Bartolome v. JKL, Inc.

Cite as [Bartolome v. JKL, Inc., CA No. 30-08, slip op. (Trial Div. Jun. 21, 2012) (order granting in part and denying in part def.’s mot. for summ. j.)]

RUBY BARTOLOME, RHODERIZA B. AMIL, and MELANDO BAGUISI, Plaintiffs,

 

v.

 

JKL, INC., JLK, INC., WILFREDO ALAMANI, AMERICAN SAMOA GOVERNMENT, UFUTI F. IEREMIA, VAIALEGA “JAKE” IAKOPO, PHILO MALUIA, Jr., FOA ASI, SIAOSI PONA LEAEA, FEPULEA’I ARTHUR RIPLEY, Jr., and DOES I through X, jointly and severally, Defendants.

________________________________

 

High Court of American Samoa

Trial Division

 

CA No. 30-08

 

June 21, 2012

[1] The viability of a Section 1983 claim in American Samoa is not premised on determining whether due process of law in the Territory is protected under the Fifth Amendment or the Fourteenth Amendment or whether American Samoa’s constitution preempts both. One need only look at the statute’s plain language to realize that the source of the constitutionally protected right is inconsequential for determining whether Section 1983 applies to a territory. It is enough that due process, as applied to the Territory, is a right protected under the U.S. Constitution and that the Territory is a territory contemplated under Section 1983.

[2] Congress intended to expand the applicability of Section 1983 to enable the people in the territories to redress deprivations of constitutionally protected due process rights irrespective of whether such rights spring from the Fifth Amendment or the Fourteenth Amendment.


[3] Where the conduct concerned involves that of a person acting under color of territorial law, the issue of whether Section 1983 is a right of action available to the people in American Samoa depends on whether: (1) due process in American Samoa is protected under the U.S. Constitution; and (2) American Samoa is a territory that is contemplated under Section 1983. If both are true, then Section 1983 is a right of action that is available to the people in American Samoa.


[4] Due process of law in American Samoa is a right whose protection not only comes from the Revised Constitution of American Samoa; it is also protected under the U.S. Constitution.


[5] A constitutional right applies to an unincorporated territory on its own force if: (1) the right is fundamental as applied to the states and (2) its application to the territory would not be impracticable or anomalous to the culture and customs of American Samoa.


[6] Due process, in general, is a constitutionally protected fundamental right.


[7] Due process, as the U.S. Constitution protects it, is neither impracticable nor anomalous in the way that it is applied to the Territory. Due process is well observed and protected in the Territory.


[8] American Samoa is indeed a territory contemplated under Section 1983.


[9] American Samoa Government officials may be held liable in their individual capacities for violating due process while acting under the color of territorial law.


[10] Government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.


[11] It is the Immigration Board’s responsibility to determine whether an alien is deportable. Such determinations are made at a hearing, wherein, the alien facing deportation is entitled to be present. A.S.C.A. § 41.0605. Consequently, ASG is obligated to provide the alien, whose immigration status is at issue at the deportation hearing, with reasonable notice of the hearing, including the time and place of the hearing. A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1). A deportation proceeding is not required if the alien, “admits [to


[12] Violations of a right specifically protected under the substantive component of the Due Process Clause of the Fourteenth Amendment are complete when the government official undertakes the wrongful action; consequently, claims for such violations are actionable under Section 1983.


[13] The Due Process Clause of the Fourteenth Amendment was intended to prevent government from abusing its power, or employing it as an instrument of oppression.


[14] The Supreme Court has repeatedly emphasized that only the most egregious official conduct can be said to be arbitrary in the constitutional sense. A government official whose action “shocks the conscience” violates substantive due process. Thus, in a due process challenge to executive action, the threshold question is whether behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. Government officials who use force with the intent to harm an individual is an action that may be deemed shocking.


[15] The Fifth Amendment protects civil detainees in the custody of the United States from conditions that amount to punishment. Immigration detainees are civil detainees and should receive the same level of due process protection as pre-trial criminal detainees.

 

 

Before RICHMOND, Associate Justice and MAMEA, Associate Judge.

 

Counsel:        For Plaintiffs: Mark F. Ude.

For Defendants American Samoa Government, Ufuti F. Ieremia, Vaialega “Jake” Iakopo, Philo Maluia, Jr., Foa Asi, Siaosi Pona Leaea, and Fepulea’I Arthur Ripley: Bensy Benjamin, Assistant Attorney General.

For Defendants JKL, Inc., JLK, Inc., and Wilfredo Alamani: Charles V. Ala’ilima.

 

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

Defendants American Samoa Government (“ASG”), Ufuti f. Ieremia (“Ieremia”), Vaialega Iakopo (“Iakopo”), Philo Maluia, Jr. (“Maluia”), Foa Asi (“Asi”), Siaosi Pona Leaea (“Leaea”), and Fepulea’i Arthur Ripley (“Ripley”) present the following issues in support of their summary judgment motion: (1) 42 U.S.C. § 1983 is a right of action that is not available to the people in American Samoa; (2) American Samoa Government and the government officials [**2**] named in this action are entitled to qualified immunity; (3) Defendants did not violate Plaintiffs’—i.e., Rudy Bartolome (“Bartolome”), Rhoderiza Amil (“Amil”), and Melando Baguisi—due process rights because Plaintiffs did not suffer any deprivations of their property or liberty interests; (4) Plaintiffs’ Fourth and Eighth Amendment claims should be dismissed because Plaintiffs failed to plead to support sufficient facts to support these claims.

 

For reasons provided below, we partially grant and partially deny Defendants’ Summary Judgment Motion, and we order Plaintiffs to amend their Complaint to properly bring their 42 U.S.C. § 1983 claims before this court.

