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Alvarado v. United States

United States District Court, D. Arizona

March 19, 2015

Mario Alvarado, Plaintiff,
v.
United States of America; U.S. Border Patrol Agent M. Jarmon N235, in his individual and official capacity; U.S. Border Patrol Agent R. Husted N422, in his individual and official capacity; and U.S. Border Patrol Agent A. Rowe N538, in his individual and official capacity, Defendants.

ORDER

LESLIE A. BOWMAN, Magistrate Judge.

Pending before the court is the defendants' motion to dismiss pursuant to Fed.R.Civ.P 12(b)(5), filed on January 12, 2015, for failure to properly serve the United States. (Doc. 14) In the alternative, the defendants argue the complaint should be dismissed pursuant to Fed.R.Civ.P 12(b)(1) and 12(b)(6). (Doc. 14)

The plaintiff in this action, Mario Alvarado, claims his civil rights were violated when he was stopped and detained at a U.S. Border Patrol Checkpoint on Interstate 19. He alleges was detained for eight hours even though no drugs were ever found in his vehicle.

In the pending motion, the defendants argue the complaint should be dismissed because the plaintiff failed to properly serve the United States. They further argue the complaint fails to state a proper Bivins claim or a proper claim under the Federal Tort Claims Act.

Magistrate Judge Bowman presides over this action having received the written consent of all parties. (Doc. 24)

The motion to dismiss will be granted in part. Alvarado failed to properly serve the United States, but the court will extend the time for service in the interests of justice. Upon construing the complaint in the light most favorable to the nonmovant, the court concludes that Counts 1, 2, and 4 state proper claims. Count 3, however, fails to state a cognizable claim under the Federal Tort Claims Act.

Background

In his complaint, Alvarado describes several run-ins he has had with U.S. law enforcement. (Doc. 1) The first occurred on July 2, 2012, when he entered the country from Mexico. Id. While driving north on Interstate 19, Alvarado was stopped and detained at a U.S. Border Patrol checkpoint. Id. A drug-detection dog "allegedly alerted to the presence of illegal substances, " and the defendant agents, Jarmon, Husted, and Rowe, sent him to the secondary inspection station. Id. They did not find any drugs, but they held him for eight hours before releasing him. Id. At one point, the agents summoned an Arizona Department of Public Safety officer to the scene. Id. That officer cited Alvarado with providing false information to law enforcement and possession of an open container within the passenger compartment of a motor vehicle on a public highway. Id.

Alvarado again entered the United States from Mexico on August 20, 2012. Id. He was again detained at the Border Patrol checkpoint for an extended period of time "when the Border Patrol dog allegedly alerted to the presence of illegal substances." Id. Alvarado does not identify the agents that detained him. Id.

On August 30, 2012, a Border Patrol internal affairs investigator went to Alvarado's home hoping to speak with him. Id. Alvarado was not home at the time, but his wife later called the Border Patrol and spoke with an Agent Serrano. Id. The agent said he was investigating a matter concerning Border Patrol agents and Alvarado. Id. Serrano, however, would not discuss the matter with anyone but Alvarado, and Alvarado was not willing to speak with him. Id.

One month later on September 23, 2012, Alvarado was detained at the Port of Entry for one hour. Id. He was arrested and handcuffed because a computer code indicated he was armed and dangerous. Id. When the computer was checked again, a different code appeared, and Alvarado was released. Id. Alvarado does not identify the agents involved. Id.

On November 2, 2012, Alvarado was again stopped and detained at the Border Patrol checkpoint on Interstate 19. Id. Alvarado alleges he was assaulted by Border Patrol agents and suffered a broken toe. Id. He was transported to a hospital in Nogales, Arizona. Id. He was later taken to the Border Patrol station and released. Id. Alvarado does not identify the agents involved. Id.

On May 1, 2014, Alvarado filed a complaint in this court claiming the defendants' actions violated his civil rights. Counts 1 and 2 are brought pursuant to Bivins v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971). Counts 2 and 3 are brought pursuant to the Federal Tort Claims Act.

In Count 1, Alvarado claims the individual defendants violated his Fourth Amendment rights. Id. In Count 2, he claims the individual defendants engaged in a conspiracy to deprive him of his civil rights. Id. In Count 3, he claims the individual defendants assaulted him. In ...


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