052-SCJ Document 18 Filed 09/04/18 Page 35 of 37

Georgia law and the FTCA, in an amount to be determined by the trier of

fact.

175. Under the Federal Tort Claims Act, defendant United States of

America is liable for these actions.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request:

1. Compensatory damages;

2. Punitive damages;

3. Reasonable attorneys’ fees and costs pursuant to 28 U.S.C. § 2678, the

Equal Access to Justice Act, the Court’s inherent powers, and any other

applicable law;

4. A declaration that the use of “ruses” to take custody over a foreign

national for purposes of deportation or to take custody over a United

States citizen during an “immigration raid” must comport with the

Constitution; and

5. Any other such relief the Court deems just and proper.

September 4, 2018

Respectfully Submitted,

Daniel Werner Georgia Bar No. 422070 SOUTHERN POVERTY LAW CENTER

35

Case 1:17-cv-05052-SCJ Document 18 Filed 09/04/18 Page 36 of 37
150 East Ponce de Leon Ave., Suite 340, Decatur, GA 30030 (404) 521-6700 (Tel) (404) 221-5857 (Fax) daniel.werner@splcenter.org
Lisa S. Graybill Texas Bar No. 24054454 SOUTHERN POVERTY LAW CENTER 1055 St. Charles Avenue, Suite 505 New Orleans, LA 70130 (504) 486-8982 (Tel) (504) 486-8947 (Fax) LisaSGraybill@splcenter.org Appearing pro hac vice
BRADLEY B. BANIAS South Carolina Bar No. 76653 Barnwell, Whaley, Patterson & Helms 288 Meeting Street, Suite 200 Charleston, South Carolina 29401 P: 843.577.7700 F: 843.577.7708 bbanias@barnwell-whaley.com Appearing pro hac vice Attorneys for Plaintiffs
36

Case 1:17-cv-05052-SCJ Document 18 Filed 09/04/18 Page 37 of 37

Certificate of Service

I declare that I filed the foregoing on the court’s electronic filing

system, which forwarded an electronic copy to all counsel of record.

September 4, 2018

Respectfully Submitted,

BRADLEY B. BANIAS South Carolina Bar No. 76653 Barnwell, Whaley, Patterson & Helms 288 Meeting Street, Suite 200 Charleston, South Carolina 29401 P: 843.577.7700 F: 843.577.7708 bbanias@barnwell-whaley.com
Appearing pro hac vice

37

 
 Case 1:17-cv-05052-SCJ Document 40 Filed 03/23/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JUNEIDY MIJANGOS VARGAS, on behalf of a minor, J.A.M.; and JOHANA GUTIERREZ, on behalf of minors, Y.S.G.R. and J.I.G.R.,
Plaintiffs,

CIVIL ACTION FILE NO. 1:17-CV-5052-SCJ

v.

THE UNITED STATES OF AMERICA,

Defendant.

ORDER This matter appears before the Court on the parties’ dispute concerning whether there has been a valid acceptance by Plaintiffs of the offer of judgment presented by Defendant, The United States of America. See Doc. Nos. [34], [35], [36], and [38]. After review, the Court upholds the citations of authority and arguments presented by the United States, i.e., that the plain language of the offer of

Case 1:17-cv-05052-SCJ Document 40 Filed 03/23/20 Page 2 of 3
judgment provided for a $15,000 single judgment for all Plaintiffs (collectively), not $15,000 per Plaintiff.
The Court is unable to uphold Plaintiffs’ self-executing, ambiguity, absence of discretion, Rules 59/69 and other arguments to the contrary, as the Eleventh Circuit has held that it was not erroneous for a district court to determine that an offer and acceptance were inconsistent and the Eleventh Circuit has declined to uphold an assertion of error following the district court’s striking of the plaintiffs’ acceptance. See Johnson v. Univ. Coll. of Univ. of Ala., 706 F.2d 1205, 1209 (11th Cir. 1983), holding modified by Gaines v. Dougherty Cty. Bd. of Educ., 775 F.2d 1565 (11th Cir. 1985). Here, the offer and acceptance are inconsistent. The Court DIRECTS the Clerk to strike the Notice of Acceptance at Doc. No. [34].1 Because Plaintiffs possibly face an order of costs at a later date, in the interest of caution, the Court will permit Plaintiffs an additional FOURTEEN DAYS from the entry of this Order to file a consistent written notice
1 While normally, only pleadings are struck from the record, the Court follows the procedure utilized in the Johnson case above.
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accepting the offer that accords with the Court’s ruling, above and in accordance with the plain language of the United States’ offer of judgment.2
Discovery in this case begins on APRIL 2, 2020 in accordance with Local Rule 26.2, NDGa. The attorneys of record are ORDERED to confer and file a joint preliminary report/proposed scheduling order within TEN DAYS of the entry of this Order.
IT IS SO ORDERED this 23rd day of March, 2020. s/Steve C. Jones______________________ HONORABLE STEVE C. JONES UNITED STATES DISTRICT JUDGE
2 See Fed. R. Ci. P. 68 (d) (“Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.”).
3

 
 Case 1:17-cv-05052-SCJ Document 23 Filed 08/28/19 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JUNEIDY MIJANGOS VARGAS, on behalf of a minor, J.A.M.; and JOHANA GUTIERREZ, on behalf of minors, Y.S.G.R. and J.I.G.R.,
Plaintiffs,

CIVIL ACTION FILE NO. 1:17-CV-5052-SCJ

v.

