Mochama v. Zwetow
| Decision Date | 03 January 2017 |
| Docket Number | CIVIL ACTION No. 14-2121-KHV |
| Parties | JUSTINE O. MOCHAMA, Plaintiff, v. TIMOTHY ZWETOW, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Plaintiff Justine Osoro Mochama, an immigration detainee, brings suit against Timothy Zwetow, Rodney Nichols, Alan Van Skike, Jane Patty-Kill and Andrew Pleviak, who are employees of the United States Immigration and Customs Enforcement ("ICE").1 Plaintiff asserts five claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971): (1) against all defendants, excessive force in violation of the Fourth and Fifth Amendments (Count I); (2) against Nichols, Van Skike, Patty-Kill and Pleviak, failure to intervene and prevent excessive force in violation of the Fourth and Fifth Amendments (Count II); (3) against Zwetow and Nichols , unlawful solitary confinement in violation of the Fifth Amendment (Count III); (4) against all defendants, retaliation in violation of the First Amendment (Count IV); and (5) against all defendants, violation of plaintiff's right to counsel under the Fifth Amendment (Count V). This matter is before the Court on the Federal Defendants' Motion To Dismiss Or, In The Alternative, Motion For Summary Judgment (Doc. #74) filed July 29, 2015. For reasons set forth below, the Court finds that defendants' motion should be sustained in part.
Courts apply different standards to a motion to dismiss based on lack of subject matter jurisdiction under Rule 12(b)(1), Fed. R. Civ. P., and a motion to dismiss for failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P. Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012). When faced with a motion to dismiss which relies on both aspects of Rule 12, a court must determine whether it has subject matter jurisdiction under Rule 12(b)(1) before addressing the merits of the claims under a Rule 12(b)(6) analysis. State v. Nat'l Indian Gaming Comm'n, 151 F. Supp. 3d 1199, 1208 (D. Kan. 2015) (citing Bell v. Hood, 327 U.S. 678, 682 (1946)).
Defendants seek to dismiss plaintiff's claims in Counts III, IV and V for lack of subject matter jurisdiction. Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take the form of facial attacks on the complaint or factual attacks on the accuracy of its allegations. City of Albuquerque v. U.S. Dep't of Interior, 379 F.3d 901, 906 (10th Cir. 2004) (quoting Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002)). Here, defendants challenge the face of the complaint, so the Court presumes the accuracy of plaintiff's factual allegations and does not consider evidence outside the complaint. See Ruiz, 299 F.3d at 1180.
Courts may exercise jurisdiction only when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994), and must "dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee Cty. Bd. of Cty. Comm'rs, 895 F.Supp. 279, 280 (D. Kan. 1995) (citing Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); Fed. R. Civ. P. 12(h)(3)). Because federal courts arecourts of limited jurisdiction, the law imposes a presumption against jurisdiction. Marcus v. Kan. Dep't of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999). Plaintiff bears the burden of showing that jurisdiction is proper, see id., and must demonstrate that the case should not be dismissed, see Jensen v. Johnson County Youth Baseball League, 838 F.Supp. 1437, 1439-40 (D. Kan. 1993).
Defendants also seek to dismiss plaintiff's complaint under Rule 12(b)(6), Fed. R. Civ. P., claiming that it fails to state a claim upon which the Court can grant relief. In ruling on a motion to dismiss under Rule 12(b)(6), the Court assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement of relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible - and not merely conceivable - on its face. Id. at 679-80; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Iqbal, 556 U.S. at 679.
The Court need not accept as true those allegations which state only legal conclusions. See id.; Hall v. Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991). Plaintiff bears the burden of framing his complaint with enough factual matter to suggest that he is entitled to relief; it is not enough to make threadbare recitals of a cause of action accompanied by conclusory statements. Twombly, 550 U.S. at 556. Plaintiff makes a facially plausible claim when he pleads factual content from which the Court can reasonably infer that defendants are liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Plaintiff must show more than a sheer possibility that defendants have acted unlawfully - it is not enough to plead facts that are "merely consistent with" defendants' liability.Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement will not stand. Iqbal, 556 U.S. at 678. Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere possibility of misconduct, the complaint has alleged - but has not "shown" - that the pleader is entitled to relief. Id. The degree of specificity necessary to establish plausibility and fair notice depends on context, because what constitutes fair notice under Rule 8(a)(2), Fed. R. Civ. P., depends on the type of case. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008)).
