589 F.3d 542 (2nd Cir. 2009), 06-3745-cv L, Turkmen v. Ashcroft

Docket Nº:06-3745-cv(L); 06-3785-cv(Con); 06-3789-cv(Con); 06-3800-cv(Con); 06-4187-cv (XAP).
Citation:589 F.3d 542
Opinion Judge:PER CURIAM:
Party Name:Ibrahim TURKMEN, Asif-Ur-Rehman Saffi, Syed Amjad Ali Jaffri, Akil Sachdeva, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Plaintiffs-Appellees-Cross-Appellants, v. John ASHCROFT, Former United States Attorney General, Dennis Hasty, Former Warden of MDC, James W. Ziglar, Commissioner, Immigration and Naturalization Service, James She
Attorney:Michael Winger (C. William Phillips, Kate Greenwood, Amanda J. Gourdine, Kimberly Zelnick, Douglas Bloom, and Joanne Sum-Ping, on the brief), Covington & Burling LLP, New York, NY; Rachel Meeropol (Matthew Strugar, William Goodman, Shayana Kadidal, and William Quiqley, on the brief), Center for C...
Judge Panel:Before JACOBS, Chief Judge, and RAGGI, Circuit Judge.[*]
Case Date:December 18, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 542

589 F.3d 542 (2nd Cir. 2009)

Ibrahim TURKMEN, Asif-Ur-Rehman Saffi, Syed Amjad Ali Jaffri, Akil Sachdeva, Shakir Baloch, Hany Ibrahim, Yasser Ebrahim, Ashraf Ibrahim, Plaintiffs-Appellees-Cross-Appellants,

v.

John ASHCROFT, Former United States Attorney General, Dennis Hasty, Former Warden of MDC, James W. Ziglar, Commissioner, Immigration and Naturalization Service, James Sherman, Robert Mueller, Defendants-Appellants-Cross-Appellees,

John Does 1-20, MDC Corrections Officers, Michael Zenk, Warden of MDC, Christopher Witschel, Clemett Shacks, Brian Rodriguez, Jon Osteen, Raymond Cotton, William Beck, Salvatore Lopresti, Steven Barrere, Lindsey Bledsoe, Joseph Cuciti, Howard Gussak, Marcial Mundo, Daniel Ortiz, Stuart Pray, Elizabeth Torres, Phillip Barnes, Sydney Chase, Michael Defrancisco, Richard Diaz, Kevin Lopez, Mario Machado, Michael McCabe, Raymond Mickens, Scott Rosebery, United States, Defendants.

Nos. 06-3745-cv(L); 06-3785-cv(Con); 06-3789-cv(Con); 06-3800-cv(Con); 06-4187-cv (XAP).

United States Court of Appeals, Second Circuit.

December 18, 2009

Argued: Feb. 14, 2008.

Page 543

Michael Winger (C. William Phillips, Kate Greenwood, Amanda J. Gourdine, Kimberly Zelnick, Douglas Bloom, and Joanne Sum-Ping, on the brief), Covington & Burling LLP, New York, NY; Rachel Meeropol (Matthew Strugar, William Goodman, Shayana Kadidal, and William Quiqley, on the brief), Center for Constitutional Rights, New York, NY; David Cole, Georgetown University Law Center, Washington, DC; and Claudia Slovinsky, Law Offices of Claudia Slovinsky, New York, NY, for Plaintiffs-Appellees-Cross-Appellants.

Robert M. Loeb (Peter D. Keisler, Assistant Attorney General, Gregory G. Garre, Deputy Solicitor General, Jonathan F. Cohn, Deputy Assistant Attorney General, Kannon K. Shanmugam, Assistant to

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the Solicitor General, Tony West, Assistant Attorney General, Barbara L. Herwig, Sarang V. Damle, Dennis C. Barghaan, Richard W. Sponseller, Larry Lee Gregg, and R. Craig Lawrence, Assistant United States Attorneys, on the brief), United States Department of Justice, Washington, DC, United States Attorney's Office for the District of Columbia, Washington, DC, and United States Attorney's Office for the Eastern District of Virginia, Alexandria, VA, for Defendants-Appellants-Cross-Appellees John Ashcroft and Robert Mueller. William Alden McDaniel, Jr. (Bassel Bakhos, on the brief), Law Office of William Alden McDaniel, Jr., Baltimore, MD, for Defendant-Appellant-Cross-Appellee James Ziglar.

Michael L. Martinez (Shari Ross Lahlou, David E. Bell, Justin P. Murphy, Kyler E. Smar, and Matthew F. Scarlato, on the brief), Crowell & Moring LLP, Washington, DC, for Defendant-Appellant-Cross-Appellee Dennis Hasty.

Debra L. Roth (Thomas M. Sullivan, on the brief), Shaw, Bransford, Veilleux & Roth, P.C., Washington, DC, for Defendant-Appellant-Cross-Appellee James Sherman.

Sital Kalantry, Cornell Law School, Ithaca, N.Y. for amici curiae former wardens and senior prison officials in support of Plaintiffs-Appellees-Cross-Appellants.

