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Dhuuh v. Sessions

United States District Court, D. Minnesota

December 20, 2017

FUAD MOHAMED DHUUH, Plaintiff,
v.
JEFFERSON SESSIONS, Attorney General of the United States; THOMAS HOMAN, Director, Immigration and Customs Enforcement; TWO UNKNOWN ICE OFFICERS; SCOTT BANIEKE, U.S. ICE Field Office Director for Bloomington, Minnesota; MARK J. MOORE, Director of Krome Service Processing Center; and ELAINE C. DUKE, Acting Secretary, Director of Homeland Security; Defendants.

          Rachel Petersen, Rachel Petersen Law Office, counsel for Plaintiff

          Bahram Samie and Ann Bildtsen, United States Attorney's Office, counsel for Defendants

          REPORT AND RECOMMENDAITON

          KATHERINE MENENDEZ UNITED STATES MAGISTRATE JUDGE.

         I. Background

         This matter is before the Court for a report and recommendation on Fuad Mohamed Dhuuh's motion for a temporary restraining order. [TRO Mot., ECF No. 2.] Mr. Dhuuh is a native and citizen of Somalia who has been ordered removed from the United States by immigration authorities. He was taken into custody of Immigration and Customs Enforcement (“ICE”) officers in August 2017. Along with 91 other Somali nationals, Mr. Dhuuh was placed on a repatriation flight leaving a detention facility in Louisiana and bound for Somalia on December 7, 2017.

         Mr. Dhuuh asserts that the flight was poorly or recklessly planned, causing it to become delayed for nearly 20 hours while on a runway in Senegal. Mr. Dhuuh alleges that he and the other detainees aboard the plane were not allowed to de-board during the time the aircraft sat on the runway, remained shackled for that entire period, were denied access to bathrooms and adequate food and water, and were forced to endure the extreme heat when the plane's air conditioning malfunctioned. When some detainees attempted to stand in their seats and stretch during this delay, ICE agents on the plane pushed several of them back into their seats and more violently assaulted others, including Mr. Dhuuh. In particular, Mr. Dhuuh alleges that when he complained that two ICE agents were choking and assaulting another detainee and begged them to stop, one officer slammed his head against the wall of the plane causing his “skull to dent.”

         Eventually, the flight returned to the United States, and ended up in Miami, Florida, on December 8, 2017. Mr. Dhuuh remains in ICE custody at the Krome Service Processing Center in Miami. As a result of his head injury, Mr. Dhuuh asserts that he suffers from nose bleeds, headaches, blurred vision, and dizziness. He also asserts that he has experienced suicidal ideation. Despite telling staff at the Krome facility about his physical and mental health issues, he has not been provided medical care, was told that ICE would have to approve administration of any medical care, and was told that he would be placed in solitary confinement if he continued to complain.

         On December 18, 2017, Mr. Dhuuh filed a Complaint raising three claims arising out of the flight. Pursuant to Bivens v. Six Unkown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), Mr. Dhuuh asserts that his treatment aboard the plane violated his substantive due process rights under the Fifth Amendment and his right to freedom from unreasonable seizures under the Fourth Amendment. Mr. Dhuuh also claims that the conduct of the ICE officials on the plane violated his rights under the Alien Tort Statute, 28 U.S.C. § 1350. It appears he seeks to recover monetary damages for these first two claims. Finally, Mr. Dhuuh claims that the Defendants violated the Administrative Procedure Act, 5 U.S.C. § 702, entitling him to injunctive relief, including the following:

(1) requiring an official statement from the Government of Somalia that all detainees being deported will be welcomed and accepted by Somalia “without incident”;
(2) requiring a detailed plan for providing detainees with food, water, bathroom access, and reasonable mobility during any subsequent repatriation flight;
(3) requiring a detailed explanation under oath from the Department of Homeland Security describing the contingencies that caused the significant delay on the repatriation flight;
(4) requiring any airport that the next repatriation flight uses to assure that detainees will be permitted to de-board the craft temporarily in reasonable intervals if a lengthy stop is necessary; and
(5) prohibiting the Department of Homeland Security and its agents from attempting to remove Mr. Dhuuh from the United States until the Court receives assurance from a psychological medical professional and a neurologist that his ...

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