IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE

Enrique BAUTISTA and

)

Juan Carlos ANGEL-LOPEZ,

)

individually, and on behalf of all

)

people similarly situated;

)

)

Plaintiffs,

)

)

v.

)

)

TENNESSEE DEPARTMENT OF

)

SAFETY; David MITCHELL, individually and )

in his official capacity as Commissioner of

)

the Tennessee Department of Safety; Michael )

HOGAN, individually and in his official

)

capacity as Director of Driver License Issuance )

in the Tennessee Department of Safety; Tiffany )

TAYLOR, individually and in her official

)

capacity as Deputy Director of Driver License )

Issuance in the Tennessee Department of

)

Safety; George DITTFURTH, individually and )

in his official capacity as Supervisor of the

)

Intelligence Unit in the Criminal Investigation )

Division of the Tennessee Department of Safety; )

Saunda HARRIS, individually and in her

)

official capacity as Supervisor of the Williamson )

County Driver License Station in the Tennessee )

Department of Safety; and Tennessee

)

Department of Safety Employees Kim

)

DRAPER, Cynthia McCULLOUGH, Rick

)

BLACKBURN, and other Unknown Employees )

of the Tennessee Department of Safety, in their )

official and individual capacities,

)

)

Defendants.

)

Case No. ___________

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COMPLAINT Introduction 1. This is a civil rights class action in three Counts. The suit challenges the practice of the Tennessee Department of Safety of confiscating the “green card” (officially designated as I-551 by the U.S. Department of Homeland Security) of Legal Permanent Residents and other documentation of those legally present in the United States without any reasonable basis to suspect or believe that they are counterfeit or otherwise invalid, and seizing and retaining them for unreasonable periods of time far beyond that necessary to verify the validity of same. 2. This case involves two plaintiffs, both of whom are legal permanent residents, whose green cards were wrongly confiscated by the Tennessee Department of Safety while they were trying to obtain a driver license or a driver license renewal. Both cards were retained by the Tennessee Department of Safety for an extended period of time. Such confiscation and retention can have serious consequences. For example, as a result of not having his green card, Plaintiff Angel-Lopez was prevented from (a) being with his wife while she was in the hospital giving birth to their child, (b) cashing his paychecks, and (c) visiting with his family in Mexico over the Christmas holidays since he could reenter the United States without his green card. 3. In Farm Labor Organizing Committee, et al, v. The Ohio State Highway Patrol, 308 F. 3d 523 (6th Cir., 2002), the Sixth Circuit Court of Appeals stated: “The [district] court concluded, however, that Trooper Kiefer’s failure to return the green cards changed the nature of the seizure from a brief investigative detention that could be based upon mere reasonable suspicion to a full seizure that could be justified only by probable
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cause.” Id. at 543. Further, the court noted that “[g]reen cards play a significant role in the daily lives of [lawful permanent resident aliens].”(cite omitted) Id. at 546. The Court went on to say that the four-day detention of the green cards in that case constituted detention that was excessive in light of “the law enforcement purposes to be served . . . as well as the time reasonably needed to effectuate those purposes.” Id.
4. Plaintiffs assert that if a four-day detention of valid green cards was too long under the Farm Labor case cited above, certainly the confiscation of Plaintiffs’ green cards of more than two months goes beyond any reasonable time frame and violates Plaintiffs’ fourth amendment right to illegal seizure. The Tennessee Department of Safety has over reached its power relative to legal permanent residents by confiscating valid green cards.
5. This policy is part of a disturbing trend and pattern of discriminatory treatment of foreign-born residents of Tennessee who are legally present in the United States. Until very recently, pursuant to a law which the Tennessee Department of Safety wrote and pushed through the Legislature (Public Chapter 194, signed into law on May 21, 2007 — see Exhibit D), the State of Tennessee refused to issue driver licenses to persons legally present in the United States because the projected length of their legal presence could not be proven to be one (1) year or longer. This affected thousands of persons legally present in the United States whose Employment Authorization Cards or visas (or authorized stays pursuant thereto) are not issued in multi-year segments and include such persons as those who have been given Temporary Protected Status (TPS), applicants for adjustment to legal permanent resident status, B-1 or B-2 visitors for business or pleasure (including tourists), K-1 visa holders who are legally present for ninety (90) days, L-2 visa holders,
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certain J-2 visa holders, students who are authorized to be present for the “duration of status” as full-time students, F-1 students in an Optional Training Program, M-1 students seeking practical training after completing their studies, applicants for asylum, asylees, refugees, temporary workers in the United States for ten months or less (H-2A agricultural workers, H-2B temporary workers), and other similar foreign-born persons legally present in the United States.
6. This discriminatory abuse and harassment threatens to spread even further pursuant to another statute enacted on May 15, 2007 (Public Chapter 165), which authorized the Tennessee Highway Patrol, hereafter THP (part of the Tennessee Department of Safety), to enter into a memorandum of understanding with the Department of Homeland Security, hereafter DHS, to allow training of THP officers in immigration law. This would presumably lead to increased frequency of traffic stops and confiscation and detention of legally-issued federal identification documents not familiar to the individual trooper who may be conducting the traffic stop. According to published reports, a “287(g) contract” has since been executed between THP and DHS, which presumably delegates certain enforcement functions of Immigration and Customs Enforcement (ICE) to DHS.
7. Safety Officials, including Commissioner David Mitchell and THP Colonel Mike Walker, have acknowledged in previous media interviews that the Highway Patrol currently lacks the communications infrastructure necessary to allow federal officials to securely install immigration database software and computers which would enable state officials to verify in a timely manner the validity of federally-issued identification
