Dae Eek Cho v. United States
687 F. App'x 833
11th Cir.2017Background
- Cho, a Korean national, overstayed a 1999 tourist visa and was later detained by ICE following a shoplifting arrest; she remained in ICE custody during removal proceedings in 2011–2012.
- Cho alleges multiple incidents during detention: unexplained transport and medical exam, poor holding conditions, delayed cancer treatment, an incident where ICE agents pushed her during a detainee fight, and an agent (Anthony Settle) brandishing a gun and threatening her after a court hearing.
- Cho alleges emotional distress, assault, battery, false arrest/false imprisonment, and denial of medical care; in February 2012 an immigration judge adjusted her status to lawful permanent resident.
- Procedurally, Cho sued under the FTCA (and earlier pro se pleadings included constitutional claims); the government moved for summary judgment arguing procedural bars and failure to state claims under Georgia law.
- Disputes during discovery: the government mailed interrogatory responses to addresses Cho had provided (government produced certificates of service); Cho filed motions to compel claiming nonreceipt. She also filed multiple motions for recusal/disqualification and notices of judicial misconduct.
- The district court granted summary judgment for the government (procedural bar under INA for false arrest/imprisonment, failure to show assault or sufficiently outrageous conduct for IIED under Georgia law). Cho appealed; the Eleventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to compel discovery | Cho: govt failed to respond to March 24, 2014 interrogatories; district court should compel responses | Govt: responses were mailed to addresses Cho provided (April 23, 2014); therefore discovery was produced | Denial affirmed — court did not abuse discretion; certificates show mailing to Cho’s then-address and Cho gave no timely address change proof |
| Recusal/disqualification of district judge | Cho: judge was biased, made prejudicial statements, and should be recused under 28 U.S.C. §§ 144 and 455 | Govt: no extrajudicial bias; alleged statements were rulings or procedural comments, not personal bias | Denial affirmed — Cho failed to file required affidavit for §144 and produced no extrajudicial evidence of bias under §455 |
| False arrest / false imprisonment claims | Cho: detained improperly during removal proceedings | Govt: claims are procedurally barred by INA (8 U.S.C. §1252(g)) | Affirmed — claims barred as matter of law |
| Assault / IIED / emotional distress | Cho: agents assaulted her and denial of care caused severe distress; seeks relief under FTCA and Georgia law | Govt: failed to show conduct meeting legal standards for assault or outrageousness; no physical impact for IIED under Georgia law | Affirmed — assault and IIED claims fail on the merits under Georgia law |
Key Cases Cited
- Holloman v. Mail-Well Corp., 443 F.3d 832 (11th Cir. 2006) (abuse-of-discretion standard for discovery rulings)
- United States v. Kelly, 888 F.2d 732 (11th Cir. 1989) (deference to district court’s discretionary choices)
- Lorisme v. INS, 129 F.3d 1441 (11th Cir. 1997) (liberal reading of pro se briefs)
- Murray v. Scott, 253 F.3d 1308 (11th Cir. 2001) (abuse-of-discretion standard for recusal review)
- Bolin v. Story, 225 F.3d 1234 (11th Cir. 2000) (objective test for §455 recusal)
- McWhorter v. City of Birmingham, 906 F.2d 674 (11th Cir. 1990) (recusal standard discussion)
- Jaffe v. Grant, 793 F.2d 1182 (11th Cir. 1986) (extrajudicial-source requirement for bias)
- Hamm v. Members of the Bd. of Regents, 708 F.2d 647 (11th Cir. 1983) (adverse rulings don’t establish pervasive bias)
- Goforth v. Owens, 766 F.2d 1533 (11th Cir. 1985) (dismissal for delay or contempt within district court discretion)
- Mirmehdi v. United States, 689 F.3d 975 (9th Cir. 2011) (immigrants’ constitutional remedies may differ from citizens)