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March 16, 1998

UNITED STATES OF AMERICA; UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE; DORIS MEISSNER, individually and in her official capacity as Commissioner of the INS; WARREN A. LEWIS, individually and in his capacity as District Director of INS's Newark Field Office; JOHN AND JANE DOES 1-10, fictitious names for unknown agents, servants or employees of the INS individually and in their official capacities; COUNTY OF HUDSON; HUDSON COUNTY SHERIFF'S OFFICE; JOSEPH T. CASSIDY, individually and in his capacity as Sheriff of Hudson County; HUDSON COUNTY JAIL; and JOHN AND JANE DOES 11-20, fictitious names for unknown agents, servants or employees of the County of Hudson, individually and in their official capacities, Defendants.

The opinion of the court was delivered by: WALLS

 Walls, District Judge

 Plaintiff Felix Ramon Ramirez has filed suit against various federal and county defendants alleging that he was wrongfully arrested and imprisoned pursuant to an arrest warrant issued for a different individual. The federal defendants are the United States of America, the United States Immigration and Naturalization Service, INS Commissioner Doris Meissner, INS District Director Warren A. Lewis, and various yet unknown INS officers. The county defendants are the County of Hudson, the Hudson County Sheriff's Office, Hudson County Sheriff Joseph T. Cassidy, the Hudson County Correctional Center, and various yet unknown Hudson County employees. Plaintiff's seventeen count Complaint asserts Bivens claims for violation of Ramirez's constitutional rights, claims under the Federal Tort Claims Act ("FTCA"), claims pursuant to 42 U.S.C. § 1983, and pendent state law causes of action. The federal and county defendants have each filed motions to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). The federal defendants move in the alternative for summary judgment. The Court decides these motions without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons that follow, the Court grants in part and denies in part defendants' motions. *fn1"

 On or about February 27, 1996, plaintiff Felix Ramon Ramirez arrived at Newark International Airport on a flight that originated in the Dominican Republic. He was detained by INS agents for two and one half hours on the basis of an outstanding arrest warrant issued on March 23, 1993 for a person named Felix Ramos Ramirez. Plaintiff charges that the INS agents failed to explain to him the reason for his detention and made no attempt to ascertain whether he was indeed the individual sought by the warrant. The date of birth listed for the person named in the warrant is April 11, 1956. The plaintiff alleges that this is not his birth date. In addition, plaintiff asserts that the original arrest report for Felix Ramon Ramirez described the subject as having a tattoo on his arm. The plaintiff has no tattoos.

 The INS agents transferred Ramirez to the custody of the Hudson County Sheriff's Office, and he was imprisoned in the Hudson County Correctional Center for fifteen days. Plaintiff claims that no one at the Sheriff's Office or the correctional facility made any effort to determine whether he was the subject of the outstanding warrant despite the discrepancies in name, birth date, and physical description.

 On March 14, 1996, Ramirez met for the first time with an attorney, and was released from prison that day. Plaintiff contends that his detention, arrest, and imprisonment were violative of his constitutional rights and were the result of unlawful conduct by individual government officials as well as official policies and customs of the defendant entities. In addition, the plaintiff asserts various common law claims against the defendants including false arrest, false imprisonment, intentional and negligent infliction of emotional distress, and negligence.

 Plaintiff's Rule 56(f) Motion

 The federal defendants move to dismiss the complaint pursuant to Rule 12(b)(6) or in the alternative for summary judgement. Although the county defendants label their motion as a motion to dismiss for failure to state a claim, they frame Point II of their brief as a request for summary judgment. Plaintiff argues that summary judgment is inappropriate at this stage in the litigation because the parties have not yet commenced discovery. Ramirez's counsel has submitted an affidavit pursuant to Fed. R. Civ. P. 56(f) requesting time to conduct discovery. Thus, as a threshold issue, this Court must determine whether it will treat the motion as a motion to dismiss for failure to state a claim or as a motion for summary judgment.

