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Villars v. Kubiatowski

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

May 5, 2014

JULIO VILLARS, Plaintiff,
v.
STEPHEN KUBIATOWSKI as Assistant United States Attorney for the Northern District of Illinois; MAURY STRAUB as Ozaukee County Sheriff; JEFFREY SAUDER as Ozaukee County Jail Administrator; DOES OZAUKEE COUNTY JAIL DEPUTIES 1-8; COUNTY OF OZAUKEE; KENNETH COPPES, PATRICK MURRAY, and MICHAEL BARR as Village of Round Lake Beach Police Officer; the VILLAGE OF ROUND LAKE BEACH; GARY BITLER as Round Lake Beach Police Chief; LAKE COUNTY; MARK CURRAN as Sheriff of Lake County; DOES LAKE COUNTY JAIL DEPUTIES SHERIFF 9-13, Defendants

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Julio Villars, Plaintiff, Pro se, Chicago, IL.

For Stephen Kubiatowski, as Assistant United States Attorney Office for the Northern District of Illinois, Defendant: Eric S Pruitt, LEAD ATTORNEY, United States Attorney's Office (NDIL), Chicago, IL.

For Maury Straub, as Ozaukee County Sheriff, Jeffery Sauder, as Ozaukee County Jail Administrator, County of Ozaukee, Does Ozaukee County Jail Deputies, 1-8, Defendants: Michele M. Ford, LEAD ATTORNEY, Crivello Carlson, SC, Milwaukee, WI.

For Kenneth Coppes, Patrick Murray, Round Lake Beach Police Officer, Michael Barr, as Round Lake Beach Ploice Officer, The Village of Round Lake Beach, Gary Bitler, as Round Lake Beach Police Chief, Defendants: Brian Patrick Gainer, LEAD ATTORNEY, Gabriel Racine Judd, Johnson & Bell, Ltd., Chicago, IL.

For County of Lake, Does Lake County Jail Deputies Sheriff, 9-13, Mark Curram, as Sheriff of Lake County, Defendants: Beth Greenberg Prager, Kevin John Berrill, LEAD ATTORNEYS, Lake County State's Attorney's Office, Waukegan, IL.

For Dale J. Novarro, as Lake County Jail Deputies, Defendant: Kevin John Berrill, LEAD ATTORNEY, Lake County State's Attorney's Office, Waukegan, IL.

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MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr., United States District Judge.

Before the Court are motions to dismiss Plaintiff's second amended complaint (" SAC" ) [54], filed by Defendants Village of Round Lake Beach (" VRLB" ), VRLB police officers Kenneth Coppes, Patrick Murray, and Michael Barr, and VRLB police chief Gary Bitler (together, " the VRLB Defendants" ) [58], Lake County, Lake County sheriff Mark Curran, and Lake County jail deputies Scott Wilson and Dale Novarro, (collectively, " the Lake County Defendants" ) [60], and Assistant United States Attorney Stephen Kubiatowski [83]. For the reasons set forth below, the Court grants in part and denies in part the VRLB Defendants' motion [58]; the Court denies the Lake County Defendants' motion in its entirety [60]; and the Court

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denies in part and grants in part Defendant Kubiatowski's motion [83].

Also before the Court is Plaintiff's " motion for certification to receive U-Visa certification" [79]. For the reasons set forth below, the Court denies Plaintiff's motion. This case is set for further status on May 20, 2014 at 9:00 a.m.

I. Background[1]

On October 10, 2010 at 8:28 p.m., pro se Plaintiff Julio Villars was arrested by police officers from the Village of Round Lake Beach (" VRLB" ) for driving under the influence and fleeing from VRLB officers after they effectuated a traffic stop of Villars's vehicle. SAC ¶ 30; SAC Ex. B, C. Officers initially pulled over Villars for speeding, but when they approached the driver side window, Villars sped away in his car, made a right turn, and then fled his vehicle on foot. Id. Soon after, the officers located Villars exiting a nearby backyard, at which point they detained and arrested him. Id. According to Villars, Officer Coppes referred to Villars as an " illegal Mexican" at the scene of his arrest and, when Villars refused to sign a traffic citation at the police station, Coppes told Villars that he would " be in Mexico by the time [Coppes] finished with [him]." SAC ¶ ¶ 33, 41.

