Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 1 of 17 1 2 LAW OFFICES OF MATTHEW C. DAVIDSON, LTD 5 1859 N Grand Ave, Suite 1 Nogales, AZ 85621-1386 (520) 281-0433 Matthew C. Davidson State Bar No. 015021 6 MARCHETTI LAW, PLLC 3 4 7 8 9 10 290 N. Meyer Avenue Tucson, Arizona 85701 (520) 334-2067 Brian Marchetti, brian@yourtucsonlawfirm.com State Bar No. 027193 Attorneys for Plaintiff 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 14 ASHLEY CERVANTES, a single woman, 15 Plaintiff COMPLAINT 16 v. 17 UNITED STATES OF AMERICA; UNITED STATES CUSTOMS AND BORDER PROTECTION AGENT SHAMEKA LEGGETT and “JOHN DOE” LEGGETT; UNKNOWN UNITED STATES CUSTOMS AND BORDER PROTECTION AGENTS; HOLY CROSS HOSPITAL, INC; ASCENSION ARIZONA, INC.; PATRICK F. MARTINEZ AND “JANE DOE” MARTINEZ; JOHN DOES 1-5; JANE DOES 1-5; XYZ CORPORATIONS 1-5; ABC PARTNERSHIPS 1-5 18 19 20 21 22 23 24 25 JURY TRIAL DEMANDED Defendants 26 27 28 For her Complaint, Plaintiff Ashley Cervantes (“Ashley”) allege as follows: Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 2 of 17 1 Parties, Jurisdiction and Venue 2 3 4 5 1. Ashley is a resident of Santa Cruz County, Arizona. 2. This action arises, in part, under 28 U.S.C. § 2671, et. seq., the Federal Tort Claims Act (“FTCA”) and is against Defendant United States of America through its 6 7 agency, the United States Customs and Border Protection (“CBP”). 8 9 3. Defendant United States is liable pursuant to the FTCA for the tortious conduct of federal employees while acting within the scope of their employment. 28 U.S.C. 10 11 §2671, et seq. Defendants Unknown United States Customs and Border Protection Agents 12 are employees of CBP. At all times relevant to this Complaint, these agents were acting in 13 the course and within the scope of their employment. They are sued in their individual 14 capacities. Those federal agents are referred to herein as the “CBP Agents” and will be 15 16 named as their true identities become known. 17 18 4. Defendant United States Customs and Border Protection Agent Shameka Leggett (“CBP Agent Leggett”) is an employee of CBP. At all times relevant to this 19 20 Complaint, she was acting in the course and within the scope of her employment. She is 21 sued in her individual capacity. Defendant “John Doe” Leggett is her spouse and CBP 22 Agent Leggett was, at all times material, acting on behalf of her marital community. CBP 23 Agent Leggett is included in the group of CBP Agents described and referred to in ¶ 3, 24 25 26 27 above. 5. Defendant Holy Cross Hospital, Inc. is an Arizona Corporation doing business in Santa Cruz County, Arizona. 28 -2- Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 3 of 17 1 2 6. Defendant Ascension Arizona, Inc. is an Arizona Corporation doing business in Santa Cruz County, Arizona. At all times material to this lawsuit, Ascension Arizona was 3 4 5 6 known as Carondelet Health Network, Inc. On or around October 13, 2015, Carondelet Health Network changed its corporate name to Ascension Arizona, Inc. 7. Defendants Holy Cross Hospital, Inc. and Ascension Arizona, Inc. are 7 8 9 10 11 collectively referred to herein as Holy Cross and, in fact, do business as Holy Cross Hospital. To the extent other parent companies and/or affiliate entities are discovered to also do business as Holy Cross, those entities are included in this lawsuit as XYZ defendants and Ashley will seek leave to substitute those entities’ true identity, if necessary. 12 13 14 15 8. Defendant Patrick Martinez, MD (“Dr. Martinez”) is a medical doctor employed by Holy Cross and who, at all times material, practiced medicine at Holy Cross. At all times relevant to this Complaint, he was acting in the course and within the scope of 16 17 his employment and/or as Holy Cross’ agent/servant. He is sued in his individual capacity. 18 Defendant “Jane Doe” Martinez is his wife and Dr. Martinez was, at all times material, 19 acting on behalf of his marital community. 