NANCY F. ATLAS, District Judge.
This Federal Tort Claims Act ("FTCA") case is before the Court on the Motion to Dismiss or for Summary Judgment ("Defendant's Motion") [Doc. # 28] filed by Defendant United States of America ("Defendant" or the "Government") and the Motion for Summary Judgment ("Plaintiff's Motion") [Doc. # 29] filed by Plaintiff Amarsaikhan Tsolmon ("Plaintiff" or "Tsolmon") [Doc. # 29]. Both motions have been fully briefed and are ripe for review.
Plaintiff Tsolmon is a Mongolian citizen who at all times relevant to this case was residing in the United States on a valid visa. This case stems from Tsolmon's arrest by Border Patrol agents of the United States Customs and Border Protection ("CBP") conducting a transportation check at approximately 9:30 p.m. on Friday, November 12, 2010, the CBP agents' failure to verify Tsolmon's immigration status after searching government databases for hours, and Tsolmon's subsequent detention at an immigration detention facility from approximately 3:00 a.m on Saturday, November 13, 2010, to approximately 8:40 p.m. on Sunday, November 14, 2010. The following is a summary of Tsolmon's factual allegations and the undisputed facts established by the evidence of record.
A complete explanation of Tsolmon's immigration history, which appears to span more than two decades and involves multiple visa adjustments, is not in the record. Tsolmon testified only that his mother and several siblings legally reside in the United States.
On Friday, November 12, 2010, Tsolmon traveled by bus from Houston, Texas, to Lake Charles, Louisiana.
Upon boarding the bus, Agents Wilson and Ledanowski began checking the passengers' identification and asking non-citizens for immigration documents.
Agent Wilson states that, while he was on the bus, he used the identifying information Tsolmon provided to contact the CBP "New Orleans dispatch" and to request a "records check."
While standing near the CBP vehicle by the side of the bus, Agent Wilson allowed Tsolmon to call his roommate to try and locate proof of Tsolmon's valid H-1B visa.
At the station, Agent Wilson continued to search for evidence of Tsolmon's valid visa.
At about 11:50 p.m., Agent Lewandowski called CBP supervisor Agent Daniel Stanley ("Agent Stanley") at home.
Tsolmon disputes that Agent Wilson's searches did not reveal evidence of any visa adjustments after his F-2 visa expired. Tsolmon further argues that the agents should have been able to locate evidence of his valid visa from the information Tsolmon provided. But Tsolmon does not argue that the database searches conducted Friday night and early Saturday morning showed evidence of his claimed visa adjustment in 2009 from an F-1 student visa to his H-1B temporary worker visa.
After approximately three hours at the station, Agent Wilson decided to process Tsolmon as a "non-immigrant overstay" because Tsolmon did not have with him, and Agent Wilson could not find electronically, immigration documents establishing current authority for Tsolmon's presence in the United States.
At approximately 2:30 a.m. on Saturday, November 13, 2010, Agent Wilson transported Tsolmon to the Southwest Louisiana Correctional Center ("SLCC").
Tsolmon complains that the conditions at SLCC were horrible, but he does not argue Agents Wilson or Stanley had control over or caused those conditions.
On Sunday, November 14, 2010, at approximately 3:30 p.m., CBP supervisor, Agent Stanley, returned to the station to work the evening shift.
Once Agent Stanley verified Tsolmon's immigration status, he notified Agent Wilson who drove to SLCC and picked up Tsolmon.
On or about August 22, 2012, Tsolmon filed an administrative tort claim with CBP, alleging that the events in November 2010 deprived him of his Fourth Amendment rights and constituted false imprisonment, false arrest, and negligent infliction of emotional distress.
On November 20, 2013, Tsolmon filed this federal suit against Agent Wilson, Agent Stanley, and the United States.
