Summary
In Tovar v. United States, 2000 WL 425170 (N.D. Tex. Apr. 18, 2000) (Fitzwater, J.), this court held that although an immigration detainer had been issued concerning the plaintiff, because the plaintiff did not post the bail that a county magistrate set on the charges pending against her, "[a] reasonable trier of fact could only find that [she] remained in the county jail because she did not post the bail[.]... The detainer itself did not deprive [the plaintiff] of her freedom during the time she was held under the terms of the county bail order."
Summary of this case from Mercado v. Dall. Cnty.Opinion
Civil Action No. 3:98-CV-1682-D.
April 18, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Angelica Tovar ("Tovar"), a citizen of Mexico and legal permanent resident ("LPR") of the United States, was arrested by city police for the offenses of unauthorized use of a motor vehicle, unlawfully carrying a weapon, and theft by check and taken to the county jail. When a special agent of the United States Immigration and Naturalization Service ("INS") assigned to the jail could not verify Tovar's LPR status, he filed with county officials a Form I-247 immigration detainer. Several weeks later, following Tovar's entry of guilty pleas to two of the charges and her release to the detainer, the INS held her for several hours in connection with issuing a Notice to Appear ("NTA"), and then released her. Several months later, when Tovar visited the INS office to replace her lost LPR card, she was arrested and detained for possible deportation based on her prior convictions for theft and unlawfully carrying a weapon, and released when her lawyer produced proof that she had been granted new trials on the charges. Tovar sues defendant United States of America (the "government") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 (b), § 2671 et seq., for false imprisonment, complaining of the INS's conduct on all three occasions. The court grants summary judgment in favor of the government for the reasons that follow.
I
Tovar entered the United States as a visitor but overstayed her visa and remained in this country illegally. She later adjusted to LPR status under the terms of the 1986 amnesty law.
The court primarily recounts the evidence that Tovar has introduced, in view of her position as the nonmovant with respect to the government's motion for summary judgment. The court also sets out some of the uncontroverted evidence that the government has adduced, and recounts both sides' versions of certain events.
In March 1997 Tovar purchased a used automobile from defendant Roberto Villanueva d/b/a P C Motors ("Villanueva") As she was driving the car home from work in the early morning hours of April 24, 1997, officers of the Dallas Police Department arrested her for unauthorized use of a motor vehicle. The officers had run a license plate check and learned that the automobile had been reported stolen. During a search of Tovar's vehicle incident to the arrest, the officers found a handgun under the passenger seat. They arrested her and took her to the county jail, where she was charged with unauthorized use of a motor vehicle and unlawfully carrying a weapon. Once at the jail, she was also charged with the misdemeanor offense of theft by check, based on an outstanding arrest warrant that stemmed from three insufficient checks that she had written to a supermarket in August 1993. A county magistrate set bond on each charge: $1,500 for unauthorized use of a motor vehicle, $500 for unlawfully carrying a weapon, and $500 for theft by check.
The court will abbreviate its recitation of the facts concerning defendant Villanueva because it is dismissing Tovar's action against him without reaching the merits.
The charge of unauthorized use of a motor vehicle was later dropped, but Tovar was unaware of this fact for some period of time.
Later on April 24, 1997 Tovar was taken before William West ("Agent West"), an INS special agent assigned to the county jail facility. Agent West received referrals from jail personnel based on each prisoner's indicated place of birth. The referral included biographical information about the prisoner. He routinely checked that information against data contained in the INS computerized central index system ("CIS"), the Dallas County Jail computer, and the National Crime Information Center. If he did not locate a criminal record in the CIS, he would interview the referred individual to make a preliminary determination of the person's alienage and removability due to illegal entry, criminal conduct, or visa violations.
