Vance v. Rumsfeld

Decision Date05 March 2010
Docket NumberNo. 06 C 6964.,06 C 6964.
Citation694 F. Supp.2d 957
PartiesDonald VANCE and Nathan Ertel, Plaintiffs, v. Donald RUMSFELD, United States of America and Unidentified Agents, Defendants.
CourtU.S. District Court — Northern District of Illinois

Michael I. Kanovitz, Arthur R. Loevy, Gayle M. Horn, Jonathan I. Loevy, Russell R. Ainsworth, Loevy & Loevy, Chicago, IL, for Plaintiffs.

James R. Whitman, Washington, DC, Eric S. Pruitt, United States Attorney's Office, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

WAYNE R. ANDERSEN, District Judge.

This case is before the court on defendant Donald Rumsfeld's motion to dismiss plaintiffs' second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion to dismiss 135 is denied as to Count I and granted with respect to Counts II and III.

BACKGROUND

According to the complaint, plaintiffs Donald Vance ("Vance") and Nathan Ertel ("Ertel"), both American citizens, traveled to Iraq in the fall of 2005 to work for a private Iraqi security firm, Shield Group Security ("SGS"). In the course of their employment, plaintiffs allegedly observed payments made by SGS agents to certain Iraqi sheikhs. Plaintiffs also claim to have seen mass acquisitions of weapons by SGS and sales in increased quantities. Questioning the legality of these transactions, Vance claims to have contacted the FBI during a return visit to his hometown of Chicago to report what he had observed. Vance asserts that he was put in contact with Travis Carlisle, a Chicago FBI agent, who arranged for Vance to continue to report suspicious activity at the SGS compound after his return to Iraq. Vance alleges that he complied with Carlisle's request and continued to report to him daily. Several weeks later, Vance claims Carlisle put him in contact with Maya Dietz, a United States government official working in Iraq. Dietz allegedly requested that Vance copy computer documents and forward them to her. Vance contends that he complied with that request.

Plaintiff Ertel claims to have been aware of Vance's communications with the FBI and alleges to have contributed information to those communications. Ertel asserts that both he and Vance communicated their concerns about SGS to Deborah Nagel and Douglas Treadwell, two other United States government officials working in Iraq.

Plaintiffs contend suspicions within SGS grew as to Vance and Ertel's loyalty to the company. On April 14, 2006, armed SGS agents allegedly confiscated plaintiffs' access cards which permitted them freedom of movement into the "Green Zone" and United States compounds. This action effectively trapped plaintiffs in the "Red Zone" and within the SGS compound. Plaintiffs claim to have contacted Nagel and Treadwell who instructed them to barricade themselves in a room in the SGS compound until United States forces could come rescue them. Plaintiffs subsequently were successfully removed from the SGS compound by United States forces.

Plaintiffs allege that they then were taken by United States forces to the United States Embassy. Plaintiffs allege that military personnel seized all of their personal property, including their laptop computers, cellular phones, and cameras. At the Embassy, plaintiffs claim they were separated and then questioned by an FBI agent and two other persons from United States Air Force Intelligence. Plaintiffs contend that they disclosed all their knowledge of the SGS transactions and directed the officials to their laptops in which most of the information had been documented. Plaintiffs also assert that they informed the officials of their contacts with Agent Carlisle in Chicago and Agents Nagel and Treadwell in Iraq. Following these interviews, plaintiffs claim they were escorted to a trailer to sleep for two to three hours.

Next, plaintiffs claim they were awakened by several armed guards who placed them under arrest and then handcuffed and blindfolded them and pushed them into a humvee. Plaintiffs contend that they were labeled as "security internees" affiliated with SGS, some of whose members were suspected of supplying weapons to insurgents. According to plaintiffs, that information alone was sufficient, under the policies enacted by Rumsfeld and others, for the indefinite, incommunicado detention of plaintiffs without due process or access to an attorney. Plaintiffs claim to have been taken to Camp Prosperity, a United States military compound in Baghdad. There they allege they were placed in a cage, strip searched, and fingerprinted. Plaintiffs assert that they were taken to separate cells and held in solitary confinement 24 hours per day.

