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Abpikar v. Harris

United States District Court, N.D. California, San Jose Division

April 2, 2015

HASSAN ABPIKAR, Plaintiff,
v.
DAVID HARRIS; et al., Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [RE: DKT NO. 13]

HOWARD R. LLOYD, Magistrate Judge.

Hassan Abpikar sues David Harris, Robert Durr, and Dwayne Sanchez for violation of the Fourth Amendment, false imprisonment, and related causes of action. Presently before the Court is Defendants' motion to dismiss the first amended complaint. All parties have expressly consented to having all matters proceed before a magistrate judge. A hearing was held on March 17, 2015. Based on the moving and responding papers, as well as the arguments presented at the hearing, the Court grants the motion to dismiss.

BACKGROUND

Plaintiff entered the United States with a F1 Student Visa in 1979. First Amend. Compl. ("FAC") ¶ 13. Plaintiff was convicted of telephoning a bomb threat in 1980, and of petty theft in 1999. Sanchez Decl. ¶¶ 7, 14.[1] In 2006, Plaintiff pled nolo contendere to petty theft. Id. ¶ 25.

Defendant Dwayne Sanchez is a Special Agent with the U.S. Immigration and Customs Enforcement ("ICE"). Defendant David Harris is a Group Supervisor with ICE and was Sanchez's supervisor. The FAC alleges that Defendant Robert Durr is an FBI agent, FAC ¶ 9, but the Court is told that he is in fact a Lieutenant at the Santa Clara County Sheriff's Office, Mot. at 3 n.1. Plaintiff alleges that beginning in February 2006, Defendants began to engage in a conspiracy to frame Plaintiff as a terrorist and danger to the community that resulted in confining and detaining Plaintiff in federal custody for a period of over nineteen months. FAC ¶ 2. Defendants acted in retaliation for Plaintiff's refusal to become an informant. Id.

While Plaintiff was in custody, Sanchez issued a detainer on May 16, 2006. Id. ¶ 16; Sanchez Decl. ¶ 46, Attach. 16. On May 30, 2006, Defendants issued a Notice to Appear ("NTA"), which alleged that Plaintiff was deportable under Section 237 of the Immigration and Naturalization Act. Sanchez Decl. ¶ 22. The NTA listed the 1980 and 1999 convictions, as well as Plaintiff's nolo contendere plea, as the basis of deportability. Id., Attach. 17.

In June 2008, Santa Clara Sheriff's Deputies arrested Plaintiff based on false charges. FAC ¶ 24. Plaintiff alleges that this arrest was made at the request of Defendants. Id.

On July 17, 2008, Harris and Sanchez questioned Plaintiff about his religious practices, his ex-wife, and his criminal record. Id. ¶ 27. Plaintiff alleges that Durr sent Sanchez and Harris. Id. ¶ 28.

On July 24, 2008, Sanchez issued another detainer. Id. ¶ 30; Sanchez Decl. ¶ 46, Attachs. 20. An NTA was issued on September 13, 2008, which was identical to the May 2006 NTA. FAC ¶ 33, Exh. A.

In January 2009, Santa Clara County correctional officers assaulted and battered Plaintiff. Id. ¶ 36. Plaintiff alleges that Defendants caused the correctional officers to assault and batter him. Id.

On November 4, 2011, Plaintiff filed suit against David Harris, Robert Carr (aka Robert Garr), and Dwayne Sanchez.[2] Plaintiff subsequently filed a FAC in which he substituted Robert Durr for Robert Carr. The FAC asserts: (1) violation of the Fourth Amendment; (2) false imprisonment; (3) assault and battery; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; (6) negligence; and (7) conspiracy. Presently before the Court is Defendant's motion to dismiss the FAC.

LEGAL STANDARD

A motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is appropriate where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In such a motion, all material allegations in the complaint must be taken as true and construed in the light most favorable to the claimant. Id. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, "the court is not required to accept ...


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