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documents such as I-551’s (green cards) and Employment Authorization Cards (work permits).
8. Count I is brought pursuant to 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. § 2201 et seq. for violations of the First and the Fourth Amendments to the United States Constitution and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In Count I, plaintiffs seek declaratory and injunctive relief and money damages for themselves and for the plaintiff class. Injunctive Relief is authorized by Federal Rule of Civil Procedure 65.
9. Count II is brought pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., as amended, and 28 CFR § 32.101 et seq., the administrative regulations of the United States Department of Justice effectuating Title VI. In this Count, plaintiffs seek declaratory and injunctive relief and money damages for themselves and for the plaintiff class.
10. In Count III, plaintiffs invoke the supplemental jurisdiction of this Court pursuant to 28 U.S.C. § 1376, and raise claims under state constitutional and common law. In Count III, plaintiffs seek money damages for themselves and for the plaintiff class.
Jurisdiction 11. The jurisdiction of the Court in Counts I and II is founded on 28 U.S.C. §§ 1331 and 1343(a)(3) and (4) and 42 U.S.C. § 2000d-1. Jurisdiction in Count III is based on this Court’s supplemental jurisdiction pursuant to 28 U.S.C. § 1367. 12. This court has personal jurisdiction pursuant to 28 U.S.C. § 1391(e) over all named defendants, all of whom are located in the Middle District of Tennessee.
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13. Venue is proper in this Court, pursuant to 28 U.S.C. §§ 1391(b)(2) and 1391(e), because defendant Tennessee Department of Safety maintains an office, and all other individual defendants reside, in this district.
Standing 14. Plaintiffs Enrique Bautista and Juan Carlos Angel-Lopez both have standing to sue under Article III due to the confiscation of their valid green cards. By leaving the Department of Safety without their valid green card, and for every day thereafter until the return of their respective green cards months later, Mr. Bautista and Mr. Angel-Lopez were forced each day by the Tennessee Department of Safety and its employees to violate 8 U.S.C. §1304(e) which states:
Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.
Parties 15. Plaintiffs Enrique Bautista and Juan Carlos Angel-Lopez are legal permanent residents of the United States. Mr. Bautista and Mr. Angel-Lopez are both Hispanic. Defendants seized the lawfully issued I-551 cards of Mr. Bautista and Mr. Angel-Lopez during the application process for either a driver license or a driver license renewal at the Franklin, Tennessee Driver License Station. Mr. Bautista and Mr. Angel-Lopez travel in and through Tennessee frequently. 16. Defendant Tennessee Department of Safety is a state law-enforcement agency. Pursuant to Title 55, Chapter 50 of the Tennessee Code Annotated, the Tennessee
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Department of Safety is empowered to enforce the laws of the State of Tennessee relative to issuance and regulation of driver’s licenses in the State of Tennessee. Pursuant to this authority, the Tennessee Department of Safety promulgated General Order 544 relative to fraudulent document detection and confiscation, attached hereto and incorporated herein by reference as Exhibit A. The Tennessee Department of Safety is a recipient of federal funds. The Tennessee Department of Safety is a defendant in Count II only, pursuant to 42 U.S.C. § 2000d-7.
17. Defendant David Mitchell is the Commissioner of the Tennessee Department of Safety. Defendant Mitchell is sued in his official capacity for injunctive relief and in his individual capacity for money damages. Defendant Mitchell is authorized to make policy for the Defendant Tennessee Department of Safety and is the successor to Fred Phillips, Commissioner, who signed Exhibit A, and therefore possesses the authority to alter the provisions of Exhibit A.
18. Defendant Michael Hogan is the Director of the Driver License Issuance Division of the Tennessee Department of Safety. Defendant Moore is sued in his official capacity for injunctive relief and in her individual capacity for money damages. Defendant Moore is authorized to make policy for the Driver License Issuance Division of the Defendant Tennessee Department of Safety. The Driver License Issuance Division is responsible for seizing and confiscating certain documents presented to the Tennessee Department of Safety for the purpose of obtaining a Tennessee driver license.
19. Defendant Tiffany Taylor is the Deputy Director of the Driver License Issuance Division of the Tennessee Department of Safety. Defendant Taylor is sued in her official capacity for injunctive relief and in her individual capacity for money
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damages. Defendant Taylor is authorized to make policy for the Driver License Issuance Division of the Defendant Tennessee Department of Safety. The Driver License Issuance Division is responsible for seizing and confiscating certain documents presented to the Tennessee Department of Safety for the purpose of obtaining a Tennessee driver license.
20. Defendant George Dittfurth is a Captain with the Driver License Divison of the Tennessee Highway Patrol. Defendant Dittfurth is sued in his individual capacity for money damages and in his official capacity for injunctive relief. Defendant Dittfurth is authorized to make policy for the Driver License Division of the Tennessee Department of Safety. He retained and either had or has had possession of one or both of the green card documents at issue in this case for an extended and unreasonable period of time.
21. Defendant Kim Draper is an employee of the Tennessee Department of Safety Franklin Office, and is being sued in her individual capacity for damages and her official capacity for injunctive relief.
22. Defendant Saundra Harris is a supervisor in the Tennessee Department of Safety Franklin Office and is being sued in her individual capacity for damages and her official capacity for injunctive relief.
23. Defendant Cynthia McCullough is an employee of the Tennessee Department of Safety Franklin Office and is being sued in her individual capacity for damages and her official capacity for injunctive relief.
24. Defendant Rick Blackburn is an employee of the Tennessee Department of Safety Franklin Office and is being sued in his individual capacity for damages and his official capacity for injunctive relief.
