12-2065.131-RSK April 3, 2013

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOSE BERRUM-PLATA, )

)

Plaintiff, )

)

 v. ) No. 12 C 2065

) 

UNITED STATES OF AMERICA, FBI )

Agent BRETT CURTIS, individually )

and in his official capacity, and )

U.S. DEPARTMENT OF HOMELAND )

SECURITY, IMMIGRATION AND CUSTOMS )

ENFORCEMENT, )

)

Defendants. )

MEMORANDUM OPINION

Before the court is the defendants’ motion to dismiss. We

grant the defendants’ motion for the reasons explained below.

BACKGROUND

Jose Berrum-Plata has filed a two-count civil rights complaint

against the United States, FBI agent Brett Curtis (in his

individual and official capacities), and the United States

Department of Homeland Security, Immigration and Custom Enforcement

(“ICE”). Berrum-Plata alleges that during 2008 and 2009 he worked

as an informant “for the FBI, specifically, Brett Curtis.” (Compl.

¶ 10.) On March 23, 2010, Berrum-Plata was “taken into custody by

and/or through direction of” Curtis. (Id. at ¶ 11.) According to

the plaintiff, Curtis arrested him “without an arrest warrant,

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without probable cause, and without any other legal justification.” 

(Id. at ¶ 12.) The defendants then prosecuted Berrum-Plata “as an

undocumented alien despite the fact that there was no probable

cause to take him into custody, the fact that he has papers

documenting his right to be in this country and despite the fact

that there was no illegal action which warranted him to be in

custody or to be charged.” (Id. at ¶ 19.) He was held by ICE for

“almost one year and ten months,” and then released on February 2,

2012 “without any further charges, sentencing or penalties.” (Id.

at ¶ 22.) In Count I, Berrum-Plata seeks damages under § 1983 and 

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971) for violation of his rights under the Fourth

and Fourteenth Amendments. (See id. at ¶¶ 2-3, 16.) In Count II,

he asserts a claim for malicious prosecution against the United

States, the FBI,1 and ICE. The defendants have moved to dismiss

the complaint in its entirety.

DISCUSSION

A. Legal Standard

The purpose of a 12(b)(6) motion to dismiss is to test the

sufficiency of the complaint, not to resolve the case on the

merits. 5B Charles Alan Wright & Arthur R. Miller, Federal

1/ (See Compl. p. 5 (prayer for relief).) Berrum-Plata does not identify

the FBI as a defendant in the case caption, but his official-capacity claim

against Curtis is effectively a claim against the FBI. See Kentucky v. Graham,

473 U.S. 159, 165-66 (1985). 

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Practice and Procedure § 1356, at 354 (3d ed. 2004). To survive

such a motion, “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on

its face.’ A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” 

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570, 556 (2007)). When evaluating

a motion to dismiss a complaint, the court must accept as true all

factual allegations in the complaint. Iqbal, 129 S. Ct. at 1949. 

However, we need not accept as true its legal conclusions;

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id.

(citing Twombly, 550 U.S. at 555). 

B. Illegal Seizure (Count I)

In Count I, Berrum-Plata asserts a claim for damages against

the United States, ICE, and Curtis (in his individual capacity,

only). (See Compl. at 3 (prayer for relief).) As a threshold

matter, we will: (1) construe references in the complaint to the

Fourteenth Amendment to refer to the Fifth Amendment (see id. at ¶

16(b)); and (2) disregard references to § 1983 (see id. at ¶¶ 3,

16). Berrum-Plata now concedes that these are not appropriate

bases for relief against federal defendants. (See Pl.’s Resp. at

3.)

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1. Plaintiff’s Claim Against the United States and ICE

In Bivens, the Supreme Court recognized a private right of

action to seek damages against federal agents for Fourth Amendment

violations. See Bivens, 403 U.S. at 397. However, the Court has

declined to extend Bivens to claims against federal entities. See

F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994). As an alternative to

Bivens, Berrum-Plata argues that he may proceed against the United

States and ICE under the Federal Tort Claims Act (“FTCA”). (See

Pl.’s Resp. at 2-3); see also 28 U.S.C. § 1346(b). First, the FTCA

does not waive sovereign immunity for federal constitutional torts,

which is what the complaint alleges (see Compl. ¶¶ 1-3). See

Meyer, 510 U.S. at 478 (“[T]he United States simply has not

rendered itself liable under § 1346(b) for constitutional tort

claims.”). Second, even if we construe his complaint to assert a

claim under state law,2 Berrum-Plata has not alleged that he has

exhausted his administrative remedies as required to proceed in

this court under the FTCA. See 28 U.S.C. § 2675(a) (“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

2/ Berrum-Plata argues that the allegations in his complaint would support

a claim under Article 1 § 6 of the Illinois Constitution. (See Pl.'s Mem. at 3);

see also Ill. Const. Art. 1 § 6 (prohibiting unreasonable seizures and the

issuance of warrants without probable cause). It is unclear whether there is a

private right of action under this section. There does not appear to be any

controlling authority on the question, but district courts that have considered

the issue have held that there is no such right. See Ingram v. Jones, No. 95 C

2631, 1995 WL 745849, *2-4 (N.D. Ill. Nov. 29, 1995); Richard v. Lukensmeyer, No.