20 21 9. The Defendants who are fictitiously designated are so designated because 22 their true identities are currently unknown to Ashley. John Does 1-5 and Jane Does 1-5 are 23 individuals who may be doing business in Santa Cruz County, Arizona, and may have 24 caused events to occur out of which Plaintiff’s claims arise. XYZ Corporations 1-5 and/or 25 26 ABC Partnerships 1-5 are corporations and/or partnerships and/or other business entities 27 that may be doing business in Arizona and may have caused events to occur out of which 28 Plaintiff’s claims arise. The fictitiously designated individual Defendants were acting for -3- Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 4 of 17 1 2 and on behalf of their respective marital communities, and all of the fictitious Defendants were acting in their capacities and/or were acting as agents, servants and/or employees of 3 4 other named and/or fictitiously named Defendants. Ashley requests leave to amend her 5 Complaint, if necessary, to allege the true names of the Defendants once their identities 6 have been accurately ascertained. 7 8 9 10 10. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §1331 because Ashley’s claims arise under the Constitution and laws of the United States of America. 11 12 13 14 11. This Court has subject matter jurisdiction over Defendant United States for the tortious actions of federal employees pursuant to 28 U.S.C. §1346(b)(1). 12. This Court has supplemental subject matter jurisdiction over Defendants Holy 15 16 Cross and Dr. Martinez pursuant to 28 U.S.C. §1367(a) because the claims asserted against 17 those Defendants are so related to claims in the action within such original jurisdiction that 18 they form part of the same case or controversy under Article III of the United States 19 Constitution. 20 21 22 23 13. Venue is proper in this district pursuant to 28 U.S.C. §1391(b)(2) and 28 U.S.C. § 1402(b) because the incident giving rise to this action occurred in this district and Ashley resides in the same. 24 25 26 Ashley Entered the United States without Any Contraband or Drugs 14. On the morning of Saturday, October 14, 2014, Ashley, a natural-born U.S. 27 28 Citizen, crossed the international border at the Nogales Port of Entry on foot. -4- Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 5 of 17 1 2 15. At that time, Ashley crossed from Nogales, AZ into Nogales, Sonora to have breakfast at a restaurant she frequented. 3 16. 4 5 After enjoying her breakfast, Ashley returned to the Port of Entry and, again on foot, crossed back into Nogales, AZ. 6 17. 7 Ashley did not possess any contraband at the time she left or re-entered the 8 United States. She identified herself as a U.S. citizen and presented the border official with 9 her Birth Certificate and her State of Arizona identification card. 10 18. 11 Upon Ashley’s re-entering the United States, she was approached and 12 confronted by a CBP Agent who accused her of possessing illegal drugs. Ashley denied the 13 same. 14 15 19. The CBP Agent became more aggressive in his questions and accusations. 16 That CBP Agent directed Ashley to follow him to a “detention” room, ostensibly for 17 additional questioning. Over the course of the next few hours, Ashley: 18 a. was handcuffed to a chair; 19 20 b. had a number of CBP K9’s sniff her person (a violation of CBP policy, which 21 prohibits the use of K9’s on a person); and, 22 c. was taken into a separate room, patted down, and asked to squat so female 23 24 investigators could visually inspect her. 25 26 20. Ashley, an extremely petite eighteen-year-old, was not “mirandized” or 27 advised of her rights as a U.S. citizen during that lengthy custodial detention and 28 interrogation for which she did not provide a knowing and/or willful consent. Moreover, her -5- Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 6 of 17 1 2 request to call her mother was denied. In addition, the scope and length of the custodial detention exceeded the “border search exception” to the extent such exception even applied. 3 4 5 6 21. The invasive pat-downs and searches conducted by the CBP Agents at the Nogales Port of Entry did not produce any evidence of contraband or internal drug smuggling. 7 8 9 22. Because Ashley did not possess any contraband, the K9’s that sniffed her either did not alert or the response was not a proper alert. 