United States District Court, N.D. Illinois, Eastern Division
JOHN F. GRADY, District Judge.
Before the court is defendant FBI Agent Brett Curtis's motion for summary judgment. We grant the defendant's motion for the reasons explained below.
Plaintiff Jose Berrum-Plata was in the country illegally when he agreed to cooperate with the defendant in an FBI drug investigation. In return for his cooperation, the FBI supported his application for Significant Public Benefit Parole ("SPBP"). United States Immigration, Customs, and Enforcement ("ICE") granted his application, permitting him to remain in the country temporarily. See 8 CFR § 212.5(b) (an authorized immigration official may allow an illegal alien to remain in the United States if doing so would confer a "significant public benefit"). In this lawsuit, Berrum-Plata claims that the FBI (through Curtis) improperly withdrew its support for his parole and arrested him without probable cause. Before delving any further into the facts, we will first address: (1) the unusual procedural history of this case; and (2) the defendant's motion to strike Berrum-Plata's response to his Local Rule 56.1 statement of facts.
A. Procedural History & Curtis's Motion to Strike
Berrum-Plata filed his original complaint, through counsel, against the United States, the Department of Homeland Security, ICE, and Curtis. His attorneys moved to withdraw their representation before the parties' first court appearance. In their motion, they stated that they could not continue to represent Berrum-Plata in light of unspecified "additional information" that they had received about his claims. (See Corrected Mot. to Withdraw, Dkt. 8, ¶¶ 1-2; see also id. at ¶ 3 (stating that they had "irreconcilable differences" with their client "over issues arising out of this litigation as well as over the management and direction of the litigation.").) After we gave his attorneys leave to withdraw, Berrum-Plata filed his pro se appearance. (See Pro Se Appearance, dated June 8, 2012, Dkt. 43.) We subsequently granted Berrum-Plata's motion to appoint counsel after the defendants moved to dismiss given the complexity of the issues and Berrum-Plata's limited English. (See Minute Entry, dated Oct. 10, 2012, Dkt. 22.) We ultimately granted the defendants' motion to dismiss. See Berrum-Plata v. U.S., No. 12 C 2065, 2013 WL 1344017, *3 (N.D. Ill. Apr. 3, 2013). We held that Berrum-Plata could not maintain a constitutional claim against the United States, the FBI, and ICE under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971). See Berrum-Plata, 2013 WL 1344017, *1 (citing F.D.I.C. v. Meyer , 510 U.S. 471, 486 (1994) (declining to extend Bivens to claims against federal entities)). And he could not assert state-law claims against the defendants (including Curtis) without exhausting his administrative remedies under the Federal Tort Claim Act ("FTCA"). See id. at *2; see also 28 U.S.C. § 2675 ("An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail."). With respect to his Bivens claim against Curtis, we held that the complaint did not contain enough factual information to state a plausible claim for relief. See Berrum-Plata, 2013 WL 1344017, *1. We dismissed Berrum-Plata's claims without prejudice and asked appointed counsel to remain in the case to help him prepare an amended complaint. Id.
After granting the plaintiff several extensions of time to amend his complaint, his appointed attorney moved to withdraw. Like Berrum-Plata's prior retained counsel, his appointed counsel cited "irreconcilable differences over issues arising out of this litigation including substantial disagreement over litigation strategy." (See Mot. to Withdraw, dated June 19, 2012, Dkt. 42, ¶ 4.) We granted the motion to withdraw and gave Berrum-Plata additional time to file an amended complaint pro se. On July 26, 2012, Berrum-Plata filed his amended complaint - the operative complaint in this case - naming Curtis as the sole defendant. We concluded that the complaint, although difficult to understand in places, was adequate to give Curtis notice of Berrum-Plata's claims. (See Order, dated Nov. 20, 2013, Dkt. 60.) But we were skeptical that Berrum-Plata could manage the litigation on a pro se basis going forward. (Id.) So, we again appointed counsel to represent him. Before appointed counsel even filed his appearance, he moved to withdraw: "in [counsel's] opinion, underlying facts discovered in his investigation and work to date do not give rise to a potentially successful cause of action." (Mot. to Withdraw, dated Dec. 19, 2013, Dkt. 64.) We granted this motion and denied as futile Berrum-Plata's request to appoint yet another attorney. (See Minute Entry, dated Jan. 22, 2014, Dkt. 71.)