As noted, in ruling on a motion to dismiss, the Court assumes as true all well-pleaded facts in the complaint. Here, the complaint alleges the following facts.
Justine Osoro Mochama is a native of Kenya who came to the United States as a student. Third Amended Complaint (Doc. #67) filed June 1, 2015 at 2. In March of 2013, agents for the Department of Homeland Security ("DHS") arrested Mochama pursuant to an order of removal which directed that he be deported to Kenya because his student visa had expired.
From March of 2013 through January of 2014, DHS detained Mochama at the Butler County Adult Detention Facility to await deportation. After his arrest, Mochama cooperated by signing and fingerprinting certain documents. Id. at 3.
On January 17, 2014, Mochama filed a pro se petition for a writ of habeas corpus. See Mochama v. DHS, Case No. 14-cv-3015-RDR (D. Kan. 2014). Mochama alleged that his detention had exceeded the presumptively reasonable six-month period set out in Zadvydas v. Davis, 533 U.S.678, 701 (2001).
Early in the morning of January 28, 2014, Mochama was asleep in his cell when ICE agents Rodney Nichols and Timothy Zwetow woke him. The agents told him that he needed to sign and fingerprint a Form I-229a.2 The agents did not tell him that he was scheduled to be deported. "Concerned that he was being tricked into signing papers that would jeopardize his habeas petition," Mochama told the agents that he would need to speak with an attorney before signing or putting his fingerprint on any more documents. Complaint (Doc. #67) at 4. Nichols and Zwetow refused to let Mochama contact an attorney and insisted that he sign and fingerprint the form.3 Id. Nichols and Zwetow then physically assaulted Mochama to try to force him to fingerprint the Form I- 229a.
Specifically, at around 4:15 AM, Mochama was standing with his hands in his pockets next to the booking desk at the Butler County Detention Facility. Nichols and Zwetow approached Mochama from each side and lifted him into the air in an apparent attempt to get his hands free, so that they could force him to fingerprint the Form I-229a. Id. at 5. Mochama insisted that he would not fingerprint the form until his attorney could see it. Nichols pulled hard on Mochama's right arm, causing him to fall forward. Zwetow punched Mochama in the stomach with his closed right fist. He then put his right arm around Mochama's neck from behind and squeezed, choking Mochama and pulling him backward. Zwetow then crouched with his right knee on the floor and slammed Mochama head first into the concrete floor. Id.
After his head hit the floor, Mochama put his left arm under his head to protect it. Zwetow got on top of Mochama and forced his head into the concrete floor while Nichols tried to get Mochama's right hand from his pocket. Zwetow then left to get the Form I-229a and inkpad. When he returned, Nichols was laying with his full weight on Mochama and reaching underneath Mochama to try to pull his arms out. Id. Zwetow placed his right hand on Mochama's head and pushed it to the concrete while he pulled at Mochama's hands. Nichols and Zwetow then picked Mochama up and put him in a chair where Mochama allowed them to place him in handcuffs. Mochama then walked into a holding cell. While he was there, an employee cleaned Mochama's blood from an area of the floor approximately two feet square.
During this incident, Nichols and Zwetow used far more force than necessary or reasonable and caused substantial pain and physical harm to Mochama.4 Id. at 6. Neither agent attempted to intervene when the other was harming Mochama. Nichols and Zwetow engaged in prohibited, dangerous tactics which their own agency outlawed, that risked serious injury or death to Mochama. Two surveillance cameras at the Butler County Detention Facility captured the incident.
After the incident, Nichols and Zwetow transferred Mochama to the ICE...
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