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Romero-Arrizabal v. Ramos

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

September 8, 2017



          JUDGE JOHN J. THARP, JR.

         For the reasons set forth below, the defendants' motion to dismiss [58] is granted. The amended complaint is dismissed without prejudice. Plaintiff is given leave to replead on or before October 6, 2017.


         Plaintiff Francisco Alberto Romero-Arrizabal brings his Amended Complaint pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that the defendants, all U.S. Immigration and Customs Enforcement (“ICE”) officers, violated his First and Eighth Amendment rights while he was in their custody. Specifically, Romero-Arrizabal alleges that ICE officers violated his First Amendment right to file grievances by “threatening physical harm and intimidating Plaintiff into withdrawing his grievance” and the Eighth Amendment's prohibition on cruel and unusual punishment by “abandoning Plaintiff in the back of [a] van under extreme conditions.” Amended Complaint (“Compl.”) at ¶ 20, 24, ECF No. 43. Defendants Fernando Ramos and Officer Rangel[1] have moved to dismiss the Amended Complaint in its entirety.

         As it must on a motion to dismiss, the Court accepts the well pled facts in the complaint as true and draws all permissible inferences in favor of the plaintiff. Agnew v. NCAA, 683 F.3d 328, 334 (7th Cir. 2012). On July 30, 2014, plaintiff Francisco Alberto Romero-Arrizabal, while in ICE custody, was transported to the “Broadview Service Staying ICE facility”[2] with approximately ten other detainees. Compl. ¶ 9. Upon arrival, while the other inmates were unloaded from the transport van, Romero-Arrizabal was left shackled in the van for 30 to 40 minutes under extreme temperatures without water leading to unspecified “permanent” injuries. Id. at ¶ 10-12. After the incident, Romero-Arrizabal filed a grievance against the ICE officers[3]

         who left him in the van. Id. at ¶ 13. In response to his filed grievance, Romero-Arrizabal alleges that he was retaliated against, threatened physically, and intimidated by ICE Supervisor Fernando Ramos, Deportation Officer Rangel, “and/or John Does 1-4.” Id. at ¶ 14. On January 21, 2015, “Ramos, Rangel and/or John Does 1-4” misrepresented the status of his Board of Immigration Appeals case to improperly obtain Romero-Arrizabal's signature on a deportation order. Id. at ¶ 15. When Romero-Arrizabal refused to sign the order “Ramos, Rangel and/or John Does 1-4” continued to threaten and intimidate him. Id. at ¶ 16.

         Romero-Arrizabal filed this suit against Ramos, Rangel, and five John Doe ICE officers on December 22, 2015, claiming the van incident violated his Eighth Amendment rights while the retaliation and intimidation violated his First Amendment rights. Defendant Ramos moved to dismiss Romero-Arrizabal's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on March 3, 2017. Defendant Rangel joined the motion without raising further arguments. See ECF No. 58.


         To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). A plaintiff does not need “detailed factual allegations, ” but more than “labels and conclusions” and “a formulaic recitation of the elements of a cause of action” are required. Twombly, 550 U.S. at 555. Determining whether a complaint plausibly states a claim for relief is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. (quoting Fed. Rule Civ. P. 8(a)(2)).

         I. First Amendment Claim

         Romero-Arrizabal's complaint fails to state a claim that the defendants violated Romero-Arrizabal's First Amendment rights. While Romero-Arrizabal alleges that “Defendants Ramos, Rangel and/or John Does 1-4” subjected him to physical threats and intimidation, there is nothing in his complaint-or response brief-that sufficiently ties any threats or intimidation to Ramos. See Compl. ¶ 14; see also Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1986) (a successful § 1983 claim requires “[a] causal connection, or an affirmative link, between the misconduct complained of and the official sued”). While a plaintiff need not provide detailed factual allegations, see Twombly, 550 U.S. at 555, Romero-Arrizabal's failure to tie any action to the defendants personally results in statements that are conclusory rather than factual. See Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (finding that allegations that “one or more of the Defendants” had engaged in acts depriving the plaintiff of his constitutional rights was “vague phrasing, which does not adequately connect specific litigants to illegal acts”). Further, there is nothing in the complaint that indicates what Ramos said or did that constituted a threat or intimidation, so the complaint fails to provide sufficient notice of the allegations against him. See Id. at 581. For example, it is unclear if Ramos himself directly attempted to obtain the signature on Romero-Arrizabal's deportation order, ordered a subordinate to do so, or had nothing to do with it whatsoever.

         Romero-Arrizabal argues that he requires discovery to determine “the identity and all the specific activities of each individual actor.” Resp. at 6. Pretrial discovery has been allowed in situations where the victim lacks knowledge that is in the hands of the defendant, such as where circumstances make it impossible for the plaintiff to identify the injuring party. See Billman v. Indiana Dep't of Corr., 56 F.3d 785, 789 (7th Cir. 1995) (“ If a prisoner makes allegations that if true indicate a significant likelihood that someone employed by the prison system has inflicted cruel and unusual punishment on him, and if the circumstances are such as to make it infeasible for the prisoner to identify that someone before filing his complaint, his suit should not be dismissed as frivolous.”); Santiago v. Walls, 599 F.3d 749, 759-60 (7th Cir. 2010) (“Mr. Santiago cannot know for certain what Warden Wells knew without discovery.”). Although Romero-Arrizabal may not have all the facts, he should know more than he has pled here. How many people were present during the alleged acts of intimidation? Were Ramos or Rangel personally present during the alleged events? Were the officers who intimidated him the same as the ones who attempted to improperly obtain his signature on the deportation order? The Court does not require Romero-Arrizabal to be able to identify all the parties involved in the alleged conduct, but he does need to do more to give the Court some idea of the factual basis for his claims. As written, the complaint does nothing more than raise the mere possibility that one or more defendants violated Romero-Arrizabal's First Amendment rights. For that reason, Count I is dismissed without prejudice.

         II. Eighth Amendment Claim[4]

         In prisons, the “unnecessary and wonton infliction of pain” constitutes cruel and unusual punishment forbidden by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 103 (1976). Prisoners are entitled to conditions that meet “the minimal civilized measure of life's necessities.” Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997) (quoting Farmer v. Brennan, 511 U.S. 825, 843 (1994)). Conditions “may be harsh and uncomfortable without violating the Eighth Amendment's prohibition on cruel and unusual punishment.” Id. A claim of constitutionally inadequate confinement requires a two-step analysis: (1) “whether the conditions at issue were sufficiently serious so that a prison official's act or omission result[ed] in the denial of the minimal civilized measure of life's necessities;” and (2) “whether prison officials acted with deliberate indifference to the conditions in question.” Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. ...

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