Tovar stated on a standard immigration form, and to Agent West, that she was an LPR. She advised him that she had received her green card as a result of the amnesty law. At the time she was arrested, Tovar's card was in her purse in the trunk of her car. The police officers who arrested her removed the purse from the vehicle and transported it to the jail. Because her personal property was stored separately, she did not have her card in her possession at the time she met with Agent West. He insisted that she was an entrant without inspection ("EWI") who had entered the United States illegally. He reached this conclusion because he could not verify her claim to LPR status in the CIS, and she did not have proof of her own. Agent West could not verify Tovar's LPR status because her date of birth shown in the CIS was June 16, 1950 and the date of birth for her reflected in the Dallas County Jail records was June 16, 1960. Agent West placed an INS detainer against her and informed her that even if she paid the bond that the county magistrate had set, she would still be unable to regain her freedom because the INS would hold her without bond because she was an illegal alien.
Although Tovar's true date of birth is June 15, 1950, the summary judgment record contains a copy of her Texas driver's license that reflects a date of birth of June 15, 1960.
In her response brief, Tovar asserts that Agent West "proceeded to order that she be detained without bond." P. Mar. 3, 2000 Br. at 2. She cites P. App. at 2 in support of this assertion. This page of the appendix, however, contains Tovar's affidavit. There is no basis in the affidavit to support the assertion that Agent West did anything more than lodge a detainer against Tovar pursuant to federal regulations or inform Tovar that even if she made the county bond, the INS would hold her without bond because she was an illegal alien. See P. App. at 2.
Agent West disputes this assertion and maintains that he would not tell anyone that she would be held without bond. The court will assume for purposes of deciding these motions that Tovar's version is correct. Even so, the government is entitled to summary judgment.
On April 28, 1997 a county criminal court appointed a lawyer to represent Tovar on the charge of theft by check. Despite her request that the lawyer approach the INS to show that she was an LPR, the attorney advised her to plead guilty on the assumption that she would obtain work release, which would permit her to work during the day and return to jail at night. Tovar involuntarily pleaded guilty and received a jail sentence of 40 days. Although she was granted work release, it was conditioned on there being no INS hold, so she could not make use of it. Tovar was also unaware of the common practice of paying the insufficient find checks in exchange for dismissal of the charges.
On May 6, 1997 another county criminal court appointed a different lawyer to represent Tovar on the charge of unlawfully carrying a weapon. Tovar requested that the lawyer address her LPR status with the INS agent at the jail. This would permit her to obtain release on bond and retain private counsel. Her appointed counsel insisted that she plead guilty and then fight the INS. Tovar entered a guilty plea and received a fine and 60 days confinement in the county jail.
During the early morning hours of May 16, 1997 Tovar completed her county sentence and was released to the INS, which transported her to its Dallas office. Through the efforts of another county inmate, Tovar retained private counsel, Ernesto Maldonado, Esq. ("Maldonado"), to represent her. Tovar telephoned Maldonado at 8:00 a.m. Although he visited her in the Detention and Deportation Office ("DD Office") shortly thereafter, she was unable to talk to him or see him until the afternoon of May 16.
On the afternoon of May 16 INS special agent Jan Grazulis ("Agent Grazulis") presented Tovar an NTA, in which the INS alleged that it proposed to deport her as an EWI and an alien who had been convicted of unlawfully carrying a weapon and theft. Agent Grazulis informed Maldonado that bond had not been set for Tovar because she was an EWI. Maldonado showed Agent Grazulis Tovar's LPR card and asked whether the INS contended it was fraudulent. Agent Grazulis acknowledged that Tovar's card was genuine, but noted that the date of birth — June 16, 1950 — was different from the one shown on Tovar's driver's license — June 16, 1960. Agent Grazulis acknowledged that Tovar's card had already been found by a computer check to be valid, but stated that even if Tovar was not an EWI, she could still be deported because she had been found guilty of theft and, especially, of unlawfully carrying a weapon. Maldonado asserted that because 30 days had not elapsed from the dates of her convictions, she could request new trials to set them aside. After Agent Grazulis consulted with someone, the INS released Tovar on the afternoon of May 16.
Tovar sought relief in county court from the convictions for theft and unlawfully carrying a weapon, contending that her pleas were involuntary and the result of ineffective assistance of counsel. On August 22, 1997 a county judge granted the motions for new trial and set aside the convictions. Tovar paid the amounts owed on the insufficient checks and the theft charge was dismissed. The charge for unlawfully carrying a weapon remained pending.