After approximately two days, plaintiffs claim they were shackled, blindfolded, and placed in separate humvees which took them to Camp Cropper. Again, plaintiffs allege they were strip searched and placed in solitary confinement. During this detention, plaintiffs contend that they were interrogated repeatedly by military personnel who refused to identify themselves and used physically and mentally coercive tactics during questioning. All requests for an attorney allegedly were denied.

Plaintiffs allege that on or about April 20, 2006 they each received a letter from the Detainee Status Board indicating that a proceeding would be held on April 23, 2006 to determine their legal status as "enemy combatants," "security internees," or "innocent civilians." The letters informed plaintiffs that they did not have a right to legal counsel at that proceeding. The letters also informed plaintiffs they only would be permitted to present evidence or witnesses for their defense if evidence or witnesses were reasonably available at Camp Cropper. Vance and Ertel allege that on April 22, 2006 they each received a notice stating that they were "security internees." The letters informed plaintiffs they had the right to appeal by submitting a written statement to camp officials. Both Vance and Ertel appealed, requesting each other as witnesses and their seized personal property as evidence.

Plaintiffs allege they were taken before the Detainee Status Board on April 26, 2006. Ertel and Vance claim they were not provided with the evidence they requested, nor were they permitted to testify on the other's behalf. Plaintiffs assert that they were not permitted to see the evidence against them or confront any adverse witnesses.

On May 17, 2006, Major General John Gardner authorized the release of Ertel, allegedly 18 days after the Detainee Status Board officially acknowledged that he was an innocent civilian. Vance's detention continued an additional two months, and he alleges that he continuously was interrogated throughout his detention. On July 20, 2006, allegedly several days after Major General Gardner authorized his release, Vance was permitted to leave Camp Cropper. Neither Vance nor Ertel was ever charged with any crime.

On December 18, 2006, plaintiffs initiated this lawsuit against defendants for the alleged constitutional violations that occurred in Iraq by the unidentified agents of the United States as well as for the practices and policies enacted by Rumsfeld who allegedly authorized such actions by those agents. Rumsfeld has filed a motion to dismiss the claims against him.

STANDARD OF REVIEW

Rule 8 of the Federal Rules of Civil Procedure has long required that a plaintiff need only provide a "short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.CIV.P. 8(a). At the motion to dismiss stage, the court must accept the material facts contained in a plaintiff's complaint as true and generally construe the complaint in a light favorable to the plaintiff. See Jackson v. E.J. Brach Corp., 176 F.3d 971, 978 (7th Cir.1999). In two recent decisions, however, Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the United Supreme Court made clear that Federal Rule 8 is not a license for wild conspiracies or baseless speculation.

In Twombly, the Supreme Court held that pleading a sufficient antitrust violation requires more than a mere allegation of parallel conduct. 550 U.S. at 556, 127 S.Ct. 1955. Instead, a plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. The Seventh Circuit recently recognized that the lesson of Twombly is that "a defendant should not be forced to undergo costly discovery unless the complaint contains enough detail, factual or argumentative, to indicate that the plaintiff has a substantial case." Limestone Dev. Corp. v. Village of Lemont, Illinois, 520 F.3d 797, 802-803 (7th Cir. 2008).

In Iqbal, the Supreme Court clarified that Twombly is not limited only to the antitrust context and set forth the general burden plaintiffs face on a motion to dismiss. Iqbal, 129 S.Ct. at 1953. In Iqbal, the plaintiff Javaid Iqbal was arrested as part of a mass roundup of Muslim non-citizens in the period following September 11, 2001. Id. at 1951. He alleged that a policy of selectively detaining individuals based on race and religion improperly led to his arrest. Id. Iqbal named former Attorney General John Ashcroft and current Director of the Federal Bureau of Investigation Robert Mueller as defendants, arguing that each was an architect of the policy that permitted his detention. Id. Because these officials were named in the lawsuit, the Supreme Court was particularly concerned with ensuring that baseless or purely speculative allegations were properly dismissed. Id. at 1954. The Supreme Court recognized that it was "impelled to give real content to the concept of qualified immunity for high-level officials who must be neither deterred nor detracted from the vigorous performance of their duties." Id.

Iqbal undoubtedly requires vigilance on our part to ensure that claims which do not state a...

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