OPINION
Angelica Davila (“Ms. Davila”) filed this suit alleging the violation of her rights under the Fourth and Fourteenth Amendments to the United States Constitution, actionable via 42 U.S.C. § 1983 and the authority of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
Pending before the Court are three (3) Motions to Dismiss for failure to state a claim, the first filed by Defendants Northern Regional Joint Police Board, Patrolman Andrew Bienemann, and Sergeant John Sicilia (collectively, “Local Police Defendants”), (ECF No. 60), the second filed by Defendant Allegheny County, (ECF No. 62), and the third filed by Defendant Special Agent Brianna Tetrault of United
I. BACKGROUND AND FACTS
When considering a Motion to Dismiss filed under Fed.R.Civ.P. 12(b)(6), the Court must accept as true the factual allegations in the Complaint and draw all reasonable inferences in the Plaintiffs favor. Malleus v. George,
The Plaintiff is a United States citizen who was born in Mexico.
On January 22, 2011, Ms. Davila drove with her friend Joel Garrete (“Mr. Garrete”) as a passenger to a Mexican grocery store in Pine Township, Allegheny County, Pennsylvania. Id. ¶¶ 28, 30. Around 5:45 p.m., Ms. Davila and Mr. Garrete drove out of the grocery store parking lot onto Perry Highway. Id. ¶ 29. Ms. Davila had driven approximately 250 feet on the highway when Defendant Officer Andrew Bienemann (“Officer Bienemann”), who had been sitting in his patrol car in a parking lot adjacent to the Mexican grocery store, pulled Davila over. Id. ¶¶ 31-35. Officer Bienemann informed Ms. Davila that he
After about twenty minutes, Officer Bienemann returned to Ms. Davila’s car and told her and Mr. Garrete that he was waiting for a call back from ICE. Id. ¶¶ 54-55. Eventually, Defendant Special Agent Tetrault (“Agent Tetrault”) returned Officer Bienemann’s call and asked to speak to Ms. Davila. Id. ¶ 57. Officer Bienemann gave Ms. Davila his cellular phone, and she provided Agent Tetrault with her name, date of birth, and country of origin. Id. ¶¶ 58-59. She also told Agent Tetrault that she was a lawful permanent resident of the United States. Id. ¶ 60.
At the local police station, Ms. Davila asked why she was being held, and was told that ICE had instructed Officer Bienemann to detain her. Id. ¶ 73. Ms. Davila advised local police that she was legally present in the United States, worked in Pittsburgh, and had applied for a certificate showing her United States citizenship. Id. ¶ 74. She and Mr. Garrete were then held at the police station for approximately fifteen to twenty minutes. Id. ¶ 85. Meanwhile, Agent Tetrault signed detainers for Ms. Davila and Mr. Garrete and faxed them to the police station. Id. ¶ 77. The detainer for Ms. Davila misspelled her last name as Devila-Gareoa.
After taking Ms. Davila and Mr. Garrete to the Jail, Officer Bienemann contacted his local police dispatcher, who told him that ICE Special Agent Jason Kenwood (“Agent Kenwood”) wished to speak with him. Id. ¶ 87. Agent Kenwood asked Officer Bienemann to view a photo which Kenwood sent to Bienemann on his e-mail and to confirm to Kenwood whether or not the photo was that of Ms. Davila. Id. ¶ 88. Officer Bienemann did so and advised Agent Kenwood that the woman in the photo was Ms. Davila. Id. ¶¶ 89. Agent Kenwood told Officer Bienemann that a mistake had been made regarding Ms. Davila’s identity and that she may have been incorrectly detained. Id. ¶ 90. Agent Kenwood stated that he would contact Agent Tetrault and notify her of the error. Id. ¶ 91. At 9:50 p.m., Officer Bienemann received confirmation from ICE that Ms. Davila was legally present in the United States. Id. ¶ 92. However, he took no steps to have Ms. Davila released from the Jail. Id. ¶ 93. At 7:30 a.m. the next morning, Ms. Davila was told that ICE had “changed its mind,” and she was released from the Allegheny County Jail. Id. ¶ 94, 120.
