MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
In this civil rights action, Plaintiff Gerardo Vazquez-Mentado (“Plaintiff’) asserts claims against various members of the U.S. Customs and Border Protections’s Office of Border Patrol (“USBP”) arising out of his arrest and detention on suspicion of being an alien illegally present in the United States. See generally Dkt. No. 43 (“Second Amended Complaint”). Presently before the Court is Buffalo Sector Chief Patrol Agent Kevin Oaks’s (“Oaks”) Motion to Dismiss Plaintiffs Fourth Amendment
II. BACKGROUND
The parties are presumed to be familiar with the background of this case. For a complete statement of Plaintiffs allegations and claims, reference is made to the Second Amended Complaint or to the Court’s Memorandum-Decision and Order of May 28, 2013. Dkt. No. 41 (“May Order”). Plaintiff, a United States citizen, alleges that he was pulled over, arrested, and detained for a number of hours by USBP Buffalo Sector agents despite producing a valid New York driver’s license. See generally Second Am. Compl.; May Order. The May Order denied a Motion to dismiss filed by the two named arresting agents but granted that Motion without prejudice as to Oaks, finding that the allegations regarding Oaks’s involvement were too conclusory. See May Order at 17-18; First Am. Compl.; Dkt. No. 33. Plaintiff then filed the Second Amended Complaint and Oaks filed the present Motion, which argues that the factual allegations remain insufficient. See Dkt. No. 51-1 (“Memorandum”). Plaintiff filed the Response and Oaks a Reply. Dkt. No. 61 (“Reply”).
III.LEGAL STANDARD
To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, 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,
IV. DISCUSSION
A. Supervisory Liability under Bivens
A defendant is liable under Bivens only where she is “personally involved in the claimed constitutional violation.” Arar v. Ashcroft,
However, the Supreme Court held in Iqbal that, at least where the constitutional violation is premised on discriminatory intent, “purpose rather than knowledge” is required for an “official charged with violations arising from his or her superintendent responsibilities.” Iqbal,
B. Policy or Practice
A supervisor may be liable under Bivens where she “created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom,” Colon,
1. Arrest-Incentivizing Policy
Plaintiff alleges that Chief Oaks instituted and/or continued the Reward Policy, which rewards USBP Buffalo Sector agents with cash, vacation time, and gift cards for high arrest numbers but not for the legality of arrests. Second Am. Compl. ¶¶ 58-61. See generally Report. As evidence that the rewards were linked to arrest numbers, Plaintiff asserts that the only statistic tracked by the USBP Buffalo Sector was arrests, which were recorded daily and monitored closely. Second Am. Compl. ¶ 59 (citing Report at 8). It is entirely plausible that rewards were given out based on the only monitored and recorded performance statistic.
As evidence that rewards were not tied to arrest totals, Oaks points to the Report’s acknowledgment that: (1) from 2008 to 2010, there was an inverse correlation between total annual cash rewards issued and arrest numbers; and (2) the claims of USBP Buffalo Sector agents and senior personnel that the awards were handed out based on general “quality of work” and that no set reward criteria existed. See Mem. at 12 (citing Report at 5-7). While both may bear upon the overall weight of the evidence, neither is sufficient to render Plaintiffs allegations implausible. Unrelated external circumstances, such as fewer illegally present aliens or USBP agents, might lead to lower overall arrest totals even as total annual rewards increased.
