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Oliver Lawal, Daosamid Civil Action Bounthisane, and Gazali Shittu v. Mark Mcdonald

February 26, 2013


The opinion of the court was delivered by: Jones, II, J.


Plaintiffs Oliver Lawal, Daosamid Bounthisane and Gazali Shittu brought this action claiming violations of their rights under the Fourth and Fifth Amendments of the United States Constitution. Defendants Mark McDonald, William Riley and Frederick R. Chow are employed as Special Agents by the Immigration and Customs Enforcement bureau ("ICE") of the United States Department of Homeland Security. Plaintiffs, who are each United States citizens and hold licenses to operate taxicabs in the City of Philadelphia, allege that the Defendants wrongfully arrested and detained them during a sweep coordinated by ICE and the Philadelphia Parking Authority ("PPA") designed to detect illegal aliens who were driving taxis in Philadelphia. Presently before this Court is a Motion by the Defendants to dismiss Plaintiffs' Amended Complaint, or in the alternative, for summary judgment. (Dkt. No. 8.) For the reasons that follow, the Motion is granted.*fn1


In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). After the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "threadbare recitals of a cause of action's elements, supported by mere conclusory statements" do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable of the alleged misconduct." Id. (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678; accord Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) ("All civil complaints must contain more than an unadorned the-defendant-unlawfully-harmed-me accusation."). Moreover, "the factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8 [of the Federal Rules of Civil Procedure]." Villegas v. Weinstein & Riley, P.S., 723 F. Supp. 2d 755, 756 (M.D. Pa. 2010) (quoting Phillips, 515 F.3d at 232).


In their Amended Complaint,*fn2 Plaintiffs allege that in or about June 2009, Defendant

McDonald contacted William P. Schmid, the Enforcement Manager of PPA's Taxicab and Limousine Division, to request a list of all taxicab drivers certified by PPA to operate a taxicab in Philadelphia ("the PPA List"). (Am. Compl. ¶ 12.) Over the next year, PPA and ICE then exchanged various versions of the operator list in an effort to create a final working list ("the working list") identifying suspected illegal alien taxicab drivers. (Id. at ¶ 14.) On June 15, 2010, PPA, "at the request and direction of Defendants, sent a letter to Plaintiffs advising each Plaintiff that he was entitled to a refund from PPA and instructed each Plaintiff to arrive at PPA headquarters on June 23, 2010." (Id. at ¶ 16.) Each Plaintiff appeared at PPA headquarters on June 23, 2010, but was told to return on June 30, 2010 to receive their refunds. (Id. at ¶¶ 17, 18.) When they arrived on June 30, 2010, each Plaintiff provided his driver's license, taxicab ID, and name, date of birth, address, and social security number to an unidentified female ICE agent, and was instructed to enter another room to receive their refunds. (Id. at ¶¶ 22, 54, 86.) Upon entering the other room, each Plaintiff alleges that he was suddenly and violently attacked, thrown against a wall and handcuffed by Defendants and other ICE agents under Defendants' direction and control, and were told they were under arrest for alleged immigration violations. (Id. at ¶¶ 23, 55, 87.) Each informed the ICE agents that they were United States citizens. (Id. at ¶¶ 24, 56, 88.)

Each Plaintiff alleges that he was interrogated for more than one hour by Defendants and other ICE agents under Defendants' direction and control. (Id. at ¶¶ 25, 58, 90.) Thereafter, each Plaintiff was told he had been mistakenly detained, but all three were nonetheless held for several additional hours with other persons arrested in the operation, and were forbidden to stand or speak. *fn3 (Id. at ¶¶ 27-30, 60-63, 96-99.) Defendants advised the Plaintiffs that they had to remain because Defendants did not want them to have an opportunity to advise other taxicab drivers of the ICE operation occurring at PPA headquarters that day. (Id. at ¶¶ 33,65, 104.)

