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Detention, Challenging Treatment in Detention

This Litigation Issue Page summarizes and discusses class action, multi-party, and other impact suits that challenge the conditions and treatment of noncitizens in detention.

Latest Developments

U.S. Citizen Alleges Wrongful Detention and Constitutional Violations in Suit Against ICE Officers
Castillo v. Swarski, No. 08-05683 (W.D. Wash. Dec. 10, 2009), appeal docketed, No. 10-35041, (9th Cir. Jan. 11, 2010)

A U.S. citizen brought suit against ICE federal agents alleging violations of his Fourth and Fifth Amendment rights. According to the plaintiff, ICE agents ordered that plaintiff be wrongfully detained, interrogated, and imprisoned for 226 days.

The amended complaint states that while in jail for an unrelated offense, plaintiff was interrogated by an ICE agent about his immigration status. The plaintiff alleges that he asserted that he was a U.S. citizen and offered detailed information to substantiate his claim. According to the complaint, the ICE officers did not investigate his claims and subsequently wrongfully detained him in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. Plaintiff also asserts that by failing to provide him with notice of the charges against him and failing to investigate his claims while he was imprisoned, defendants deprived him of liberty and property without due process of law in violation of his Fifth Amendment rights. The plaintiff seeks compensatory and punitive damages in an amount to be proved at trial and reasonable costs and attorney’s fees.

On December 12, 2009, the court granted the defendants’ motion to dismiss against one named ICE supervisor because the plaintiff failed to allege any participation by that agent in the events that gave rise to plaintiff’s claims. The court denied the motion to dismiss against all other defendants. In the alternative motion for summary judgment, the remaining defendants argued that the court should grant summary judgment because they were entitled to qualified immunity from plaintiff’s constitutional claims. The court denied the motion and ordered limited discovery to develop the record surrounding defendants’ claims of qualified immunity.

On January 11, 2010, defendants appealed the order granting in part and denying in part defendants’ motion to dismiss and denying the remaining defendant’s alternative motion for summary judgment. Appellants’ opening brief is due by February 22, 2010 and appellee’s answering brief by March 24, 2010.

Court Orders ICE to Provide Medical Treatment
Rosemarie M. v. Morton, No. 09-00601 (M.D. Fla. filed Sept. 11, 2009)

A district court granted a preliminary injunction ordering ICE to authorize and schedule a medical treatment for a detained plaintiff suffering from uterine fibroid tumors. Plaintiff had been undergoing treatment for the condition while in state custody and medical specialists had recommended and the state had authorized surgery, which was being scheduled at the time plaintiff was transferred to ICE custody in April 2009. At the time of the injunction, seven months after the transfer, plaintiff had not received any treatment for the condition, despite receiving multiple diagnostic tests and visiting several physicians. The court held that the plaintiff had established a substantial likelihood of prevailing on the merits of her claim of deliberate indifference to a known serious medical condition, and that the plaintiff would suffer irreparable harm if the injunction were not granted.

On Dec. 3, 3009, the defendants moved to dismiss the case for mootness on the grounds that the required surgery had been performed on Dec. 1, 2009. On December 21, 2009, the case was dismissed with prejudice by stipulation of the parties.

Class Action Challenges Detention Conditions in Los Angeles Facility
Castellano v. Napolitano, No. 09-2281 (C.D. Cal. filed April 1, 2009)

Detainees at the "B-18" facility in downtown Los Angeles filed a class action suit alleging violations of their constitutional and statutory rights. The complaint alleged that detainees at the facility did not have "rudimentary necessities" such as soap, toothpaste, changes of clothing or showers. In addition, the complaint alleged that the facility was regularly overcrowded, causing violence and safety hazards. Many of the problems, according to the complaint, arose from the fact that the facility was not intended for long-term use, yet detainees were incarcerated there for weeks during which time they were shuttled between B-18 and local jails.

