810 F.2d 1363 (5th Cir. 1987), 86-3232, Lynch v. Cannatella

Docket Nº:86-3232.
Citation:810 F.2d 1363
Party Name:Errol LYNCH, et al., Plaintiffs-Appellees, v. Joseph S. CANNATELLA, Jr., et al., Defendants-Appellants.
Case Date:February 27, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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810 F.2d 1363 (5th Cir. 1987)

Errol LYNCH, et al., Plaintiffs-Appellees,


Joseph S. CANNATELLA, Jr., et al., Defendants-Appellants.

No. 86-3232.

United States Court of Appeals, Fifth Circuit

February 27, 1987

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Wm. Guste, Jr., Atty. Gen., Kendall L. Vick, Asst. Atty. Gen., Norman A. Mott, III, Partee, Leefe, Waldrip & Roniger, New Orleans, La., for defendants-appellants.

Ellen Sue Shapiro, Office of Immigration Lit., Civ. Div., U.S. Dept. of Justice, Thomas W. Hussey, Washington, D.C., for Lambert.

Nicolas Estiverne, Vernon Thomas, New Orleans, La., for plaintiffs-appellees.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, RUBIN, and POLITZ, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The issue is whether official immunity shields federal and state officials from suit by foreign stowaways who, after being discovered aboard a barge, were detained and allegedly mistreated before being deported. We hold that even excludable aliens are entitled to the protection of the due process clause while they are physically in the United States, but the charges against some of the officials, federal and state, are insufficient to penetrate their official-immunity shield. Because official immunity protects only individuals, not state agencies, we affirm the district court judgment refusing the state-agency defendants such immunity. And, because it is not yet clear whether the wrongs alleged suffice to state a claim for a violation of the stowaways' constitutional rights by a number of individual policemen against whom Sec. 1983 charges are made, we remand for further clarification of the charges.

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The plaintiffs, sixteen Jamaican nationals, allege that in March 1985 they attempted to enter the United States illegally by stowing away aboard a grain barge bound for ports on the Mississippi River. Because the facts have not yet been developed by summary judgment motions, we recite their version of events. Two days before the vessel reached the mouth of the River the captain of the vessel discovered the stowaways and informed the vessel owner by radio of his discovery. The owner of the vessel, without notifying the Immigration and Naturalization Service of the stowaways' presence, approached Edward S. Reed, the Executive Director of the Port of New Orleans, who was employed by the Board of Commissioners of the Port, and asked him if the stowaways could be kept in the custody of the Port of New Orleans Harbor Police while the vessel continued upstream to load additional grain. Reed thereupon ordered the Harbor Police to detain the aliens upon their arrival in New Orleans and to hold them until the barge returned to the Port after its upstream voyage. The stowaways would then be returned to the vessel's owner for passage back to Jamaica.

When the barge arrived at the mouth of the Mississippi, two of the stowaways jumped into the river and tried to swim ashore. The captain of the ship reported the incident to the Coast Guard, which retrieved the pair from the water and placed them in the custody of the INS in New Orleans. The other fourteen remained on the barge until it reached New Orleans where harbor policemen boarded the vessel and took custody of them at gunpoint. The group was then taken to Harbor Police headquarters and locked into short-term detention cells that contained no beds, mattresses, pillows, or heaters. Two days later, INS officials, under the direction of INS District Director David Lambert, placed the two stowaways whom the Coast Guard had removed from the river in the custody of the Harbor Police, where they remained in short-term detention cells with the rest of the original group for eight more days.