10 11 23. After no contraband of any kind was found on Ashley’s person, the CBP 12 Agents escalated the method and manner of their searches by requesting authority to 13 transport Ashley to a medical facility. 14 15 24. As set out in the United States Public Health Services Division of 16 Immigration Health Services’ Treatment Authorization Request (“TAR”), which was signed 17 by CBP Agent Leggett, Ashley was “diagnosed” as an alleged “potential internal carrier of 18 foreign substance” and the “course of treatment” was identified as “request for X-Ray”. It is 19 20 21 22 23 unclear what possible basis existed for CBP to use an Immigration Health Services’ form or procedure on a citizen of the United States. The Searches Continued Without Consent, a Warrant, or Sufficient Suspicion of Criminal Activity 24 25 26 25. Ashley was then taken, in custody and without her consent or any legal basis, to Defendant Holy Cross Hospital to allegedly undergo X-Rays. 27 26. Ashley was transported in handcuffs and was lead into Holy Cross cuffed. 28 -6- Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 7 of 17 1 2 27. From the time of her arrival until she was released from Holy Cross, Ashley did not present any symptoms consistent with internal drug smuggling nor did she exhibit 3 4 5 6 any symptoms of feeling sick or unwell. She was, however, in the midst of her menstrual cycle. 28. Without obtaining a knowing or willful consent, or obtaining an accurate 7 8 9 10 detailed medical history, agents/servants/employees of Holy Cross, including Dr. Martinez, searched Ashley for contraband. 29. The Holy Cross records from Ashley’s time at the facility include a number of 11 12 factual inaccuracies, including inaccurately setting out that Ashley was accompanied by her 13 mother and arrived in a private vehicle. In reality, Ashley was transported in a CBP vehicle. 14 Her handcuffs were not removed until she changed into a hospital gown for the alleged 15 purpose of undergoing an X-Ray. 16 17 18 30. Ashley was never X-rayed, despite that being the only “course of treatment” authorized by the TAR. 19 20 Ashley’s Anus and Vagina Were Probed without a Warrant, Consent or Any Suspicion of Internal Drug Smuggling 21 22 23 31. Even though prior searches resulted in no evidence of internal drug smuggling, the CBP Agents and Dr. Martinez continued the intrusion on Ashley’s body 24 without her knowing, willful consent and without a warrant. 25 26 27 28 -7- Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 8 of 17 1 2 32. In fact, Dr. Martinez, a male physician, entered Ashley’s room and, after asking a few cursory questions, brutally invaded her body on a warrantless and unjustified 3 4 5 search for contraband. 33. Dr. Martinez forcefully and digitally probed Ashley’s vagina and anus. 34. Ashley had never before been to a gynecologist and, for the remainder of her 6 7 8 life, will always remember that her first pelvic and rectal exams were under the most 9 inhumane circumstances imaginable to a U.S. citizen at a hospital on U.S. soil. 10 11 35. Ashley was shocked and humiliated by these exceedingly intrusive searches. 12 That an audience of CBP Agents and Holy Cross staff observed her being probed 13 compounded her feeling of degradation. 14 15 16 17 36. No drugs were found inside Ashley, who was then discharged from Holy Cross and transported, by CBP, back to the Port of Entry. 37. Ashley was released from custody without any charges at approximately 8:00 18 19 20 21 p.m., only after enduring roughly seven hours of dehumanizing, invasive and degrading searches. 38. Throughout the unreasonable searches of Ashley’s body cavities, she 22 23 24 25 continually denied smuggling drugs internally and continually refused consent for each search. 