Tovar Hernandez v. United States
| Decision Date | 15 April 2022 |
| Docket Number | 3:21-cv-01794-HZ |
| Parties | JOSE ABEL TOVAR HERNANDEZ JR., an individual, Plaintiff, v. UNITED STATES OF AMERICA, NORTHERN OREGON CORRECTIONS, an intergovernmental corrections entity doing business as NORCOR, WASHINGTON COUNTY, and DOES 1-10, Defendants. |
| Court | U.S. District Court — District of Oregon |
Amy Edwards, Jacob C. Goldberg, Stoel Rives LLP, Kelly K. Simon ACLU of Oregon, Attorneys for Plaintiff.
Sarah Feldman, U.S. Attorney's Office, Attorney for Defendant United States of America.
Lauren E Nweze, William E Stabler, David C. Lewis, Kraemer & Lewis, Attorneys for Defendant NORCOR.
Eamon P. McMahon, Washington County Counsel, Attorney for Defendant Washington County.
Plaintiff Jose Abel Tovar Hernandez Jr. brings claims for false arrest/false imprisonment, negligence per se, intentional or negligent infliction of emotional distress, and Fourth Amendment claims against the United State of America Northern Oregon Corrections (NORCOR), Washington County, and Does 1-10. Defendant Washington County moves to dismiss all claims against it. For the reasons that follow, the Court grants in part and denies in part Defendant's motion.
Plaintiff is a naturalized United States citizen who has lived in the U.S. since he was 10 months old. Compl. ¶¶ 16, 19 ECF 1. On March 7, 2020, Plaintiff was serving a sentence on a parole violation in Washington County Jail. Compl. ¶ 21. He is houseless and was picked up by law enforcement after stealing a pair of socks from a retail store. Id. On the morning of his release, officials of Defendant Washington County woke Plaintiff up and told him he “would be free to go.” Comp. ¶ 22. A deputy told Plaintiff that someone was there to pick him up. Compl. ¶ 23. When Plaintiff asked who it was, assuming it was his mother, the deputy responded, “you'll see.” Id. [1] Defendant Washington County officials then removed Plaintiff's handcuffs and released him into the jail's sally port, rather than through the normal exit. Compl. ¶¶ 22-23. Three U.S. Immigration and Custom Enforcement (“ICE”) officers were waiting for Plaintiff in the sally port. Compl. ¶ 25. The officers asked his name and then arrested Plaintiff without verifying his immigration status. Id. Plaintiff repeatedly told the ICE officers that he was a U.S. citizen. Id.
Plaintiff was then taken to NORCOR, a correctional facility in The Dalles, Oregon, and was held for over two days. Compl. ¶¶ 32-33. Plaintiff was released from NORCOR after an immigration attorney contacted ICE and informed them that he is a naturalized legal citizen. Compl. ¶ 38. Plaintiff alleges Defendant Washington County notified ICE officials of his impending release and “released him to ICE custody according to a policy and practice of collaborating with ICE and relying on his racial profile, hispanic surname, and other information, which has been shown to be inaccurate.” Compl. ¶ 27.
Plaintiff filed this action on December 10, 2021. Plaintiff brings claims for false arrest/false imprisonment against Defendant ICE under the Federal Tort Claims Act (FTCA) and against Defendants Washington County and NORCOR under the Oregon Tort Claims Act (OTCA). He brings claims for negligence per se against Defendant United States under the FTCA and against Defendants ICE, Washington County, and NORCOR under the OTCA. He brings claims for Intentional or Negligent Infliction of Emotional Distress against Defendants ICE, Washington County, and NORCOR under the FTCA and the OTCA. He brings Fourth Amendment Bivens claims against Individual ICE Officers for unreasonable seizure. Finally, he brings Fourth and Fourteenth Amendment Section 1983 claims against Defendants Washington County and NORCOR for unreasonable seizure and deprivation of due process. Defendant Washington County moves to dismiss all claims against it. Def. Mot., ECF 6.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the sufficiency of a complaint's factual allegations, the court must accept all material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his “entitlement to relief” with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote omitted).