The stowaways allege that they were subjected to severe mistreatment during their removal from the barge and while in the custody of the Harbor Police. They contend that it was unnecessary for harbor policemen to board the barge with weapons drawn, to handcuff them, or to chain them together. Such procedures, they complain, terrified and humiliated them. They assert that, while in Harbor Police custody, they were denied such minimal physical comforts as proper bedding, protection from the cold, and adequate access to toilet facilities. They were shackled and forced to perform labor on behalf of the Harbor Police and individual officers under the threat that refusal to work would result in withholding of food. They were required to take showers in unheated water and, when some refused because the cold water was making them ill, were hosed down with a fire hose that slammed them against the iron walls of their cells and left their clothes, blankets, and cell so wet that they could not go to sleep. They also assert that various individual harbor police officers beat them and threatened them. Finally, they contend that, when the Harbor Police were preparing to return them to the barge so that they could be shipped back to Jamaica, the officers drugged their coffee to make them drowsy, locked them in a steel shipping container that the barge owner had ordered to be modified for the return trip, and then sprayed them with "Stun," a deterrent gas.

The defendants contend that, because the barge on which the stowaways had arrived had no facilities for human occupancy or for security, the vessel's owner, in preparation for the return trip to Jamaica, modified a steel container to include toilet facilities and equipped it with life preservers, blankets, water and food. They assert that, to prevent the stowaways from escaping, it was necessary for the container to be locked, and it was lashed to the deck of the barge because there was no other place for it other than the unventilated hold of the barge. The stowaways contend that the

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container was in danger of being swept off the barge by heavy surf, and they interpreted remarks by some of the harbor police defendants as threats against their lives. They therefore feared that proper precautions had not been taken to insure their safety and that they would drown--trapped in the container--before reaching Jamaica. Whether their fears were justified was never tested, however, for a few hours after the barge left New Orleans it was intercepted by agents of the Federal Bureau of Investigation, the Coast Guard, and the INS who removed them from the barge. Shortly thereafter, the shipper flew the stowaways home by commercial airline at considerable expense.

Although the sixteen erstwhile stowaways have been unable to gain entrance into the United States since they were returned to their homeland, they have retained counsel who filed a damage action in Louisiana state court in their behalf. The original complaint alleged violations of the stowaways' rights under the United States Constitution, the Louisiana Constitution, 1 and the Louisiana Revised Statutes 2 relating to the rights of individuals arrested for, or convicted of, criminal offenses. It named as defendants the shipper who owned the barge, the tug boat that moved the barge, the unnamed captain of the tug boat, the New Orleans Harbor Police Department, and several named and unnamed Harbor Police officers. After the complaint had been amended to name the captain of the tug boat and to add an allegation that the defendants acted with the intent to cause the plaintiffs' death on the high sea, the case was removed, on defendants' motion, to federal court on the grounds that the parties were of diverse citizenship and the complaint predominantly stated federal claims. Following discovery, the complaint was amended to expand its allegations and to add as defendants David Lambert, Edward Reed, and the Board of Commissioners of the Port of New Orleans (Dock Board).

Lambert, as District Director of the INS, is accused of conspiring with the Harbor Police to violate the civil and constitutional rights of the two persons he allowed to be placed in the custody of the Harbor Police by failing to insure that they were held in a proper facility and treated humanely. He is also accused of conspiring with the shipping company and the Harbor Police to place the stowaways' lives in jeopardy by virtue of his alleged acquiescence in the shipper's plan to modify the barge as a means of transporting the stowaways back to Jamaica.

The Executive Director of the Port of New Orleans, Edward Reed, is said to have conspired with Patrick Bossetta, the President of the shipper, Pike Shipping Company, to incarcerate the fourteen stowaways removed by the Harbor Police from the barge in violation of their civil rights. He is charged with using his influence with the Dock Board to cause the Board to order the Harbor Police to arrest and hold the fourteen stowaways who remained on the barge. The Board is charged with authorizing the Harbor Police to take custody of the stowaways and with responsibility, as the owner of the facilities in which they were detained, for their physical discomfort.

Although the Harbor Police Department is accused in the amended complaint of having violated the stowaways' rights under both the Louisiana and the United States constitutions, the claims against its individual officers are founded upon the sole premise that the police officers' conduct violated the stowaways' civil rights under the United States Constitution. Neither in their amended complaint nor in their other pleadings or papers before this (or any other) court have the stowaways alleged that the acts of individual harbor police officers constitute violations of their rights under the Constitution of Louisiana or state tort law.

In its current form, the amended complaint names only a few police officers...

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