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Shillington v. Genovese

May 24, 2007


The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. Magistrate Judge

Finds of Fact and Conclusions of Law

This matter came on for a trial before the Honorable Anthony J. Battaglia, United States Magistrate Judge, pursuant to the written consent of all parties, on April 23, 2007. Plaintiff Edwin Shillington's claims against the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 2680(h) ("FTCA") were tried to the Court. Dwight F. Ritter appeared on behalf of Plaintiff. Samuel Bettwy and David Wallace of the United States Attorney's Office appeared on behalf of the United


Plaintiff brought this action against the United States under the FTCA for injuries allegedly suffered as he was being processed through the immigration arrival gate of Lindbergh Field in San Diego, California on May 6, 2004. Plaintiff's complaint was filed on August 23, 2005. Plaintiff alleges that the Border Patrol agents improperly detained him and used unreasonable force against him while he was detained in secondary inspection. Plaintiff claims that a border patrol agent grabbed him by the neck and slammed his body into a chair causing severe bodily injuries. Plaintiff alleges that he suffered physical pain and permanent injury to his cervical spinal area as a result of the Border Patrol agents conduct on May 6, 2004. Plaintiff's complaint alleges causes of action under state law for assault and battery, negligence and negligent supervision, false imprisonment and false arrest.*fn1 Plaintiff seeks damages for injuries suffered. Defendant argued that any force used by the Border Patrol agents was both reasonable and necessary under the circumstances.

The Court having heard and considered the evidence both oral and documentary, the arguments of counsel, and being fully advised, makes the following findings of fact and conclusions of law based upon the preponderance of the evidence admitted at trial:

Findings of Fact

The Court makes the following findings of fact:*fn2

1. Plaintiff left San Diego to go to Cabo San Lucas Mexico to attend a conference (World Molecular Engineering) with fellow students and professors from Scripps Research Institute (SRI). Plaintiff was one of about 100 passengers returning to Lindbergh Field on May 6, 2004 in San Diego. After exiting the international arrival gate, all of the passengers, including the Plaintiff proceeded to the lanes for immigration inspection by officers of the United States Customs and Border Patrol ("CBP").

2. When Plaintiff reached the primary inspector, CBP Officer Videna, he presented his passport and Form I-94, but the record indicates that he did not present a Form DS-2019,*fn3 which is a Department of State form that shows whether the alien is a student in good standing at the school they are attending.

3. Plaintiff was instructed by CBP Officer Videna to take a seat along the wall outside Secondary inspection. Plaintiff did not comply with the instructions. Officer Videna had to repeat the instructions several more times before Plaintiff complied.

4. When Plaintiff returned to his seat, he used his cell phone to call his father. Plaintiff then returned to Officer Videna's booth while Office Videna was assisting another passenger and insisted that Officer Videna talk to his father on his cell phone because his father could explain that there was no problem with Plaintiff's immigration paperwork. Officer Videna took Plaintiff's cell phone, turned it off, and told Plaintiff to return to the seating area. Plaintiff did not return to the seating area and became agitated that Officer Videna had hung up the cell phone on his father.

5. CBP Officer Gilbert Sanders, who was conducting inspections at a nearby booth, noticed the disruption that Plaintiff was creating, so he left his booth to escort Plaintiff away from Officer Videna to the seating area. Plaintiff immediately complied with Officer Sanders instructions and returned to the seating area.

6. Shortly thereafter, Plaintiff again left the seating area and approach the inspection booths. CBP Officer Genoves, who was also conducting inspections of arriving passengers at a nearby booth, called his supervisor Officer Garcia for assistance and then left his booth to stop Plaintiff from reaching Officer Videna's booth.

7. CBP Officer Genoves escorted Plaintiff away from the inspections booths back toward the seating area with minimal touching.*fn4 While Office Genoves was escorting Plaintiff back to the seating area, he told Plaintiff that if he did not remain seated as instructed, Officer Genoves would be forced to place him in a holding cell in secondary.

8. Upon hearing this, Plaintiff excitedly spun away in a twisting motion from Officer Genoves and assumed a combative stance. In response to Plaintiff's actions, Officer Genoves removed his baton from his belt and held it up in self defense. Upon seeing Officer Genoves raise his baton, Plaintiff immediately became compliant and sat down in the seating area. 9. Concurrent with this incident, Supervising Officer Garcia arrived in the inspection area and Officer Garcia remained with Plaintiff, allowing Officer Genoves to return to his inspection booth.

10. After the primary inspection of the other passengers, Plaintiff was taken into the secondary inspection area where he began to complain of neck pain and make allegations of excessive force by the CBP Officers. Supervising Officer Garcia contacted his supervisor to report the incident and Officer Garcia's supervisor instructed him to contact the paramedics.

11. Plaintiff had a small abrasion on his wrist. CBP Officers provided Plaintiff with a band-aid for the abrasion. Plaintiff had no other obvious injuries.*fn5

12. CBP Officers researched Plaintiff's status in their databases and informed Plaintiff that he must return to the CBP downtown San Diego Offices on May 20, 2004, to present his original Form DS-2019.

13. Paramedics arrived and assessed Plaintiff and took him to the emergency room at the University of California San Diego Medical Center ("UCSD Medical Center"). UCSD Medical ...

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