The United States moves to dismiss this case under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The United States contends it has not waived sovereign immunity under the FTCA for either of Plaintiff's claims. Defendant further asserts that Plaintiff's negligence claim is time barred. In the alternative, Defendant moves for summary judgment on all of Plaintiff's claims pursuant to Federal Rule of Civil Procedure 56. Plaintiff Tsolmon filed a crossmotion for summary judgment seeking judgment as a matter of law against Defendant on all of his claims. The Court addresses the parties' jurisdictional arguments, which resolve the case. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
Sovereign immunity is jurisdictional in nature. F.D.I.C. v. Meyer, 510 U.S. 471, 474 (1994). "The question of whether the United States has waived sovereign immunity pursuant to the FTCA goes to the court's subject-matter jurisdiction . . . and may therefore be resolved on a Rule 12(b)(1) motion to dismiss." Willoughby v. U.S. ex rel U.S. Dep't of the Army, 730 F.3d 476, 479 (5th Cir. 2013) (internal citations omitted).
Pursuant to Federal Rule of Civil Procedure 12(b)(1), "`[a] case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.'" Smith v. Reg'l Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014) (quoting Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005)). When there is a challenge to the court's subject matter jurisdiction, the party asserting jurisdiction bears the burden of establishing jurisdiction exists. Alabama-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 487 (5th Cir. 2014); Gilbert v. Donahoe, 751 F.3d 303, 307 (5th Cir. 2014). "A motion to dismiss for lack of subject-matter jurisdiction should only be granted if it appears certain that the plaintiff cannot prove any set of facts in support of his claims entitling him to relief." In re FEMA Trailer Formaldehyde Prods. Liab. Litig. (Miss. Plaintiffs), 668 F.3d at 286. "Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Ramming, 281 F.3d at 161.
In deciding the pending motions, the Court considers the well-pleaded factual allegations in the Amended Complaint, the undisputed factual evidence in the record, as well as material disputed evidence, which is viewed in the light most favorable to the Plaintiff. The Court does not resolve any disputed issues of fact.
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Meyer, 510 U.S. at 474. "Courts strictly construe waivers of sovereign immunity and resolve all ambiguities in favor of the sovereign." Huff v. Neal, 555 F. App'x 289, 297 (5th Cir. 2014) (citing Lane v. Pena, 518 U.S. 187, 192 (1996)).
"The FTCA is a waiver of sovereign immunity that allows a plaintiff to bring a civil action for damages against the Government." Villafranca v. United States, 587 F.3d 257, 260 (5th Cir. 2009). "Plaintiffs may recover against the United States and its agencies under the FTCA `in the same manner and to the same extent as a private individual under like circumstances' under substantive state law." Pleasant v. U.S. ex rel. Overton Brooks Veterans Admin. Hosp., 764 F.3d 445, 448 (5th Cir. 2014) (quoting 28 U.S.C. § 2674). Under the FTCA, federal district courts have "exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1); accord Spotts, 613 F.3d at 565.
The FTCA creates several time limitations for a plaintiff to bring a cause of action.
"Congress has carved out several exceptions to the FTCA's broad waiver of immunity." Davila v. United States, 713 F.3d 248, 263 (5th Cir. 2013). At issue in this case is the exception for federal employees' discretionary conduct, 28 U.S.C. § 2680(a), and the exception for certain claims arising out of enumerated torts other than claims involving certain conduct by law enforcement officers, 28 U.S.C. § 2680(h). For the reasons explained below, the Court concludes that Tsolmon's causes of action are barred by the discretionary function exception of § 2680(a) to the FTCA's waiver of sovereign immunity and that the FTCA's waiver of sovereign immunity through the law enforcement proviso of § 2680(h) does not extend to the claims in this case. Tsolmon thus has not met his burden to establish that the United States waived sovereign immunity for his claims, and the Court lacks subject matter jurisdiction.
A provision courts refer to as the "discretionary function exception" limits the FTCA's waiver of sovereign immunity. The waiver does not extend to:
28 U.S.C. § 2680(a); accord Spotts, 613 F.3d at 566-67. In the Fifth Circuit, on a motion to dismiss, "a plaintiff has the burden of stating a claim for a state-law tort and establishing that the discretionary function exception does not apply." Spotts, 613 F.3d at 569 (citing St. Tammany Parish v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 n.3 (5th Cir. 2009)). Plaintiff Tsolmon, therefore, must "advance a claim that is facially outside the discretionary function exception in order to survive the motion to dismiss." St. Tammany Parish, 556 F.3d at 315 n.3; accord Huff, 555 F. App'x at 297.