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25. Defendants Unnamed Employees of the Tennessee Department of Safety are employees or officers in the Tennessee Department of Safety who have either played a role in promulgating the illegal policy as pronounced in Exhibit A or who have played a role in confiscating the driver licenses and legal documentation, including but not limited to green cards, of foreign-born individuals who are legally present in the United States and who have had encounters with the Tennessee Department of Safety. While their identities are not currently known to Plaintiffs, their identities are well known to the Defendants in this matter. Defendants Unnamed Employees of the Tennessee Department of Safety are named in both their official and individual capacities.
26. At all times pertinent hereto, all defendants were acting under color of state law and their conduct constituted state action.
27. Plaintiffs Enrique Batista and Juan Carlos Angel-Lopez are suing David Mitchell, Michael Hogan, Tiffany Taylor, Kim Draper, Saundra Harris, Cynthia McCullough, Rick Blackburn, George Dittfurth, and other Unknown Employees of the Tennessee Department of Safety for damages in their individual capacities. Suit against state officials acting in their official capacities is a suit against the state, and thus such suits seeking damages are barred in federal courts by the Eleventh Amendment, but federal court may entertain suit seeking damages where state officials are sued in their individual capacities. Maryland Committee Against Gun Ban v. Simms, 835 F.Supp. 854. (Md. 1993).
Class Allegations 28. Plaintiffs bring this Complaint as a class action under Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs seek to represent, pursuant to Rules 23(b)(2) and
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23(b)(3), a class of all persons legally present in the United States and who visit the Tennessee Department of Safety and attempt to procure identification and driver license documents therefrom, and who, because of their national origin and/or race, in the past have, or in the future may have, their legal and genuine immigration documents seized by defendants.
29. All of the prerequisites to a class action as stated in Rule 23(a) are satisfied by the class:
a. Numerous individuals have had their immigration documents seized by defendants, and numerous individuals will be in the future. The class and subclass are so numerous that joinder of all members is impracticable.
b. There are questions of law and fact common to the plaintiff cases. The common questions include whether the defendants’ practices described below of (a) confiscating documents of foreign-born persons on the basis of national origin and/or race without legally sufficient cause and justification and (b) keeping the confiscated green cards for an extended period of time without just cause, any explanation, or a receipt showing the legality of the document, unconstitutionally burdens the First, Fourth, and Fourteenth Amendment rights of those whose documents are confiscated, their constitutional right to freedom of movement, and the corresponding state constitutional guarantees, and whether these practices of defendants violate Title VI of the Civil Rights Act of 1964.
c. The claims of the named plaintiffs are typical of the claims of the class: the named plaintiffs’ legal documents were confiscated and kept for an extended period of time pursuant to the practices challenged here.
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d. The named plaintiffs will fairly and adequately represent the interests of the class: they have no interests antagonistic to the class; they seek declaratory and injunctive relief and money damages on behalf of the entire class and such relief will benefit all members of the class.
e. The named Plaintiffs are represented by competent counsel, fully capable of adequately representing and protecting the interests of the class.
30. The class satisfies Rule 23(b)(2) because the defendants have engaged in a course of conduct common to all members of the class, and final declaratory and injunctive relief in favor of the plaintiff class is therefore appropriate. In addition, the class satisfies Rule 23(b)(3) because the questions of law and fact common to members of the class predominate over any questions affecting individual members and a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Factual Allegations Relative to Enrique Bautista
31. Plaintiff Enrique Bautista had a valid I-551 (commonly known and hereinafter referred to as a “green card”) and Tennessee ID card when he went to the Department of Safety in Franklin, Tennessee to try and get his driver’s license.
32. Plaintiff Bautista had been to this Department of Safety office on a previous occasion, as it had issued his Tennessee ID card, and said plaintiff had already taken and failed the driver’s license exam on a previous occasion. On the prior visit, the validity of Plaintiff’s green card was not questioned.
33. On November 15, 2007, Plaintiff Bautista returned to the Department of Safety to try again to get his driver’s license.
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34. Defendant Kim Draper met with Mr. Bautista, took his green card and Tennessee ID card to the back office for approximately 30 minutes to where Defendant Saundra Harris, the supervisor, was located.
35. Defendant Draper later returned and informed Plaintiff Bautista that the Department of Safety was confiscating both his Tennessee ID card and his green card. He was then given a copy of the Tennessee Fraudulent Document Report and related documents, attached hereto as Exhibit B, and was informed that he was not going to get his green card back, and that his driver’s license would not be issued.
36. Plaintiffs attorney received a letter dated January 24, 2008, admitting that in fact the documents presented by Plaintiff were authentic and informed plaintiff that his documents could be picked up from the Franklin Driver License station beginning January 28, 2008. See Exhibit E. The seizure and retention, therefore, constituted a continuing violation of this Plaintiff’s rights as described herein until January 28, 2008. The conduct described herein constitutes a longstanding and demonstrable policy of discrimination. Injuries to this Plaintiff as a result of the conduct of the Defendants herein continued to accrue and accumulate throughout the entire period of seizure and retention. Various injuries to this Plaintiff could have been avoided at multiple points throughout the period of seizure and retention had defendants returned this Plaintiff’s green card sooner.
37. The letter also denied Plaintiff a hearing on the matter of the seizure of the documents.
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Factual Allegations Relative to Juan Carlos Angel-Lopez
