1 Robert H. Sloss (State Bar No. 87757)

0RiNA L

Anthony P. Schoenberg (State Bar No. 203714)

2 Patrice N. Harper (State Bar No. 225573) Farella Braun & Martel LLP
3 Russ Building 235 Montgomery Street
4 San Francisco, CA 94104 ¯

0:+ JUIt - 1 P~ 12:2 k
RICHARD W, ’Fi’’’~’’,.-;,.~, INS CLERK, U.5.[;~STRfCT COURT

Telephone: (415) 954-4400

5 Facsimile: (415) 954-4480

6 Robert Rubin (State Bar No. 85084) Philip K. Hwang (State Bar No. 185070)
7 Lawyers’ Committee for Civil Rights 131 Steuart Street, No.400
8 San Francisco, CA 94I 05 Telephone: (415) 543-9444
9 Facsimile (415) 543-0296

10 Attorneys for PIaintiff TSUNGAI TUNOWARARA
11

12

uNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14 15 TSUNGAI TUNGWARA_RA,

2144

16

Plaintiff,

17

VS.

COMPLAINT FOR DAMAGES

18 UNITED STATES OF AMERICA,
ALFERT LUDWIGS, and DOES 1-25, 19 inclusive,

DEMAND FOR JURY TRIAL

20

Defendants.

21

22

PlaintiffTsungai Tungwarara alleges as follows:

23

JURISDICTION AND PROCEDURAL PREREQUISITES TO SUIT

24

t.

Jurisdiction is conferred on this Court by 28 U.S.C. § 1331, 28 U.S.C.

25 § 1343(a)(4), 28 U.S.C. § 1346(b)(1), and 28 U.S.C. § 1367.

26

2. On October 10, 2003, Tsungai Tungwarara filed an administrative claim with the

27 United States Department of Homeland Security ("DHS"), as the government agency succeeding

28 the former United States Immigration and Naturalization Service ("INS"), pursuant to the Federal
17804\700576.2

COMPLAINT FOR DAMAGES

Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"). Assistant Chief Counset for DHS denied

Ms. Tungwarara’s claims in a letter dated March 4, 2004.

VENUE

Venue is proper in .th~..e. Northern District of California pursuant to 28 U.S.C.

5 § 1391.

6

INTRADISTRICT ASSIGNMENT

7

4. Plaintiff’s claims arose in the county of San Francisco. Therefore, assignment to

8 the San Francisco or Oakland Division of this Court is proper under Local Rule 3-2(d).

9

THE PARTIES

10

5. PlaintiffTsungai Tungwarara is a citizen of Zimbabwe. She was granted

11 derivative asylum status in the United States in 2003 in connection with the asylum application o

12 her mother, Faith Virimayi, who was granted asylum status in 2002. Ms~ Virimayi was granted

13 asylum status after being interviewed by an INS Asylum Officer and found to be credible and to

14 have a well-founded fear of persecution in Zimbabwe.

15

6. At all relevant times herein, Defendant Alfert Ludwigs ("Ludwigs) was an agent

16 and/or employee of the Immigration and Naturalization Service of the United States of America

17 ("INS") and is sued in his individual capacity. Defendant was the officer-in-charge of the stop,

18 detention, arrest, search and/or seizure of Plaintiff that is described herein. Plaintiff is informed

19 and believes and thereon alleges that Ludwigs is a resident of the Northern District of California.

2O

7. Defendant United States of America exists under the Constitution of the United

2I States of America and taws enacted by the United States Congress. The INS was at all times

22 mentioned herein an agency o f the United States Department of Justic e, organized and exi sting

23 under the laws of the United States. The United States is vicariously liable for the misconduct of

24 its agents and employees and is directly liable for any policies of the United States or its agencies

25 leading to or contributing to such misconduct, including but not limited to failure to supervise

26 employees properly, failure to train employees properly, and failure to implement sufficient

27 procedures to guard against the type of misconduct that occurred in this case.

28

8. At all relevant times herein, defendants DOES 1-25 (also referred to hereinafter as

- 2 -

17804\700576.2

COMPLAINT FOR DAMAGES

1 the "DOE defendants"), each of whom Plaintiffsues in their individual capacities, were agents,

2 employees, and/or otherwise representatives of the Immigration and Naturalization Service, the

3 United States Department of State, other federal agencies, state agencies, local government

4 agencies, and/or private .actoys actin,..g, in their individual capacities. Plaintiffis informed and

5 believes and thd’eon alleges that many, if not all, of DOES 1-25 are residents of the Northern

6 District of California. Plaintiff and/or her represeniatives have undertaken reasonable and

7 diligent efforts to ascertain the true identities of DOES 1-25, but, despite such efforts, Plaintiff is

8 presently unaware of the true identities of defendants DOES 1 through 25, inclusive, and Plaintiff

9 therefore, sues each such.defendant by a fictitious name. Ms. Tungwarara is informed and

10 believes and thereon alleges that DOES 1 through 25, inclusive, are legally responsible for the

11 wrongs committed against Plaintiff, as alleged herein, and that many, if not all, of DOES 1-25,

12 had supervisoriat and/or managerial responsibility over Ludwigs and exercised, or failed to

13 exercise, that authority in Ludwigs’ dealings with Plaintiff, in a manner which caused the harms

14 herein alleged, or otherwise proximately caused the harms herein alleged in derogation of their

15 duties to Ms. Tungwarara. When Plaintiff becomes aware of the true identities of one or more

i

16 DOE defendants, Plaintiffwill amend her complaint to add or substitute them as named

’

17 defendants.

~

18

FACTS GIVING RISE TO CLAIMS

19

9. The incident on which Ms. Tungwarara’s claims are based began on or about

20 January 9, 2002, when Ms. Tungwarara, an 18 year-old woman taking her first trip to the United

I

1

21 States, arrived at San Francisco International Airport ("SFO") following a three-day journey from

22 her home country of Zimbabwe. Ms. Tungwarara was planning to visit her mother,

23 Ms. Virimayi, and younger sister Rutendo, who were residing in the San Francisco Bay Area.

24

10. Ms. Virimayi and Rutendo had fled Zimbabwe because they were threatened with

25 violence and feared for their lives due to Ms. Virimayi’s role in an organization that she

26 founded called the Association for the Widows of Fallen Heroes of Zimbabwe. On May 9, 2002,

27 Ms. Virimayi was granted political asylum in the United States. Due to her mother’s political

28 activities, M~. Tungwarara also faced danger in Zimbabwe of being kidnapped or killed, and she

- 3 -

17804\700576÷2

COMPLAINT FOR DAMAGES

required escorts for protection. On or about October 9, 2003, Ms. Tungwarara was granted

derivative asylum status when her Refugee Asylum Relative Petition was approved.

11. Ms. Tungwarara arrived at SFO on January 9, 2002 at approximately 1:00 p.m. on

a valid tourist visa that her mother ~.ad obtained for her. Upon her arrival in San Francisco, an 5 INS immigratioh officer asked Ms. Tungwarara a series of standard questions, such as the

6 purpose of her visit. Ms. Tungwarara informed the~officer that she was, visiting her mother and

7 sister. Instead of permitting Ms. Tungwarara to enter, ho~vever, the INS referred her to INS

8 secondary inspection for further questioning.

9

12. At secondary inspection, Ms. Tungwarara was met by defendant Alfert Ludwigs

I0 ("Ludwigs"), an 1NS agent. Ludwigs, alone and in concert with other defendants who are sued

11 herein as DOES 1-25, proceeded to engage in a course of illegal, tortious, extreme and outrageous

12 conduct that has severely harmed Ms. Tungwarara and deprived her of substantial rights under the

13 United States Constitution and the California Constitution.

14

13. Ludwigs detained Ms. Tungwarara in the INS waiting room from approximately

15 1:00 p.m. until at least 11:00 p.m. Despite the fact that Ms. Tungwarara had endured three days

16 of flying--from Harare, Zimbabwe to Johannesburg to Paris to San Francisco--she was not

17 offered any food until after t 1:00 p.m.

18

14. Ludwigs did not permit Ms. Tungwarara to have any contact with her mother,

19 Ms. Virimayi, despite the fact that Ms. Virimayi was present at the airport to pick up

20 Ms. Tungwarara. Ms. Virimayi had not seen her daughter for a substantial period for time.

21 Ms. Tungwarara made repeated requests to be allowed to see her mother, but they were all denied

22 by Ludwigs without explanation.

23

15. In the airport terminal, Ludwigs spoke with Ms. Virimayi, telling her that her

24 daughter would be released only if Ms. Virimayi purchased a return ticket for her immediately.

25 Ludwigs also told Ms. Virimayi that, after September 1 lth, there was a "problem" with "’these

26 people from Africa." He further told Ms. Virimayi that Ms. Tungwarara was "going back to

27 Africa" and he stated, "We won’t allow these people here--not after September 1 lth. Go back to

28 the jungle. - 4-
COMPLAINT FOR DAMAGES

17804\700576.2

1

16. Ludwigs was informed by Ms. Vilimayi that she was an asylum applicant. Despite

2 this knowledge, Ludwigs did not refer Ms. Tungwarara to an Asylum Officer for an interview to

3 assess her fear of returning to Zimbabwe. If he had, he would have learned that Ms. Tungwarara

4 feared being kidnapped or killed by~er mother’s enemies in Zimbabwe.

5

t7. I]udwigs thereafter coerced Ms. Tungwarara, under extreme duress, to sign forms

6 (which he did not permit her to read) containing false statements and to withdraw her application

7 for entry.

8

18. Ms. Tungwarara was thereafter photographed, fingerprinted, handcuffed, and

9 taken to a local jail where Defendants knew or reasonably should have known that Ms.

10 Tungwarara would be strip-searched. The official who took Ms. Tungwarara to the jail confided

11 that this was not supposed to be the way things happened, that what INS officials were doing was

12 unfair, and that this was not the normal INS procedure. At the jail, Ms. Tungwarara was forced to

13 undergo a humiliating strip search and physical examination in which she was forced to strip

14 down to her undergarments and an officer touched her genitals. Ms. Tungwarara was not charged

15 with any crime; she has never been arrested for or convicted of any clime. The strip search was

16 conducted without probable cause, reasonable suspicion, lawful authority, or a rational or

17 nondiscriminatory basis.

18

19. Ms. Tungwarara was then forced to spend the night in a jail cell. She was not

19 segregated from the general jail population but was placed in a cell with women who were being

20 held on criminal charges. This constituted a clear violation of INS policy, which instructs that

21 immigrants such as Ms. Tungwarara shall not be booked into any jail facility "absent

22 extraordinary circumstances" but should instead be housed at a facility provided by the airport, a

23 local shelter care facility, detained under guard in a hotel, or placed in an INS holding facility

24 segregated from other detainees.

25

20. Ms. Tungwarara was kept in the jail cell until approximately 6:00 or 7:00 a.m., at

26 which time she was taken in chains to the INS’s San Francisco office. Ms. Tungwarara was then

27 permitted to see her mother for the first and only time during the entire ordeal. She was only

28 permitted to see her mother, however, for approximately five minutes, and she was separated

- 5 -

17804\700576.2

COMPLAINT FOR DAMAGES

from her by a glass wall. Emotionally distraught by the horrendous experience, Ms. Tungwarara was barely able to speak to her mother and sat silently staring at her.

21. That morning, Bernice Brown, a family friend of Ms. Tungwarara, spoke to an

INS official regarding Ms. Tungwar~...ara’s treatment. The INS employee admitted that a French 5 immigrant who fiad recently arrived in the Bay Area with improper documentation had been 6 released by INS overnight to family and friends. WSaen Ms. Brown asked if Ms. Tungwarara 7 could be released to her, the INS employee said, "Absolutely not" and refused to explain why Ms.

8 Tungwarara was being treated differently. Ms. Brown was forced to purchase a return ticket for

9 Ms. Tungwarara.

10

22. Ms. Tungwarara was forced to board a flight for Zimbabwe later that afternoon on

11 January 10. Ms. Tungwarara had a layover in France and, because her visa had been cancelled by

12 the INS, the French authorities treated her with suspicion and strip-searched her before allowing

13 her to board her connecting flight. She finally arrived back in Zimbabwe on January 13.

14

23. Ms. Tungwarara is .n.ow attending school in South Africa. Following the incident

15 with the INS agents, she has become depressed, angry, withdrawn, discouraged, anxious, unable

16 to eat properly and afraid to travel. She has suffered from constant headaches, loss of appetite

17 and sleep disturbances stemming from her experience with the INS agents.

