Opinion
Civil Action No. 1:22-cv-150
2023-03-31
Amadou BARRY, Plaintiff, v. UNITED STATES of America, Defendant.
Lauren Lee, Norton Rose Fulbright US LLP, San Francisco, CA, Carina Patritti, Elizabeth Mary Rieser-Murphy, Julie Ann Dona, The Legal Aid Society, Maureen K. Schad, Sean Michael Topping, Norton Rose Fulbright Us LLP, New York, NY, David A. Davis, Jr., Norton Rose Fulbright US LLP, Houston, TX, for Plaintiff. Christopher D. Pineda, United States Attorneys Office, Brownsville, TX, Elizabeth J. Kim, DOJ-USAO, New York, NY, for Defendant.
Lauren Lee, Norton Rose Fulbright US LLP, San Francisco, CA, Carina Patritti, Elizabeth Mary Rieser-Murphy, Julie Ann Dona, The Legal Aid Society, Maureen K. Schad, Sean Michael Topping, Norton Rose Fulbright Us LLP, New York, NY, David A. Davis, Jr., Norton Rose Fulbright US LLP, Houston, TX, for Plaintiff. Christopher D. Pineda, United States Attorneys Office, Brownsville, TX, Elizabeth J. Kim, DOJ-USAO, New York, NY, for Defendant. ORDER & OPINION Fernando Rodriguez, Jr., United States District Judge
In October 2017, Plaintiff Amadou Barry arrived at the port of entry in Hidalgo, Texas, seeking asylum after fleeing his home country of Guinea. Barry told officials from Customs and Border Protection that he was 17 years old, but based on other evidence indicating that Barry was older, the officials placed him in an adult immigration detention facility. Four months later, CBP acknowledged that Barry was a minor and transferred him into the custody of the Office of Refugee Resettlement.
Barry filed this lawsuit against the United States of America based on his four-month detention in the adult facility. Barry alleges three causes of action under the Federal Tort Claims Act: (1) false imprisonment; (2) intentional infliction of emotional distress; and (3) negligence.
The Government contends that no subject matter jurisdiction exists over Barry's reliance on the theory of negligence per se, and also moves for dismissal of all causes of action for failure to state a claim upon which relief can be granted. For the following reasons, the Court agrees that Barry's causes of action are subject to dismissal.
I. Legal Background and Factual Allegations
A. The Identification and Treatment of Unaccompanied Alien Children
In 2002, Congress enacted the Homeland Security Act of 2002 (HSA), which abolished the Immigration and Naturalization Service (INS) and split its functions into the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS). Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135 (codified primarily at 6 U.S.C. §§ 101 et seq.). In relevant part, DHS includes United States Immigration and Customs Enforcement (ICE) and United States Customs and Border Protection (CBP), while HHS includes the Office of Refugee Resettlement (ORR). These agencies work in tandem with regards to unaccompanied alien children.
Under the HSA, ORR bears responsibility for "coordinating and implementing the care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status". 6 U.S.C. § 279(b)(1)(A). The statute defines "unaccompanied alien child" as a child who:
(A) has no lawful immigration status in the United States;
(B) has not attained 18 years of age; and
(C) with respect to whom
6 U.S.C. §§ 279(g)(2)(A)-(C).i. there is no parent or legal guardian in the United States; or
ii. no parent or legal guardian in the United States is available to provide care and physical custody.
In 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), which reinforced HSA's mandate that "the care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be the responsibility of the Secretary of Health and Human Services." 8 U.S.C. § 1232(b)(1). The TVPRA further requires that "[e]ach department or agency of the Federal Government shall notify the [HHS] within 48 hours upon . . . any claim or suspicion that an alien in the custody of such department or agency is under 18 years of age." Id. at § 1232(b)(2)(B). Absent exceptional circumstances, "any department or agency of the Federal Government that has an unaccompanied alien child in custody shall transfer the custody of such child to the Secretary of [HHS] not later than 72 hours after determining that such a child is an unaccompanied alien child." Id. at § 1232(b)(3).
With respect to determining whether an individual in custody is a minor, the TVPRA requires that DHS and HHS "develop procedures to make a prompt determination of the age of an alien, which shall be used by the Secretary of [DHS] and the Secretary of [HHS] for children in their respective custody." Id. at § 1232(b)(4). These procedures "shall take into account multiple forms of evidence, including the non-exclusive use of radiographs, to determine the age of the unaccompanied alien." Id.
