United States District Court, D. Minnesota
Bratlie, Esq., American Civil Liberties Union of Minnesota,
Mankato, MN, on behalf of Plaintiff.
Midolo, Esq., Iverson Reuvers Condon, Bloomington, MN, on
behalf of Defendants.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
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.
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
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.
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.
November 18, 2014, Orellana, now represented by counsel,
appeared before Minnesota State District Court Judge Gordon
L. Moore, III, for a Rule 8 Hearing. 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.
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. 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
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
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
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
Q. So they never refused to accept your money?
. . .
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
Q. Was it your intention on November 2nd [sic] 2014 to bail
your husband out of jail.
Id. at 15:22-16:11; 16:17-24; 26:17-27:3. Flores
then left the Prairie Justice Center. Orellana remained in
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.
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
[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