2. Policy-Caused Illegal Arrests
Plaintiff contends that, as a result of the Reward Policy, “twelve U.S. citizens, and 278 other lawfully present persons,” including a U.S. citizen who produced a valid state driver’s license, were arrested by Rochester
Finally, Oaks contends that even if these arrests were without probable cause, Plaintiff has failed to sufficiently allege that they were caused by the Reward Policy. But the causal link between the Reward Policy and the illegal arrests is founded on the reasonable and well accepted proposition that you get what you pay for. It is altogether plausible that some causal relationship exists between: (1) a policy that exclusively or primarily rewards high arrest numbers; and (2) a number of ensuing arrests without probable cause — alas, where one thing (making arrests) is rewarded and another (avoiding arrests without probable cause) is not, law enforcement officers will tend to do more of the former and less of the latter. See
3. Causal Link to Plaintiff’s Arrest
Oaks argues that Plaintiff has not alleged that the Reward Policy led to Plaintiffs arrest. See Reply at 4. But a holistic reading of the Second Amended Complaint reveals just such an allegation. See Second Am. Compl. ¶¶ 19, 22-23, 25, 29-30, 35-36, 45, 48, 49 (alleging that Plaintiff was arrested without probable cause); 57-59 (describing the Reward Policy); 65 (alleging that Oaks promulgated policies, including the Reward Policy, which resulted in the “violations set forth herein”). Moreover, Plaintiff alleges in his Response that Oaks “paid [agents] extra for the arrests they did make” and that the “[Reward [P]olicy resulted in [Plaintiffs] arrest.” Resp. at 8; see also Canadian St. Regis Bank of Mohawk Indians v. New York, No. 82-CV-0783,
Oaks responds that even if Plaintiff has alleged a causal relationship between the Reward Policy and his arrest, he has not done so sufficiently. Oaks notes that all of the arrests to which Plaintiff points were performed by agents working out of the USBP Rochester station, not the Oswego station out of which the USBP officers who arrested Plaintiff worked. See Mem. at 14. According to Oaks, the USBP Buffalo Sector is comprised of six stations that span a total of 450 miles, 25 counties, and two states. See id. at 7, 9-10. He thus implies that the putative tendency of Rochester agents to arrest without probable cause has little bearing on the tendency of Oswego agents to do so. But even if the Court were to take judicial notice of the size and makeup of the USBP Buffalo Sector, Plaintiffs causation allegations would suffice. It is entirely plausible that, if officers in one USBP Buffalo Sector station were induced by the Reward Policy to frequently arrest without probable cause, officers in another were as well. While some geographical areas may be so disparate that misconduct by officers in one has no bearing on misconduct in the other, see Aguilar,
C. Failure to Train and/or Supervise
The second basis for Plaintiffs claim against Oaks is premised on Oaks’s putative failure to supervise and/or train. See Resp. at 5 (noting that the second ground for the claim against Oaks is that his “supervisory and training practices, in particular his response to a prior similar incident, led to [Plaintiffs] arrest.” (citing Second Am. Compl. ¶¶ 50-56, 62-64)); Resp. at 10 (describing Plaintiffs claim as a “TRAINING/SUPERVISION CLAIM”).
Claims premised on putatively deficient supervision and/or training are generally analyzed pursuant to the deliberate indifference Colon factor. See Davis v. City of New York,
“A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.” Connick v. Thompson, — U.S. -,
Plaintiff alleges that, despite being aware of a pattern of unconstitutional arrests, Oaks either trained and supervised, or failed to train and supervise, the officers who arrested Plaintiff “in a manner adequate to prevent” Plaintiffs unconstitutional arrest. Second Am. Compl.
¶ 62. For many of the same reasons discussed supra, Plaintiff has met the plausibility standard. Plaintiff alleges that his arrest was illegal, in part, because: (1) he presented a valid driver’s license; and (2) the arresting agents made no efforts to ascertain the validity of his license. See generally Second Am. Compl.; May Order. As discussed supra, Plaintiff has pointed to one other incident where USBP Buffalo Sector agents committed the same putative error. See May Order at 16. While this one incident might not suffice to demonstrate a pattern of similar constitutional violations by untrained or unsupervised employees, Plaintiff has, as discussed supra, also pointed to a host of putatively illegal arrests involving other errors arguably at issue in his own arrest, including the presumption that Hispanic names or accents indicate illegal presence, the placement of a burden on a suspect to provide documentation affirmatively demonstrating legal presence, and overreliance on incomplete and inadequate immigration databases. See generally May Order; Second Am. Compl. (discussing the alleged circumstances of Plaintiffs arrest). Plaintiff has also sufficiently alleged that Oaks was aware of these arrests; he contends that all USBP Buffalo agents completed “1-44 forms” regarding the facts giving rise to
Oaks correctly notes that Plaintiff has not fleshed out precisely what training or supervision should have been provided. See Mem. at 13-15. But he need not do so now. The pattern of similar putatively illegal arrests — all of which appear, on their face, to be remediable with proper supervision or training' — combined with Oaks’s knowledge of the facts underlying those arrests, is sufficient to plausibly suggest that Oaks was deliberately indifferent. Moreover, Oaks’s mental state with respect to the Reward Policy bears upon his deliberate indifference with respect to the supervision and training claim: his institution and/or continuation of a policy that contributed to many of the illegal arrests at issue suggests that, at a minimum, he may have been deliberately indifferent to the role inadequate training and supervision played in those arrests.
The viability of Plaintiffs policy theory weighs against dismissal of Plaintiffs training and/or supervision theory for another reason: the Reward Policy and Oaks’s putative supervisory and/or training shortcomings are not necessarily distinct wrongs. It may well be that the interaction of the two led to the alleged pattern of unconstitutional arrests that culminated in Plaintiffs.
