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Makowski v. United States

United States District Court, N.D. Illinois, Eastern Division

March 18, 2014


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For James Aziz Makowski, Plaintiff: Geoffrey A. Vance, LEAD ATTORNEY, Briordy Tassin Meyers, Jocelyn D. Francoeur, Kristen Klanow, Nicole Leigh LeBeau, McDermott, Will & Emery LLP (Chicago), Chicago, IL; Mark M. Fleming, National Immigrant Justice Center, Chicago, IL.

For United States Government, Defendant: Joshua Edward Gardner, Paul David Stern, LEAD ATTORNEYS, United States Department of Justice, Washington, DC; Brad P. Rosenberg, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC.

For Department of Homeland Security, Federal Bureau of Investigation, Defendants: Joshua Edward Gardner, LEAD ATTORNEY, United States Department of Justice, Washington, DC; Brad P. Rosenberg, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC.

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JOAN B. GOTTSCHALL, United States District Judge.

After Plaintiff James Aziz Makowski, a U.S. citizen, was arrested on July 7, 2010, an immigration detainer was issued against him. When Makowski pleaded guilty to a drug offense, the detainer caused him to be transferred to a maximum security prison rather than the boot camp for which he would otherwise have been eligible, and he spent approximately seventy days in custody before the detainer was canceled and he was allowed to complete the boot camp and secure his release. Makowski has sued the Federal Bureau of Investigation (" FBI" ) and the Department of Homeland Security (" DHS" ), for violations of the Privacy Act, 5 U.S.C. § § 552a(b), a(g)(1)(C), and (e)(5), and he has sued the United States for false imprisonment and negligence under the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § § 2671 et seq. He seeks monetary damages as well as declaratory and injunctive relief. The government moves to dismiss Makowski's First Amended Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the motion is granted in part and denied in part.

I. Facts

Makowski was born in 1987 in India. He was adopted by U.S. citizens when he was one year old. He entered the United States on an IR4 visa, which is reserved for orphans adopted by U.S. citizens, and he became a U.S. citizen soon after his arrival. In 1989, the Immigration and Naturalization Service (" INS" )--which is now DHS--issued Makowski a certificate of citizenship which included his alien registration number. Later that year, INS provided Makowski's parents with written verification of his U.S. citizenship status. Makowski has lived in the United States since arriving as an infant and has had a U.S. passport since an early age. He served in the U.S. Marines from 2004 to 2006. As part of the Marines' application process, he underwent an FBI background check.

In October 2009, Makowski was arrested in DuPage County, Illinois. When his father posted bond, Makowski was told that he could not be released because Immigration and Customs Enforcement (" ICE" ), a component of DHS, had issued an immigration detainer against him. While in custody, Makowski explained to a person he believed to be an ICE officer that he was a U.S. citizen. The detainer was subsequently lifted, and he was released on bail.

Makowski was arrested again in DuPage County on July 7, 2010. The DuPage County Sheriff's office took his fingerprints and submitted them to the FBI for a background check. Pursuant to the FBI's participation in the immigration enforcement program " Secure Communities," also known as " Interoperability," the FBI transmitted Makowski's fingerprints to DHS's Automated Biometric Identification System (" IDENT" ) database for an immigration background check. In response, DHS indicated to the FBI that IDENT did not contain a " match" for Makowski's fingerprints, but it listed Makowski's place of birth as " India." Based on this response, the FBI transmitted Makowski's fingerprints and criminal record to the ICE Law Enforcement Support Center (LESC) for follow-up immigration enforcement.

Makowski attached the ICE Secure Communities Standard Operating Procedures to his complaint as Exhibit A. As initially implemented, the FBI forwarded

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fingerprints and records to ICE's LESC only if the IDENT query returned a " match," indicating that the fingerprints belonged to an individual DHS had identified as a high priority subject. (First Am. Compl. ¶ ¶ 20, 25, ECF No. 45; Ex. A (Standard Operating Procedures) § 2.1, ECF No. 45-1.) But the FBI disclosed Makowski's fingerprints and records to LESC in spite of the " no match" response from DHS pursuant to a 2008 policy change whereby the FBI began to automatically forward to LESC fingerprints that generated a " no match" in the IDENT database if DHS's response also indicated that the individual was born outside of the United States. ( Id. at ¶ 25.) Makowski attached meeting minutes detailing this policy change to his complaint. (First Am. Compl. Ex. H (Oct. 22, 2008 Staff Paper), ECF No. 45-8.)

On July 8, 2010, a day after Makowski was arrested in DuPage County for the second time, the ICE Chicago Field Office issued an I-247 immigration detainer against him. The detainer included his alien registration number and incorrectly listed his nationality as Indian, reflecting the fact that " INS and now DHS [had] not properly updated his records in over 20 years to accurately reflect that [he] is a citizen of the U.S." (First Am. Compl. ¶ 38.) On December 6, 2010, Makowski pleaded guilty to a drug offense and received a seven-year prison sentence. He did so under the impression that he would be allowed to participate in a 120-day boot camp in lieu of serving the seven-year sentence. ( Id. at ¶ 43.) Makowski was transferred to the Stateville Correctional Center for processing into boot camp.

During processing, Makowski met with an ICE officer. He provided the ICE officer with copies of his U.S. passport and social security card. The ICE officer inspected and copied these materials. ( Id. at ¶ 45.) Soon after processing, Makowski learned that he was ineligible for the boot camp because of the immigration detainer, and he was transferred to Pontiac Correctional Center to serve the seven-year prison sentence. ( Id. at ¶ 46.)

With the assistance of an attorney, Makowski's father had the detainer canceled on January 25, 2011, and Makowski was transferred to be processed into the boot camp program on February 9, 2011. ( Id. at ¶ 48.) He completed the boot camp program and was released on July 20, 2011. ( Id. at ¶ 49.) In September 2011, Makowski began working as a network administrator. ( Id. ) He alleges that, were it not for the wrongful detainer issued on July 8, 2010, he would have completed boot camp by mid-May 2011 and would have sought employment and begun working prior to September 2011. ( Id. )

Based on these allegations, Makowski brings claims against the FBI for improperly disclosing his fingerprints and records to DHS, in violation of the Privacy Act, 5 U.S.C. § 552a(b) (Count I). He seeks injunctive and declaratory relief based on this violation (Count V). He brings a claim against DHS for failing to properly maintain its records reflecting his citizenship, in violation of the Privacy Act, 5 U.S.C. § § 552a(g)(1)(C) & (e)(5) (Count II), and seeks injunctive and declaratory relief based on this violation (Count VI). He brings separate claims against the United States under the FTCA for false imprisonment (Count III) and negligence (Count IV).

II. Legal Standard

To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must " state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929

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(2007)). A claim satisfies this pleading standard when its factual allegations " raise a right to relief above the speculative level." Twombly, 550 U.S. at 555-56; see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (" [P]laintiff must give enough details about the subject-matter of the case to present a story that holds together." ). For purposes of the motion to dismiss, the court takes all facts alleged by the claimant as true and draws all reasonable inferences from those facts in the claimant's favor, although conclusory allegations that merely recite the elements of a claim are not entitled to this presumption of truth. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). A plaintiff may plead himself " 'out of court when it would be necessary to contradict the complaint in order to prevail on the merits.'" Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008) (quoting Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006)).

III. Analysis

A. Privacy Act Claims Against the FBI (Counts I and V)

According to Makowski, the FBI's disclosure of his fingerprints to DHS's IDENT database and the subsequent transmission of his fingerprints and criminal record to ICE's LESC violated his rights under the Privacy Act. The Privacy Act provides that " [n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or ...

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