Flores v. United States

• Decision Date: 04 November 2015
• Docket Number: No. 14–CV–3166.,14–CV–3166.
• Citation: 142 F.Supp.3d 279
• Parties: Alba Quiñonez FLORES, Plaintiff, v. UNITED STATES of America, Does 1–10, Defendants.
• Court: U.S. District Court — Eastern District of New York

142 F.Supp.3d 279

Alba Quiñonez FLORES, Plaintiff,

v.UNITED STATES of America, Does 1–10, Defendants.

No. 14–CV–3166.

United States District Court, E.D. New York.

Signed Nov. 4, 2015.

David Kwang Soo Kim, Flushing, NY, Ira J. Kurzban, Kurzban Kurzban Weinger, Tetzeli & Pratt, P.A., Jennie Santos–Bourne, Americans for Immigrant Justice, Miami, FL, for Plaintiff.

Margaret M. Kolbe, Seth D. Eichenholtz, United States Attorney's Office, Brooklyn, NY, for Defendants.

MEMORANDUM & ORDER

JACK B. WEINSTEIN, Senior District Judge.

Table of Contents

I.	Introduction	282
II.	Claims	283
III.	Facts	283
IV.	28 U.S.C. § 1404(a)	286

A.	Law	286
B.	Application of Law to Facts	287

1.	Availability of Alternative Forum	287
2.	Convenience of Witnesses	287
3.	Convenience of Parties	288
4.	Location of Relevant Documents and Access to Sources of Proof	288
5.	Witnesses	289
6.	Relative Means of the Parties	289
7.	Forum's Familiarity with Governing Law	289
8.	Deference Owed to Plaintiff's Choice of Forum	290
9.	Trial Efficiency and Interests of Justice	291

V. Conclusion 291

I. Introduction

This case illustrates the decreasing importance of venue changes for convenience. Video and other techniques permit effective hearings almost anyplace.

Seeking relief under the Federal Tort Claims Act, plaintiff, residing in Brooklyn, New York, entered the country illegally through Texas. She alleges that she was mistreated at the border by federal officers, suffering as a result serious, permanent medical problems. She is currently on parole seeking asylum.

The government moved for a discretionary transfer to the Southern District of Texas as a more convenient venue. See 28 U.S.C. § 1404(a). The motion was stayed so that discovery could be completed on the issue. Flores v. United States, 108 F.Supp.3d 126, 131, No. 14–CV–3166, 2015 WL 3622275, *4 (E.D.N.Y. June 11, 2015).

The government's motion is denied. The case can conveniently be tried in Brooklyn.

I. Claims

In February 2013, plaintiff, Alba Quiñonez Flores, a citizen of El Salvador, rafted across the Rio Grande River, crossing illegally from Mexico into Texas. Pl.'s 2d Am. Compl., Aug. 13, 2014, ECF No. 12 ("Pl.'s 2d Am. Compl."), at ¶ 13; Pl.'s Notice of Mot. to Strike Def.'s Affirm. Defenses at Ex. A., ECF No. 18–1. In the desert, a few days later, she was apprehended and detained by United States Customs and Border Protection ("CBP") agents approximately 80 miles north of the border, near the small town of Falfurrias, Texas. Pl.'s 2d Am. Compl. at ¶¶ 15–38. She was brought to the CBP's Falfurrias Station. There she was held for three days under what she claims were intolerable conditions. Id. at ¶ 15; Hr'g Tr., June 9, 2015, ECF No. 68–1 ("June 9 Hr'g Tr."), at 4:11–13.

Plaintiff is being treated for serious medical problems in the Eastern District of New York. June 9 Hr'g Tr. at 5:18–22; Pl.'s 2d Am. Compl. at ¶ 8.

Ms. Flores is seeking asylum based on a claimed violent sexual assault on herself in El Salvador. She has reasonable grounds for believing that similar assaults will be repeated should she return to that country. Def.'s Mem. of Law in Supp. of its Mot. to Change Venue (ECF No. 20–1) ("Def.'s Mem."), at 6–7; Pl.'s 2d Am. Compl. at ¶ 8; Pl.'s Mem. of Law in Opp'n to Def.'s Mot. to Change Venue (ECF No. 24) ("Pl.'s Opp'n"), at 5. She has received a discretionary grant of parole. See 8 U.S.C. § 1182(d)(5)(A).

Ms. Flores sues the United States, pursuant to the Federal Tort Claims Act, for its negligence, negligent supervision, and intentional infliction of emotional distress based on her treatment while in United States custody in Texas. See 28 U.S.C. § 2671 et seq. ("FTCA"); Pl.'s 2d Am. Compl. at ¶¶ 6, 47–62.

Pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), plaintiff also sues unidentified United States CBP agents in their individual capacities for alleged violations of her rights under the Fifth Amendment to the United States Constitution.See id. at ¶¶ 1, 6, 63–83. Compensatory and punitive damages are sought. Id. at 25 ("Prayer for Relief").

III. Facts

Plaintiff is a 29–year–old female citizen of El Salvador. Pl.'s 2d Suppl. Br. in Opp'n to Def.'s Mot. to Change Venue, filed Sept. 3, 2015 (ECF No. 79), at Ex. F (Report of Daphne Glindmeyer, M.D.) ("Glindmeyer Report"), at 9. In 2002, while still in El Salvador, she was kidnapped by members of the "MS gang" and held for a month. Id. at 10. She was handcuffed and repeatedly raped, becoming pregnant. As a result she suffered from Posttraumatic Stress Disorder and required in-patient and out-patient psychiatric treatment for anxiety, depression, and insomnia. Id. at 11, 15.