18

24. Defendants were on notice of the fact that visitors were being subjected to

19 wrongful treatment by INS officials and that such officials were not receiving appropriate trainin

20 and supervision. In fact, this is not the only incident involving misconduct by federal

21 immigration officials at San Francisco International Airport. Over the last several years, 22 Defendant United States and federal immigration officials have been sued on several occasions

23 regarding racist and discriminatory actions by airport immigration officials.

24

a. On or about July 16, 1999, Dr. Chizoba Nwosu, a United States citizen of Nigerian

25 descent, arrived at San Francisco International Airport and was wrongfully detained, interrogated, 26 and subjected to demeaning and offensive statements about her nationality, under circumstances

27 similar to the circumstances surrounding Ms. Tungwarara’s ordeal. She later filed suit in the

28 Northern District of California.
COMPLAINT FOR DAMAGES

- 6-

|7804\700576.2

1

b. On or about September 30, 2000, Rosa Zamora-Pineda, a Nicaraguan tourist,

2 arrived at San Francisco International Airport and was wrongfully detained, jailed and subjected

3 to demeaning and offensive statements about her ethnicity, under circumstances similar to the

4 circumstances surrounding Ms. Tun~gwarara’s ordeal. She later filed suit in the Northern District

5 of California.

6

c. In March 2001, Rosebelt Munyua, akenyan national, arrived at San Francisco

7 International Airport and was wrongfully detained, interrogated, and subjected to demeaning and

8 offensive statements about her nationality, under circumstances similar to the circumstances

9 surrounding MS. Tungwarara’s ordeal. She later filed suit in the Northern District of California.

I0

FIRST CLAIM FOR RELIEF

(Intentional Infliction Of Emotional Distress)

11

(Against Defendant United States of America)

12

25. Ms. Tungwarara hereby incorporates paragraphs 1 through 24 above and each

13 allegation therein as though fully set forth herein.

14

26. The conduct of defendant United States as alleged above was extreme and

15 outrageous, and Ms. Tungwarara is informed and believes that defendants engaged in such

16 conduct with the intention of causing, or reckless disregard for the probability of causing,

17 Ms. Tungwarara’s severe emotional/mental distress. Defendant Ludwigs also set in motion a

18 series of acts by others which he knew or reasonably should have known would cause such others

19 to inflict injury on Ms. Tungwarara. As a proximate result of such conduct, Ms. Tungwarara has

20 experienced severe and lasting emotional and mental distress, fear, anxiety, depression, and other

21 emotional and mental distress as more fully described above.

22

SECOND CLAIM FOR RELIEF

(False Arrest And Imprisonment)

23

(Against Defendant United States Of America)

24

27. Ms. Tungwarara hereby incorporates paragraphs t through 26 above and each

25 allegation therein as though fully set forth herein.

26

28. By committing the above-described acts, defendant United States falsely arrested

27 and imprisoned Ms. Tungwarara without legal justification or privilege, causing the harms herei

28 alleged. Ms. Tungwarara is informed and believes that defendant United States intended to stop,

- 7 -

17804\700576.2

COMPLAINT FOR DAMAGES

1 arrest, detain, restrain and/or seize Ms. Tungwarara and/or cause her to return to Zimbabwe

2 against her will.

3

29. Ms. Tungwarara is informed and believes that defendant United States at all times

4 either knew, recklessly and callouslZ disregardhd, or reasonably should have known of the 5 unlawful nature’of the arrest and imprisonment.

6

30. Ms. Tungwarara did not consent to t]ae conduct of defendant United States and was

7 harmed by such conduct.

8

THIRD CLAIM FOR RELIEF

(Negligence)

9

(Against Defendant United States Of America)

10

31. Ms. Tungwarara hereby incorporates paragraphs. 1 through 30 above and each

1I allegation therein as though fully set forth herein.

12

32. Defendant United States owed Ms Tungwarara a duty of care not to cause her the

13 harms herein alleged without legal justification. By committing the above-described acts withou

14 legal justification and without having taken reasonable precautions to avoid such harms,

15 defendant United States breached its duty of care and proximately harmed Ms. Tungwarara, as

16 described above.

17

FOURTH CLAIM FOR RELIEF

18

(Assaul0 (Against Defendant United States Of America)

19

33. Ms. Tungwarara hereby incorporates paragraphs 1 through 32 above and each

20 allegation therein as though fully set forth herein.

21

34. By committing the above-described acts, defendant United States caused

22 Ms. Tungwarara to experience imminent apprehension ofharrnful or offensive contact against

23 herself, without any legal justification or privilege to cause such apprehension, causing her the

24 harms herein alleged. Ms. Tungwarara did not consent to the conduct of defendant United States.

25 Ms. Tungwarara is informed and believes that defendant United States engaged in such conduct

26 with the intent to cause imminent apprehension in Ms. Tungwarara.

27

28

- g-

17804\700576.2

COMPLAINT FOR DAMAGES

1

FIFTH CLAIM FOR RELIEF

(Battery)

2

(Against Defendant United States Of America)

35. Ms. Tungwarara hereby incorporates paragraphs t through 34 above and each

allegation therein as though fully set forth herein.

5

36. The above-described acts by defendant United States constitute harmful or

6 offensive contact against Ms. Tungwarara, without 5ny legal justification or privilege therefor.

7 Ms. Tungwarara did not consent to the harmful and offensive contact. Ms. Tungwarara is

8 informed and believes that defendant United States engaged in such conduct with the intent to

9 harm or offend her. Ms. Tungwarara was, in fact, harmed and/or offended by such conduct.

10

SIXTH CLAIM FOR RELIEF

(Violation Of California Constitution)

11

(Against Defendant United States Of America)

12

37. Ms. Tungwarara hereby incorporates paragraphs i through 36 above and each

13 allegation therein as though fully set forth herein.

I4

38. By engaging in the above-described acts, defendant United States violated

15 Ms. Tungwarara’s rights under Article l, section 1 of the California Constitution.

16

SEVENTH CLAIM FOR RELIEF

(Violation Of California Civil Code § 52.1(b))

17

(Against Defendant United States Of America)

18

39. Ms. Tungwarara hereby incorporates paragraphs 1 through 38 above and each

19 allegation therein as though fully set forth herein.

20

40. Defendant United States, in violation of California Civil Code section 52.1 (b),

21 deprived Ms. Tungwarara of her rights under California Civil Code section 51.7 by actual and

22 implied threats of violence, or intimidation by actua! and implied threats of violence, or by aidin

23 inciting or conspiring in the denial of such rights. Ms. Tungwarara is inibrmed and believes tha

24 a motivating reason for defendant United States’ conduct was her race, color, national origin,

25 and/or ancestry. As a result of such conduct, Ms. Tungwarara has suffered harm.

26

EIGHTH CLAIM FOR RELIEF

(Violation of Fourth Amendment)

27

(Against Defendants Does 1-25 and Alfert Ludwigs)

28

41. Ms. Tungwarara hereby incorporates paragraphs 1 through 40 above, each

- 9 -

17804\700576.2

COMPLAINT FOR DAMAGES

1 allegation therein as though fully set forth herein.

2

42. At all relevant times, defendant Ludwigs and DOES 1-25 were acting under color

3 of federal law.

4

43. The Fourth Amendm~..e.nt to the United States Constitution provides that each

5 person has a rigt:~t to be secure in his or her person, houses, papers, and’effects, against

6 unreasonable searches and seizures.

7

44. By committing the above-described acts and setting in motion a series of acts by

8 others which Defendants knew or reasonably should have known would cause such others to

9 inflict injury on Ms. Tungwarara, Defendant Ludwigs and DOES 1-25 violated Ms. Tungwarara’s

10 rights under the Fourth Amendment to the United States Constitution.

11

45. The conduct of defendants violated clearly established constitutional and other

12 rights of which defendants knew, or which a reasonable public official should have known.

13

46. Ms. Tungwarara has no effective administrative mechanism or other remedy at law

14 by which to seek the proper measure of damages for the constitutional wrongs.

15

47. As a direct and proximate result of defendants’ conduct, Ms. Tungwarara has been

16 harmed. Defendants’ actions caused Ms. Tungwarara to experience severe and lasting anxiety,

17 depression, fear, sadness, humiliation, nervousness, stress, and frustration.

18

48. Ms. Tungwarara is informed and believes and thereon alleges that the above-

19 described acts of defendants and each of them were done knowingly, intentionally, maliciously, 20 with deliberate, reckless or callous indifference to Ms. Tungwarara’s personal safety, security, 21 freedom, and civil and constitutional rights, and/or with intent to injure, harass, and oppress 22 Ms. Tungwarara. Accordingly, Ms. Tungwarara is entitled to an award of punitive damages 23 against defendant and each of DOES 1-25.

24

25

NINTH CLAIM FOR RELIEF

(Violation of Fifth Amendment)

26

(Against Defendants Does 1-25 and Alfert Ludwigs)

27

49. Ms. Tungwarara refers to and incorporates paragraphs 1 through 48 as though fully

28 set foghherein.
COMPLAINT FOR DAMAGES

- ] 0 -

17804’,700576.2

1

50. At all relevant times, defendant Ludwigs and DOES 1-25 were acting under color

2 of federal law.

3

51. The Fifth Amendment to the United States Constitution requires that no person

4 shall be deprived of life; liberty or p...rpperty without due process of law, including that no person

5 shall be denied Equal protection of the laws.

6

52. By committing the above-described acts and setting in motion a series of acts by

7 others which Defendants knew or reasonably should have known would cause such others to

-8 inflict injury on Ms. Tungwarara, Defendant Ludwigs and DOES 1-25 violated Ms. Tungwarara’

9 rights under the Fifth Amendment to the United States Constitution.

10

53. The conduct of defendants violated clearly established constitutional and other

11 rights of which defendants knew, or which a reasonable public official should have known.

t2

54. Ms. Tungwarara has no effective administrative mechanism or other remedy at law

13 by which to seek the proper measure of damages for the constitutional wrongs.

14

55. As a direct and proximate result of defendant’s conduct, Ms. Tungwarara has been

I5 harmed. Defendants’ actions caused Ms. Tungwarara to experience severe and lasting anxiety,

16 depression, fear, sadness, humiliation, nervousness, stress, and frustration.

17

56. Ms. Tungwarara is informed and believes and thereon alleges that the above-

18 described acts of defendants and each of them were done knowingly, intentionally, maliciously,

19 with deliberate, reckless or callous indifference to Ms. Tungwarara’s personal safety, security,

20 freedom, and civil and constitutional rights, and/or with intent to injure, harass, and oppress

21 Ms. Tungwarara. Accordingly, Ms. Tungwarara is entitled to an award of punitive damages

22 against defendant and each of DOES 1-25.

23

PRAYER

24

Ms. Tungwarara prays that judgment be entered in her favor and the following relief be

25 granted against defendant United States, Ludwigs, and DOES 1-25:

26

1. Compensatory damages against defendants in an amount to be determined but in

27 excess of $I,000,000;

28

2. Punitive or exemplary damages against all Defendants except the United States to

- 1 1 -

17804\700576.2

COMPLAINT FOR DAMAGES

1 the extent permitted by law;

2

3. That Ms. Tungwarara be awarded treble damages pursuant to California Civil

3 Code sections 52 and 52.1 against defendant United States and DOES 1 through 25;

4

4. That Ms. Tungwarara_.be awarded a civil penalty of $25,000 against defendant

5 United States anal DOES 1 thrqugh 25 for each violation of her rights, !~ursuant to California Civil

6 Code sections 52 and 52.1;

7

5. Attorneys’ fees pursuant to all applicable statutory, common law, or constitutional

8 provisions including California Civil Code sections 52 and 52.1;

9

Reasonable costs and expenses; and

10

7. Such other relief as the Court may deem just and proper.

11 DATED: June 1, 2004 12

FARELLA BRAUN & MANTEL LLP

13

14

Anthony. gchoenberg

Attorneys for Plaintiff

15

TSUNGAI TUNGWARARA

16

17

t8

19

20

21

22

23

24

25

26

27

28
COMPLAINT FOR DAMAGES

-12-

1780~-\700576.2

DEMAND FOR JURY TRIAL

Plaintiff hereby demands a trial by jury on all issues so triable.

DATED: June !, 2004

FAR_ELLA BRALrN & MARTEL LLP

6 7 8 9 10
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
COMPLAINT FOR DAMAGES

Anthony Po/S~hoenberg
Attorneys for Plaintit:f TSUNGAI TUNGWARARA

-13-

t7804\700576.2

t

CERTIFICATION OF INTERESTED ENTITIES OR PERSONS

2

Pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, other than the

3 named parties, there is no such interest to report.