THE UNITED STATES OF AMERICA,

Defendant.

ORDER This matter appears before the Court on Defendant’s Motion to Dismiss Plaintiffs’ First Amended Complaint (Doc. No. [19]). Defendant’s motion is based on Federal Rule of Civil Procedure 12(b)(6).1

1 In its motion, Defendant also references Rule 12(b)(1) and the jurisdiction-stripping provisions of 8 U.S.C. § 1252(g) (Doc. No. [19], p. 1); however, the substance of Defendant’s motion does not discuss this rule/statute. To this regard, the Court will only address Defendant’s Rule 12(b)(6)/failure to state a claim arguments.

Case 1:17-cv-05052-SCJ Document 23 Filed 08/28/19 Page 2 of 31
I. BACKGROUND In this case, Plaintiffs, who are each minors and United States citizens, seek
to recover damages under the Federal Tort Claims Act, 28 U.S.C. § 2671 et al., based on an alleged unlawful detention by Immigration and Customs Enforcement (“ICE”) agents as a part of an Enforcement and Removal Operation, entitled “Operation Border Resolve.” Doc. No. [18], pp. 2–4.2 Plaintiffs assert the following causes of action: (1) False Imprisonment; (2) Trespass; (3) Negligence; (4) Intentional Infliction of Emotional Distress; and (5) Negligent Infliction of Emotional Distress. Id. at pp. 16–33.
Plaintiffs J.A.M., Y.S.G.R., and J.I.G.R. were respectively an infant, twelve years, and nine years old at the time of the raid. Doc. No. [18], ¶¶ 56, 65.
Plaintiff J.A.M. alleges that at the time of the raid, he was living with his mother, Juneidy Mijangos Vargas, and extended family in Stone Mountain,
2 The Complaint states that: “Operation Border Resolve specifically targeted family units from El Salvador, Honduras, and Guatemala living in nine major U.S. metropolitan areas, including Atlanta, Georgia.” Doc. No. [18], p. 4, ¶ 13. The Complaint further states that there was a numeric goal for apprehensions and deportations at 400 individuals. Id. at ¶ 14. The Complaint further states that the ICE field officers were directed to “ensure that the enforcement teams took the necessary supplies to detain children—including car seats, diapers, baby food, and baby formula.” Doc. No. [18], ¶ 16.
2

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Georgia. Doc. No. [18], ¶ 24. His extended family is: Rosa Vargas Morales (grandmother), Juan Mijangos Vargas (uncle), D.M.V. (aunt), and Carlos Rene Moran Morales (great uncle). Id. Plaintiff J.A.M. alleges that Mr. Morales was pulled over in a traffic stop near the driveway of their house when two men wearing “ICE” jackets approached. Id. ¶¶ 32–33.3 The Complaint subsequently refers to these men as “agents.” Id. ¶ 35. The agents told Mr. Morales that they knew a criminal suspect, named “Miguel Soto” was in his home and that he could be arrested for obstructing a criminal investigation. Id. Mr. Morales denied that Soto was in the home; however, the agents insisted that they needed to enter the home, threatening Mr. Morales with arrest. Id. ¶¶ 36–37. The agents told Mr. Morales that a judge “had signed a warrant and they needed to come in . . . [but] [t]hey never produced or otherwise proved to Mr. Morales that they had a
3 Prior to the traffic stop, earlier that morning, on January 2, 2016, at approximately 4:00 a.m., J.A.M. and his family were awakened by the doorbell ringing, banging on the front door, and flashlights shining through the windows of the home. Doc. No. [18], ¶ 25. Upon looking out the window, Mr. Morales saw nine unmarked and unfamiliar cars outside his home and approximately five officers outside, wearing “POLICE” and “ICE” jackets. Id. ¶ 26. “This knocking, doorbell ringing, and shining of flashlights into the house persisted while the family cowered in the hallway.” Id. ¶ 27. Mr. Morales opened a bathroom window to speak with the officers, who asked him to open the door, but refused to provide an explanation for why they wanted to speak with him. Id. ¶ 29. “The officers eventually left.” Id. ¶ 30.
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warrant to enter his home.” Doc. No. [18], ¶ 42. “At the entry to the home—and prior to touching the door knob—Mr. Morales explained to the agents that he would enter the home to obtain the identification cards of the people inside. He specified that the agents should wait outside, and they verbally agreed.” Id. ¶ 43. “Regardless, as Mr. Morales turned the door knob to enter his home, he observed one agent put his hand on the door above his head to push the door, and he heard the other agent simultaneously kick on the door.” Id. ¶ 46. “The door opened, and the agents entered the home.” Id. ¶ 47. “Mr. Morales never gave the agents verbal permission to enter the home, and he never indicated otherwise that he consented to their entry. Nor did any other occupant of the house provide verbal or other consent to the agents’ entry.” Id. ¶ 48.
“The two ICE agents ordered all family members, including J.A.M., to gather in the living room and provide identification.” Id. ¶ 49. Mr. Morales provided identification for his entire family, but the agents still did not leave. Id. ¶ 50. “J.A.M and his family were held in the room for approximately [forty] minutes, until a female agent arrived.” Id. at ¶ 51. The agents were armed. Id. ¶ 51. “At one point, Mr. Morales stood up to relieve discomfort in his back, and an agent pushed him down, telling Mr. Morales to stay seated or he would
4

