12-2065.141-RSK July 23, 2014

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOSE BERRUM-PLATA, )

)

Plaintiff, )

)

 v. ) No. 12 C 2065

) 

FBI Agent BRETT CURTIS, ) 

individually and in his official )

capacity, )

)

Defendant. )

MEMORANDUM OPINION

Before the court is defendant FBI Agent Brett Curtis’s motion

for summary judgment. We grant the defendant’s motion for the

reasons explained below.

BACKGROUND

Plaintiff Jose Berrum-Plata was in the country illegally when

he agreed to cooperate with the defendant in an FBI drug

investigation. In return for his cooperation, the FBI supported

his application for Significant Public Benefit Parole (“SPBP”). 

United States Immigration, Customs, and Enforcement (“ICE”) granted

his application, permitting him to remain in the country

temporarily. See 8 CFR § 212.5(b) (an authorized immigration

official may allow an illegal alien to remain in the United States

if doing so would confer a “significant public benefit”). In this

lawsuit, Berrum-Plata claims that the FBI (through Curtis)
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improperly withdrew its support for his parole and arrested him

without probable cause. Before delving any further into the facts,

we will first address: (1) the unusual procedural history of this

case; and (2) the defendant’s motion to strike Berrum-Plata’s

response to his Local Rule 56.1 statement of facts.

A. Procedural History & Curtis’s Motion to Strike

Berrum-Plata filed his original complaint, through counsel, 

against the United States, the Department of Homeland Security,

ICE, and Curtis. His attorneys moved to withdraw their

representation before the parties’ first court appearance. In

their motion, they stated that they could not continue to represent

Berrum-Plata in light of unspecified “additional information” that

they had received about his claims. (See Corrected Mot. to

Withdraw, Dkt. 8, ¶¶ 1-2; see also id. at ¶ 3 (stating that they

had “irreconcilable differences” with their client “over issues

arising out of this litigation as well as over the management and

direction of the litigation.”).) After we gave his attorneys leave

to withdraw, Berrum-Plata filed his pro se appearance. (See Pro Se

Appearance, dated June 8, 2012, Dkt. 43.) We subsequently granted

Berrum-Plata’s motion to appoint counsel after the defendants moved

to dismiss given the complexity of the issues and Berrum-Plata’s

limited English. (See Minute Entry, dated Oct. 10, 2012, Dkt. 22.) 

We ultimately granted the defendants’ motion to dismiss. See

Berrum-Plata v. U.S., No. 12 C 2065, 2013 WL 1344017, *3 (N.D. Ill.
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Apr. 3, 2013). We held that Berrum-Plata could not maintain a

constitutional claim against the United States, the FBI, and ICE

under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). See Berrum-Plata, 2013 WL 1344017,

*1 (citing F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994) (declining

to extend Bivens to claims against federal entities)). And he

could not assert state-law claims against the defendants (including

Curtis) without exhausting his administrative remedies under the

Federal Tort Claim Act (“FTCA”). See id. at *2; see also 28 U.S.C.

§ 2675 (“An action shall not be instituted upon a claim against the

United States for money damages for injury or loss of property or

personal injury or death caused by the negligent or wrongful act or

omission of any employee of the Government while acting within the

scope of his office or employment, unless the claimant shall have

first presented the claim to the appropriate Federal agency and his

claim shall have been finally denied by the agency in writing and

sent by certified or registered mail.”). With respect to his

Bivens claim against Curtis, we held that the complaint did not

contain enough factual information to state a plausible claim for

relief. See Berrum-Plata, 2013 WL 1344017, *1. We dismissed

Berrum-Plata’s claims without prejudice and asked appointed counsel

to remain in the case to help him prepare an amended complaint. 

Id.
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After granting the plaintiff several extensions of time to

amend his complaint, his appointed attorney moved to withdraw. 

