Palamaryuk v. Duke
| Decision Date | 12 March 2018 |
| Docket Number | Case No. C17–441–MJP–JPD |
| Citation | 306 F.Supp.3d 1294 |
| Parties | David PALAMARYUK, BY AND THROUGH his parent and next friend, Avram PALAMARYUK, Plaintiff, v. Elaine DUKE, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Devin T. Theriot–Orr, Sunbird Law PLLC, Minda Thorward, Thorward Immigration Law, PLLC, Seattle, WA, for Plaintiff.
U.S. Attorney Habeas, Gladys M. Steffens Guzman, Department of Justice, Washington, DC, Sarah K. Morehead, U.S. Attorney's Office, Seattle, WA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
Having reviewed the Report and Recommendation of the Honorable James P. Donohue, Chief United States Magistrate Judge, any objections or responses to that, and the remaining record, the Court finds and ORDERS:
(1) The Court ADOPTS the Report and Recommendation.
(2) Defendants' motion to dismiss, Dkt. 21, is GRANTED in part and DENIED in part. Plaintiff's Administrative Procedures Act claim is DISMISSED with prejudice. Plaintiff may proceed with his Rehabilitation Act and Due Process claims.
(3) This matter is RE–REFERRED to Judge Donohue for further proceedings.
Plaintiff David Palamaryuk is a lawful permanent resident who is currently detained at the Northwest Detention Center in Tacoma, Washington, pending resolution of his removal proceedings. Through counsel, he brings this action under the Rehabilitation Act, the Administrative Procedures Act ("APA"), and the Fifth Amendment Due Process Clause to prohibit defendants1 from transferring him to a detention facility outside of this judicial district. Plaintiff's interests are represented in this litigation through his parent and next friend, Avram Palamaryuk. Dkt. 14 at ¶ 2.
Currently before the Court is defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. 21. Plaintiff opposes the motion. Dkt. 25. Having considered the parties' submissions, the balance of the record, and the governing law, the Court recommends that defendants' motion to dismiss be GRANTED in part and DENIED in part, as explained below.
Unless otherwise noted, the following factual allegations are taken from plaintiff's amended complaint. Plaintiff is a native of the U.S.S.R. and a citizen of Ukraine who came to the United States as a refugee in 1995 when he was six years old. Dkt. 14 at ¶ 2. Shortly thereafter, he became a lawful permanent resident. Id.
Plaintiff was the victim of two serious assaults, one in 2009 and a second in 2013, which resulted in head injuries. Id. at ¶¶ 11–13. Following the second assault, he started to experience short-term memory loss, such as difficulty recalling the details of recent events, and cognitive impairments, such as difficulty with reading comprehension and occasional difficulty understanding spoken speech. Id. at ¶ 13.
In March 2016, ICE officials arrested plaintiff, detained him at the Northwest Detention Center, and placed him in removal proceedings. Id. at ¶ 2. He proceeded pro se , and following a merits hearing on October 3–4, 2016, the immigration judge denied his request for asylum-related protections and ordered him removed. Id. at ¶ 9.
On October 10, 2016, plaintiff hired attorney Minda Thorward to appeal the removal order to the Board of Immigration Appeals ("BIA") and to help him pursue other immigration-related relief. Id. at ¶ 14. Through Ms. Thorward, plaintiff filed an appeal with the BIA, requesting a remand because he demonstrated indicia of incompetency during his first merits hearing before the immigration judge. Id. at ¶ 18. Ms. Thorward met with plaintiff in person numerous times to work on his case. Id. at ¶ 19.
On March 13, 2017, while plaintiff's BIA appeal was pending, defendants issued a "Detainee Transfer Notification," informing plaintiff that he would be moved to a detention facility in Alabama. Id. at ¶ 21. At Ms. Thorward's request, defendants delayed plaintiff's transfer for one week to permit him to meet with his mother. Id. at 23. On March 17, 2017, Ms. Thorward made an in-person oral request to Jack Lippard, ICE Supervisory Detention & Removal Officer, that plaintiff be permitted to remain at the Northwest Detention Center because it would make representing him very difficult if he were moved to Alabama. Id. at 24.
On Sunday, March 19, 2017, Ms. Thorward sent a letter via email and fax, asking for confirmation from defendants that they would not transfer plaintiff as scheduled on Monday, March 20, 2017, and asserting that moving him would interfere with their ongoing attorney-client relationship and would impact his rights under the Rehabilitation Act due to his disability.2 Id. at ¶ 25. On the morning of Monday, March 20, 2017, plaintiff was advised by defendants that he would be transferred to Alabama later that day. Id. at ¶ 26.