98 C 6409, 1999 WL 261835, *2-4 (N.D. Ill. Apr. 12, 1999). However, Berrum-Plata

could potentially state a claim for common law false arrest. See Ingram, 1995

WL 745849, *4. 

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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.”) (emphasis added). Count I against

the United States and ICE is dismissed without prejudice. 

2. Plaintiff’s Claim Against Curtis

Federal law enforcement officers like Curtis are proper

defendants to claims under Bivens, but the complaint is too

threadbare to state a claim for relief against him. The

allegations relevant to Berrum-Plata’s Fourth/Fifth Amendment claim

appear below in their entirety:

10. During 2008 and 2009, the Plaintiff worked as an

informant for the FBI, specifically, Brett Curtis.

11. On or about March 23, 2010, JOSE BERRUM-PLATA was

taken into custody by and/or through direction of Brett

Curtis.

12. The Defendant arrested or caused the arrest and

detention of Plaintiff without an arrest warrant, without

probable cause, and without any other legal

justification.

 

(Compl. ¶¶ 10-12.) The complaint is silent about the specific

circumstances of the plaintiff’s arrest, and relies instead on

“conclusory legal statements.” Brooks v. Ross, 578 F.3d 574, 581

(7th Cir. 2009) (rejecting such allegations); see also Swanson v.

Citibank, N.A., 614 F.3d 400, 405 (7th Cir. 2010) (Mere legal

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conclusions “do nothing to distinguish the particular case that is

before the court from every other hypothetically possible case in

that field of law.”). The absence of details is particularly

problematic in this case given Berrum-Plata’s unusual relationship

with the FBI agent who carried out or initiated his arrest. 

Berrum-Plata alleges that he worked with Curtis as an informant for

two years, and then out of the blue Curtis had him arrested for an

immigration violation. More information is required “to present a

story that holds together.” Swanson, 614 F.3d at 404. Count I

against Curtis is dismissed without prejudice.

C. Malicious Prosecution (Count II)

In Count II, Berrum-Plata alleges that the United States, the

FBI, and ICE maliciously prosecuted him “as an undocumented alien.” 

(Compl. ¶ 19; see also id. at p. 5 (prayer for relief).) As we

just discussed, Berrum-Plata cannot maintain a Bivens action

against the federal entities. See Meyer, 510 U.S. at 486. Indeed,

our Court of Appeals does not recognize Bivens claims for malicious

prosecution where, as here, a state remedy exists. See Parish v.

City of Chicago, 594 F.3d 551, 552 (7th Cir. 2009) (“Seventh

Circuit precedent does not permit an action for malicious

prosecution under § 1983 if a state remedy exists”); Bontkowski v.

Smith, 305 F.3d 757, 760 (7th Cir. 2002) (applying same reasoning

to a Bivens claim for malicious prosecution); Swick v. Liautaud,

662 N.E.2d 1238, 1242 (Ill. 1996) (discussing the maliciousCase: 1:12-cv-02065 Document #: 37 Filed: 04/03/13 Page 6 of 8 PageID #:71
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prosecution tort under Illinois law). Berrum-Plata could

potentially state a claim against these defendants for state-law

malicious prosecution under the FTCA. But as we discussed in

connection with Berrum-Plata’s illegal seizure claim, he has not

alleged exhaustion as required to proceed under the FTCA. Count II

is dismissed without prejudice. 

D. Continued Appointment of Counsel

Berrum-Plata initially appeared in this case through retained

counsel. We later granted his attorneys’ motion to withdraw, which

cited “irreconcilable differences over issues arising out of this

litigation as well as over the management and direction of the

litigation.” (Mot. to Withdraw as Pl.’s Attys, dated May 9, 2012,

Dkt. 8.) We then granted the plaintiff’s motion to appoint

counsel, but only “for the limited purpose of responding to the

pending motion to dismiss the complaint.” (Minute Order, dated

October 10, 2012, Dkt. 22.) We further stated that “[i]f any

portion of the complaint survives the motion to dismiss, then the

court will consider at that time whether to extend the appointment

of counsel.” (Id.) We have granted the defendants’ motion to

dismiss, but the facts alleged in Berrum-Plata’s complaint do not

foreclose the possibility of an FTCA claim against the federal

entities and/or a Bivens claim against Curtis. Under the

circumstances, we think it is appropriate for appointed counsel to

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continue representing Berrum-Plata at this time. We will revisit

the question after the pleadings stage is completed. 

CONCLUSION

The defendants’ motion to dismiss [20] is granted. The

plaintiff’s complaint is dismissed without prejudice. The

plaintiff is given leave to file an amended complaint by May 3,

2013 that cures the deficiencies that we have identified with his

claims, if he can do so. If the plaintiff chooses not to file an

amended complaint by that date, we will dismiss this case with

prejudice. A status hearing is set for May 8, 2013.

DATE: April 3, 2013

ENTER: ___________________________________________

John F. Grady, United States District Judge

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