 

STANDARD OF REVIEW

 

“The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” T.C.R.C.P. 56(c). When the moving party sets out a prima facie case for summary judgment, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." T.C.R.C.P. 56(e). "Only disputes over facts that might affect the outcome of the suit under the [**3**] governing law" are "material," and such a dispute is "genuine" only where the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). A court must resolve any factual issues in a controversy in favor of the nonmoving party, but conclusory, non-specific allegations are not sufficient to survive a motion for summary judgment, and missing facts will not be presumed. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).

DISCUSSION

 

I. 42 U.S.C. § 1983 applies to American Samoa

 

Defendants contend 42 U.S.C. § 1983 (“Section 1983”) is not available as a right of action to the people in American Samoa because that statute serves only to enforce rights protected by the U.S. Constitution and federal laws. According to Defendants, whatever due process rights are in force within the Territory spring from the Revised Constitution of American Samoa and not from the U.S. Constitution or any federal statute because neither the Fifth Amendment nor the Fourteenth Amendment apply to American Samoa. Defendants specifically argue, Congress enacted Section 1983 primarily to enforce the Fourteenth Amendment, which applies only to states and not to [**4**] territories like American Samoa; hence, it would be logically inconsistent to infer that Congress had intended for Section 1983 to apply to a territory in which the Fourteenth Amendment has no force. Defendants similarly argue that a Section 1983 right of action cannot exist in American Samoa where the violated due process right is alleged to have sprung from the Fifth Amendment. According to Defendants, Congress never intended for the Fifth Amendment to apply in American Samoa since the Territory’s revised constitution already has a due process clause.

 

[1] We disagree. The viability of a Section 1983 claim in American Samoa is not premised on determining whether due process of law in the Territory is protected under the Fifth Amendment or the Fourteenth Amendment or whether American Samoa’s constitution preempts both. One need only look at the statute’s plain language to realize that the source of the constitutionally protected right is inconsequential for determining whether Section 1983 applies to a territory. It is enough that due process, as applied to the Territory, is a right protected under the U.S. Constitution and that the Territory is a territory contemplated under Section 1983.

 

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, [**5**] custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983 (emphasis added). The statute specifically “creates an action for damages and injunctive relief against individuals and local governmental bodies who deprive a plaintiff of rights, privileges, or immunities ‘secured by the Constitution and laws.’” Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 56 (3rd ed. 1991). Congress initially enacted Section 1983 to address Fourteenth Amendment violations. District of Columbia v. Carter, 409 U.S. 418, 423 (1973). However, it is evident in the subsequent changes Congress has made to the statute that Section 1983 is no longer limited to enforcing only the Fourteenth Amendment. By its very terms, a plaintiff may bring a Section 1983 claim against any “person who, under color of any statute, ordinance, [**6**] regulation, custom, or usage, of any . . . Territory . . .” deprives the plaintiff of “any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983.

 

Section 1983, in its current version, is not so specific that it only singles out Fourteenth Amendment violations. 42 U.S.C. § 1983. The statute’s proscription is broad in that it plainly encompasses the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Id. (emphasis added). Granted, such a broad proscription carries little weight if one only were to strictly consider Section 1983’s original language in the context of Congress’ original purpose for enacting the statute. After all, nowhere in the statute’s original promulgation was “Territory” ever mentioned; “as originally enacted, [Section 1983] applied only to action under color of law of any State.” Flores De Otero, 426 U.S. at 582.

 

[2] However, three years after enacting the statute, “Congress presumably pursuant to its power to ‘make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,’ granted by the Constitution’s Art. IV, § 3, cl. 2, added . . . the words, ‘or Territory’” to Section 1983. Examining Board of Engineers v. Flores De Otero, 426 U.S. 572, 582 (1976). Despite providing no explanation to why it [**7**] amended Section 1983, it seems apparent to us that Congress intended to expand the applicability of Section 1983 to enable the people in the territories to redress deprivations of constitutionally protected due process rights irrespective of whether such rights spring from the Fifth Amendment or the Fourteenth Amendment. Such congressional intent is not only plainly evident in the statute’s text it is also exemplified in Congress’ subsequent decision to amend the statute so that it would expressly apply to the District of Columbia, which is a congressionally controlled district whose due process protections come from the Fifth Amendment, not the Fourteenth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

 

The United States Supreme Court also appears to have embraced this idea of Congress extending Section 1983 to territories to enforce those constitutionally protected rights applicable to the territories regardless of whether such rights arise from the Fourteenth Amendment. According to the Court, “it is now settled that either the equal protection component of the Fifth Amendment or the equal protection clause of the Fourteenth Amendment applies to residents of Puerto Rico that deprivations of equal protection under color of Commonwealth law or regulation are redressible under 42 U.S.C. § 1983.” Tenorio v. Liga Atletica Interuniversitaria, 554 F.2d 492, 494 (1st Cir. [**8**] 1977) (citing Flores de Otero, 426 U.S. at 600-01). This bears special significance since the Court recognized that Puerto Rico was a territory under Section 1983. Flores de Otero, 426 U.S. at 597. Moreover, the Court seemed open to the notion that Puerto Rico, after having received the status of being a commonwealth, may now be considered a state where Section 1983 is concerned. Id. (“Whether Puerto Rico is now considered a Territory or a State . . . makes little difference because each is included within § 1983.”). Such indifference speaks loudly: Section 1983 is a right of action available to territories to enforce due process regardless of whether the right comes from the Fourteenth Amendment or the Fifth Amendment so long as the right is protected by the U.S. Constitution.[1] [**9**]

 

We see no reason why Congress would have intended otherwise. Congress’ original intent for enacting Section 1983—i.e., to enforce the Fourteenth Amendment—simply cannot be reconciled with its subsequent decision to include territories into the folds of Section 1983. If Congressional intent truly has not changed since the statute’s initial enactment, the consequent implication of adding “Territory” to Section 1983 would be that Congress had intended to extend the Fourteenth Amendment to the territories. Indeed, we are doubtful that Congress would so drastically expand a constitutional provision, whose application has long been held to be limited to the states, in so innocuous a manner as including the word “Territory” into a statute, which itself creates no new right but merely provides a right of action to enforce preexisting constitutional rights.

