Ortega v. U.S. Immigration & Customs Enforcement

• Decision Date: 10 December 2013
• Docket Number: No. 12–6608.,12–6608.
• Citation: 737 F.3d 435
• Parties: Richard ORTEGA, Plaintiff–Appellant, v. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

737 F.3d 435

Richard ORTEGA, Plaintiff–Appellant,

v.UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants–Appellees.

No. 12–6608.

United States Court of Appeals,Sixth Circuit.

Argued: Oct. 8, 2013.

Decided and Filed: Dec. 10, 2013.

ARGUED: Brittany Sadler, William & Mary Law School, Williamsburg, Virginia, for Appellant. J. Max Weintraub, United States Department of Justice, Washington, D.C., for Federal Appellees. Stephen P. Durham, Jefferson County Attorney's Office, Louisville, Kentucky, for Louisville/Jefferson County Appellees. ON BRIEF:Tillman J. Breckenridge, Reed Smith LLP, Washington, D.C., for Appellant. J. Max Weintraub, United States Department of Justice, Washington, D.C., for Federal Appellees. Stephen P. Durham, Jefferson County Attorney's Office, Louisville, Kentucky, for Louisville/Jefferson County Appellees.

Before: KEITH and SUTTON, Circuit Judges; BLACK, District Judge. ^*

SUTTON, J., delivered the opinion of the court, in which BLACK, D.J., joined. KEITH, J. (pp. 441–44), delivered a separate dissenting opinion.

OPINION

SUTTON, Circuit Judge.

The United States Immigration and Customs Enforcement agency mistakenly issued a detainer for Richard Ortega. Sent to the Louisville Metro Department of Corrections, the detainer informed the local prison authorities that the immigration agency was investigating whether Ortega, then serving a home-confinement sentence, could be removed from the United States. Based on the detainer, the department moved Ortega to a local prison. Ortega, who happened to be a United States citizen, sued, claiming due process and unreasonable seizure violations. The defendants moved to dismiss on qualified immunity grounds, and the district court granted the motions. We affirm.

I.

Ortega began serving an eleven-day sentence of home confinement for driving under the influence on March 18, 2011. Under the terms of his sentence, he had to wear an electronic monitoring device at all times. With prior approval, he could go to work, the doctor and church. Otherwise he had to stay at home.

Soon after he began serving the sentence, the corrections department received a detainer for Ortega from federal immigration authorities. “A detainer is a request filed ... with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent.” Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985). In the normal course, the immigration agency receives notice of state and federal criminal convictions, after which it investigates to determine whether the individual entered the country legally. If the individual has violated the immigration laws, the agency usually begins removal proceedings.

Immigration agent John Cloyd issued Ortega's detainer after seeing his DUI conviction and after noticing that Ortega's name and birth date resembled, though they did not exactly match, those of an unlawful alien. The detainer informed the corrections department that the immigration agency was investigating whether Ortega entered the country legally.

As a matter of policy, the local corrections department incarcerates any individual with an immigration detainer. On March 19, officers Lori Eppler and William Skaggs took Ortega to the local jail, where he remained until his release on March 22. The corrections department did not conduct its own investigation of Ortega's citizenship before taking him to jail. This Richard Ortega, as it turns out, is a United States citizen, subject to Kentucky's drinking-and-driving laws but not subject to deportation under federal law.

Ortega filed this lawsuit, raising a host of constitutional claims under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Only two remain. Ortega claims that the city's officers (Eppler and Skaggs) violated his rights against deprivations of liberty without due process and against unreasonable seizures when they carried out the federal detainer and that the federal immigration agent (Cloyd) caused those violations by issuing the detainer. The district court dismissed both sets of claims on qualified immunity grounds.

(On appeal, Ortega occasionally references other defendants and claims mentionedin his complaint. As the defendants point out, Ortega has forfeited these theories of relief because he did not develop them. See United States v. Sandridge, 385 F.3d 1032, 1035–36 (6th Cir.2004).)

II.