In lieu of filing an answer, Curtis filed the present motion for summary judgment. Because Berrum-Plata was representing himself pro se at that point, we gave him a date by which to respond to the defendant's Local Rule 56.1 statement and set a hearing date to discuss his response before scheduling further briefing. (See Minute Entry, dated Apr. 30, 2014, Dkt. 77.) A week after his response was due, Berrum-Plata filed his Local Rule 56.1 response (and a legal memorandum opposing summary judgment) through newly retained counsel. His response to Curtis's statement of facts does not cite any record evidence. Cf. L.R. 56.1(b)(3)(B) (The opposing party's response must include "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon."). Instead, Berrum-Plata filed a separate affidavit reciting his version of events and purporting to incorporate his Local Rule 56.1 responses by reference. (See Berrum-Plata Aff., Dkt. 82, ¶ 14.) He further confuses matters by stating bare denials in one paragraph, and then expounding on those denials in another. Here is paragraph six of Curtis's statement of facts:
In late 2008, shortly after Berrum-Plata agreed to cooperate with the FBI, and after he was provided a copy of the admonishment referenced above, Berrum-Plata conducted an unauthorized narcotics transaction in Mexico. [Curtis Decl. ¶ 7.]
(Def.'s Stmt. ¶ 6.) In paragraph six of his response, Berrum-Plata merely states, "[p]laintiff denies the allegations of paragraph six." (Pl.'s Resp. at ¶ 6.) He then gives a lengthy narrative response to the same paragraph - without any record citations - later in his brief:
Further responding to paragraph six, Plaintiff affirmatively states that he went to McAllen, TX, for the purpose of meeting drug traffickers and to see where they would send drugs from. Agent Curtis knew that Plaintiff was making this trip. The drug dealers were to pay $100/pound for brokering a marijuana transaction. When he returned to Chicago, he was given $5, 000.00 by the dealers. Plaintiff took the $5, 000.00 to Agent Curtis to show him that the persons he was informing on were in fact drug dealers and that he had been working as directed. Agent Curtis reimbursed Plaintiff in cash for the cost of his bus ticket. Also, upon information and belief, Agent Curtis was in communication with other FBI or Drug Enforcement Administration or other agents while Plaintiff was in McAllen, TX. During the trip to McAllen, Plaintiff never went to Mexico.
(Pl's Resp. ¶ 30.)
We held a status hearing on April 30, 2014, as we had previously contemplated. During that hearing, we gave Curtis leave to file a reply brief in support of his summary-judgment motion, and gave Berrum-Plata an opportunity to file a sur-rely. In particular, we asked the parties to address whether Curtis could revoke his support for Berrum-Plata's SPBP status at will, or if he could only do so for cause. The government addressed this issue in its reply brief, and also moved to strike the plaintiff's Local Rule 56.1 Statement for the deficiencies we just identified. Berrum-Plata did not file his sur-reply until June 26, 2014, almost a month after it was due. In his memorandum, he asks us to disregard Curtis's motion to strike as beyond the scope of the briefing. We decline to do so. First, we did not direct the parties to discuss the "at will" issue only, and nothing else. Curtis was entitled to address the problems with Berrum-Plata's Local Rule 56.1 statement in his reply brief. Second, Berrum-Plata's attorney ignored Local Rule 56.1's requirements at his peril. See Petty v. City of Chicago, - F.3d -, 2014 WL 2568264, *4 (7th Cir. June 9, 2014) (slip op.) ("We have consistently and repeatedly upheld a district court's discretion to require strict compliance with ...