DHS's policies recognize that "[d]etermining the age of an individual can prove challenging" in light of "lack of documentation; contradictory or fraudulent identity documentation or statements; physical appearance of the alien; and/or diminished capacity of the alien." (U.S. Immigration and Customs Enforcement, Juvenile and Family Residential Management Unit: Field Officer Juvenile Coordinator Handbook 21-22 (Sept. 1, 2017), https://www.aila.org/File/DownloadEmbeddedFile/75783 [hereinafter ICE, Handbook])) As such, "each case must be evaluated carefully based on the totality of all evidence, including the statement of the individual in question." (Complaint, Doc. 1, ¶ 18 (citing ICE, Handbook, at 21)) ICE's policies dictate that when uncertainty exists as to whether an individual is a minor, "the subject[ ] must also immediately be separated from unrelated adults and other minors." (Id. (citing ICE, Handbook, at 21))
In addition to these statutory and internal policy provisions, the Flores Agreement "sets out nationwide policy for the detention, release, and treatment of minors in the custody of INS." Flores Agreement, ¶ 9. The court-approved agreement provides that the United States shall "treat minors with dignity, respect and special concern for their particular vulnerability." Id. at ¶ 11. Among its many protections, the Flores Agreement provides that (1) minors shall be placed "in the least restrictive setting"; (2) minors "will not be detained with an unrelated adult for more than 24 hours;" (3) minors shall be released from custody "without unnecessary delay" to a parent, legal guardian, or adult relative; and (4) minors not released shall be transferred to a licensed program within five days. Id. at ¶¶ 11-12, 14, 19.
Stipulated Settlement Agreement, Flores v. Reno, No. 85-4544 (C.D. Cal. Jan 17, 1997), available at https://www.aila.org/File/Related/14111359b.pdf (last accessed March 15, 2023) [hereinafter Flores Agreement]. The agreement binds both DHS and HHS, as successors to the INS. See Flores v. Barr, 934 F.3d 910, 912 n.2 (9th Cir. 2019).
For purposes of the Motion, the Court accepts Barry's allegations as true. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). The Court also relies on information contained in Barry's sworn statement to CBP officials when he entered the United States and during his credible fear interview, as well as CBP's Form I-213 for Barry. (Sworn Statement, Doc. 48-2; Credible Fear Interview, Doc. 48-3; Form I-213, Doc. 48-1) Although Barry does not attach those documents to his Complaint, he quotes from them, and the United States has filed them. (See Def.'s Supp., Doc. 48) For purposes of a Rule 12(b)(6) motion to dismiss, the Court can consider allegations within the Complaint and documents attached to or referenced within the Complaint. See, e.g., Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011); PHI Grp., Inc., v. Zurich Am. Ins. Co., 58 F.4th 838 (5th Cir. 2023). Doing so assists "the court in making the elementary determination of whether a claim has been stated." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000).
Plaintiff Amadou Barry is a Guinean national born on July 8, 2000. (Complaint, Doc. 1, ¶ 22) In August 2016, at age sixteen, Barry participated in a protest against his country's government. (Sworn Statement, Doc. 48-2, 4; Credible Fear Interview, Doc. 48-3, 9) In response, the police arrested, beat him, and threatened his life and his family. Even after releasing Barry, the Guinean police continued to look for him, so he went into hiding. (Sworn Statement, Doc. 48-2, 4-6; Credible Fear Interview, 48-3, 9-11, 14)
In November 2016, Barry fled Guinea. He flew to Brazil and stayed at a refugee camp for a few months, where he met a group of individuals heading to the United States. (Complaint, Doc. 1, ¶ 23; Sworn Statement, Doc. 48-2, 4-5) He joined the group, which traveled through South and Central America to reach the United States. (Sworn Statement, Doc. 48-2, 4) As he crossed country borders, he told South and Central American officials that he was born in 1992 instead of 2000, "because he feared deportation or separation if he told them his correct age." (Complaint, Doc. 1, ¶ 34) For example, on July 22, 2017, Barry told Panamanian officials that he had been born in 1992, which would have made him around 25 years old. (Id. at ¶ 25) In reality, he had just turned 17.
