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Orellana v. Nobles County

United States District Court, D. Minnesota

January 6, 2017

Jose Lopez Orellana, Plaintiff,
Nobles County; Kent Wilkening, Nobles County Sheriff, in his individual and official capacity; John Doe, in their individual and official capacity; and Richard Roe, in their individual and official capacity, Defendants.

          Ian Bratlie, Esq., American Civil Liberties Union of Minnesota, Mankato, MN, on behalf of Plaintiff.

          Nathan Midolo, Esq., Iverson Reuvers Condon, Bloomington, MN, on behalf of Defendants.




         On November 17, 2016, the undersigned United States District Judge heard oral argument on Plaintiff Jose Lopez Orellana's (“Orellana”) Motion for Summary Judgment [Docket No. 16], and Defendants Nobles County, Kent Wilkening, John Doe, and Richard Roe's (collectively, “Defendants”) Motion for Summary Judgment [Docket No. 22]. For the reasons set forth below, Orellana's Motion is denied and the Defendants' Motion is granted in part and denied in part.


         In November of 2014, Nobles County had a policy, practice, and custom of holding individuals subject to an Immigrations and Customs Enforcement (“ICE”) detainer after the time the individual would otherwise be released from custody after arrest.

         A. Orellana's Arrest

         On November 9, 2014, Orellana was arrested for driving under the influence. Midolo Aff. [Docket No. 26] Ex. 1 (“Orellana Dep.”) at 11:24-12:17; 15:19-24. During the booking process at the Nobles County Jail, Orellana disclosed that he was not a lawful resident of the United States and that he was in the country illegally. Id. 30:14-20. ICE was notified and an immigration detainer, Form I-247, was issued. Berkevich Aff. [Docket No. 25] Ex. 1.

         The next day, Orellana appeared without an attorney for an arraignment and bail hearing before Minnesota State District Court Judge Jeffery L. Flynn. Bail was set at $12, 000 or, alternatively, $6, 000 provided certain conditions, including electronic alcohol monitoring, were met. Bratlie Decl. [Docket No. 19] Ex. 11 at 5:23-6:12. In answering a question from Orellana about bail and electronic alcohol monitoring, Judge Flynn stated, “[h]owever, I am told that there is [an] immigration hold on this gentleman so I wouldn't give anybody any money because they're not going to let you go anyway.” Id. 7:6-9.

         On November 18, 2014, Orellana, now represented by counsel, appeared before Minnesota State District Court Judge Gordon L. Moore, III, for a Rule 8 Hearing.[1] Id. at Ex. 12. At the hearing, the bail set by Judge Flynn remained unchanged. Id. 3:20-21. Like Judge Flynn, Judge Moore referenced the ICE detainer and its impact on Orellana's release, stating, “[w]ell, it's somewhat academic because of the existence of the immigration detainer. . . . Now, since there's an immigration detainer that apparently exists, you'd be well-advised to discuss with counsel . . . the situation you're facing before you post any bail because you won't be out of jail as long as there's a federal hold on you.” Id. 3:19-4:4. Orellana returned to jail after the hearing.

         Later that same day, Orellana discussed bail on the phone with his wife, Maria Rosalina Flores De Lopez (“Flores”). Orellana Dep. at 21:4-10. Orellana told Flores that Judge Moore said he only needed to pay $1, 200 before he would be released.[2] Id. 22:3-6. On November 21, 2014, Flores and an interpreter went to the Prairie Justice Center intending to bail her husband out of jail. Bratlie Decl. Ex. 2 (“Flores Dep.”) at 11:9-12. Flores approached a window inside the building and, through her interpreter, stated that she wanted to pay $1, 200 to have Orellana released from jail. Id. 13:10-11. Flores recalls that three individuals behind the window told her “that [she] could not pay the money.” Id. at 15:6-7.

Q. And did they tell you that they were refusing to accept your money?
A. Well, they say no because [Orellana] still had another hearing, the last one.
Q. So you just said no. So would they have accepted your money?
A. Well, I think they would, but they did not want it.
Q. So they were willing to accept the money, but your husband wouldn't have been released; is that what you're saying?
A. Well, no. What they say is if they will accept the money, that would be a wasted money because they were not sure that immigration will come for my husband.
. . .
Q. So they were telling you that if you gave them money, immigration would come pick him up and he couldn't appear for his next hearing?
A. Yes. And they say that at the end, those $1, 200 would be wasted.
Q. So they never refused to accept your money?
A. No.
. . .
Q. If no one refused to take your money, why didn't you pay the money?
A. Because they say that, the same thing.
Q. What was the same thing?
A. They say the same thing, that they could not accept the money. I reached for money from my bag, and then I have the money in my hand, and they told me they cannot accept the money.
Q. Was it your intention on November 2nd [sic] 2014 to bail your husband out of jail.
A. Yes.

Id. at 15:22-16:11; 16:17-24; 26:17-27:3. Flores then left the Prairie Justice Center. Orellana remained in jail.

         On December 1, 2014, Orellana appeared before Judge Moore and pled guilty to driving under the influence. Midolo Aff. Ex. 7. Orellana was sentenced to a stayed term of 360 days in jail, with credit for time served. Berkevich Aff. Ex. 3. He was then released from jail.

         B. Orellana's Detainer

         Orellana's immigration detainer was issued by ICE on November 9, 2014. Berkevich Aff. Ex. 1. The detainer, ICE Form I-247, states that the Department of Homeland Security has “[d]etermined that there is reason to believe [Orellana] is an alien subject to removal from the United States.” Id. The detainer requests that Nobles County

[m]aintain custody of the subject for a period NOT TO EXCEED 48 HOURS, excluding Saturdays, Sundays, and holidays, beyond the time when the subject would have otherwise been released from your custody to allow [the Department of Homeland Security] to take custody of the ...

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