Ms. Davila filed suit in this Court on January 15, 2013 against the above-named Defendants. She uses 42 U.S.C. § 1983 to bring the following claims against the Local Police Defendants in their official and individual capacities and Allegheny County:
1) Against Officer Bienemann, Ms. Davila asserts two Fourth Amendment “unreasonable seizure” claims, one based on her claim that Officer Bienemann lacked probable cause to detain her, and the other based on her claim that Officer Bienemann caused an unlawful immigration detainer to issue against her. Ms. Davila also brings a Fourteenth Amendment equal protection claim against Officer Bienemann asserting that he detained her based on her Hispanic ethnicity, and Fourth Amendment “unreasonable seizure” and “false imprisonment” claims on the basis that Officer Bienemann unlawfully imprisoned her on an immigration detainer. Finally, Ms. Davila brings a Fourth Amendment “false imprisonment” claim against Officer Bienemann, maintaining that he owed her a duty to inform the Allegheny County Jail that she had been incorrectly detained.
2) Against Sergeant Sicilia, Ms. Davila brings a Fourth Amendment “unreasonable seizure” claim for approving her transfer to the Allegheny County Jail on the immigration detainer.
3) Against the Northern Regional Joint Police Board, Ms. Davila asserts two Fourth Amendment “unreasonable seizure” claims, on the basis that both her allegedly unlawful detention and her transfer to the Allegheny County Jail resulted from an unconstitutional custom, policy, or practice of the Police Board. Ms. Davila also brings a Fourteenth Amendment equal protection claim against the Police Board, on the basis that she was detained in the first instance because of her Hispanic ethnicity as a result of an unconstitutional custom, policy, or practice of the Police Board.
4) Against Allegheny County, Ms. Davila brings Fourth Amendment “unreasonable seizure” and “false imprisonment” claims, on the basis that the Allegheny County Jail unlawfully imprisoned her on an immigration detainer. She also asserts a Fourth Amendment “false imprisonment” claim against the County, alleging that the County Jail had a duty to release her. Finally, Ms. Davila brings a Fourteenth Amendment due process claim against the County, on the grounds that the County Jail violated her right to due process by imprisoning her on a detainer issued on less than probable cause, failing to give her notice and an opportunity to be heard, and imprisoning her on a facially deficient detainer.
Ms. Davila uses the authority of Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
II. LEGAL STANDARD (MOTION TO STRIKE)
Under Fed.R.Civ.P. 12(f), a court may strike from a pleading any redundant, immaterial, impertinent, or scandalous matter. Immaterial matter has no essential or important relationship to the claim for relief. Conklin v. Anthou,
III. DISCUSSION
The Local Police Defendants move to strike paragraphs 128 through 140 of the SAC. The allegations contained in them concern an alleged pattern of constitutional violations by Northern Regional Joint Police officers. The Plaintiff claims that in 2010 and 2011, Police Board officers contacted ICE eight times to report fifteen persons, including Ms. Davila and Mr. Garrete, on the suspicion that they were aliens subject to deportation. SAC ¶ 130. According to the SAC, all fifteen of these people were Hispanic. Id. ¶ 131. Each instance involved a contact made to ICE after a traffic stop, during which Police Board officers asked every person in the vehicle for identification. Id. ¶¶ 133-34. The Defendants contend that some of the stops referenced in the SAC occurred after the stop at issue in this case, and therefore cannot be considered in determining whether the Police Board had a custom, practice, or policy of stopping Hispanic drivers and questioning them about their immigration status based on their ethnicity.
The Court is not convinced by the Defendants’ argument. In Beck v. City of Pittsburgh, the Third Circuit considered, as part of evidence of a policy or custom for purposes of § 1983 municipal liability, an incident that occurred after the core operative facts of the case.
IV. LEGAL STANDARD (MOTION TO DISMISS)
To survive a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6), a Complaint must allege “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
V. DISCUSSION
Section 1983 provides a vehicle to assert claims for violations of an individual’s federal constitutional rights. Dique v. N.J. State Police,
In Bivens, the Supreme Court recognized an implied private right of action for damages against federal officials who have violated a person’s Fourth Amendment rights.