The complaint alleged that the conditions of detainees' confinement and the lack of access to courts and counsel violated plaintiffs' statutory and Fifth Amendment Due Process rights. The complaint also alleged that plaintiffs were unable to send and receive mail and to lodge complaints against defendants in violation of their statutory and First Amendment rights. In addition, the complaint stated that defendants' actions violated the injunction in Orantes-Hernandez v. Meese, 685 F. Supp. 1488 (C.D. Cal. 1988), aff'd sub nom, Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990) for those proposed class members who are also members of the Orantes-Hernandez class (see discussion of Orantes-Hernandez below). Finally, the complaint stated that, in violation of the regulations and the Fourth and Fifth Amendments, defendants failed to provide plaintiffs with notice and an opportunity to seek review of the initial custody determination by an immigration judge. Plaintiffs sought declaratory and injunctive relief, and attorney fees.

On April 13, 2009, plaintiffs, at the request of defendants, withdrew without prejudice their motion for class certification. On September 14, 2009, the court dismissed the claim without prejudice, pursuant to a settlement agreement. The court retains jurisdiction to order specific performance of the settlement agreement, which remains in effect until June 10, 2010.

Damages Suit Alleges Sexual and Physical Abuse of Minors in Detention
Walding v. USA, No. 08-00124 (W.D. Tex. filed Feb. 15, 2008)

Nine plaintiffs brought suit against the U.S. government, DHS officials, Away from Home, Inc., (a detention facility), and detention facility employees. Plaintiffs allege sexual, physical and emotional abuse during a period of detention at the Away from Home, Inc. facility in Nixon, Texas. At the time that the events occurred, the plaintiffs were all under the age of eighteen. Plaintiffs allege several Bivens claims based on defendants' sexual abuse, excessive force, retaliation, unjust punishment and other violations. Plaintiffs also allege violations of the Flores settlement agreement, a 1997 settlement in the District Court for the Central District of California regarding treatment of unaccompanied minors. Plaintiffs seek injunctive relief and damages.

On July 14, 2008, defendants filed a motion to dismiss and, in the alternative, partial summary judgment. Based on the recommendation of the magistrate judge, the court granted the motion to dismiss the complaint against the state defendants on March 16, 2009. The court reasoned that they were not liable because they had no duty to protect the plaintiffs from injury inflicted by federal immigration actors and had not created the danger to plaintiffs.

On March 30, 2009, the court granted in part and denied in part the individual federal defendants' motion to dismiss and dismissed as moot defendants' alternative motion for partial summary judgment. The court granted plaintiffs leave to amend their complaint to include certain claims. On March 31, 2009, the court granted in part, denied in part, and dismissed in part defendant United States' motion to dismiss and motion for partial summary judgment.

Subsequently, plaintiffs filed their third amended complaint on April 20, 2009, and defendants moved to dismiss a Bivens claim and a claim of intentional infliction of emotional distress on May 20, 2009. On May 28, 2009, individual defendants notified the court of an appeal to the Fifth Circuit from the March 30, 2009, order denying qualified immunity. On July 23, 2009, the interlocutory appeal was denied on stipulation by the parties. Defendant United States and plaintiffs are currently engaged in discovery. On August 24, 2009, the judge granted defendants’ motion for a protective order barring release of information contained in documents obtained during discovery.

Court Orders DHS to Respond to Detention Standards Petition
Families for Freedom v. Chertoff, No. 08-4056, 2009 U.S. Dist. LEXIS 56092 (S.D.N.Y. June 25, 2009).

On June 25, 2009, the District Court of the Southern District of New York denied the government's motion to dismiss a suit demanding that DHS respond to a petition for rulemaking. Two non-profit organizations and two former detainees brought the suit after DHS failed to respond to their request for comprehensive, binding regulations governing detention standards for detained immigrants. Plaintiffs alleged that DHS' failure to respond to the petition violated § 706(1) of the Administrative Procedure Act (APA) requiring a reasoned and timely response to the petition and that the constructive denial of the petition was arbitrary, capricious, and an abuse of discretion under § 706(2) of the APA.

In the order denying the motion to dismiss, the court held that plaintiffs properly stated a claim that DHS violated the APA by failing to grant or deny plaintiffs' rulemaking request. Further, the court found that DHS' almost two-and-one-half year delay in responding to the petition is unreasonable as a matter of law. Because it held that DHS had not yet responded to plaintiffs' petition within the meaning of the APA, the court dismissed plaintiffs' constructive denial claim as moot. The court ordered the agency to decide plaintiffs' petition within 30 days and closed the case.

Following the court's order, DHS, by letter, denied the petition for rulemaking.

