Lopez v. Aran

• Decision Date: 31 October 1984
• Docket Number: Civ. No. 83-2388 (JP).
• Citation: 600 F. Supp. 323
• Parties: Celso Lopez LOPEZ, Plaintiff, v. M. ARAN; J. Figueroa; I. Moreno, individually and as agents of the U.S. INS; Allen C. Nelson; and James H. Walker, Defendants.
• Court: U.S. District Court — District of Puerto Rico

600 F. Supp. 323

Celso Lopez LOPEZ, Plaintiff, v. M. ARAN; J. Figueroa; I. Moreno, individually and as agents of the U.S. INS; Allen C. Nelson; and James H. Walker, Defendants.

Civ. No. 83-2388 (JP).

United States District Court, D. Puerto Rico.

October 31, 1984.

Jose A. Lugo, Rio Piedras, P.R., William Santiago Sastre, San Juan, P.R., for plaintiff.

Eduardo Toro Font, Asst. U.S. Atty., Lolita Semidey, I.N.S., Hato Rey, P.R., for defendants.

OPINION AND ORDER

PIERAS, District Judge.

This is an action brought by Celso López López (plaintiff) pursuant to the Fourth and Fifth Amendments of the United States Constitution, seeking declaratory and injunctive relief against INS Commissioner Allen Nelson, INS District Director James Walker and INS agents M. Aran, J. Figueroa and I. Moreno in their official capacity for abuse of their statutory authority. In addition, plaintiff is seeking compensatory and punitive damages against defendants Aran, Figueroa and Moreno in their personal capacity under the constitutional tort theory established in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Plaintiff has invoked the jurisdiction of 28 U.S.C. § 1331 to support his Bivens -type claim.

On July 10, 1984, defendants filed a Motion to Dismiss and/or for Summary Judgment pursuant to Rules 12 and 56 of the Federal Rules of Civil Procedure. This Court takes said motion as one for summary judgment. On August 9, 1984, plaintiff filed an Opposition to Motion to Dismiss and/or for Summary Judgment. On the basis of the defendants' Motion for Summary Judgment and plaintiff's Motion in Opposition, together with the accompanying affidavits and documents submitted, this Court reaches the following determinations of fact and law with regard to plaintiff's claim for compensatory and punitive damages against defendants Aran, Figueroa and Moreno.

A. FINDINGS OF FACT:

The material facts required for this Court's disposition of plaintiff's Bivens-type action are not in dispute.

1. Defendant Ivette Moreno was stationed and working as an agent of the United States Immigration and Naturalization Service (hereinafter INS) at the Isla Verde International Airport in Puerto Rico on or about July 16, 1982. Defendants María del Mar Arán and Juan E. Figueroa were both stationed and working as agents of the INS at the Isla Verde International Airport on or about October 2, 1982.

2. Plaintiff Celso López López is a United States citizen and a resident of the Commonwealth of Puerto Rico. He is also an attorney with experience in immigration law.

3. Plaintiff filed this complaint on September 30, 1983.

4. On or about July 16, 1982, after 4:00 p.m., plaintiff approached Gate No. 7 at Isla Verde International Airport to board a Capitol Airlines flight bound for New York City. Defendant Moreno was conducting pre-boarding immigration inspection of passengers enroute to New York.

5. As part of the inspection, defendant Moreno questioned plaintiff about his citizenship. Plaintiff did not answer and instead presented a card to defendant which read "Do you suspect that I am an alien?" Defendant Moreno then proceeded to conduct inspection of other passengers in line. Plaintiff then asked defendant whether she would let him go through. Agent Moreno responded affirmatively, explaining that she knew from his answer that he was Puerto Rican. Plaintiff then verbally challenged defendant Moreno's authority to question him regarding his citizenship before walking away to board his flight.

6. On or about October 2, 1982, plaintiff approached Gate No. 3 at Isla Verde International Airport in order to board an Eastern Airlines flight bound for Baltimore-Washington International Airport. Defendants Arán and Figueroa were conducting preflight immigration inspection near the Eastern departure gate.

7. As plaintiff passed the agents, defendant Figueroa asked plaintiff his country of citizenship. Plaintiff did not reply, but looked at the agents as he proceeded past them to place his luggage on the conveyor belt at the security inspection point. The defendants followed plaintiff to the security checkpoint and agent Figueroa repeated the question. Plaintiff then presented the prepared card which read "Do you suspect that I am an alien?" Defendant Arán then made a statement which evidenced her knowledge of the July 16, 1982 incident with defendant Moreno.

