# Jama v. United States Immigration & Naturalization Service

> District Court, D. New Jersey · November 10, 2004 · 343 F. Supp. 2d 338

URL: https://www.frixlaw.com/law-library/cases/2518180

## Case

- **Full name:** Hawa Abdi JAMA, Et Al., Plaintiffs, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Et Al., Defendants; Samson Brown, Et Al., Plaintiff, on Behalf of Themselves and All Others Similarly Situated, v. Esmor Correctional Services, Inc., Et Al., Defendants
- **Court:** District Court, D. New Jersey
- **Decided:** November 10, 2004
- **Citations:** 343 F. Supp. 2d 338; 2004 U.S. Dist. LEXIS 22697
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Debevoise
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

OPINION
DEBEVOISE, Senior District Judge.
TABLE OF CONTENTS
Introduction.345
Background
.345
A. Procedural Background.345
1. The Brown Action.346
2. The Jama Action.347
B. The Pending Jama Motions.352
C. General Allegations of Facility Conditions.352
INS Officials
.:.353
Recent Legal
Developments.357
A. Sosa.357
B. Malesko .361
C. Statute of Limitations .363
D. RFRA.366
1. Constitutionality as Applied to Federal Government.367
2. Claims Against Individual Defendants for Money Damages .371
Discussion
.376
A. Issues Determined in 2004 Brown Opinion.376
*345
B. Summary Judgment Standard.377
C. Esmor.378
D. Esmor Officers .379
E. Esmor Guards.381
1. Hawa Abdi Jama.382
2. Anantharajah Jayakumar.382
3. Abu Bakar.382
4. Cecilia Roe Jeffrey.383
5. Abraham Kenneh.384
6. Dennis Raji.384
7. Agatha Serwaa.384
8. Shamimu Nanteza.385
9. Sarah Yower.385
10. Esmor Guards’ Motion Generally.385
Conclusion.385
Introduction
This is the second of two opinions that resolve numerous defense motions for summary judgment and for related relief in two actions instituted by undocumented aliens who were detained at a facility that the Immigration and Naturalization Service (“INS”) maintained in Elizabeth, New Jersey pending determination of their asylum status. Esmor Correctional Services, Inc. (now Correctional Services Corporation) (“Esmor”) operated the facility under contract with the INS.
The first action,
Brown v. Esmor Correctional Services, Inc., et al.,
Civil No. 98-1282 (“the
Brown
action”) is a class action that was filed in the Supreme Court of the State of New York on or about March 6, 1996. Defendants in the case removed it to the United States District Court for the Southern District of New York on April 10, 1996 based upon diversity and federal question jurisdiction. On March 11, 1998 that court transferred the action to this court.
The second action is
Jama v. United States Immigration and Natural Service, et al.,
Civil Action No. 97-3093, filed in this court on June 16, 1997. In a first amended complaint twenty individual plaintiffs named as defendants the INS, Esmor, forty-four named individuals and John and Jane Does 1-50
1
.
The defendants in each of these two actions filed motions for summary judgment and
for
related relief. Because the legal issues were more complex in the
Jama
action, the motions in the
Brown
action were addressed first and resolved in an opinion dated September 9, 2004,
Brown v. Esmor Correctional Services, Inc.,
334 F.Supp.2d 662 (D.N.J.2004) (the “2004 Brown Opinion”). A number of the legal issues are common to the two actions, and to the extent they were resolved in the Brown' Action they will be deemed resolved for the purposes of this action. For a complete understanding of the contentions raised in
Jama,
it will be necessary to incorporate herein portions of the
Brown
opinion.
Background
A. Procedural Background
The Plaintiffs in the
Broum
and
Jama
actions are foreign nationals and refugees who sought political asylum in the United States. They, were taken into custody by
*346
the INS and incarcerated at the facility that Esmor operated in Elizabeth (the “Facility”). Esmor manages and operates for-profit corrections and detention facilities for federal, state and local corrections and other agencies.
The Facility was in operation from approximately August 1994 to July 1995. On June 18,1995 the detainees rioted, and the Facility was shut down shortly thereafter. The detainees were transferred elsewhere in the United States or were deported.
In both the
Brown
and
Jama
actions the Plaintiffs allege that while they were detainees at the Facility they were tortured, beaten, harassed, and otherwise mistreated by Esmor guards, and that they were subjected to abysmal living conditions including inadequate sanitation, exercise, and medical treatment.