 

[3] Consequently, we need not ask which amendment under the U.S. Constitution protects the violated constitutional due process right. It is, therefore, settled. Where the conduct concerned involves that of a person acting under color of territorial law, the issue of whether Section 1983 is a right of action available to the people in American Samoa depends on whether: (1) due process in American Samoa is protected under [**10**] the U.S. Constitution; and (2) American Samoa is a territory that is contemplated under Section 1983. If both are true, then Section 1983 is a right of action that is available to the people in American Samoa. Having established as much, we turn our attention now to addressing the two parts.

 

A. Due process of law in American Samoa is protected by the U.S. Constitution

 

[4] Due process of law in American Samoa is a right whose protection not only comes from the Revised Constitution of American Samoa; it is also protected under the U.S. Constitution. In the Insular Cases, the United States Supreme Court specifically held the Constitution applies in such unincorporated territories "insofar as its tenets restate those fundamental limitations in favor of personal rights that are ‘the basis of all free government.’” Dorr v. United States, 195 U.S. 138, 146-47 (1922) (quotations omitted). See also Balzac v. Porto Rico, 258 U.S. 298 (1922); Hawaii v. Mankichi, 190 U.S. 197 (1903); Downes v. Bidwell, 182 U.S. 244 (1901). The Supreme Court specifically noted there are constitutionally protected rights so "fundamental in nature that they cannot be transgressed." Dorr, 195 U.S. at 146-47. We are certain that due process of law qualifies as being such a right.

 

[5] Granted, the Supreme Court has never parsed the meaning of "fundamental limitations . . . in favor of personal rights that [**11**] are the basis of all free government." Nonetheless, we have previously held that a constitutional right applies to an unincorporated territory on its own force if: (1) the right is fundamental as applied to the states and (2) its application to the territory would not be impracticable or anomalous to the culture and customs of American Samoa.[2] Purcell v. Seugogo, 6 A.S.R.3d 276 (Trial Div. 2002) (citing Wabol v. Villacrusis, 958 [**12**] F.2d 1450 (9th Cir. 1990); King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975); Stanley K. Laughlin, Jr., The Law of the United States Territories and Affiliated Jurisdictions 147-56 (1st ed. 1995)).

 

[6] Due process, in general, is a constitutionally protected fundamental right. See Mora v. Mejias, 206 F.2d 377, 382 (1st Cir. 1953) ("there cannot exist under the American flag any governmental authority untrammeled by the requirements of due process of law as guaranteed by the Constitution of the United States"); Palko v. Ct., 302 U.S. 319, 325 (1937) (the due process clause protects those “principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”); Powell v. Alabama, 287 U.S. 45, 68 (1932) (“The necessity of due notice and an opportunity of being heard is described as among the ‘immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.”).

 

[7] Moving onto the second prong of the test, we have confirmed time and again that due process, as the U.S. Constitution protects it, is neither impracticable nor anomalous in the way that it is applied to the Territory. Due process is well observed and protected in the Territory. See, e.g., Vaimaona v. Tuitasi, 18 A.S.R.2d 88 (App. Div. 1991) (notice is the central device for determining whether there are conflicting claims.); [**13**] Ifopo v. Siatu’u, 12 A.S.R.2d 24, 28 (App. Div. 1989) (The central purpose of A.S.C.A. §§ 37.0101-0104 is to give notice to potential claims.). The right is so engrained in the local psyche it is memorialized in the Territory’s constitution and incorporated into the statutes. Am. Samoa Rev. Const. art. I (“No person shall be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensation.”); A.S.C.A. § 1.0201(2) (“the parts of the Constitution of the United States of America and the laws of the United States of America as, by their own force, are in effect in American Samoa.”). See generally A.S.C.A. §§ 1.0101-47.0804.

 

It is, therefore, evident that due process of law in American Samoa is a right that is protected under the U.S. Constitution. Consequently, we remain unpersuaded by Defendants’ assertion that due process exists in American Samoa insofar as it is protected by the Territory’s constitution and not by the U.S. Constitution. What remains unclear, however, is whether due process in American Samoa springs from the Fifth Amendment or the Fourteenth Amendment. But, as discussed above, this ambiguity is irrelevant where the applicability of Section 1983 to American Samoa is concerned. [**14**]

 

a.                    B. American Samoa is a “Territory” contemplated under 42 U.S.C. § 1983

 

[8] With American Samoa being a U.S. territory and the fact that Section 1983, by its terms, extends to territories, it is evident that American Samoa is indeed a territory contemplated under Section 1983. While we need not spend much time addressing this matter, its relevance is such that some explanation on why American Samoa is a Section 1983 territory is merited. We begin this discussion with the case in which the Supreme Court defined at least some of the parameters distinguishing a territory contemplated under Section 1983 from an entity that it considered outside that statute's coverage. In Carter, the Court held that the District of Columbia was not a “Territory” within the meaning of Section 1983. The Court explained:

Since the District is itself the seat of the National Government, Congress was in a position to observe and, to a large extent, supervise the activities of local officials. Thus, the rationale underlying Congress’ decision not to enact legislation similar to § 1983 with respect to federal officials—the assumption that the Federal Government could keep its own officers under control—is equally applicable to the situation then existing in the District of Columbia.

Carter, 409 U.S. at 429-30. The Court further explained that the circumstances in the territories were different from that of the District of Columbia. Id. at 430. Although “Congress [**15**] possessed plenary power over the Territories . . . effective federal control over the activities of territorial officials [for practical reasons] was virtually impossible.” Id. According to the Court:

The territories were not ruled immediately from Washington. . . . . Rather, Congress left municipal law to be developed largely by the territorial legislatures, within the framework of organic acts and subject to a retained power of veto. The scope of self-government exercised under these delegations was nearly as broad as that enjoyed by the States. Thus, although the Constitution vested control over the Territories in the Congress, its practical control was both confused and ineffective, making the problem of enforcement of civil rights in the Territories more similar to the problem as it existed in the States than in the District of Columbia.

