IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 19-cv-01036 AMERICAN CIVIL LIBERTIES UNION OF COLORADO, Plaintiff, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendant. ______________________________________________________________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ______________________________________________________________________________ INTRODUCTION 1. 2. 3. Case 1:19-cv-01036 Document 1 Filed 04/09/19 USDC Colorado Page 2 of 12 4. Mr. Samimi?s death is one of many incidents highlighting serious de?ciencies in medical care in ICE detention. Fifteen months later, the public continues to seek answers as to what caused this tragedy. Nonetheless, ICE has kept the public in the dark. 5. This lawsuit seeks to remedy that wrong and to bring to light vital information of signi?cant public interest. JURISDICTION, VENUE, AND ADMINISTRATIVE EXHAUSTION 6. This Court has personal and subject matter jurisdiction over this action pursuant to 5 U.S.C. 552(a)(4)(B) and 28 U.S.C. 1331. 7. Venue is proper in the District of Colorado pursuant to 5 U.S.C. 552(a)(4)(B) and 28 U.S.C. 1391(6). Plaintiff?s principal place of business is in Denver, Colorado. 8. Plaintiff has exhausted its administrative remedies under 5 U.S.C. 552(a)(6) and 6 C.F.R. 5.8. PARTIES 9. Plaintiff American Civil Liberties Union of Colorado is a local af?liate of the American Civil Liberties Union (ACLU). It is a non-pro?t, nonpartisan 26 U.S.C. 501(c)(4) membership organization dedicated to the constitutional principles of liberty and equality. 10. The ACLU is committed to ensuring that the American government complies with the Constitution and laws in matters that affect civil liberties and human rights. The ACLU is also committed to principles of transparency and accountability in government, and seeks to ensure that the American public is informed about the conduct of its government in matters that affect civil liberties and human rights. The organization has a particular commitment to ensuring that fundamental constitutional protections of due process and equal protection are extended to Case 1:19-cv-01036 Document 1 Filed 04/09/19 USDC Colorado Page 3 of 12 every person, regardless of citizenship or immigration status, and that the government respects the civil and human rights of all people. 11. Dissemination of information to the public about actual or alleged government activity is a critical and substantial component of the mission and work. Speci?cally, the ACLU publishes a continuously updated blog, newsletters, news brie?ngs, ?Know Your Rights? documents, and other educational and informational materials that are broadly disseminated to the public. Such material is widely available to everyone, including individuals, tax-exempt organizations, not-for-pro?t groups, law students, and faculty, for no cost or for a nominal fee through the public education department and website. The websites of the ACLU and ACLU of Colorado each address civil rights and civil liberties issues in depth, provide features on civil rights and civil liberties issues in the news, and contain many thousands of documents relating to the issues on which the ACLU is focused. These websites also highlights information obtained through the FOIA process as well as analysis of that information. 12. Defendant US. Department of Immigration and Customs Enforcement (ICE) is a component of the US. Department of Homeland Security (DHS) and an agency within the meaning of5 U.S.C. 552(f)(l). FACTUAL ALLEGATIONS The Death of Kamvar Samimi 13. Kamyar Samimi entered the United States as a student in 1976. He became a Legal Permanent Resident in 1979. Mr. Samimi continued to live in the United States until his death on December 2, 2017. 14. 1 15. 2 16. 17. 18. 