The Fifth Circuit has not yet decided if the plaintiff or the Government bears the ultimate burden of proof to show whether the discretionary function exception to the waiver of sovereign immunity applies. See St. Tammany Parish, 556 F.3d at 315 n.3; Walding v. United States, 955 F.Supp.2d 759, 770 (W.D. Tex. 2013). Other circuits are split on this issue. Compare Aragon v. United States, 146 F.3d 819, 823 (10th Cir. 1998) (placing the burden on the plaintiff to prove that the exception does not apply), with S.R.P. v. United States, 676 F.3d 329, 333 n.2 (3d Cir. 2012) (collecting cases and explaining that the Third, Sixth, Seventh, and Ninth Circuits have all held that the burden is on the Government to prove the exception applies). The Court will assume without deciding that the Government bears this burden of proof.
An act falls within the discretionary exception function if: (1) the challenged act involves an "element of judgment" and (2) the judgment is "of the kind the exception was designed to shield." Davila, 713 F.3d at 263 (quoting United States v. Gaubert, 499 U.S. 315, 322 (1991); Ashford v. United States, 511 F.3d 501, 505 (5th Cir. 2007)) (internal quotation marks omitted). Both prongs of this two part test must be satisfied in order for the discretionary function exception to apply. Id. With regard to the first prong of the analysis, "the conduct must be a `matter of choice for the acting employee.'" Spotts, 613 F.3d at 567 (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). The "nature of the conduct," not the "status of the actor" governs whether the exception applies. Id. Under the second prong, "`the proper inquiry . . . is not whether [the government actor] in fact engaged in a policy analysis when reaching his decision but instead whether his decision was `susceptible to policy analysis.'" Davila, 713 F.3d at 263 (quoting Spotts, 613 F.3d at 572).
Notwithstanding these broad allegations, Tsolmon's briefing on the pending motions and his counsel's comments at oral argument narrow the challenged conduct at issue. Tsolmon states that he "does not object to the actions and conduct of Defendant's Customs and Border Protection agents in questioning him about his immigration status on the bus, at the bus station and at the CBP office in Lake Charles, Louisiana" and that he sees "no violation in these necessary law enforcement activities. E.g., Plaintiff's Motion, at 7. Tsolmon instead describes the challenged conduct in this case as "CBP's failure to verify his immigration status," which "amounted to negligence," and "the decision to incarcerate [Tsolmon] in a detention center," which "amounted to false imprisonment." Id.
Tsolmon also contends that his claims challenge a CBP policy in effect in 2010 requiring agents to detain (either with or without a $5,000 cash bond depending on an individual's criminal history) anyone charged with being illegally present in the United States once a Notice to Appear ("NTA") was issued.
Pursuant to § 1357(a)(2), a CBP agent has the "power" to arrest someone without a warrant in the United States if the agent has "reason to believe" that the person is in the United States in violation of any immigration laws or regulations and "is likely to escape before a warrant can be obtained for his arrest." 8 U.S.C. § 1357(a)(2).
Tsolmon further argues that Agent Wilson violated § 1357(a)(2) because he lacked reason to believe Tsolmon was illegally present in the United States and that Agent Wilson failed to adequately consider if Tsolmon was a flight risk before issuing the NTA, thereby resulting in Tsolmon's improper arrest. The Court does not condone any errors the CBP agents may have made in their investigation of Tsolmon's immigration status. Nevertheless, their investigation was discretionary and the FTCA's discretionary function exception applies "whether or not the discretion involved be abused." 28 U.S.C. § 2680(a).
Some federal courts have held that a federal agent's decision during a criminal investigation is nondiscretionary when an agent allegedly engages in egregious acts intentionally and in bad faith to violate a federal law.
Based on the foregoing, the Court concludes that the challenged conduct in this case involves the agents' exercise of their discretion. Thus, the first prong of the Gaubert test for the discretionary function exception is satisfied.