Like Berrum-Plata’s prior retained counsel, his appointed counsel

cited “irreconcilable differences over issues arising out of this

litigation including substantial disagreement over litigation

strategy.” (See Mot. to Withdraw, dated June 19, 2012, Dkt. 42, ¶

4.) We granted the motion to withdraw and gave Berrum-Plata

additional time to file an amended complaint pro se. On July 26,

2012, Berrum-Plata filed his amended complaint — the operative

complaint in this case — naming Curtis as the sole defendant. We

concluded that the complaint, although difficult to understand in

places, was adequate to give Curtis notice of Berrum-Plata’s

claims. (See Order, dated Nov. 20, 2013, Dkt. 60.) But we were

skeptical that Berrum-Plata could manage the litigation on a pro se

basis going forward. (Id.) So, we again appointed counsel to

represent him. Before appointed counsel even filed his appearance,

he moved to withdraw: “in [counsel’s] opinion, underlying facts

discovered in his investigation and work to date do not give rise

to a potentially successful cause of action.” (Mot. to Withdraw,

dated Dec. 19, 2013, Dkt. 64.) We granted this motion and denied

as futile Berrum-Plata’s request to appoint yet another attorney. 

(See Minute Entry, dated Jan. 22, 2014, Dkt. 71.)

In lieu of filing an answer, Curtis filed the present motion

for summary judgment. Because Berrum-Plata was representing
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himself pro se at that point, we gave him a date by which to

respond to the defendant’s Local Rule 56.1 statement and set a

hearing date to discuss his response before scheduling further

briefing. (See Minute Entry, dated Apr. 30, 2014, Dkt. 77.) A

week after his response was due, Berrum-Plata filed his Local Rule

56.1 response (and a legal memorandum opposing summary judgment)

through newly retained counsel. His response to Curtis’s statement

of facts does not cite any record evidence. Cf. L.R. 56.1(b)(3)(B)

(The opposing party’s response must include “a response to each

numbered paragraph in the moving party’s statement, including, in

the case of any disagreement, specific references to the

affidavits, parts of the record, and other supporting materials

relied upon.”). Instead, Berrum-Plata filed a separate affidavit

reciting his version of events and purporting to incorporate his

Local Rule 56.1 responses by reference. (See Berrum-Plata Aff.,

Dkt. 82, ¶ 14.) He further confuses matters by stating bare

denials in one paragraph, and then expounding on those denials in

another. Here is paragraph six of Curtis’s statement of facts:

In late 2008, shortly after Berrum-Plata agreed to

cooperate with the FBI, and after he was provided a copy

of the admonishment referenced above, Berrum-Plata

conducted an unauthorized narcotics transaction in

Mexico. [Curtis Decl. ¶ 7.] 

(Def.’s Stmt. ¶ 6.) In paragraph six of his response, Berrum-Plata

merely states, “[p]laintiff denies the allegations of paragraph

six.” (Pl.’s Resp. at ¶ 6.) He then gives a lengthy narrative
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response to the same paragraph — without any record citations —

later in his brief:

Further responding to paragraph six, Plaintiff

affirmatively states that he went to McAllen, TX, for the

purpose of meeting drug traffickers and to see where they

would send drugs from. Agent Curtis knew that Plaintiff

was making this trip. The drug dealers were to pay

$100/pound for brokering a marijuana transaction. When

he returned to Chicago, he was given $5,000.00 by the

dealers. Plaintiff took the $5,000.00 to Agent Curtis to

show him that the persons he was informing on were in

fact drug dealers and that he had been working as

directed. Agent Curtis reimbursed Plaintiff in cash for

the cost of his bus ticket. Also, upon information and

belief, Agent Curtis was in communication with other FBI

or Drug Enforcement Administration or other agents while

Plaintiff was in McAllen, TX. During the trip to

McAllen, Plaintiff never went to Mexico.

(Pl’s Resp. ¶ 30.)

We held a status hearing on April 30, 2014, as we had

previously contemplated. During that hearing, we gave Curtis leave

to file a reply brief in support of his summary-judgment motion,

and gave Berrum-Plata an opportunity to file a sur-rely. In

particular, we asked the parties to address whether Curtis could

revoke his support for Berrum-Plata’s SPBP status at will, or if he

could only do so for cause. The government addressed this issue in

its reply brief, and also moved to strike the plaintiff’s Local

Rule 56.1 Statement for the deficiencies we just identified. 

Berrum-Plata did not file his sur-reply until June 26, 2014, almost

a month after it was due. In his memorandum, he asks us to

disregard Curtis’s motion to strike as beyond the scope of the
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briefing. We decline to do so. First, we did not direct the

parties to discuss the “at will” issue only, and nothing else. 