Whether a constitutional violation is claimed to have occurred is also a prerequisite for a § 1983 or Bivens defendant’s assertion of qualified immunity. Wilson v. Layne,
A. Claim Against Sergeant Sicilia
The Plaintiff names Sergeant Sicilia in Count II of the SAC, alleging that by approving Ms. Davila’s transfer to the Allegheny County Jail, he committed an unreasonable seizure in violation of the Fourth Amendment. SAC ¶ 174. However, the Plaintiff only mentions Sergeant Sicilia twice in the factual allegations of the SAC. She claims that he approved Agent Tetrault’s request for Officer Bienemann to transport her and Mr. Garrete to the Allegheny County Jail, asked her and Mr. Garrete to step out of her car, and asked her whether there was someone she could call to pick up the car. Id. ¶¶ 69-70. To impose liability on an individual § 1983 defendant, a plaintiff must show that the defendant either individually participated in the alleged constitutional violation or approved of it. C.N. v. Ridgewood Bd. of Educ.,
Ms. Davila next suggests that Sergeant Sicilia is liable in his supervisory capacity. A supervisor may be personally liable under § 1983 if he “participated in violating the Plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates’ violations.” A.M. v. Luzerne Cnty. Juvenile Det. Ctr.,
The Plaintiffs claims against Officer Bienemann are more extensive and plausible. Ms. Davila does not assert that her initial traffic stop was unlawful. She concedes that because her headlights were off, Officer Bienemann possessed the requisite reasonable, articulable suspicion required under the Fourth Amendment for such a stop. Illinois v. Wardlow,
In response, Officer Bienemann contends that he developed a reasonable suspicion of criminal activity based on his communication with Mr. Garrete, which revealed that Mr. Garrete was unlawfully present in the United States.
The facts of this case are different from those of that case in several important respects. In Baldonado-Garcia, the driver of the seized vehicle produced a Pennsylvania driver’s license, his proof of registration, and insurance, just as Ms. Davila did. Id. at *1. However, ICE was never contacted about the driver after he produced such identification. Id. The State Police Communications Center only proceeded to investigate the immigration status of the passenger, who provided a Mexico Consular identification card, but admitted he had no work authorization and was non-responsive to questions about the validity of his presence in this country.
In contrast, Ms. Davila was detained at the side of the road for a full two hours, then detained for approximately another hour as she was taken to the local police station and then the Allegheny County Jail. In Baldonado-García, the driver was issued a citation for the initial traffic offense. Id. According to the SAC, Officer Bienemann never issued such a citation to the Plaintiff. Further, here, the Plaintiff was abundantly cooperative, and everything she said and did ran counter to the conduct of the defendant in Baldonado-García. These important distinctions demonstrate the necessity, in determining whether there was a basis for reasonable suspicion and whether a traffic stop detention has morphed into an arrest, of considering the totality of the circumstances of each case. United States v. Arvizu,
Based on the factual allegations in the SAC, this Court cannot at this point conclude that Officer Bienemann’s investigatory stop of Ms. Davila did not become an arrest. At the time of an arrest, a police officer must possess probable cause — reasonably trustworthy information or circumstances within the officer’s knowledge, sufficient to warrant a person of reasonable caution to conclude that an offense has been committed by the person being arrested. Beck v. Ohio,
The Plaintiff also avers that Officer Bienemann engaged in selective enforcement, or “racial profiling,” in investigating her immigration status during a routine traffic stop. Selective enforcement is a violation of the Equal Protection Clause of the Fourteenth Amendment. Whren v. United States,
Officer Bienemann acknowledges Ms. Davila’s Hispanic ethnicity. ECF No. 61, at 14. Ms. Davila has also made a general allegation that, in investigating her immigration status, Officer Bienemann treated her differently than he would have treated a non-Hispanic person. SAC ¶¶ 179-183. She supports this allegation with statistics showing that in 2010 and 2011, Northern Regional Joint Police Board officers contacted ICE eight times pursuant to traffic stops to report fifteen people, all of whom were Hispanic, as suspected unlawfully present aliens. SAC ¶¶ 130-31, 133. According to the SAC, Officer Bienemann was involved in three of the eight traffic stops. Id., ¶ 132. Ms. Davila has satisfied her baseline pleading requirements for discriminatory effect. When stopped, Ms. Davila provided proper identification in the form of a Pennsylvania driver’s license, proof of registration, and insurance. While her passenger admitted to being unlawfully present in the United States, it appears that Officer Bienemann had little (if any) legitimate reason, based solely on his request for identification and his questioning of Mr. Garrete, to suspect that Ms. Davila was also unlawfully present.