Ortega's appeal implicates two old qualified immunity questions: (1) Did the state and federal officials violate Ortega's constitutional rights? (2) If so, were those rights clearly established at the time of the transfer? See Reichle v. Howards, ––– U.S. ––––, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012).

Ortega's appeal also implicates two new constitutional law questions: (1) Does an individual serving a sentence through home confinement have a liberty interest protected by the Due Process Clause in not being moved to a traditional prison setting? (2) Does that same individual have a right protected by the Fourth Amendment in not being moved to a traditional prison setting in the absence of probable cause?

Before turning to these questions, it may help to explain how detainers traditionally work and why in the normal course they do not violate these constitutional guarantees. Faced with limited resources, federal immigration authorities understandably pay attention to illegal immigrants who break other laws. See, e.g., U.S. Gov't Accountability Office, GAO–12–708, Secure Communities 6–13 (2012). Using a computer database, they determine whether individuals convicted of violating other local, state and federal laws have entered the country illegally. If so, they issue a detainer to the law enforcement authority holding the individual, asking the institution to keep custody of the prisoner for the agency or to let the agency know when the prisoner is about to be released. See8 C.F.R. § 287.7.

Federal detainers do not raise constitutional problems in the normal course. If a local prison keeps tabs on someone until his release, even if it moves him from one prison setting to another, it is difficult to see how that continued custody is any business of the Due Process Clause or for that matter the Fourth Amendment. See Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The same is true if the local prison merely notifies federal immigration authorities before the inmate's release to allow them to take custody over him at the end of his prison sentence in order to begin removal proceedings.

What happens, however, in other settings? Say a State authorizes the arrest of any person, in custody or not, subject to a federal immigration detainer. See Buquer v. City of Indianapolis, No. 1:11–cv–00708–SEB, 2013 WL 1332158 (S.D.Ind. Mar. 28, 2013). Or say a State refuses to release a person who has posted bail because of an immigration detainer. See Galarza v. Szalczyk, No. 10–cv–6815, 2012 WL 1080020 (E.D.Pa. Mar. 30, 2012). Or say a State keeps a person serving a sentence of weekend confinement in jail because of an immigration detainer. See Rodriguez v. Aitken, No. 13–551–SC, 2013 WL 3337766 (N.D.Cal. July 1, 2013). Or say, as in our case, the individual is on home confinement, and the local officials move him to a traditional prison setting based on the federal detainer. In these other settings, including most pertinently ours, the matter is more complicated.

Due Process. When an individual violates a criminal law and receives a sentence, he usually cannot be heard to complain about the deprivations of liberty that result. Although “prisoners do not shed all constitutional rights at the prison gate, ... lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Sandin, 515 U.S. at 485, 115 S.Ct. 2293. That is why, when prison authorities move an inmate from one cell to another, even to a cell with far fewer privileges, the increased deprivation generally does not implicate a protected liberty interest under the Due Process Clause. “The Constitution does not ... guarantee that the convicted prisoner will be placed in any particular prison.” Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). And the Constitution does not prevent a prison transfer to a more restrictive setting unless the change would work an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293.

While this line of authority works against Ortega's claim, it does not defeat it. A transfer from home confinement to prison confinement, it seems to us, amounts to a sufficiently severe change in conditions to implicate due process. Yes, both settings involve confinement, a reality confirmed by the fact that Ortega must wear an electronic-monitoring device at all times, by the fact that he must obtain permission to leave the home and may do so only for discrete reasons and by the fact he would be prosecuted for escape if he did not comply. Ky.Rev.Stat. § 532.200(2). But the two settings of confinement still amount to significant differences in kind, not degree. A prison cot is not the same as a bed, a cell not the same as a home, from every vantage point: privacy, companionship, comfort. And the privileges available in each are worlds apart—from eating prison food in a cell to eating one's own food at home, from working in a prison job to working in one's current job, from attending religious services in the prison to attending one's own church, from watching television with other inmates in a common area to watching television with one's family and friends at home, from visiting a prison doctor to visiting one's own doctor. See...