Before JACOBS, Chief Judge, and RAGGI, Circuit Judge.[*]

PER CURIAM:

This putative class action was brought by seven named plaintiffs, all non-citizens who were detained on immigration violations following the terrorist attacks of September 11, 2001.1 The plaintiffs allege, inter alia, that on account of their Arab or Muslim background (or perceived background), they were subjected to excessively prolonged detention, abused physically and verbally, subjected to arbitrary and abusive strip searches, and otherwise mistreated while in custody. Crucially, plaintiffs acknowledge that at the time they were detained they were present in the United States illegally, and were subject to removal. Their constitutional claims rest on (i) the conditions of their confinement, and (ii) the allegation that their detentions were illegally prolonged so that the Government could investigate any potential ties to terrorism.

Plaintiffs brought thirty-one separate claims against thirty-one identified defendants, including the United States, former Attorney General John Ashcroft, FBI Director Robert Mueller, and former Immigration and Naturalization Service (" INS") Commissioner James W. Ziglar, as well as Metropolitan Detention Center (" MDC") officials and correctional officers.

The United States, Ashcroft, Mueller, and Ziglar, as well as four high-ranking MDC officials 2 (collectively, the " moving defendants") moved to dismiss certain claims on grounds that include qualified

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immunity and failure to state a claim. At the risk of oversimplifying a complex ruling: the United States District Court for the Eastern District of New York (Gleeson, J.) denied the motions to dismiss claims concerning the conditions of confinement, but dismissed claims concerning the length of detention. See Turkmen v. Ashcroft, No. 02 Civ. 2307(JG), 2006 WL 1662663, at *1 (E.D.N.Y. June 14, 2006). Both sides appealed.

I

On November 2, 2009, plaintiffs moved for dismissal without prejudice of the pending appeals and cross-appeals in their entirety. Plaintiffs argue principally that the appeals and cross-appeals are moot in light of a settlement recently reached with five named plaintiffs and plaintiffs' counsel's intent to seek leave in the district court to file a proposed Fourth Amended Complaint on behalf of the two remaining plaintiffs, other plaintiffs to be named, and the putative class. Ashcroft and Mueller oppose such a dismissal.

Plaintiffs argue that we should dismiss as moot the appeals related to the denial of the conditions of confinement claims, because the two remaining named plaintiffs (Ibrahim Turkmen and Akil Sachdeva) did not appeal the dismissal of claim 3 and never asserted claims 20-23. However, plaintiffs' counsel intends to preserve claims 3 and 20-23 as part of the putative class complaint by proposing to file a Fourth Amended Complaint adding five new named plaintiffs. Further, Ashcroft and Mueller argue that they appealed the district court's decision to deny the dismissal of claims 5 (in part), 7, and 8 (in addition to claims 3 and 20-23)-three claims that Turkmen and Sachdeva asserted along with the five settling plaintiffs. Plaintiffs indicate that the proposed Fourth Amended Complaint will not allege claim 8; however, claims 5 and 7 remain live (as does claim 8 pending its withdrawal). Moreover, defendants retain a strong interest in a decision on their invocation of qualified immunity concerning claims that have been long pending and (as plaintiffs' counsel confirms) will be asserted in a new pleading. Finally, this is not the kind of case in which the class representative's interest abated during briefing or before oral argument; the settlement did not arise until long after the February 14, 2008 argument and the settling plaintiffs thus maintained a personal stake in pressing this appeal throughout.

Based on these circumstances and the district court's stay of the class certification motion, this Court is persuaded that the appeals related to the conditions of confinement claims are not moot. See Comer v. Cisneros, 37 F.3d 775, 799 (2d Cir.1994) (" Where the claims of the named plaintiffs become moot prior to class certification, there are several ways in which mootness is not had."); see also Swan v. Stoneman, 635 F.2d 97, 102 n. 6 (2d Cir.1980) (" To the extent that appellants' argument is that Swan's death does not moot the class claim if one of the proposed intervenors can be substituted as named plaintiff, we agree."); In re Nat'l Australia Bank Sec. Litig., No. 03 Civ. 6537(BSJ), 2006 WL 3844463, at *2 (S.D.N.Y. Nov. 8, 2006) (recognizing general rule that lack of class representative renders class action moot, and exceptions to that rule where motion for class certification is pending or plaintiff did not have reasonable opportunity to move for class certification); id. at *3 (explaining that live controversy exists where new named plaintiff may be substituted or may intervene upon pre-certification mooting of class representative's claims). Accordingly, we deny plaintiffs' motion to dismiss this appeal

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without prejudice on the ground of mootness.3

The appeals and cross-appeals are hereby dismissed only to the limited extent necessary to recognize the settlement of five named plaintiffs. Despite this settlement and the proposed Fourth Amended Complaint, virtually all of the appeals and cross-appeals remain pending for our review because (i) the two remaining plaintiffs asserted several of the claims underlying the moving defendants' appeals, and (ii) plaintiffs propose to file a Fourth Amended Complaint preserving for the putative class the claims asserted only by the settling plaintiffs through the addition of the proposed intervenor plaintiffs.

II

We review de novo the grant or denial of a motion to dismiss a complaint. See Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 235 (2d Cir.2006). " To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘ state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, __ U.S. __, __, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " 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." Id.

III

We first consider defendants' challenge to the district court's order denying dismissal of claims related to the conditions of confinement-claims 3, 5 (in part), 7, 8, and 20-23.

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