8. As agent Arán proceeded to conduct pre-inspection of other passengers, agent Figueroa continued the attempt to inspect plaintiff. Plaintiff's luggage had not been allowed to go through the security X-ray.

9. After Arán rejoined Figueroa, plaintiff attempted to pass through the departure gate, but was impeded by a security guard. Plaintiff then sought out an Eastern Airlines Supervisor, after which he retrieved his luggage and left the departure area without boarding the plane.

B. CONCLUSIONS OF LAW:

1. Whether Plaintiff Has Properly Pleaded a Bivens-Type Cause of Action.

Defendants Arán, Figueroa and Moreno argue that plaintiff, naming them "individually and as agents" in the caption to the complaint, is attempting to recover damages from them in their official capacity. In order to do so, say the defendants, plaintiff must sue under the Federal Tort Claims Act (hereinafter FTCA), not directly under the Constitution in tort as done in Bivens. The government further argues that, since plaintiff has not exhausted his administrative remedies under the FTCA, plaintiff is barred from recovery of any damages against the United States in this Court.

Plaintiff appears to be in full agreement with defendant's conclusion that no recovery in damages against the United States is possible in this case. In his opposition to defendant's motion for summary judgment and in his supporting affidavit, plaintiff states that he is suing the agents under a Bivens action in their personal capacities only.

There is no question that a Bivens action may be brought against federal officials in their individual capacity even if plaintiff could have instituted an action under the FTCA so long as said remedy is not equally effective. Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). Even assuming that plaintiff's intentional tort claims against the federal agents in this case met the exception to the exception provided in 28 U.S.C. § 2680 for suit under the FTCA, the advantages to plaintiff of the Bivens action over the FTCA remedy in allowing punitive damages and going beyond the limits of state law support plaintiff's right to opt for a Bivens -type remedy. Furthermore, there is no reason why plaintiff may not sue the government agents personally for damages while simultaneously suing the United States agency and the agents officially for injunctive and declaratory relief. See American Association of Commodity Traders v. Dept. of the Treasury, 598 F.2d 1233 (1st Cir.1979) (plaintiff could have sued federal agents personally while suing United States agency, although sovereign immunity of the United States would not be waived).

Although plaintiff's complaint is somewhat obfuscated, it cannot be said that plaintiff has failed to properly plead a Bivens -type cause of action. Plaintiff has invoked the jurisdiction of 28 U.S.C. § 1331 as required. In addition, plaintiff has asserted constitutionally protected rights under the Fourth and Fifth Amendments. Plaintiff has also stated a cause of action for damages, charging the federal agents with commission of the torts of false imprisonment and intentional infliction of emotional distress. Plaintiff has prayed for compensatory damages in the amount of $21,030.00, which includes $1,000.00 for loss of a day in school in Washington, D.C., and $30.00 for ground transportation resulting from plaintiff's missed flight, as well as $10,000.00 in punitive damages.

Furthermore, neither of the situations in which a cause of action under Bivens can be defeated is present in this case. First, this case involves no special factors counseling hesitation in the absence of affirmative action by Congress since the federal agents sued here enjoy the adequate protection of the qualified immunity defense. See Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Second, there is no explicit congressional declaration that an alternative exclusive remedy exists; plaintiff has the option of electing between a FTCA and a Bivens remedy. Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).

2. Whether Bivens Action Against Defendant Moreno Is Time-Barred.

The government has argued that the one year statute of limitations for tort actions in Puerto Rico should be applied to Bivens -type actions as it has been to civil rights actions under 42 U.S.C. § 1983. See, e.g., Ramírez de Arellano v. Alvarez de Choudens, 575 F.2d 315, 318 (1st Cir.1978) (applying 31 L.P.R.A. 5298 to bar plaintiff's 1983 action). If applied, plaintiff's action against Ivette Moreno for her conduct on or about July 16, 1982 would be barred.

There is no direct Supreme Court ruling on this issue. However, the Supreme Court has held that the body of law governing official immunity under 42 U.S.C. § 1983 should apply to Bivens -type actions as well in order to avoid the incongruous treatment which would otherwise result, especially where federal and state officials are sued for the same civil rights violations. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Although the Circuits which have addressed the issue of a Bivens statute of limitations have agreed that the most analogous state law statute of limitations should be applied, there is disagreement over whether to use the limitations period prescribed for tort actions, for actions not otherwise prescribed by law, or for other analogous causes of action. E.g., Beard v. Robinson, 563 F.2d 331 (7th Cir.1977); Regan v. Sullivan, 557 F.2d 300 (2d Cir.1977).

There exists...