Having concluded that the first prong of the discretionary function exception to the FTCA is satisfied, the Court must now determine if, under the second Gaubert prong, the challenged conduct of the agents was based on considerations of public policy, and thus was the kind of conduct the discretionary function exception was designed to shield. See Davila, 713 F.3d at 263. The Government contends that CBP's decisions regarding investigations of citizenship and arrests are decisions the discretionary function exception is designed to shield, particularly when an alien does not have documents in his possession showing his legal status. Defendant's Motion, at 23; see 8 U.S.C. § 1304(e). Plaintiff provides no substantive response. Rather, he counters simply by arguing the applicability of the FTCA's "law enforcement proviso," 28 U.S.C. § 2680(h). The Court addresses the law enforcement proviso separately below.
"[T]he proper inquiry under prong two" is not whether the CBP agents in fact engaged in a policy analysis when reaching their decisions to investigate, arrest, and detain Tsolmon but instead whether their decisions were "susceptible to policy analysis." Spotts, 613 F.3d at 572. "Because the purpose of the [discretionary function] exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort, when properly construed, the exception protects only governmental actions and decisions based on considerations of public policy." Spotts, 613 F.3d at 568 (quoting Gaubert, 499 U.S. at 323 (quoting Berkovitz, 486 U.S. at 537; United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984))) (internal quotation marks omitted). "In this regard, `if a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.'" Spotts, 613 F.3d at 568 (quoting Gaubert, 499 U.S. at 324). Further, "[t]he focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation." Gaubert, 499 U.S. at 325. Agent Wilson's intentions and strategies in investigating Tsolmon's immigration status and his personal beliefs about Tsolmon at the time thus are not relevant.
CBP is a unified federal law enforcement agency designed as "the nation's first comprehensive border security agency focused on securing [the United States'] borders while facilitating legal trade and travel."
The Court, accordingly, concludes that the Government has satisfied both prongs of the Gaubert test for application of the FTCA § 2680(a) discretionary function exception to the conduct on which Plaintiff's negligence and false arrest/false imprisonment claims are based. These claims are barred by the discretionary function exception to the FTCA's waiver of sovereign immunity.
The Court next turns to Tsolmon's argument that, even if the discretionary function exception of § 2680(a) applies to this case, the United States has waived sovereign immunity for the claims in this case under the "law enforcement proviso" of § 2680(h).
Section 2680(h) contains an exception to the FTCA's waiver of sovereign immunity for "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h). The statute, however, permits suit against the United States for certain claims involving law enforcement officers' conduct:
28 U.S.C. § 2680(h).
The parties do not dispute that the CBP agents qualify as "law enforcement officers."
The United States Supreme Court has not decided this issue and there is "disagreement among the circuits regarding the interaction between § 2680(a) and § 2680(h)." Milligan v. United States, 670 F.3d 686, 695 n.2 (6th Cir. 2012). The Eleventh Circuit has held that, whenever a plaintiff asserts a claim that arises out of an enumerated intentional tort in § 2680(h) against a law enforcement officer, sovereign immunity is waived under § 2680(h) of the FTCA and "there is no need to determine if the acts giving rise to it involve a discretionary function." Ngyuen v. United States, 556 F.3d 1244, 1257 (11th Cir. 2009). Most other circuits, however, have recognized that the plaintiff must clear the jurisdictional hurdle imposed by the discretionary function exception of § 2680(a) in order to assert a claim against a law enforcement officer under § 2680(h).
The Fifth Circuit, in Sutton v. United States, 819 F.2d 1289 (5th Cir. 1987), adopted a middle ground. Sutton requires courts to engage in a difficult and subjective analysis to try to "synthesi[ze] [ ] the policies behind §§ 2680(a) and (h) as applied to the specific facts of each situation." Sutton, 819 F.2d at 1295. Sutton instructs courts to "giv[e] effect to both [§§ 2680(a) and 2680(h)] in accordance with their legislative purpose" and that any conflicts between the sections "must be reconciled to achieve the legislative purpose expressed in the words of the statute and in light of existing law and policy behind the statute." Id. at 1300.
The United States cites Fifth Circuit cases calling into question whether Sutton remains good law.
