Lawal v. McDonald, 022614 FED3, 13-1881

Docket Nº:13-1881
Opinion Judge:SHWARTZ, Circuit Judge.
Party Name:OLIVER LAWAL; DAOSAMID BOUNTHISANE; GAZALI SHITTU, Appellants v. MARK MCDONALD; WILLIAM RILEY; FREDERICK R. CHOW
Attorney:Jim R. Ogorzalek [ARGUED] William & Mary Law School Appellate and Supreme Court Clinic Tillman J. Breckenridge, Esq. Tara A. Brennan, Esq. Reed Smith LLP Counsel for Appellants. Viveca D. Parker, Esq. [ARGUED] Office of United States Attorney, Counsel for Appellees.
Judge Panel:Before: HARDIMAN, SHWARTZ and SCIRICA, Circuit Judges.
Case Date:February 26, 2014
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

OLIVER LAWAL; DAOSAMID BOUNTHISANE; GAZALI SHITTU, Appellants

v.

MARK MCDONALD; WILLIAM RILEY; FREDERICK R. CHOW

No. 13-1881

United States Court of Appeals, Third Circuit

February 26, 2014

NOT PRECEDENTIAL

Argued: November 13, 2013.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. No. 2-12-cv-03599) District Judge: Hon. C. Darnell Jones, II.

Jim R. Ogorzalek [ARGUED] William & Mary Law School Appellate and Supreme Court Clinic Tillman J. Breckenridge, Esq. Tara A. Brennan, Esq. Reed Smith LLP Counsel for Appellants.

Viveca D. Parker, Esq. [ARGUED] Office of United States Attorney, Counsel for Appellees.

Before: HARDIMAN, SHWARTZ and SCIRICA, Circuit Judges.

OPINION

SHWARTZ, Circuit Judge.

Oliver Lawal, Daosamid Bouthisane, and Gazali Shittu (collectively, "Plaintiffs") appeal the dismissal of their Amended Complaint alleging that Special Agents of the Bureau of Immigration and Customs Enforcement ("ICE") Mark McDonald, William Riley, and Frederick R. Chow (collectively, "Defendants") violated their Fourth and Fifth Amendment rights. For the reasons set forth below, we will affirm in part, vacate in part, and remand.

I.1

According to the Amended Complaint, Plaintiffs are United States citizens who are licensed to drive taxicabs in Philadelphia. In June 2009, Defendant McDonald requested and thereafter received a list of all drivers certified to drive taxis in Philadelphia from the Philadelphia Parking Authority's Taxicab and Limousine Division ("PPA"). Over the next year, the PPA and ICE, including Defendants, exchanged versions of the list of drivers in an effort to create a list that identified illegal aliens certified to operate taxis in Philadelphia. Once the list was finalized, those on it, including Plaintiffs, were sent letters advising them that their accounts were purportedly audited, they were entitled to a refund, and they were invited to the PPA facility on June 30, 2010 to collect it.

When they arrived at the PPA facility, each Plaintiff provided his driver's license, taxicab ID, name, date of birth, address, and Social Security number to an unidentified female ICE agent, and was instructed to enter another room to receive his refund. Upon entering the other room, Defendants and other ICE agents under Defendants' direction or control "suddenly and violently attacked, " threw against a wall, and handcuffed each Plaintiff, informed each Plaintiff that he was "being arrested for an alleged immigration violation, " and interrogated each Plaintiff for more than one hour. App. 47-48, 52, 56-57. Each Plaintiff informed the ICE agents that he was a United States citizen.

Thereafter, each Plaintiff was told he had been mistakenly detained, but nonetheless was held for several additional hours with other detained taxi drivers, and was forbidden to stand or speak. Defendants advised Plaintiffs that they were not permitted to leave because Defendants did not want them to have an opportunity to advise other taxicab drivers of the ICE operation occurring at the PPA facility that day. There were approximately four uniformed ICE agents and ten plainclothes ICE agents in the room with the detained drivers, many of them had guns strapped to their waists, and several ICE agents were standing by the exit.