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be arrested.” Doc. No. [18], ¶ 52. Upon the female agent’s arrival, she explained that they were there to arrest Rosa Vargas Morales, Juan Mijangos Vargas, Juneidy Mijangos Vargas, and D.M.V. for Rosa Vargas’s missing an immigration court date. Id. ¶ 53. “At one point, J.A.M. offered one of his toys to an ICE agent and the agent aggressively directed him to return it to his mother. J.A.M. cried inconsolably throughout the raid.” Id. ¶ 55. Since the raids, J.A.M. is frightened and nervous around law enforcement and overeating. Id. ¶ 58. When he sees police, he hides and warns his mother that the police are coming to take her. Id.
Plaintiffs Y.S.G.R. and J.I.G.R allege that they were living with their mother and guardian, Johanna Gutierrez, and her husband, Salvador Alfaro at the time of the raid. Id. ¶ 63. “Ms. Gutierrez’s niece, Ana Lizeth Mejia Gutierrez, and her son, W.G.M. (age 10), were present and asleep in the home.” Id. ¶ 65.
“At approximately 5:00 AM, on Saturday, January 2, 2016, Johana Gutierrez and Salvador Alfaro awoke to the sound of loud banging on the front door and ringing of the doorbell.” Id. ¶ 64. “Johanna Gutierrez and Salvador Alfaro got out of bed and went downstairs to the front door. Through the front window, they could see officers with flashlights and unfamiliar, unmarked cars in front of the house.” Id. ¶ 66. Ms. Gutierrez asked, “Who is it?,” and “the
5

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officers held up a photo through the window and shined their flashlights on it. It was a picture of an African American man. They indicated that the man was a criminal suspect and they had been told that the person in the photo was in the Gutierrez home.” Doc. No. [18], ¶¶ 67–68. “Salvador Alfaro opened the door and, without asking for permission to enter, approximately five or six officers pushed past Mr. Alfaro and Ms. Gutierrez and immediately entered the house,” with guns on their hips. Id. ¶¶ 69–70. The officers searched the entire house and woke up everyone, including Y.S.G.R. and J.I.G.R. Id. at ¶ 72. Y.S.G.R. and J.I.G.R were brought to the living room in their pajamas and detained from thirty minutes to one hour. Id. “Everyone was scared and confused. The children were crying.” Id. Ms. Gutierrez tried to make a phone call and was told not to move. Id. ¶ 74. She was also threatened with arrest several times. Id. ¶ 77. “One agent stood between the family in the living room and the front door throughout the raid. No one felt free to leave.” Id. ¶ 75. “The agents [eventually] arrested Ms. Ana Mejia Gutierrez and W.G.M and took them away.” Id. ¶ 79.
“After the raid, Y.S.G.R. and J.I.G.R. have changed. They are more fearful. Y.S.G.R. and J.I.G.R. refuse to answer the door when someone knocks.” Id. ¶ 80. “Y.S.G.R. missed school for a week. She refused to sleep alone. Y.S.G.R. indicated
6

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to a classmate that she was thinking about harming herself. She was reported to a school counselor who referred her to a psychologist. She met with the psychologist and later her pastor to work through the mental anguish and pain as a result of the raid.” Doc. No. [18], ¶ 81. “Y.S.G.R. intermittently cries without consolation, telling her mother that she no longer wants to live in the United States.” Id. ¶ 82.
“After the raid, J.I.G.R. received counseling from the family’s pastor. J.I.G.R. continues to suffer significant emotional pain and distress as a result of the raid.” Id. ¶ 84. He no longer participates in swimming classes and sporting activities and has become insular, experiencing difficulty talking to strangers and preferring to stay home. Id.
On September 18, 2018, Defendant filed a Motion to Dismiss Plaintiff’s First Amended Complaint. Doc. No. [19]. The matter has been fully briefed and is now ripe for review. II. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a) requires a complaint to contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Pleadings do not require any particular technical
7

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form. Fed. R. Civ. P. (8)(d)(1). However, labels, conclusions, and formulaic recitations of the elements of the case of action “will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6).
“To decide whether a complaint survives a motion to dismiss, [courts] use a two-step framework.” McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir. 2018). First, the court identifies “the allegations that are ‘no more than conclusions,” [as] [c]onclusory allegations are not entitled to the assumption of truth. Id. (citations omitted). “Second, after disregarding conclusory allegations, [the Court] assume[s] any remaining factual allegations are true, [identifies the elements that the plaintiffs must plead to state a claim] and determine[s] whether those factual allegations ‘plausibly give rise to an entitlement to relief.’” Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (beginning the 12(b)(6) analysis “by taking note of the elements a plaintiff must plead to state a claim . . . .”) and Speaker v. U.S. Dep’t. of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (“In ruling on a 12(b)(6) motion,
8

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the Court accepts the factual allegations in the complaint as true and construes them in the light most favorable to the plaintiff.”) and Fed. R. Civ. P. 8 (e) (“Pleadings must be construed so as to do justice.”).
A complaint will be dismissed for failure to state a claim only if the facts as pled do not state a claim that is plausible on its face. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555–56. In order to state a plausible claim, a plaintiff need only plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. “Asking for plausible grounds . . . does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550 U.S. at 556.
“[W]hile notice pleading may not require that the pleader allege a specific fact to cover every element or allege with precision each element of a claim, it is still necessary that a complaint contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some
9