1. The
Brown
Action
The
Brown
action names a number of class Plaintiffs (reduced in number since the original complaint was filed) who sue on behalf of themselves and all others similarly situated. On April 24, 1998 the Court certified a class-namely, all detainees who were incarcerated at the Facility during its operation from August 1994 to July 1995. Originally the Brown action named as defendants corporations affiliated with Esmor and two of Esmor’s officers. Discovery proceeded. By order dated October 27, 2003 the claims against all the corporate entities other than Esmor and the claims against the officers were dismissed with prejudice. Thus Esmor remained the sole Defendant in the
Brown
action.
In view of the Supreme Court decision in
Correctional Services Corp. v. Malesko,
534 U.S. 61 , 122 S.Ct. 515 , 151 L.Ed.2d 456 (2001), which was decided after the
Brown
action was commenced, the plaintiff class acknowledged that its claims against Es-mor arising under the United States Constitution were no longer viable.
At the time Esmor’s motions were filed four claims remained in the
Brown
action: (i) a claim based on Esmor’s knowing, reckless, and intentional failure to properly screen, hire, train, and supervise its employees; (ii) a claim based on Esmor’s negligent hiring, training and supervision of the Esmor guards; (iii) a claim of Es-mor’s respondeat superior liability for the negligent and/or intentional acts of the Esmor guards whom it employed; and (iv) the claim of the plaintiff class members against Esmor as third-party beneficiaries of the Esmor contract with the INS for damages suffered as a result of Esmor’s breach of that contract. These are all state law claims.
In opposing the motion for summary judgment the
Brown
action plaintiffs made extensive use of the interim assessment report on the Elizabeth facility prepared by INS officials at the direction of INS Commissioner Doris Meissner. Esmor contended that the Report is inadmissible hearsay and contended that it had not been authenticated and was inadmissible under Fed.R.Evid. 403. The 2004
Brown
Opinion rejected these objections, and for the reasons set forth in that opinion they will be rejected in this opinion.
Relying on New Jersey law the court denied Esmor’s motion for summary judgment on the class plaintiffs’ claims based on negligent hiring, retention, training and/or supervision. The court granted Es-mor’s motion for summary judgment on the class plaintiffs’ claim that Esmor knowingly, recklessly and intentionally failed to screen, train and supervise employees and on the class plaintiffs’ claims as purported third party beneficiaries of the Contract between Esmor and the INS. As previously noted, in view of the Su
*347
preme Court decision in
Malesko
the Plaintiff class acknowledged that their claims against Esmor under the U.S. Constitution are no longer valid and that developments in the law since the commencement of the action had prompted them to withdraw their claims based upon 8 U.S.C. § 1362 .
2. The
Jama
Action
The
Jama
complaint was filed in this Court on June 16, 1997, a significant date, as will be noted below.
The Defendants fall into various categories: (i) Esmor, (ii) Esmor officers (“Es-mor Officers”), (iii) Esmor Guards (“Es-mor Guards”), (iv) the INS and (v) INS officials (“INS Officials”).
In the
Jama
action Plaintiffs asserted numerous claims against each of these categories of defendants. Counts 68-84 accused the Esmor Guards of violations of the First, Fifth, and Thirteenth Amendments to the United States Constitution, numerous provisions of the New Jersey Constitution, the International Covenant on Civil and Political Rights (“ICCPR”), customary international law, the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”), the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb, et seq. (“RFRA”), the Fair Labor Standards Act, and New Jersey law. With the exception of counts 80 (failure to compensate employees under the Fair Labor Standards Act) and 83 (failure to ensure the safety of Plaintiffs’ confiscated property under New Jersey law), all these counts asserted active violations of detainees’ rights by the guards themselves.
In counts 50-67 the
Jama
Plaintiffs made corresponding allegations against the Esmor Officers — predicating the officers’ liability for the actions of the guards on “failing to curb” the pattern of abuse, or “deliberate indifference,” and, in the case of the New Jersey tort law claims, on theories of respondeat superior and of negligent hiring, training, and supervision.
The claims against Esmor as a corporation (counts 31-49) were equivalent to those against the Esmor Officers, with the addition of a breach of contract claim (count 33) alleging that the
Jama
plaintiffs were third-party beneficiaries of Esmor’s contract with the INS and that they were harmed by Esmor’s breach of that contract. The language of count 37 was a little different from that of count 55: in the former the corporation was accused simply of failing to take appropriate steps to ensure that property was protected; in the latter the officers were accused of acting with deliberate indifference to the plaintiffs’ being deprived of property.