Id. at 430-31 (quotations and internal citations omitted). “With [the] unique status of the District of Columbia in mind, and in the absence of any indication in the language, purposes, or history of § 1983 of a legislative intent to include the District within the scope of its coverage,” the Court concluded that the District of Columbia was not a “State or Territory” within the meaning of Section 1983.[3] Id. at 432.

 

Keeping in mind these considerations, we see no reason why American Samoa should not be included within Section 1983. From [**16**] an administrative standpoint, American Samoa is somewhat more isolated from the Federal Government than the other U.S. territories. Aside from the fact that more than 7,000 miles separate American Samoa from Washington D.C. or that the closest state is approximately 2,500 miles away, the Territory remains outside any federal judicial district or circuit. As evidenced by the scarcity of permanent federal offices within its borders, federal presence within the Territory indeed seems virtually nonexistent when compared to the other U.S. territories. Such seeming isolation certainly is understandable given the fact that, unlike the District of Columbia, it is the policy of the United States Government to place American Samoa in a position of self-governance. See Secretary’s Order No. 3009(g)(5) (“Until Congress of the United States provides further for the civil government of American Samoa, the President of the United States, through the Secretary of Interior, has the ultimate responsibility for the administration of the Territory of American Samoa.”). See also Rev. Const. Am. Samoa, preamble (“Whereas it is appropriate that, in the process of developing self-government, the people of American Samoa should enjoy certain rights and responsibilities inherent in the representative form of government”); 48 U.S.C. § 1662a (“Amendments of, or modifications to, the constitution of [**17**] American Samoa, as approved by the Secretary of the Interior pursuant to Executive Order 10264 as in effect January 1, 1983, may be made only by Act of Congress.”). Indeed, American Samoa today enjoys a level of autonomy and self-governance that is noticeably absent from the District of Columbia. Specifically, American Samoa has a republican form of government; it elects its own Governor and legislature; appoints the directors and lesser officials in the executive branch, sets its own educational policies, amends its own civil and criminal codes, and determines its own budget. See generally Rev. Const. Am. Samoa and A.S.C.A. §§ 1.0101-47.0804. Moreover, American Samoa retains full control over its borders and sets its own tax policies and laws. See Id. Also, Congress implicitly has ratified American Samoa’s constitution making the Territory closely akin to that of an organized territory. See 48 U.S.C. § 1662a.

 

While congressional authority over American Samoa is plenary, Congress and the Executive Branch of the United States have taken many strides toward fulfilling the goal of Congress to increase the Territory’s self-governance. Consequently, federal policy regarding the administration of American Samoa is intentionally limited and, at times, certainly confusing and ambiguous. Daily administration of American Samoa undoubtedly [**18**] is a local governmental responsibility and federal supervision is nowhere near the level at which it is with the District of Columbia or other territories. Needless to say, federal control over American Samoa is at a much longer arm's length than the clear and direct control Congress exerts over the District of Columbia or other territories. In many ways, American Samoa enjoys a level of freedom from direct federal oversight not unlike the territories contemplated by the Court in Carter. In light of what is plainly stated in Section 1983, its purpose, and American Samoa's political status as a territory of the United States, it is quite clear to us that American Samoa is indeed a territory within the meaning of Section 1983. Consequently, that statute provides a right of action that is available to the people in American Samoa.

 

As an aside, we duly note Defendants' contention that the policies underlying Section 1983 and American Samoa's status as a territory go against applying that statute to the Territory. Relying almost entirely on the Supreme Court's opinion in Ngiraingas v. Sanchez, 495 U.S. 182, 203-04 (1990), Defendants specifically argue that the Court's interpretation of the policy underlying the Section 1983 had changed over the years from what it had originally presented in Carter when it ruled Section 1983 inapplicable to the District of Columbia. Defendants reached [**19**] this conclusion by pointing out the majority's rejection of the dissenting opinion, which relied heavily on Carter.

 

We agree Section 1983 jurisprudence has changed significantly since Carter. Nonetheless, we fail to see how Ngiraingas could be construed as championing a policy that goes against applying Section 1983 to American Samoa. That case focused on a very narrow issue: whether the Territory of Guam or its officers acting in their official capacities are "persons" under Section 1983. Ngiraingas, 495 U.S. at 186-92.

 

In Ngiraingas, after finding that the language of Section 1983 provided no indication to whether "person" includes territories, the Supreme Court looked at the intent of Congress at the time it enacted that statute and when it amended it to include the word "Territory." Id. The Court noted that Congress, when it enacted Section 1983 in 1871, was concerned with the lack of federal control over the unconstitutional acts of state officials, not with the territories whose courts were already under direct federal control. Id. at 187-189. As such, the purpose for enacting Section 1983 was to enforce the Fourteenth Amendment. Seeing how the Fourteenth Amendment applied only to States, the Court saw it unlikely that Congress would have intended to include territories as persons in 1871. Id. Not surprisingly, the Court refused to expose territorial [**20**] governments and officials, acting in official capacities, to suit under Section 1983. Id. This reading remained unchanged even after Congress amended Section 1983 to expressly include "Territory" into the fold. Id. at 189-92. This is because, at the same time Congress amended Section 1983, it redefined the word "person" by excluding territories from its meaning. Id. Justice Brennan recognized the narrow opinion the majority presented; thusly, he strictly confined his dissenting opinion within the boundaries of that narrow holding.