38. Plaintiff Juan Carlos Angel-Lopez had a valid green card issued by the U.S. government and driver’s license issued by the State of Tennessee. The driver’s license was set to expire on November 20, 2007.
39. On November 14, 2007, Plaintiff Angel-Lopez went to the Tennessee Department of Safety, Franklin Office, to renew his driver’s license. Defendant Rick Blackburn was working the front desk and was the first person to initially take Plaintiff Angel-Lopez’s documents to Defendant McCullough and Defendant Harris.
40. Plaintiff Angel-Lopez was then met by Defendant Cynthia McCullough, who then asked Plaintiff Angel-Lopez first for a Mexican passport, which he did not have. He was then asked for his green card, which he supplied. His green card was valid and was not set to expire for another year.
41. Plaintiff Angel-Lopez presented his existing drivers license and stated his desire to renew the same.
42. Approximately two (2) hours after his green card and driver’s license were taken, Plaintiff Angel-Lopez approached Defendant Harris, the Supervisor, and inquired about his documents. He was then given a copy of the Tennessee Fraudulent Document Report and related documents, attached hereto as Exhibit C, and was informed that he was not going to get his green card or his driver’s license back, and that his driver’s license would not be renewed.
43. Saundra Harris informed Plaintiff that he had ten (10) days during which time to write a letter stating that he wanted his green card back, or his green card would be destroyed. Plaintiff called the Tennessee Department of Safety, and was told that his
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phone call would replace the necessity for a letter. By letter dated February 21, 2008, this Plaintiff was advised that his green card could be retrieved on February 22, 2008. See Exhibit F. The seizure and retention of this Plaintiff’s green card constituted a continuing violation of this Plaintiff’s rights as described herein until February 22, 2008. The conduct described herein constitutes a longstanding and demonstrable policy of discrimination. Injuries to this Plaintiff as a result of the conduct of the Defendants herein continued to accrue and accumulate throughout the entire period of seizure and retention. Various injuries to this Plaintiff could have been avoided at multiple points throughout the period of seizure and retention had defendants returned this Plaintiff’s green card sooner.
44. As a result of the confiscation of his green card and driver’s license, Plaintiff Angel-Lopez:
a. was denied access to his wife while she was in the hospital giving birth to their child;
b. was unable to cash his paychecks; and c. had to cancel plans to go to Mexico to visit his family over the Christmas holiday since without his green card he could not re-enter the United States. General Allegations Concerning Defendants’ Conduct 45. Each Plaintiff’s green card was confiscated without reasonable suspicion that they were invalid. 46. The complained of conduct by Defendants Harris, Draper, McCullough, and Blackburn was motivated by plaintiffs’ national origin and race.
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47. Defendants Moore, Taylor, Dittfurth, and Harris either authorized or
knowingly acquiesced in the unconstitutional actions of their subordinates, and they were
deliberately indifferent to constitutional violations likely to result from serious
deficiencies in the training program of personnel who staff driver license stations
concerning the illegal confiscation and retention of federal identification documents.
48. Each Plaintiff’s green card was confiscated without receiving procedural due
process, i.e., a hearing as afforded them by Exhibit A:
a. Pursuant to General Order Number 544 of the Tennessee Department of
Safety, there is a multi-step process that must be pursued before the confiscation of
documents from an individual. First the initial examiner looks at the documents, if
unfamiliar or unsure of the validity of the document, all information should be given to
the Supervisor to make a determination as to whether or not the documents are valid.
b. Section IV, Part C outlines the procedure that the Supervisor must
follow if the validity of the documents is questioned:
1. Employing all additional training and resources available at the supervisory level to further review the document(s). The use of specialized resources or programs requires proper training, certification and/or authorization. Therefore, regardless of the type(s) of verification resources used, training, certification and/or authorization must have been completed or attained before utilizing any of the following:
a) Conducting a Social Security On-Line Verification (SSOLV) request through the computer system.
b) Conducting detailed scrutiny of the document by using black lights (UV), magnifying glasses, and other resources. This shall be done in an area not accessibly to the public in order to avoid the
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possibility of revealing certain document security features. c) Calling the specific agency that issued the document, if possible. Examples include the local immigration office contact for immigration documents, … d) Interviewing the applicant by asking specific questions about the document and/or information contained in the document. c. Neither named Plaintiff was ever interviewed or asked any questions about his green card. 49. Each defendant and the other unknown employees of the Tennessee Department of Safety acted knowingly and intentionally. Moreover, their actions were taken with recklessness or callous disregard for plaintiffs’ rights. 50. The actions of defendants in illegally confiscating and retaining plaintiffs’ federal identification documents have had a disproportionate effect on Hispanics and other persons of a different national origin and color, have penalized plaintiffs for the exercise of their constitutional right to freedom of movement in the State of Tennessee, and have hindered plaintiffs’ exercise of that right.
Injury to Plaintiffs 51. As a direct and proximate result of defendants’ conduct as stated herein, plaintiffs and the class they seek to represent have suffered humiliation, embarrassment, mental fright, and emotional distress. Plaintiffs have incurred legal fees in connection with their missing federal identification documents. In addition, defendants’ conduct has hindered plaintiffs and the class they seek to represent in freely traveling the streets and
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highways in the State of Tennessee. Defendants’ actions have had a discriminatory impact against plaintiffs and class members.
