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HAWA ABDI JAMA v. UNITED STATES INS

October 1, 1998

HAWA ABDI JAMA, ABU BAKAR, JOSEPH ACKAH, CHARLES ADDAI, BENJAMIN ANANG, DWEKU AWOTOWE, YVETEE NSUKAMI BADJOKO, GONZALO CRESPO, JOSEPH DEBRAH, CECILIA KOU JEFFREY, ANANTHARAJAH JEYAKUMAR, ABRAHAM KENNEH, NAGENDRAN MANOHARAN, THOMAS KYEU MANU, DENNIS RAJI, SHAMIMU NANTEZA, AGATHA SERWAA, JASMEL SINGH, FOLORUNSHO WASIU ALIBI and SARAH TETTEH YOWER, Plaintiffs,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, CORRECTIONAL SERVICES CORPORATION (formerly "ESMOR CORRECTIONAL SERVICES INC."), DAVID MCLEAN, NORMAN UZZLE, MICHAEL D. ROZOS, EARLINE BOYER, ALAN FREISS, JOHN DOE SILVA, JAMES SLATTERY, AARON SPEISMAN, WILLARD STOVALL, JOHN LIMA, JAMES POULAND, DIANE MCCLURE, RICHARD STALEY, KEVIN T. BRODIE, IRVING BROWN, CATRINA CLARK, LEONARD EADY, JOHN DOE EDIDER, JOHN DOE FEDER, FRANK FIGEL, LUIS GARCIA, DARRELL GILL, WINFRED HAWKINS, JOHN DOE HAYES, WILLIAM HIGGS, ISAIAH HUGHES, DORIAN HUNTER, WILLIE O. HUNGER, MICHAEL JACKSON, PHILLIP JOHNSON, JON DOE KUTZ, MICHAEL MELENDEZ, JANE DOE MICHELLE, JOHN DOE MOHAMMED, OKAY NKENKE, JOHN DOE PHIL, ROBERT SNEAD, COREY STRADFORD, MICHAEL TATE, AUGUSTUS VANDERPUYE, WILLIAM WALLINGTON, NORMAN WILLIAMS, JOHN DOE WILSON and JOHN AND JANE DOES 1-50, Defendants.



The opinion of the court was delivered by: DEBEVOISE

DEBEVOISE, Senior District Judge.

 Plaintiffs, aliens who sought asylum and who were detained at a facility in Elizabeth, New Jersey, brought this action against defendants Correctional Services Corporation, a number of its officers and employees, the United States Immigration and Naturalization Service ("INS"), and various INS officials, alleging mistreatment while detained in that facility and asserting claims under federal, state and international law. The INS moves to dismiss the complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment.

 Defendants Alan Freiss, Norman Uzzle, Mike Rozos, Earline Boyer and David McLean ("INS officials") have joined in the INS's motion. The United States has been substituted as a defendant as to the claims against the INS officials based on New Jersey state law and the New Jersey constitution (counts 14, 20, 24, and 27-29). The INS officials argue for dismissal of most of the remaining claims -- those based upon the Religious Freedom Restoration Act (count 22); the Thirteenth Amendment to the United States Constitution (count 23); the Fair Labor Standards Act (count 25); and the International Covenant on Civil and Political Rights, customary international law, and the Alien Tort Claims Act (counts 15-18, 21, 26, and 30) -- leaving without challenge only claims invoking the First and Fifth Amendments to the United States Constitution (counts 19 and 13 respectively).

 Defendants Correctional Services Corporation (formerly known as Esmor Correctional Services, Inc., hereinafter "Esmor") and those of its present and former officers ("Esmor officers") and employees ("Esmor guards" or "guards") who have been sued in this action (collectively "Esmor defendants") also join in the motion and argue for dismissal of several of the claims asserted against them - those founded upon the Fair Labor Standards Act (counts 44, 62, and 80); the Thirteenth Amendment (counts 42, 60, and 78); the New Jersey Constitution (counts 32, 39, 43, 51, 57, 61, 69, 75, and 79); the Religious Freedom Restoration Act ("RFRA") (counts 40, 58, and 76); the Alien Tort Claims Act ("ATCA"); and the International Covenant on Civil and Political Rights ("ICCPR") and customary international law (counts 34-37, 41, 45, 49, 52-55, 59, 63, 67, 70-73, 77, 81, and 84). Count 51 was not separately listed in the Esmor motion, but the argument clearly embraces it.