4 DATED: Ju~ae 1, 2004

,~

5

6

FARELLA BRAUN & MARTEL LLP BY: Ant~hony~. Sc~

7

Attorneys for Plaintiff

8

TSUNGAI TUNGWAN_ARA

9

10

11

12

13

14

I5

16

17

18

19

20

21

22

23

24

25

26

27

28
COMPLAINT FOR DAMAGES

-14-

17804\700576.2

 
 Case 3:04-cv-02144-EDL Document 103 Filed 04/12/2006 Page 1 of 7

KE\.IN V, RYAN (SBN 118321) United States Attorney JOANN M. SWANSON (SBN 88143) Chief, Civil Division ANDREW Y.S. CHENG (SBN 164613) Assistant United States Attornev KATHERINE B. DOWLING (SBN 220767) Assistant United States Attorney

450 Golden Gate Avenue, 10th Floor

San Francisco, California 94102-3495

Telephone:

(415) 436-6813

Facsimile: (415) 436-6748

Email:

andrew.cheng@usdoj.gov

Attorneys for Federal Defendants

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

TSUNGAI TUNGWARARA,

)

)

Plaintiff,

)

)

v.

)

)

UNITED STATES OF AMERICA,

)

)

Defendant.

)

)

)

)

----------------------------)

No. C 04-2144 EDL E-filing Case
STIPULATION AND AGREEMENT OF COMPROMISE AND SETTLEMENT
AND [PROPOSED] ORDER

IT IS HEREBY STIPULATED AND AGREED by and between plaintiffTsungai Tungv,;arara and defendant United States of America, (hereinafter the "Federal Defendant"), by and through their undersigned counsel, as follows:
I. The parties do hereby agree to settle, compromise and dismiss the abovecaptioned action ("This Action") under the terms and conditions set forth herein.
2. The Federal Defendant agrees to pay the sum of Sixty-Five Thousand Dollars and no cents ($65,000.00) to plaintiff under the tem1S and conditions set forth herein.
3. The plaintiff and her heirs, executors, administrators, assigns and attorneys hereby agree to accept the sum of Sixty-Five Thousand Dollars and no cents ($65,000.00), in full and

:\onCE OF SF rTl.n1FNT. C O-l-~ 1-l-l ED!

Case 3:04-cv-02144-EDL Document 103 Filed 04/12/2006 Page 2 of 7

final settlement and satisfaction of the claims raised in This Action under the terms and

conditions set forth herein.

4.

It is also agreed, by and among the parties, that the settlement amount of Sixty-

Five Thousand Dollars and no cents ($65,000.00) represents the entire amount payable to

plaintiff and her heirs, executors, administrators, assigns and attorneys.

5.

It is also agreed, by and among the parties, that the settlement amount of Sixty-

Fi,·e Thousand Dollars and no cents ($65,000.00)) shal1 be made payable to Tsungai

Tung,varara. The check wiII be mailed to the plaintiffs attorney at the fol1owing address:

Anthony Schoenberg, Esq., Farella, Braun & Martel LLP 235 Montgomery Street, San

Francisco, CA 94104.

6.

It is also agreed by and among the parties that neither plaintiff nor any of her

attorneys may make any claim for attorney's fees or other costs against the Federal Defendant. It

is also agreed, by and among the parties, that the respective parties, including Alfert Ludwigs,

will hear their own costs. fees. and expenses and that any attorney's fees owed by the plaintiff

wiII be paid out of the settlement amount and not in addition thereto.

7.

It is also understood by and among the parties that pursuant to Title 28, United

States Code. Section 2678. attorney's fees for services rendered in connection with this action

shall not exceed 25 percent of the amollnt of the compromise settlement.

8.

In consideration of the payment of Sixty-Five Thousand Dol1ars and no cents

($65.000.00) as set forth above, the plaintiff agrees that she will immediately upon execution of

this agreement, execute a Stipulation of Dismissal, which stipUlation shall dismiss, with

prejudice, all claims asserted in This Action or any claims that could have been asserted in This

Action, which is captioned Tsungai TunfJ\varara v. United States ofAmerica, C 04-2144 EDL.

The fully executed Stipulation of Dismissal will be held by counsel for the Federal Defendant

and \vill be filed with the Court upon receipt by plaintiffs counsel of the settlement amount.

9.

In consideration of the payment of Sixty-Five Thousand Dollars and no cents

(S65.000.00) as set forth above, the plaintiff hereby releases and forever discharges the Federal

Defendant, and any and all of their past and present agencies, officials, employees, agents,

attorneys, successors, and assigns from any and aII obligations, damages, liabilities, causes of

Case 3:04-cv-02144-EDL Document 103 Filed 04/12/2006 Page 3 of 7

actions, claims, and demands of any kind and nature whatsoever, whether suspected or unsuspected, arising in law or equity, arising from or by reason of any and all known, unknown, foreseen, or unforeseen injuries, and the consequences thereof, resulting from the facts, circumstances and subject matter that gave rise to This Action, including all claims under the Fedc-ral Tort Claims Act ("FTCA "). all constitutional or Bivens claims, and any other claim relating to the events from January 9,2002 or January 10, 2002, or any and all claims that could ha\(~ been asserted in the Complaint.
10. The defendants hereby release and forever discharges the plaintiff from any and all obligations, damages, liabilities, causes of actions, claims, and demands of any kind and nature whatsoever, \vhether suspected or unsuspected, arising in law or equity, arising from or by reason of any and all known, unknown. foreseen, or unforeseen injuries, and the consequences thereof. resulting from the facts. circumstances and subject matter that gave rise to This Action, inclllding all claims asserted. or any and all claims that could have been asserted in the Complaint.
11. The provisions of California Civil Code Section 1542 are set forth below:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which ifknmvn by him must have materially affected his settlement with the debtor.
The plaintiff having been apprised of the statutory language of Civil Code Section 1542 by her attorneys, and fully understanding the same, nevertheless elects to waive the benefits of any and all rIghts she may have pursuant to the provision of that statute and any similar provision of federal !av\,. The plaintiff understands that if the facts concerning the plaintiffs alleged injury and the liability of the Federal Defendant, or its agents, servants, or employees, for damages pertaining thereto are found hereafter to be other than or different from the facts now believed by them to be true, this agreement shall be and remain effective notwithstanding such material di fference.
12. The parties acknowledge that neither this agreement nor anything contained herell1 shall constitute an admission of liability or fault on the part of the Federal Defendant or its

<'UrUI.IIII\[' Jnd !\gTffllWllt fOT COmpTOIl1I'C and ScllIL-mcn!

("().j-2J.j.j EDL

Case 3:04-cv-02144-EDL Document 103 Filed 04/12/2006 Page 4 of 7

agents, servants, or employees. This agreement is entered into by the parties for the purpose of compromising disputed claims, avoiding the expenses and risks of litigation, and buying peace.
13. This agreement may be pled as a full and complete defense to any action or other proceeding, including any local. state or federal administrative action, involving any person or party which arises out of the claims released and discharged by this agreement.
14. Ifany withholding or income tax liability is imposed upon plaintiff based on pa)111ent of the settlement sum as set forth herein, plaintiff shall be solely responsible for paying any such liability. Plaintiff, and her attorneys, will indemnify and hold harmless the Federal Defendant from any liability the Federal Defendant may incur from any government agency arising out of any failure by plaintiff to pay any tax liability he might be responsible for from any government agency.
15. Plaintiff and her attorneys have been informed that payment of the settlement amount may take 120 days or more to process.
16. The parties agree that the District Court shall retain jurisdiction over this matter for the purposes of resolving any dispute alleging a breach of this agreement.
17. Each party acknowledges that they have been represented by and have relied upon independent counsel in negotiating, preparing and entering into this agreement and that they have had the contents of this agreement fully explained by counsel and that they are fully aware of and understand all of the terms of the agreement and the legal consequences thereof. It is further acknowledged that the parties have mutually participated in the drafting of this agreement and it is agreed that no provision herein shall be construed against any party hereto by virtue of the drafting of this agreement.
18. If any provision of this agreement shall be held invalid, illegal, or unenforceable, the \alidity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
19. This instrument shall constitute the entire agreement between the parties, and it is
expressly understood and agreed that this agreement has been freely and voluntarily entered into by the parties hereto \vith the advice of counsel, who have explained the legal effect of this

St!pul3lJ(ln .mel '\~IL'l'n1Cnt f,'r CompromIse and "cttlcment

1(I·J:~144 FDL

03/16/2006 10:24 FAX

FB&M HlrH FL

Case 3:04-cv-02144-EDL Document 103

Filed 04/12/2006

Page

5

of

I4J 7

006

agreement. The parties further acknowledge that no warranties or representations have been made on any subject other than as set fOJ1h in this agreement.
20. The parties agree that this Stipulation for Compromise Settlement and Release, including all the terms and conditions of this compromise settlement and any additional agreements relating thereto, may be made public in their entirety, and the plaintiff expressly consents to such release and disclosure pursuant to 5 V.S.c. § 552a(b). Plaintiff also agrees to return all documents that have been previously marked as "Confidential."
21. The persons signing this Stipulation and Agreement warrant and represent that they possess full authority to bind the persons on whose behalf they are signing to the terms of the settlement.
22. This agreement may not be altered, modified or otherwise changed in any respect except in writing, duly executed by all of the parties or their authorized representatives.

Dated: March~, 2006
•

TS~UNGWARARA
Plaintiff

Dated: - - - - - ,, 2006

ANTIIONY P. SCHOENBERG Attorney for Plaintiff

Dated: _ _ _ _, 2006

PHILIP K. HWANG Attorney for Plaintiff
KEVINV. RYAN United States Attorney

Dated: _ _ _ _, 2006

ANDREW Y.S. CHENG KATHERINE B. DOWLING Assistant United States Attorneys Attorneys fOT the Federal Defendant
United States of America and Alfert Ludwigs

Stipul~tion ~nt1 i\.~eement for COTTlpT"omise and Setllement

("04-2144 EDL

Case 3:04-cv-02144-EDL Document 103 Filed 04/12/2006 Page 6 of 7

agreement. The parties further acknowledge that no warranties or representations have been made on any subject other than as set forth in this agreement.
20. The parties agree that this Stipulation for Compromise Settlement and Release, including all the tenns and conditions of this compromise settlement and any additional agreements relating thereto, may be made public in their entirety, and the plaintiff expressly consents to such release and disclosure pursuant to 5 U.S.c. § 552a(b). Plaintiff also agrees to return all documents that have been previously marked as "Confidential."
21. The persons signing this Stipulation and Agreement warrant and represent that they possess full authority to bind the persons on whose behalf they are signing to the tenns of the settlement.
22. This agreement may not be altered, modified or otherwise changed in any respect except in writing, duly executed by all of the parties or their authorized representatives.

Dated: March _2006

II _ ~\\ Dated:

, 2006

Dated: i""; {_'__2_:]__ 2006

TSUNGAI TUNGWARARA Plaintiff
M - - - ANrT:JH~.SCHOENBERG
Attorney for Plaintiff

:\ - ' "J

7

1 \,/" ~_/ {

,J -,.'~
1----1

It PHILIP HWANt

Attorney tor Plaintiff

KEVIN V. RYAN United States Attorney

~d3.~
ANDREW Y.S. CHENG KATHERINE B. DOWLING Assistant United States Attorneys Attorneys for the Federal Defendant United States of America and Alfert Ludwigs

(04-21 H ED!

Case 3:04-cv-02144-EDL Document 103 Filed 04/12/2006 Page 7 of 7

UNITED S ALIFORNIA

OURT NORTH

PURSUANT TO THE ABOVE STIP APPROVED AND SO ORDERED:

TATES DISTRICT C

IT IS SO ORDERED

Dated: __A_ p_ ril 1_2 , 2006

Judge Elizabeth D. Laporte

ERN DISTRICT OF C

SIIP"",ll!lT) "nd Agreement for CompromIse and Setlkll1cll!

('04 -2 144 ED!