At approximately 6:00 p.m. on March 20, 2017, plaintiff filed his original complaint and an ex parte motion for a temporary restraining order ("TRO") prohibiting his transfer out of this judicial district. Dkt. 1. Ms. Thorward and plaintiff submitted declarations attesting that plaintiff requires in-person meetings with his attorney for him to effectively understand her. Dkt. 3 at ¶¶ 18–19; Dkt. 4 at ¶¶ 6–8; see also Dkt. 14 at ¶¶ 19–20, 22, 29. That evening, the Honorable James L. Robart granted a TRO and enjoined plaintiff's transfer for 14 days. Dkt. 6; see also Dkt. 7 (Amended Order Granting TRO).
On March 23, 2017, the government filed a motion with the BIA to remand the removal proceedings to the immigration judge, and the BIA remanded plaintiff's case for a competency evaluation. Dkt. 14 at ¶ 27. On April 18, 2017, Dr. Ivan Molton, a licensed psychologist specializing in psychology and traumatic brain injury and a professor of rehabilitation medicine at the University of Washington, performed a traumatic brain injury assessment and neuropsychological evaluation of plaintiff. Id. at ¶ 28. His report revealed significant cognitive impairment. Id. With regard to immigration proceedings, Dr. Molton stated that plaintiff "does not have the mental competency to participate ... without safeguards." Id. at ¶ 29. Dr. Molton recommended that plaintiff meet with his attorney in person. Id. On June 5, 2017, the immigration judge held a competency hearing and found that plaintiff was incompetent but could proceed with safeguards. Id. at ¶ 30.
After the TRO expired in these proceedings, plaintiff did not seek a preliminary injunction. His counsel filed a status report informing the Court that defendants notified Ms. Thorward by telephone that they are no longer seeking to transfer him out of this district at the present time. Dkt. 8 at 2. Counsel argued, however, that the government's voluntary cessation did not render the matter moot. Id.
On June 19, 2017, plaintiff filed an amended complaint, which alleges that defendants violated his rights under the Rehabilitation Act, the APA, and the Due Process Clause, and seeks an order prohibiting defendants from transferring him outside of this judicial district. Dkt. 14. On November 7, 2017, after several extensions of time, defendants filed the motion to dismiss that is currently before the Court. Dkt. 21. Plaintiff filed his response on December 11, 2017. Dkts. 23–25. Defendants filed their reply on December 15, 2017.
Defendants argue that plaintiff fails to state a viable Rehabilitation Act claim, the Court does not have jurisdiction over his APA and Due Process Clause claims, and even if the Court does have jurisdiction, plaintiff fails to state a claim upon which relief may be granted. Dkt. 21. As discussed below, the Court concludes that plaintiff should be permitted to proceed with his Rehabilitation Act and Due Process claims, but his APA claim should be dismissed.
When considering a motion to dismiss under Rule 12(b)(6), the Court construes the complaint in the light most favorable to the nonmoving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc. , 416 F.3d 940, 946 (9th Cir. 2005). The Court must accept all well-pleaded allegations of material fact as true and draw all reasonable inferences in favor of the plaintiff. See Wyler Summit P'ship v. Turner Broad. Sys., Inc. , 135 F.3d 658, 661 (9th Cir. 1998). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); see also Telesaurus VPC, LLC v. Power , 623 F.3d 998, 1003 (9th Cir. 2010). The Court will grant a motion to dismiss where the complaint lacks a cognizable legal theory or alleges insufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990) ; Robertson v. Dean Witter Reynolds, Inc. , 749 F.2d 530, 534 (9th Cir. 1984).
Under Rule 12(b)(1), a motion to dismiss for lack of subject matter jurisdiction is either facial or factual. See Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). Defendants here mount a facial attack, in which "the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. The Court accepts the factual allegations in the complaint as true, and the nonmoving party is entitled to have those facts construed in the light most favorable to it. Fed'n of African Am. Contractors v. City of Oakland , 96 F.3d 1204, 1207 (9th Cir. 1996). The party asserting a claim in federal court bears the burden of establishing subject matter jurisdiction. See Kokkonen v. Guardian Life...
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Murcia v. Godfrey, CASE NO. C19-587-JLR-BAT
...F.3d at 20-21 (holding that right to counsel claims arose from removal, but family unity claims did not); Palamaryuk ex rel. Palamaryuk v. Duke, 306 F. Supp. 3d 1294 (W.D. Wash. 2018) (addressed claim under § 1252(a)(2)(B)(ii), not §§ 1252(a)(5) and ...