Chairez v. County of Van Buren

• Citation: 542 F. Supp. 706
• Decision Date: 24 June 1982
• Docket Number: No. K 79-429.,K 79-429.
• Parties: Jose Olvera CHAIREZ, Plaintiff, v. The COUNTY OF VAN BUREN; Myron Southworth, Undersheriff of Van Buren County; both individually and in their official capacities; and the United States Immigration and Naturalization Service; Paul McKinnon, District Director, Detroit District; Paul Christopher, Assistant Director of Deportations; Jerald D. Jondall, Chief, Border Patrol; all individually and in their official capacities and William Duckham, Ronald Dowdy and Robert McNamara, Defendants.
• Court: U.S. District Court — Western District of Michigan

542 F. Supp. 706

Jose Olvera CHAIREZ, Plaintiff, v. The COUNTY OF VAN BUREN; Myron Southworth, Undersheriff of Van Buren County; both individually and in their official capacities; and the United States Immigration and Naturalization Service; Paul McKinnon, District Director, Detroit District; Paul Christopher, Assistant Director of Deportations; Jerald D. Jondall, Chief, Border Patrol; all individually and in their official capacities and William Duckham, Ronald Dowdy and Robert McNamara, Defendants.

No. K 79-429.

United States District Court, W. D. Michigan, S. D.

June 24, 1982.

Gail McCarthy & Vincent Beckman, Mich. Migrant Legal Assistance Project, Inc., Berrien Springs, Mich., Ronald Kirschenheiter, Mich. Migrant Legal Assistance Project, Inc., Grand Rapids, Mich., for plaintiff.

Ward S. Hamlin, Jr., Paw Paw, Mich., for county defendants.

Robert Greene, Grand Rapids, Mich., for federal defendants.

OPINION

ENSLEN, District Judge.

Plaintiff has filed a Second Amended Complaint in this action which arose as a result of a stop and arrest by Defendants John Gaborik and John Baldwin.¹ He seeks relief against the federal Defendants under a Bivens-type theory for alleged violation of his constitutional rights, under 42 U.S.C. §§ 1985 and 1986, and under federal immigration laws and regulations. Currently, this matter is before the Court on Plaintiff's Motion for Partial Summary Judgment and Motion for Summary Judgment filed by Defendant, United States Immigration and Naturalization Services (INS). For purposes of these motions, a stipulated statement of facts has been agreed upon which provides as follows:

Plaintiff Jose Olvera Chairez is a migrant farmworker who, during the summer of 1979, was employed harvesting crops within the County of Van Buren, State of Michigan. On July 11, 1979, Plaintiff and co-worker, Julian Ramirez, were taking a lunch break and traveling together in the co-worker's pickup truck. While they were traveling, at approximately noon, Defendant Baldwin, Chief of Police for the City of Hartford, and Defendant Gaborik, Deputy Sheriff for the County of Van Buren, pulled the truck over to the side of the road. The reason given for stopping the vehicle is that Julian Ramirez had been mentioned as fitting the general description of a suspect being sought in connection with a criminal sexual assault case.

Baldwin and Gaborik approached the truck, after bringing it to a stop, with their guns drawn. Baldwin approached on the driver's side of the truck and asked the driver, Ramirez, for identification. A driver's license and other identification was produced by Ramirez thereby allowing Baldwin to immediately discern that Ramirez was the suspect being sought in connection with the aforestated criminal sexual assault investigation.

Gaborik, meanwhile, approached on the passenger side of the vehicle, identified himself, and asked the Plaintiff to step out of the truck. Plaintiff was then frisked in a search for weapons, was questioned by Gaborik regarding his immigration status, his place of birth, and was referred to by Gaborik as a "wetback". At the time of the questioning Gaborik did not inform Plaintiff of any rights.

At the conclusion of the questioning at the scene of the stop, Plaintiff was handcuffed and arrested under suspicion that he had effected an illegal entry into the United States. Following the arrest, Baldwin and Gaborik transported Ramirez and Plaintiff to Faulkner Farms where Baldwin explained to Plaintiff, through a translator, that he had been arrested because he had entered the country illegally and that he would be sent back to Mexico. Plaintiff was then transported from Faulkner Farms to the Hartford Police station.

Chief of Police Baldwin then placed a call, at approximately 1:00 p. m., July 11, to the Detroit office of the US Border Patrol from the Hartford police station and spoke with William L. Duckham. On July 11, 1979, William L. Duckham was employed as Deputy Chief Patrol Agent for the United States Border Patrol and was performing in that capacity. His superiors were Chief Patrol Agent Jerald Jondall and Regional Commissioner Gordon Ruth.