Necessity for Injunctive Relief 52. Each plaintiff presently either resides in Tennessee or has family, friends, or business interests in Tennessee and thus expects to travel Tennessee’s highways in the future when properly licensed. They wish to be free to obtain a driver license and travel to and in Tennessee and on highways in Tennessee without the confiscation of their identification documents. 53. Plaintiffs and the class they seek to represent are threatened with substantial, immediate and irreparable injury at the hands of defendants. Upon information and belief, Defendants began their practices of confiscating and retaining federal identification documents before the incidents involving the named plaintiffs, and Defendants continue to engage in the practices against the numerous members of the class. Plaintiffs will also continue in the future to suffer the ongoing effects of Defendants’ past applications of the practice to them. 54. Unless restrained by this Court, Defendants will continue their unlawful practices. Pursuant to these practices, Plaintiffs are likely in the future to have their federal identification documents illegally confiscated and retained based on national origin and/or race with or without legally sufficient cause and justification. Plaintiffs are desirous of continuing to, and will in the future when properly licensed, travel on streets and highways in Tennessee. Plaintiffs continue to be unable, even by fully conforming their conduct to all legal requirements, to avoid the confiscation and retention of their identification documents.
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55. Plaintiffs have suffered irreparable injury and, in the absence of injunctive relief, will continue to suffer irreparable injury. They have no adequate remedy at law.
COUNT I (Right to Freedom from Illegal Seizure) 56. In Farm Labor Organizing Committee, et al, v. The Ohio State Highway Patrol, 308 F. 3d 523, the court stated “that Trooper Kiefer’s failure to return the green cards changed the nature of the seizure from a brief investigative detention that could be based upon mere reasonable suspicion to a full seizure that could be justified only by probable cause.” Id. at 543. 57. Further, the court noted that “[g]reen cards’ play a significant role in the daily lives of [lawful permanent resident aliens].”(cite omitted) Id. at 546. 58. The Court went on to say of the 4 day detention of the green cards that “the facts alleged by the plaintiffs sufficiently demonstrate that the length of the detention was excessive in light of “the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.” Id. 59. The confiscation over two months by the Tennessee Department of Safety exceeds any reasonable time frame and violates Plaintiffs’ fourth amendment right to freedom from illegal seizure. 60. The Tennessee Department of Safety has over reached its power over legal permanent residents by confiscating valid green cards simply because the forms were different than what they were accustomed to seeing.
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(Interference with Freedom of Association) 61. The defendants’ actions in confiscating and retaining plaintiffs’ federal identification documents and, because of this, arbitrarily refusing to issue or reissue a driver license have been motivated by discriminatory animus and have thus deprived plaintiffs and the class they seek to represent of their right to freedom of association as guaranteed by the First Amendment to the United States Constitution.
(Denial of Equal Protection) 62. The defendants’ actions in confiscating and retaining plaintiffs’ federal identification documents and, because of this, arbitrarily refusing to issue or reissue a driver license have been motivated by discriminatory animus and constitute denial of equal protection of the laws based on plaintiffs’ national origin and/or race in violation of the Fourteenth Amendment to the United States Constitution.
(Violation of Right to Travel) 63. The defendants’ actions in confiscating and retaining plaintiffs’ federal identification documents and, because of this, arbitrarily refusing to issue or reissue a driver license have unreasonably burdened the fundamental right to travel guaranteed to plaintiffs and the class they seek to represent by Article IV, Section II of the United States Constitution.
(Violation of Freedom of Movement) 64. The defendants’ actions in confiscating and retaining plaintiffs’ federal identification documents and, because of this, arbitrarily refusing to issue or reissue a driver license have unreasonably burdened the fundamental right to freedom of
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movement guaranteed to plaintiffs and the class they seek to represent by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
COUNT II (Violation of 42 USC § 2000d et seq. and Regulations Promulgated Thereunder)
65. The Department of Safety and/or the Tennessee Highway Patrol maintains or constitutes a program or activity that receives federal financial assistance from the United States Department of Justice. Thus, it is subject to the requirements of 42 USC § 2000d et seq. and 28 CFR § 42.101 et seq. Plaintiffs are intended beneficiaries of such program or activity.
66. The selection of persons whose documents are confiscated on the basis of race and/or national origin, with or without sufficient cause or justification constitutes intentional discrimination and has a discriminatory effect and a disproportionate impact on Hispanics and other persons of color.
67. The violation of 42 USC § 2000d and 28 CFR § 42.101 et seq. as alleged above, has caused, and will cause unless this practice is enjoined by the Court, tremendous harm and public humiliation to Hispanics and other individuals of color who are stopped, detained or searched pursuant to the above practices.
68. The defendants’ actions as described herein have been motivated by discriminatory animus, have a discriminatory effect, have a disproportionate impact on Hispanics and other persons of color and constitute a violation of Title VI of the Civil Rights Act of 1964, 42 USC § 2000d et seq. and its implementing regulation at 28 CFR § 42.101 et seq.
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(Violation of 42 USC § 1983 – Against Officials in Their Individual Capacity Only) 69. Defendants included in this Sub-Count of the Complaint are only those named
in their individual capacities and are hereby sued for violations of this Sub-Count in their individual capacities only.
70. The actions by said defendants described herein are not confined to the incidents described.
71. Said officers of the Tennessee Department of Safety have committed a pattern of discrimination against the Hispanic community exemplified by the two confiscations of the representative parties and such behavior has been in clear violation of the civil rights of residents of the state of Tennessee. The two incidents described by the named plaintiffs happened two days in a row and in two different offices of the Tennessee Department of Safety, clearly shows a pattern of discrimination.