Curtis was entitled to address the problems with Berrum-Plata’s

Local Rule 56.1 statement in his reply brief. Second, BerrumPlata’s attorney ignored Local Rule 56.1's requirements at his

peril. See Petty v. City of Chicago, — F.3d —, 2014 WL 2568264, *4

(7th Cir. June 9, 2014) (slip op.) (“We have consistently and

repeatedly upheld a district court’s discretion to require strict

compliance with its local rules governing summary judgment.”)

(citation and internal quotation marks omitted). The plaintiff’s

Local Rule 56.1 response is clearly deficient, and Curtis’s motion

to strike is appropriate. The motion is granted, and the facts

recited in Curtis’s statement of facts are deemed admitted.1

 See

L.R. 56.1(b)(3)(C).

B. Background Facts 

In late 2008, Berrum-Plata agreed to cooperate with the FBI’s

investigation of illegal drug trafficking in Chicago’s south

suburbs. (Def.’s Stmt. ¶ 1.) Berrum-Plata, a native of Mexico,

was in the United States illegally at that time. (Id.) In

exchange for his cooperation, the FBI asked ICE to grant BerrumPlata SPBP status. (Id. at ¶ 2.) ICE granted the request,

temporarily allowing Berrum-Plata to remain in the United States. 

1/ As we discuss later in this opinion, we would grant Curtis’s summaryjudgment motion even if we considered Berrum-Plata’s deficient responses. 
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(Id.) In connection with his agreement to cooperate with the FBI,

Curtis read Berrum-Plata a series of admonishments. (Id. at ¶ 4.) 

Among other things, Curtis explained that the FBI could not

guarantee him any particular immigration status; only the

Department of Homeland Security could make commitments regarding

his right to remain in the United States. (Id.) He also

admonished Berrum-Plata that he could not engage in any criminal

activity without the FBI’s prior approval, and that he could be

prosecuted for any unauthorized criminal activity. (Id.) Shortly

after receiving these admonishments, Berrum-Plata conducted an

unauthorized narcotics transaction in Mexico. (Id. at ¶ 6.) 

Curtis warned Berrum-Plata at that time that he had violated the

conditions of his cooperation, and that further violations would

result in the FBI revoking its support for his parole. (Id. at ¶

7.)

In late January 2010, Berrum-Plata told Curtis that a drug

dealer had asked him to find a large amount of marijuana for

purchase. (Id. at ¶ 9.) Curtis began arranging for a controlled

drug transaction. (Id.) But before Curtis had obtained the

necessary authorization, Berrum-Plata told him that he had brokered

a 100-pound marijuana deal between the drug dealer and a supplier. 

(Id. at ¶ 10.) In February 2010, Curtis told Berrum-Plata that the

FBI no longer wanted his cooperation because of this unauthorized

drug transaction. (Id. at ¶ 11.) He also told him that the FBI

was considering revoking its support for his SPBP status. (Id.) 
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After notifying his superiors about the plaintiff’s admonishment

violations, the FBI decided that it would no longer support his

SPBP status. (Id. at ¶ 13.) Curtis informed ICE of the FBI’s

decision on or about February 23, 2010. (Id. at ¶ 14.) ICE

accepted Curtis’s offer to arrest Berrum-Plata himself once it

revoked Berrum-Plata’s SPBP status. (Id.)

On or about March 4, 2010, ICE revoked Berrum-Plata’s parole. 

(Id. at ¶ 15.) He was still free on March 15, 2010 when the FBI

learned from the Cook County Sheriff’s Department that Berrum-Plata

had attempted to sell three pounds of marijuana. (Id. at ¶ 16.) 

On March 23, 2010, Curtis arranged to meet Berrum-Plata in a

parking lot near where they had met before during the FBI’s drug

investigation. (Id. at ¶¶ 17-19.) Curtis arrested Berrum-Plata at

that time and told him that ICE had revoked his SPBP status because

the FBI no longer supported his parole. (Id. at ¶ 20.) He also

told Berrum-Plata that he would be delivered to ICE and promptly

deported unless he contested deportation. (Id.) Curtis delivered

Berrum-Plata to ICE that same day. (Id. at ¶ 21.)

On or about April 6, 2010, ICE instituted removal proceedings

against the plaintiff. (Id. at ¶ 22.) He contested removal and,

on December 20, 2011, an immigration judge granted his request for

relief. (Id.)2 Pursuant to the judge’s order, ICE released

Berrum-Plata on January 12, 2012 and placed him under supervision

2/ The record in this case does not reflect the basis for the immigration

judge’s ruling. 
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pending further review of his immigration status. (Id. at ¶ 22.) 