In August, Barry entered Mexico. (Id. at ¶ 26) While there, he received by email a scanned copy of his Guinean birth certificate with an official seal and signature. The birth certificate reflected his correct birth date of July 8, 2000. (Id. at ¶¶ 26-27)
On October 17, Barry arrived at the port of entry in Hidalgo, Texas. He presented a CBP officer with a printout of his birth certificate and, in his initial interview, provided a sworn statement that he was 17 years old. (Id. at ¶¶ 30-33)
The CBP officer conducted a database search using Barry's fingerprints, discovering that records from Central and South American countries through which Barry traveled reported his birth date as 1992. When the CBP officer confronted Barry about the discrepancy, Barry explained why he had misrepresented his age to Panamanian officials. (Id. at ¶ 34)
The CBP officer completed a Record of a Deportable/Inadmissible Alien (Form I-213), recording that Barry "has all the physical characteristics of a mature adult. Male appears to have a fully matured facial structure." (Id. at ¶ 35; Form I-213, Doc. 48-1, 3) The agent also opined that Barry's birth certificate "appeared to be home made and fraudulent." (Complaint, Doc. 1, ¶ 36) Based on these conclusions, the CBP Officer recommended removal.
Immigration officers routinely complete the Form I-213, which "contains a summary of information obtained at the initial processing of an individual suspected of being an alien unlawfully present in the United States. The record includes, inter alia, the individual's name, address, immigration status, the circumstances of the individual's apprehension, and any substantive comments the individual may have made." Gonzalez-Reyes v. Holder, 313 F. App'x 690, 692 (5th Cir. 2009) (citing Bauge v. INS, 7 F.3d 1540, 1543 n.2 (10th Cir. 1993)).
CBP did not notify ORR of Barry's claim to be a minor. Instead, the agency placed Barry in expedited removal proceedings, referred him for a credible fear interview, and on October 18, transferred him to the Port Isabel Detention Center (PIDC), an ICE adult immigration detention facility. (Id. at ¶¶ 37-38) When Barry arrived at the PIDC, he informed ICE officers that he was a minor, but ICE did not inform ORR about Barry's claim. (Id. at ¶ 39)
On November 1, an asylum officer conducted Barry's credible fear interview. (Id. at ¶ 44) Barry informed the asylum officer that he was a minor and expressed a fear of returning to Guinea. (Credible Fear Interview, Doc. 48-3, 6-7) The asylum officer concluded that Barry's testimony was credible, his "identity was determined with a reasonable degree of certainty", and a "[c]redible fear of torture [was] established". (Id. at 4-5)
DHS then referred Barry's removal proceedings to an Immigration Judge. Between November 2017 and February 2018, Barry appeared four times before an IJ. On each occasion, Barry told the IJ that he was 17 years old. At the January 22 hearing, Barry also provided letters from his father and his cousin, both of which supported Barry's claimed date of birth and status as a minor. In that hearing, the IJ concluded that substantial prima facie evidence supported Barry's claim to be a minor. He ordered ICE to submit additional evidence of Barry's age, such as a forensic dental examination. (Complaint, Doc. 1, ¶¶ 45-46)
On February 1, ICE conducted a dental examination for Barry, and the results indicated a statistical age range of 16.03 to 22.37 years old. The IJ found that this examination corroborated other evidence that Barry was 17, and was incompatible with ICE's position that Barry was 25. (Id. at ¶¶ 47-48)
On February 20, the Embassy of Guinea verified the authenticity of Barry's birth certificate. (Id. at ¶ 50)
A week later, on February 27, ICE transferred Barry to ORR's custody. He remained there for about three months, and then on May 23, was released into the custody of his cousin, who lives in New York. (Id. at ¶¶ 52-54)
C. Procedural Background
In September 2021, Barry filed this action in the United States District Court for the Southern District of New York. About four months later, the Government filed its pending motion to dismiss, and also requested transfer of venue. In September 2022, the court in New York granted the motion to transfer without reaching the motion to dismiss. (S.D.N.Y. Op. & Order, Doc. 40) After initially being transferred to the Houston Division of the Southern District of Texas, the matter was subsequently transferred intradistrict to this Court. (Order, Doc. 46). II. Analysis
Barry bases his causes of action under the Federal Tort Claims Act. "Liability under the FTCA is determined 'in accordance with the law of the place where the act or omission occurred.' " Villafranca v. United States, 587 F.3d 257, 260 (5th Cir. 2009) (quoting 28 U.S.C. § 1346(b)). Given that Barry's claims rest upon factual allegations occurring in Texas, the Court analyzes his causes of action under that state's laws. He alleges claims for false imprisonment, negligence, and intentional infliction of emotional distress. The United States moves for dismissal under Federal Rules of Civil Procedure 12(b)(1) and (6).
A. Standard of Review
The United States moves for dismissal of "Plaintiff's negligence per se claim" under Rule 12(b)(1) for lack of subject matter jurisdiction. Under that rule, "a claim is 'properly dismissed . . . when the court lacks the statutory or constitutional power to adjudicate' the claim." In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012) (quoting Home Builders Ass'n v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)). "A district court may dismiss a case under Rule 12(b)(1) based on "(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." In re S. Recycling, L.L.C., 982 F.3d 374, 379 (5th Cir. 2020). "The burden of proving subject matter jurisdiction lies with the party asserting jurisdiction, and it must be proved by a preponderance of the evidence." Id. "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). "This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice." Id.
