IN THE I]NITED STATES DISTRICT COTJRT

FOR TIIE DISTRICT OF NEW MEXICO

MONCERRATH GUTIERREZ, on his
own behalf and on behalf of a class of
similarly situated persons; RICARDO
OLIVAS, on his own behalf and on behalf
of a class of similarly situated persons;
SUSANA PALACIOS-VALENCIA, on her
own behalf and on behalf of a class of
similarly situated persons; and
SOMOS I]N PUEBLO UNIDO,
Plaintiffs,

No.

vs.

CIV-14-

SAN ruAN COI.INTY BOARD OF

COMMISSIONERS; and KEN
CHRISTESEN, in his individual and
official capacities,
Defendants.

CLASS ACTION COMPLAINT FOR DAMAGES

FOR WOLATIONS OF CTYIL AND CONSTITUTIONAL
RIGIITS A}[D FOR DECLARATORY AND INJI.]NCTTVE RELIEF
Plaintiffs Moncerrath Gutierrez, Ricardo Olivas, Susana Palacios-Valencia and Somos
Un Pueblo Unido (collectively, "Plaintiffs"), by and through below-signed counsel, bring this
Class Action Complaint for Damages for Violations of Civil and Constitutional Rights and for

Declaratory and Injunctive Relief against Defendants San Juan County Board of Commissioners
and Ken Christesen (collectively, "Defendants"). Plaintiffs allege against Defendants upon

knowledge as to themselves and allmatters of public record, and upon information and belief as

to all other matters, as follows:

L
JURISDICTION AND VENUE
l

This Court has jurisdiction over this action pursuant to 2S U.S.C. $$

133 1 and

l3a3 (a)(3) and (4).

2.

Venue is proper in this Court pursuant to 28 U.S.C. $ 1391(b).

II.
PARTIES

3.

Moncerrath Gutierrez ("Gutierrez") is a resident of Farmington, New Mexico.

Gutierrez brings this action on his own behalf and on behalf of a class of similarly situated
persons.

4.

Ricardo Olivas ("Olivas"), also known as Ricardo Olivas Acosta, is a resident

Farmington, New

Mexico. Olivas

of

brings this action on his own behalf and on behalf of a class

of similarly situated persons.

5.

Susana Palacios-Valencia ("Palacios") is a resident of Farmington, New Mexico.

Palacios brings this action on her own behalf and on behalf of a class of similarly situated
persons.

6.

Somos Un Pueblo Unido ("Somos") was founded in 1995 and has an active

membership in ten New Mexico counties, including San Juan

dedicated to the protection of immigrants' civil

County.

rights. Since 1995,

Somos is an organization

Somos has been actively

involved in advocacy, legislation, and working with municipalities and detention facilities for the
protection of immigrants'

rights.

Somos brings this action on behalf

members of the class, for equitable relief

only.

of its members and the

The interests it seeks to protect are germane to

its purpose, and its members would otherwise have standing to sue in their own right.

7.

San Juan County Board of Commissioners ("San Juan County") is a political

subdivision of the State of New

Mexico.

Pursuant to

NMSA 1978,

all suits or

$ 4-46-1,

proceedings against a county are to be brought in the name of the board of county commissioners

of that county. At all times material hereto, San Juan County was a governmental entity and
local public body as those terms are defined in the New Mexico Tort Claims Act, NMSA 1978,
$$

4l-4-3(B) and (C). Pursuantto NMSA 1978,

$$

4-44-19,33-3-3 through 8, and 33-3-13,

San Juan County had a statutory obligation to provide for the confinement of prisoners

incarcerated under the county's

jurisdiction.

San Juan County had a statutory obligation to

appropriate funds and otherwise provide the necessary funding to maintain and operate a facility

for the incarceration ofprisoners under thejurisdiction ofthe county.

8.

Ken Christesen ("Christesen"), upon information and belief, is now and at all

times material hereto has been a resident of San Juan County, New

Mexico.

Since

approximately January 7,2011, Christesen has been the Sheriff of San Juan County. As San Juan
County Sheriff, Christesen is responsible for the operation of the San Juan County Detention
Center ("SJCDC"). In addition, at all times material hereto, Christesen was a law enforcement

officer and public employee, and was acting within the scope of his duties as well as under color
of

law.