On November 12, 1997 Tovar visited the Dallas INS office to replace her alien registration card, which she had lost. According to Tovar, she was arrested in the lobby after her arrival. She telephoned Maldonado, who arrived at the DD Office at 3:35 p.m. They were instructed to wait until Agent West could meet with them. After waiting more than 90 minutes, Tovar was informed that she would be required to spend the night in jail because Agent West, the person in charge of her case, had gone home for the day. Maldonado asked to see the officer of the day, special agent Roy Hernandez ("Agent Hernandez"). Agent Hernandez advised them that Agent West had instructed him that Tovar was not be released. According to Agent Hernandez, Tovar was being detained based on her conviction for unlawfully carrying a weapon. Agent Hernandez refused to consider that the conviction had been set aside, and limited himself to providing Maldonado with the names and telephone numbers of Agent West and a Neil Jacobs ("Agent Jacobs"), instructing him to telephone either of them. Tovar was taken to the county jail, where she spent the night in custody.
Tovar and the government have presented somewhat different versions of what occurred on November 12 and 13, 1997. The court will recount separately the evidence as each party has presented it. For reasons the court explains below, the differences do not affect the court's disposition of these motions.
The INS released Tovar the afternoon of November 13, 1997. She was served with an NTA that alleged that she was removable based on the offense of unlawfully carrying a weapon. The NTA did not refer to the theft charge. According to Tovar, it was clear to Maldonado and her that Agent Jacobs knew the theft conviction had been set aside and dismissed. Maldonado presented documentary proof that the convictions had been set aside. When she was given the NTA, Maldonado had already proved to the INS that the convictions had been set aside, the theft charge had been dismissed, and the charge for unlawfully carrying a weapon was set for trial in June 1998.
According to the government, when Tovar appeared at the INS office, a routine check of INS records revealed that she had criminal involvement. She was referred to the duty officer, special agent Ronald Brookshire ("Agent Brookshire"). Part of Agent Brookshire's duties included receiving referrals from the DD unit for aliens believed to be subject to deportation. He was required to determine if a person was deportable and, if so, to prepare and serve an NTA that charged the individual with deportability. Agent Brookshire received a DD referral on Tovar that indicated that she had been convicted of unlawfully carrying a weapon and that inquired why the INS had not previously issued an NTA. According to the referral, Tovar had previously served jail time for unlawfully carrying a weapon and theft. She was released into INS custody on May 16, 1997 and for unknown reasons was released on that date without serving an NTA on her.
Agent Brookshire determined that Tovar's file reflected convictions for both offenses. The file contained copies of both criminal judgments. He then prepared an NTA based on the offense of unlawfully carrying a weapon. Because it was late in the day, he was unable to obtain necessary supervisor approval. Tovar was arrested and detained overnight in jail. On the morning of November 13, 1997 Agent Brookshire served her with an NTA and warrant for her arrest, with a $5,000 custody bond. Sometime during the late afternoon of November 12 or the morning of November 13, 1997, Maldonado contacted Agent Brookshire. Maldonado informed him that new trials had been granted on both convictions. Agent Brookshire responded that he needed proof of the court's actions. During the afternoon of November 13, 1997 a representative of Maldonado's office provided him with copies of the necessary documents. After consulting with INS counsel, Agent Brookshire determined that Tovar should be released on her own recognizance, and she was freed the afternoon of November 13.
An immigration judge ordered Tovar to appear on May 7, 1998. Maldonado asserted during the hearing that the INS should terminate the proceedings because Tovar had not been convicted of the offense of unlawfully carrying a weapon. INS counsel advised the immigration judge that he was not prepared to argue at that time, and the judge ordered Tovar to return on June 25, 1998. On June 18, 1998 a county judge found Tovar not guilty of the weapon charge. On June 25, 1998 she appeared before the Executive Office of Immigration Review. Maldonado presented a copy of the county court acquittal and requested that the proceedings be terminated. INS counsel requested additional time to study the question, which the immigration judge granted. The judge ordered Tovar to return for another hearing. On July 13, 1998, however, the INS moved to terminate removal proceedings against Tovar.