In counts 13-30 the
Jama
plaintiffs invoked the same rights against the INS Officials as they did against the Esmor Officers — advancing theories of liability based on omissions — “failing to curb” and “deliberate indifference.” In their claims under New Jersey law, the
Jama
plaintiffs alleged negligent hiring and supervision, the breach of a duty to ensure the safety of plaintiffs’ confiscated property, and the breach of a duty to ensure plaintiffs’ safety from abuse.
Finally, in counts 1-12 the
Jama
plaintiffs asserted claims against the INS— invoking New Jersey tort and contract law, the ICCPR, customary international law, the RFRA, and the ATCA. In all counts other than those invoking New Jersey law, INS liability was predicated upon its failure to curb abuses at the Esmor facility. In alleging violation of New Jersey tort law, the
Jama
plaintiffs advanced theories of respondeat superior, of negligent hiring and supervision, and of failure to ensure that plaintiffs could recover their confiscated property.
*348
In 1998 the INS moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment. INS Officials Alan Freiss, Norman Uzzle, Michael Rozos, Earline Boyer and David McLean joined the INS’s motion. The United States was substituted as a defendant as to the claims against the INS Officials based on New Jersey state law and the New Jersey constitution. The INS Officials urged that all of the remaining claims should be dismissed except those based upon the First and Fifth Amendments of the United States Constitution.
Esmor, the Esmor Officers and the Es-mor Guards (collectively, “the Esmor Defendants”) joined in the motion and argued for dismissal of several of the claims asserted against them: (i) those founded upon the Fair Labor Standards Act, (ii) the Thirteenth Amendment claims, (iii) claims arising under the New Jersey Constitution, (iv) the RFRA claims, (v) the ATCA claims, and (vi) claims arising under the ICCPR and customary international law.
The Court issued its opinion addressing the motion on October 1, 1998 (“the 1998 Opinion”),
Jama v. INS,
22 F.Supp.2d 353 (D.N.J.1998). The rulings in that opinion bear upon the pending motions for summary judgment, although intervening developments in the law affect some of those rulings.
The opinion dealt with the claims brought under international law and the effect of the ATCA, 28 U.S.C. § 1350 , which gives district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The opinion noted that for a treaty to confer rights enforceable by private parties it must be self-executing, that is, it must require no legislation to make it operative. The opinion further noted that none of the treaties or other international instruments upon which the
Jama
plaintiffs rely (including, for example, the ICCPR) are self-executing or have implementing domestic legislation, and they do not per se provide a basis for suit under the ATCA. Rather, the
Jama
plaintiffs rely upon them to establish what constitutes the current “law of nations,” or international law, that may be sued upon under the ATCA. The opinion held that international law was available to plaintiffs notwithstanding the fact that plaintiffs had available to them domestic law remedies:
For the purposes of the present motions, the allegations of the complaint must be accepted as true and all reasonable inferences favorable to plaintiffs must be drawn from them. When this is done, it is evident that the totality of the treatment to which plaintiffs were subjected violated customary international law as it is now established.
The mental and physical abuses which are alleged to have been inflicted upon plaintiffs violate the international human rights norm of the right to be free from cruel, unhuman and degrading treatment. The ATCA confers federal subject matter jurisdiction when i) an alien sues ii) for a tort iii) committed in violation of the law of nations (i.e., international law),
Kadic[ v. Karadzic],
70 F.3d [232] at 238 [(2nd Cir.1996)]. The complaint sufficiently alleges all three jurisdictional requirements.
22 F.Supp.2d at 363 .
The opinion also held that the availability of other remedies did not bar on ATCA action:
Contrary to defendants’ argument, there is no absolute preclusion of international
*349
law claims by the availability of domestic remedies for the same alleged harm.
Perhaps if there were domestic law in conflict with the norms of international law, domestic law should prevail. That is not the case here where domestic law is consistent with international norms. There is nothing in the ATCA which limits its application to situations where there is no relief available under domestic law. There is no reason why plaintiffs cannot seek relief on alternative grounds.
22 F.Supp.2d at 364
As to the INS, the 1998 Opinion held that [t]he ATCA, in providing jurisdiction and a right of action under the law of nations, does nothing to displace sovereign immunity, and plaintiffs’ claims against the INS based on the ATCA must be dismissed.” 22 F.Supp.2d at 365 .
As to the INS Officials, the 1998 Opinion held that, because they were being sued in their individual capacities, they are not entitled to sovereign immunity and that the viability of the
Jama
plaintiffs’ ATCA claims against them had best be decided in the context of a motion for summary judgment.