The United States also moves under Rule 12(b)(6) to dismiss all of Barry's causes of action. To survive such a challenge, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); FED. R. CIV. P. 12(b)(6). "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 for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A plaintiff's complaint need not contain detailed factual allegations, but it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. These allegations, assuming they are true, "must be enough to raise a right to relief above the speculative level." Id.
B. Negligence
Barry advances various theories under his cause of action for negligence. He alleges that the Government owed a "duty of ordinary care" to avoid causing foreseeable harm to a minor child in its care. (Complaint, Doc. 1, ¶ 75) He claims that a special relationship existed between him and the Government, based on the TVPRA, the Flores Agreement, and the Government's internal policies. (Id. at ¶ 76) And in addition to alleging that the Government breached its duty of care by ignoring the evidence that Barry was a minor, he alleges that the Government is negligent per se, based on its failure to comply with the TVPRA and the Flores Agreement. (Id. at ¶¶ 77-78)
The Government contends that under Rule 12(b)(6), the Court should dismiss the negligence cause of action for failure to state a claim upon which relief can be granted. As a threshold matter, however, with respect to Barry's reliance on the theory of negligence per se, the United States moves for dismissal for want of jurisdiction, arguing that no private analog within Texas law exists to support such a claim. (Mem., Doc. 24, 20) The Court first addresses this jurisdictional argument.
1. Subject Matter Jurisdiction
The federal government cannot be sued in its capacity as a sovereign unless it consents to be sued. See United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Congress must waive sovereign immunity by explicitly extending to federal courts subject matter jurisdiction over a specified cause of action. Id. Congress has done so through the FTCA, which "waives the Government's sovereign immunity and permits suits against it for certain tort claims 'in the same manner and to the same extent as a private individual under like circumstances.' " Campos v. United States, 888 F.3d 724, 730 (5th Cir. 2018) (citing 28 U.S.C. § 2674); see also 28 U.S.C. § 1346.
Under the FTCA, plaintiffs may seek damages "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of an employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b). However, "the liability of the United States under the [FTCA] arises only when the law of the state would impose it." Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir. 1995) (quoting Brown v. United States, 653 F.2d 196, 201 (5th Cir. 1981)). In other words, the complained of conduct must be "actionable under the local law of the state where it occurred." Id. "[T]he violation of a federal statute or regulation does not give rise to FTCA liability unless the relationship between the offending federal employee or agency and the injured party is such that the former, if a private person or entity, would owe a duty under state law to the latter in a nonfederal context." Id. at 728. In other words, the state law duty must arise apart from a federal statute or regulation. Id. at 728-29. "If the requisite relationship and [state law] duty exist, then the [federal] statutory or regulatory violation may constitute or be evidence of negligence in the performance of that state law duty." Id. The required state law need not be "one directly applicable to the conduct of federal employees or to the precise activity from which the claim arose." Id. at 728.
In the current matter, Barry alleges that the Government's violation of the Flores Agreement and the TVPRA "constitutes negligence per se and is evidence of Defendant's breach of its duty to Amadou." (Complaint, Doc. 1, ¶ 78) Barry includes this allegation within his cause of action for negligence, and not as a separate claim. These allegations are consistent with the law in Texas, where "[n]egligence per se is not a separate cause of action that exists independently of a common-law negligence cause of action." Thomas v. Uzoka, 290 S.W.3d 437, 445 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). "Rather, negligence per se is merely one method of proving a breach of duty, a requisite element of any negligence cause of action." Id.
The Government correctly notes that the violation of federal law cannot form the sole basis for the duty element in a negligence claim. But the Court does not construe Barry's Complaint as seeking to do so. Rather, Barry alleges that the violation of these federal obligations represents "evidence of Defendant's breach". (Complaint, Doc. 1, ¶ 78) The law permits such an argument. And various courts have recognized that the FTCA supports a cause of action in ordinary negligence under Texas law. See, e.g., Villafranca v. United States, 587 F.3d 257 (5th Cir. 2009) (affirming dismissal of the plaintiff's negligence claim under the FTCA for failure to establish proximate causation under Texas law); Lone Star Bakery, Inc. v. United States, 354 F. App'x 119 (5th Cir. 2009) (same); Alvis v. United States, No. 3:14-CV-0345-BK, 2016 WL 1732659, at *1 (N.D. Tex. May 2, 2016) (applying Texas law to the plaintiff's negligence claim under the FTCA). As a result, the Court concludes that it possesses subject matter jurisdiction over Barry's negligence claim.
