United States District Court, E.D. Virginia, Alexandria Division
C. Cacheris UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on the Defendant's Motion to
Sever and Dismiss or Transfer Venue to the Southern District
of Texas, Motion to Dismiss for Lack of Subject Matter
Jurisdiction, and Motion to Dismiss for Failure to State a
Claim. [Dkt. 9.] For the following reasons, the Court will
deny Defendant's motion to dismiss for lack of subject
matter jurisdiction. The Court will grant the Defendant's
motion to sever and transfer Plaintiff's Texas
claims-related to events that took place there in June and
July 2013-to the Southern District of Texas. The Court will
continue Plaintiff's remaining cause of action regarding
false imprisonment, as it arises from events that took place
in Virginia in May and June 2014. Finally, the Court will
deny as moot Defendant's motion to dismiss for failure to
state a claim.
case is brought by Plaintiff German Hernandez Najera
(“Plaintiff” or “Hernandez Najera”)
and arises out of torts allegedly committed by the United
States Customs and Border Protection (“CBP”) and
United States Immigration and Customs Enforcement
(“ICE”), pursuant to the Federal Torts Claims Act
(“FTCA”), 28 U.S.C. § 2671, et seq.
a citizen of Honduras, alleges that he first entered the
United States in 1998. (Compl. ¶ 21.) In or around 2000,
he was granted Temporary Protected Status
(“TPS”). (Id.) The parties agree that
Plaintiff's TPS was valid at all times relevant to this
case, and remains so today.
November 2012, Plaintiff left the United States to return to
Honduras to visit his mother and “the man he considered
his stepfather, ” both of whom he alleges were ill.
(Id. ¶ 22.) Plaintiff did not obtain advance
parole for this trip. (Id. ¶ 23.) He returned
to the United States in March 2013, entering in Texas, where
he alleges he was held captive by a criminal organization for
about two months. (Id. ¶ 24.) After he escaped,
Plaintiff returned to Mexico for approximately six weeks.
(Id. ¶ 25.) Plaintiff then reentered the United
States on June 13, 2013, and was apprehended by CBP.
(Id.) CBP transported him to the McAllen Border
Patrol Station. (Id.)
Plaintiff arrived at the McAllen station, Plaintiff alleges
that he showed CBP officials an Employment Authorization
Document (“EAD”) that proved he had valid TPS
until July 5, 2013. (Compl. ¶ 26.) Despite this
documentation, CBP officials allegedly placed him in a
holding cell with other detainees. (Id. ¶ 28.)
Plaintiff claims that the holding cell's temperature was
kept “at a painfully low level” and detainees
were not provided with bedding or clothing to keep warm.
(Id. ¶ 29.) Plaintiff also alleges that CBP
officials interfered with the detainees' ability to get
adequate sleep; failed to provide privacy to use the
bathroom; left detainees in dirty, unsanitary conditions
without the opportunity to bathe or have access to hygiene
products; and provided inadequate water and food.
(Id. ¶¶ 31, 33-37.) Hernandez Najera
further alleges that he was not permitted to contact his
attorney during his detention. (Id. ¶ 38.)
days later, on June 17, 2013, Plaintiff was transferred to
ICE custody at the South Texas Detention Center in Parsall,
Texas. (Compl. ¶ 40.) He was released from the facility
on July 10, 2013, under an Order of Release on Recognizance.
(Id. ¶ 45.) The Order required him to report to
ICE Enforcement and Removal Operations (“ERO”) in
Fairfax, Virginia on July 31, 2013. (Id.) Plaintiff
reported as ordered and was told to return on May 8, 2014.
(Id. ¶ 46.) On April 8, 2014, a hearing was
held in Arlington Immigration Court; the Plaintiff did not
appear. (Id. ¶ 47.) He alleges that he failed
to receive any notice of the hearing. (Id.) As a
result, the immigration judge ordered his removal in
absentia. (Id.) On May 8, 2014, when Hernandez
Najera reported to ICE ERO, he was told about the removal
order and asked to come back on May 29, 2014. (Id.
¶ 48.) When he returned at the end of May, ICE detained
him and placed a GPS electronic monitoring bracelet on his
ankle. (Id. ¶ 49.)
this incident, Plaintiff secured counsel and on June 2, 2014,
moved to reopen his removal proceedings and to vacate the
final order of removal. (Id. ¶ 51.) One day
later, on June 3, 2014, Plaintiff's counsel contacted ICE
and asserted that the ankle bracelet was unlawful.
(Id.) It was then removed. (Id. ¶ 53.)
Plaintiff's motion to reopen the removal proceedings was
granted. (Id. ¶ 51.) His removal case is still
pending, with the next hearing date scheduled for March 2,
2017. (Id. ¶ 54.)
filed administrative claims for damages with both CBP and ICE
on January 30, 2015. (Compl. ¶ 15.) On November 5, 2015,
CBP denied the claims on behalf of both agencies.
(Id. ¶ 16.)
filed suit in this Court on April 25, 2016. [Dkt. 1.] On
September 26, 2016, Defendant filed the instant motions.
[Dkt. 9.] Plaintiff filed his opposition on October 20, 2016
[Dkt. 15], to which Defendant replied on October 31, 2016
[Dkt. 18]. On November 16, 2016, the Court held oral
argument. Defendant's motions are now ripe for
Standards of Review
12(b)(1) Motion to Dismiss for Lack of Subject Matter
court of limited jurisdiction, we must dismiss a case when
subject matter jurisdiction is lacking. Parties that move to
dismiss under Rule 12(b)(1) may contend that the complaint
“fails to allege facts upon which subject matter
jurisdiction may be based” or “that the
jurisdictional allegations of the complaint [are] not
true.” Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982). In either case, the “burden of proving
subject matter jurisdiction on a motion to dismiss is on the
plaintiff, the party asserting jurisdiction.”
12(b)(3) Motion to ...