 
 400 F.Supp.2d 1213 (2005)
Tsungai TUNGWARARA, Plaintiff, v.
UNITED STATES of America, Defendant.
No. C-04-02144 EDL.
United States District Court, N.D. California.
October 13, 2005.
1214 *1214 Anthony P. Schoenberg, Robert H. Sloss, Farella Braun + Martel LLP, Patrice Nicole Harper, Farella Braun & Martel LLP, Philip Kim Hwang, Robert Rubin, Lawyers' Committee for Civil Rights of the San Francisco Bay, San Francisco, CA, for Plaintiff.
Andrew Y.S. Cheng, U.S. Attorney's Office, San Francisco, CA, for Defendant.
ORDER GRANTING DEFENDANT ALFERT LUDWIGS' MOTION FOR SUMMARY JUDGMENT
LAPORTE, United States Magistrate Judge.
I. INTRODUCTION
Plaintiff Tsungai Tungwarara, an eighteen year old Zimbabwean citizen coming to the United States for the first time, arrived at San Francisco International Airport ("SFO") on January 9, 2002 with a tourist visa. She stated that she planned to visit her mother and sister in the Bay Area. After her initial immigration inspection, she was selected for a secondary inspection, which was conducted by defendant Alfert Ludwigs, an Immigration and Naturalization Services ("INS") agent.[1] Tungwarara contends that during this secondary inspection, Ludwigs threatened and intimidated her, eventually coercing her into signing a false statement and withdrawing her application for entry into the United States. After being detained in an INS waiting room at SFO for more than ten 1215 hours, she was handcuffed and *1215 transferred to the Oakland City Jail, where she was strip-searched pursuant to jail policy, and placed in the general jail population overnight. She was forcibly removed to Zimbabwe the next day, via Paris. Defendants claim that they excluded Plaintiff because she planned to stay in the United States to study and therefore could not enter the country on a tourist visa. Plaintiff disputes this, and her mother testified that Ludwigs made racially offensive remarks to her about aliens from African countries.
Based on these events, Tungwarara filed claims against the United States for intentional infliction of emotional distress, false arrest and imprisonment, negligence, assault, battery, violation of the California Constitution, and violation of California Civil Code section 52.1(b). She also sued the United States and Ludwigs for violating her Fourth and Fifth Amendments rights. Ludwigs then filed this motion for summary judgment on the Fourth and Fifth Amendment claims asserted against him, based on qualified immunity.
II. ANALYSIS
A. Qualified Immunity Standard.
The defense of qualified immunity protects "government officials ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To determine whether Ludwigs is entitled to qualified immunity, the Court must examine "(1) whether `taken in the light most favorable to the party asserting the injury,... the facts alleged show the officer's conduct violated a constitutional right'; and, if a violation of a constitutional right is found, (2) `whether the right was clearly established.'" Wong v.

United States, 373 F.3d 952, 966 (9th Cir.2004) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). The rule of qualified immunity "`provides ample protection to all but the plainly incompetent or those who knowingly violate the law[.]'" Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). "Therefore, regardless of whether the constitutional violation occurred, the [official] should prevail if the right asserted by the plaintiff was not `clearly established' or the [official] could have reasonably believed that his particular conduct was lawful." Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991). If Defendant had a reasonable but mistaken belief that his conduct was lawful, qualified immunity applies. Saucier, 533 U.S. at 205-6, 121 S.Ct. 2151.
In determining whether a legal proposition is "clearly established," the Court first looks to the Supreme Court, the Ninth Circuit, and local district courts. Procunier v. Navarette, 434 U.S. 555, 565, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978); Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir.1985). In the absence of such binding precedent, the Ninth Circuit allows district courts to examine "whatever decisional law is available to ascertain whether the law is clearly established," including law from state courts, other circuits and other district courts. Capoeman, 754 F.2d at 1514; Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir.2003) (quoting Malik v. Brown, 71 F.3d 724, 727 (9th Cir.1995)).
B. Plaintiff's Fourth Amendment Right Was Not Clearly Established In 2002.
The Fourth Amendment proscribes "unreasonable searches and seizures." Allen v. City of Portland, 73 F.3d 232, 1216 235 (9th Cir.1995). The test of reasonableness requires courts to balance the governmental *1216 interest that
justifies the intrusion and the level of intrusion into the privacy of the individual. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1496 (9th Cir.1996). Plaintiff argues that the strip search at the Oakland City Jail violated her Fourth Amendment rights because the severe level of intrusion into her privacy was not balanced by any governmental interest. Defendants deny that this "non-intrusive" search violated Plaintiffs rights. Even if the search did violate her rights, however, Ludwigs argues that he cannot be liable because (1) he did not personally conduct or order the strip search, or even make the decision to detain her at the Oakland City Jail; and (2) he is entitled to qualified immunity.
1. Plaintiff has raised a triable issue of fact that Ludwigs set in motion events that foreseeably caused the strip search to occur.
It is undisputed that Ludwigs knew that all aliens sent to the Oakland City Jail pending repatriation were routinely strip searched. It is also undisputed that the INS' policies strongly discourage holding non-admitted aliens in jail "absent extraordinary circumstances." See Declaration of Patrice Harper ("Harper Decl."), Ex. 11 at 2. Ludwigs argues, however, that he cannot be liable because his supervisor, Assistant Port Director Frederick Ho, made the decision to detain Tungwarara and caused her to be sent to the Oakland Jail. See Harper Decl., Ex. 5 at 154:17-155:10. It is undisputed that Ludwigs was not involved in the decision to detain Tungwarara and was not consulted about where to detain her. See Declaration of Andrew Cheng ("Cheng Decl."), Ex. F at 185:16-186:9; Reply Declaration of Andrew Cheng ("Cheng Reply Decl."), Ex. C at 22:4-23:25, 85:6-11. Nonetheless, Tungwarara asserts that Ludwigs' falsification of her sworn statement set events in motion that foreseeably led to Mr. Ho's decision to detain her in jail rather than parole her pending removal, and thus to the strip search.
On summary judgment, the Court cannot resolve disputed issues of fact, but only determine whether, viewing all the disputed facts in the light most favorable to Tungwarara, she has raised a disputed issue sufficient to withstand summary judgment. At her deposition, Tungwarara testified that the only purpose of her trip was to visit her mother. See Cheng Decl., Ex. E at 13:4-8, 22:5. During her secondary interview, she told Ludwigs that she had traveled to San Francisco to visit her mother. Id. at 21:3-14, 25:15-19. She denied ever telling him that the intended to study at City College in San Francisco. Id. at 25:20-26:1. Although at one point Tungwarara testified that she may have mentioned to Ludwigs that she intended to study journalism and broadcasting, she did not say that she intended to do so in the United States. Id. at 85:15-21. (She is currently studying at University of Fort Hare in South Africa. See Cheng Reply Decl., Ex. A at 206:20-22.) She admitted that it was possible that, during her secondary interview, she might have told Ludwigs that she was coming to San Francisco to go to college and get a degree, but she does not recall actually telling him this. Id., Ex. A at 184:3-21.

Plaintiff claims that Ludwigs refused to write down the answers she gave him during the secondary interview, raised his voice and "made implied verbal threats" when she insisted on telling him that the purpose of her trip was to visit her mother. Cheng Decl., Ex. E at 27:3-28:8, 33:9-34:15. Ludwigs does not even allude to this purpose in the sworn statement that he completed for her. See id., Ex. D. On the contrary, the sworn statement 1217 unequivocally contends that she had come to the United States to "go to college and get *1217 a degree." Id., Ex. D at 3. Tungwarara claims that she was not allowed to review the statement before certifying it, and only signed it because Ludwigs told her that she would be able to see her mother if she signed the document. Harper Decl., Ex. 5 at 55:8-16, 57:6-23.
Based on the contents of that sworn statement, Tungwarara was excluded from the United States because she held a visitor visa, not a student visa. Even if she was excludable, Tungwarara could have been paroled while awaiting her return flight to Zimbabwe. However, at least in part because of the alleged misinformation in the sworn statement, Assistant Port Director Frederick Ho determined that Tungwarara was a flight risk and should not be paroled into her mother's care while awaiting removal. Cheng Reply Decl., Ex. C at 86:15-87:23. Mr. Ho testified that he decided to detain Plaintiff because she had no return ticket, had no assets in Zimbabwe, carried only thirty dollars, had a mother who already lived in the United States, and admitted in her written statement that she was coming to the United States to study and live and work; she therefore appeared to Mr. Ho to be an "intending immigrant." Cheng Reply Decl., Ex. C at 86:15-87:23. While the written statement was only one factor in his decision, Defendant did not offer any testimony on whether Mr. Ho would have made the same decision to detain Plaintiff overnight without that statement. In the absence of such evidence, the Court cannot presume on summary judgment that Mr. Ho would have made the same decision. It is undisputed that Ludwigs knew that, if Mr. Ho decided to detain Tungwarara overnight, she would be sent to the Oakland City Jail because SFO lacked proper detention facilities. Harper Decl., Ex. 5 at 177:11-178:25; Ex. 8 at 15:5-11. He also knew that, if this happened, Plaintiff would be strip searched. Id., Ex. 5 at 187:3-21; Ex. 8 at 32:22-33:7. This appears to be a sufficient causal link to at least raise a triable issue of fact for purposes of summary judgment, see Wong v. United States, 373 F.3d 952, 966 (9th Cir.2004), although it may or may not suffice at trial.[2] The Court therefore must engage in the qualified immunity analysis.
2. The strip search was unconstitutional
It is undisputed that the strip search here was not based on any suspicion, reasonable or otherwise, that Tungwarara was carrying hidden weapons or contraband, but rather on the policy of the Oakland City Jail to conduct routine strip searches of all detainees. In these circumstances, even "non-invasive" strip searches like the one to which Plaintiff was subjected would be plainly unconstitutional if she were a citizen or admitted alien. See Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir. 1984) (per curium) (Fourth Amendment prohibits blanket policy of strip searching individuals charged with minor offenses absent reasonable suspicion that detainee is concealing contraband) (overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n. 1 (9th Cir. 1999) (en banc)); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1445-50 (9th Cir.1991) (to determine whether 1218 search policy is constitutional, *1218 courts must balance need for the search against personal rights affected).
The question is whether Plaintiff's status as a non-admitted alien changes the outcome of the Fourth Amendment analysis. Rights under the Fourth Amendment fall along a continuum, with United States citizens and resident aliens afforded the most protection, aliens living in the United States without permission but who have developed ties to the community somewhat less, and non-admitted aliens the least. Non-resident aliens who seek admission into the United States are subject to the "entry fiction": "`[A]lthough aliens seeking admission into the United States may physically be allowed within its borders pending a determination of admissibility, such aliens are legally considered to be detained at the border and hence as never having effected entry into this country.'" Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1099 (9th Cir.2004) (quoting Barrera-Echavarria v. Rison, 44 F.3d 1441, 1450 (9th Cir.1995) (en banc) (superseded by statute on other grounds)); see also Wong, 373 F.3d at 970-71 ("The Supreme Court has long recognized a distinction between the constitutional rights afforded those who have effected an entry into the U.S., whether legally or otherwise, and those considered never to have entered.... Aliens inside the U.S., regardless of whether their presence here is temporary or unlawful, are entitled to certain constitutional protections unavailable to those outside our borders.... At the same time, under the "entry fiction" ... an alien seeking admission has not "entered" the United States, even if the alien is in fact physically