2 GEO Group, Inc., a private, for-profit prison corporation, operates ACDF under a contract with ICE. https://www.ice.gov/news/releases/denver-area-ice-detainee-passes-away-local-hospital 4 Case 1:19-cv-01036 Document 1 Filed 04/09/19 USDC Colorado Page 5 of 12 19. On October 4, 2018, ICE released a report regarding an internal inspection of ACDF conducted by The Nakamoto Group, Inc. This report contained the following details about Mr. Samimi?s death: At the time of admission, the detainee reported adult depression, heroine [sic] and methadone addiction and complaint of abdominal pain. As a result, the detainee was placed in medical observation directly from intake. The detainee began rather quickly complaining of nausea and vomiting and was observed to vomit blood. On the detainee was observed to have a bed sheet tied around his neck. As a result, he was placed on a Level 1, one-to-one constant suicide watch. On 12/2/201[7] at 11:00 am, the detainee was scheduled to be evaluated by the The detainee attempted to get into a wheelchair but vomited blood and collapsed. The detainee was noted to stop breathing, and EMS was contacted while medical personnel continued emergency treatment. The detainee was transported to the local community medical center where he was pronounced dead. The most likely cause of death was noted as ?the result of secondary to aspiration of bloody vomitus?. 20. ICE has not publicly released any more information about Mr. Samimi?s death. Public Concern Regarding Mr. Samimi?s Death and the Conditions at ACDF 21. Mr. Samimi?s death has generated signi?cant attention and concern, as demonstrated, by way of example, by the following complaints and reports. 22. On June 4, 2018, the American Immigration Council and the American Immigration Lawyers Association submitted a complaint to ICE, the DHS Of?ce for Civil Rights and Civil Liberties, and the DHS Of?ce of the Inspector General, regarding the to provide adequate medical and mental health care to individuals detained in? ACDF. The complaint noted that ?the recent death of Kamyar Samimi is particularly concerning? and ?highlights the grave responsibility ICE takes on when it chooses to detain an individual? particularly a long-time resident like Mr. Samimi who would have been well-positioned to seek needed medical care on his own were he living in the community.? 23. 24. 25. - 3 3 Conor McCormick-Cavanagh, , Westword (Mar. 8, 2019), https://www.westword.com/news/theres-just-one-medical-doctor-for-detainees-atimmigration-facility-in-aurora-11246966. 6 Case 1:19-cv-01036 Document 1 Filed 04/09/19 USDC Colorado Page 7 of 12 Plaintiff? FOIA Request and Defendant Response 26. On December 20, 2017, eighteen days after Mr. Samimi?s death, Plaintiff submitted a FOIA request to records custodian Via email at ice-foia@dhs. gov. Plaintiff FOIA request is attached hereto as Exhibit 1 and is incorporated by reference. 27. The request sought ?all records in possession pertaining to Mr. Samimi,? including but not limited to the following: a. ?All records pertaining to the circumstances leading to Mr. Samimi?s death, including but not limited to any and all medical and mental health records, reports, notes, forms, complaints, incident reports, supplementary reports, Witness statements, daily activity logs, incident detail reports, and Video and audio recordings.? ?All records pertaining to Mr. Samimi?s detention, including detainee location logs, kites, grievances, responses to kites and grievances, and medical and mental health screenings and assessments.? ?All records pertaining to arrest of Mr. Samimi on November 17, 2017 and investigation leading to that arrest.? ?All records pertaining to any investigations of the circumstances surrounding Mr. Samimi?s arrest, detention, and/or death that are being conducted by the ICE Of?ce of Professional Responsibility, ICE Of?ce of Detention Oversight, or any other US. Department of Homeland Security entity.? 28. Plaintiff requested expedited processing pursuant to 5 U.S.C. and 6 C.F.R. Case 1:19-cv-01036 Document 1 Filed 04/09/19 USDC Colorado Page 8 of 12 29. Plaintiff also applied for waiver or limitation of fees under 5 U.S.C. 552(a)(4)(A)(ii)(II) and and 6 C.F.R. and 30. On February 14, 2018, the ICE FOIA Of?ce responded to the request by email. This email is attached hereto as Exhibit 2 and is incorporated by reference. 3 1. In the email, ICE acknowledged receipt of Plaintiff?s FOIA request, invoked a statutory 10-day extension of time to respond, granted Plaintiff 3 request for a fee waiver, and denied Plaintiff?s request for expedited treatment. 32. On March 8, 2018, ICE FOIA Of?cer Catrina M. Pavlik-Keenan issued a written response to Plaintiff?s FOIA request. This response letter is attached hereto as Exhibit 3 and is incorporated by reference. 