He is sued both personally and in his official capacity.

9.

San Juan County and Christesen were responsible

for the screening, hiring,

training, monitoring, supervision and disciplining of subordinate employees of SJCDC, and were
the authorities empowering SJCDC employees to incarcerate prisoners under the jurisdiction
San Juan

County.

San Juan County and Christesen were directly responsible for the

policy-making activities and the supervision of subordinate officers of SJCDC.

of

10.

San Juan County and Christesen, through their officials, agents, servants, and

employees, were involved in and responsible for allthe acts hereinafter alleged. At alltimes

material hereto, San Juan County and Christesen, individually and/or acting through their agents,
officers and employees, acted in concert with one another and pursuant to a common plan and
objective, and each of the Defendants is responsible for the acts and omissions of the other
Defendants, and their agents, officers and employees, as co-conspirators, under the doctrine

of

respondeat superior, and under other doctrines of vicarious liability.

m.
BACKGROUND FACTS

11.

The Immigration and Customs Enforcement Division

United States Department of Homeland Security

("lCE")

("DHS"). ICE routinely

is a division of the

issues administrative

notices known as "ICE Holds" or "Immigration Detainers," requesting that local law
enforcement agencies take certain action with respect to persons in their custody who may be in

violation of federal immigration law.

12.

These notices are issued on a standard form known as a Form l-247.

"Immigration Detainer-Notice of Action" (hereinafter, "lmmigration Detainer"). The Form

l-247 provides a blank for the institution or law enforcement agency to which it is directed and a
blank for'Tllame of Alien," and is headed "MAINTAIN CUSTODY OF ALIEN FOR A

PERIOD NOT TO EXCEED 48 HOURS." The face of the Form I-247 lists four possible
"actions" that the DHS has taken related to the person in the recipient's custody, including that
ICE has "[i]nitiated an investigation to determine whether this person is subject to removal from
the United States";

"[i]nitiated removal proceedings and served

a Notice to Appear or other

charging document"; "[s]erved a warrant of arrest for removal proceedings"; or "[o]btained an

order of deportation or removal from the United States for this person."

13.

On information and belief, the vast majority of Immigration Detainers are issued

with the first box checked ("[i]nitiated an investigation to determine whether this person is
subject to removal from the United States"). On information and belief, ICE agents issue these

Immigration Detainers without probable cause to believe a person is removable from the United

States. The issuance of an Immigration Detainer does not indicate or establish that there has
been any prior determination by ICE or any other entity as to the person's immigration status.

On information and
not subject to

beliet ICE often issues Immigration Detainers in error on persons who

removal. ICE provides no meaningful way for a detainee to contest

are

an

Immigration Detainer that it has issued.

14.

The Immigration Detainer form requests, among other things, that the recipient

"[m]aintain custody of the subject for a period NOT TO EXCEED 48 HOURS, excluding
Saturdays, Sundays and holidays, beyond the time when the subject would have otherwise been
released from your custody, to allow DHS to take custody of the subject."

15.

The issuance of an Immigration Detainer does not ensure that ICE will take any

action to assume custody over a detainee. ICE may or may not come to pick up a detainee for

whom it has issued an Immigration Detainer.

16.

An Immigration Detainer is not a judicial order or a warrant. Instead,

an

Immigration Detainer is nothing more than a request to a law enforcement agency or detention

facility and is not legally enforceable.

17.

In the three years prior to the filing of this Complaint, ICE issued hundreds

of

Immigration Detainers to the Defendants through the SJCDC. According to Defendants, they
have honored every Immigration Detainer that they have

received. Defendants have a policy,

practice and custom of detaining persons based solely on Immigration Detainers.

18.

Individuals detained by Defendants pursuant to these Immigration Detainers

remain in the Defendants' Iegal and actual custody and Defendants are

fully liable for their

continued detention.

19.

The law has been clearly established throughout the time period encompassed by

the claims asserted herein that Immigration Detainers are mere administrative requests and do
not provide legal justification for the incarceration of individuals that ICE has asked to be
detained.

w.
CLAIMS OF THE NAMED PLAINTIFFS

20.

Paragraphs

I through

19 above are incorporated herein by reference as

if fully

set

forth in this paragraph.