Tovar sues the government pursuant to the FTCA. In her amended complaint, she alleges liability based on violations of her rights, privileges, and immunities to be free from false imprisonment, unlawful arrest, illegal seizure of property, restrictions placed on her right to bail, deprivation of her liberty and property without due process, official misconduct by INS agents, official oppression by an INS agent, and harassment by INS agents. Tovar sues Villanueva for failing to provide clear title to the automobile she purchased, thereby causing her to be arrested by the police. The government and Villanueva move for summary judgment. Tovar moves for partial summary judgment.
The court has not considered for any purpose the government's March 17, 2000 appendix in support of its reply brief. Absent leave of court, this pleading is improper.
Before the 1998 summary judgment local rules amendments, it was settled that a party could not submit new evidence by way of a reply brief See Springs Indus., Inc. v. America Motorists Ins. Co., 137 F.R.D. 238, 239-40 (N.D. Tex. 1991) (Fitzwater, J.) ("The office of the reply brief permitted by Rule [7], 1(f) is to rebut the nonmovant's response, thereby persuading the court that the movant is entitled to the relief requested by the motion. The document is to contain argument, not new supporting materials."). The summary judgment local rules adopted in 1998 do not permit a party to submit additional evidence with a reply brief. N.D. Tex. Civ. R. 56.5(c) confirms this, providing that "[a] party whose motion or response is accompanied by an appendix must include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence." (emphasis added). Rule 56.5(c) does not refer to a reply that is accompanied by an appendix. Additional summary judgment evidence may only be filed with leave of court. See Rule 56.7. Moreover, Rule 7.1(f), the general reply brief rule that applies to all civil motions, including summary judgment motions, see Rule 56.1, does not refer to an evidentiary appendix. Accordingly, a party may not file a reply brief appendix without first obtaining leave of court. Because the purpose of a reply brief is to rebut the nonmovant's response, not to introduce new evidence, such leave will be granted only in limited circumstances.
In an order filed April 12, 1999 the court granted the government's Fed.R.Civ.P. 12(b)(6) motion for partial dismissal and ordered Tovar to file an amended complaint that made clear which claims she is asserting against which defendant. The court dismissed her constitutional claims against the government based on sovereign immunity.
II
To address the government's and Tovar's cross-motions for summary judgment, the court must first identify the claims that Tovar brings against the government.
In her amended complaint, Tovar purports to assert claims for violations of her rights, privileges, and immunities to be free from false imprisonment, unlawful arrest, illegal seizure of property, restrictions placed on her right to bail, deprivation of her liberty and property without due process, official misconduct by INS agents, official oppression by an This agent, and harassment by INS agents. The government maintains that only a cause of action for false imprisonment is at issue. It asserts that Tovar has no claim for illegal seizure of property; cannot assert a claim for deprivation of liberty and property without due process because this is a constitutional claim that the court dismissed by its April 12, 1999 order, official oppression is a criminal offense, not a civil tort; and there are no independent torts of official misconduct, harassment, and restrictions on plaintiff's right to ball. The government posits that unlawful arrest and false imprisonment are not separate causes of action under Texas law. D. Feb. 10, 2000 Br. at 12.
Because the parties have filed cross-motions, the court will refer to each brief by its file date to distinguish a brief filed in support of a party's motion for summary judgment from one filed in opposition to the other party's motion.
Tovar appears to concede that her sole claim against the government is for false imprisonment. See P. Mar. 3, 2000 Br. at 4 (identifying sole issue of law as "[w]hether the Plaintiff can meet the elements of the common law tort of false imprisonment, under Federal and Texas tort law, by asserting material facts to prevail against a summary judgment motion?"), 5, 7, 10, and 11. Moreover, in her motion for partial summary judgment against the government and Villanueva, Tovar seeks such relief only as to a false imprisonment claim. See P. Feb. 25, 2000 Br. at 12-16; id. at 1-2 ("The claim against the Government is founded on Plaintiff's inability to post bond in state court because an agent of the [INS] ordered that she be detained without bond. . . .") (emphasis added); see also D. Mar. 17, 2000 Rep. Br. at 7 ("It appears from the briefing in this case, that the federal defendant was correct in the Preliminary Statement in its Motion for Summary Judgment that the real claim that plaintiff has against the federal defendant is a tort claim of false imprisonment.").