present"). "Noncitizens who are outside U.S. territories enjoy very limited protections under the Constitution." Barrera-Echavarria, 44 F.3d at 1448.
The Constitution does confer some fundamental rights to non-admitted aliens. For example, in Lynch v. Cannatella, 810 F.2d 1363, 1372-3 (5th Cir.1987), the Fifth Circuit held that while excludable aliens have fewer rights than illegal aliens who have entered the United States and integrated to some degree into the population, and significantly less rights than legal residents and citizens, they still have the fundamental right to be free from inhumane detention, including beating and drugging by United States officials. The Ninth Circuit quoted Lynch with approval for its determination that the entry fiction "`does not limit the right of excludable aliens detained within United States territory to humane treatment.'" Wong, 373 F.3d at 972 (entry fiction pertains mostly to narrow question of scope of procedural rights available in admission process, and does not apply to certain other constitutional rights); see also Papa v. United States, 281 F.3d 1004, 1010 (9th Cir.2002) (citing Lynch and explaining that "[l]imited rights under the Due Process Clause extend to detained aliens. Officials may not, for example, consciously disregard or act with deliberate indifference toward a detainee's safety by knowingly placing that person in harm's way"); Zadvydas v. Davis, 533 U.S. 678, 704, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (Scalia, J., dissenting) (removable aliens cannot be tortured).
The Supreme Court has left open two distinct, but often related, questions regarding strip searches of nonadmitted adult aliens at the border, the first relating to the search's location at the border, regardless of the immigration status of the person being searched, and the second to the impact, if any, of that person's immigration status:
It is also important to note what we do not hold. Because the issues are not presented today we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or 1219 involuntary x-ray searches. Both parties would *1219 have us decide the issue of whether aliens possess lesser Fourth Amendment rights at the border; that question was not raised in either court below and we do not consider it today.
United States v. Montoya de Hernandez, 473 U.S. 531, 541 n. 4, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). The Ninth Circuit has addressed the first question squarely, finding that "our precedents clearly hold that a strip search involves more than a routine invasion of the traveler's personal privacy and therefore requires at least an individualized `real suspicion.'" United States v. Handy, 788 F.2d 1419, 1420 (9th Cir.1986) (quoting United States v. Aman, 624 F.2d 911, 912 (9th Cir.1980)); see also United States v. Tsai, 282 F.3d 690, 694 (9th Cir. 2002) (quoting Handy in case involving permanent resident alien, and agreeing that strip search requires individualized suspicion).
A number of cases strongly indicate that some level of objective reason for suspicion is also required to strip search non-admitted aliens at the border. For example, in Flores v. Meese, a district court held that INS officers could not strip search juvenile illegal aliens at the border absent a reasonable suspicion that the search would yield weapons or contraband. 681 F.Supp. 665 (C.D.Cal.1988). Without this reasonable suspicion, strip searching a juvenile alien would be unconstitutional. Id. at 669. The Flores decision balanced a number of factors that weighed against the constitutionality of routine strip searches, only one of which was age. All the other factors applied equally to adults. In reviewing a number of cases, including cases from the Ninth Circuit, the Flores Court noted that:
[i]n all of these cases, policies authorizing routine strip searches of adults charged with minor offenses were found to be constitutionally repugnant. Certainly, application of such policies to children, who have not been charged with any criminal offense, is even more so. Children confined by the INS are not charged with any criminal offense, let alone an offense that might indicate a propensity to conceal weapons or contraband on their persons.
681 F.Supp. at 668; see also United States v. Rodriguez, 592 F.2d 553, 556 (9th Cir. 1979) ("While anyone at a border may be stopped for questioning and subject to an inspection of luggage, handbags, pockets, wallets, without any suspicion at all on the part of customs officials, `real suspicion' is required before a strip search may be conducted"); Kirkpatrick v. Los Angeles, 803 F.2d 485, 489 (9th Cir.1986) (government interest in preventing entry of contraband into country justifies searches at border that would otherwise not be constitutional, but border

officials nonetheless must have "real suspicion" that contraband will be discovered before ordering strip search); [3]United States v. Oyekan, 786 F.2d 832 (8th Cir.1986) (reversing district court's implicit holding that two Nigerian citizens' "fourth amendment rights were in fact violated when they were detained and subjected to a strip search and x-ray on less than probable cause" because the customs officials had reasonable suspicion to strip search and x-ray the defendants"); United States v. Gonzalez-Rincon, 36 F.3d 859 (9th Cir.1994) (in case involving nonresident alien adults, Ninth Circuit held that border officials needed reasonable suspicion that 1220 person smuggled drugs in *1220 order to strip search them). Although none of these cases explicitly addresses whether the same rule applies to strip searching non-admitted adult aliens at the border, Oyekan and GonzalezRincon involve non-resident aliens. Moreover, Defendants have cited no case that supports a different conclusion.
The purpose of border inspections is to determine whether an alien is admissible or carrying contraband or weapons. See United States v. Tsai, 282 F.3d 690, 699 (9th Cir.2002) (Berzon, J., concurring) ("The authority to search at the border has always been justified as `necessary to prevent smuggling and to prevent prohibited articles from entry,' ... and to determine whether the individual presenting himself at the border is `entitled to come in'") (internal citations omitted); Kirkpatrick, 803 F.2d at 489 ("The government has an interest in preventing the entry of contraband into the country which justifies some searches at the border that would not otherwise be constitutional") (citing Montoya, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985)). Strip searches therefore should be tailored to serve these purposes.
As the Supreme Court observed in United States v. Flores-Montano, intrusive searches of the person implicate important dignity and privacy interests. These interests are fundamental to all human beings, not just admitted aliens and citizens. 541 U.S. 149, 152, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004); see also Thompson v. City of Los Angeles, 885 F.2d 1439, 1446 (9th Cir.1989). The Ninth Circuit has pointed out the need not to interpret the entry fiction so expansively that it "would allow any number of abuses to be deemed constitutionally permissible merely by labeling certain `persons' as non-persons."' Wong, 373 F.3d at 974. The court also observed that denying any rights to non-admitted aliens who properly present themselves for inspection at the border would provide a perverse incentive for aliens to enter the country secretly and live here unlawfully, yet enjoy greater Constitutional protections. Id. at 973-74. These same considerations apply with equal force to bar the routine strip searches of non-admitted aliens at the border.
The Court therefore concludes that some level of suspicion is required under the Fourth Amendment to conduct strip searches of non-admitted aliens.[4] Indeed, this Court concludes that this right is now clearly established in light of the reasoning employed by the Ninth Circuit in Wong, which applies analogously to the right to be free from non-routine searches absent some level of suspicion.
3. This right was not clearly established in 2002.
The more difficult issue is whether Tungwarara's Fourth Amendment right to be free from a strip search absent suspicion that she was concealing weapons or contraband was clearly established in 2002. As the court in Wong recognized, prior to its decision in that case the law was unsettled regarding the extent to which non-admitted 1221 aliens enjoyed substantive constitutional rights. 373 F.3d at 976. As Barrera-Echavarria *1221 observed, "the law is not settled with regard to nonprocedural rights. Some of the cases involving excludable aliens suggest that they do enjoy certain substantive constitutional rights." 44 F.3d at 1449 (citations omitted). In fact, in Papa, the Ninth Circuit affirmed the district court's dismissal of claims of unreasonable search and seizure and discrimination by an alien seeking admission into United States on the ground that such aliens are not afforded due process protections. 282 F.3d at 1010. And the Supreme Court observed in United States v. VerdugoUrquidez that the Fourth Amendment's use of the term "the People of the United States," rather than "persons," "[w]hile ... by no means conclusive ... suggests that the people' protected by the Fourth Amendment ... refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." 494 U.S. 259, 265, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990).
The strip search here was an unwarranted and painful affront to Plaintiffs privacy and dignity, and this Court has concluded that it was unconstitutional. At the same time, the pat-down search here did not constitute the kind of

"gross physical abuse," "reckless indifference to safety," or "torture" that was more clearly forbidden by the case law as of 2002. Plaintiff testified that she underwent a pat-down search, conducted by a female officer in private. The officer was not mean to her, did not raise her voice, and did not touch her genitals. See Harper Decl., Ex. 1 at 168:21-169:9; Cheng Reply Decl., Ex. A at 147:20-149:17; cf. Cheng Reply Decl., Ex. A at 154:3-154:25 (describing strip search at Paris airport, where Plaintiff underwent a body cavity search). This is not a case where the official's actions were so egregious that the Court can conclude that Tungwarara's right was clearly established absent clearly applicable contemporaneous decisional law. Cf. Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004) (per curiam) ("in an obvious case, these standards [of reasonableness under the Fourth Amendment] can `clearly establish' the answer, even without a body of relevant case law") (citing Hope, 536 U.S. at 738, 122 S.Ct. 2508).
The case that most strongly supports Plaintiff's attempt to show that her right was clearly established in 2002 is United States v. Gonzalez-Rincon, 36 F.3d 859 (9th Cir.1994). There, in a case involving a non-resident adult alien, the court noted that strip searches "of course ... must be supported by reasonable suspicion." 36 F.3d at 864. However, the court there did not explicitly consider the issue of the relative rights of an alien subject to the entry fiction left open in Montoya. One could argue that the right was so obvious that the court did not need to do so. That argument falters, however, in the face of the Ninth Circuit's decision en banc one year later in BarreraEchavarria, characterizing the state of the law with regard to nonprocedural rights of non-admitted aliens as "unsettled." See also Wong, 373 F.3d at 976 (citing same for proposition that Fifth Amendment protection for aliens was not clearly established).
The cases on which Tungwarara relies are distinguishable because none involves a non-admitted adult alien at the border like Plaintiff where the court squarely addresses the implication of the alien's non-admitted status. The defendant in United States v. Handy, 788 F.2d 1419 (9th Cir. 1986), was returning from a trip to Thailand, and appears to have been either a U.S. citizen or resident. The defendant in United States v. Aman, 624 F.2d 911, 912 (9th Cir.1980), also appears to have been returning to the United States from a trip to Thailand. While the 1222 nationality of the *1222 defendant in United States v. Rodriguez, 592 F.2d 553 (9th Cir.1979), is never mentioned, the fact that he held an "alien reentry permit" suggests that he was a lawful permanent resident returning to the United States, rather than a non-admitted alien seeking to enter the United States for the first time. Although this Court has concluded that Flores, 681 F.Supp. 665, which struck down a policy requiring the routine strip searching of all juvenile non-admitted aliens, supports the unconstitutionality of the strip search here of Plaintiff, who was eighteen, the case could mistakenly but perhaps reasonably be distinguished because of the age difference. Id. at 667-68.
Accordingly, although this Court concludes that a non-invasive strip search of a non-admitted adult alien at the border without any suspicion of any kind is unconstitutional, the Court cannot conclude that this right was clearly established at the time of the incident. If the same search had occurred later after the Ninth Circuit's decision in Wong, or had been more invasive or abusive at the time, the Plaintiff s "clearly established" rights would likely have been violated. On the uncontested facts of the search here, however, Ludwigs is entitled to qualified immunity.
C. Plaintiff's Fifth Amendment Right To Equal Protection Was Not Clearly Established In 2002.
Tungwarara argues that Ludwigs violated her Fifth Amendment right to be free from racial discrimination when he coercively interrogated her, separated her from her family, and sent her to the Oakland jail as punishment, all because of her race. Although the Fifth Amendment does not contain an explicit equal protection clause, the Supreme Court has held that discrimination may be so unjustifiable as to violate due process. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954); United States v. Rodriguez-Lara, No. 04-10113, 421 F.3d 932, 938, n. 2, 2005 U.S.App. Lexis 18427, at *6 n. 2 (9th Cir. Aug. 26, 2005) (noting that while plaintiff brought an equal protection claim under the Fourteen Amendment, "a claim of discrimination by the federal government implicates the equivalent equal protection guarantee inherent in the Due Process Clause of the Fifth Amendment").
As evidence of Ludwigs' racial animus, Tungwarara offers the deposition of her mother, who testified that Ludwigs told her that Plaintiff should "go back to the jungle" and that "these people from Africa" were a "problem" and were not allowed into the country "after September 11th." Cheng Decl., Ex. A at 94:11-17; Ex. B at