Plaintiffs filed a Complaint asserting Bivens2 claims for violations of the Fourth and Fifth Amendments. Defendants filed a motion to dismiss, or in the alternative, for summary judgment, and attached declarations from each Defendant that purported to describe their role, or lack thereof, in the events alleged in the Complaint. In lieu of responding to the motion, and as permitted under Fed.R.Civ.P. 15(a)(1), Plaintiffs filed an Amended Complaint. Despite having an opportunity to include information from Defendants' declarations, no information from the declarations was included in the Amended Complaint.

Like the initial Complaint, the Amended Complaint asserted Bivens claims alleging that Defendants' gross negligence and deliberate indifference violated Plaintiffs' Fourth Amendment rights to be free from unreasonable seizure of their persons by: (1) failing to ensure that no United States citizen was on the list; (2) arresting Plaintiffs without probable cause; and (3) failing to release Plaintiffs once they learned they were U.S. citizens. Plaintiffs did not allege claims based upon alleged excessive force or racial or ethnic profiling.

The District Court granted Defendants' renewed motion to dismiss3 the Amended Complaint with prejudice, finding that Plaintiffs' Fourth and Fifth4 Amendment claims failed to state plausible claims for relief, and regardless, Defendants were entitled to qualified immunity. This appeal followed.

II.

Plaintiffs appeal the rulings that: (1) they failed to plausibly plead that each defendant personally participated in each of the alleged wrongful acts, and (2) Defendants, as federal officers, were entitled to qualified immunity.

To survive a motion to dismiss under Rule 12(b)(6), the pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). A complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). This pleading standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation, " and "'naked assertions' devoid of 'further factual enhancement'" are insufficient. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

To state a claim for unlawful seizure under the Fourth Amendment, a plaintiff must show that a "seizure" occurred and that it was unreasonable. United States v. Smith, 575 F.3d 308, 313 (3d Cir. 2009). To be personally liable under Bivens, a defendant cannot merely be liable under the theory of respondeat superior, but rather "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. Thus, for the Amended Complaint to be sufficient, Plaintiffs must plead facts plausibly demonstrating an unreasonable seizure occurred and that either: (a) Defendants directly participated in unreasonably seizing Plaintiffs; (b) Defendants directed others to unreasonably seize Plaintiffs; or (c) Defendants were the people in charge during the operation and they had knowledge of and acquiesced in Plaintiffs' unreasonable seizure by their subordinates.5See Santiago v. Warminster Twp., 629 F.3d 121, 129 (3d Cir. 2010).

Excluding Plaintiffs' allegations that are so conclusory that they are not entitled to the assumption of truth, 6 Iqbal, 556 U.S. at 680-81, we examine the Amended Complaint to determine whether its factual content allows the Court to draw the reasonable inference that Defendants are liable for the misconduct alleged. Id. at 678 (citing Twombly, 550 U.S. at 556). To evaluate the plausibility of the claims in this case, we separate the allegations into the three separate acts that Plaintiffs claim violate the Fourth Amendment: (1) the creation of the list and its use to lure Plaintiffs to the PPA facility; (2) Plaintiffs' treatment upon arrival and before their citizenship status was confirmed; and (3) Plaintiffs' detention at the PPA facility after their U.S. citizenship was confirmed.

As to Plaintiffs' claim that the Fourth Amendment was violated by the creation and use of the list to lure Plaintiffs to the facility, Defendants assert that the operation was conducted in accordance with 8 U.S.C. § 1357(a)(1), which provides that "[a]ny officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant . . . to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States." Because the Fourth Amendment limits an agent's authority under Section 1357(a)(1), agents are allowed to detain and interrogate someone under this statute as long as they have a reasonable suspicion that such person is here illegally. United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975).

To determine whether an officer had reasonable suspicion, we must consider, based upon the "totality of the circumstances, " "whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273 (2001) (citation omitted). The officer cannot pick someone out of a crowd at random or solely on the basis of nationality and question them without some objective reason. See Brignoni-Ponce, 422 U.S. at 883; Orhorhaghe v. INS, 38 F.3d 488, 497 (9th Cir. 1994). Once, however, the officer has...

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