Flores v. U.S. Immigration & Customs Enforcement

• Decision Date: 10 October 2018
• Docket Number: CASE NO. 3:18-cv-05139-BHS-DWC
• Court: U.S. District Court — Western District of Washington
• Parties: JESUS CHAVEZ FLORES, Plaintiff, v. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.

JESUS CHAVEZ FLORES, Plaintiff, v. UNITED STATES IMMIGRATIONAND CUSTOMS ENFORCEMENT, et al., Defendants.

CASE NO. 3:18-cv-05139-BHS-DWC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

October 10, 2018

REPORT AND RECOMMENDATION

Noting Date: October 26, 2018

The District Court referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge David W. Christel. Presently pending before the Court is GEO Defendants'¹ Motion and Memorandum for Summary Judgment Dismissal of Plaintiff's Second Amended Complaint ("Motion"). Dkt. 60.

The Court concludes Plaintiff has failed to state a cognizable cause of action under the First Amendment against GEO Defendants, failed to show a dispute of material fact regardinghis assault and battery claims against GEO Defendants, failed to show a dispute of material fact regarding a false imprisonment claim against Defendants McHatton, Portillo and GEO Does 1-10, and failed to state a claim regarding the negligence claims against GEO Defendants. The Court, however, finds there is a genuine issue of material fact regarding the false imprisonment claim alleged against Defendants The GEO Group, Inc. and Clark.

Accordingly, the Court recommends GEO Defendants' Motion (Dkt. 60) be granted-in-part and denied-in-part. The Court recommends the false imprisonment claim alleged against Defendants The GEO Group, Inc. and Clark proceed, but all other claims against the GEO Defendants be dismissed.

I. BACKGROUND

Plaintiff Jesus Chavez Flores, an immigrant detainee housed at the Northwest Detention Center ("NWDC"), alleges GEO Defendants violated his First Amendment rights by retaliating against him when he engaged in a hunger strike. Dkt. 54. Specifically, Plaintiff asserts GEO Defendants violated his "right to freedom of speech and freedom of expression by assaulting him, placing him in solitary confinement, and changing his security level in retaliation for his free speech activities." Id. at ¶ 107. Plaintiff also alleges state law claims of assault and battery, false imprisonment, and negligence against GEO Defendants based on their conduct toward Plaintiff during and following the hunger strike. Id. at ¶¶ 111-20.

GEO Defendants filed the Motion on July 10, 2018. Dkt. 60. Plaintiff filed a Response and GEO Defendants filed their Reply on August 3, 2018. Dkt. 68, 74. The Court heard oral argument on September 7, 2018.²

II. STANDARD OF REVIEW

Summary judgment is proper only if the pleadings, discovery, and disclosure materials on file, and any affidavits, show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt"); see also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

III. DISCUSSION

In the Motion, GEO Defendants assert there is no genuine issue of material fact as to Plaintiff's: (A) First Amendment claim; (B) assault and battery claim; (C) false imprisonment claim; and (D) negligence claims. Dkt. 60.

A. First Amendment

Plaintiff contends GEO Defendants violated his First Amendment rights by retaliating against him when he engaged in a hunger strike at the NWDC. See Dkt. 54. First, GEO Defendants allege the First Amendment is not enforceable against GEO Defendants and therefore the First Amendment claim should be dismissed. Dkt. 60, 74. Second, if the Courtdetermines the First Amendment is enforceable against GEO Defendants, GEO Defendants contend they are entitled to summary judgment because no genuine issue of material fact remains regarding Plaintiff's First Amendment claim. Id.

1. First Amendment Enforceability

GEO Defendants assert, as private actors, they are not liable for purposes of the First Amendment under 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), or 5 U.S.C. §§ 702, 706 ("Administrative Procedure Act" or "APA"). Dkt. 60, pp. 5-6. In his Response to the Motion, Plaintiff states he is not bringing a First Amendment claim against GEO Defendants under § 1983, Bivens, or the APA. Dkt. 68, pp. 7-8. Rather, Plaintiff bases his First Amendment claim against GEO Defendants "on the federal courts' equity jurisdiction to enforce the Constitution." Id. at p. 8. During oral argument, Plaintiff's counsel clarified Plaintiff is alleging a stand-alone cause of action for injunctive relief under the First Amendment. To support this cause of action, Plaintiff relies on 28 U.S.C. § 1331, Bell v. Hood, 327 U.S. 678 (1946) and Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), and out-of-circuit case law.