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 (2009) (internal quotation marks omitted). A plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain “well-pleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id. at 679.
Plaintiff brings five claims for relief against Defendant Washington County: (1) False Imprisonment/False Arrest; (2) Intentional Infliction of Emotional Distress (IIED); (3) Negligent Infliction of Emotional Distress (NIED); (4) § 1983 Fourth Amendment violation; and (5) Negligence Per Se Defendant Washington County moves to dismiss all claims against it.
Plaintiff plausibly alleges Defendant Washington County instigated and assisted in his detention in the sally port. The Court thus denies the motion to dismiss his claims for false imprisonment and IIED. The Court grants the motion to dismiss Plaintiff's NIED and negligence per se claims because he has not shown that his relationship to Defendant supports a negligence claim based on a non-physical injury or that ORS 181A.820 can be used to establish negligence per se liability. The Court also grants the motion to dismiss Plaintiff's § 1983 claim, as he fails to establish a theory of liability under the Fourth Amendment on these facts.
Defendant Washington County moves to dismiss Plaintiff's claim for false imprisonment arguing his claim did not accrue until Plaintiff left Defendant's custody. Plaintiff responds that his claim is based on the time he was confined in the sally port of Washington County Jail and that Defendant should be liable because it instigated and assisted in his false arrest.
The “gravamen” of a claim for false imprisonment (also called false arrest) is “the unlawful imposition of restraint on another's freedom of movement.” Hiber v. Creditors Collection Serv. of Lincoln Cty., Inc., 154 Or.App. 408, 413, 961 P.2d 898, 901 (1998) (quoting Buckel v. Nunn, 133 Or.App. 399, 405, 891 P.2d 16, 21 (1995)). The elements of false imprisonment are: “(1) defendant must confine plaintiff; (2) defendant must intend the act that causes the confinement; (3) plaintiff must be aware of the confinement; and (4) the confinement must be unlawful.” Id. (citations omitted). “The defendant ‘must only intend to accomplish the act that causes confinement; they need not intend the confinement to be unlawful.'” Carr v. City of Hillsboro, 497 F.Supp.2d 1197, 1211 (D. Or. 2007) (quoting Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1479 (9th Cir.1992)).
A defendant may be held liable for directly confining a plaintiff and for instigating the confinement “by directing, requesting, inviting or encouraging it.” Id. (citing Pearson v. Galvin, 253 Or. 331, 335-37, 454 P.2d 638 (1969)). “The plaintiff is not required to prove that the defendant was the sole, or exclusive, instigator of his arrest, but that the defendant participated by taking an active part in bringing about the arrest.” Pearson, 253 Or. at 337.
Drawing all reasonable inferences in his favor, Plaintiff plausibly alleges a claim for false imprisonment based on the instigation of the false arrest in the jail's sally port. Plaintiff alleges Defendant Washington County notified ICE officials of his impending release because of his “racial profile, Hispanic surname, and other information.” Compl. ¶ 27. He alleges that rather than take him through the normal exit where his family was waiting, Defendant's deputies took him to the jail's sally port. A sally port is “a secure entryway (as at a prison) that consists of a series of doors or gates.” Sally port Definition, Merriam-Webster.com, http://www.merriamebster.com/dictionary/sally% 20port (last visited April 5, 2022). Despite being told he was released from Defendant's custody, once in the sally port Plaintiff was unable to leave. Compl. ¶¶ 22-25. In the sally port he was met by three ICE officers who proceeded to arrest him despite his protests that he was a U.S. citizen. Compl. ¶ 25. He alleges that Defendant Washington County knew ICE officials were waiting for him. Compl. ¶ 23.
Instigation of a false imprisonment or arrest “consists of words or acts which direct, request, invite or encourage the false imprisonment itself.'” Pearson, 253 Or. at 335 (). Plaintiff plausibly alleges Defendant Washington County invited and encouraged the false arrest by contacting ICE based on his racial identity and last name. From Plaintiff's allegation, it is also reasonable to infer Defenda...
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