59:23-60:14. For purposes of summary judgment, Tungwarara therefore has created a triable issue of fact as to whether Ludwigs violated her Fifth Amendment rights by discriminating against her on the basis of her race:
The entry fiction does not preclude non-admitted aliens ... from coming within the ambit of the equal protection component of the Due Process Clause. We cannot countenance that the Constitution would permit immigration officials to engage in such behavior as rounding up all immigration parolees of a particular race solely because of a consideration such as skin color.... We can imagine no proper governmental interest furthered by the purely invidious discrimination alleged to have been carried out by individual INS officers in this case.
Wong, 373 F.3d at 974-75. Plaintiff therefore satisfies the first step of the qualified immunity analysis.
To establish that this constitutional right was clearly established in 2002, Plaintiff argues that INS handbooks at the time unequivocally instructed inspectors that immigration laws were intended to be non-discriminatory and 1223 should be administered *1223 "fairly and equitably." See Harper Decl., Exs. 12-13. However, in 2004 0907 two years after the incident 0907 the Ninth Circuit stated that previously it had "never squarely held that [non-admitted aliens] are entitled to equal protection guarantees, nor [had] the Supreme Court." Wong, 373 F.3d 952. In fact, in 2002, the Ninth Circuit noted that an alien's Bivens claim that INS officials discriminated against him upon entry was correctly dismissed because "[a]liens are not afforded due process protections when they seek admission to the United States." See Papa, 281 F.3d at 1010 (but noting that detained aliens did have "[l]imited rights under the Due Process Clause" not to be treated with deliberate indifference or placed in harm's way by officials). INS field manuals are not "decisional law" for purposes of qualified immunity; Ninth Circuit cases like Wong and Papa are.
Moreover, Tungwarara's attempt to limit Wong based on that plaintiff's atypical immigration status fails because the plaintiff in Wong, if anything, would have been entitled to greater Fifth Amendment protections that the Plaintiff here. In Wong, the plaintiff entered the United States legally in 1985, resided here for fourteen years, and applied for permanent residence status before leaving the country in 1999. Upon reentry eighteen days later, she was found excludable because she had failed to secure advanced parole and thus was deemed to have abandoned her application for permanent residence. The court therefore noted that if there were any doubt as to whether non-admitted aliens were entitled to some level of equal protection, the balance was tipped in Wong's favor by her particular circumstances, including her allegation that her failure to get advance parole was due to illegal discrimination against her while she was still lawfully residing in the United States. See Wong, 373 F.3d at 976. In contrast, Plaintiff here was attempting to enter the country for the first time in 2002 on a tourist visa and had no prior ties to the United States. The constitutional right that Tungwarara seeks to vindicate therefore was not clearly established until the Ninth Circuit's decision in Wong in 2004. Accordingly, Ludwigs is also entitled to qualified immunity on Plaintiff's Fifth Amendment claim.
III. CONCLUSION
For the reasons stated here, Ludwigs' motion for summary judgment on Tungwarara's Eighth claim for violation of the Fourth Amendment and Ninth claim for violation of the Fifth Amendment is GRANTED.
IT IS SO ORDERED.
[1] On March 1, 2003, after these events, the INS became part of the Department of Homeland Securities, and some of its functions were assumed by the newly created Immigrations and Customs Enforcement Bureau.
[2] Neither Wong nor the cases it cites addresses whether the initial actor must intend the unlawful consequences of the act that set in motion the constitutional violation, or whether these consequences must simply be foreseeable. Here, an INS officer at SFO in 2002 apparently had no choice but to house detained aliens at the Oakland City Jail. If foreseeability alone suffices, Ludwigs could be liable even if his decision to detain someone was based on an entirely proper motive (e.g., a proper determination that an alien carried forged papers).
[3] The Ninth Circuit noted that the Supreme Court had suggested in Montoya that "real suspicion" was a third standard that was likely not grounded in the Fourth Amendment, thus calling into question prior Ninth Circuit cases, such as Handy and Rodriguez, using that terminology. Kirkpatrick, 803 F.2d at 489 n. 3. Neither Kirkpatrick nor Montoya, however, questioned the holdings of those cases.

[4] The Court does not decide today what level of suspicion is required, nor even whether that suspicion need be particular to the individual as opposed to, for example, a category of those traveling from a particular place identified as the source of numerous terrorist attacks. Cf. Wong, 373 F.3d at 974, n. 29 (holding that equal protection component of Due Process applies to non-admitted aliens, but declining to address whether the usual heightened scrutiny standard applies to racial, national, or religious profiling of such aliens); Lynch, 810 F.2d at 1373 (government classifications based on alienage may be subject to either close scrutiny or rational basis analyses).
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ADRMOP, CLOSED, E-Filing, MEDTERM, PROTO, REFSET-WDB, RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:04-cv-02144-EDL

Tungwarara v. United States Of America et al Assigned to: Magistrate Judge Elizabeth D. Laporte Demand: $1,000,000 Cause: 28:2671 Federal Tort Claims Act

Date Filed: 06/01/2004 Date Terminated: 06/21/2006 Jury Demand: None Nature of Suit: 360 P.I.: Other Jurisdiction: U.S. Government Defendant

Plaintiff Tsungai Tungwarara

represented by Anthony Paul Schoenberg Farella Braun + Martel LLP 235 Montgomery Street San Francisco, CA 94104 415-954-4400 Fax: 415-954-4480 Email: aschoenberg@FBM.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrice Nicole Harper Farella Braun & Martel LLP Russ Building 235 Montgomery Street San Francisco, CA 94104 (415) 954-4991 Fax: 415-954-4480 Email: pharper@fbm.com ATTORNEY TO BE NOTICED

Philip Kim Hwang Lawyers' Committee for Civil Rights of the San Francisco Bay 131 Steuart Street, No.400 San Francisco, CA 94105 415-543-9444 Fax: (415) 543-0296 Email: phwang@lccr.com ATTORNEY TO BE NOTICED

Robert Rubin Lawyers' Committee for Civil Rights of the San Francisco Bay Area 131 Steuart Street #400 San Francisco, CA 94105 415-543-9444

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V. Defendant United States of America
Defendant Alfert Ludwigs

Fax: 415-543-0296 Email: rrubin@lccr.com ATTORNEY TO BE NOTICED
Robert H. Sloss Farella Braun + Martel LLP Russ Building, 30th Floor 235 Montgomery Street San Francisco, CA 94104 (415) 954-4400 Fax: (415) 954-4480 Email: rsloss@fbm.com ATTORNEY TO BE NOTICED
represented by Katherine Burke Dowling United States Attorney's Office 450 Golden Gate Avenue Box 36055 San Francisco, CA 94102-3495 415-436-6833 Fax: 415-436-6748 Email: Katherine.dowling@usdoj.gov ATTORNEY TO BE NOTICED
Andrew Y.S. Cheng U.S. Attorney's Office 450 Golden Gate Ave., 10th Fl. San Francisco, CA 94102-3495 415-436-6813 Fax: 415-436-6748 Email: andrew.cheng@usdoj.gov ATTORNEY TO BE NOTICED
represented by Andrew Y.S. Cheng (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/01/2004

#

Docket Text

1 COMPLAINT against Alfert Ludwigs, United States Of America (Filing fee $ 150.). Filed by Tsungai Tungwarara. (mmt, COURT STAFF) (Filed on 6/1/2004) Additional attachment(s) added on 6/2/2004 (mmt, COURT STAFF). (Entered: 06/02/2004)

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06/01/2004 06/01/2004 06/01/2004 07/14/2004
07/20/2004 07/26/2004 08/13/2004 08/13/2004 08/16/2004 08/16/2004
08/16/2004

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4 Summons Issued as to Alfert Ludwigs, United States Of America. (mmt, COURT STAFF) (Filed on 6/1/2004) Additional attachment(s) added on 6/2/2004 (mmt, COURT STAFF). (Entered: 06/02/2004)
2 NOTICE of Related Cases 00-2555 EDL, 01-3683 MJJ, 03-4538 EDL (mmt, COURT STAFF) (Filed on 6/1/2004) Additional attachment(s) added on 6/2/2004 (mmt, COURT STAFF). (Entered: 06/02/2004)
3 ADR SCHEDULING ORDER: Case Management Statement due by 8/27/2004. Case Management Conference set for 9/3/2004 08:30 AM. (Attachments: # 1 standing orders# 2 special notice)(mmt, COURT STAFF) (Filed on 6/1/2004) (Entered: 06/02/2004)
5 RELATED CASE ORDER Signed by Mag. Judge Elizabeth D. Laporte RELATING CASE To C-00-2555-EDL, C-01-3683-EDL & C-03-4538-EDL & REASSIGNING CASE to Judge Elizabeth D. Laporte for all further proceedings. Judge Charles R. Breyer no longer assigned to the case. (tn, COURT STAFF) (Filed on 7/14/2004) Additional attachment(s) added on 7/16/2004 (tn, COURT STAFF). (Entered: 07/16/2004)
6 SUMMONS Returned Executed by Tsungai Tungwarara. Alfert Ludwigs served on 6/19/2004, answer due 8/18/2004; United States of America served on 6/16/2004, answer due 8/16/2004. (mmt, COURT STAFF) (Filed on 7/20/2004) (Entered: 07/26/2004)
7 ORDER: Initial Case Management Conference set for 9/7/2004 10:00 AM; case management statement due 8/31/2004; consent or declination due 8/24/2004. Signed by Judge Laporte on 7/26/04. (drk, COURT STAFF) (Filed on 7/26/2004) (Entered: 07/26/2004)
8 MOTION to Dismiss FEDERAL DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS (F.R.C.P. 12(B)(6)) filed by United States of America. Motion Hearing set for 9/21/2004 09:00 AM. (Cheng, Andrew) (Filed on 8/13/2004) (Entered: 08/13/2004)
9 Proposed Order re 8 [PROPOSED] ORDER GRANTING MOTION TO DISMISS (F.R.C.P. 12(B)(6)) by United States of America. (Cheng, Andrew) (Filed on 8/13/2004) (Entered: 08/13/2004)
10 CONSENT to Proceed Before a US Magistrate Judge by United States of America.. (Cheng, Andrew) (Filed on 8/16/2004) (Entered: 08/16/2004)
11 MOTION to Amend/Correct 8 MOTION to Dismiss FEDERAL DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS (F.R.C.P. 12(B)(6)) ALFERT LUDWIGS' NOTICE OF MOTION AND MOTION TO DISMISS (F.R.C.P. 12(B)(6)) filed by United States of America. Motion Hearing set for 9/21/2004 09:00 AM. (Cheng, Andrew) (Filed on 8/16/2004) (Entered: 08/16/2004)
12 Proposed Order re 11 [PROPOSED] ORDER GRANTING MOTION TO DISMISS (F.R.C.P. 12(B)(6)) by United States of America. (Cheng, Andrew) (Filed on 8/16/2004) (Entered: 08/16/2004)

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09/10/2004 10/19/2004 10/19/2004
10/25/2004 11/19/2004 12/02/2004

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13 ANSWER to Complaint DEFENDANT UNITED STATES OF AMERICA'S ANSWER TO COMPLAINT by United States of America. (Cheng, Andrew) (Filed on 8/16/2004) (Entered: 08/16/2004)
14 CONSENT to Proceed Before a US Magistrate Judge by Tsungai Tungwarara.. (Schoenberg, Anthony) (Filed on 8/16/2004) (Entered: 08/16/2004)
15 Notice of Withdrawal of Motion re 11 ALFERT LUDWIGS' NOTICE OF WITHDRAWAL OF MOTION TO DISMISS filed by United States of America. (Cheng, Andrew) (Filed on 8/23/2004) (Entered: 08/23/2004)
16 STIPULATION and Proposed Order selecting Mediation by United States of America STIPULATION SELECTING ADR PROCESS [ADR L.R. 3-5] ADR CERTIFICATION (Cheng, Andrew) (Filed on 8/30/2004) (Entered: 08/30/2004)
17 JOINT CASE MANAGEMENT STATEMENT and [Proposed] Order filed by Alfert Ludwigs, Tsungai Tungwarara, United States of America. (Attachments: # 1 Proposed Order [Proposed] Case Management Order)(Schoenberg, Anthony) (Filed on 8/30/2004) (Entered: 08/30/2004)
18 Minute Entry: Initial Case Management Conference held on 9/7/2004 before Mag. Judge Laporte (Date Filed: 9/7/2004). Case Management Statement due by 11/8/2004. Case Management Conference set for 11/16/2004 03:00 PM. (Digitally recorded.)(drk, COURT STAFF) (Date Filed: 9/7/2004) (Entered: 09/07/2004)
19 ORDER FOLLOWING CASE MANAGEMENT CONFERENCE. Signed by Magistrate Judge Elizabeth D. Laporte on September 10, 2004. (edllc2, COURT STAFF) (Filed on 9/10/2004) (Entered: 09/10/2004)
20 STIPULATION and Proposed Order to Continue Case Management Conference by United States of America. (Cheng, Andrew) (Filed on 10/19/2004) (Entered: 10/19/2004)
21 *** FILED IN ERROR. NO NEW DOCUMENT. *** MOTION to Compel Further Responses to Third Set of Special Interrogatories and Deem Requests for Admission Admitted and Defendant's Amended Motion filed by United States of America. Motion Hearing set for 11/30/2004 02:00 PM. (Cheng, Andrew) (Filed on 10/19/2004) Modified on 10/20/2004 (br, COURT STAFF). (Entered: 10/19/2004)
22 STIPULATION AND ORDER TO CONTINUE CASE MANAGEMENT CONFERENCE. Signed by Magistrate Judge Elizabeth D. Laporte on October 25, 2004. (edllc2, COURT STAFF) (Filed on 10/25/2004) (Entered: 10/25/2004)
23 JOINT CASE MANAGEMENT STATEMENT Joint Case Management Conference Statement filed by United States of America. (Cheng, Andrew) (Filed on 11/19/2004) (Entered: 11/19/2004)
24 Minute Entry: Further Case Management Conference held on 11/30/2004 before Mag. Judge Laporte (Date Filed: 12/2/2004), Case referred to mediation. Further Case Management Conference set for 4/26/2005 10:00 AM.(FTR recording.)(drk, COURT STAFF) (Date Filed: 12/2/2004) (Entered: 12/02/2004)