To the extent that Barry seeks to allege a negligence claim based solely on the violation of the Flores Agreement and the TVPRA, such a claim would be subject to dismissal for lack of subject matter jurisdiction.
2. Viability of Negligence Claim
In its Motion, the Government contends that Barry's cause of action in negligence fails because Barry alleges no physical injury, and no special relationship existed between the Government and Barry that could support a recovery for mental anguish damages in the absence of physical harm.
Under Texas law, to establish a negligence claim, a plaintiff must show: "(1) a legal duty; (2) a breach of that duty; and (3) damages proximately resulting from the breach." Elephant Ins. Co. v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022). When a plaintiff suffers physical injuries, the plaintiff may also recover for any accompanying and proximately caused mental anguish. Absent physical injury, however, a plaintiff's ability to recover damages for non-physical harm is limited. "There are few situations in which a claimant who is not physically injured by the defendant's breach of duty may recover mental anguish damages." Temple-Inland Forest Prods. Corp. v. Carter, 993 S.W.2d 88, 91 (Tex. 1999). A plaintiff may recover such damages only when: (1) the defendant acted with intent or malice; (2) a special relationship exists between the two parties; or (3) "the defendant's negligence causes a mental shock which produces a serious bodily injury". City of Tyler v. Likes, 962 S.W.2d 489, 495-96 (Tex. 1997); see also SCI Tex. Funeral Servs., Inc. v. Nelson, 540 S.W.3d 539, 544 (Tex. 2018); Carter, 993 S.W.2d at 92.
a. Physical Injury
Barry contends that he alleges physical injury in his Complaint, noting his allegation that he suffered "severe emotional, physical and mental injuries". (Complaint, Doc. 1, ¶¶ 55-56) This allegation, however, constitutes only a conclusory reference to physical injury, insufficient to support a negligence claim under Texas law. Barry includes no factual allegations regarding the nature or type of any physical harm. In contrast, he alleges various forms of emotional and psychological distress. For example, he alleges generally that he suffered "depression, anxiety, stress, and humiliation while detained at PIDC." (Id. at ¶ 57) More specifically, he "cried frequently", was "unable to sleep due to his fear and anxiety", and experienced nightmares. (Id.) Those allegations support a claim for mental anguish damages, but they do not represent an allegation of physical harm.
Barry claims that he requires discovery to augment his allegations of physical injury. (Response, Doc. 34, 20) The Court disagrees. Barry does not require discovery to uncover what he personally experienced. He stands in the best position to remember the injuries he allegedly suffered while at PIDC.
Based on the allegations within Barry's Complaint, the Court finds that he has not alleged any physical injury.
b. Special Relationship
Barry argues that even if he did not allege physical injury, he can recover in negligence for mental anguish because the TVPRA and the Flores Agreement create a special relationship between DHS and unaccompanied children. (Response, Doc. 34, 20-21)
Barry also contends that he may recover emotional anguish damages because he suffered mental shock that produced serious bodily injury. (Response, Doc. 34, 20) However, his Complaint includes no such allegation, prohibiting him from relying on this argument. See, e.g., Middleton v. Life Ins. Co. of N. Am., No. Civ. A. H-09-cv-3270, 2010 WL 582552, *5 (S.D. Tex. Feb. 12, 2010) (concluding that the plaintiff's claim for breach of fiduciary duty was "not properly before this Court" because it was "not raised in her original complaint, but rather was raised for the first time in response to [defendant]'s motion to dismiss" (citing Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990))).
"Texas does not recognize a general legal duty to avoid negligently inflicting mental anguish." Likes, 962 S.W.2d at 494. An exception exists when a "special relationship" exists between the plaintiff and defendant. See, e.g., Nelson, 540 S.W.3d at 547; Boyles v. Kerr, 855 S.W.2d 593, 600 (Tex. 1993). "[W]hether a 'special relationship' exists is not an issue reducible to an elemental test". Nelson, 540 S.W.3d at 547. When determining whether to impose such a duty as a matter of law, a court considers: "(1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations". Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33-34 (Tex. 2002).