 

[9] None of this, however, serves to completely bar the application of Section 1983 to the territories. The policy changes and justifications Defendants gleaned from Ngiraingas are specific to the issue of whether a territory or a government official acting in an official capacity is considered a "person" within the meaning of Section 1983. The reasons the Court in Ngiraingas spells out for why territories are not persons under Section 1983 have no bearing on the issue of whether a Section 1983 claim can be brought against a government official in an individual capacity. As we have discussed extensively, Section 1983 is a right of action available to the people in American Samoa. Granted, Ngiraingas has closed the door to exposing ASG and its officials acting in official capacities to such suit. However, not all doors have been barred; it is indeed the case [**21**] that ASG officials may be held liable in their individual capacities for violating due process while acting under the color of territorial law. Although it would have behooved Plaintiffs to explicitly state as much, we find the Complaint sufficient to establish that Plaintiffs are suing the named government officials in their individual capacities. Nonetheless, in light of Ngiraingas, we find it appropriate to dismiss all Section 1983 claims against the American Samoa Government.

 

II. The ASG officials named in the action may not be entitled to qualified immunity

 

Defendants argue that the ASG officials involved in this action have qualified immunity from civil suit and liability because it was not reasonably clear that the forceful removal of Plaintiffs from the Territorial Correctional Facility (“TCF”) was unlawful. Defendants further argue that Ieremia, Iakopo, and Ripley should not be held liable for the forcible removal of Plaintiffs Bartolome and Amil from the TCF because they were not present when the two plaintiffs were removed.

 

We agree Plaintiffs’ Amended Complaint is severely deficient, and it fails to provide sufficient facts to support the plausibility of some of its claims. Nonetheless, this being a summary judgment motion, we are required to consider facts submitted outside the pleadings in a light most favorable to the [**22**] Plaintiffs. In so doing, we are convinced that justice would not be served by ignoring those events that transpired after Bartolome and Amil had been forcibly removed from the TCF.[4] As such, we seriously query whether the ASG officials truly were acting within their authority when they removed Bartolome and Amil from the TCF. We cannot help but wonder whether the ASG officials intentionally and maliciously abused their governmental powers and purposely attempted to hide such abuses behind a façade of facially lawful procedural formality and the guise of legal authority. Under such genuine suspicions, justice simply will not allow us to put on our horse blinds and look only at the pleadings.

 

[10] Bearing all of this in mind, we turn our attention to Maluia and Iaokopo.[5] Indeed, “government officials performing discretionary functions, generally are shielded from liability [**23**] for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). From what we have gathered from the record, the forcible removable of Bartolome and Amil seems but the headwater of a stream of events charted by Maluia and Iakopo to advance an unlawful scheme to deport these two individuals in violation of their constitutionally protected rights and the Territory’s immigration laws. Evidence suggesting that such abuses of governmental power may have occurred simply cannot be ignored. Consequently, we are not at all convinced that Maluia and Iakopo should be entitled to qualified immunity.[6]  

 

Maluia and Iakopo arrived at the TCF on May 12, 2008, with orders to release Bartolome and Amil (“Release Orders” or “Orders”) from custody. However, rather than releasing Bartolome and Amil from government custody altogether, the corrections officers, at the request of Maluia and Iakopo, transferred custody of the two detainees directly over to Maluia and Iakopo who, immediately thereafter, drove them to the airport for deportation.[7] We find all of this troubling for several reasons. [**24**]

 

Based on the warrants and supporting affidavits authorizing the arrest of Bartolome and Amil, it is our impression ASG lawfully arrested Bartolome and Amil for failing to comply with the Territory’s immigration law by remaining within the Territory beyond the time allowed. The warrants further lead us to believe ASG was holding the two plaintiffs at the TCF until the Immigration Board could finally determine whether both aliens should be deported. These reasons undoubtedly make the arrests and detentions lawful given that A.S.C.A. § 41.0610 expressly grants ASG such authority. The same statute, however, limits immigration arrests to such purposes. Indeed, we found nothing else in the record suggesting that ASG arrested Bartolome and Amil for reasons outside their failure to comply.

 

[11] The law is also clear in that, under such circumstances, it is the Immigration Board’s responsibility to determine whether an alien is deportable. Such determinations are made at a hearing, wherein, the alien facing deportation is entitled to be present. A.S.C.A. § 41.0605. Consequently, ASG is obligated to provide the alien, whose immigration status is at issue at the deportation hearing, with reasonable notice of the hearing, including the time and place of the hearing. A.S.C.A. §§ 41.0205(7)(a), 41.0607(a)(1); Farapo v. Am. Samoa Gov’t, 23 [**25**] A.S.R.2d 136 (App. Div. 1993). A deportation proceeding is not required if the alien, “admits [to] being deportable because he has remained beyond the time allowed [and] voluntarily departs from American Samoa at his own expense.” A.S.C.A. § 41.0601.

 

We found nothing in the record showing that the Immigration Board authorized the deportation of Bartolome and Amil. The record is similarly devoid of any document from the Immigration Board suggesting that deportation hearings for Bartolome and Amil had been scheduled or that they had been notified of such hearings. The Orders that Maluia and Iakopo presented to the TCF to have Bartolome and Amil released into their custody provides nothing about authorizing the immigration officers to transport Bartolome and Amil to the airport or to have them deported from the Territory. To the contrary, the Release Orders state that Bartolome and Amil “may be released from custody” because a “person in American Samoa” accepted the responsibility of ensuring that Bartolome and Amil would appear before the Immigration Office upon request. Therefore, it is indeed odd that Maluia and Iakopo would attempt to deport Bartolome and Amil with release orders that so clearly entitled the two plaintiffs to freely remain within and travel about the Territory. The fact that neither Bartolome’s and Amil’s attorney nor Tom Hardy (i.e., the responsible individual [**26**] ensuring that the two plaintiffs would appear at the Immigration Office upon request) were aware of their release further punctuates Maluia’s and Iakopo’s seeming unlawful conduct. The resistance Bartolome and Amil put forth from being removed from the TCF certainly settles any question as to whether they had volunteered to depart from the Territory.

