Frias v. Torrez, CIVIL ACTION NO. 3:12-CV-1296-B
| Decision Date | 06 February 2013 |
| Docket Number | CIVIL ACTION NO. 3:12-CV-1296-B |
| Parties | DANIEL FRIAS, Plaintiff, v. ARTURO TORREZ, United States Customs and Border Protection Officer, and UNITED STATES OF AMERICA, Defendants. |
| Court | U.S. District Court — Northern District of Texas |
DANIEL FRIAS, Plaintiff,
v.
ARTURO TORREZ, United States Customs and Border Protection Officer, and UNITED STATES OF AMERICA, Defendants.
CIVIL ACTION NO. 3:12-CV-1296-B
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
SIGNED: February 6, 2013
Before the Court is Defendants' Motion to Dismiss (doc. 14). For the reasons that follow, the Motion is GRANTED in part and DENIED in part as follows.
Plaintiff Frias brings this action against Defendants Arturo Torrez and the United States of America. Plaintiff Frias, a Hispanic male, complains that he was stopped and arrested in violation of his Fourth Amendment right to be free of unreasonable searches and seizures. Arturo Torrez is a Customs and Border Protection Officer. On April 28, 2010, Frias and a passenger were driving on a highway in Abilene, Texas over 250 miles away from the Mexican border. According to the facts alleged in the amended complaint, Frias was abiding by all traffic laws, there was nothing suspicious
Page 2
about the vehicle he was driving, and there was no legal reason for Officer Torrez to pull Frias over.
Officer Torrez was in his patrol car, stopped on the opposite side of the highway when Frias drove past him. Torrez turned his vehicle around and pulled up next to Frias and looked into Frias' vehicle as Frias kept his eyes forward. Torrez then pulled behind Frias and turned on his emergency lights, initiating a traffic stop. Frias alleges that Torrez' only reason for pulling him over was his Hispanic appearance.
Once stopped, Torrez approached Frias' truck from the passenger side and asked in Spanish whether Frias had any identification. Frias presented a valid New Mexico driver's license to Torrez. Torrez proceeded to walk around to the driver's side and told Frias to put his hands out the window, which Frias did. Torrez then handcuffed Frias and asked if he had any other form of identification. Frias responded he did not. Torrez told Frias that if he lied to him regarding the next question, he would spend years in jail. Torrez then inquired about Frias' immigration status, specifically asking if Frias was "legal." The amended complaint states only that Frias "responded to that question." Pl. Am. Comp. ¶ 73. After this unspecified response, Torrez pulled Frias from the truck and placed him in the Customs and Border Protection ("CBP") vehicle and departed the scene.
Frias further alleges that he was stopped and arrested because of his Hispanic appearance as part of a regular pattern and practice of CBP patrol agents in Texas. Frias alleges that CBP agents stop Hispanics without reasonable suspicion to inquire about their immigration status. Frias describes other instances in which Officer Torrez stopped and interrogated Hispanic individuals without reasonable suspicion. Id. at ¶¶ 86-89.
Frias avers that he submitted an administrative complaint to the Customs and Border Protection agency that was not timely addressed before he filed this action, as required by the Federal
Page 3
Tort Claims Act ("FTCA") in 28 U.S.C. § 2675. Thus, Frias alleges he exhausted his administrative remedies and this suit is timely. Pl. Am. Comp. ¶ 11. Defendants do not refute Frias' exhaustion of administrative remedies.
Frias asserts five claims against Defendants in his amended complaint, all arising from the April 28, 2010 stop and arrest. Frias' first two claims are against the United States and Torrez for declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (2010), and the Administrative Procedures Act, 5 U.S.C. §§ 500-596 (2000). First he claims his arrest was in violation of 8 U.S.C. § 1357(a)(2) and second that Torrez stopped Frias without reasonable suspicion and not for the purposes of patrolling the border, therefore exceeding his authority under 8 U.S.C. § 1357(a)(3). Frias seeks a declaration of his rights in both of these claims. Frias' third claim is for unlawful seizure against Torrez individually under the Fourth Amendment pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396 (1971). Frias' fourth and fifth claims are against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (2000), for false imprisonment and assault, respectively.
Plaintiff Frias has responded (doc. 22) to Defendants' motion to dismiss and Defendants have replied (doc. 24). The motion is ripe for decision.
Page 4
A. Motion to Dismiss under Rule 12(b)(1)
"The party asserting jurisdiction bears the burden of proof on a 12(b)(1) motion to dismiss." Life Partners Inc. v. United States, 650 F.3d 1026, 1029 (5th Cir. 2011). "The court takes as true all of the allegations of the complaint and the facts set out by the plaintiff." Id. The claims will not be dismissed "unless it appears certain that the plaintiff[] cannot prove any set of facts in support of [his] claim which would entitle [him] to relief." Id. (internal quotations omitted).
B. Motion to Dismiss under Rule 12(b)(6)
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) authorizes the court to dismiss a plaintiff's complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss "[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). In order to survive such a motion, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "The plausibility standard is
Page 5
not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). When well-pleaded facts fail to achieve this plausibility standard, "the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Fed. Rule Civ. P. 8(a)(2)).
A. Subject matter jurisdiction
Defendants argue that the Immigration and Nationality Act, specifically 8 U.S.C. § 1252(a)(2)(B)(ii) (West 2005),2 prevents this Court from exercising subject matter jurisdiction over Plaintiff Frias' claims. Defendants state that § 1252(a)(2)(B)(ii) prevents judicial review of any action in the subchapter that is within the discretion of the Attorney General. See id. Defendants argue that the acts of stopping and arresting Frias were within the discretion of immigration officer Torrez, and thus the Attorney General.3 Consequently, Defendants argue that because the immigration officer here made a discretionary decision to arrest Frias, under § 1252(a)(2)(B)(ii) this Court lacks jurisdiction to hear this case.
Page 6
Defendants fail to cite to any precise language in either the statutory text or the case authority that supports this interpretation of § 1252(a)(2)(B)(ii), while Plaintiff Frias directs the Court to multiple decisions rejecting this very argument. "[D]ecisions that violate the Constitution cannot be 'discretionary,' so claims of constitutional violations are not barred by § 1252(a)(2)(B)." Kwai Fun Wong v. United States, 373 F.3d 952, 963 (9th Cir. 2004). A district court held that "[b]ecause [immigration] officials do not have discretion to violate the constitution, [Section 1252(a)(2)(B)(ii)] will not bar [plaintiff's] claims based on unconstitutional conduct by these officials." El Badrawi v. Dep't Homeland Sec., 579 F. Supp. 2d 249, 268-70 (D. Conn. 2008). Similarly, the district court in Diaz-Bernal concluded that the constitutional claims against Immigration and Customs Enforcement officers for violation of the Fourth and Fifth Amendments were not barred by Section 1252(a)(2)(B)(ii). Diaz-Bernal v. Myers, 758 F. Supp. 2d 106, 126 (D. Conn. 2010). Likewise, a plaintiff's Fifth Amendment claim was not barred when the plaintiff alleged federal agents subjected him to physical and psychological abuse and knowingly supplied false information to prolong his detention. Khorrami v. Rollince, 493 F. Supp. 2d 1061, 1070 (N.D. Ill. 2007). "These are not the sorts of discretionary actions Congress sought to shield from judicial review." Id. "It is, of course, a tautology that a federal official cannot have...
To continue reading
Request your trial