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01/19/2005 02/09/2005
02/18/2005 03/01/2005
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CASE REFERRED to Magistrate Judge Maria-Elena James for Settlement (wh, COURT STAFF) (Filed on 12/3/2004) (Entered: 12/03/2004)
25 CASE MANAGEMENT SCHEDULING ORDER: Case Management Statement due by 4/18/2005. Case Management Conference set for 4/26/2005 10:00 AM. Jury Trial set for 7/25/2005 08:30 AM. Motion Hearing set for 4/26/2005 09:00 AM. Motions due by 3/22/2005. Pretrial Conference set for 7/5/2005 02:00 PM. Signed by Judge Mag. Judge Laporte on 12/1/05. (drk, COURT STAFF) (Filed on 12/3/2004) (Entered: 12/03/2004)
ADR Remark: ADR Phone Conference on 11/24/2004 not held. Parties stipulated to mediation. (af, COURT STAFF) (Filed on 12/6/2004) (Entered: 12/06/2004)
26 ADR Clerk's Notice Appointing Luella E. Nelson as Mediator dated 12/14/2004. (af, COURT STAFF) (Filed on 12/14/2004) (Entered: 12/14/2004)
Pre MED phone conference: Mediator will call parties in the next few days to determine availability for the phone conference which she hopes to conduct before 12/23/04. (af, COURT STAFF) (Filed on 12/15/2004) (Entered: 12/15/2004)
27 ORDER SETTING SETTLEMENT CONF FOR APRIL 13, 2005 AT 10:00 AM.Signed by Judge HON. MARIA-ELENA JAMES on 1/19/05. (bjt, COURT STAFF) (Filed on 1/19/2005) (Entered: 01/19/2005)
28 CLERK'S NOTICE RESCHEDULING FURTHER CASE MANAGEMENT CONFERENCE Further Case Management Conference set for 3/1/2005 10:00 AM. Case Management Statement due by 2/22/2005. (nah, COURT STAFF) (Filed on 2/9/2005) (Entered: 02/09/2005)
29 JOINT CASE MANAGEMENT STATEMENT Joint Case Management Conference Statement filed by United States of America. (Cheng, Andrew) (Filed on 2/18/2005) (Entered: 02/18/2005)
30 Minute Entry: Further Case Management Conference held on 3/1/2005 before Elizabeth D. Lapaorte. Parties shall meet and confer regarding proposed pretrial and trial dates by 3/4/05. (Date Filed: 3/1/2005). (Tape #FTR Digital Recorder.) (lh, COURT STAFF) (Date Filed: 3/1/2005) (Entered: 03/01/2005)
31 ORDER FOLLOWING FURTHER CASE MANAGEMENT CONFERENCE. Signed by Magistrate Judge Elizabeth D. Laporte on March 1, 2005. (edllc2, COURT STAFF) (Filed on 3/1/2005) (Entered: 03/01/2005)
32 STIPULATION Joint Stipulation and [Proposed] Order by United States of America. (Cheng, Andrew) (Filed on 3/3/2005) (Entered: 03/03/2005)
33 STIPULATION AND ORDER SETTING PRETRIAL AND TRIAL DATES. Signed by Magistrate Judge Elizabeth D. Laporte on March 3, 2005. (edllc2, COURT STAFF) (Filed on 3/3/2005) (Entered: 03/03/2005)
34 STIPULATION and Proposed Order re Confidentiality by Tsungai Tungwarara, United States of America, Alfert Ludwigs. (Schoenberg, Anthony) (Filed on 3/18/2005) (Entered: 03/18/2005)

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03/29/2005 04/13/2005 04/14/2005
05/23/2005 05/31/2005 07/06/2005 07/07/2005 07/08/2005
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35 STIPULATION AND ORDER RE CONFIDENTIALITY. Signed by Magistrate Judge Elizabeth D. Laporte on March 21, 2005. (edllc2, COURT STAFF) (Filed on 3/21/2005) (Entered: 03/21/2005)
36 Letter from Andrew Y.S. Cheng. (Cheng, Andrew) (Filed on 3/22/2005) (Entered: 03/22/2005)
37 ORDER EXCUSING PERSONAL ATTENDANCE AT SETTLEMENT CONFERENCE re 36 Letter filed by United States of America,. Signed by Judge Maria-Elena James on 3/28/2005. (mejlc1, COURT STAFF) (Filed on 3/28/2005) (Entered: 03/28/2005)
38 ORDER withdrawing referral of this case to the ADR Department for Mediation. Signed by Magistrate Judge Elizabeth D. Laporte on March 29, 2005. (edllc2, COURT STAFF) (Filed on 3/29/2005) (Entered: 03/29/2005)
39 Minute Entry: Settlement Conference Held before Hon. Maria-Elena James (Date Filed: 4/13/2005). Further Settlement Conference set for 7/6/2005 10:00 AM. (bjt, COURT STAFF) (Date Filed: 4/13/2005) (Entered: 04/13/2005)
40 ORDER RE SETTLEMENT CONFERENCE; ORDER SCHEDULING FURTHER SETTLEMENT CONFERENCE FOR JULY 6, 2005; ORDER FOR PLAINTIFF TO PERSONALLY APPEAR ON JULY 6, 2005 FOR THE SETTLEMENT CONFERENCE. Signed by Judge Maria-Elena James on April 14, 2005. (mejlc2, COURT STAFF) (Filed on 4/14/2005) (Entered: 04/14/2005)
41 Defendant Alfert O. Ludwigs' ANSWER to Complaint byAlfert Ludwigs. (Cheng, Andrew) (Filed on 5/23/2005) (Entered: 05/23/2005)
42 CERTIFICATE OF SERVICE by Tsungai Tungwarara Original Subpoena to North County Jail w/Proof of Service (Harper, Patrice) (Filed on 5/31/2005) (Entered: 05/31/2005)
43 Minute Entry: Settlement Conference Held and continued to October 5, 2005 at 10:00 am. (Date Filed: 7/6/2005). () (bjt, COURT STAFF) (Date Filed: 7/6/2005) (Entered: 07/06/2005)
47 MANUAL FILING NOTIFICATION Filed by Federal Defendants United States of America & Alfert Ludwigs. (tn, COURT STAFF) (Filed on 7/7/2005) (Entered: 07/11/2005)
44 MOTION for Summary Judgment Defendant Alfert Ludwigs' Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities in Support of Motion filed by United States of America. Motion Hearing set for 8/16/2005 09:00 AM in Courtroom E, 15th Floor, San Francisco. (Cheng, Andrew) (Filed on 7/8/2005) (Entered: 07/08/2005)
45 Declaration of Andrew Y.S. Cheng in Support of 44 MOTION for Summary Judgment Defendant Alfert Ludwigs' Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities in Support of Motion filed byUnited States of America. (Attachments: # 1 Manual Filing Notification)(Related document(s)44) (Cheng, Andrew) (Filed on 7/8/2005) (Entered: 07/08/2005)

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46 Proposed Order re 44 MOTION for Summary Judgment Defendant Alfert Ludwigs' Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities in Support of Motion [Proposed] Order Granting Alfert Ludwigs' Motion for Summary Judgment by United States of America. (Cheng, Andrew) (Filed on 7/8/2005) (Entered: 07/08/2005)
48 STIPULATION Joint Stipulation and [Proposed] Order by United States of America, Alfert Ludwigs. (Cheng, Andrew) (Filed on 7/19/2005) (Entered: 07/19/2005)
49 MOTION to Stay Federal Defendant's Notice of Motion and Motion for Stay of Action Because of Pending Supreme Court Decision filed by United States of America. Motion Hearing set for 8/30/2005 09:00 AM in Courtroom E, 15th Floor, San Francisco. (Cheng, Andrew) (Filed on 7/21/2005) (Entered: 07/21/2005)
50 Declaration of Andrew Y.S. Cheng in Support of 49 MOTION to Stay Federal Defendant's Notice of Motion and Motion for Stay of Action Because of Pending Supreme Court Decision filed byUnited States of America. (Attachments: # 1 # 2 # 3 Exhibit)(Related document(s)49) (Cheng, Andrew) (Filed on 7/21/2005) (Entered: 07/21/2005)
51 Proposed Order re 49 MOTION to Stay Federal Defendant's Notice of Motion and Motion for Stay of Action Because of Pending Supreme Court Decision by United States of America. (Cheng, Andrew) (Filed on 7/21/2005) (Entered: 07/21/2005)
52 STIPULATION AND ORDER as modified. Signed by Magistrate Judge Elizabeth D. Laporte on July 26, 2005. (edllc1, COURT STAFF) (Filed on 7/26/2005) (Entered: 07/26/2005)
53 Memorandum in Opposition re 49 MOTION to Stay Federal Defendant's Notice of Motion and Motion for Stay of Action Because of Pending Supreme Court Decision filed byTsungai Tungwarara. (Sloss, Robert) (Filed on 8/9/2005) (Entered: 08/09/2005)
54 Memorandum in Opposition re 44 MOTION for Summary Judgment Defendant Alfert Ludwigs' Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities in Support of Motion filed byTsungai Tungwarara. (Harper, Patrice) (Filed on 8/12/2005) (Entered: 08/12/2005)
55 Declaration of Patrice N. Harper in Support of 54 Memorandum in Opposition, filed byTsungai Tungwarara. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13)(Related document(s)54) (Harper, Patrice) (Filed on 8/12/2005) (Entered: 08/12/2005)
56 Reply Memorandum Federal Defendants' Reply Brief in Support of Motion to Stay filed byUnited States of America. (Cheng, Andrew) (Filed on 8/16/2005) (Entered: 08/16/2005)
57 REPLY DECLARATION of Andrew Y.S. Cheng in Support of Federal Defendants' Motion for Stay of Action Filed byUnited States of America. (Cheng, Andrew) (Filed on 8/16/2005) Modified on 8/23/2005 (tn, COURT STAFF).

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08/26/2005 08/26/2005
08/30/2005 09/01/2005 09/13/2005
09/14/2005 09/20/2005 10/13/2005 10/17/2005 10/19/2005 10/20/2005 10/24/2005

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(Entered: 08/16/2005)
58 Reply Memorandum Reply Brief in Support of Alfert Ludwigs' Motion for Summary Judgment filed byUnited States of America. (Cheng, Andrew) (Filed on 8/26/2005) (Entered: 08/26/2005)
59 Declaration of Andrew Y.S. Cheng in Support of 58 Reply Memorandum Reply Declaration of Andrew Y.S. Cheng in Support of Alfert Ludwigs' Motion for Summary Judgment filed byUnited States of America. (Attachments: # 1 Exhibit A through D)(Related document(s)58) (Cheng, Andrew) (Filed on 8/26/2005) (Entered: 08/26/2005)
60 Minute Entry: Hearing held on 8/30/2005 before Elizabeth D. Laporte re Federal Defendant's Motion for Stay of Action 49.(Court Reporter Peppina Thompson) (lh, COURT STAFF) (Date Filed: 8/30/2005) (Entered: 08/30/2005)
61 ORDER by Magistrate Judge Elizabeth D. Laporte denying 49 Motion to Stay without prejudice (edllc1, COURT STAFF) (Filed on 9/1/2005) (Entered: 09/01/2005)
62 EXHIBITS re 54 Memorandum in Opposition,, 55 Declaration in Support, AMENDED Exhibit #10 to Harper Declaration in Opposition to Ludwig's Motion for Summary Judgment [includes p. 4] filed byTsungai Tungwarara. (Related document(s)54, 55) (Schoenberg, Anthony) (Filed on 9/13/2005) (Entered: 09/13/2005)
63 Minute Entry: Hearing held on 9/13/2005 before Elizabeth D. Laporte on Defendant Alfert Ludwigs' Motion for Summary Judgment 44. (Court Reporter Joan Columbini) (lh, COURT STAFF) (Date Filed: 9/14/2005) (Entered: 09/14/2005)
64 Letter from Andrew Y.S. Cheng. (Cheng, Andrew) (Filed on 9/20/2005) (Entered: 09/20/2005)
65 ORDER by Magistrate Judge Elizabeth D. Laporte granting 44 Motion for Summary Judgment (edllc2, COURT STAFF) (Filed on 10/13/2005) (Entered: 10/13/2005)
66 STIPULATION Joint Stipulation and [Proposed] Order by United States of America. (Cheng, Andrew) (Filed on 10/17/2005) (Entered: 10/17/2005)
67 ORDER RESCHEDULING THE NOVEMBER 22, 2005, FURTHER SETTLEMENT CONFERENCE TONOVEMBER 21, 2005, AT 10:00 A.M.. Signed by Judge Maria-Elena James on 10/19/2005. (mejlc2, COURT STAFF) (Filed on 10/19/2005) (Entered: 10/19/2005)
68 STIPULATION Revised Joint Stipulation and [Proposed] Order by United States of America. (Cheng, Andrew) (Filed on 10/20/2005) (Entered: 10/20/2005)
69 ***FILED IN ERROR. PLEASE SEE DOCKET #70***
STIPULATION AND ORDER. Signed by Magistrate Judge Elizabeth D. Laporte on October 24, 2005. (edllc1, COURT STAFF) (Filed on 10/24/2005) Modified on 10/24/2005 (edllc1, COURT STAFF). (Entered: 10/24/2005)