 BACKGROUND

 I. The Amended Complaint

 Plaintiffs are alien asylum seekers who were detained at a facility in Elizabeth, New Jersey, which was run by Esmor and staffed by its employees under a contract with the INS. The allegations of the amended complaint can be summarized as follows: Every moment of plaintiffs' detention was filled with abuse. They could not escape from these abuses even in their dreams, as they were not permitted to sleep -- bright lights shone on them 24 hours a day, and guards woke them up just to taunt them.

 Esmor's layout contributed to and exacerbated the unrelenting abuses defendants inflicted on plaintiffs. Esmor was separated into several dormitories which were filthy and constantly smelled of human waste and other noxious odors. Complaint at P 44. Between twenty and forty asylees were packed into each room, which lacked natural light, telephones, and recreational materials Id. at P 43. The rooms were separated from each other and the communal hallways by thick dark glass so that persons in the halls could peer into the dormitories. Id. The dorms were not cleaned by defendants and were filthy. Id. In response to plaintiffs' repeated requests for cleaning materials, the guards beat plaintiffs. Id.

 The shower and toilet in each dormitory were in the same room as the eating and sleeping areas, forcing the plaintiffs to eat meals only inches away from the bathroom areas. Id. at P 44. Thus, as they ate, plaintiffs could observe and smell other detainees using the toilets. Id. Additionally, the bathroom facilities had no curtain or divider -- allowing the other asylees, guards and anyone passing in the hallway to observe the naked bodies of the plaintiffs who were using the toilets and taking showers. Id. at P 44. This was traumatic, humiliating and degrading to many detainees particularly the women, many of whom had never exposed their bodies to anyone before. Id. at P45. When women detainees showered, guards made crude sexual comments about their bodies. This exacerbated the women plaintiffs' feelings of shame and humiliation. Id.

 In a variety of ways defendants physically, mentally and sexually abused plaintiffs. In addition to beating them they yelled racial and ethnic epithets at them such as "African Monkeys" from the "jungle". Id. at PP 59, 67. The guards woke plaintiffs before sunrise and forced them to stand facing a wall, with their legs spread, for up to an hour at a time. Id. at P58. Upon searching male plaintiffs' genital areas the guards forcefully yanked their genitals causing severe pain. There was inappropriate touching of both male and female plaintiffs. Id. PP 70, 72. Sexual favors were sought of female plaintiffs. Id. P71.

 Defendants deprived plaintiffs of clothing and personal hygiene necessities. Id. at P 51. Changes of clothing were infrequent and the clothing provided was often filthy and could not be worn. Id. at PP 49, 50, 52.

 Defendants served spoiled food and insufficient amounts. The kitchen served rotten meat and sour milk. Id. at P47. Esmor officials and guards ordered detainees not to report food problems to INS inspectors who visited the facility. Id. at P48.

 Guards regularly locked plaintiffs in solitary confinement cells without warning or explanation, without a hearing, ranging from several days to several months. The defendants often shackled plaintiffs to their beds. Id. at P76.

 Guards performed strip searches and body cavity searches in a manner designed to degrade and humiliate plaintiffs. Id. at P74.

 Defendants prevented plaintiffs from practicing their religious rituals. Id. at P92. Defendants forced plaintiffs to work without compensation. Id. at P85. They took plaintiffs' property and never returned it. Guards stole money from plaintiffs. Id. at PP95, 96.

 Plaintiffs were denied adequate medical treatment. Id. at P108. They were denied access to legal representation. For example, guards, without any justification, often would refuse to allow plaintiffs to use the telephone to discuss their asylum cases with their counsel. Id. at P52. Additionally, defendants continuously failed to transport plaintiffs promptly to their asylum hearings. Id. at P55. As a result, plaintiffs often missed important asylum meetings (which resulted in a postponement of their asylum hearings) and prolonged their detention at Esmor. Id. at PP52, 55. Moreover, female detainees were forced to choose between being sexually assaulted and contacting their lawyers -- as guards premised using the telephones on submitting to their unwanted sexual advances. Id. at 71.