The motion is partial because it is limited to liability, see P. Feb. 25, 2000 Br. at 16, not because it is constricted to one cause of action.
Accordingly, the court holds that Tovar's claim against the government is for false imprisonment.
Even if Tovar's cause of action is more properly treated under Texas law as one for false arrest rather than false imprisonment, this distinction is immaterial in the present case. The FTCA waives sovereign immunity for false imprisonment and false arrest, 28 U.S.C. § 2680 (h), and the elements of the torts are the same in the factual context of this case, see Villegas v. Griffin Indus., 975 S.W.2d 745, 754 (Tex.App. 1998, writ denied) (holding that elements of false arrest and false imprisonment were similar enough to be indistinguishable in context of case).
III
The court now turns to the government's and Tovar's cross-motions for summary judgment concerning Tovar's false imprisonment cause of action.A
Under the FTCA, this court looks to the law of Texas as the law of the place where the act or omission occurred. See Caban v. United States, 728 F.2d 68, 72 (2d Cir. 1984). "[T]he law of the place means the whole law of the state where the incident took place." Id. (citations and internal quotations omitted). Under Texas law, "[t]he essential elements of false imprisonment are: (1) willful detention; (2) without consent; and (3) without authority of law." Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).
B
Tovar's false imprisonment claim against the government appears to be based on three periods of detention: (1) April 24, 1997 through the morning of May 16, 1997; (2) the morning of May 16, 1997 through the afternoon of the same day; and (3) November 12, 1997 through November 13, 1997.
1
The government maintains that Tovar cannot establish that the INS willfully detained her during the period April 24, 1997 through the morning of May 16, 1997 when she was held in county custody. See D. Feb. 10, 2000 Br. at 13 (arguing that Tovar was not lawfully entitled to go anywhere until she posted bail or undertook other legal remedy to gain her freedom and that "these actions had nothing to do with the INS or the lodging of an INS detainer."). The court agrees.
It is undisputed that Agent West issued an immigration detainer concerning Tovar. Under the law,
[d]etainers are issued pursuant to sections 236 [ 8 U.S.C. § 1226] and 287 [ 8 U.S.C. § 1257] of the Act and this chapter. Any authorized Service official may at any time issue a Form I-247, Immigration Detainer-Notice of Action, to any other Federal, State, or local law enforcement agency. A detainer serves to advise another law enforcement agency that the Service seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Service, prior to release of the alien, in order for the Service to arrange to assume custody in situations when gaining immediate physical custody is either impracticable or impossible.8 C.F.R. § 287.7 (a) (2000) (emphasis added). The "clear majority view" is that "an INS detainer constitutes (1) a notice that future INS custody will be sought at the conclusion of a prisoner's pending confinement by another jurisdiction, and (2) a request for prior notice regarding the termination of that confinement, and thus does not result in present confinement by the INS." Roldan v. Racette, 984 F.2d 85, 88 (2d Cir. 1993) (collecting cases). "The lodging of a detainer does not subject the petitioner to INS custody." Garcia v. Immigration Naturalization Serv., 733 F. Supp. 1554, 1555 (M.D. Pa. 1990). Accordingly, the detainer did not keep Tovar in custody from April 24, 1997 through the mowing of May 16, 1997. A reasonable trier of fact could only find that Tovar remained in the county jail because she did not post the bail that a county magistrate set on the charges pending against her for unauthorized use of a motor vehicle, unlawfully carrying a weapon, or theft by check. The detainer itself did not deprive Tovar of her freedom during the time she was held under the terms of the county bail order.
Nor does the result change based on Tovar's affidavit testimony that she was granted work release as part of her sentence on the theft charge but, because that release was conditioned on there being no INS hold, she could not make use of it.
Although lodging a detainer against plaintiff while he is in state custody may have the effect of prohibiting him from participating in a work release program, it does not violate his constitutional rights. The detainer states, inter alia: "This is for notification purposes only and does not limit your discretion in any decision affecting the offender's classification, work and quarters assignments or other treatment which he would otherwise receive." This language makes clear that INS has not joined any decision to prohibit plaintiff from participating in a work release program, and cannot be held liable for any such decision.Paulino v. Connery, 766 F. Supp. 209, 210 (S.D.N.Y. 1991) (emphasis added).