Based on these allegations, Plaintiffs assert Bivens*fn4 claims that Defendants' gross negligence and deliberate indifference violated their Fourth Amendment rights to be free from unreasonable seizure of their persons by arresting them without probable cause, by refusing to release them once they learned they were United States citizens, and by failing to release them once their citizenship was determined. (Id. at ¶¶ 39, 71, 110.) Plaintiffs also assert that Defendants' failure to ensure that no United States citizens' name was on the working list, and their mistakenly including the Plaintiffs on the working list, constituted outrageous and conscience shocking governmental conduct violative of their liberty and due process rights under the Fifth Amendment. (Id. at ¶¶ 46-50, 78-82, 117-121.) In their Motion, Defendants argue that the allegations contained in the Amended Complaint fail to state viable Bivens claims, and that each Defendant is entitled to qualified immunity. They also argue that Plaintiffs' Fifth Amendment claims should be dismissed because they are properly analyzed under the Fourth Amendment.


This Court finds that the claims Plaintiffs present as substantive due process claims under the Fifth Amendment - that Defendants' failure to ensure that no United States citizens' name was on the PPA list, and by including their names on the working list, was egregious, outrageous and conscience shocking - are properly addressed as Fourth Amendment unreasonable seizure claims. In Graham v. Connor, 490 U.S. 386 (1989), the United States Supreme Court held that "where a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." Id. at 395 (holding that, in a case asserting both a Fifth Amendment substantive due process claim and a Fourth Amendment excessive force claim arising in the context of an arrest or investigatory stop, that the cause of action should be analyzed under the Fourth Amendment and its reasonableness standard, rather than under a substantive due process approach). However, the Supreme Court has made clear that Graham is limited to situations where there is a specific constitutional provision that applies to the alleged conduct. United States v. Lanier, 520 U.S. 259, 272, n.7 (1997) (stating that "Graham requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process."); see also, Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843-844 (1998) (stating that substantive due process analysis is "inappropriate . . . if respondents' claim is 'covered by' the Fourth Amendment," but holding that Graham did not apply because there was no search or seizure under the Court's precedents); Chester Upland Sch. Dist. v. Pennsylvania, Civ. A. No. 12-132, 2012 WL 1344368, at *6 (E.D. Pa. April 17, 2012) (stating that Supreme Court precedents have shown distinct disfavor of allowing substantive claims of due process to proceed when alternative constitutional grounds can achieve the same results). Although the holding in Graham arose in the Fourth Amendment context of excessive force, it has been applied to other allegations of unreasonable searches and seizures. See, e.g., Garcia-Torres v. Holder, 660 F.3d 333, 337 (8th Cir. 2011) (stating that "[a]ll claims of an unconstitutional search or seizure must be addressed solely in terms of the Fourth Amendment, not the "fundamental fairness" requirement "under a 'substantive due process' approach"); Russo v. City of Bridgeport, 479 F.3d 196, 205 (2nd Cir. 2007) (applying Graham to the Fourth Amendment context of a claim of unreasonably prolonged detention); Bryant v. Vernoski, Civ. A. No. 11-263, 2011 WL 4400820, at *3 (M.D. Pa. Sept. 1, 2011) (holding that plaintiffs could not state a substantive due process claim based on governmental behavior of shooting plaintiff's dog because claim was covered by the Fourth Amendment protection against unreasonable seizures of "effects"); Schor v. North Braddock Borough, 801 F. Supp. 2d 369, 379 (W.D. Pa. 2011) (same).

Here, Plaintiffs' Fifth Amendment claims are unquestionably covered by the Fourth Amendment since they are based on allegations of an unlawful seizure. While Plaintiffs argue that their Fifth Amendment claims are based on the creation of the working list and the inclusion of their names on it arise out of different conduct than their claims brought under the Fourth Amendment, taken in the light most favorable to Plaintiffs it is clear that the activity of identifying them as possible illegal aliens, and actually detaining them, was part of a single, continuous process that led to the asserted constitutional violations. Since the propriety of arrest and detention by governmental officials go to the heart of the Fourth Amendment protection against unreasonable seizures, this Court concludes that the substantive due process claims fail to state plausible claims for relief. *fn5


This Court also finds that Plaintiffs have failed to meet their ...

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