The Plaintiff asserts another claim against Officer Bienemann under the Fourth Amendment for false imprisonment, suggesting that once he learned from ICE Agent Kenwood that Ms. Davila was incorrectly detained, he had a duty to inform the Allegheny County Jail of the situation, since among other things, he was the person who delivered her there and secured her in custody. He responds that he simply had no constitutional obligation to do so. Several courts of appeal have held that an officer’s failure to release an individual after the officer knew or should have known that the person was wrongfully detained gives rise to a cause of action under § 1983. See Thompson v. Olson,
While Officer Bienemann had no authority to unilaterally release Ms. Davila once she was in the custody of the Allegheny County Jail, the Fifth Circuit has held that an arresting officer who failed to disclose credible exculpatory evidence, resulting in the plaintiffs continued confinement, could be held liable under § 1983. Sanders v. English,
The Third Circuit’s opinion in Schneyder v. Smith is also instructive on this point. There, a prosecutor secured a
According to the SAC, Officer Bienemann learned only about an hour after he transported Ms. Davila to the Jail that ICE had made a mistake about her identity, and that she was lawfully present in the United States and should not be held. Despite having just personally detained and transported Ms. Davila to the Jail, Officer Bienemann never reported this information to the Jail, or to anyone else, and Ms. Davila remained incarcerated until the following morning. The fact that Agent Kenwood told Officer Bienemann that he (Agent Kenwood) would tell Agent Tetrault of this turn of events is of no moment, as it was Officer Bienemann who had delivered Ms. Davila up to the Jail, and was plausibly in the best position to cause her release. The case law makes it plain that a police officer in the position that the SAC alleges Officer Bienemann was in cannot avoid liability by invoking the equivalent of an “it’s not my job” defense, particularly when no one claims that Agent Kenwood told Officer Bienemann that he (Kenwood) would cause ICE to contact the Jail and seek the Plaintiffs release.
Officer Bienemann next asserts that the Plaintiffs claims are barred because he is entitled to qualified immunity. The SAC satisfactorily suggests Officer Bienemann violated Ms. Davila’s Fourth Amendment rights to be free from unreasonable seizure and false imprisonment, as well as her right to equal protection under the law. Therefore, the first prong of the qualified immunity analysis— whether the officer’s conduct arguable violated the Plaintiffs constitutional rights— is settled for purposes of the Motion to Dismiss. In satisfaction of the second prong, all of these rights are well established. For purposes of whether a right is established, the question is whether the state of the law at the time gave the officer fair warning that his conduct was unconstitutional. Hope v. Pelzer,
Officer Bienemann also moves to dismiss all punitive damage claims against him. Punitive damages may be awarded in a § 1983 action where the defendant’s conduct is shown to be “motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade,
C. Claims Against the Northern Regional Joint Police Board
The Plaintiff seeks to hold the Northern Regional Joint Police Board constitutionally liable for her detention and imprisonment. While municipalities and other local government units may be sued directly under § 1983, they cannot be held liable for their employees’ actions on a respondeat superior theory. Monell v. Dep’t of Social Servs. of City of New York,
At the pleading stage, a claimant asserting § 1983 municipal liability must allege that a policy or custom of the
The SAC alleges that the Police Board has a custom or policy of reporting only certain persons suspected of being unlawfully present in the United States to ICE, has never trained its officers to avoid using race or ethnicity as the basis for questioning those they stop about their immigration status, and does use race or ethnicity for such reports. Ms. Davila suggests that because of and in furtherance of this custom or policy, Officer Bienemann questioned her about her immigration status, detained her for two hours, and reported her to ICE because of her ethnicity. The Supreme Court has recognized that “in limited circumstances, a local government’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for purposes of § 1983.” Connick v. Thompson, — U.S. -,
While the Plaintiff may face a high burden at trial, or perhaps at the summary judgment stage, she has pled sufficient plausible facts to establish a claim for municipal liability. She has identified a specific unconstitutional custom or policy that Officer Bienemann allegedly followed, which she pleads was the moving force behind her stop, questioning, and detention. She has also pled a pattern of similar violations, alleging that in 2010 and 2011, Police Board officers contacted ICE eight times to report fifteen people suspected of being subject to deportation following traffic stops, all of whom were Hispanic. She also notes that notwithstanding her immediate production of the driver’s identification Officer Bienemann requested, and her substantial service as a pro bono interpreter for both Officer Bienemann and Agent Tetrault, Officer Bienemann nonetheless proceeded to hold her at length on the roadside. These are more than conclusory allegations referring to a generic or unspecified custom or policy, and they adequately provide notice to the Police Board of the policy, custom, or practice that Ms. Davila argues caused and extended a violation of her constitutional rights. Therefore, the Police Board’s Motion to Dismiss the Plaintiffs municipal liability claims is denied.