Nor is it material that Agent West told Tovar, assuming arguendo that he did, that she would be held pursuant to the INS detainer even if she posted the bail set by the county magistrate. In Texas, "[a] detention may be accomplished by violence, by threats, or by any other means that restrains a person from moving from one place to another." Randall's Food Mkts, 891 S.W.2d at 644-45 (citing Martinez v. Goodyear Tire Rubber Co., 651 S.W.2d 18, 20 (Tex.App. 1983, no writ)). Tovar does not allege that Agent West engaged in an act of violence. Nor can his statement constitute a threat. In Texas, "[w]here it is alleged that a detention is effected by a threat, the plaintiff must demonstrate that the threat was such as would inspire in the threatened person a just fear of injury to her person, reputation, or property. Id. at 645. A reasonable trier of fact could not find from the evidence that Agent West threatened Tovar. Nor could the jury find that the statement amounted to a means that restrained her from moving from one place to another. Agent West may have misinformed Tovar in a manner that resulted in her failing to avail herself of the opportunity to make bail, but his statement did not of itself restrain her during the period in question. The county magistrate's detention order detained her until she posted bail.
Moreover, "[a] threat of future action, such as . . . having someone arrested, is not ordinarily enough by itself to effectuate a false imprisonment." Morales v. Lee, 668 S.W.2d 867, 869 (Tex.App. 1984, no writ). Assuming arguendo that Agent West threatened Tovar, it was at most a threat to arrest her in the future if she made bail on the county charges.
Tovar cannot establish the willful detention element of her false imprisonment claim for the period April 24, 1997 through the morning of May 16, 1997. The court need not, therefore, address the other two components of her claim. Because this element is one of three that are required to establish false imprisonment, Tovar's failure to create a genuine issue of fact on this one issue entitles the government to summary judgment. See Dunn v. State Farm Fire Cas. Co., 927 F.2d 869, 872 (5th Cir. 1991) (holding that summary judgment nonmovant must produce sufficient evidence to establish existence of each element for which she bears burden of proof).
2
The court considers next whether Tovar has a claim based on the period of time that she remained in INS custody from the morning to the afternoon of May 16, 1997.
The government argues that Tovar cannot demonstrate the third element of her false imprisonment cause of action — that INS officials acted without authority of law. As the court has held above, the court must look to Texas law to determine the legal authority under which INS agents operated. This requires that the court consider federal law if Texas would apply it in like circumstances involving a private defendant. Caban, 728 F.2d at 72. Neither party has cited, nor has the court located on its own, a decision that dearly indicates that Texas would apply federal law. Federal courts have determined that at least two states — New York and California — would incorporate federal statutes and regulations. See Caban, 728 F.2d at 73 (inferring that "New York state courts would look to federal principles in determining the standard by which INS officials' detention of a would-be entrant are to be judged"); Rhoden v. United States, 55 F.3d 428, 431 (9th Cir. 1995) (per curiam) (FTCA false arrest and imprisonment action based on conduct of INS) (holding that "[u]nder California law, a California court would apply federal law to determine whether an arrest by a federal officer was legally justified and hence privileged."). In the context of false imprisonment claims against law enforcement officers, Texas determines whether they were acting with authority of law by assessing the legality of their conduct under state statutes. See, e.g., Villegas v. Griffin Indus., 975 S.W.2d 745, 754 (Tex.App. 1998, writ denied). The court therefore infers that Texas would measure whether a federal INS agent acted with authority of law by looking to federal statutes and regulations.
