Cruz-Hernandez v. Johnson Cnty. Det. Ctr., Civil Action No. 3:16-CV-220-M-BH

• Decision Date: 06 January 2017
• Docket Number: Civil Action No. 3:16-CV-220-M-BH
• Parties: ARCIDES CRUZ-HERNANDEZ, Plaintiff, v. JOHNSON COUNTY DETENTION CENTER, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

ARCIDES CRUZ-HERNANDEZ, Plaintiff, v. JOHNSON COUNTY DETENTION CENTER, et al., Defendants.

Civil Action No. 3:16-CV-220-M-BH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

January 6, 2017

Referred to U.S. Magistrate Judge

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Pursuant to Special Order No. 3-251, this pro se case has been automatically referred for full case management. Before the Court for recommendation are U.S. Immigration and Customs Enforcement's Motion to Dismiss for Lack of Subject Matter Jurisdiction or, in the alternative, Motion for a More Definite Statement and Brief in Support, filed July 5, 2016 (doc. 30), and Defendant Johnson County Detention Center's Rule 12(b)(6) Motion to Dismiss, filed July 6, 2016 (doc. 33). Based upon the relevant filings and applicable law, both motions to dismiss should be GRANTED, and the alternative motion for a more definite statement should be DENIED as moot.

I. BACKGROUND

On January 5, 2016, Arcides Cruz-Hernandez (Plaintiff) filed this pro se action under 42 U.S.C. § 1983 in the Southern District of Florida against the Johnson County Detention Center in Cleburne, Texas, and the U.S. Immigration and Customs Enforcement (ICE) (collectively Defendants). (See doc. 1.)¹ His live fourth amended complaint² against "Johnson County Law Enforcement Center (ICE)" appears to allege that while he was an immigration detainee³ at that facility on August 8, 2014,he slipped and fell "all the way to the bottom of the stairs" after being "order[ed]" by the detention center staff to mop parts of the facility. (doc. 24 at 3-4, 20, 21.)⁴ He was taken to the detention center's infirmary, received medication, and subsequently taken to a hospital for additional treatment. (See id. at 4, 20, 21.) He contends that he did not receive adequate care and had to be hospitalized again for nine days beginning on December 3, 2014, while he was at the East Hidalgo Detention Center. (See id. at 4.) He alleges that he still suffers from "excruciating pain" because of his fall, and he seeks additional medical treatment for his injuries, $9,000,000.00 in compensatory damages for permanent injuries, and asylum. (Id.) He also alleges that he did not receive "a chance to see the immigration judge" during his immigration proceedings and has been discriminated against "for being Hispanic [and] for not knowing how to read or write" in English. (Id. at 9, 31.)

On July 5, 2016, ICE moved to dismiss Plaintiff's complaint for lack of subject matter jurisdiction and, alternatively, for a more definite statement. (doc. 30.) Johnson County Detention Center also moved to dismiss for failure to state a claim. (doc. 33.) Plaintiff appears to have responded to both motions in his "Memorandum in Support of Complaint" filed August 24, 2016. (doc. 40.) Both Defendants filed replies on September 9, 2016.⁵ (docs. 42, 43.)

II. RULE 12(b)(1)

ICE moves to dismiss Plaintiff's claims under Rule 12(b)(1) for lack of subject matter jurisdiction. (doc. 30 at 5-6.)

A. Legal Standard

"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

A motion to dismiss under Rule 12(b)(1) challenges a court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Such a motion "may be raised by a party, or by a court on its own initiative at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006). A court must dismiss the action if it determines that it lacks jurisdiction over the subject matter. Fed. R. Civ. P. 12(h)(3); Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). The dismissal "is not a determination of the merits," however, and "it does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam).

A district court may dismiss for lack of subject matter jurisdiction based on: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981) (en banc). A motion to dismiss based on the complaint alone presents a "facial attack" that requires the court to merely decide whether the allegations in thecomplaint, which are presumed to be true, sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger, 644 F. 2d 521, 523 (5th Cir. 1998). "If sufficient, those allegations alone provide jurisdiction." Id. When evidence is presented with the motion to dismiss, the attack is "factual." Williamson, 645 F.2d at 413. In that case, "no presumptive truthfulness attaches to [the] plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. A factual attack may occur at any stage of the proceedings. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). Regardless of the nature of attack, the party asserting federal jurisdiction continually carries the burden of proof to show it exists. Ramming, 281 F.3d at 161.