Berrum-Plata filed this lawsuit two months later. In his amended

complaint, he alleges that Curtis arrested him without probable

cause and seeks damages against him under Bivens. (See Am. Compl.

at 1, 5-6.) 

DISCUSSION

Curtis, citing qualified immunity, has moved for summary

judgment on Berrum-Plata’s Bivens claim.

A. Legal Standard

“The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). In considering such a motion, the court construes the

evidence and all inferences that reasonably can be drawn therefrom

in the light most favorable to the nonmoving party. See Pitasi v.

Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). “The court

need consider only the cited materials, but it may consider other

materials in the record.” Fed. R. Civ. P. 56(c)(3). “Summary

judgment should be denied if the dispute is ‘genuine’: ‘if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.’” Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d

1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). The court will enter summary

judgment against a party who does not “come forward with evidence
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that would reasonably permit the finder of fact to find in [its]

favor on a material question.” McGrath v. Gillis, 44 F.3d 567, 569

(7th Cir. 1995).

B. Berrum-Plata’s Bivens Claim for Illegal Seizure

We ask two questions when analyzing a defendant’s qualifiedimmunity defense: (1) did the defendant’s conduct violate the

plaintiff’s constitutional rights?; and (2) was that particular

constitutional right clearly established at the time of the alleged

violation? Saucier v. Katz, 533 U.S. 194, 201 (2001) (overruled in

part by Pearson v. Callahan, 555 U.S. 223 (2009)). To survive

summary judgment on his Fourth Amendment claim, Berrum-Plata must

raise a genuine dispute of material fact regarding whether Curtis

had probable cause to arrest him. See Woods v. City of Chicago,

234 F.3d 979, 995-96 (7th Cir. 2000); see also McBride v. Grice,

576 F.3d 703, 707 (7th Cir. 2009) (“Probable cause is an absolute

bar to a § 1983 claim for false arrest”); Martin v. Sias, 88 F.3d

774, 775 (9th Cir. 1996) (Section 1983 and Bivens actions “are

identical save for the replacement of a state actor under § 1983 by

a federal actor under Bivens.”) (citation and internal quotation

marks omitted) (cited with approval in Clemente v. Allen, 120 F.3d

703, 705 (7th Cir. 1997)). A law enforcement officer has probable

cause to arrest a suspect if, at the time of the arrest, the facts

and circumstance within the officer’s knowledge were sufficient to

warrant a prudent person to believe that the suspect had committed
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an offense. Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir.

2009). Berrum-Plata quibbles about whether ICE’s decision to

revoke his SPBP status was effective prior to his arrest, citing

immigration regulations providing that “parole shall be terminated

upon written notice to the alien . . . .” 8 C.F.R. 212.5(e)(2)(1)

(emphasis added). Curtis was not required to investigate and

confirm whether ICE had complied with the regulation’s notice

requirements. He reasonably believed that ICE had revoked parole,

and he was acting pursuant to ICE’s request to arrest Berrum-Plata. 

He clearly had probable cause to arrest Berrum-Plata for being in

the country illegally. The result would be the same even if we

overlooked Berrum-Plata’s failure to comply with Local Rule 56.1. 

(See supra.) He states in his affidavit that he did not engage in

any unauthorized drug transactions. (See Berrum-Plata Aff. ¶¶ 10-

11, 15.) But he was not arrested and charged for selling drugs. 

He was arrested for being in the United States illegally.

C. Breach of Contract and Related Theories

We asked the parties to consider whether the arrangement

between the FBI, ICE, and Berrum-Plata was terminable at will, or

if it could only be terminated for cause. Berrum-Plata admits that

he received the following admonition:

No promises or commitments can be made, except by the

Department of Homeland Security (DHS), regarding the

alien status of any person or the right of any person to

enter or remain in the U.S.
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(“Operating Instructions to the Cooperating Human Source,” attached

as Ex. A to Curtis’s Decl., at 2-3; Pl.’s Resp. to Def.’s Stmt. ¶

4.) There is no evidence that the Department of Homeland Security,

through ICE, ever made any commitment to Berrum-Plata. It granted

Berrum-Plata’s request for parole on the FBI’s recommendation, but

it was always free to terminate parole with or without the FBI’s

approval. See 8 CFR § 212.5(e)(2)(i). Its discretion is

unfettered and not subject to judicial review. See Samirah v.