D. Claims Against Allegheny County
The Plaintiff also brings municipal liability claims against Allegheny County,
(d) Temporary detention at Department request. Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.
The Galarza court interpreted this regulation as a directive that once an ICE detainer has issued, the agency holding the individual must maintain custody for up to 48 hours, with weekends and holidays excluded.
The Plaintiff seeks to differentiate her pleading from that in Galarza by alleging that it is the Allegheny County Jail’s policy not only to detain anyone named in an immigration detainer, but to detain persons named in immigration detainers issued without probable cause. However, Ms. Davila provides no supporting facts indicating that the Jail has knowingly adhered to such a policy in her case or in other instances, or that it had any plausible basis to call into question the validity of the ICE detainer, Additionally, nothing in the SAC indicates that the Jail knew or should have known that Ms. Davila was being wrongfully detained until ICE instructed the Jail to release her the next morning, and the Jail complied. While probable cause that an individual is an alien not lawfully present in the United States must exist to issue a detainer, Babula v. INS,
E. Claims Against Agent Tetrault
The Plaintiff claims that Agent Tetrault violated her Fourth Amendment rights by issuing an immigration detainer for her without probable cause, and by failing to personally secure her release
The SAC references ICE documents showing that Agent Tetrault’s immigration status search for Ms. Davila yielded an Alien Registration Number, or A-number.
The Plaintiff argues that because the Defendant’s documents were not part of the SAC, they cannot be considered by the Court at the Motion to Dismiss stage. When ruling on a Motion to Dismiss, “courts generally consider only the allegations contained in the Complaint, exhibits attached to the Complaint, and matters of public record.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc.,
Whether Agent Tetrault had probable cause to believe that Ms. Davila would flee before a warrant was obtained is a closer call. The Third Circuit has provided little guidance as to when this prong of probable cause exists. Because immigration officers often make these determinations on the spot, without an opportunity to verify information or conduct a full-scale interview, courts generally defer to their judgment if there is some reasonable basis for the officer’s conclusion, see Contreras v. United States, 672 F.2d 307, 308 (2d Cir.1982), and courts have found probable cause to believe an individual was a flight risk in the face of a variety of factual situations during a traffic stop.
