Singh v. U.S. Dep't of Homeland Sec.

• Decision Date: 18 April 2013
• Docket Number: CASE NO. 1:12-cv-00498-AWI-SKO
• Court: U.S. District Court — Eastern District of California
• Parties: JASDEV SINGH, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.

JASDEV SINGH, Plaintiff,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.

CASE NO. 1:12-cv-00498-AWI-SKO

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: April 18, 2013

FINDINGS AND

RECOMMENDATIONS THAT

DEFENDANT'S MOTION TO

DISMISS BE GRANTED IN PART,

DENIED IN PART

(Docs. 19, 31)

FINDINGS AND

RECOMMENDATIONS REGARDING

SCREENING OF PLAINTIFF'S

COMPLAINT

OBJECTIONS DUE: 28 DAYS

I. INTRODUCTION

On April 2, 2012, Plaintiff Jasdev Singh ("Plaintiff") filed a complaint against the United States Department of Homeland Security ("Defendant" or "DHS") asserting claims pursuant to 5 U.S.C. § 552a. (Doc. 1.) Plaintiff is currently incarcerated at Adams County Correctional Complex ("ACCC") and is proceeding in this matter in propria persona. On December 6, 2012, Defendant filed a motion to dismiss, or in the alternative, a motion for summary judgment. (Docs. 19, 20.) On December 26, 2012, Plaintiff filed an opposition to Defendant's motion, a declarationin support of the opposition, and a statement of undisputed facts. (Docs. 24, 25, 26.) On January 9, 2013, Defendant filed a reply. (Doc. 30.) On January 28, 2013, Plaintiff filed a motion seeking leave to file a counter-declaration in response to the declaration of Yoshinori H.T. Himel filed in support of Defendant's reply brief. (Doc. 31.) On January 29, 2013, Defendant filed a Notice of Erratum to the reply brief. (Doc. 32.) On February 14, 2013, Plaintiff filed a response to Defendant's notice of erratum and a reply to Defendant's opposition to Plaintiff's motion to file a counter-declaration in sur-reply. (Doc. 33.) On February 25, 2013, Plaintiff filed a request for judicial notice. (Doc. 34.)

For the reasons set forth below, the Court RECOMMENDS that Plaintiff's motion for leave to file a counter-declaration in sur-reply be GRANTED, and Defendant's motion to dismiss be GRANTED IN PART and DENIED IN PART. It is further RECOMMENDED that, upon sua sponte screening of the complaint pursuant to 28 U.S.C. § 1915A, Plaintiff's first, second, third, and sixth causes of action be dismissed without prejudice and with leave to amend, and Plaintiff's fourth cause of action be dismissed with prejudice and without leave to amend.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's complaint arises out of criminal proceedings in which Plaintiff ultimately pled guilty to felony charges. Plaintiff is an alien who claims that, in negotiating his plea agreement, and at other times during the course of the criminal proceedings against him, it was represented to him by the government, including an agent of the U.S. Immigration and Customs Enforcement ("ICE"), that he would not be subject to deportation based on his plea because he was granted asylum by the San Francisco Immigration Court on April 5, 2000.¹ (Doc. 1, ¶¶ 10-12.) In exchange for his agreement to plead guilty, the government recommended that Plaintiff be (1) placed in a minimumsecurity prison; (2) permitted to participate in a Residential Drug Abuse Treatment Program ("RDAP"); and (3) permitted to participate in a Residential Reentry Program ("RRC"). (Cmplt., Doc. 1, ¶ 11.) The Court ordered that Plaintiff be incarcerated for a period of 84 months and recommended Plaintiff's placement in a minimum security prison and his participation in RDAP and RRC. (Cmplt., Doc. 1, ¶ 12.)

Despite assurances of his non-deportable status, following Plaintiff's sentencing, an immigration detainer was issued by ICE on December 7, 2011. (Complt., Doc. 1, ¶ 15; Doc. 1, p. 22, Exh. 1.) Plaintiff asserts that the issuance of the immigration detainer caused the Federal Bureau of Prisons ("BOP") to categorize Plaintiff with a Public Safety Factor ("PSF") for "deportable alien."² (Cmplt., Doc. 1, ¶ 13.) Plaintiff asserts that, pursuant to 18 U.S.C. § 3621(e), a PSF designation prevents an inmate from being designated to a minimum security facility and prohibits participation in the RDAP and RRC programs. (Cmplt., Doc. 1 ¶¶ 13-14.) As such, Plaintiff was transferred to ACCC, a low-security facility in Mississippi and is prohibited from being transferred to a facility closer to family or participating in the RDAP and RRC programs. (Doc. 1, ¶ 14.)

After Plaintiff was transferred to ACCC, his defense counsel contacted the Chief of Unit Management at ACCC to request that Plaintiff be transferred to a facility closer to his family. (Cmplt., Doc. 1, ¶ 18.) Plaintiff's counsel's letter states, in relevant part:

The purpose of my contact with you is to address what appears to be an oversight, relative to BOP's determination on Mr. Singh's eligibility to participate in the RDAP program. First, and as a preliminary matter, prior to the entry of his plea[,]Mr. Singh was housed at the Lerdo facility in California. An item of particular concern in Mr. Singh's agreement to enter his plea was his all but certain admission into the RDAP program. In our conversation of yesterday afternoon, you confirmed that your facility (Adams) does not/is not equipped to allow participation in the RDAP program. This brings me to the essential purpose of this letter: to request that Mr. Singh be transferred to a facility which does offer the RDAP program, and specifically, a facility in (or at least closer to) California, so that Mr. Singh's three (3) daughters and wife can visit him.