No court applying Texas law has concluded that a special relationship exists between a federal government agency and unaccompanied alien children in its custody. Barry argues that the Court should nevertheless find such a special relationship, proposing as an analogous situation the relationship between the Texas Department of Criminal Justice (TDCJ) and prison inmates. (Response, Doc. 34, 21 (citing Salazar v. Collins, 255 S.W.3d 191, 200 (Tex. App.—Waco 2008, no pet.))) It is true that in Salazar, a Texas appellate court recognized a special relationship between a jailer and an inmate, requiring the jailer to protect the inmate from foreseeable harms, including of mental anguish. The Supreme Court of Texas, however, has not issued a decision on the matter. In addition, in Salazar, the inmate suffered harm at the hands of a fellow inmate—i.e., a third party. To the extent that Texas courts have recognized a special relationship between detention facility officials and adult inmates, they have "limited the finding . . . exclusively to the scenario where a prisoner is harmed by a third party, not the guards themselves". Aguilar v. United States, No. 16-cv-048 (RO), 2017 WL 6034652, at *3 (S.D. Tex. June 7, 2017). Consistent with this principle, federal courts applying Texas law have declined to find a special relationship between a guard and a detainee absent allegations of harms caused by third parties. See id. ("[T]his Court declines to find a 'special relationship' exists between [p]laintiff and CBP guards and/or Defendant."); Villafuerte v. United States, No. 7:16-cv-619, 2017 WL 8793751, at *12 (S.D. Tex. Oct. 11, 2017) ("[T]he Court agrees with the Government that no special relationship exception under Salazar exists in the present case because [plaintiff] does not allege she was harmed by the conduct of a third party.").
One district court relied on a Texas appellate court decision to find that a special relationship exists between a federal government agency and an adult immigration detainee. See Cuevas v. Westerman, No. 1:14-CV-133, 2016 WL 11529760, at *10 (S.D. Tex. Nov. 10, 2016) (citing Salazar v. Collins, 255 S.W.3d 191, 200 (Tex. App.—Waco 2008, no pet.)).
In the current matter, Barry does not allege harm by a third party. For example, he does not allege that a fellow detainee at PIDC caused any of his injuries. In the absence of such allegations, Barry fails to plead a cognizable negligence claim based on the existence of a special relationship.
C. False Imprisonment
Barry alleges that the Government intentionally and willfully detained him for over four months in an adult immigration detention facility, and that doing so constituted false imprisonment. The Government moves for dismissal based on the argument that Barry fails to "adequately allege that his detainment was 'without authority of law.' " (Mem., Doc. 24, 15)
Under Texas law, the elements for a false imprisonment claim include: "(1) willful detention; (2) without consent; and (3) without authority of law." Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002) (quoting Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985)). The plaintiff bears the burden to "prove the absence of authority". Castillo, 693 S.W.2d at 376. Under the FTCA, federal courts apply the law, including federal law, that "the state courts would apply in like circumstances involving a private defendant." Caban v. United States, 728 F.2d 68, 72 (2d Cir. 1984) (cited approvingly by Charles v. United States, 15 F.3d 400, 403 (5th Cir. 1994)); see also Tovar v. United States, No. Civ. A. 3:98-CV-1682-D, 2000 WL 425170 (N.D. Tex. Apr. 18, 2000), aff'd, 244 F.3d 135 (5th Cir. 2000) (applying federal statutes and regulations to determine "whether a federal INS agent acted with authority of law"). Accordingly, the Court looks to applicable federal statutes and regulations to determine whether DHS agents acted without authority of law when detaining Barry at PIDC.
In the present matter, Barry concedes that the United States had authority to detain him upon his arrival in the United States. (Response, Doc. 34, 16) He argues, however, that DHS acted without authority of law by holding him in custody at PIDC, instead of "promptly transferring him to ORR based on clear evidence he was an unaccompanied child." (Id. at 18). Barry relies on the HSA and the TVPRA, both of which grant ORR and the Secretary of HHS responsibility for the care and custody of unaccompanied alien children in federal custody. (Id. at 17-18 (citing 6 U.S.C. § 279 (HSA) and 8 U.S.C. § 1232(b)(1) (TVPRA))). In addition, Barry notes that ICE's own policies dictate that when uncertainty exists as to whether an individual is a minor, "the subject[ ] must also immediately be separated from unrelated adults and other minors." (Complaint, Doc. 1, ¶ 18 (citing ICE, Handbook at 21-22)) In essence, Barry argues that federal statutes required that ORR, rather than DHS, detain him, and that DHS's inaction by refusing to transfer him to ORR rendered its conduct without authority.
