Corpeno-Argueta v. United States, & B.I. Inc.

• Decision Date: 20 September 2018
• Docket Number: Case No. 17-cv-7167
• Parties: Maria Isabel CORPENO-ARGUETA, Plaintiff, v. UNITED STATES of America, and B.I. Incorporated, Defendants.
• Court: U.S. District Court — Northern District of Illinois

341 F.Supp.3d 856

Maria Isabel CORPENO-ARGUETA, Plaintiff,

v.UNITED STATES of America, and B.I. Incorporated, Defendants.

Case No. 17-cv-7167

United States District Court, N.D. Illinois, Eastern Division.

Signed September 20, 2018

Gregory Olmstead, Jay Paul Deratany, Deratany Firm, LLC, Chicago, IL, for Plaintiff.

AUSA, Kathleen Marie Flannery, United States Attorney's Office, James J. O'Hagan, Alexander C. Ion, Kevin Christopher Rasp, Shane Bradwell, O'Hagan Meyer LLC, Chicago, IL, for Defendants.

MEMORANDUM AND OPINION ORDER

Robert M. Dow, Jr., United States District JudgeBefore the Court is the motion to dismiss [18] for lack of subject matter jurisdiction filed by Defendant United States of America. For the reasons set forth below, the motion [18] is denied. The case is set for further status on October 4, 2018 at 9:00 a.m.

I. Background

Plaintiff Maria Isabel Corpeno-Argueta—a citizen of the Republic of El Salvador—crossed the United States border on or about December 26, 2014, seeking asylum in the United States. [16, at ¶ 1.] At the time that Plaintiff filed her amended complaint, her asylum case was still pending. Id. Defendant United States of America—by and through its employees working for the U.S. Department of Homeland Security's U.S. Immigration and Customs Enforcement ("ICE")—arrested Plaintiff upon entering the United States. Id. at ¶ 7.

On or about January 12, 2015, ICE placed Plaintiff in an alternative to detention program known as Intensive Supervision Appearance Program ("ISAP"). Id. at ¶ 8. When Plaintiff was placed in ISAP, Plaintiff's spouse and two minor children resided in Waukegan, Illinois. Id. at ¶ 9. Plaintiff did not have any criminal record. Id. As a condition of Plaintiff's release into the community to live with her family, ICE required Plaintiff (as a participant in ISAP) to be placed in an ankle bracelet to be monitored electronically. Id. at ¶ 10. Plaintiff alleges that the decision to place her in an ankle monitoring device was made by ICE. Id. at ¶ 11. On or about January 12, 2015, Defendant B.I. Incorporated ("B.I.")—by and through its employees working in the scope of their employment at the Chicago office of ISAP—affixed a monitoring device to Plaintiff's right ankle. Id. at ¶ 12. Although Defendant B.I. placed the monitoring device on Plaintiff, removal of the monitoring device required action by ICE. Id. at ¶ 13. Plaintiff complied with all check-in and reporting requirements for ISAP by appearing in-person at the Chicago office of ISAP, which was operated by B.I. through a contract with ICE (or the United States of America). Id. at ¶ 16.

From January 2015 through September 2015, on each occasion that Plaintiff appeared in-person at the Chicago office of ISAP—approximately two times per month through July 2015 and one time per month in August and September 2015—Plaintiff complained to the ISAP office that the ankle monitoring device was too tight and too bulky, causing Plaintiff numbness, pain, and difficulty walking. Id. at ¶ 17. In March 2015, Plaintiff started requesting that the ISAP office remove and replace the electronic monitor with a monitor that was not as tight and not as bulky. Id. at ¶ 19. In the alternative, Plaintiff requested that the electronic monitor be loosened or placed on her other ankle. Id. The ISAP office refused Plaintiff's requests. Id. at ¶ 20

According to Plaintiff, starting in January 2015, when an employee of Defendant United States of America (the "United States" or the "Government") made monthly visits to Plaintiff's home, Plaintiff complained to the employee that the ankle monitor was too tight and too bulky, causing numbness, pain, and difficulty walking. Id. at ¶ 18. From the time of the decision to place Plaintiff in an ankle monitoring device on or about January 12, 2015, through October 4, 2015, ICE did not review the need for Plaintiff's placement in the ankle monitoring device. Id. at 15.