 Rule 56(f) provides that when it appears that the party opposing the motion for summary judgment "cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit . . . discovery to be had . . . ." The Third Circuit has instructed that "whether such a motion should be granted depends, in part, on 'what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.'" Contractors Assoc. v. City of Philadelphia, 945 F.2d 1260, 1266 (3d Cir. 1991) (quoting ( Lunderstadt v. Colafella, 885 F.2d 66, 71 (3d Cir. 1989)). However, if the information sought is in the possession of the moving party, "a district court should grant a Rule 56(f) motion almost as a matter of course unless the information is otherwise available to the non-movant." 945 F.2d at 1267.

 To assess the liability of officials in a civil rights action based on a claim of false arrest, a court must determine whether there was probable cause for the arrest. See Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988). Probable cause exists "when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested." Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995). "Where the police lack probable cause to make an arrest, the arrestee has a claim under § 1983 for false imprisonment based on a detention pursuant to that arrest." Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995). Consequently, the merit of the Bivens and § 1983 claims under the Fourth, Fifth, and Fourteenth Amendments all depend upon the information known to the individual defendants who detained the plaintiff and who were directly responsible for his imprisonment. The success of the defendants' qualified immunity defense also turns on the reasonableness of the officers' actions. See Harlow v. Fitzgerald, 457 U.S. 800, 817, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982) (qualified immunity applies when "conduct does not violate clearly established . . . rights of which a reasonable person would have known").

 Hence, the critical issue now before the Court is the reasonableness of the defendants' belief that the person named in the warrant was the plaintiff. The plaintiff should be permitted to conduct discovery to determine what, if any, information the INS and county officials had to verify the plaintiff's identity. The federal defendants have filed an affidavit of Venson Davis, the Supervisory Immigration Inspector who was on duty when the plaintiff arrived at the airport, which details the procedures that he used to confirm that the plaintiff was the subject of the warrant. Ramirez should be given the opportunity to conduct discovery on this issue and submit any affidavits which rebut or contradict the representations made by that affidavit. Discovery is necessary because the information upon which the agents based their decision to detain and ultimately arrest and imprison the plaintiff is obviously in their exclusive possession.

 The Court is mindful of the Supreme Court's admonition that one of the purposes of the "qualified immunity standard is to protect public officials from the 'broad-ranging discovery' that can be 'peculiarly disruptive of effective government'" and that "qualified immunity questions should be resolved at the earliest possible stage of a litigation." Anderson v. Creighton, 483 U.S. 635, 646 n.6, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987) (quoting Harlow, 457 U.S. at 817). "Unless the plaintiff's allegations state a claim for violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before commencement of discovery." Mitchell v. Forsyth, 472 U.S. 511, 526, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). Here, the Court finds that, taking all of plaintiff's allegations as true, including the claim that defendants made no effort to ascertain whether Ramirez was the person sought in the warrant despite differences in his name, birth date, and physical description, and drawing all reasonable inferences in favor of the plaintiff, the Complaint states a claim for violation of the clearly established right to be free from unreasonable seizures and restraints on one's liberty without due process. The Court declines to look to Davis' affidavit and convert this motion to a motion for summary judgment at this time because plaintiff, consistent with his position that this should be treated as only a Rule 12(b)6) motion, has not submitted any affidavits or declarations in opposition. The Court can only assume that plaintiff chose not to submit any supplemental materials because he was under the impression that this motion would be treated as a motion to dismiss. Plaintiff is granted 50 days from the date of this Opinion and Order to conduct limited discovery on the sole issue of the reasonableness of the individual defendants' conduct as it relates to his detention, arrest, and imprisonment. After the expiration of this period, plaintiff will be required to submit any discovery or other material in opposition to defendants' motions for summary judgment. The Court will then determine whether summary judgment is appropriate on the Bivens and § 1983 claims. *fn3" If, after discovery, plaintiff is still unable to name the fictitious defendants, the claims against them may be summarily dismissed. See Scheetz v. Morning Call, Inc., 130 F.R.D. 34 (E.D. Pa. 1990) (fictitious names may be employed until the plaintiff has had a reasonable opportunity to learn the identities of these unknown defendants through discovery).