39. At no point during the searches of Ashley did the CBP Agents obtain a 26 27 warrant authorizing a search of her body. 28 -8- Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 9 of 17 1 2 40. The searches conducted by the CBP Agents, Holy Cross and Dr. Martinez injured Ashley physically, mentally and emotionally. Her labia, vaginal opening, and anus 3 4 5 6 7 were left raw and sore and she felt violated, demeaned and powerless as a result of the searches. The Searches That Injured Ashley Were the Inevitable Result of Holy Cross’ Custom and Practice of Handling Patients Brought by CBP Agents 8 9 10 11 41. Upon information and belief, Holy Cross’ policies on searches by hospital personnel does not permit an invasion of a person’s body for purposes of a search without either consent or a search warrant. However, upon information and belief, Holy Cross and 12 CBP agents routinely conduct invasive cavity searches without a warrant, consent or 13 14 15 sufficient suspicion to justify the searches. 42. Upon information and belief, Holy Cross’ doctors and nurses are not trained 16 on conducting law enforcement searches nor on the constraints the Fourth Amendment 17 18 places on those searches. Upon information and belief, Holy Cross’ staff have no process in 19 place to ensure that searches performed by hospital staff comport with constitutional limits. 20 As a result, Holy Cross’ personnel, who are untrained in the law, inevitably conduct 21 invasive, unreasonable law enforcement searches without sufficient justification and violate 22 23 24 the constitutional rights of the persons searched. 43. Given Holy Cross’ proximity to the border, its emergency room personnel 25 predictably confront situations where CBP officials bring individuals in for law 26 27 28 enforcement searches without a warrant. Consequently, Holy Cross’ failure to train its personnel on the constitutional limits constraining law enforcement searches amounts to a -9- Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 10 of 17 1 2 deliberate indifference to the violation of individuals’ constitutional rights, including Ashley’s rights. 3 4 5 6 44. Upon information and belief, these searches are not conducted by the doctors alone but also routinely involve supervising CBP agents. Upon information and belief, Holy Cross’ personnel and CBP agents’ routine invasion of a person’s body for law enforcement 7 8 9 10 purposes in an unreasonable manner and without a warrant or sufficient suspicion amounts to a pattern and practice. 45. Holy Cross and CBP’s pattern and practice of jointly conducting law 11 12 enforcement searches in an unreasonable manner and without a warrant or sufficient 13 suspicion, and without training Holy Cross’ employees on the constitutional limits 14 constraining those searches, injured Ashley and violated her constitutional rights. 15 Compliance with FTCA Administrative Claim Requirement 16 17 46. A timely written Notice of Claim was presented to CPB on June 12, 2015. 47. CPB acknowledged receiving that Notice of Claim but did not respond in any 18 19 20 substantive manner. As such, the Claim was deemed denied six months after it was 21 received, or on December 12, 2015. 22 24 COUNT ONE Unreasonable Seizure, False Arrest and False Imprisonment in Violation of the Fourth Amendment to the U.S. Constitution Against the CBP Agents 25 (Bivens Claim) 23 26 48. Ashley incorporates and realleges each and every previous allegation as 27 though fully set forth herein. 28 - 10 - Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 11 of 17 1 2 49. As a direct result of their actions set forth in this Complaint, the Defendant CBP Agents acted under the color of federal law to deprive Ashley of her right to be free 3 4 from unreasonable seizures, by seizing, arresting and detaining her without reasonable 5 suspicion or probable cause that she was committing a crime, in violation of the Fourth 6 Amendment to the U.S. Constitution. 7 8 9 50. This cause of action for the violation of Ashley’s Fourth Amendment right is brought pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). 10 11 COUNT TWO 12 Unreasonable Search in Violation of the Fourth Amendment to the U.S. Constitution Against the CBP Agents 13 (Bivens Claim) 14 51. Ashley incorporates and realleges each and every previous allegation as 15 16 17 though fully set forth herein. 