72. To have a §1983 claim, the plaintiff must allege a (1) deprivation of a federal right, and (2) that the person who deprived him of that right acted under color of state law.
a. For a legal permanent resident, like said plaintiffs, it is a crime, punishable by incarceration and or a fine to be anywhere at anytime without their green card. By confiscating valid green cards, the Tennessee Department of Safety has placed the two named plaintiffs, as well as the class they seek to represent at risk of violating 8 U.S.C. §1304(e).
b. Under Tennessee Law, citizens and legal permanent residents are eligible to get their drivers license as long as they can show documentation as to their
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status. Plaintiffs had valid documentation, their green card, when they entered into the office of the Tennessee Department of Safety in Franklin.
c. All named defendants are employees of the Tennessee Department of Safety, an agency of the State of Tennessee, and thus are actors under the color of state law.
d. Such behavior, confiscating valid green cards is clearly against established law and as such, defendants should not be eligible for qualified immunity.
COUNT III (Supplemental State Claims) 73. Defendants included in this Count are those named in their individual capacities and are hereby sued for violations of this Count in their individual capacities only. 74. Said Defendants have acted recklessly, oppressively and willfully, with a design to oppress and injure Plaintiffs and the class they seek to represent. 75. By not receiving any hearing as required by Exhibit A, Plaintiffs were denied procedural due process, as guaranteed by the Tennessee Constitution, Article I, Section 8. 76. By being deprived of their identification documents, Plaintiffs were denied their freedom from illegal seizures, as guaranteed by the Tennessee Constitution, Article I, Section 7. 77. By being deprived of their identification documents as a result of discriminatory animus, plaintiffs and the class they seek to represent have been deprived of the equal protection of the laws based on plaintiffs’ national origin or race in violation of the Tennessee Constitution, Article I, Section 8 and Article XI, Section 8.
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Damages 78. Plaintiffs are suing Defendants Kim Draper, Saundra Harris, Cynthia McCullough, Rick Blackburn and George Dittfurth in their individual capacities and prays for damages including legal fees necessitated by the confiscation of plaintiffs’ green card, loss of income from employment when visiting the Franklin Drivers License Office and attorney visits, gas money for all of his travels, and punitive damages for the unreasonable time that it has taken the Tennessee Department of Safety to validate Mr. Bautista’s green card and return it to him, and for not returning Plaintiff Angel-Lopez’s valid green card and driver’s license. Plaintiffs also request attorney’s fees under the EAJA, 28 U.S.C. §2412 (d)(1)(A), and grant any other and further relief as the court may deem just and proper.
Injunctive Relief 79. Plaintiffs are suing all Defendants for injunctive relief to prevent the Tennessee Department of Safety and its employees from confiscating any and all legal documentation, on behalf of the class of all Hispanic residents of Tennessee who are legally present in the United States and who risk confiscation of their federal identification documents as a result of encounters with the Tennessee Department of Safety.
Prayer for Relief WHEREFORE, Plaintiffs request as follows: A. A declaratory judgment that Defendants’ practices of confiscating and retaining federal identification documents with or without legally sufficient cause or
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justification on the basis of national origin and/or race violates the rights of Plaintiff class members, guaranteed by the First Amendment, to freedom of association.
B. A declaratory judgment that Defendants’ practice of confiscating and retaining federal identification documents with or without legally sufficient cause or justification on the basis of national origin and/or race violates the rights of plaintiff class members, guaranteed by the Fourth Amendment, to be free from unreasonable searches and seizures;
C. A declaratory judgment that Defendants’ practice of confiscating and retaining federal identification documents with or without legally sufficient cause or justification on the basis of national origin and/or race violates the right of plaintiff class members to Equal Protection of the laws under the Fourteenth Amendment;
D. A declaratory judgment that Defendants’ practice of confiscating and retaining federal identification documents with or without legally sufficient cause or justification on the basis of national origin and/or race violates the right of plaintiff class members to freedom of movement as secured by the Due Process Clause of the Fourteenth Amendment;
E. A declaratory judgment that Defendants’ practice of confiscating and retaining federal identification documents with or without legally sufficient cause or justification on the basis of national origin and/or race violates the right of plaintiff class members to freedom of travel as secured by Article IV, Section II of the United States Constitution;
F. A declaratory judgment that Defendants’ practice of confiscating and retaining federal identification documents with or without legally sufficient cause or justification
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on the basis of national origin and/or race violates 42 USC § 1983 and 42 USC § 2000d and their implementing regulations;
G. A preliminary, and then a permanent injunction barring all defendants and their officers, agents, servants, employees and attorneys and those persons in active concert or participation with them from confiscating and retaining federal identification documents on the basis of race and/or national origin, with or without legally sufficient cause or justification;
H. Reasonable and appropriate compensatory damages for the named plaintiffs and each plaintiff class member for the unlawful confiscation and retention of federal identification documents;
I. Punitive damages for the named plaintiffs and each class member in an amount to be ascertained at trial;
J. Plaintiffs’ costs, expenses, and reasonable attorneys’ fees pursuant to 42 USC § 1988 and/or 28 U.S.C. §2412 (d)(1)(A); and
K. Such other and further relief as this Court deems necessary and proper.