 

Indeed, Maluia’s and Iakopo’s motivations for effectuating such removal from the TCF seem to violate well-established immigration laws and constitutional rights. Based on the facts before us, it is our impression that Maluia and Iakopo never intended to follow the Release Orders; instead, they used the Orders as a pretext to have custody over Bartolome and Amil transferred to them so that they could then expel the two plaintiffs from the Territory. Maluia’s and Iakopo’s attempt at deporting the two plaintiffs is made all the more egregious by the likelihood that the Immigration Officers were aware that they never had the authority to do so. After all, both officers had two days to confirm whether the Orders gave them the authority to expel Bartolome and Amil from the Territory and whether the Immigration Board had already made a determination over the deportability of the two plaintiffs. Given all of this, the idea that Maluia and Iakopo were acting under a mistaken belief of authority indeed seems preposterous. Such [**27**] facts are simply too hard to ignore. We are left seriously questioning whether or not Maluia and Iakopo had Bartolome and Amil removed from the TCF with the intent to expel them from the Territory knowing full well that deporting the two aliens was not only beyond their authority but also in violation of the law and well-settled constitutionally protected rights of the two plaintiffs.[8] Consequently, at this point, we believe qualified immunity does not shield Maluia and Iakopo from liability for any potential abuses of governmental power in which they may have engaged. [**28**]

 

Regarding Officers Leaea and Asi, it certainly does appear they were unaware Maluia and Iakopo intended to deport Bartolome and Amil when they transferred custody of the two plaintiffs over to the Immigration Officers. Nonetheless, the facts describing the methods and level of force the officers used to remove the two plaintiffs are sufficient to raise a genuine issue of whether the officers acted reasonably under the circumstances. Consequently, we find this matter merits further consideration. Rendering a final judgment by summarily dismissing the claims against Leaea and Asi without further considering the extent of the injuries Bartolome and Amil suffered together with their conduct and that of the officers indeed seems premature at this juncture.

 

Ieremia and Ripley, however, present a different story. The Amended Complaint is devoid of factual allegations that a conspiracy between these individuals and the other named defendants existed. Instead, it is littered with bald assertions and general statements that fail to convince us that Ieremia and Ripley are properly before us as defendants in this action. Moreover, the facts in the record fall short of convincing us that these individuals should be held liable for the conduct of the ASG officials when they forcibly removed Bartolome and Amil from the TCF. We certainly see nothing in the [**29**] record that would otherwise implicate a conspiracy involving these individuals. Consequently, it seems only proper that the Section 1983 claims against these two individuals be dismissed.

 

III. A genuine issue exists on whether ASG officials violated Bartolome’s and Amil’s substantive due process rights

 

Defendants further argue that the only due process violation alleged in Plaintiffs’ Complaint is their forcible removal from the TCF by ASG officials. Defendants conclude this alone does not deprive Bartolome and Amil of any liberty interest since they no longer had a right to remain in the TCF.

 

[12] Violations of a right specifically protected under the substantive component of the Due Process Clause of the Fourteenth Amendment are complete when the government official undertakes the wrongful action; consequently, claims for such violations are actionable under Section 1983. Zinermon v. Burch, 494 U.S. 113, 125 (1990).

 

[13] “The Due Process Clause of the Fourteenth Amendment was intended to prevent government ‘from abusing [its] power, or employing it as an instrument of oppression.’” Collins v. Harker Heights, 503 U.S. 115, 126 (1992) (quoting DeShaney v. Winnebago County Dept. Social Servs., 489 U.S. 189, 196 (1989)). The Court has long held that “the touchstone of due process is protection of the individual against arbitrary action of government.” County of Sacramento v. Lewis, 523 U.S. 833, 847 [**30**] (1998) (quoting Wolff v. McDonell, 418 U.S. 539, 558 (1974)). It is the substantive component of the Due Process Clause that protects individuals who have not been “seized” and are not prisoners but whom government officials have wrongfully subjected to excessive force amounting to punishment. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989); Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“Pre-trial criminal detainees in state custody are protected by the Due Process Clause of the Fourteenth Amendment against any conditions that constitute punishment.”).

 

[14] The Supreme Court has "repeatedly emphasized that only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’” Id. at 846 (quoting Harker Heights, 503 U.S. at 129). A government official whose action “shocks the conscience” violates substantive due process. Lewis, 523 U.S. at 847. “Thus, in a due process challenge to executive action, the threshold question is whether behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. at 847 n.8. Government officials who use force with the intent to harm an individual is an action that may be deemed shocking. Id. at 849 (“Conduct intended to injure in some way unjustifiable by any government interest is the sort of official [**31**] action most likely to rise to the conscience-shocking level.”). See also United States v. Salerno, 481 U.S. 739, 746 (1987).[9]

 

[15] Similarly, “the Fifth Amendment protects civil detainees in the custody of the United States from conditions that amount to punishment.” See Wong Wing v. U.S.¸ 163 U.S. 228, 237-38 (896). Immigration detainees are civil detainees and should receive the same level of due process protection as pre-trial criminal detainees. See Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000).

A civil detainee awaiting adjudication is entitled to conditions of confinement that are not punitive. A restriction is punitive where it is intended to punish, or where it is excessive in relation to its non-punitive purpose or is employed to achieve objectives that could be accomplished in so many alternative and less harsh methods, with respect to an individual confined awaiting adjudication under civil process, a presumption of punitive conditions arises where the individual is detained under conditions identical to or similar to, or more restrictive than those under which pretrial criminal detainees are held, or where the individual is detained under [**32**] conditions more restrictive than those he or she would face upon commitment.