 Plaintiffs allege that at all times during the events that gave rise to the complaint the individual Esmor defendants were employees and agents of both Esmor and the INS. They also assert that Esmor officers and INS officials either were or should have been aware of the pattern of abuses taking place at the Esmor facility.

 The Esmor facility was closed after a revolt by the detainees on June 18, 1995. Some of the plaintiffs are still subject to detention at other facilities; some have been granted political asylum, and some have been deported.

 On the basis of their factual allegations, plaintiffs assert numerous claims against each category of defendants. Counts 68-84 accuse the Esmor guards of violations of the First, Fifth, and Thirteenth Amendments to the United States Constitution, numerous provisions of the New Jersey Constitution, the ICCPR, customary international law, the ATCA, the RFRA, the Fair Labor Standards Act, and New Jersey law. With the exception of counts 80 (failure to compensate employees under the Fair Labor Standards Act) and 83 (failure to ensure the safety of plaintiffs' confiscated property under New Jersey law), all these counts assert active violations of detainees' rights by the guards themselves.

 In counts 50-67 plaintiffs make corresponding allegations against Esmor officers - predicating the officers' liability for the actions of the guards on "failing to curb" the pattern of abuse, on "deliberate indifference," and, in the case of the New Jersey tort law claims, on theories of respondeat superior and of negligent hiring, training, and supervision.

 The claims against Esmor as a corporation (counts 31-49) are equivalent to those against the Esmor officers, with the addition of a breach of contract claim (count 33) alleging that the plaintiffs' were third-party beneficiaries of Esmor's contract with the INS and that they were harmed by Esmor's breach of that contract. The language of count 37 is a little different from that of count 55: in the former the corporation is accused simply of failing to take appropriate steps to ensure that property was protected; in the latter the officers are accused of acting with deliberate indifference to the plaintiffs' being deprived of property. Also, the distribution of "failing to curb" or "failing to take appropriate steps to curb" and "deliberate indifference" is not the same in the Esmor counts as it is in the Esmor officer counts.

 In counts 13-30 plaintiffs invoke the same rights against the INS officials as they do against the Esmor officers - advancing theories of liability based on omissions -- "failing to curb" and "deliberate indifference." In their claims under New Jersey law, plaintiffs allege negligent hiring and supervision, the breach of a duty to ensure the safety of plaintiffs' confiscated property, and the breach of a duty to ensure plaintiffs' safety from abuse.

 Finally, in counts 1-12 plaintiffs assert claims against the INS - invoking New Jersey tort and contract law, the ICCPR, customary international law, the RFRA, and the ATCA. In all counts other than those invoking New Jersey law, INS liability is predicated upon its failure to curb abuses at the Esmor facility. In alleging violation of New Jersey tort law, plaintiffs advance theories of respondeat superior, of negligent hiring and supervision, and or failure to ensure that plaintiffs could recover their confiscated property.

 The complaint requests money damages, costs, and a declaratory judgment that defendants have violated the numerous laws under which the action is brought.

 II. Procedural History

 On April 3, 1997, plaintiffs' attorney filed administrative claims with the INS. As the INS notes in the brief supporting its motion, Plaintiff Abraham Kenneh had previously filed a claim pro se (according to exhibits, no later than July 1996). That claim was denied in a letter signed August 12, 1997. (The INS places the denial on August 14, 1997). Thirteen of the plaintiffs claimed specific amounts for property damage but not for any other alleged harm. The remaining plaintiffs attached no specific amounts to any of their claims.

 On April 22, 1997, the Assistant Regional Counsel for the INS, wrote plaintiffs' attorney advising her that none of the administrative claims had included evidence of her authority to represent the claimants, as required under pertinent regulations.

 According to the declaration of the attorney, Penny Venetis, Esq., she has attempted to obtain and submit the requested evidence, but has succeeded in doing so for only six of the plaintiffs. She asserts that her failure to do so is the result of numerous difficulties in communicating with them.