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viable legal theory.” Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1282– 83 (11th Cir. 2007) (quotations omitted).
As stated above, Plaintiffs bring this civil action under the Federal Tort Claims Act (FTCA). “The FTCA provides a limited waiver of the United States’ sovereign immunity ‘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.’” Bloodworth v. United States, No. 5:13-CV-112 MTT, 2014 WL 1813374, at *7 (M.D. Ga. May 7, 2014), aff’d, 623 F. App’x 976 (11th Cir. 2015) (citing 28 U.S.C. § 1346(b)(1)). “The FTCA permits claims against the United States ‘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.’” Id.
“The clear mandate . . . of the FTCA requires the courts to look to the law of the state where the act or omission occurred in determining liability.” Daniels v. United States, 704 F.2d 587, 591 (11th Cir. 1983); see also 28 U.S.C. § 1346(b)(1). To this regard, the Court applies the law of the State of Georgia, as stated by Defendant and Plaintiffs in their briefing. Doc. Nos. [19], p. 7, [20], p. 4 (citing 28
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U.S.C. § 1346(b)(1) (requiring courts to apply the “law of the place where the act or omission occurred” to determine liability). III. ANALYSIS
The Court will now consider Defendant’s failure to state a claim arguments as to each of Plaintiffs’ five causes of action.
A. Failure to State a Claim 1. False imprisonment
In its Motion to Dismiss, Defendant asserts that although Plaintiffs may argue they were detained, they were detained by valid legal process (through “lawful orders of removal for aliens in the subject residences and legal authority to effectuate those arrests”), which bars Plaintiffs’ claim for false imprisonment. Doc. No. [19], pp. 7–10. 4 Defendant also cites 8 U.C.S. § 1357(a) in support of its
4 In support of its motion, Defendant attached copies of the removal orders for Ms. Vargas and her children and Ms. Meja Gutierrez and her son. Doc. Nos. [19-1] and [19-2]. In opposition, Plaintiffs assert that the Court should not consider said orders in the absence of a legal basis. Doc. No. [20], p. 7, n.3. The Court finds that the matter of judicial deportation orders was referenced in the Complaint at Doc. No. [18], ¶ 165 (“ICE agents were limited to executing an immigration enforcement action premised on judicial deportation orders.”). In light of this reference and it appearing that the deportation order documents are central to Plaintiffs’ claims, and there being no challenge to authenticity, the Court will consider the Defendant’s exhibits/deportation orders. See Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (“where the plaintiff refers to certain documents in the complaint and those
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arguments. Said statute grants ICE agents the power to “without warrant” to interrogate and arrest “any alien in the United States, if [the agent] has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest.” 8 U.S.C. § 1357 (a)(1) and (2). Defendant asserts that “the ICE agents had legal authority to enter the premises to effectuate arrests and detentions for purposes of enforcing federal immigration laws, thereby barring Plaintiffs’ claim.” Doc. No. [19], p. 10.
In response, Plaintiffs assert that they have alleged that “the ICE agents did not have a judicially issued warrant authorizing the entry into their families’ homes or Plaintiffs’ detention.” Doc. No. [20], p. 5 (citing Doc. No. [18], ¶¶ 60, 85, 88, 92, 94, 97). Plaintiffs also rebut Defendant’s argument that the immigration removal orders were the “legal process” pursuant to which Plaintiffs’ detention was authorized by stating that “those removal orders are silent as to J.A.M.,
documents are central to the plaintiff’s claim, then the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal, and the defendant’s attaching such documents to the motion to dismiss will not require conversion of the motion into a motion for summary judgment.”); see also Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (“[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiff’s claims and is undisputed in terms of authenticity.”).
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Y.S.G.R. and J.I.G.R.—who, as United States citizens, could not have been subject to removal.” Doc. No. [20], p. 7. Plaintiffs state that the Government’s argument under § 1357(a) as “valid legal process” are futile, because § 1357(a) authorizes warrantless arrests only where there are exigent circumstances. Id. at p. 8.
“False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” O.C.GA. § 51-7-20. “The restraint used to create the detention must be against the plaintiff’s will and be accomplished by either force or fear.” Miraliakbari v. Pennicooke, 254 Ga. App. 156, 160, 561 S.E.2d 483, 488 (2002). “The restraint constituting a false imprisonment may arise out of words, acts, gestures or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries.” Id. at p. 161 (citations omitted). “In an action to recover damages for illegal arrest or false imprisonment the only essential elements are the arrest or detention and the unlawfulness thereof.“ Miller v. Grand Union Co., 250 Ga. App. 751, 754, 552 S.E.2d 491, 494 (2001) (citations omitted). “An action for false imprisonment will lie where a person is unlawfully detained under a void
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process, or under no process at all, and [cannot] be maintained where the process is valid, no matter how corrupt may be the motives of the person suing out the process or how unfounded the imprisonment may be.” Miller, 250 Ga. App. at 754, 552 S.E.2d at 494 (citations omitted); see also Franklin v. Consol. Gov’t of Columbus, Ga., 236 Ga. App. 468, 470, 512 S.E.2d 352, 355 (1999) (“[w]hen the detention is predicated upon procedurally valid process, false imprisonment is not an available remedy, regardless of the motives upon which the process was secured, because detention effectuated pursuant to procedurally valid process, such as an arrest warrant, is not ‘unlawful.’”) (citations and quotations omitted) and Perry v. Brooks, 175 Ga. App. 77, 77, 332 S.E.2d 375, 376 (1985) (“If a warrant or process is valid, . . . an action for false imprisonment will not lie.”) (citations omitted).