Jones v. Blanas, 393 F.3d 918, 933-34 (9th Cir. 2004). Cf. Agyeman v. Corrections Corp. of Amer., 390 F.3d 1101, 1104 (9th Cir. 2004) (civil detention “may be a cruel necessity of our immigration policy; but if it must be done, the greatest care must be observed in not treating the innocent like a dangerous criminal.”).[10]

 

For purposes of this summary judgment order, we find enough facts for us to fairly assume that, at the time the ASG officials removed Bartolome and Amil from the TCF, the two plaintiffs likely were detainees. It certainly appears that way given that they never truly were released from ASG custody. Suffice it to say, if it is indeed true that Maluia and Iakopo removed the two plaintiffs from the TCF against their will with the intent to unlawfully expel them from the Territory then Bartolome and Amil may very well have suffered a substantive due process deprivation. The two plaintiffs committed no crimes other than overstaying their welcome. As plainly stated in the [**33**] Release Order, Bartolome and Amil rectified this violation. Consequently, the Attorney General signed the Release Orders approving their release from ASG custody and authorizing them to remain in the Territory. That Maluia and Iakopo attempted to deport Bartolome and Amil in contravention of the Release Orders is indeed very disconcerting and merits closer inspection. Such conduct may very well qualify as conscience-shocking and violate substantive due process. The fact that the ASG officials may have applied excessive force to remove Bartolome and Amil from the TCF further adds to the egregiousness of their conduct. Bartolome and Amil, for all intents and purposes, were free to leave on their own accord; however, this is not what may have happened.

 

As we have alluded above, we are unwilling to make a final determination on whether Bartolome and Amil were detainees or free individuals who were unlawfully seized in violation of the Fourth Amendment. There simply are too many questions about their status as detainees to discount Plaintiffs’ Fourth Amendment claims. It would indeed be error on our part to so quickly discount Plaintiffs’ Fourth Amendment claims if it turns out that the harms they suffered were seizures under the Fourth Amendment and not violations of their substantive due process rights. Furthermore, although it certainly appears Plaintiffs [**34**] have failed to plead sufficient facts in the Amended Complaint to render such Fourth Amendment claims plausible, a review of the entire record reveals that there are enough facts to raise genuine issues over the veracity of these claims. Accordingly, we are unwilling to dismiss Plaintiffs’ Fourth Amendment claims at this juncture.[11] What we are certain of, however, is that at no such time could Bartolome and Amil have been considered prisoners. Consequently, we see nothing in the record to support Plaintiffs’ Eighth Amendment claims.

 

We need not reiterate our refusal to ignore the information presented to us outside the pleadings that cause us to question the lawfulness of the government officials’ conduct. However, we also recognize that Plaintiffs’ Amended Complaint is grossly insufficient because it completely ignores everything that happened after Bartolome and Amil were forcefully removed from the TCF. Consequently, the picture the Amended Complaint paints seems to be one in which the ASG officials did nothing wrong when they forcefully removed the two plaintiffs from the TCF. This picture also seems to hold up even if we were to consider the two plaintiffs’ subsequent restraint and attempted deportation by Maluia and Iakopo. After all, the Amended [**35**] Complaint is clear; the only issue the plaintiffs preserve, regarding the way the ASG treated them that day, is how the ASG officials forcefully removed them from the TCF. We surmise from Plaintiffs’ affidavits, however, that this is not the only potential grievance the plaintiffs have against Defendants. Why so much of the Amended Complaint fails to mention details so crucial to their Section 1983 claims is beyond our ken. We are indeed tempted to limit the scope of the Section 1983 claims to that of the plaintiffs’ forceful removal from the TCF as maintained in its Amended Complaint. To do so would likely bar the plaintiffs from pursuing any of the Section 1983 claims and, possibly, the other claims against the ASG officials. However, it is our impression that such procedural failures have little to do with the plaintiffs themselves and more to do with their counsel. Constitutional rights are at stake here; we hardly think justice would allow us to extinguish so great a collection of rights because of the procedural fecklessness of Plaintiffs’ counsel. We, therefore, exercise our authority under T.R.C.P. 15 by offering Plaintiffs a final opportunity to amend their Complaint so that their Section 1983 claims are properly before this court. [**36**]

ORDER

 

We find that 42 U.S.C. § 1983 is a right of action available to the people in American Samoa. We partially grant Defendants’ Summary Judgment Motion and order that all Section 1983 claims against ASG, Ieremia, and Ripley be dismissed. We also partially deny Defendants’ Summary Judgment Motion and uphold Plaintiffs’ Section 1983 claims against Maluia, Iakopo, Leaea, and Asi. Lastly, we order that Plaintiffs amend their Complaint to properly bring their Section 1983 claims against Maluia, Iakopo, Leaea, and Asi before this court. Plaintiffs have 30 days to make all the necessary amendments to their Complaint. We warn Plaintiffs that a failure to properly amend the Complaint could result in a dismissal of the claims against these individuals.

 

It is so ordered.



[1] Defendants argue that the Fifth Amendment cannot be the source of due process in American Samoa because it is a territory under the complete control of the United States Government, and its constitution contains a due process clause placed there by the federal government. The inference, therefore, is that the federal government would not have included a due process clause in the American Samoa Revised Constitution if it intended for the Fifth Amendment to remain applicable to American Samoa since to do so would render the Fifth Amendment superfluous.

 

We disagree. Congress authorized Puerto Rico to draft its own constitution on a condition that Puerto Rico includes a bill of rights almost identical to that of the U.S. Constitution. Flores de Otero, 426 U.S. at 590-94. As is the case for American Samoa, the federal government has plenary control over Puerto Rico. Nonetheless, the Court recognizes that “the protections accorded by either the Due Process Clause of the Fifth Amendment or the Due Process and Equal Protection Clauses of the Fourteenth Amendment apply to the residents of Puerto Rico.” Id. at 600. We see no reason why American Samoa should be treated any differently. Therefore, as it is apparent to the United States Supreme Court where Puerto Rico is concerned, we find it equally apparent that the inclusion of a due process clause in a territorial constitution by the federal government does not automatically render the due process clause of the Fifth Amendment superfluous and inapplicable. To suggest that a fundamental right protected by the U.S. Constitution can so easily be set aside and replaced by a territorial constitution with nothing more than an inference based on speculation is indeed absurd.