In September 2015, the ISAP office referred Plaintiff to a medical clinic in Waukegan to be evaluated based on her complaints, but the first available appointment at the medical clinic was on October 20, 2015. Id. at ¶ 21. On October 4, 2015, while walking down stairs at her residence, Plaintiff sustained a right ankle fracture

caused by the physical stress the ankle monitor placed on her ankle. Id. at ¶ 22. Plaintiff sought emergency medical treatment the same day. Id. The following day, Plaintiff underwent surgical treatment consisting of open reduction internal fixation of the right ankle fracture. Id.

Plaintiff filed this lawsuit on October 4, 2017. [See 1.] Plaintiff seeks to bring a claim under the Federal Tort Claims Act against the Government (Count I) and a negligence claim against B.I. (Count II). [See 16.] Defendant B.I. answered Plaintiff's amended complaint [17], but the Government moved to dismiss the amended complaint for lack of jurisdiction. [See 18.] In support of its motion, the Government attached the declaration of Paul C. Morley, an ICE deportation officer. [19-1.] Officer Morley avers that responsibility for the placement and monitoring of the ankle bracelet had been contracted by ICE to a private vendor (i.e. , B.I.) and that ICE was not involved with or responsible for the placement or monitoring of the device on Plaintiff. [19-1 (Morley Decl.), at ¶¶ 4-6, 11-12.] Officer Morley further avers that ICE and the Department of Homeland Security (DHS) were not responsible for monitoring the day-to-day operations of B.I. Id. at ¶¶ 6, 11-12. According to Officer Morley, "[o]nce [Plaintiff] was enrolled in the monitoring program provided by B.I., ICE and its employees were not involved with or responsible for the placement or monitoring of the GPS ankle bracelet on [Plaintiff]." Id. at ¶ 12. "ICE employees did not conduct any interviews with [Plaintiff], either in-person or by telephone, and ICE employees did not conduct any home inspections to verify [Plaintiff's] compliance with the supervised release order." Id.

Attached to the declaration are portions of the United States' contract with B.I. [19-1, at 6-9.] The full contract is referenced in the government's memorandum in support of its motion to dismiss [19, at 2] and is publicly available on ICE's website. Id. at 2 n.3. Although the Court cannot summarize the substance of all 276 pages of contractual documents, the Court notes that the contract contains detailed requirements regarding how the contract is to be carried out. See Contract No. HSCEDM-14-D-00004 between B.I. and United States of America, available at https://www.ice.gov/doclib/foia/contracts/biIncorporatedHSCEDM14D00004.pdf.

II. Legal Standard

The standard that the Court applies to a Federal Rule of Civil Procedure Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction depends on the purpose of the motion. See Apex Digital, Inc. v. Sears, Roebuck & Co. , 572 F.3d 440, 443-44 (7th Cir. 2009) ; United Phosphorus, Ltd. v. Angus Chem. Co. , 322 F.3d 942, 946 (7th Cir. 2003) (en banc ), overruled on other grounds by Minn–Chem, Inc. v. Agrium, Inc. , 683 F.3d 845 (7th Cir. 2012). If a defendant challenges the sufficiency of the allegations regarding subject matter jurisdiction, the Court accepts all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff. See Apex Digital, 572 F.3d at 443-44 ; United Phosphorus , 322 F.3d at 946. In ruling on the motion, the district court also may look beyond the jurisdictional allegations alleged in the complaint and take into consideration whatever evidence has been submitted on the issue to determine if subject matter jurisdiction exists.

Cty. of Cook v. HSBC N. Am. Holdings Inc. , 136 F.Supp.3d 952, 958 (N.D. Ill. 2015). The burden is on the party asserting that jurisdiction exists—here, Plaintiff. Id. ; see also Gonzalez v. Bank of Am., N.A. , 2014 WL 26283, at *2 (N.D. Ill. Jan. 2, 2014) ("the plaintiff bears the burden of establishing the basis for the court's jurisdiction").

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ) (alteration in original). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level." E.E.O.C. v. Concentra Health Servs., Inc. , 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Dismissal for failure to state a claim under Rule 12(b)(6) is proper "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief." Twombly, 550 U.S. at 558, 127 S.Ct. 1955. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all of Plaintiff's well-pleaded factual allegations and draws all reasonable inferences in Plaintiff's favor. Killingsworth v. HSBC Bank Nev., N.A. , 507 F.3d 614, 618 (7th Cir. 2007).

III. Discussion

The government generally is "immune from suits for money damages under the principle of sovereign immunity." Collins v. United States , 2005 WL 946896, at *3 (N.D. Ill. Apr. 19, 2005). However, through the Federal Tort Claims Act ("FTCA"), Congress has enacted a broad waiver of that immunity authorizing suits for money damages against the government "for injury or...