Without more, Defendant’s arguments do not establish valid legal process, because those arguments fail to address 8 C.F.R. § 287.8(f)(2), which provides standards for enforcement services and states in relevant part:
(2) An immigration officer may not enter into . . . a residence including the curtilage of such residence . . . , for the purpose of questioning the occupants or employees concerning their right to be or remain in the United States unless the officer has either a warrant or
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the consent of the owner or other person in control of the site to be inspected.
8 C.F.R. § 287.8(f)(2) (emphasis added).5
The Court’s own independent research has also revealed a district court
case that cites to a letter from Julie Myers, in her prior capacity as the Assistant
Secretary for Homeland Security for ICE in Washington, D.C., which states in
relevant part:
The procedure to obtain a warrant for removal is straightforward. An order of removal is issued by an immigration judge after a hearing. Upon receiving such an order, DRO issues a Warrant of Deportation/Removal. These warrants are administrative in nature, as opposed to judicial, and are unlike arrest warrants. An arrest warrant allows police officers to enter a residence to arrest a person while the warrant of removal allows arrest, but it does not permit entry into a home. Officers must “obtain consent before they are permitted to enter private residences.” DHS recognizes that “warrants of removal do not grant the same authority to enter dwellings as a judicially approved search or arrest warrant.”
5 The Court recognizes that this subsection governs site inspections, but appears to be applicable for purposes of the circumstances of this case. This regulation also provides for exceptions that do not appear to be applicable here.
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Argueta v. U.S. Immigration & Customs Enf’t, No. CIV.A 08-1652PGS, 2010 WL
398839, at *3 (D.N.J. Jan. 27, 2010), rev’d, 643 F.3d 60 (3d Cir. 2011)6 (citations
omitted, emphasis added).
In essence, for the Court to uphold Defendant’s valid legal process
argument, the Court must conclude that the removal orders are essentially the
equivalent of an arrest warrant. 7 However, the above-cited authority leaves
questions for the Court as to whether such a conclusion is proper at this stage of
6 The Court recognizes that the district court’s opinion in Argueta was reversed and that the quoted language is from a letter, which was attached to a complaint. The Court does not cite the Argueta case (or the letter) for binding principles of law or persuasive authority, but to show the results of the Court’s independent research that triggered questions for the Court, post-briefing. 7 There is some authority in Georgia law for this principle. See e.g., Williams v. Smith, 179 Ga. App. 712, 716, 348 S.E.2d 50, 54 (1986) (allowing a certificate to be “analogous to an arrest warrant and authoriz[ing] detention for an emergency examination. The process being valid, and the detention pursuant thereto being lawful . . . .”); see also Payton v. New York, 445 U.S. 573, 603 (1980) (“Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.”). Georgia law also permits protective sweeps of residences and detention of occupants once law enforcement is lawfully inside a residence. See Park v. State, 308 Ga. App. 648, 653, 708 S.E.2d 614, 618 (2011) (“the trial court was authorized to find that the officers did not engage in flagrant misconduct, but rather, perceived that entry and a protective sweep of the residence was necessary to secure the occupants and to ensure officer safety.”). Georgia law also permits detention of all occupants during the execution of a search warrant; however, there was no search warrant execution alleged in the Complaint of the case sub judice. See White v. Traino, 244 Ga. App. 208, 211, 535 S.E.2d 275, 277 (2000); see also O.C.GA. § 17-5-28.
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the case. In addition, Defendant’s § 1357(a) arguments and citations of authority, do not conclusively establish that the agents had authority to enter a residence, in the absence of a warrant, consent, or by the plain language of § 1357, a belief that the alien “is likely to escape before a warrant can be obtained for arrest”— which Plaintiffs essentially allege in their Complaint, were not present at the time of entry into their residences.8 Accordingly, the Court finds that a dismissal for failure to state a claim is not appropriate at this time, as Plaintiffs have alleged facts that state a plausible claim for a false imprisonment cause of action.
2. Trespass Defendant asserts that “Plaintiffs’ claims for trespass fail to state a claim, as Plaintiffs fail to identify any property for which Plaintiffs J.A.M., Y.S.G.R., and J.I.G.R., all minor children, had any possessory interest.” Doc. No. [19], p. 10.9
8 The Court also notes that subsection (a)(3) of § 1357 grants agents “access to private land, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.” 8 U.SC. § 1357(a)(3) (emphasis added). 9 Defendant’s argument is essentially a statutory standing argument. Cf. Leyse v. Bank of Am. Nat. Ass’n, 804 F.3d 316, 320 (3d Cir. 2015) (“Statutory standing goes to whether [the legislature] has accorded a particular plaintiff the right to sue under a statute, but it does not limit the power of the court to adjudicate the case. As a result, ‘[a] dismissal for lack of statutory standing is effectively the same as a dismissal for failure to state a claim,’ and a motion to dismiss on this ground is brought pursuant to Rule 12(b)(6) . . . .”).