Baldwin informed Duckham that he had a subject in custody who he believed to be an "illegal alien", or an "undocumented person from Mexico". Duckham requested that Baldwin allow him to speak with Plaintiff over the telephone.

Plaintiff thereupon was subjected to a telephonic interrogation by Duckham who inquired about Plaintiff's name, parents, country of birth, documentation to be in the United States, and time and place of entry into this country. Prior to this questioning, Defendant Duckham admits that he did not inform Plaintiff of any rights.

At the conclusion of the telephonic interrogation Duckham spoke with Baldwin again and advised him that the subject was undocumented, that he was placing a hold on him, and that a confirming LEIN message would be sent.

After this interrogation Plaintiff was transported to the Van Buren County Jail, where he was booked and charged for "illegal entry", and thereafter incarcerated in the county jail. Plaintiff remained in jail without having a face-to-face interview with anyone from the Immigration and Naturalization Service or the US Border Patrol from July 11 until July 13, 1979.

Moreover, it was not until July 12, 1979, the day following the phone interrogation of Plaintiff by Defendant Duckham, that Duckham instructed Border Patrol Agent Ronald Dowdy to travel to the Van Buren County Jail to execute the necessary immigration documents for the processing of Plaintiff. Duckham supplemented this instruction by specifically instructing Dowdy to go to the Van Buren County Jail on July 13, 1979. That date was the first day anyone from INS made face-to-face contact with Plaintiff.

In order to process someone for Voluntary Departure it is necessary to execute forms I-213, I-274 and I-43; and, before Voluntary Departure may be executed, it is necessary for the person voluntarily departing the country to sign form I-274. Plaintiff, when arrested by the City and County officials on July 11, 1979, had not signed form I-274.

Furthermore, throughout Duckham's telephonic interrogation of Plaintiff on July 11, 1979, Duckham did not fill out any forms, or otherwise process the Plaintiff for Voluntary Departure. It was not until July 13, 1979, when US Border Patrol Agents Dowdy and McNamara had their face-to-face interview with Plaintiff, that the processing of Plaintiff began.

On July 13 Dowdy and McNamara, at the Van Buren County Jail, conducted an interrogation of Plaintiff. At this face-to-face interview Agent McNamara began the written processing of Plaintiff for Voluntary Departure. Following a lunch break, Dowdy and McNamara worked to complete the necessary forms from the answers they had obtained and continued to question the Plaintiff. However late in the afternoon of July 13, Voluntary Departure was withdrawn, and Plaintiff was thereupon served by McNamara with a Warrant of Arrest and Order to Show Cause. This suit subsequently ensued.

Before addressing the merits of the instant motions, it is important to understand, not only what is before the Court by way of these motions, but, more precisely, what is not before the Court. Only one federal Defendant has filed a Motion for Summary Judgment, that being the INS. Court records disclose that the remaining federal Defendants have not joined in that Motion or filed a Motion of their own. Yet a cursory review of INS's supplemental brief in support of its April 30, 1980 Motion for Summary Judgment reveals that the arguments raised therein have application not only to the INS but to all of the federal Defendants. Indeed, those Defendants implicitly request summary relief via this supplemental brief. Such relief cannot, however, be granted in the absence of a properly filed Motion. To grant summary relief in this fashion, the Court would, in essence, have to ignore the very purpose for which the Federal Rules of Civil Procedure were implemented, and great prejudice would unquestionably result to the Plaintiff's case. Accordingly, the Court is constrained to consider only those aspects of the arguments contained within the supplemental brief which pertain to the alleged liability of the INS. A summary disposition, if it is found to be justified, may only be granted to this federal Defendant.

For the most part, the supplemental brief centers upon the Constitutional claims asserted by the Plaintiff under Bivens v. 6 Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Historically, while violations of constitutional rights have long stated a federal cause of action when the defendants were acting under color of state law, constitutional deprivations committed by federal officers often remained unredressed in the absence of statute. The Supreme Court created a remedy for the violation of Fourth Amendment rights in Bivens against these individual officers and has since recognized a cause of action under a Bivens rationale for violations of the Fifth and Eighth Amendments. See respectively Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) and Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). This form of remedy, though, is available only against individual federal officials. The converse to this form of action is a suit against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. Here, the plaintiff has filed suit against the INS, an agency of the United States, but has not brought that suit pursuant to 28 U.S.C. § 2671 et seq., instead premising his action on an alleged violation of statutory rights. It is apparent therefore, that a discussion of Bivens has no application to the potential liability of the INS, and therefore, that portion of the argument in the supplemental brief must be disregarded.

The...