 Aside from their qualified immunity defense, the movants have raised other arguments in support of their motions. Applying the standard for a motion to dismiss for failure to state a claim, the Court will now address the merits of these other contentions.

 Legal Standard

 On a Rule 12(b)(6) motion, the court is required to accept as true all allegations in the Complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). The question is whether the plaintiff can prove any set of facts consistent with his allegations that will entitle him to relief, not whether he will ultimately prevail. Hishon v. King and Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984).

 While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept legal or unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegation. See Miree v. DeKalb County, Ga., 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977); Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir. 1993); Violanti v. Emery Worldwide A-CF Co., 847 F. Supp. 1251, 1255 (M.D. Pa. 1994). Moreover, the claimant must set forth sufficient information to outline the elements of his claims or to permit inferences to be drawn that these elements exist. See Fed. R. Civ. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 Claims Against Federal Defendants


 A. Whether the Complaint Alleges a Cognizable Constitutional Claim Against Defendants Meissner and Lewis

 Counts One, Two, and Three assert claims against the INS, INS Commissioner Doris Meissner, INS District Director Warren A. Lewis, and as yet unknown INS officers for violation of plaintiff's Fourth and Fifth Amendment rights under a theory of liability first articulated in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). The individual defendants are named in their personal capacity. The Third Circuit has imposed a heightened pleading standard in civil rights actions; complaints against government officials in their personal capacity must "contain a modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs." Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir.) (quoting Ross v. Meagan, 638 F.2d 646, 650 (3d Cir. 1981)), cert. denied, 489 U.S. 1065 (1988). To satisfy this standard, a plaintiff must "allege the specific conduct violating the plaintiff's rights, the time and place of that conduct, and the identity of the responsible officials." Id. In a Bivens action against multiple federal defendants, "the plaintiff must plead the personal involvement of each defendant with specificity and with sufficient facts to overcome a likely defense of immunity." Biase v. Kaplan, 852 F. Supp. 268, 287 (D.N.J. 1994) (quoting Rallis v. Stone 821 F. Supp. 466, 469 (E.D. Mich. 1993)).

 The Complaint fails to specify how Doris Meissner, as Commissioner of the INS, and Warren Lewis, as INS District Director, directly acted to deprive plaintiff of his constitutional rights. In fact, after being identified at the beginning of the Complaint, Meissner and Lewis are never specifically mentioned again. The only possible reference to these defendants occurs in paragraphs 36 and 37 of the Complaint:

36. Defendants knowingly and intentionally breached their duty to train and supervise . . . agents and other personnel under their control, resulting in the deprivation of plaintiff's constitutional and civil rights . . . .
37. Alternatively, defendants recklessly, wantonly and negligently failed to train and supervise the conduct of INS agents and other personnel under their control, resulting in the deprivation of plaintiff's constitutional and civil rights.

 In Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976), the Supreme Court held that the supervising official does not violate a victim's constitutional rights unless he or she has played "an affirmative part" in the alleged misconduct of the subordinates. The Third Circuit has found that "while supervising public officials may not in any way authorize, encourage, or approve constitutional torts, they have no affirmative duty to train, supervise or discipline so as to prevent such conduct." Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986) (dismissing Bivens claim against the Director of Bureau of Prisons alleging that his failure to train, supervise, and discipline his subordinates resulted in plaintiff's injuries); see also Brown v. Grabowski, 922 F.2d 1097, 1119-20 (3d Cir.), cert. denied, 501 U.S. 1218, 111 S. Ct. 2827, 115 L. Ed. 2d 997 (1991). Mere failure to train and supervise, absent proof of direct participation in the subordinates' unconstitutional conduct, does not form the basis for a constitutional claim. See Brown, 922 F.2d at 1120. Consequently, plaintiff does not state a cognizable Bivens claim ...

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