 

[2] The test articulates the methodology developed from the case law over the years for determining whether a constitutional right is binding upon an unincorporated territory. The first prong is based on what the Supreme Court long ago determined through the Insular Cases, to wit: only those fundamental rights protected under the Constitution could ever qualify as a "fundamental limitation in favor of personal rights that are the basis of all free government." See Dorr, supra. Needless to say, not all fundamental rights are binding to unincorporated territories in the same way, and to the same extent, as they are bound to the federal government and the states.

 

Similarly, the impractical and anomalous prong of the test is not a novel conception for addressing the problem of determining what constitutional rights apply to unincorporated territories. The Supreme Court originally applied the impractical and anomalous prong to determine whether the Sixth Amendment right to a jury trial in a criminal case extends to U.S. citizens abroad. See Reid v. Covert, 354 U.S. 1 (1957). The District of Columbia Court of Appeals later applied the same prong in a tax evasion case addressing the issue of whether a U.S. citizen residing in American Samoa had a right to a jury trial. King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975). Citing Reid, the court in King explained that the issue of whether a constitutional right is binding upon a territory depends not so much on whether the territory is incorporated or the right at issue is fundamental, but on "whether in American Samoa circumstances are such that trial by jury would be impractical and anomalous." Id. at 1147 (quotations omitted).

 

In Banks v. Am. Samoa Gov't, we reaffirmed the Reid and Morton opinions by noting limitations of the Constitution's supreme authority over American Samoa. 4 A.S.R.2d 113 (Trial Div. 1987). In particular, we explained that the “rights which are regarded as fundamental in Anglo-American tradition but not in other free and civilized societies do not apply in an unincorporated territory, at least when they would tend to be destructive of traditional culture.” Banks, 4 A.S.R.2d at 124-25. See also King, 520 F.2d at 1147. We further noted that due process, as applied to American Samoa, "depends on whether the particular application in question is fundamental to ‘the basis of all free government,’ and on the burdens it would impose on the culture of the territory.” Id. at 126.

 

[3] Ironically, six years after Carter, Congress amended Section 1983 to include the District of Columbia. Act of Dec. 29, 1979, Pub. L. No. 96-170, § 1, 93 Stat. 1284.

 

[4] See Affidavits of Ruby Bartolome and Rhoderiza Amil, which Plaintiffs attached with their response to Defendants’ Summary Judgment Motion. Plaintiffs’ Opposition to Defendants’ Summary Judgment Motion. See also Officer Siaosi Leaea’s and Officer Asi’s Police Report.

[5] It is not entirely clear whether Maluia was the only officer present when Bartolome and Amil were forcefully removed from the TCF or whether Iakopo was also there. In their affidavits, which were attached to Plaintiffs’ Opposition to Defendants’ Summary Judgment Motion, Bartolome and Amil only mention Maluia being present at the time they were forcibly removed from the TCF over to Immigration custody. However, Officers Leaea and Asi mention, in their police report, that Iakopo and Maluia were present when they removed Bartolome and Amil to Immigration custody. Seeing that there is a genuine issue as to whether Maluia was acting alone or together with Iakopo when Bartolome and Amil were forcibly removed from the TCF, we find it premature to disregard Iakopo entirely; consequently, for purposes of this summary judgment order, we assume Iakopo was present.

 

[6] See n.4, supra.

 

[7] Bartolomes and Amils affidavits give us cause to question the legality of the removal of the two plaintiffs from the TCF.

 

[8] An alien’s right to a deportation hearing and counsel at that hearing is settled constitutional law.

If an alien is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the Fifth Amendment. He may not be deprived of his life, liberty or property without due process of law. Although it later may be established [the alien] can be expelled and deported, yet before his expulsion, he is entitled to notice of the nature of the charge and a hearing at least before an executive or administrative tribunal. . . . Not even Congress may expel him without allowing him fair opportunity to be heard.

Chew v. Colding, 344 U.S. 590, 596, 97-98 (1953). Furthermore, an alien facing deportation has a right to a hearing and a right to be represented by counsel at that hearing; this is too important a fundamental right to circumscribe. Snajder v. INS, 29 F.3d 1203, 1207 (7th Cir. 1994). Cf. A.S.C.A. § 41.0205.

 

It is without question Plaintiffs in the present matter were entitled to a deportation hearing. Such a constitutional right is well settled. We find nothing in the record showing that the ASG afforded Bartolome and Amil such a hearing at the time Maliua and Iakopo arrived at the TCF and took custody over the two plaintiffs. We also find no inkling of information suggesting that Bartolome and Amil voluntarily waived their rights to a deportation hearing.

[9] As discussed infra, bartolome and Amil are civil detainees more closely akin to pre-trial criminal detainees than prisoners. Keeping that in mind, the Supreme Court has held that deprivations of pre-trial detainee interests caused by government officials acting with deliberate indifference possess sufficient culpability to qualify any such abusive conduct as conscience-shocking; consequently, such conduct constitutes a substantive due process violation. Lewis, 523 U.S. at 849-51. The Court, however, cautions that deliberately indifferent conduct, by itself, is not so egregious that it patently qualifies as conscience-shocking behavior. Id. 850. “Substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking.” Id.

 

[10] We duly note that under A.S.C.A. § 41.0706, “Any person who refuses or fails to comply with any notice issued to him under the provisions of [the Territory’s immigration laws] or the rules [made under the immigration laws] with which he is required to comply, shall upon conviction be guilty of a class A misdemeanor and sentenced accordingly.” Indeed, it is partly because Bartolome and Amil had violated this statute that warrants for their arrest had been issued. It certainly appears that our own immigration laws liken Bartolome and Amil to that of criminal pre-trial detainees. Whether this truly is the case is a matter that merits further scrutiny and is beyond the scope of this summary judgment motion.

 

[11] “Where a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).