Claims of Moncerrath Gutierrez

21.

Gutierrez is 41 years old and is a citizen of

New Mexico and is employed as a pipeline construction

Mexico. He resides in Farmington,

worker. Prior

to the incidents set forth

below, he had never been arrested and has no criminal record.

22.
Juan County

23.

On July 6,2012, Gutierrez was stopped by a deputy sheriff employed by the San

Sheriffs Department for failure to come to a complete stop at a stop sign.

The deputy sheriffdetained Gutierrez and contacted

appeared on the scene.

ICE.

Agents from ICE then

24.

Gutierrez was taken into custody by the agents from ICE and transported to the

SJCDC where he was booked and incarcerated.

25.

Gutierrez was detained by Defendants based on an Immigration Detainer issued

by ICE on July 6,2A12. That Immigration Detainer was directed to the SJCDC and states that
the DHS has "[i]nitiated an investigation to determine whether [Gutienez] is subject to removal

from the United States." The Immigration Detainer further states: "It is requested that you:
Maintain custody of the subject for a period NOT TO EXCEED 48 HOURS, excluding
Saturdays, Sundays and holidays, beyond the time when the subject would have otherwise been
released from your custody, to allow DHS to take custody of the

subject." No

basis was stated

for the investigation and, on information and belief, the Immigration Detainer was not
accompanied by an arrest warrant, statement of probable cause, removal or deportation order, or
any other charging document.

26.

Gutierrez was incarcerated at the SJCDC for three days based on the Immigration

Detainer. He was told that he could not be released because of the Immigration Detainer. He
was not given any opportunity to contest the Immigration

Detainer. He was not

released until

July 9, 2012, when he was released to the custody of ICE agents who transported him to an ICE
holding facilify in Albuquerque.

27.

Defendants and their employees, agents and representatives had no valid reason

for detaining Gutierrez. Rather, the detention of Gutierrez was undertaken pursuant to a blanket
and indiscriminate policy of holding detainees pursuant to Immigration Detainers, in violation

of

well-settled constitutional law.

28.

Gutierrez suffered damages

as a proximate cause

of this unlawful detention, as set

forth below.

Claims of Ricardo Olivas

29.

Olivas is 22 years old and is a citizen of Mexico. He resides in Farmington,

New Mexico and is self-employed as a landscaper and handyman.

30.

On July 11,2014, Olivas was stopped by a police officer employed by the

Farmington City

Police. He was cited for not having registration on his work trailer

and for not

having a driver's license.

3l.

The police officer detained Olivas and contacted

ICE.

Agents from ICE then

appeared on the scene.

32.

Olivas was taken into custody by the agents from ICE and ffansported to the

SJCDC where he was booked and incarcerated.

33.

On information and belief, Olivas was detained by Defendants based on an

Immigration Detainer issued by

ICE.

Olivas was incarcerated at the SJCDC for five days. He

was told that he could not be released because of his immigration

status. He was not given any

opportunity to contest his detention or to post bond. He was not released until July 15,2014,
when he was released to the custody of ICE agents who transported him to an ICE holding

facility in Albuquerque.

34.
for detaining

Defendants and their employees, agents and representatives had no valid reason

Olivas.

Rather, the detention of Olivas was undertaken pursuant to a blanket and

indiscriminate policy of holding detainees pursuant to Immigration Detainers, in violation

of

well-settled constitutional law.

35.

Olivas suffered damages as a proximate cause of this unlawful detention, as set

forth below.

Claims of Susana Palacios-Valencia

36.

Palacios is

4l

years old and is a citizen of

Mexico.

She is resident

of

Farmington, New Mexico and is employed as a housekeeper. Prior to the incidents set forlh
below, she had never been arrested and has no criminal record.

37.

On

April 13,2012, Palacios' brother

was stopped by an officer with the

Farmington City Police for a traffic violation while he was driving Palacios' vehicle. Palacios
was called to the scene. Upon arrival, the police officer ran her information and informed her
that she had an unpaid ticket on her record for not having

proofofinsurance. The officer then

detained Palacios and contacted ICE.

38.

Palacios was then transported to the SJCDC where she was booked and

incarcerated.

39.