In corresponding with our client and his family, I have learned that Mr. Singh has made significant efforts to address this housing "problem," so to speak, to no avail. Specifically, I am informed that he has already (in writing and otherwise), notified his case Manager (Ms. Tyler), his counselor (Mr. Kennedy), and has at least attempted to address it with his BOP representative - Ms. "Mott Donna." Regrettably, his status and housing location has remained unchanged. In reviewing the documentation appurtenant to Mr. Singh's above described efforts, I located a note (which I am informed that you prepared) that states that you determined Mr. Singh is "ineligible" for participation in RDAP because you are under the impression that Mr. Singh is an "illegal alien." Enclosed herewith please find a copy of Mr. Singh's "Green Card." As you can see, Mr. Singh is a legal resident of the United States, and has had legal status at all times relevant to his case.

(Cmplt., Doc. 1, Exh. 3, p. 30-31.)

On December 20, 2011, ACCC's Warden responded to Plaintiff's counsel as follows:

I am in receipt of your inquiry dated December 2, 2011[,] regarding inmate Jasdev Singh (64003-097). In this correspondence, you make inquiry as to why Mr. Singh is not eligible for participation in a RDAP program. Furthermore, you address what "appears to be an oversight" in designating Mr. Singh to [ACCC] and request this inmate's transfer to a more suitable facility.

As outlined in Bureau of Prisons Program Statement 5111.01, inmates at Hearing Sites (pending hearing) and inmates at Release Sites (with orders of deportation) shall not normally be considered for transfer for program participation (i.e., education programs, drug treatment), or for nearer release purposes. As this is the case with your client, inmate Singh has been provided with a copy of the Bureau Immigration and Customs Enforcement (BICE) detainer which has been placed against him.

Regarding the practices of BICE, your inquiry can certainly be more thoroughly addressed by contacting BICE directly. Accurate contact information is provided below for your reference:

Jean ICE Office

Attention: Special Agent in Charge

830 Pinehill Road

Jena, LA 71342

(Cmplt., Doc. 1, Exh. 4, p. 33.)

On January 17, 2012, Plaintiff mailed a letter to an ICE facility located at 1010 East Whatley Road, Oakdale, LA, 71463 requesting that ICE amend its records and rescind the immigration detainer. (Cmplt, Doc. 1, ¶ 20.) Receiving no response to this request, on February 2, 2012, Plaintiffsent a letter to an ICE facility located at 830 Pinehill Road, Jena, LA, requesting removal of the immigration detainer, but received no response to his request. (Cmplt., Doc. 1, ¶ 21.)

On March 13, 2012, in a third request to remove the immigration detainer, Plaintiff sent a letter to an ICE facility located at 800 Truxton Avenue, Suite 109, Bakersfield, CA, 93301, asking that the immigration detainer be removed based on assurances during his plea negotiation that he was "non-deportable." (Cmplt., Doc. 1, ¶ 22.) Plaintiff sent a copy of this March 13, 2012, letter to 1010 East Whatley Road, Oakdale, LA, 71463; the U.S. Attorney's Office located at 2500 Tulare Street, Fresno, CA, 93721; and Plaintiff's counsel in Fresno, California. (Cmplt, Doc. 1, ¶ 23.)³

On April 2, 2012, Plaintiff filed this action, asserting seven causes of action: (1) violation of accuracy and disclosure provisions pursuant to 5 U.S.C. § 552a(e)(6); (2) violation of the Privacy Act's rules of conduct pursuant to 5 U.S.C. § 552a(e)(9); (3) failure to establish appropriate administrative, technical and/or physical safeguards pursuant to 5 U.S.C. § 552a(e)(10); (4) access criminal penalties pursuant to 5 U.S.C. § 552a(i)(1); (5) declaratory and injunctive relief pursuant to 5 U.S.C. § 552a(g)(2)(A); (6) damages pursuant to 5 U.S.C. § 552(a)(g)(1)(A)-(D); and (7) intentional/reckless infliction of emotional distress.⁴

III. PLAINTIFF'S MOTIONS AND REQUESTS

A. Plaintiff's Motion for Leave to File a Counter-Declaration in Sur-reply

On January 28, 2013, Plaintiff filed a motion seeking leave to file a counter-declaration in sur-reply to the declaration of Mr. Himel in support of Defendant's reply brief. (Doc. 31.) Plaintiff asserts that he has not had "an opportunity to respond to the specific and central issue raised for the first time in Defendant's Reply brief" that neither Jena, Louisiana, Oakdale, Louisiana, or Bakersfield, California, have ICE field offices at the locations where Plaintiff claims he sent his Privacy Act requests for record amendment. Plaintiff seeks leave to file a counter-declaration to show that (1) the "accurate"...