Respectf

ully submitted,
____________________________________ Elliott Ozment, Attorney for Plaintiffs Law Offices of Elliott Ozment 1214 Murfreesboro Pike Nashville, TN 37217 (615) 321-8888 (Office) (615) 321-5230 (Fax) E-Mail: elliott@ozmentlaw.com TN BPR # 4331

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 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

ENRIQUE BAUTISTA, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

TENNESSEE DEPARTMENT OF SAFETY, )

et al.,

)

)

Defendants.

)

NO. 3:08-1125 Judge Nixon/Bryant
CLASS ACTION

O R D E R

The plaintiffs have filed a Notice of Stipulated Voluntary Dismissal of this case (Docket Entry No. 10). The followup telephone case management conference previously set at 10:30 a.m. on September 1, 2009 (Docket Entry No. 7) is herebyCANCELED.
There is nothing remaining to be done in this matter by the undersigned Magistrate Judge. Therefore, the Clerk is directed to return the file to the Senior District Judge for his consideration of the notice of dismissal.
It is so ORDERED.

s/ John S. Bryant JOHN S. BRYANT United States Magistrate Judge

Case 3:08-cv-01125 Document 11 Filed 03/26/09 Page 1 of 1 PageID #: 145

Case 3:08-cv-01125 Document 12 Filed 03/26/09 Page 1 of 1 PageID #: 146

 
 CASE−CLOSED,CASE−MANAGER−BRYANT
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:08−cv−01125

Bautista et al v. Tennessee Department of Safety et al Assigned to: Senior Judge John T. Nixon Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/24/2008 Date Terminated: 03/26/2009 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Enrique Bautista

represented by Harry Elliott Ozment Law Offices of Elliott Ozment 1214 Murfreesboro Pike Nashville, TN 37217 (615) 321−8888 Email: elliott@ozmentlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Juan Carlos Angel−Lopez Individually, and on behalf of all people similarly situated

represented by Harry Elliott Ozment (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Tennessee Department of Safety

represented by Dawn Marie Jordan Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202 (615) 741−3491 Email: dawn.jordan@ag.tn.gov LEAD ATTORNEY

Defendant
David Mitchell Individually and in his official capacity as Commissioner of the Tennessee Department of Dafety

represented by Dawn Marie Jordan (See above for address) LEAD ATTORNEY

Defendant
Michael Hogan Individually and in his official capacity as Director of Driver License Issuance in the Tennessee Department of Safety

represented by Dawn Marie Jordan (See above for address) LEAD ATTORNEY

Defendant
Tiffany Taylor Individually and in her official capacity as Deputy Director of Driver License Issuance in the Tennessee Department of Safety

represented by Dawn Marie Jordan (See above for address) LEAD ATTORNEY

Defendant represented by
Case: 3:08-cv-1125 As of: 03/26/2014 02:33 PM CDT 1 of 3

George Dittfurth Individually and in his official capacity as Supervisor of the Intelligence Unit in the Criminal Investigation Division of the Tennessee Department of Safety
Defendant Saunda Harris Individually and in her official capicity as Supervisor of the Williamson County Driver License Station in the Tennessee Department of Safety
Defendant Kim Draper
Defendant Cynthia McCullough
Defendant Rick Blackburn Tennessee Department of Safety Employees
Defendant Other Unknown Employees of the Tennessee Department of Safety in their official and individual capacities

