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Najera v. United States

United States District Court, E.D. Virginia, Alexandria Division

November 22, 2016

GERMAN HERNANDEZ NAJERA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          James C. Cacheris UNITED STATES DISTRICT COURT JUDGE

         This 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.

         I. Background

         This 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. Factual Background

         Plaintiff, 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.

         In 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.)

         Once 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.)

         Four 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.)

         Following 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.)

         B. Administrative Proceedings

         Plaintiff 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.)

         C. Procedural History

         Plaintiff 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 disposition.

         II. Standards of Review

         A. 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

         Being a 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.” Id.

         B. 12(b)(3) Motion to ...


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