 The present action was instituted on June 16, 1997. On or about July 2, 1997, according to Ms. Venetis' declaration, an original summons and complaint was served upon the United States Attorney's Office. Plaintiffs also served the United States Attorney General and the INS. On December 19, 1997, in accordance with 28 U.S.C. 2679(d), the Justice Department filed a certification with this Court to the effect that the INS officials were acting within the scope of their employment when they engaged in the conduct that is the subject of the complaint. The United States was accordingly substituted as a defendant for the INS officials as to counts 14, 20, 24, 27, 28, and 29 of the complaint.

 DISMISSAL PURSUANT TO RULE 12(b)(1)

 A motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction may be made at any time. Fed. R. Civ. P. 12(h)(3); Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977). A defendant may challenge whether subject matter jurisdiction exists in one of two ways. 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990). The first is a facial challenge to jurisdiction asserting that plaintiff's complaint, on its face, does not allege sufficient grounds to establish subject matter jurisdiction. Cardio-Medical Assoc., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983). "The court in assessing a Rule 12(b)(1) motion based on the pleadings must assume that the allegations contained in the complaint are true." Id. The second method is a factual attack on the jurisdictional allegations of the complaint. When this method is employed, the court may rely on affidavits and other such competent evidence. Land v. Dollar, 330 U.S. 731, 735, 91 L. Ed. 1209, 67 S. Ct. 1009 (1947); Tanzymore v. Bethlehem Steel Corp., 457 F.2d 1320, 1323 (3d Cir. 1972); Donio v. United States, 746 F. Supp. 500 (D.N.J. 1990); 2A James A Moore, Moore's Federal Practice P 12.07[2.-1] (2d ed. 1994). "Once the existence of subject matter jurisdiction is challenged, the burden of establishing it always remains on the party asserting jurisdiction." Moore, supra, P 12.07[2.-1]. But, before an action may be dismissed, the party asserting jurisdiction must have an adequate opportunity to respond to the grounds on which the complaint was actually dismissed. Berardi v. Swanson Mem'l Lodge No. 48, 920 F.2d 198, 200 (3d Cir. 1990). "Trial judges enjoy substantial procedural flexibility in handling Rule 12(b)(1) motions. But 'the record must clearly establish that after jurisdiction was challenged the plaintiff had an opportunity to present facts by affidavit or by deposition, or in an evidentiary hearing, in support of his jurisdictional contention.'" Id. (quoting Local 336, American Fed. of Musicians, AFL-CIO v. Bonatz, 475 F.2d 433, 437 (3d Cir. 1973)); accord Tanzymore v. Bethlehem Steel Corp., 457 F.2d at 1323. The court may grant limited discovery to determine whether subject matter jurisdiction exists. Moore, supra, P 12.07[2.-1]

 There are two important distinctions between a dismissal under 12(b)(1) and one under 12(b)(6) for failure to state a claim. "First, a dismissal under (b)(1) is not on the merits and is thus not given res judicata effect." Id. "Second, the court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction to hear the action." Id. (citing Land v. Dollar, 330 U.S. 731, 91 L. Ed. 1209, 67 S. Ct. 1009 (1947)).

 DISMISSAL PURSUANT TO RULE 12(B)(6)

 A complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the court finds "beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In analyzing motions to dismiss, all allegations set forth in the complaint must be accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). A court should allow a plaintiff an opportunity to amend the complaint instead of dismissing it where "a more carefully drafted complaint might state a claim upon which relief could be granted." Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir. 1985); see Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984).

 A motion to dismiss which presents the court with matters outside the pleading which are not excluded is to be treated as a motion for summary judgment and analyzed pursuant to Rule 56. Fed. R. Civ. P. 12. In such circumstances, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Id. However, an undisputedly authentic document attached to a motion to dismiss may be considered without converting it into a motion for summary judgment if plaintiff's claims are based upon that document. Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042, 126 L. Ed. 2d 655, 114 S. Ct. 687 (1994).

 ANALYSIS

 I. Claims Under ...


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