Dawn Marie Jordan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dawn Marie Jordan (See above for address) LEAD ATTORNEY
represented by Dawn Marie Jordan (See above for address) LEAD ATTORNEY
represented by Dawn Marie Jordan (See above for address) LEAD ATTORNEY
represented by Dawn Marie Jordan (See above for address) LEAD ATTORNEY

Date Filed

# Docket Text

11/24/2008

1 COMPLAINT against Saunda Harris, Kim Draper, Cynthia McCullough, Rick Blackburn, Other Unknown Employees of the Tennessee Department of Safety, Tennessee Department of Safety, David Mitchell, Michael Hogan, Tiffany Taylor, George Dittfurth, filed by Enrique Bautista, Juan Carlos Angel−Lopez.Filing fee paid $350.Summons issued. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 summons, # 8 Civil Cover Sheet)(eh) (Entered: 11/24/2008)

11/24/2008

2 NOTICE from USDC Clerk regarding Corporate Disclosure Statement requirement (eh) (Entered: 11/24/2008)

11/24/2008

3 NOTICE of Initial Case Management Conference set for Monday 3/2/2009 at 10:00 AM in Courtroom 776 before Magistrate Judge John S. Bryant. (eh) (Entered: 11/24/2008)

11/24/2008

Bar status for attorney Elliott Ozment of TN verified as active on this date. (eh) (Entered: 11/24/2008)

12/15/2008

4 Summons issued as to Tennessee Department of Safety, Tiffany Taylor. (dt) (Entered: 12/16/2008)

12/16/2008

5 ANSWER to 1 Complaint, by Saunda Harris, Kim Draper, Cynthia McCullough, Rick Blackburn, Tennessee Department of Safety, David Mitchell, Michael Hogan, Tiffany Taylor, George Dittfurth.(Jordan, Dawn) (Entered: 12/16/2008)

02/24/2009

6 *FILED IN ERROR−ATTY TO REFILE CORRECTED MOTION* First MOTION to Amend/Correct Complaint by Enrique Bautista, Juan Carlos Angel−Lopez. (Ozment, Harry) Modified Text on 2/26/2009 (dt). (Entered:

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02/25/2009 02/28/2009 03/02/2009 03/02/2009
03/25/2009 03/26/2009
03/26/2009 03/26/2009

02/24/2009)
7 PROPOSED CASE MANAGEMENT ORDER filed by all parties. (Ozment, Harry) (Entered: 02/25/2009)
8 First MOTION to Amend 1 Complaint by Enrique Bautista, Juan Carlos Angel−Lopez. (Attachments: # 1 [Proposed] First Amended Complaint)(Ozment, Harry) Modified Text on 3/2/2009 (dt). (Entered: 02/28/2009)
Minute Entry for proceedings held before Magistrate Judge Bryant: Initial Case Management Conference held on 3/2/2009; ICMO to enter. (Court Reporter: Taped #2009−9 JSB) (tm) (Entered: 03/02/2009)
9 CASE MANAGEMENT ORDER: Motion to Amended Pleadings due by 6/1/2009. Discovery due by 9/30/2009. Dispositive Motions due by 10/30/2009. Jury Trial set for 3/16/2010 at 9:00 AM before Senior Judge John T. Nixon. Final Pretrial Conference set for 3/5/2010 at 10:00 at AM before Senior Judge John T. Nixon. Telephone Conference set for 9/1/2009 at 10:30 AM, counsel for plaintiff shall initiate this call. Signed by Magistrate Judge John S. Bryant on 3/2/09. (dt) (Entered: 03/02/2009)
10 NOTICE of Voluntary Dismissal by Enrique Bautista, Juan Carlos Angel−Lopez (Ozment, Harry) (Entered: 03/25/2009)
11 ORDER: The plaintiffs have filed a Notice of Stipulated Voluntary Dismissal of this case 10 . The follow−up telephone case management conference previously set at 10:30 a.m. on September 1, 2009 7 is hereby CANCELED. There is nothing remaining to be done in this matter by the undersigned Magistrate Judge. Therefore, the Clerk is directed to return the file to the Senior District Judge for his consideration of the notice of dismissal. Judge Magistrate Judge John S. Bryant no longer assigned to case. Signed by Magistrate Judge John S. Bryant on 3/26/09. (dt) (Entered: 03/26/2009)
12 ORDER: Before the Court is Plaintiffs' Stipulation of Voluntary Dismissal without Prejudice 10 . Plaintiffs voluntary dismiss all claims against all Defendants pursuant to Federal Rules of Civil Procedure 41(a)(1). The Court Dismisses this action and Orders the matter Administratively Closed. Signed by Senior Judge John T. Nixon on 3/26/09. (dt) (Entered: 03/26/2009)
13 Docket entry number 12 is hereby entered on the docket in compliance with Rule 58 and/or Rule 79(a) of the Federal Rules of Civil Procedure on 3/26/09 by DT. (dt) (Entered: 03/26/2009)

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