Barry's distinction between DHS and ORR does not help him. Ultimately, he does not allege that the United States lacked the authority to detain him. Rather, he alleges that one governmental agency instead of another should have held him in custody. While the varying roles of distinct governmental agencies may prove relevant in certain contexts, they do not alter the uncontested fact that in this case, Defendant—i.e., the United States of America—had the legal authority to detain Barry after he presented himself at a United States border without legal authority to enter the country. At least one other federal district court has reached the same conclusion. See Villafuerte, 2017 WL 8793751, at *14-15 (dismissing a false imprisonment claim based on CBP officers failing to timely transfer the minor plaintiff into ORR custody). Although Barry remained in an adult detention facility for much longer than the plaintiff in Villafuerte, the relatively short length of the improper detention in that case did not determine the issue. In both cases, the United States possessed the legal authority to detain the unaccompanied minor. And that undisputed fact defeats the cause of action for false imprisonment.
D. Intentional Infliction of Emotional Distress
Barry alleges that as a direct and proximate result of DHS's "willful ignorance of the objective evidence demonstrating [his] minority status", he suffered severe emotional distress. (Complaint, Doc. 1, ¶ 70) The Government moves for dismissal on two grounds: (1) the claim is improperly duplicative of the false imprisonment and negligence claims; and (2) Barry fails to allege extreme or outrageous conduct.
In Texas, a plaintiff alleging a cause of action for IIED must show that: "1) the defendant acted intentionally or recklessly, 2) the conduct was 'extreme and outrageous,' 3) the actions of the defendant caused the plaintiff emotional distress, and 4) the resulting emotional distress was severe." Standard Fruit and Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998).
1. Duplicative Claim
The United States argues that Barry's IIED claim merely duplicates his causes of action for negligence and false imprisonment. (Mem., Doc. 24, 23) According to the Government, Barry alleges no "additional facts" independent of his other claims that would support the IIED cause of action.
An IIED claim represents a "gap-filler" tort, created " 'to supplement existing forms of recovery by providing a cause of action for egregious conduct' that might otherwise go unremedied." Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004) (quoting Johnson, 985 S.W.2d at 68). At the same time, IIED "should not be extended to circumvent the limitations placed on the recovery of mental anguish damages under more established tort doctrines." Id. "Where the gravamen of a plaintiff's complaint is really another tort, intentional infliction of emotional distress should not be available." Id. As a result, a plaintiff pursuing an IIED claim must allege additional facts, unrelated to other permissible tort claims, that support an independent cause of action for IIED. See, e.g., Hoffmann-La Roche, 144 S.W.3d at 441 ("We conclude that when the gravamen of the plaintiff's complaint is for sexual harassment, the plaintiff must proceed solely under a statutory claim unless there are additional facts, unrelated to sexual harassment, to support an independent tort claim for intentional infliction of emotional distress." (emphasis added)).
In support of his IIED claim, Barry cites to the Government's repeated failure to acknowledge Barry's claim to be a minor. According to the Complaint, from the moment of his detention at the border, Barry told CBP officials that he was 17 years old, presenting a copy of his birth certificate and explaining why he felt compelled to tell Panamanian officials that he was older. His dental examination supported his claimed age, as the IJ concluded. And even after the Guinean government authenticated his birth certificate, DHS refused to transfer Barry into ORR's custody for a week.
Barry's allegations, however, do not support an independent IIED claim because he rests all three causes of action on these same allegations. The gravamen of Barry's claims is that DHS negligently, recklessly, or intentionally ignored the various pieces of evidence demonstrating that he was a minor and, based on that conduct, failed to transfer him to ORR, as governing federal laws required. At most, the only distinction between Barry's negligence claim and his cause of action for IIED is that in the latter, the United States allegedly acted intentionally or recklessly, rather than merely negligently. This distinction is insufficient to support an independent IIED claim. As previously explained, Barry cannot recover for mental anguish damages under his negligence claim because he does not allege any physical injury and no special relationship existed between him and DHS. Allowing his IIED claim to proceed would "circumvent the limitations placed on the recovery of mental anguish damages under more established tort doctrines", such as for negligence.