33. With this response, ICE produced ?ve pages of documents, which contained redactions. These ?ve pages were printouts of information from a database having to do with Mr. Samimi?s immigration case and immigration history. 34. The response indicated that ?a search was also tasked to the ICE Of?ce of Professional Responsibility (OPR) and it was determined that due to the open status of the ongoing investigation that any information pertaining to the investigation is withholdable [sic] in its entirety . . . 35. The letter further stated: ?Please be advised that once all pending matters are resolved . . . there may be other exemptions which could protect certain information from 9 disclosure . . . Case 1:19-cv-01036 Document 1 Filed 04/09/19 USDC Colorado Page 9 of 12 36. Plaintiff appealed this determination, pursuant to 5 U.S.C. 552(a)(6) and 6 C.F.R. 5.8, on May 25, 2018. Plaintiff?s appeal letter is attached hereto as Exhibit 4 and is incorporated by reference. 37. On July 3, 2018, ICE responded to Plaintiff? appeal via a letter from Erin J. Clifford, Chief of the Government Information Law Division, ICE Of?ce of the Principal Legal Division. This letter is attached hereto as Exhibit 5 and is incorporated by reference. 38. The letter stated: has determined that due [to] the completion of the investigation into Mr. Samimi?s death, new search(s) [sic] or, modi?cations to the existing search(s) [sic], could be made. Therefore, ICE is remanding your request to the ICE OIA Of?ce for processing and re-tasking to the appropriate to obtain any responsive documents.? 39. Also on July 3, 2018, ACLU of Colorado staff attorney Arash ahanian received a voicemail message from a blocked phone number. In the message, a person who identi?ed herself only as an ICE attorney stated that the investigation into Mr. Samimi?s death had closed and the requested records were ?now available.? She said the search was therefore being remanded to ICE FOIA, ?and they?re going to go ahead and process those records and get them out to you. I ?gured everybody likes good news the day before a holiday.? 40. On August 28, 2018, Mr. Jahanian sent an email to ice-foia@dhs. gov, requesting a status update. 41. On September 5, 2018, Mr. ahanian received an email response stating that ?the ICE FOIA Of?ce has received all responsive documents from corresponding program of?ces. Case 1:19-cv-01036 Document 1 Filed 04/09/19 USDC Colorado Page 10 of 12 They are currently being reviewed by a processor. Once that review is complete, they will be delivered directly to you.? 42. On December 13, 2018, Mr. Jahanian requested another update by email. As of the ?ling of this complaint, Plaintiff has yet to receive a response to that email. 43. As of the date of the ?ling of this Complaint, nine months since the July 3, 2018 communications and nearly sixteen months since Plaintiff submitted its FOIA request, Plaintiff has not received any other correspondence from ICE on the substance of its FOIA Request, nor has Plaintiff received any documents responsive to its Request beyond the ?ve pages ICE produced on March 8, 2018. 44. On April 8, 2019, Mr. Jahanian performed status checks on Plaintiff? FOIA request through the DHS website, 45. A status check using the number assigned to the original request, 2018-ICFO- 19753, resulted in the response: ?There is no FOIA request in the system for that number.? 46. A status check using the number assigned on appeal, 2018-ICAP-00322, resulted in the following information: Request Number: 2018-ICAP-00322 Received Date: 06/07/2018 Request Status: Disposition Accepted Estimated Delivery Date: 07/11/2018 Closed Date: Check performed on 04/01/2019 02:51:53 PM EDT Status information is current as of 03/26/2019 47. ICE is in possession and has control over the records sought by Plaintiff and has failed to make reasonable efforts to search for and produce records responsive to Plaintiff?s request in a timely manner. 10 48. CLAIM FOR RELIEF Violation of FOIA, 5 U.S.C. ยง 552(a) 49. 50. 51. 52. 53. WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in its favor and against Defendant, and: (a) (b) 11 (c) Respectfully submitted this 9th day of April 2019. /s/ Arash Jahanian Mark Silverstein Arash Jahanian ACLU Foundation of Colorado 303 E. Seventeenth Ave., Suite 350 Denver, Colorado 80203 Phone: 303.777.5482 Fax: 303.777.1773 Email: msilverstein@aclu-co.org ajahanian@aclu-co.org ATTORNEYS FOR PLAINTIFF 12