It is difficult, from the scant facts in the SAC, to conclusively discern whether Agent Tetrault did or did not have a reasonable basis to conclude that the Plaintiff might be flight risk. Agent Tetrault did not know or ask about Ms. Davila’s ties to the Pittsburgh community, nor did Ms. Davila provide any information about such ties. Ms. Davila produced a Pennsylvania driver’s license with a Pittsburgh area address to Officer Bienemann, but it is not pled that Agent Tetrault knew any of that. Ms. Davila emphasizes that she agreed to translate for Agent Tetrault,
Although it is not certain from the face of the SAC whether Agent Tetrault possessed the requisite probable cause to issue an immigration detainer for Ms. Davila’s arrest, the Court nonetheless concludes that she is entitled to qualified immunity for the claims asserted against her. Qualified immunity protects federal officers acting in their capacity who make mistaken judgments, unless the mistake demonstrates plain incompetence or knowing violation of the law. Hunter v. Bryant,
The facts alleged in the SAC demonstrate that Agent Tetrault could have reasonably believed that all of her actions in issuing an immigration detainer and requesting that the local arresting officer detain Ms. Davila were lawful. Based on the information Agent Tetrault did possess, along with the immediacy with which she was required to decide whether or not to detain Ms. Davila, the Court concludes that her actions in issuing a detainer for Ms. Davila and having Officer Bienemann transport her to the Allegheny County Jail were not so plainly incompetent or knowingly in violation of the law as to forfeit her claim of qualified immunity, particularly since she is entitled to the presumption that in making that decision, she acted in good faith. Bridge v. United States Parole Comm’n.,
Agent Tetrault is also entitled to qualified immunity on the Plaintiffs claim that she violated Ms. Davila’s Fourth Amendment rights by failing to secure her faster release from the Jail. Ms. Davila claims that Agent Tetrault had some information from which actual knowledge could be inferred that indicated that Ms. Davila was lawfully present in the United States, and therefore she had a duty to inform the Allegheny County Jail that Ms. Davila should be released. However, the results of the ICE records search were facially equivocal and she therefore also had information showing “out of status” status. An examination of the applicable ICE regulations also reveals that Agent Tetrault had no responsibility, as the officer who issued the detainer, to review her own determination to issue a detainer or to order a release. Instead, another ICE officer (here, Agent Kenwood) must independently review the warrantless arrest of an alien and determine whether there is prima facie evidence that the person was entering, attempting to enter, or present in the United States in violation of an immigration law. 8 C.F.R. § 287.3(a, b). The second officer must determine within 48 hours of the arrest whether the alien will be continued in custody or released. 8 C.F.R. § 287.3(d).
Less than two hours after Agent Tetrault issued the detainer for Ms. Davila, Agent Kenwood had conducted that independent review, confirmed Ms. Davila’s photo identity with Officer Bienemann, and notified local police that Ms. Davila was
VI. CONCLUSION
For the reasons stated, the Local Police Defendants’ Motion to Strike is denied, and all claims against Defendants Sergeant Sicilia, Allegheny County, and Agent Tetrault are dismissed with prejudice. The claims against Officer Bienemann and the Northern Regional Joint Police Board all survive. An appropriate order will follow.
Notes
. It is worthwhile noting that the SAC represents Plaintiffs third effort to set forth plausible constitutional claims against each of the Defendants, and in this case, the decisional process benefits from the briefing and argument of highly experienced counsel on all sides of the case. Thus, this case does not invoke the application of our Circuit's very accommodating rules regarding pleading by pro se litigants in certain civil rights actions. See Grayson v. Mayview State Hosp.,
. Also before the court is a Motion to Strike paragraphs 128 through 140 of the SAC as immaterial and impertinent, filed by the Local Police Defendants. The Court has considered the parties’ moving, opposition, and reply papers, and for the reasons that follow, the Court denies the Local Police Defendants’ Motion to Strike.
. It appears that at the time of the events in question, Ms. Davila was a United States citizen. A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled: (1) at least one parent of the child is a citizen of the United States, whether by birth or naturalization; (2) the child is under the age of 18 years; (3) the child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence, 8 U.S.C. § 1431(a). Ms. Davila’s father is a United States citizen, she moved to the United States when she was two years old, and she became a lawful permanent resident at the age of 16, while still in the custody of her parents. See Sec. Am. Compl. ¶¶ 18, 19, 21-23. Ms. Davila applied for a Certificate of Citizenship evidencing her citizenship on June 9, 2010, and the Certificate was issued to her on December 20, 2011 — approximately a month before the facts in this case occurred. Id. ¶ 24. The Certificate states that Ms. Davila became a citizen on April 30, 2001. Id.