Here, ICE relies solely on the complaint to support its motion to dismiss, so it presents a facial attack that does not require the resolution of factual matters outside the pleadings. See Williamson, 645 F.2d at 412-13.

B. Immigration Claims

ICE contends that to the extent that Plaintiff is "attempting to assert a new fear-based, protection" asylum claim or to collaterally attack his immigration proceedings, the Court lacks subject matter jurisdiction. (doc. 30 at 4-5.)

An alien is eligible for asylum if the Attorney General or the Secretary of Homeland Security determines that the alien is a refugee. 8 U.S.C. § 1158(b)(1)(A); see Zhu v. Gonzales, 493 F.3d 588, 602 (5th Cir. 2007). "The Attorney General [or the Secretary of Homeland Security] has complete discretion whether to grant asylum to eligible individuals." Zhu, 493 F.3d at 602 (citing Majd v. Gonzalez, 446 F.3d 590, 595 (5th Cir. 2006)). District courts lack jurisdiction to hear an original asylum action. See 8 U.S.C. § 1158(a)(3); see Babo v. Gonzales, 172 F. App'x 69, 72 (5th Cir. 2006).

Plaintiff's fourth amended complaint alleges that gang members killed his father in Honduras, and he was forced by a Mexican cartel to transport drugs because its members threatened to kill his mother if he did not. (doc. 24 at 9-10.) To the extent that his complaint seeks to assert an original claim for asylum, the Court lacks jurisdiction.

Plaintiff also alleges that he did not have a "chance to see the immigration judge" during his immigration proceedings because he was discriminated against "for being Hispanic [and] for not knowing how to read or write." (doc. 24 at 9, 31.) To the extent that he seeks review of those proceedings, this Court lacks jurisdiction because "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter . . . [e]xcept as provided in this section and notwithstanding any other provision of law."⁶ Lopez v. Prendes, No. 3:11-CV-3184-M, 2012 WL 3024209 at *1 (N.D. Tex. June 27, 2012), adopted by, 2012 WL 3024750 (N.D. Tex. July 24, 2012) (citing 8 U.S.C. § 1252(g)). A district court lacks jurisdiction to review a removal order. See Atakpor v. U.S. Citizenship & Immigration Servs., No. 3:04-CV-2068-H, 2004 WL 2208127 at *1 (N.D. Tex. Oct. 1, 2004); see also Nsangwa v. INS, No. 3:01-CV-733-X, 2001 WL 910391 at *1 (N.D. Tex. Aug. 6, 2001). Moreover, the Fifth Circuit has held that Bivens and § 1983 actions are not available for claims that can be addressed in civil immigration removal proceedings. See Daniel v. Zanier, No. 14-CV-3532, 2015 WL 5015897 at *2 (W.D. La. Aug. 21, 2015) (citing De La Paz v. Coy, 786 F.3d 367, 380 (5th Cir. 2015)).

To the extent Plaintiff attempts to collaterally attack or seek review of his immigration proceedings, these claims should also be dismissed for lack of jurisdiction.

C. FTCA

ICE contends that to the extent that Plaintiff's allegations that he sustained injuries in a "slip-and-fall" accident at the Johnson County Detention Center are intended to assert claims under the Federal Tort Claims Act (FTCA), the Court lacks subject matter jurisdiction because he failed to exhaust administrative remedies. (doc. 30 at 5-6.)

"The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress." Block v. N.D. ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983). "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994). Because federal sovereign immunity is jurisdictional in nature, the consent or waiver must be unequivocally expressed. Freeman v. United States, 556 F.3d 326, 335 (5th Cir. 2009).

Under the FTCA, "Congress waived the United States' sovereign immunity for claims arising out of torts committed by federal employees." Ali v. Fed. Bureau of Prisons, 552 U.S. 214 (2008); see also 28 U.S.C. §§ 1346(b)(1), 2671-2680. To successfully sue under the FTCA, a claim must be: (1) against the United States; (2) for money damages; (3) for injury or loss of property, or personal injury or death; (4) caused by the negligent or wrongful act or...