D. Qualified Immunity
Oaks also argues that Plaintiffs claims against him should be dismissed on qualified-immunity grounds. The doctrine of qualified immunity protects government officials from liability for civil damages as long as their conduct does not “violate clearly-established rights of which an objectively reasonable official would have known.” Thomas v. Roach,
“no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant! ]” to believe that he was acting in a fashion that did not clearly violate an established federally protected right.
Robison v. Via,
Oaks first argues that he is entitled to qualified immunity because his conduct did not violate Plaintiffs constitutional rights. See Mem. at 16-17. As discussed supra, the Court finds that Plaintiff has sufficiently alleged that it did. See Golino v. City of New Haven,
Oaks next asserts that no objectively reasonable government official could know that the Reward Policy “would necessarily lead to constitutional violations.” Mem. at 18; see also Reply at 9-10. For the reasons discussed supra, the Court finds that a jury might well determine that it was unreasonable for an official to conclude that a reward policy incentivizing only high arrest numbers would not lead to unconstitutional arrests — particularly where that official was made aware of a host of ensuing arrests without probable cause. As to the training and supervision claim, Oaks argues only that he acted reasonably because “the 1-44 documentation policy ... [was] instituted ... to create greater accountability and oversight.” Mem. at 18. But the Court cannot conclude that the mere introduction of additional reporting conclusively demonstrates the reasonableness of Oaks’s conduct. Moreover, Plaintiff does not allege that the introduction of the 1-44 reports was actionable or otherwise problematic. See Resp. at 14. Rather, he argues that the reports made Oaks aware of the host of putatively illegal arrests his subordinates were performing and the training and/or supervision deficiencies responsible for those arrests. See id. at 14-15. For the reasons discussed supra, the Court cannot conclude that, as a matter of law, Oaks acted reasonably in failing to provide necessary training or supervision despite that knowledge.
E. Declaratory Relief
Oaks also seeks dismissal of Plaintiffs claims against him to the extent they seek declaratory relief. See Mem. at 19; see also Higazy v. Templeton,
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Motion (Dkt. No. 51) to dismiss is GRANTED in part and DENIED in part; and it is further
ORDERED, that, to the extent it seeks dismissal of Plaintiffs Fifth Amendment Bivens claim and claim for declaratory relief, the Motion (Dkt. No. 51) to dismiss is GRANTED; and it is further
ORDERED, that the Motion (Dkt. No. 51) to dismiss is otherwise DENIED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Notes
. The introductory section of the Second Amended Complaint also references a Fifth Amendment Bivens claim. Second Am. Compl. ¶ 2. Plaintiff included this claim in his original Complaint but dropped it from his First Amended Complaint. See Dkt. No. 1 ¶¶ 2, 59. See generally Dkt. No. 26 ("First Amended Complaint”). However, this claim is not included in the section of the Second Amended Complaint enumerating Plaintiff's causes of action, see Second Am. Compl. ¶¶ 70-73, and Plaintiff acknowledges that this claim was "inadvertently re-inserted” and "will be deleted from the next amended complaint.” Dkt. No. 57 ("Response”) at 1 n. 1. The Fifth Amendment Bivens claim against Oaks is therefore dismissed.
. Bivens v. Six Unknown Named Agents,
. The Court may consider the Report because it was incorporated by the Second Amended
. Moreover, changes in the structure of the Reward Program itself might lead to less overall arrest incentivization even as the total reward amount increased.
. Oaks also suggests that Plaintiff's allegation that Oaks established the Reward Policy is purely conjectural. See Reply at 3-4. This is not so. The Report provides historical reward amounts indicating that the Reward Program likely began in 2003. See Report at 5-7. Plaintiff alleges, and provides a supporting press release indicating, that Oaks became Chief Patrol Agent some time before 2009. See Second Am. Compl. ¶ 53; id. Ex. E. Thus, it is entirely plausible that Chief Oaks was the Chief Patrol Agent in 2003. It is also entirely plausible that if he was, he, as the head of the USBP Buffalo Sector, established the Reward Policy.
Moreover, even if Chief Oaks did not establish the Reward Policy, it indisputably continued during his tenure. As noted supra, “[a] supervisory official may be liable [not only] because he or she created a policy or custom under which unconstitutional practices occurred, [but also because he or she] allowed such a policy or custom to continue.” (quotation marks and citation omitted). Scott v. Fischer,
.As discussed infra, the Rochester station is part of the USBP Buffalo Sector.
. Indeed, even the most xenophobic and constitutionally problematic state laws have recognized that possession of a valid driver's license often negates probable cause. See Arizona v. United States, -U.S. -,
. The pagination corresponds to the page numbers assigned by ECF.
. For example, the combination of the incentive to arrest provided by the Reward Policy and inadequate training regarding driver’s licenses and immigration databases may have led to Plaintiff’s arrest.