. Agent Tetrault makes much of the fact that Plaintiff did not have with her, and produce, a Permanent Resident Card ("green card”), which would have shown that she was lawfully resident in the United States, as they claim she was legally obligated to do. ECF No. 66, at 11. The record at this point is unclear as to whether she had any such obligations if she was in fact and law a citizen of the United States.
. A copy of the detainer can be found at ECF No. 33-1, at 3. Ms. Davila’s given name is Angelica Elizabeth Davila Garza, in the Span
. The SAC pleads concurrent Bivens claims against the Local Police Defendants and Allegheny County. Bivens created a cause of action for violation of constitutional rights against only federal agents or officials acting under federal law, Bistrian v. Levi, 696 F.3d 352, 365-66 (3d Cir.2012). Because neither the Local Police Defendants nor Allegheny County are federal agents or officials or were acting under federal law, the Plaintiff stipulated at oral argument on the Motions to Dismiss that she does not assert any Bivens claims against those state Defendants.
. The SAC pleads concurrent § 1983 claims against Agent Tetrault. Section 1983 creates a claim for violation of constitutional rights only against a person acting under state law. Brown v. Philip Morris Inc.,
. See 8 C.F.R. § 287.7(a) — "Any authorized immigration officer may at any time issue a Form 1-247, Immigration Detainer — Notice of Action, to any other Federal, State, or local law enforcement agency. A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible ...”
. In our Circuit, at least in civil rights cases, a district court should not dismiss without affirmatively providing to the Plaintiff leave to amend. Grayson v. Mayview State Hosp., 293
. Under 8 U.S.C. § 1326, subject to certain enumerated exceptions, it is a crime for any alien who has been denied admission, excluded, deported, or removed from the United States, or has departed the United States while an order of exclusion, deportation, or removal is outstanding, to thereafter enter, attempt to enter, or be found in the United States.
. It is worth noting that the Second Circuit case on which Phillips relied in holding that an equal protection plaintiff is not required to identify actual instances of different treatment by similarly situated individuals at the pleading stage (DeMuria v. Hawkes,
. The Tenth Circuit has rejected the premise that once someone is identified by authorities as unlawfully present in the United States, anyone providing him with transportation for daily activities is also reasonably suspected of criminal activity. See United States v. De La Cruz,
. The SAC also pleads that the ball got rolling on Officer Bienemann’s traffic stop when he elected to monitor traffic activity while parked in a lot next to a grocery store focused on Mexican food. SAC ¶¶ 28-32. If, and if so how, that fact connects to his and his Department’s statistics regarding traffic stops (and ICE contacts) relative to Hispanic and non-Hispanic drivers has yet to be seen. Absent an ethnicity-neutral law enforcement justification for choosing that particular locale to monitor compliance with our Commonwealth’s traffic laws, it may be a fact that makes the Plaintiff’s custom and policy allegations all the more plausible.
. See Goodwin v. Metts,
. Under Officer Bienemann’s theory, if he personally knew that a judicial warrant was to be withdrawn right after he had delivered a person to the Jail, he had no obligation to do anything to communicate that to the Jail officials, or do anything to reverse the custody. The cases cited hold to the contrary. Further, there is nothing in the record revealing whether the Jail could have, without more, acted relative to the Plaintiff's custody solely on the say-so of ICE given that it was Officer Bienemann who had delivered her into custody there.
. Defendants appear to assert that Ms. Davila’s wrongfully spending overnight in the Jail after it was determined conclusively that there was no basis for her doing so was really not a big deal, and by definition could not be a compensable constitutional wrong. ECF No. 61, at 17-18. The Court disagrees on both counts.
. Any more than the Jail would have had a duty to go behind the facially valid document authorizing detentions in any other case. Under Plaintiff’s theory, the Jail would have a duty to independently verify that those issuing an order of detention actually had before them the underlying probable cause necessary to do so.
. An Alien Registration Number is the number issued by the Department of Homeland Security to an individual when she becomes a lawful permanent resident of the United States or attains other lawful, non-citizen status. 49 C.F.R. § 1570.3.
. See 8 U.S.C. § 1255a.
. Plaintiff cites to no authority for the proposition that Agent Tetrault was unreasonable in not taking Plaintiff's word for it.
. See United States v. Quintana,