The court holds that a reasonable trier of fact could only find that the INS acted under authority of law when it detained Tovar for several hours on May 16, 1997. When Tovar was released from county custody to the INS detainer, she had already been convicted by guilty plea of the offenses of unlawfully carrying a weapon and theft by check. Tovar concedes that INS agents are empowered by law to interrogate and arrest aliens who are removable under 8 U.S.C. § 1182 or § 1227. See P. Feb. 25, 2000 Br. at 12. She also acknowledges that convictions for the offenses of theft (as a crime involving moral turpitude) and unlawfully carrying a weapon subject an alien to deportation. Id. at 15. Therefore, she cannot establish that government agents acted without legal authority in detaining her on May 16, 1997 to determine whether she should be released pending her response to the NTA based on the criminal convictions. The government is entitled to summary judgment dismissing this basis for Tovar's false imprisonment claim. See Raiford v. May Dep't Stores Co., 2 S.W.3d 527, 533 (Tex.App. 1999, no writ) ("In a false imprisonment case, if the alleged detention was performed with the authority of law, then no false imprisonment occurred.") (citing Wal-Mart Stores, Inc. v. Resendez, 962 S.W.2d 539, 540 (Tex. 1998)).
3
The last event on which Tovar bases her false imprisonment claim is the arrest and detention that occurred on November 12 and 13, 1997. The government argues that it undertook proper procedures — i.e., acted with authority of law — on that occasion because her record showed that she had been convicted of, and served jail time for, the offenses of theft by check and unlawfully carrying a weapon, and that it released her from custody once she showed by proper documentation that she had been granted new trials on both convictions.
As before, the court applies federal law to the Texas tort of false imprisonment and holds that Tovar cannot establish that INS agents acted without lawful authority. According to the evidence available to them, Tovar had been convicted of theft by cheek and unlawfully carrying a weapon. As the court has already noted above, Tovar concedes that INS agents are empowered by law to arrest aliens who are removable under 8 U.S.C. § 1182 or § 1227. See P. Feb. 25, 2000 Br. at 12. She also acknowledges that convictions for theft and unlawfully carrying a weapon subjected her to deportation. Id. at 15. When Tovar presented the INS with written documentation that she had been granted new trials, the INS released her on her own recognizance.
Tovar appears to advance the following pertinent opposition argument. She asserts in her brief in support of her motion for partial summary judgment that INS agents ordered her false imprisonment on November 12, 1997 "when they both knew that the convictions upon which they had based their previous NTA had been set aside; that one had been dismissed and the other was pending trial." P. Feb. 25, 2000 Br. at 14. She maintains that on November 12, 1997 "INS knew that Plaintiff did not stand convicted of any crime," yet "served [her] with an NTA dated November 12, 1997 charging her with deportability on the ground that she had been convicted of [unlawfully carrying a weapon] on May 6, 1997." Id. at 9. These are merely unsworn assertions set out in a brief and do not constitute summary judgment evidence. "Unsworn pleadings, memoranda, or the like are not, of course, competent summary judgment evidence." Larry v. White, 929 F.2d 206, 211 n. 12 (5th Cir. 1991). Nor has Tovar supported these assertions by citing "each page of the appendix that supports each assertion that [she] makes concerning the summary judgment evidence," as required by N.D. Tex. Civ. R. 56.3(a)(3).
In her March 3, 2000 brief in opposition to the government's motion for summary judgment, she does not refer explicitly to the November 12-13, 1997 arrest and detention.
Moreover, the court's review of the evidence has not located proof that creates a genuine issue of material fact concerning what the INS agents knew before Maldonado provided written evidence that Tovar had been granted new trials of her convictions. Tovar's proof in support of her own motion for partial summary judgment consists only of her affidavit. She testifies, in pertinent part, that Agent Hernandez refused to consider that the convictions had been set aside and merely provided the names and telephone numbers of Agents West and Jacobs. Assuming this is true, it is immaterial, because it pertains to Agent Hernandez, who functioned as the officer of the day, and does not contradict that the agents responsible for detaining Tovar were only aware of the convictions, not the new trial orders. Tovar also maintains that because the NTA only charged her with unlawfully carrying a weapon, it was clear to her and her lawyer that Agent Jacobs was aware that the theft conviction had been set aside and dismissed. This a conclusory assertion that is insufficient to avoid summary judgment. See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999) (holding that conclusory allegations, speculation, and unsubstantiated assertions are not evidence). As if anticipating this ruling, Tovar asserts that this is not "speculation" because her lawyer presented documentary proof attesting to the setting aside of the convictions. She does not introduce evidence however, concerning when he presented the written proof to INS officials. The government concedes that Maldonado provided the necessary proof; but introduces evidence that shows that this occurred the afternoon of November 13, 1997, when it released her on her own recognizance. A reasonable trier of fact could not find based on the record evidence that INS agents acted without authority of law in arresting Tovar on November 12, 1997 and detaining her until it received the required proof on November 13, 1997. Therefore, the government is entitled to summary judgment. See Raiford, 2 S.W.3d at 533 (holding that if alleged detention was performed with authority of law, no false imprisonment occurred).