The Sutton court pointed out that Congress's "primary motivation" for amending the FTCA to add the law enforcement proviso was to respond to "outrageous conduct by federal law enforcement officers and the indignities to which law abiding citizens had been subjected" to in raids in Collinsville, Illinois, where five to fifteen "shabbily dressed" narcotics officers "stormed" into innocent people's homes, forced them to lie on the floor with their hands tied, and pointed pistols at their heads while the officers searched their homes. Sutton, 819 F.2d at 1295-96 & n.11. On the other hand, the discretionary function exception, was designed "to protect the government from judicial second guessing" and extend sovereign immunity to decisions "`[w]here there is room for policy judgment.'" Id. at 1293 (quoting Dalehite v. United States, 346 U.S. 15, 36 (1953)). The Fifth Circuit reasoned that, while the discretionary function exception "protect[s] necessary, but necessarily imperfect, functions of government involving discretion on policy judgments and decisions from tort inspired judicial scrutiny," Congress enacted the law enforcement proviso to be "responsible to citizens who are injured by law enforcement officers in situations like the Collinsville raids when relief was otherwise unavailable." Id. at 1298 (emphasis added).
Subsequent Fifth Circuit cases attempting to harmonize §§ 2680(a) and 2680(h) emphasize a distinction between claims arising out of allegations of serious bad faith conduct or intentional misconduct and claims sounding in negligence or ineptitude. For example, in Nguyen, an unpublished decision from the Fifth Circuit, officers of the Immigration and Naturalization Service ("INS") instituted deportation proceedings against a plaintiff and detained him for fifteen months before discovering that the plaintiff had a valid derivative claim to United States citizenship. Nguyen, 65 F. App'x 509, 2003 WL 1922969, at *1. In discussing the interplay of §§ 2680(a) and 2680(h), the Nguyen court found it significant that "the INS officers did not commit a constitutional violation nor did they engage in any conduct that could be described as in bad faith," and that "[n]o regulation or statute prevented the INS agents from pursuing deportation proceedings against [the plaintiff] based on the information available to them." Id. at *2. The Nguyen court concluded that the plaintiff's "detention [wa]s not of a character for which a court should refer to § 2680(h) for an exception to the discretionary function." Id. Similarly, in Camacho v. Cannella, the district court held that "when the alleged conduct crosses the line from negligent conduct to intentional misconduct or bad faith, the discretionary exception yields to the law enforcement proviso, and the lawsuit can proceed." Camacho, 2012 WL 3719749, at *9 (citing Ngyuen, 65 F. App'x 509, 2003 WL 1922969, at *2; Sutton, 819 F.2d at 1293). The district court concluded that the plaintiff's allegations of "[l]ying and intentionally mischaracterizing evidence," were "the type of conduct that is actionable under FTCA." Id. at *10. The Camacho court, in distinguishing the facts of that case from Nguyen, explained that the plaintiff's allegations amounted to more than just allegations of negligence or that "an officer's investigation was sloppy or that an officer should have investigated the case more thoroughly." Id.
In the case at bar, the Court has concluded in connection with § 2680(a) that the CBP agents' challenged conduct involved elements of judgment and choice, and was susceptible to policy analysis. See supra Part III(B)(2)-(3); see also Gaubert, 499 U.S. at 322. CBP agents must weigh many policy considerations when investigating an individual's claim to a valid visa and determining whether or not hold and to charge that person with being illegally present in the United States. Plaintiff Tsolmon (who admittedly did not have his immigration papers with him when questioned by the agents) contends that "[t]he government's failure to verify [his] valid immigration [status] was the result of negligence." Plaintiff's Motion, at 7. He further asserts that this case is about "government error," id., at 14, 15, "record keeping errors," id., at 9, and "the system fail[ure]," id., at 13. See also Plaintiff's counsel's statements at oral argument held Aug. 25, 2015, passim. Nowhere does Tsolmon allege or argue that the CBP agents' conduct in investigating his status and deciding to arrest him rose to the level of intentional misconduct or bad faith. Accordingly, the Court concludes that, under the Fifth Circuit's balancing test in Sutton, the claims in this case are not of the kind that Congress intended to be actionable under the law enforcement proviso of § 2680(h). Rather, these claims arise from discretionary conduct that Congress intended to except from the FTCA's waiver of sovereign immunity under § 2680(a). As a result, the Court lacks subject matter jurisdiction over all of Plaintiff's claims.