52. As a direct result of their actions set forth in this Complaint, the Defendant 18 CBP Agents acted under the color of federal law to deprive Ashley of her right to be free 19 20 from unreasonable search in violation of the Fourth Amendment to the U.S. Constitution by 21 1) searching her person without reasonable suspicion or probable cause that she was 22 committing a crime; and/or 2) searching her person in a highly unreasonable manner that 23 invaded her right to bodily integrity and privacy. 24 25 26 53. This cause of action for the violation of Ashley's Fourth Amendment right is brought pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). 27 28 - 11 - Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 12 of 17 1 COUNT THREE 2 Deprivation of Due Process in Violation of the Fifth Amendment to the U.S. 3 Constitution Against the CBP Agents 4 (Bivens Claim) 5 6 7 8 54. Ashley incorporates and realleges each and every previous allegation as though fully set forth herein. 55. As a direct result of their actions set forth in this Complaint, the Defendant 9 CBP Agents acted under the color of federal law to deprive Plaintiff of her right to due 10 11 process by acting in a manner that shocks the conscience in violation of the Fifth 12 Amendment to the U.S. Constitution. 13 56. This cause of action for the violation of Ashley’s Fifth Amendment right is 14 15 brought pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). 16 17 18 COUNT FOUR Unreasonable Seizure, False Arrest and False Imprisonment in Violation of the Fourth and Fourteenth Amendments to the U.S. Constitution Against Defendant Martinez and Holy Cross 19 (Bivens Claim / 42 U.S.C. §1983 Claim) 20 57. Ashley incorporates and realleges each and every previous allegation as 21 22 23 24 though fully set forth herein. 58. As a direct result of his actions set forth in this Complaint and at the request and direction of the CBP Agents, Dr. Martinez acted under the color of state and federal law 25 26 27 to deprive Ashley of her right to be free from unreasonable seizures by seizing, arresting and detaining her without reasonable suspicion or probable cause that she was committing a 28 - 12 - Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 13 of 17 1 2 crime, in violation of the Fourth Amendment to the U.S. Constitution, as incorporated by the Fourteenth Amendment. 3 4 5 59. The custom and practice of Holy Cross caused the violation of Ashley’s right to be free from unreasonable seizures. 6 7 60. This cause of action for the violation of Ashley’s Fourth and Fourteenth 8 Amendment right is brought pursuant to 42 U.S.C. §1983 and/or Bivens v. Six Unknown 9 Agents, 403 U.S. 388 (1971). 10 COUNT FIVE 11 12 13 14 15 16 Unreasonable Search in Violation of the Fourth and Fourteenth Amendments to the U.S. Constitution Against Defendant Martinez and Holy Cross (Bivens Claim / 42 U.S.C. §1983 Claim) 61. Ashley incorporates and realleges each and every previous allegation as though fully set forth herein. 62. As a direct result of his actions set forth in this Complaint and at the request 17 18 and direction of the CBP Agents, Dr. Martinez acted under the color of state and federal law 19 to deprive Ashley of her right to be free from unreasonable search in violation of the Fourth 20 Amendment to the U.S. Constitution, as incorporated by the Fourteenth Amendment, by 1) 21 searching her person without reasonable suspicion or probable cause that she was 22 23 24 25 committing a crime; and/or 2) searching her person in a highly unreasonable manner that invaded her right to bodily integrity and privacy. 63. The custom and practice of Holy Cross caused the violation of Ashley’s right 26 27 to be free from unreasonable searches. 28 - 13 - Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 14 of 17 1 2 64. This cause of action for the violation of Ashley’s Fourth and Fourteenth Amendment right is brought pursuant to 42 U.S.C. §1983 and/or Bivens v. Six Unknown 3 4 5 6 7 8 Agents, 403 U.S. 388 (1971). COUNT SIX Deprivation of Due Process in Violation of the Fifth Amendment to the U.S. Constitution Against Defendant Martinez and Holy Cross (Bivens Claim / 42 U.S.C. §1983 Claim) 65. Ashley incorporates and realleges each and every previous allegation as 9 though fully set forth herein. 