C
Tovar asserts at various points in her briefing that the government has not met its burden of proving that INS agents had probable cause to believe that Tovar was not an LPR or to detain and arrest her. See, e.g., P. Feb. 25, 2000 Br. at 16; P. Mar. 3, 2000 Br. at 9. Under Texas law, however, Tovar "bears the burden to prove all three elements including the absence of authority." Villegas, 975 S.W.2d at 754 (addressing false imprisonment claim that court held should be treated as false arrest claim) (citing Sears, Roebuck Co. v. Castillo, 693 S.W.2d 374, 376 (Tex. 1985)). Tovar's reliance on Director General of Railroads v. Kastenbaum, 263 U.S. 25 (1923), is therefore misplaced.
In Kasienbaum the Supreme Court addressed an issue of false imprisonment decided under the Federal Control Act, a federal statute that partially waived sovereign immunity as to carriers under federal control. Id. at 26. The Court's holdings concerning the requirement of probable cause and the burden of proof were not based on the law of the state in which the incident took place. See id. at 27-29. Therefore, Kastenbaum is distinguishable since today's case is decided under Texas law which, unlike the law discussed in Kastenbaum, places the burden of proof on Tovar.
Moreover, Tovar has not demonstrated that Agent West was required to have probable cause to file the detainer on April 24, 1997. Instead, "it is established that the INS has the authority to issue a detainer when there is `reason to believe [an alien] is amenable to exclusion or deportation proceedings under any provision of law.'" Topazov v. United States Immigration Naturalization Serv., 929 F. Supp. 479, 482 (D.D.C. 1996) (quoting 8 C.F.R. § 242.2 (a)(1)).
Concerning the detention of May 16, 1997 and arrest and detention of November 12-13, 1997, Tovar has not introduced evidence that would permit a reasonable trier of fact to find that the INS lacked probable cause. The Texas Supreme Court has defined probable cause is the analogous context of a civil suit for malicious prosecution as "the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of prosecutor [complainant], that the person charged was guilty of the crime for which he was prosecuted." Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). "The probable-cause determination asks whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be before the criminal proceedings were instituted." Id. In view of the fact that as of May 16, 1997 Tovar had been convicted of deportable offenses, and that at the time she was arrested and detained on November 12-13, 1997, INS records showed that these convictions remained in effect, a reasonable trier of fact could only find that INS agents had probable cause to detain Tovar on May 16, 1997 and to arrest and detain her on November 12-13, 1997.
IV
The court declines to reach Villanueva's motion for summary judgment. In its April 12, 1999 order, the court made the following observation:
the court does not suggest that if Tovar's action against the government is dismissed, the court will retain jurisdiction over Tovar's action against Villanueva and Villanueva's third-party action against Dallas Motors. This court's jurisdiction appears to be based upon the presence of the government as a defendant. The court apparently does not have jurisdiction based on diversity of citizenship because Tovar, as a legal permanent resident, is treated as a Texas citizen, see 28 U.S.C. § 1331 (a)(4), and Villanueva is a Texas citizen. If Tovar cannot establish a federal-question claim against Villanueva, the court in its discretion would decline to exercise jurisdiction over the remaining state-law claims.
Apr. 12, 1999 Order at 2 n.*. Accordingly, having granted summary judgment dismissing Tovar's lawsuit against the government, the court dismisses without prejudice the balance of the case.
* * *
The court grants the government's motion for summary judgment, denies Tovar's motion for partial summary judgment, and dismisses her action against the government with prejudice by judgment filed today. The court dismisses Tovar's action against Villanueva without prejudice to her refiling it in state court.
SO ORDERED.