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Defendant also asserts that “ICE agents were acting within their official capacity when they entered the subject residences and arrested and detained Plaintiffs’ family members subject to orders of removal.” Doc. No. [19], p. 11.
In opposition, Plaintiffs assert that Georgia law does not require that Plaintiffs have an ownership interest in the homes that ICE agents unlawfully entered and that Defendant has not addressed the standing of non-owner possessors of real property in a trespass action. Doc. No. [20], pp. 9, 11. Plaintiffs state that “[t]enants with a possessory interest in the property have standing to sue for trespass.” Doc. No. [20], p. 10.
Georgia’s trespass statute states in relevant part: “[t]he right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie.” O.C.G.A. § 51-9-1. “Thus, the cause of action for trespass to property requires an unlawful interference. Under Georgia law, a state officer does not commit trespass when he acts within the scope of his official duties.” Lavassani v. City of Canton, Ga., 760 F. Supp. 2d 1346, 1371 (N.D. Ga. 2010) (citing Morton v. McCoy, 204 Ga. App. 595, 420 S.E.2d 40 (1992)).
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“To maintain an action for trespass or injury to realty, it is essential that the plaintiff show either that he was the true owner [with legal title] or was in possession at the time of the trespass.” Brown Inv. Grp., LLC v. Mayor & Aldermen of City of Savannah, 303 Ga. App. 885, 886, 695 S.E.2d 331, 331 (2010), aff’d, 289 Ga. 67, 709 S.E.2d 214 (2011) (citations omitted); see also S. Union Mut. Ins. Co. v. Mingledorff, 211 Ga. 514, 514, 87 S.E.2d 54, 55 (1955) (“[I]t is essential for the plaintiff to allege title in himself or actual possession of the land at the time the alleged cause of action arose.”). “Possession implies a present right to deal with property at pleasure, and to exclude other persons from meddling with it.” Moses v. Traton Corp., 286 Ga. App. 843, 844, 650 S.E.2d 353, 355 (2007) (citations omitted).10
A review of the Complaint, as amended, shows that while Plaintiffs do conclusory allege that they were residents and legal tenants (with possessory interests and rights of enjoyment) of the homes that were subject to the ICE raids (Doc. No. [18], ¶¶ 113, 115), they do not set forth factual allegations that show
10 The Moses court also rejected plaintiff’s standing and “bare right” of possession arguments, where the plaintiff did not assert that he possessed the land to the exclusion of others. Moses, 286 Ga. App. at 844, 650 S.E.2d at 355.
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that they, as minor children, had a present right to deal with the property at pleasure and to exclude others from meddling with it, in accordance with the above-stated case-law. Accordingly, Plaintiffs have not asserted a possessory interest in the homes at issue sufficient to provide a basis to demonstrate standing to sue for trespass. The Court recognizes Plaintiffs’ arguments and citations of authority to the contrary; however, they are not determinative as they fail to address standing as to a plaintiff/tenant who is minor.11 Defendant’s motion to dismiss is granted as to the trespass cause of action.
3. Negligence Defendant asserts that “[b]ecause Plaintiffs fail to allege a state law duty owed to them, their negligence claim fails as a matter of law.” Doc. No. [19], p. 13. Defendant states that instead of identifying a duty owed to them under state law, Plaintiffs have cited to purported duties created by the United States Constitution and ICE practices and procedures (which cannot support a FTCA claim). Id. at pp. 12, 13 (citing Zelaya v. United States, 781 F.3d 1315, 1324 (11th
11 The Mancha case cited by Plaintiffs is helpful, but also not determinative, as it does not appear that the district court was asked to address the plaintiffs’ standing (as minors) to bring a trespass cause of action. Mancha v. Immigration & Customs Enf’t, No. 106-CV-2650-TWT, 2009 WL 900800, at *4 (N.D. Ga. Mar. 31, 2009).
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Cir. 2015) (“the fact that a federal employee has failed to perform duties imposed by federal law is insufficient by itself to render the federal government liable under the FTCA. Instead, a state tort cause of action is a sine qua non of FTCA jurisdiction, and we have dismissed FTCA suits that have pleaded breaches of federal duties without identifying a valid state tort cause of action.”) (citations omitted).
In opposition, Plaintiffs assert that their “allegations sufficiently allege that the agents breached their duty to exercise ordinary care, and the agents’ breach caused Plaintiffs’ harm.” Doc. No. [20], p. 16. Plaintiffs also state that “[t]he Government additionally conflates every law enforcement officer’s ordinary duty—whether local, state or federal—to adhere to the [Fourth] Amendment with the creation of a constitutional tort.” Id.
“It is well established that to recover for injuries caused by another’s negligence, a plaintiff must show four elements: a duty, a breach of that duty, causation and damages. Thus, in order to recover for any injuries resulting from the breach of a duty, there must be evidence that the injuries were proximately caused by the breach of the duty.” Goldstein, Garber & Salama, LLC v. J.B., 300 Ga. 840, 841, 797 S.E.2d 87, 89 (2017) (citations and quotations omitted).
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After review, the Court upholds Defendant’s arguments and citations of authority, as Plaintiffs appear to be relying “on a duty owed by Georgia governmental entities, rather than a private person,” however, the United States can only be liable under the FTCA as if it is a private person. Doc. No. [21], p. 6 (citing United States v. Olson, 546 U.S. 43, 45–46 (2005) (“The Act says that it waives sovereign immunity ‘under circumstances where the United States, if a private person,’ not ‘the United States, if a state or municipal entity,’ would be liable.”). The Court also agrees that Plaintiffs have failed to allege nonconclusory facts showing negligent conduct on the part of the ICE agents, as opposed to violations of Georgia law and the Constitution.