O'Connell, 335 F.3d 545, 548 (7th Cir. 2003) (the Attorney

General’s decision to revoke parole under 8 CFR § 212.5(e)(2)(i) is

not reviewable); see also 8 U.S.C. § 1252(a)(2)(B)(ii)

(“Notwithstanding any other provision of law, no court shall have

jurisdiction to review . . . any other decision or action of the

Attorney General the authority for which is specified under this

subchapter to be in the discretion of the Attorney General . . .

.”). For that reason, aliens do not have a constitutionally

protected liberty interest in parole. Darif v. Holder, 739 F.3d

329, 336 (7th Cir. 2014) (“We have repeatedly held that the

opportunity for discretionary relief from removal is not a

protected liberty interest because aliens do not have a legitimate

claim of entitlement to it.”). 

Berrum-Plata nevertheless argues that he can proceed against

Curtis on a breach-of-contract or a related theory. (See Pl.’s

Sur-Reply at 2 (arguing that Curtis breached his promise); id. at
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4 (suggesting, without developing the argument, that he might be

entitled to relief under “contract principles. . . .”).) That is,

even if ICE always retained discretion to revoke parole, Curtis

promised that he would support Berrum-Plata’s SPBP application so

long as he complied with the admonishments. First, under Curtis’s

version of events — which we have deemed to be true, see supra — he

did not breach his promise because Berrum-Plata violated the terms

of his cooperation at least twice. Second, even if we considered

Berrum-Plata’s response to the defendant’s statement of facts, he

could not assert a breach-of-contract claim against Curtis without

first exhausting his administrative remedies under the FTCA. See

28 U.S.C. § 2675. It is clear that he has not done so, and the

deadline for filing an FTCA claim has long since passed. See 28

U.S.C. § 2401 (“A tort claim against the United States shall be

forever barred unless it is presented in writing to the appropriate

Federal agency within two years after such claim accrues.”). 

D. Habeas Corpus

We reject Berrum-Plata’s belated habeas-corpus theory. (See

Pl.’s Sur-Reply at 3-4.) According to the plaintiff, he is in

“custody” for purposes of 28 U.S.C. § 2241 because a paroled alien

is deemed “legally detained at the border within the government’s

custody until his immigration status is determined.” Samirah, 335

F.3d at 547. First, it is irrelevant whether a § 212.5 parolee is

in government “custody” because ICE revoked Berrum-Plata’s parole
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over four years ago. When the removal proceedings terminated in

his favor, ICE released him subject to an “order of supervision.” 

(See Pl.’s Resp. to Def.’s Stmt. ¶ 22 (admitting that he was

released from ICE custody in January 2012 and placed under

supervision); Decl. of Limaris O’Farrill, attached as Ex. 2 to

Def.’s Stmt., ¶ 15 (“On January 31, 2012, Berrum-Plata was released

from ICE custody and placed on an order of supervision.”).) 

Although we do not know the terms of Berrum-Plata’s supervision, it

appears unlikely that he is eligible for habeas-corpus relief. Cf.

Fregis v. Holder, No. 2:13–cv–163–FtM–29DNF, 2014 WL 54839, *2

(M.D. Fla. Jan. 7, 2014) (a habeas petition is mooted by the

petitioner’s release subject to an order of supervision)

(collecting cases). Second, Curtis is not a proper party to such

a claim because he is not Berrum-Plata’s custodian. Cf. Samirah,

335 F.3d at 551-52 (“The custodian, in most cases, ‘is the person

having a day-to-day control’ over the petitioner, because he ‘is

the only one who can produce ‘the body’ of the petitioner.’”)

(quoting Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir. 1986)). 

Third, counsel’s last-ditch habeas-corpus theory is far afield of

Berrum-Plata’s actual claim in this suit. There is simply no

suggestion in his amended complaint that he wishes to contest his

current immigration status. Instead, he wants compensation for

Curtis’s alleged broken promise. For the reasons we have just

explained, Curtis is entitled to summary judgment on that claim.
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CONCLUSION

The defendant’s motion for summary judgment [72] is granted.

DATE: July 23, 2014

ENTER: ___________________________________________

John F. Grady, United States District Judge