Palacios was detained by Defendants based on a request issued by

request was made on

ICE.

That

April 14,2012 through an Immigration Detainer. That Immigration

Detainer was directed to the SJCDC and states that the DHS has "[i]nitiated an investigation to
determine whether [Valencia] is subject to removal from the United States." The Immigration
Detainer further states:

"It is requested

that you: Maintain custody of the subject for a period

NOT TO EXCEED 48 HOURS, excluding Saturdays, Sundays and holidays, beyond the time
when the subject would have otherwise been released from your custody, to allow DHS to take
custody of the

subject." No

basis was stated for the investigation and, on information and

belief, the Immigration Detainer was not accompanied by an arrest warrant, statement of
probable cause, removal or deportation order, or any other charging document.

40.

The following Monday, Palacios was taken before a localjudge and she advised

the judge that she had been making payments on the citation but that there was

still a balance

owed. The judge allowed her to pay the balance due and owing and informed her that she would
be released notwithstanding the Immigration Detainer.

41.

However, Palacios was not released but instead was retumed to the SJDC where

she was kept incarcerated

for an additional week based on the Immigration Detainer. She was

not given any opportunity to contest the Immigration Detainer.

42.

Palacios was not released from the SJCDC until

April 23,2012 when

agents from

ICE arrived at the SJCDC and Palacios was released into their custody.

43.

Defendants and their employees, agents and representatives had no valid reason

for detaining Palacios based on the Immigration Detainer. Rather, the detention of Palacios was
undertaken pursuant to a blanket and indiscriminate policy of holding detainees pursuant to

Immigration Detainers, in violation of well-settled constitutional law.

44.

Palacios suffered damages as a proximate cause of this unlawful detention, as set

forth below.

v.
CLASS ACTION ALLEGATIONS

45.

Paragraphs

I through 44,above, are incorporated herein by reference

as

if fully

set forth in this paragraph.

46.

The detentions to which Gutierrez, Olivas and Palacios were subjected were

performed pursuant to the policies, practices and customs of Defendants of holding detainees
solely based on Immigration Detainers.

l0

47.

This civil action is brought by Plaintiffs on their own behalf and on behalf of a

class of similarly situated persons, pursuant to Fed. R. Civ. P.

23.

The class for which Plaintiffs

seek certification is defined as follows: all persons who, in the period from three years prior

the date of the

filing of this

to

Class Action Complaint to the present and continuing until this

matter is adjudicated and the practices complained of herein cease, were detained at the SJCDC
pursuant to an Immigration Detainer.

48.

Gutierrez, Olivas and Palacios are all members of the class they seek to represent,

and have standing to bring this action because each was detained at the SJCDC pursuant to an

Immigration Detainer, as set forth in more detail above. Somos has standing to bring the claims

for injunctive and declaratory relief because the interests it seeks to protect are germane to its
purpose, and its members would otherwise have standing to sue in their own right.

49.

Pursuant to Fed. R. Civ. P. 23, Plaintiffs, individually and on behalf of the

members of the class, seeks such relief as is just and equitable, including but not limited to:

(i)

Complete disclosure of all information within the possession, custody or control

of

Defendants concerning, relating to or involving the detentions complained of herein;

(iD

(iii)

Judicial declaration that the detentions complained of herein are unlawful;

Issuance of a permanent injunction prohibiting Defendants from engaging in the

detentions complained of herein; and

(iv)

Judgment for compensatory and punitive damages to the fullest extent allowable by

law from Defendants in favor of Gutierrez, Olivas, Palacios and the members of the class for
personal and economic injury, and deprivation of statutory and/or common law rights resulting

from Defendants' practices.

1i

50.

Plaintiffs are unable to state precisely the size of the class. On information and

belief, Plaintiffs allege that there are more than 200 persons who were detained at the SJCDC
pursuant to Immigration Detainers in the three years prior to the filing of this Complaint, and
that number is continuing to increase. Thus, the class is sufficiently numerous that joinder of all
members herein is impracticable. The exact number of class members

will

be ascertained

through appropriate discovery, from records maintained by Defendants and their agents.

51.