Similarly Esmor’s, the Esmor Officers’ and the Esmor Guards’ motions to dismiss were denied. The 1998 Opinion held that the Esmor Defendants “were performing governmental services. Thus they were state actors and it is unnecessary to address the question raised in
Kadic,
namely the extent to which non-state actors can be sued under the ATCA.” 22 F.Supp.2d at 365-66 .
The ATCA rulings with respect to the INS Officials were applicable to the ATCA claims against the Esmor defendants and required that their motions to dismiss be denied.
2
It is unnecessary to set forth the rationale for the remaining conclusions recited in the 1998 Opinion. A summary of the rulings is set forth the opinion’s conclusion:
The INS motion to dismiss i) all claims brought against it under ATCA or otherwise based upon customary international law, ii) claims brought against it under the FTCA; iii) claims brought against it arising out of the New Jersey Constitution and iv) claims against it deriving from the contract between Es-mor and INS will be granted. The INS motion to dismiss claims arising under RFRA will be denied without prejudice to renewal of the motion.
The First Amended Complaint in this action will be amended to name the United States the defendant on plaintiffs’ FTCA claims, and the United States shall be deemed to have moved to dismiss plaintiffs’ FTCA claims. The motion of the United States to dismiss the FTCA claims will be granted except with respect to the property claims of plaintiffs who submitted administrative property loss claims setting forth the amounts or estimated amounts of their property losses.
3
The motion of the INS Officials to dismiss i) claims brought against them under ATCA based upon customary international law, ii) claims brought against
*350
them arising under RFRA, iii) claims brought against them arising under the Thirteenth Amendment of the United States Constitution and iv) claims brought against them arising under FLSA will be denied without prejudice to renewal of the motion after discovery has been substantially completed. The motion of the INS Officials to dismiss claims brought against them under New Jersey tort and constitutional law is granted.
The motion of the Esmor defendants to dismiss i) claims brought against them under ATCA based upon customary international law, ii) claims brought against them arising under RFRA, iii) claims brought against them arising under the Thirteenth Amendment of the United States Constitution, and iv) claims brought against them arising under FLSA will be denied without prejudice to renewal of the motion after discovery has been substantially completed.
4
22 F.Supp.2d at 372
On October 30, 2001 the United States and the INS settled the
Jama
plaintiffs’ claims. The settlement agreement provides:
1. In this Settlement Agreement, plaintiffs and the government defendants settle any and all claims filed against the INS and/or the United States, including those stated in the first amended complaint filed on September 23, 1997, in
Jama, et al. v. INS, et al.,
Civ. No. 97-3093(DRD) (D.N.J.) (the “lawsuit”), alleging,
inter alia,
tort liability for damage to property and for emotional damages, violations of United States obligations under various international treaties, and violations of the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb.
The
Jama
plaintiffs contend that this agreement simply settled their RFRA claims against the United States and the property loss claims of five of these plaintiffs against the United States and did not settle their multiple claims against the INS Officials. That is an issue that remains to be resolved on the motion of the INS Officials for summary judgment.
At a very late date in the proceedings there arose the question whether the
Jama
plaintiffs had effectively opted out of the
Brown
action and whether they should be precluded from proceeding independently. By reason of the extraordinary difficulties that counsel for the
Jama
plaintiffs had encountered communicating with their clients, they had not complied with the literal provisions of the order governing requests for exclusion. The magistrate judges handling this case and this Court entered several orders dealing with this problem. It is unnecessary to recount the details of the proceedings. Suffice it to say, by a June 10, 2003 order
5
the Court ruled that the following persons who were originally named as plaintiffs in the
Jama
action had successfully opted out of the
Brown
action and continued as individual plaintiffs in the
Jama
action:
Hawa Abdi Jama
Anantharajah Jeyakumar
Abu Bakar
Cecilia Kou Jeffrey
Abraham Kenneth [Kenneh]
Dennis Raji
*351
Agatha Serwaa
Shamimu Nanteza
Sarah Tetteh Yower
The other persons named as plaintiffs in the
Jama
action have failed to opt out effectively and consequently are members of the
Brown
action class. They will be dismissed from the
Jama
action without prejudice to their right to pursue their class action remedies.
6
As a result of these developments in the
Jama
action only the nine individual Plaintiffs listed above remain in the case.
7
There are four categories of defendants: (i) the INS Officials, (ii) Esmor, (iii) Esmor Officials and (iv) the Esmor Guards.
The INS Officials who are defendants and subject to the jurisdiction of the Court are Michael Rozos, Earline Boyer, Alan Friess and Norman Uzzle.