10 11 12 66. As a direct result of his actions set forth in this Complaint, and at the request and direction of the CBP Agents, Dr. Martinez acted under the color of state and federal law 13 to deprive Ashley of her right to due process by acting in a manner that shocks the 14 15 16 conscience in violation of the Fourteenth Amendment to the U.S. Constitution. 67. The custom and practice of Holy Cross caused the violation of Ashley’s right 17 to due process. 18 19 20 68. This cause of action for the violation of Ashley’s Fifth and Fourteenth Amendment right is brought pursuant to 42 U.S.C. §1983 and/or Bivens v. Six Unknown 21 Agents, 403 U.S. 388 (1971). 22 23 COUNT SEVEN 24 Negligent Hiring, Training and Supervision against Holy Cross 25 26 27 69. Ashley incorporates and realleges each and every previous allegation as though fully set forth herein. 28 - 14 - Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 15 of 17 1 2 70. Holy Cross hired, trained and supervised the employees/agents/servants who dealt with Ashley while she was in Holy Cross’ care. 3 4 5 6 71. Holy Cross was negligent in hiring, training and supervising their agents/employees who dealt with Ashley in that those agents/employees were not trained on conducting law enforcement searches nor on the constraints the Fourth Amendment places 7 8 9 10 on those searches. 72. As a direct and proximate cause of Holy Cross’ negligence, Ashley suffered injuries and damages. 11 12 13 14 COUNT EIGHT Assault and Battery Claim Against the United States for the Tortious Actions of its Federal Agents 73. Ashley incorporates and realleges each and every previous allegation as 15 16 17 18 though fully set forth herein. 74. The CBP Agents intentionally and knowingly caused physical contact with Ashley when they knew or should have reasonably believed that she would regard the 19 20 21 22 contact as offensive or provocative by conducting invasive searches of her and by directing invasive searches of her. 75. The CBP Agents committed these acts as employees of the United States 23 24 while acting in the scope of their employment: they acted within the scope of the general 25 authority granted to them, in furtherance of their employer's business, and for the 26 accomplishment of the objectives for which they were hired. 27 28 - 15 - Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 16 of 17 1 2 76. Pursuant to the Federal Tort Claims Act, Defendant United States is liable for the CBP Agents' actions. 3 4 COUNT NINE 5 False Arrest Claim Against the United States for the Tortious Actions of its Federal Agents 6 7 77. Ashley incorporates and realleges each and every previous allegation as 8 9 10 11 though fully set forth herein. 78. Without probable cause, the CBP Agents intentionally, knowingly and forcibly restrained Ashley against her will by subjecting her and directing that she be 12 13 14 15 subjected to approximately seven hours of invasive searches while in handcuffs. 79. The CBP Agents committed these acts as employees of the United States while acting in the scope of their employment: they acted within the scope of the general 16 17 18 19 authority granted to them, in furtherance of their employer's business, and for the accomplishment of the objectives for which they were hired. 80. Pursuant to the Federal Tort Claims Act, Defendant United States is liable for 20 21 the CBP Agents' actions. 22 JURY TRIAL DEMANDED 23 24 25 81. Ashley respectfully demands a jury trial. PRAYER FOR RELIEF 26 27 28 WHEREFORE, Ashley respectfully asks this Court to: a. declare that the actions of Defendants violated the U.S. Constitution; - 16 - Case 4:16-cv-00334-CKJ Document 1 Filed 06/08/16 Page 17 of 17 1 b. award compensatory damages in an amount to be determined at trial; 2 3 4 c. award punitive damages in an amount to be determined at trial; d. award attorney’s fees and costs pursuant to 42 U.S.C. §1988; and 5 6 7 f. grant such other and further relief as this Court deems proper Filed this 8th day of June, 2016 8 9 MARCHETTI LAW, PLLC 10 11 By: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 - /s/ Brian Marchetti Brian Marchetti Attorney for Plaintiff