Detainees, Correctional Facility Agree to Improve Conditions
Kiniti v. Myers, No. 05-01013 (S.D. Cal. Jan. 28, 2009)

Detainees at the San Diego Correction Facility (SDCF) filed suit alleging that SDCF is overcrowded. The amended complaint states that the facility is operating 50 percent beyond its intended capacity and detainees sleep on plastic slabs by the toilets and bunk beds in the recreation area. Plaintiffs allege that the conditions violate their Fifth Amendment Due Process rights.

On June 21, 2007, Judge Sabraw granted in part and denied in part defendants' motion to dismiss plaintiffs' amended complaint. The court found that the claims relating to two of the plaintiffs were moot because they were deported after the amended complaint was filed. The court found that the claims of a third plaintiff who was transferred from the facility were not moot because his claim was "capable of repetition" if he were transferred back to the facility. The court also declined to dismiss the claims of the two plaintiffs who remained at the facility because defendants did not make it "absolutely clear that the allegedly wrongful conduct could not reasonably be expected to recur." On August 17, 2007, the court granted plaintiffs' motion for class certification.

The parties reached a settlement and submitted their agreement to the court on June 4, 2008. According to the settlement agreement, SDCF must keep the number of immigration detainees within the facility's capacity.

The court administratively closed the case for six months. On January 28, 2009, both parties filed a joint motion to dismiss the case with prejudice pursuant to a stipulation in the settlement agreement, and the court approved the stipulation.

Settlement Announced in Lawsuit Challenging Detention of Children at Hutto Facility
In re Hutto Family Detention Center, No. 07-164 (W.D. Tex. 2007)

Ten immigrant children filed a lawsuit challenging their detention at the T. Don Hutto detention facility in Taylor, Texas. The lawsuits charged that ICE’s operation of the Hutto facility violated the settlement terms of Flores v. Meese, No. 85-4544 (C.D. Cal. 1997). Under Flores, DHS generally is required to release minors in federal immigration custody to family members or, if necessary, shelters and unrelated custodians. The settlement in Flores mandates that DHS place minors in the least restrictive setting possible, such as a facility or home licensed for the care of dependent, non-delinquent minors. Finally, the settlement guarantees basic educational, health, and social benefits and rights to minors in custody.

Plaintiffs alleged that ICE violated the settlement agreement and a Congressional mandate to house minors in a non-penal, homelike environment by requiring the children to wear prison garb and remain in small cells for 11-12 hours a day. In addition, ICE did not provide adequate recreation time, meaningful educational opportunities and access to adequate medical, dental and mental health treatment. The lawsuits sought release of the detained children and their families under supervision and sought to enjoin the government from separating the children from their parents. The ACLU, The University of Texas School of Law and Leboeuf, Lamb, Greene & Macrae, LLP represented the plaintiffs. On August 29, 2007, plaintiffs and DHS reached a settlement. The settlement was designed to improve detention conditions for the plaintiffs and their families.

On August 5, 2009, ICE announced its intention to stop detaining families at the Hutto Family Detention Center. On August 7, 2009, the parties filed a modified settlement agreement, which provided that the terms of the preceding settlement agreement - set to expire on August 29, 2009 - would remain in effect until either all families are moved out of the facility or until December 31, 2009.

Court Upholds Orantes Injunction Finding Abuses in Detention
Orantes-Hernandez v. Gonzales, Nos. 07-5609, 08-55231, 2009 U.S. App. LEXIS 7260 (9th Cir. Apr. 6, 2009)

A district court judge upheld a nationwide injunction to protect Salvadoran immigrants seeking asylum. The government had requested that the court dissolve the 1988 injunction. The injunction, inter alia, requires the government to implement certain detention standards. In upholding the injunction, the court ruled that evidence showed violations of the “injunction dealing with detainees' access to legal materials, telephone use and attorney visits." The court held that the government has not established that the promulgation of the ICE detention standards and the end of the Salvadoran civil war constitute sufficiently changed circumstances that all provisions of the injunction related to detention conditions should be dissolved. The court also noted that documentation of the government’s failure to comply with relevant standards indicate that the injunction remains necessary to ensure that Salvadorans are able to exercise their right to apply for asylum freely and intelligently.

The government appealed the district court's decision to the Ninth Circuit. On April 6, 2009, the Ninth Circuit affirmed the decision to uphold the injunction.

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