In October 2012, one of the individuals who had participated in the kidnapping attempted to seize her again. After this attack plaintiff decided to immigrate to the United States illegally so no one would know where she was. Id. at 12.

Plaintiff paid coyotes to help her cross into the United States. She fell behind the group she was with and was picked up by CBP. Id. Agents took plaintiff to their Falfurrias CBP Station. There she was detained for several days.

Upon her arrival at the Station, plaintiff claims that medication she was carrying for her diabetes and high blood pressure was confiscated and discarded, along with her coat. Id. at 12; Suppl. Decl. of Margaret M. Kolbe, Dec. 30, 2014 (sealed), at Ex. Y (Apr. 27, 2015 Dep. of Alba Quiñonez Flores) ("Pl. Dep."), at 151:13–15. Informing a CBP agent of her need for the medication, she was told that there was nothing the agent could do to help her.

Plaintiff alleges that she was detained in one of the "hold rooms," which she described as very cold and over-crowded. There were no beds. She alleges there was an average of 15–20 people in one small room, standing or sitting on a hard bench or the floor. Glindmeyer Report at 12–13; Pl. Dep. at 211:6–213:21; Pl.'s 2d Suppl. Br. in Opp'n to Def.'s Mot. to Change Venue, Sept. 3, 2015, at Ex. H, ECF No. 79 (Video of Inspection of Falfurrias Border Patrol Station) ("Video Exhibit"). Below are screenshots from a recorded inspection of the Falfurrias Station showing the holding rooms plaintiff claims she occupied for three days with fifteen to twenty people, and in which she slept:

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She claims she was not given a blanket, had to sleep on the floor or a bench, and had no access to water. Pl. Dep. at 214:8–215:4. Her food was solely three sandwiches a day, each containing a single slice of bologna. Id. at 215:25–216:10. She missed some of the feedings because a swollen ankle prevented her from getting to the door where the sandwiches were being distributed. Id. at 216:13–217:4.

Plaintiff fainted in the detention center. She alleges that she was left lying on the floor for hours before being taken to the hospital. Pl.'s Suppl. Br. in Opp'n to Def.'s Mot. to Change Venue, May 26, 2015, at Ex. A, ECF No. 60–1, at 220:14–222:5. She was taken to nearby Edinburg Regional Medical Center. Pl. Dep. at 220:14–220:21.

Ultimately, she was diagnosed with anxiety due to the CBP incarceration, syncope (temporary loss of consciousness due to a decrease in blood pressure), and vasovagal (a decrease in heart rate leading to syncope). 2d Suppl. Decl. of Margaret M. Kolbe, Sept. 3, 2015 (ECF No. 78), at Ex. HH (July 27, 2015 Dep. of Jesus E. Corpus), at 27:11–28:1.

Plaintiff's expert physician reported that during her time in detention at the Falfurrias facility, plaintiff experienced an acute exacerbation of anxiety and depression. Glindmeyer Report at 16.

From Texas, plaintiff was sent to the Broward Transitional Center in Florida. While detained there, she was twice taken to a mental clinic and found to be experiencing an "alteration" in mental status. Id. She was described as being depressed with a flat affect, not thinking appropriately, and being easily distractible. Id.

Dr. Daphne Glindmeyer, M.D., plaintiff's medical expert, concluded that plaintiff suffers from Posttraumatic Stress Disorder, and that her experiences at the Falfurrias Station exacerbated this condition. Id.

Her attending psychiatrist from the Ambulatory Behavioral Health Services at Elmhurst Hospital Center, Dr. Basilisa Canto, M.D., agrees that plaintiff suffers from Posttraumatic Stress Disorder. In addition, she finds that plaintiff has a Major Depressive Disorder, diabetes, hypertension, migraine headaches, Bell's Palsy, and kidney infections. Decl. of Ira J. Kurzban, dated Sept. 8, 2015 (ECF No. 81) (attaching letter from Dr. Basilisa Canto, M.D.); Hr'g Tr., Sept. 29, 2015 ("Sept. 29 Hr'g Tr."), at 24:3–15.

Both Dr. Canto and Dr. Glindmeyer reported that a Texas trial would be more difficult for her than one in New York. Decl. of Ira J. Kurzban, dated Sept. 8, 2015 (ECF No. 81) (attaching letter from Dr. Basilisa Canto, M.D.) (concluding that "traveling is not advisable [for plaintiff] ... due to the risk for potentially deadly illness"); Sept. 29 Hr'g Tr., at 26:24–27–8, 40:12–41:24.

IV. 28 U.S.C. § 1404(a)

A. Law

Section 1404(a) of Title 28 of the United States Code provides for changes in venue for convenience. It reads: "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought ...." 28 U.S.C. § 1404(a).

"In determining whether to transfer venue, courts examine: (1) whether the action could have been brought in the proposed forum; and (2) whether the transfer would promote the convenience of parties and witnesses and would be in the interests of justice." EasyWeb Innovations, LLC v. Facebook, Inc., 888 F.Supp.2d 342, 347 (E.D.N.Y.2012) (citation omitted). Factors considered in determining whether a transfer is justified include:

(1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of

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