Villars contends that, in fact, he was not an " illegal Mexican," but a Honduran citizen, lawfully in the United States and working as a confidential informant for the FBI. SAC ¶ ¶ 42, 50. According to Villars, VRLB officers removed from his wallet an Illinois Commercial Driver's License, social security card, Illinois state ID card, Immigration Work Authorization Card (I-765), and an " OIA Otherwise Illegal Activity" authorization card from the FBI. SAC ¶ 49. According to the police paperwork that Villars attached to his SAC, after completing the booking procedures, officers placed Villars in a cell " to be held for sobriety," and at 3 a.m. or 4 a.m., an officer awoke Villars to have him sign paperwork concerning his personal recognizance bond. SAC ¶ 55; SAC Ex. C. Villars asked the VRLB officer if he would be released, at which time the officer informed Villars that he would be transported to Lake County jail on an immigration detainer from U.S. Immigration and Customs Enforcement (" ICE" ). SAC ¶ 56. According to Villars, the VRLB police department has an unlawful policy of honoring all ICE detainers, even when - in cases like this one, Villars contends - there are " easily verifiable fact[s]" of an arrestee's legal authorization to be in the United States. SAC ¶ 60. In Villars's case, ICE issued the detainer on October 10, 2010 (according to the detainer itself) to " Will County Sheriff 95 S. Chicago St. Joliet, IL 60436," informing its recipient that the Department of Homeland Security (" DHS" ) had initiated an investigation " to determine whether [Villars] is subject to removal from the United States" and requesting that the detainer's recipient " maintain custody of [Villars] for a period not to exceed 48 hours (excluding Saturdays, Sundays, and Federal holidays) to provide adequate time for [DHS] to assume custody of the alien." SAC Ex. F. The detainer asked that its recipient contact DHS " at least 30 days prior to [the Villars's] release or as far in advance as possible." Id.

Villars says that he was transferred to Lake County jail " around 3am" on October

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11, 2010,[2] where Lake County, too, unlawfully detained him in compliance with ICE's directive. SAC ¶ ¶ 90, 108, 114. On November 10, 2010, Villars was taken to ICE's Chicago office, where he was transferred to the FBI pursuant to a material witness warrant and taken into custody by the U.S. Marshals Service. SAC ¶ ¶ 117-20. The U.S. Marshals Service then transferred Villars to Ozaukee County Jail in Port Washington, Wisconsin, where (according to Villars) the U.S. Marshals rent bed space to hold federal material witness detainees. SAC ¶ ¶ 121-22, 126. Villars contends that he was housed unlawfully with criminal defendants and subjected to invasive patdowns and strip searches, despite his status as a material witness detainee. SAC ¶ ¶ 134-35, 138.

Villars's SAC mentions that he was transported back to Chicago on November 15 for an unspecified reason. SAC ¶ 138. The docket in U.S. v. Diaz, 10-cr-0199, however, reveals that Villars made his initial appearance before Judge Denlow, (see [60]), concerning the material witness warrant that Judge Castillo issued on November 3, 2010, following a hearing on AUSA Kubiatowski's October 27 motion. See [54, 56]. In his motion, Kubiatowski represented to Judge Castillo that Villars's testimony in U.S. v. Diaz (a case in which Villars posed as a buyer of methamphetamine at the direction of the FBI) was critical to the government's prosecution of the defendants in that case and that Villars was facing imminent deportation proceedings, such that the government would be unable to secure his presence at trial with a subpoena and therefore needed a material witness warrant transferring Villars to the custody of the U.S. Marshals Service. See Kubiatowski Affidavit in U.S. v. Diaz, 10-cr-0199, [54-1]. At his initial appearance before Judge Denlow on November 15, Paul Flynn from the Federal Defender Program was appointed as Villars's counsel, and Judge Denlow scheduled a detention hearing for November 19. See [60]. When he returned to Ozaukee County Jail later that day, Villars tested positive for tuberculosis. SAC ¶ ¶ 142-44. But when Villars refused to undergo any additional medical evaluation, he was placed in isolation at the jail, (SAC ¶ ¶ 145-46), and (according to the docket in U.S. v. Diaz ) Judge Denlow postponed his November 19 detention hearing (to be " reset at a later date" ) on account of his medical condition. See [65]. Villars, however, allegedly received no information about his detention status or his next court date and had no contact with his attorney. After November 19, 2010, the next docket entry in U.S. v. Diaz concerning Villars was entered on January 6, 2011, when Judge Denlow scheduled a status hearing " as to material witness Julio Villars-Salazar" for January 11, 2011. [67].