4. Intentional infliction of emotional distress Defendant asserts that the allegations of the Complaint do not show conduct that is sufficiently outrageous or resulting emotional distress that is sufficiently extreme to support a claim of intentional infliction of emotional distress. Doc. No. [19], p. 17. Defendant asserts that “[t]here can be no dispute that the ICE agents entered these residences to detain other members of their family pursuant to lawful removal orders, and all of the alleged conduct that could plausibly rise to the requisite level of outrageousness was directed at other
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individuals, not at Plaintiffs.” Doc. No. [19], p. 15, n.3. Defendant states: “[t]hese allegations may be unpleasant or regrettable, but they do not meet the high standard of ‘extreme and outrageous’ conduct or “severe emotional distress” necessary to state a claim.” Doc. No. [21], p. 14.
In response, Plaintiffs argue that “[t]he Government’s assertion that Plaintiffs’ allegations do not identify sufficiently outrageous conduct or sufficient harm, overlooks that the threshold for ‘extreme and outrageous’ conduct against a child is not on par with the threshold applied to adults.” Doc. No. [20], p. 17. The essence of Plaintiffs’ allegations of outrageous conduct is that they were forced to witness the agents, who had visible guns on their person, search, threaten, and frighten them and their family, causing them to cry throughout the detention, which lasted forty minutes for J.A.M. and thirty minutes (to one hour) for Y.S.G.R. and J.I.G.R. Doc. No. [20], p. 19; see also Doc. No. [18], pp. 29–32. Plaintiffs further assert that they have alleged sufficient harm. Id. at p. 19. Plaintiffs state that “[t]he level of that harm suffered is testimony properly left to an expert in childhood trauma or a child psychologist. This Court is not required and is not equipped to make this expert finding at this point in the case.” Id. at p. 21.
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In reply, Defendant states: “Plaintiffs’ characterization makes clear that their presence was incidental to the conduct at issue. Put another way, Plaintiffs make no allegations to suggest the actions of the ICE agents would have been any different had Plaintiffs been absent.” Doc. No. [21], p. 11.
“The elements of a cause of action for intentional infliction of emotional distress are: (1) intentional or reckless conduct; (2) that is extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress.” Ferrell v. Mikula, 295 Ga. App. 326, 333, 672 S.E.2d 7, 13 (2008). “[L]iability for this tort has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Id. (citations omitted). In addition, “[a] claim for intentional infliction of emotional distress is allowed only when the intentional act was directed toward the plaintiff.” Wellborn v. DeKalb Cty. Sch. Dist., 227 Ga. App. 377, 379, 489 S.E.2d 345, 347 (1997).
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“Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” Yarbray v. S. Bell Tel. & Tel. Co., 261 Ga. 703, 706, 409 S.E.2d 835, 838 (1991). The allegations must show that reasonable persons might find the presence of extreme and outrageous conduct and resultingly severe emotional distress. Id.
After review, the Court finds that the allegations of Plaintiffs’ Complaint, even in considering their status of minors, do not rise to the requisite level so as to state a claim for negligent infliction of emotional distress in terms of the conduct that is at issue. The Court agrees that Plaintiffs have failed to identify sufficiently outrageous conduct directed toward them, as opposed to conduct directed at their relatives. As stated in the Complaint, “Operation Border Resolve specifically targeted family units for deportation.” Doc. No. [18], ¶ 11. As United States citizens, Plaintiffs were not subject to deportation and as a result, not a target of the raids of the homes in which they were living. “It is firmly established that even malicious, wilful or wanton conduct will not support a claim of intentional infliction of emotional distress if the conduct was not directed toward the plaintiff.” Munoz v. Am. Lawyer Media, L.P., 236 Ga. App. 462, 465, 512
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S.E.2d 347, 351 (1999). Accordingly, in the absence of sufficient allegations of conduct directed at Plaintiffs, the Court finds that Plaintiffs have failed to state a claim. The Court is unable to uphold Plaintiffs’ citation of authority and arguments to the contrary.12
5. Negligent infliction of emotional distress Defendant asserts that because the Plaintiffs “do not allege that the United States “caused plaintiff[s] any physical injury, a negligent infliction of emotional distress claim necessarily fails.” Doc. No. [19], p. 18 (citing Bullard v. MRA Holding, LLC, 890 F. Supp. 2d 1323, 1330 (N.D. Ga. 2012)). In response, Plaintiffs assert that “allegations that the Defendant’s conduct is malicious, willful, or wanton and directed at a group of people, not just the public in general, render allegations of physical impact unnecessary.” Doc. No. [20], p. 21. The Georgia Court of Appeals has stated: “[a] party claiming negligent infliction of emotional distress must . . . show a physical impact resulting in
12 More specifically, the arguments/allegations regarding J.A.M. offering one of his toys to an ICE agent and the agent “aggressively” directing him to return his toy to his mother (Doc. No. [18], ¶ 55), while concerning, is also not sufficient to establish a claim for intentional infliction of emotional distress. As the conduct analysis is determinative, the Court makes no ruling on the sufficiency of the harm allegations.