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10/24/2005 11/08/2005 01/03/2006 01/03/2006
01/03/2006 01/03/2006 01/04/2006 01/20/2006 01/24/2006 01/24/2006

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70 STIPULATION AND ORDER. Signed by Magistrate Judge Elizabeth D. Laporte on October 24, 2005. (edllc1, COURT STAFF) (Filed on 10/24/2005) CORRECTION OF DOCKET # 69 (Entered: 10/24/2005)
71 LETTER from Assistant U.S. Attorney Andrew Y.S. Cheng, dated 11/8/05 to Mag. Judge James regarding continuation of settlement conference until after the Court's decision on the motion for summary judgment scheduled for 11/21/05 at 10:00 a.m.. (tn, COURT STAFF) (Filed on 11/8/2005) Additional attachment(s) added on 11/14/2005 (tn, COURT STAFF). (Entered: 11/10/2005)
72 MOTION for Summary Judgment Federal Defendant's Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities in Support of Motion filed by United States of America. Motion Hearing set for 2/7/2006 09:00 AM in Courtroom E, 15th Floor, San Francisco. (Cheng, Andrew) (Filed on 1/3/2006) (Entered: 01/03/2006)
73 Declaration of Andrew Y.S. Cheng in Support of 72 MOTION for Summary Judgment Federal Defendant's Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities in Support of Motion filed byUnited States of America. (Attachments: # 1 Exhibit A# 2 Exhibit B - C# 3 Exhibit D - G# 4 Exhibit H - I)(Related document(s)72) (Cheng, Andrew) (Filed on 1/3/2006) (Entered: 01/03/2006)
74 Declaration of John Frederick Ho in Support of 72 MOTION for Summary Judgment Federal Defendant's Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities in Support of Motion filed byUnited States of America. (Related document(s)72) (Cheng, Andrew) (Filed on 1/3/2006) (Entered: 01/03/2006)
75 Proposed Order re 72 MOTION for Summary Judgment Federal Defendant's Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities in Support of Motion [Proposed] Order Granting Motion for Summary Judgment by United States of America. (Cheng, Andrew) (Filed on 1/3/2006) (Entered: 01/03/2006)
76 RE-NOTICE of Motion Hearing re 72 to 2/14/06 at 9:00 a.m. Filed by United States of America...Federal Defendant's Amended Notice of Motion for Summary Judgment (Cheng, Andrew)...(Filed on 1/4/2006) Modified on 1/6/2006 (tn, COURT STAFF). (Entered: 01/04/2006)
77 NOTICE by United States of America of Association of Counsel (Dowling, Katherine) (Filed on 1/20/2006) (Entered: 01/20/2006)
78 Memorandum in Opposition re 72 MOTION for Summary Judgment Federal Defendant's Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities in Support of Motion : Memorandum of Points and Authorities filed byTsungai Tungwarara. (Schoenberg, Anthony) (Filed on 1/24/2006) (Entered: 01/24/2006)
79 Declaration of Anthony P. Schoenberg in Support of Plaintiff's Opposition to Federal Defendant's Motion for Summary Judgment filed byTsungai Tungwarara. (Attachments: # 1 Exhibit Exhibit A (Tungwarara Deposition)# 2 Exhibit Exhibit B (Virimayi Tungwarara Deposition)# 3 Exhibit Exhibit C (Rutendo Tungwarara Deposition)# 4 Exhibit Exhibit D (Brown Deposition)# 5

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02/14/2006 02/14/2006

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Exhibit Exhibit E (Ludwigs Deposition)# 6 Exhibit Exhibit F (Aron Deposition)# 7 Exhibit Exhibit G (Order - Doc 65)# 8 Exhibit Exhibit H (Ramirez Deposition)# 9 Exhibit Exhibit I (LinaresDeposition)# 10 Exhibit Exhibit J (Lau Deposition)# 11 Exhibit Exhibit K (Alcantar Deposition)# 12 Exhibit Exhibit L (Inspector's Guide - Doc 55 pp3-4)# 13 Exhibit Exhibit M (Humanizing Immigration... - Doc 55 p2)# 14 Exhibit Exhibit N (Memo for District Directors 09-29-00))(Schoenberg, Anthony) (Filed on 1/24/2006) (Entered: 01/24/2006)
80 Proposed Order re 78 Memorandum in Opposition, Denying Defendants' Motion for Summary Judgment 72 by Tsungai Tungwarara. (Schoenberg, Anthony) (Filed on 1/24/2006) (Entered: 01/24/2006)
81 Reply Memorandum Federal Defendant's Reply Brief in Support of Motion for Summary Judgment filed byUnited States of America. (Cheng, Andrew) (Filed on 1/31/2006) (Entered: 01/31/2006)
82 Declaration of Andrew Y.S. Cheng in Support of 81 Reply Memorandum Reply Declaration of Andrew Y.S. Cheng in Support of Federal Defendant's Motion for Summary Judgment filed byUnited States of America. (Attachments: # 1 Exhibit A# 2 Exhibit B - C# 3 Exhibit D - E# 4 Exhibit F - G)(Related document(s)81) (Cheng, Andrew) (Filed on 1/31/2006) (Entered: 01/31/2006)
83 EX-PARTE MOTION Seeking Court's Approval to File Additional Authority. Filed by Federal Defendant United States of America. (Attachments: # 1 Exhibit A)(Cheng, Andrew)...(Filed on 2/8/2006) Modified on 2/13/2006 (tn, COURT STAFF). (Entered: 02/08/2006)
84 STIPULATION Joint Stipulation and [Proposed] Order by United States of America. (Cheng, Andrew) (Filed on 2/9/2006) (Entered: 02/09/2006)
85 ORDER granting Defendant's ex parte motion seeking Court's approval to file additional authority. Signed by Magistrate Judge Elizabeth D. Laporte on February 13, 2006. (edllc1, COURT STAFF) (Filed on 2/13/2006) (Entered: 02/13/2006)
86 Ex Parte Application re 79 Declaration in Support,,, Ex Parte Application Seeking Court's Approval to File Supplemental Declaration filed by Tsungai Tungwarara. Motion Hearing set for 2/14/2006 09:00 AM in Courtroom E, 15th Floor, San Francisco. (Attachments: # 1 Exhibit 1: Supplemental Declaration of Anthony P. Schoenberg in Opposition to Federal Defendants' Motion for Summary Judgment# 2 Exhibit A to Supplemental Declaration of Anthony P. Schoenberg# 3 Exhibit B to Supplemental Declaration of Anthony P. Schoenberg# 4 Exhibit C to Supplemental Declaration of Anthony P. Schoenberg# 5 Proposed Order Proposed Order Granting ex Parte Motion Seeking Court's Approval to File Supplemental Declaration)(Schoenberg, Anthony) (Filed on 2/13/2006) (Entered: 02/13/2006)
87 NOTICE by United States of America Defendant's Ex Parte Motion Seeking Court's Approval to File Additional Deposition Testimony of Lamont Hicks (Cheng, Andrew) (Filed on 2/14/2006) (Entered: 02/14/2006)
88 Reply Memorandum Reply Declaration of Andrew Y.S. Cheng in Support of Federal Defendant's Motion for Summary Judgment filed byUnited States of America. (Attachments: # 1 Exhibit A)(Cheng, Andrew) (Filed on 2/14/2006)

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02/14/2006
02/14/2006
02/15/2006 02/15/2006 02/17/2006 02/21/2006 02/21/2006 02/23/2006 02/24/2006 02/27/2006 03/03/2006 03/03/2006

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(Entered: 02/14/2006)
89 Minute Entry: Hearing held on 2/14/2006 before Elizabeth D. Laporte re Defendant's Motion for Summary Judgment 72. Court sets further briefing schedule. Plaintiff's Ex Parte Application to File Supplemental Declaration 86 Granted. Matter referred for a settlement conference to be completed by 3/17/06. (Court Reporter Juanita Gonzalez) (lh, COURT STAFF) (Date Filed: 2/14/2006) (Entered: 02/14/2006)
90 STIPULATION AND ORDER re 84. Last day to file all pretrial papers is 3/17/2006. Last day to file oppositions is 3/22/2006. Parties are referred for a final settlement conference to occur before 3/17/2006. Pretrial Conference set for 3/31/2006 01:30 PM. Bench Trial set for 4/10/2006 in Courtroom E, 15th Floor, San Francisco.Signed by Judge Elizabeth D. Laporte on 2/14/06. (lh, COURT STAFF) (Filed on 2/14/2006) (Entered: 02/14/2006)
91 ORDER by Magistrate Judge Elizabeth D. Laporte granting 86 Ex Parte Application to file supplemental declaration (edllc1, COURT STAFF) (Filed on 2/15/2006) (Entered: 02/15/2006)
92 ORDER granting Defendant's ex parte motion to file additional deposition testimony. Signed by Magistrate Judge Elizabeth D. Laporte on February 15, 2006. (edllc1, COURT STAFF) (Filed on 2/15/2006) (Entered: 02/15/2006)
93 Declaration of Andrew Y.S. Cheng Supplemental Declaration of Andrew Y.S. Cheng in Support of Federal Defendant's Motion for Summary Judgment filed byUnited States of America. (Attachments: # 1 Exhibit A)(Cheng, Andrew) (Filed on 2/17/2006) (Entered: 02/17/2006)
94 Brief re 89 Motion Hearing, Plaintiff's Supplemental Brief Regarding Federal Defendant's Motion for Summary Judgment filed byTsungai Tungwarara. (Related document(s)89) (Schoenberg, Anthony) (Filed on 2/21/2006) (Entered: 02/21/2006)
95 REPORTER'S TRANSCRIPT of Proceedings Held on 2/14/2006 before Mag. Judge Elizabeth D. Laporte - [Court Reporter: Juanita Gonzalez]. (tn, COURT STAFF) (Filed on 2/21/2006) (Entered: 02/22/2006)
96 CLERK'S NOTICE Settlement Conference set for 3/2/2006 02:30 PM. (Attachments: # 1) (wdblc2, COURT STAFF) (Filed on 2/23/2006) (Entered: 02/23/2006)
CASE REFERRED to Magistrate Judge Wayne D. Brazil for Settlement (wh, COURT STAFF) (Filed on 2/24/2006) (Entered: 02/24/2006)
97 Reply Memorandum Federal Defendant's Supplemental Brief in Support of Motion for Summary Judgment filed byUnited States of America. (Cheng, Andrew) (Filed on 2/27/2006) (Entered: 02/27/2006)
98 Minute Entry: Settlement Conference (Date Filed: 3/2/2006). (Not reported.) (wdblc1, COURT STAFF) (Date Filed: 3/2/2006) (Entered: 03/03/2006)
99 Plaintiff's SUPPLEMENTAL REPLY BRIEF in Opposition to Federal Defendant's Motion for Summary Judgment Filed by Plaintiff Tsungai Tungwarara. (Schoenberg, Anthony) (Filed on 3/3/2006)... Modified on 3/8/2006

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03/06/2006 03/07/2006 04/12/2006 04/12/2006 06/21/2006

(tn, COURT STAFF). (Entered: 03/03/2006)
100 NOTICE of Settlement by United States of America (Cheng, Andrew) (Filed on 3/6/2006) (Entered: 03/06/2006)
101 ORDER continuing trial date in light of reported settlement. Signed by Magistrate Judge Elizabeth D. Laporte on March 7, 2006. (edllc1, COURT STAFF) (Filed on 3/7/2006) (Entered: 03/07/2006)
102 STIPULATION and Agreement of Compromise and Settlement and [Proposed] Order by United States of America. (Cheng, Andrew) (Filed on 4/12/2006) (Entered: 04/12/2006)
103 STIPULATION and agreement of compromise and settlement AND ORDER. Signed by Magistrate Judge Elizabeth D. Laporte on April 12, 2006. (edllc1, COURT STAFF) (Filed on 4/12/2006) (Entered: 04/12/2006)
104 STIPULATION of Dismissal by Tsungai Tungwarara. (Schoenberg, Anthony) (Filed on 6/21/2006) (Entered: 06/21/2006)

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