A week or so before that, on December 30, 2010, after 50 days in Ozaukee County Jail, Villars had written Judge Castillo a letter, explaining his situation and requesting a detention hearing. SAC Ex. I. After several unsuccessful attempts to contact his attorney Paul Flynn, on January 7, 2011, Villars wrote a letter to Flynn, pleading for some type of assistance or information concerning his status. SAC Ex. J. According to the docket, Flynn withdrew as Villars's counsel at the January 11, 2011 status hearing (which Villars appears to have attended) and Ronald Clark was substituted for Flynn. See [69]; SAC ¶ 167. Judge Denlow set another status for January

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13, at which time a status hearing was scheduled for January 27. [68, 70]. On January 27, 2011, Judge Denlow conducted a detention hearing as to Villars and, according to the docket, Villars was released from custody by agreement of the parties. See [74]. Villars says that he was returned to Ozaukee County Jail after the hearing, and was then transported back to Chicago on February 1, 2011, where he was released from detention. SAC ¶ 175.

Villars commenced this suit on June 13, 2012 and filed the twenty-one count second amended complaint [54] at issue here on August 1, 2013. Counts I-IV concern Defendant Kubiatowski. Count I alleges that AUSA Kubiatowski violated Villars's due process rights by detaining him longer than was necessary to secure his presence as a material witness at trial. Count II alleges that AUSA Kubiatowski violated Villars's due process rights by " adopting and implementing policies" that subjected Villars to " outrageous, excessive, cruel, inhuman, and degrading conditions of confinement." Count III alleges that Kubiatowski violated Villars's equal protection rights by (as in Count I) detaining Villars longer than was " necessary to secure his appearance in court" and (as in Count II) " subjecting him to harsh[er] treatment" than other " similarly-situated material witness[es]," because of his race, ethnicity, or national origin. Count IV alleges that Kubiatowski violated his Fourth Amendment right to be free from unreasonable detention and failed to comply with the material witness statute (18 U.S.C. § 3144), the Bail Reform Act (18 U.S.C. § 3142(f)(2)), and Federal Rule of Criminal Procedure 46(h).

Counts V-XI concern the VRLB Defendants (the VRLB, VRLB police chief Gary Bitler, VRLB police officers Kenneth Coppes, Patrick Murray, and Michael Barr) and the Lake County Defendants (Lake County, Lake County sheriff Mark Curran, and Lake County jail deputies Scott Wilson and Dale Novarro). Count V alleges that the VRLB and Lake County Defendants violated Villars's Fourth Amendment rights by detaining him without probable cause of an immigration violation and " pursuant to an unauthorized and deficient detainer." Count VI alleges that the VRLB and Lake County Defendants violated Villars's Fourth Amendment rights because, Villars argues, Congress only authorized ICE to issue detainers in cases involving controlled substances. (Villars appears to argue that ICE improperly issued a detainer when it was unauthorized to do so.) Count VII alleges that the VRLB and Lake County Defendants violated Villars's Fourth Amendment rights by detaining him without a probable cause hearing. Count VIII alleges that the VRLB and Lake County Defendants violated Villars's Fourth Amendment rights by detaining him at the direction of the federal government in contravention of the Tenth Amendment. Count IX alleges that the VRLB and Lake County Defendants violated Villars's substantive due process rights by detaining him pursuant to a detainer that is not governed by " standards guiding [its] issuance." (Villars seems to argue that ICE detainers themselves are unconstitutional.) Count X alleges that the VRLB and Lake County Defendants violated Villars's procedural due process rights by jailing him pursuant to the ICE detainer. And Count XI alleges that the VRLB and Lake County Defendants violated his procedural due process rights by detaining him pursuant to an ICE detainer that was not subject to judicial review. (Like in Count IX, Villars again seems to contest the constitutionality of ICE detainers generally.)

Count XII alleges a Fourth Amendment excessive force claim against VRLB officer Murray for bending Villars's finger during

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his arrest. (Officer Murray has not moved to dismiss this claim.)

Counts XIII and XIV alleges that Ozaukee County, Ozaukee County Sheriff Maury Straub, Ozaukee County Jail Administrator Jeffrey Sauder, and John Doe Jail Deputies 1-8 (collectively, " the Ozaukee County Defendants" ) violated his Fourth and Eighth Amendment rights by subjecting him to unreasonable strip searches and general mistreatment while housed at the Ozaukee ...


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