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physical injury. On the other hand, where the defendant’s conduct is malicious, wilful, or wanton, recovery can be had without the necessity of an impact.” Clarke v. Freeman, 302 Ga. App. 831, 836, 692 S.E.2d 80, 84 (2010) (citations omitted).
After review, the Court agrees with Defendant’s argument that in the absence of allegations of a physical impact, Plaintiffs have failed to state a claim for negligent infliction of emotional distress. The Court recognizes that Georgia law provides that there is no necessity for an impact, where the conduct is malicious, willful, or wanton; however, as correctly stated by Defendant, “such a claim, alleging a higher level of culpability than negligence, is no longer a claim for negligent infliction of emotional distress.” Doc. No. [21], p. 15.13 Support for this proposition of law is found in Georgia appellate authority. See Wellborn, 227 Ga. App. at 379, 489 S.E.2d at 347 (“as [plaintiff] has not asserted that she received a physical injury, she cannot maintain a claim for negligent infliction of emotional distress, and because she does not allege that any malicious, wilful or
13 The Court recognizes that there is an argument that the Georgia appellate case law is in conflict. To the extent that the Georgia case law is in conflict, the older authority, cited infra (in the Wellborn and Hall cases), controls. See Sharpe v. Seaboard Coast Line R. Co., 528 F.2d 546, 548 (5th Cir. 1976) (“Under Georgia law, the rule of stare decisis applies, which means that the older case law must control.”).
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wanton act was directed toward her, she cannot recover for intentional infliction of emotional distress.”) and Hall v. Carney, 236 Ga. App. 172, 174, 511 S.E.2d 271, 274 (1999) (discussing negligent infliction of emotional distress in a separate paragraph, then stating: “Intentional infliction of emotional distress: While recovery can be had without the necessity of an impact when the conduct is malicious, wilful or wanton, such conduct ‘will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff.’”).
B. Available Claims under the FTCA Defendant asserts that punitive damages, attorneys’ fees, and declaratory relief are not available under the FTCA. Doc. No. [19], pp. 18–19 (citing 28 U.S.C. § 2674 (no punitive damages); 28 U.S.C. § 2678 (attorney fees); Douglas, 796 F. Supp. 2d at 1363 (government not liable for punitive damages); Moher v. United States, 875 F. Supp. 2d 739, 754-55 (W.D. Mich. 2012) (money damages is exclusive FTCA remedy; declaratory/injunctive relief claim dismissed).
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In response, Plaintiffs “agree that punitive damages and declaratory relief are unavailable under the FTCA.”14 However, Plaintiff asserts that the FTCA specifically allows for attorneys’ fees to be paid out of any settlement or recovery. See 28 U.S.C. § 2678. In reply, Defendant states that “[t]his is irrelevant,” as its argument dealt with attorney’s fees as a separate item of recovery as sought in Plaintiffs’ Complaint. Doc. No. [21], p. 15 (citing Joe v. United States, 772 F.2d 1535, 1536–37 (11th Cir. 1985)) (“The FTCA does not expressly provide for attorneys’ fees against the United States. The only mention of attorneys’ fees within the FTCA occurs in [§] 2678, which prohibits an attorney from charging fees in excess of 25 percent of the judgment . . . . The FTCA does not contain the express waiver of sovereign immunity necessary to permit a court to award attorneys’ fees against the United States directly under that act.”).15
14 In their motion, Plaintiffs attempt to reserve a right to amend their complaint at a later date. The Court declines to recognize such a reservation of rights and will only permit amendment of the Complaint pursuant to applicable rule/law. 15 Plaintiffs’ Complaint, as amended, in the case sub judice also seeks attorney’s fees pursuant to the Equal Justice Act (EAJA), this Court’s inherent powers, and other applicable law (Doc. No. [18], p. 35); however, the Joe case cited above, indicates that in the absence of a citation to common law or statute, a plaintiff is not entitled to the requested award of attorney’s fees under the EAJA. See Joe, 772 F.2d at 1536–37. Without more, Plaintiffs’ inherent powers and other applicable law references also fail to state a claim.
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The plain language of the FTCA states that the United States “shall not be liable for interest prior to judgment or for punitive damages.” 28 U.S.C. § 2674. In addition, the authority cited by Defendant shows that an attorney’s fee award (as a separate item of recovery) and declaratory judgment relief are not available to Plaintiffs in this civil action. Accordingly, the Court upholds Defendant’s arguments and grants its motion as to interest and punitive damages, as well as attorney’s fees, to the extent that they are being sought as a separate item of recovery. IV. CONCLUSION
Defendant’s Motion to Dismiss Plaintiffs’ First Amended Complaint (Doc. No. [19]) is GRANTED in part and DENIED in part. More specifically, Defendant’s motion is granted as to Plaintiffs’ claims for trespass, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress, as well as the claims for punitive damages, attorney’s fees, and declaratory relief. The motion is denied as to Plaintiffs’ claim for false imprisonment. Defendant shall file its answer in accordance with the requirements of Federal Rule of Civil Procedure 12 and applicable law.
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IT IS SO ORDERED this 28th day of August, 2019. s/Steve C. Jones HONORABLE STEVE C. JONES UNITED STATES DISTRICT JUDGE
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