Plaintiff Tsolmon's detention and incarceration resulting from the CBP's prolonged investigation of his immigration status were extremely unfortunate and are not condoned by this Court. The issue presented, however, is whether the alleged incompetent acts or errors by the CBP agents give rise to actionable claims against the United States under the FTCA. Based on the foregoing, the Court concludes that Plaintiff's claims are barred by the discretionary function exception to the FTCA's waiver of sovereign immunity and are not within the law enforcement proviso waiver of sovereign immunity. Because the Court lacks subject matter jurisdiction in this case, it is hereby
The Court will issue a separate final dismissal order.
Also, the Government contends that Tsolmon had an "early I-94," which misled the agents during their computer searches. See, e.g., Defendant's Reply, at 4. Tsolmon disputes that he had more than one I-94 number. E.g., Plaintiff's Surreply, at 1-2. For present purposes, the Court construes the evidence in the light most favorable to Tsolmon.
There is conflict in the record regarding the circumstances surrounding the preparation and delivery of these documents, containing the printed date November 12, 2010 (Friday), and a handwritten date "11-13-10" under the signature on the Notice of Custody Determination. Agent Wilson explains this was a clerical anomaly because he printed the documents right before midnight on Friday, November 12, 2010, and signed the document shortly after midnight on Saturday, November 13, 2010. Wilson Depo., at 78-79. Tsolmon complains that Agent Stanley refused to give him copies of the documents when Tsolmon was eventually released from SLCC on Sunday night. Tsolmon's Depo., at 57.
Additionally, in federal court, an amendment to a pleading "relates back to the date of the original pleading" when the law providing the applicable statute of limitations allows relation back, the amendment and "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading." FED. R. CIV. P. 15(c)(1). "`[Once litigation involving a particular transaction has been instituted, the parties should not be protected [by the statute of limitations] from later asserted claims that arose out of the same conduct set forth in the original pleadings.'" Flores v. Cameron Cnty., Tex., 92 F.3d 258, 272 (5th Cir. 1996) (quoting Kansa Reinsurance Co. v. Cong. Mortg. Corp. of Tex., 20 F.3d 1362, 1366-67 (5th Cir. 1994)) (second alteration in original). The Fifth Circuit has recognized that tort claims asserted under the FTCA may relate back to the original complaint. See, e.g., McGuire v. Turnbo, 137 F.3d 321, 325-26 (5th Cir. 1998); Edwards v. United States, 755 F.2d 1155, 1158 (5th Cir. 1985); Williams v. United States, 405 F.2d 234, 239 (5th Cir. 1968).
Tsolmon's summary judgment briefing further argues Agents Wilson and Stanley's breached their "duty to ensure Tsolmon's health and well being while in detention" "by placing him in a facility where conditions were deplorable." Plaintiff's Motion, at 24-25. At oral argument, Plaintiff's counsel clarified that the allegations regarding the deplorable conditions at SLCC are relevant to potential damages suffered, not a separate claim of Agents Wilson and Stanley's alleged misconduct. Indeed, Agent Stanley testified—without contradiction in the record—that he and Agent Wilson had no control over the conditions at SLCC. Moreover, any claim concerning inadequate prison conditions at SLCC is not properly before the Court, as Tsolmon's Complaint does not allege that Agents Wilson and Stanley breached any duty to ensure his well being at SLCC.
8 U.S.C. § 1357(a)(2).
Since Meyer, some circuit courts have recognized that a state tort claim may fall outside the discretionary function exception when a plaintiff plausibly pleads that a federal officer commits constitutional violation. See Castro, 608 F.3d at 271-72 n.1 (Stewart, J., dissenting to en banc ruling) (collecting cases). However, several of these cases involved allegations "complain[ing] of conduct [that] violated clearly established constitutional rights," Linder v. McPherson, Civ. Action No. 14-cv-2714, 2015 WL 739633, at *12 (N.D. Ill. Jan. 29, 2015) (and cases cited therein), and thus arguably are more consistent with the requirement for a violation of a "clearly established" constitutional right to overcome a government official's qualified immunity, see Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011).