Federal courts are courts of limited jurisdiction. See 28 U.S.C. § 1331. Article III of the Federal Constitution states lower federal courts have original jurisdiction over "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." U.S. CONST., Art. III, §§ 1, 2. Under § 1331, district courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." "[W]here the complaint . . . is so drawn as to seek recovery directlyunder the Constitution or laws of the United States, the federal court . . . must entertain the suit." Bell, 327 U.S. at 681-82.³

Here, the Second Amended Complaint was drawn to seek recovery, in part, on the ground that all Defendants, including GEO Defendants, violated Plaintiff's First Amendment rights. Dkt. 54, ¶¶ 105-110. As such, the Second Amended Complaint is drawn to seek recovery directly under the Constitution. Therefore, the federal district court has subject matter jurisdiction over this case under § 1331. See Bell, 327 U.S. 678.

However, § 1331 does not create a substantive cause of action. Under § 1331, a source of federal law, other than § 1331, must give rise to a private right of action. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005) (stating jurisdiction under § 1331 is not enough; "a plaintiff must also state a claim upon which relief may be granted, what used to be called stating a cause of action"); White v. Paulsen, 997 F. Supp. 1380, 1382-83 (E.D. Wash. 1998) ("because § 1331 is a pure jurisdictional statute that does not, on its own, create a private right of action for all violations of federal law, the critical question is whether a right of action is created by some other source of federal law"); see also Montana-Dakota Util. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 249 (1951) ("The Judicial Code, in vesting jurisdiction in the District Courts, does not create causes of action, but only confers jurisdiction to adjudicate those arising from other sources which satisfy its limiting provisions."). Therefore, the Court must determine if Plaintiff's First Amendment claim against GEO Defendants states a cause of action.

During oral argument, Plaintiff maintained the First Amendment creates a stand-alone cause of action for injunctive relief. The Supreme Court has established a cause of action may be implied directly under the Constitution, but has stated courts should not imply rights and remedies as a matter of course, "no matter how desirable that might be as a policy matter[.]" Ziglar v. Abbasi, 137 S.Ct. 1843, 1856 (2017) (internal quotations omitted). Notably, the Supreme Court has only found implied causes of action in specific instances under the Fourth, Fifth, and Eighth Amendments. See Bivens, 403 U.S. 388 (finding Fourth Amendment cause of action against federal officers); Davis v. Passman, 442 U.S. 228, 242 (1979) (recognizing Bivens claim in Fifth Amendment cause of action for violation of employee's due process rights); Carlson v. Green, 446 U.S. 14 (1980) (recognizing Bivens claim under Eighth Amendment's prohibition on cruel and unusual punishment against prison officials). The Supreme Court has "declined to extend Bivens to a claim sounding in the First Amendment." Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (assuming without deciding a First Amendment claim was actionable under Bivens).

Additionally, the Ninth Circuit has determined a plaintiff "has no cause of action directly under the United States Constitution." Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992); see also Miller v. U.S., 73 F.3d 878, 881 (9th Cir. 1995) ("the Constitution does not create a fundamental right to bring suit for injuries caused by government employees"); Spotted Eagle v. Blackfeet Tribe of Blackfeet Indian Reservation, City of Browning, 301 F. Supp. 85, 90 (D. Mont. 1969) (quoting Bell v. Hood, 71 F.Supp. 813, 818 (S.D. Cal. 1974)) ("'the mere enactment of the Civil Rights Act, 8 U.S.C.A. 43, 47, strongly indicates that Congress did not regard the Constitution itself as providing a cause of action to individuals whose rightsthereunder are violated'").⁴ In fact, a district court in California has found a plaintiff "cannot bring a claim directly under the First Amendment[.]" Clarke v. Upton, 703 F.Supp.2d 1037,...