Questions of law and fact are common to the claims of Plaintiffs and the members

of the class, including but not limited to (1) whether SJCDC officers routinely detain persons
pursuant to Immigration Detainers; and (2) whether Defendants' detention of persons pursuant to

Immigration Detainers is in accordance with the Constitution.

52.

Defendants have acted or refused to act on grounds generally applicable to the

class, thereby making appropriate final injunctive relief or corresponding declaratory relief

with

respect to the class as a whole.

53.

There is a well-defined community of interest amongst members of the class.

The claims of the named Plaintiffs are typicalof the claims of the members of the

class. The

factual bases of Defendants' misconduct are common to all class members and represent a
common policy and practice of detention pursuant to Immigration Detainers. Moreover,

Plaintiffs' claims are based on the same legal theories as those of the class members.

54.

The named Plaintiffs will fairly and adequately protect the interests of the class.

Plaintiffs are committed to prosecuting this action, and they have retained competent counsel
experienced in

civil litigation of this nature. Moreover, the interests of Plaintiffs are coincident

with, and not antagonistic to, those of the other members of the class.

l2

55.

The common questions of law and fact herein predominate over questions

affecting any individual class member, and class action treatment provides a superior method for
the fair and ef{icient adjudication ofthe controversy.

56.

At all times relevant to the acts alleged herein,

and as to every cause of action

asserted, Defendants acted fraudulently, oppressively, maliciously, and in knowing and

conscious disregard of Plaintiffs' rights and the rights of class members, as outlined herein.

vI.
FIRST CAUSE OF ACTION
(Civil Rights Violations Under 42 U.S.C. $ 1983)

57.

Plaintiffs incorporate by reference into the first cause of action the allegations of

paragraphs 1 through 56 above, as fully as if realleged and set forth herein.

58.

The above-described acts and omissions of Defendants were unreasonable,

shocking to the conscience, and were committed intentionally, maliciously,

willfully and/or with

reckless or deliberate indifference, and in violation of the following clearly established

constitutional rights of which a reasonable person would have been aware:

(a)

Plaintiffs' and class members' Fourth Amendment rights to be free from

unreasonable searches and seizures; and

(b)

Plaintiffs' and class members' Fourteenth Amendment rights to substantive and

procedural due process.

59.

The above-described acts and omissions of Defendants were motivated by evil

motive and intent, and involved recklessness and callous indifference to Plaintiffs' and class
members' federally protected rights, justifuing an award of punitive damages.

6A.

Prior to the acts and omissions alleged herein, Defendants failed to properly

l3

create, adopt, inculcate and ensure compliance with appropriate policies and procedures for

corrections officers and supervisory personnel employed by them; failed to properly train,
monitor, supervise and discipline corrections officers and supervisory personnel employed by
them, and failed to otherwise institute and ensure compliance with adequate procedures and
policies that would protect the rights of Plaintiffs and class members. These acts and omissions
were direct and proximate causes of the injuries complained of by Plaintiffs herein, as set forth
below.

61.

Defendants maintained a custom or policy which permitted or condoned the

foregoing violations of Plaintiffs' and class members' constitutional rights.

62.

The acts and omissions of the Defendants as set forth above were undertaken

under color of state law and operated to deprive Plaintiffs and the members of the class of their

federal

rights. Defendant San Juan County

acts and

is liable for damages proximately caused by these

omissions. Defendant Christesen is liable in his individual and official capacities for

damages proximately caused by these acts and omissions.

63.

As a direct and proximate cause of Defendants' violations of their constitutional

rights, Plaintiffs and members of the class suffered damages as set forth below.

YIL
SECOND CAUSE OF ACTION
(Declaratory and Inj u nctive Relief)

64.

Plaintiffs incorporate by reference into their second cause of action the allegations

of paragraphs I through 63 above, as fully as if realleged and set forth herein.

65.