Barry attempts to distinguish his causes of action by arguing that with respect to his claims for false imprisonment and negligence, he focuses on the "nature and manner of the Government's violations of relevant laws and regulations", while the gravamen of his IIED claim "is the specific harm inflicted by the Government's actions: the mental, emotional, and potentially physical injuries Amadou suffered because of the Government." (Response, Doc. 34, 29) Texas law, however, requires more. Barry had to allege additional facts, unrelated to other permissible tort claims, to support an independent cause of action for IIED. His attempted distinction does not satisfy this legal requirement, as he cannot avoid that he bases all of his claims on the same underlying facts. In addition, the Complaint does not support his proposed distinction, as he seeks recovery for mental anguish damages in connection with all three of his claims. (Complaint, Doc. 1, ¶¶ 72-73 (alleging that he "suffered severe emotional distress, including anxiety, fear, depression and nightmares" resulting from the Government's intentional infliction of emotional distress); Id. at ¶ 79 (alleging that the United States's negligence proximately caused his "emotional distress, depression, anxiety, fear and other injuries")). And while he does not specify the "damages" that he alleges in connection with his false imprisonment claim, his Complaint includes no allegations of injuries apart from emotional anguish in various forms. (Id. at ¶ 67) The fact that his IIED claim focuses solely on the recovery of emotional distress damages, and his other causes of action permit recovery for other forms of injury, does not render the claims sufficiently distinct. In cases in which courts have concluded that an independent basis existed for an IIED claim, the plaintiffs included substantively distinct factual allegations to support the cause of action for IIED. See, e.g., Vermillion v. Vermillion, No. 07-20-00111-CV, 2022 WL 4799019, at *8 (Tex. App.—Amarillo Sept. 30, 2022, no pet.) (involving a divorce action: "While David did stalk the family, invade their privacy, and occasionally commit assault, giving rise to other tort causes of action, the gravamen of Katerina's complaint [for IIED] is that his harassing behavior was intended to distress her into submitting to his control, to stop legal action, and to cause her emotional suffering"); Shearer v. Shearer, No. 12-14-00302-CV, 2016 WL 3050094, at *9 (Tex. App.—Tyler May 27, 2016, no pet.) ("For his IIED claim, David pleaded the same facts as his intrusion upon seclusion claim. But he also pleaded another set of facts to support his IIED claim-Corrine's dispersion of his father's ashes in a manner inconsistent with his wishes caused David severe emotional distress."). The Court has not located, and Barry fails to identify, a case in which a court permitted an IIED claim on factual allegations analogous to those on which Barry relies.
2. Extreme and Outrageous Conduct
Even if Barry's allegations provided a sufficiently independent basis to support an IIED claim, he also must allege sufficient extreme and outrageous conduct. The Government argues that Barry's allegations "fall well below the standards" for such conduct under Texas law. (Mem., Doc. 24, 26)
The conduct to support an IIED claim must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Grost v. United States, 648 F. App'x 459, 461 (5th Cir. 2016) (quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)). The Supreme Court of Texas has set a high bar: "Meritorious claims for intentional infliction of emotional distress are relatively rare precisely because most human conduct, even that which causes injury to others, cannot be fairly characterized as extreme and outrageous." Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006). "It is for the court to determine, in the first instance, whether a defendant's conduct was extreme and outrageous. But when reasonable minds may differ, it is for the jury, subject to the court's control, to determine whether, in the particular case, the conduct was sufficiently extreme and outrageous to result in liability." Hoffmann-La Roche, 144 S.W.3d at 445.
Barry alleges that DHS willfully ignored objective evidence that he was a minor, and as a result, held him at PIDC for four months, intending to cause, or with a reckless disregard of the probability of causing, Barry to suffer severe emotional distress. The United States highlights that DHS's conduct cannot represent extreme and outrageous conduct because officials were presented with competing evidence regarding Barry's age. (Mem., Doc. 24, 24-25)
The Court agrees that under Texas law, Barry's allegations do not depict extreme and outrageous conduct that supports an IIED claim. In his Complaint, Barry acknowledges that the CBP officer who initially interviewed him concluded that Barry did "not appear to be a minor . . . due to him physically appearing to be an adult." (Complaint, Doc. 1, ¶ 35) Barry does not allege that in reaching this conclusion, the officer intentionally reached the incorrect assessment, or even that the conclusion was unreasonable. In addition, Barry alleges that the CBP officer who interviewed him at the port of entry knew that Barry "had told Panamanian border officers that he was an adult". (Id. at ¶ 34) While Barry explained why he had falsely claimed to be an adult when at the Panamanian border, the law did not require that CBP officers automatically accept his explanation. The allegations reveal that DHS received competing evidence regarding Barry's age when he entered the country. As a result, the allegations cannot support the claim that DHS's decision that Barry was an adult, albeit wrong, was so unreasonable or unfounded as to render that decision and the resulting detention of Barry at PIDC extreme and outrageous.
III. Conclusion
For these reasons, it is:
ORDERED that Defendant's Motion to Dismiss the Complaint (Doc 23) is GRANTED;
ORDERED that Plaintiff Amadou Barry's causes of action against Defendant United States of America are DISMISSED WITH PREJUDICE.