Plaintiffs, on behalf of themselves and the members of the class, seek ajudgment

declaring that Defendants must cease the activities described herein and permanently enjoining

14

Defendantsfromanyfurtherdetentionspursuanttolmmigrationdetainers.
that:
seek a judgment declaring
Plaintiffs
Specifically'
66.

a.ImmigrationDetainersarerequestsandnotmandatoryorders,anddonot
anyone identified in
for Defendants to detain
provide any legal authority
;
such lmmi gration Detainers

b.ThedetentionofanypersonbasedsolelyonanlmmigrationDetaineris
Amendment;
prohibited by the Fourth

c.ThedetentionofanypersonbasedsolelyonanlmmigrationDetaineris
Amendment'
prohibited by the Fourteenth

6T,Plaintiffsalsoseekajudgmentenforcingthefollowinginjunctivereliefagainst
Defendants:

a.RequiringDefendantstoimmediatelyreleaseanypersonheldin
Detainer;
based on an Immigration
Defendants' custody

b'

in their custody in the

from detaining any person
Defendants
Enjoining
Detainer;
future based on an Immigration

c'RequiringDefendantstoadoptaclear'writtenpolicystatingthat
will not
and that the SJCDC
are requests only
Immigration Detainers
and
honor such requests;

d.RequiringDefendantstotrainandsuperviseallstaffwithrespecttothe
Immigration Detainers'
non-enforcement of

68.Theconstitutionalviolationsallegedhereinarisefromofficialpoliciesand
pfacticessanctionedbyDefendants.TheharmswhichthePlaintiffsandthemembersofthe

l5

class have sustained are directly traceable to these officially sanctioned policies and procedures.

69.

Plaintiffs and members of the class do not have a plain, adequate, speedy, or

complete remedy at law to address the wrongs alleged in this Complaint, and they

will suffer

irreparable injury as a result of Defendants' misconduct unless injunctive and declaratory relief
is granted. Plaintiffs and members of the class are in realand immediate danger of sustaining

future, direct injury as a result of Defendants' official policies and practices that are ongoing at
the time of this suit.

70.

No cognizable burden will be placed on Defendants by requiring that no

detentions be allowed pursuant to Immigration Detainers. The public interest would be greatly
enhanced by enforcement of policies and praetices which adhere to the requirements of the state
and federal Constitutions. Absent injunctive relief, there is no guarantee that the Defendants

will

cease their illegal policies and practices as alleged herein.

71.

By reason of the foregoing, Plaintiffs and members of the class are entitled to

declaratory and injunctive reliefas set forth above.

vIII.
DAMAGES

72.

Paragraphs

I through

70, above, are incorporated herein by reference as

iffully

set forth in this paragraph.

73.

As a direct and proximate result of the wrongful and unlawfulactions

of

Defendants, described above, Gutierrez, Olivas, Palacios and the members of the class were

injured and have suffered and continue to suffer damages, including but not limited to distress,
anguish, suffering, humiliation, costs, fees, loss of liberty, deprivation of constitutional rights,

l6

and other incidental, consequential, and special damages.

74.

The above-described acts and omissions of Christensen were motivated by evil

motive and intent, and involved recklessness and callous indifference to Gutierrez', Olivas',
Palacios' and class members' federally protected rights, justifuing an award of punitive damages
against Christensen in his individual capacity, for the purpose of punishment and to deter others

from the commission of like offenses.

WHEREFORE, Plaintiffs, on behalf of themselves, and on behalf of the members of the
class represented herein, respectfully pray for and demand judgment against the Defendants as

follows:

(a)

For judgment against Defendants for compensatory damages, special damages,

consequential damages and incidental damages under any or all of the causes of action, in an
amount to be determined at the trial of this cause;

(b)

For judgment declaring the rights of the parties, as set forth herein;

(c)

For injunctive relief, as set forth herein;

(d)

For reasonable attomeys' fees and costs incurred herein;

(e)

For pre-judgment and post-judgment interest in amounts to be determined

according to law;

(0

For an award of punitive and exemplary damages against Defendant Christensen

in his individual capacity, in an amount to be determined at the trial of this cause;
and

(g)

For such other and furlher relief as the Court deems just and proper.

t7

Respectfu

Ily submitted,

ROTHSTEIN, DONATELLI, HUGIIES,

DAHLSTROM, SCHOENBIJRG & BIEIWENU, LLP

/s/ John C. Bienvenu

John C. Bienvenu

Mark H. Donatelli
Kristina Martinez
Brendan K. Egan
Post Office Box 8180
Santa Fe, New Mexico 87504-8180

(505) e88-8004
(505) 982-0307 (fax)
Attorneys

for Plaintffi

l8

and the Class