8
The claims against these Defendants surviving the 1998 Opinion were (i) a Fifth Amendment due process claim based on the alleged failure to curb the pattern of abuse at the facility, (ii) alleged violations of customary international law as informed by various treaties and conventions; (in) a First Amendment claim that these defendants acted with deliberate indifference towards the
Jama
plaintiffs’ attempts to exercise their religions, (iv) violation of RFRA, 42 U.S.C. § 2000 b, et seq., by substantially burdening these plaintiffs’ right to free exercise of their religions, (v) violation of the Thirteenth Amendment by acting with deliberate indifference towards the
Jama
plaintiffs engaging in forced, unpaid labor, (vi) alleged violation of FLSA
9
and (vii) alleged violation of the ATCA.
The claims against Esmor are as follows
10
: (i) a claim based on the ATCA on account of alleged violations of customary international law; (ii) alleged violation of RFRA; (iii) New Jersey state law claims of failing to protect Plaintiffs’ property, negligent hiring, training, supervision and retention of its employees, and intentional infliction of emotional distress; (iv) a claim for breaches of the contract between the INS and Esmor under which the
Jama
plaintiffs were allegedly third party beneficiaries. The claims listed in (iii) and (iv) above correspond with claims that the
Brown
action advances.
The Esmor Officers are James Slattery (Esmor’s President and CEO), Aaron Speisman (Esmor’s Vice President of Finance), John Lima (a facility administrator for a period of time and assistant facility administrator for a period of time), Willard Stovall (facility administrator for a period of time) and Richard Staley. The claims asserted against these officers are as fol
*352
lows: the claims listed as claims (i) through (vii) asserted against the INS Officials and (viii) New Jersey state law claims of failing to protect plaintiffs’ property, negligent training and supervision.
The Esmor Guards are Willie 0. Hunter, Michael Jackson, Tommie Lee Brown, Robert Snead, Okay Nkenke, Phillip Johnson, Kevin Brodie, Dorian Hunter, Michael Melendez, James Stratford, Corey Strat-ford, and Irving Brown. Of necessity the claims against each Esmor guard are unique to that guard, and each guard’s summary judgment motion can only be resolved in the context of his own actions or inactions. In general terms the claims asserted against the guards are similar to most of the ATCA and international law claims, constitutional claims and state law claims that are asserted against the INS Officials.
B. The Pending
Jama
Motions
In the
Jama
action the following motions were filed:
The INS Officials moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the plaintiffs’
Bivens
(First, Fifth and Thirteenth Amendment) claims for failure to state a claim in that they are barred on their face by the applicable statute of limitations. They also moved for summary judgment on the remaining claims against them.
Esmor and the Esmor Officers moved for summary judgment.
Esmor officer Stovall moved for summary judgment.
Esmor Guards Willie 0. Hunter and Jackson moved for summary judgment. The claims against Willie 0. Hunter were dismissed at oral argument with Plaintiffs’ consent (June 30, 2004).
Esmor Guards Tommie Lee Brown, Snead, Nkenke, Johnson and Brodie moved for summary judgment. The claims against Tommie Lee Brown and Snead were dismissed at oral argument with Plaintiffs’ consent (June 30, 2004).
Esmor Guards Dorian Hunter, Michael Melendez, James Stratford and Corey Stratford moved for summary judgment. The Claims against James Stratford and Corey Stratford were dismissed at oral argument with Plaintiffs’ consent (June 29, 2004). (A consent order granting summary judgment in their favor was entered in favor of James Stratford and Corey Stratford on July 13, 2004.)
Esmor guard Irving Brown moved for summary judgment and moved for leave to file an amended answer to assert the affirmative defense of qualified immunity. The claims against him were dismissed at oral argument with plaintiffs’ consent June 29, 2004. Subsequently, an order granting summary judgment in his favor was entered on July 13, 2004.
11
C. General Allegations of Facility Conditions
Ultimately it will be necessary to deal with the evidence that each individual plaintiff proffers to establish his or her claim, and by the same token it will be necessary to marshal the evidence against each defendant separately, recognizing, of course, that under the doctrine of respon-deat superior the actions of Esmor guards and officers may be attributed to Esmor.
*353
It will be useful at the outset to set forth in broader terms the kinds of conduct and conditions upon which the
Jama
plaintiffs rely.
Plaintiffs alleged that conditions in the Facility were subhuman. Twenty to forty detainees were held in large, one-room dormitories. They were often overcrowded and by reason of lack of beds mattresses were placed on filthy floors. Dirty showers and toilets were located near plaintiffs’ sleeping and eating areas. The dorms smelled of human waste, and showers and toilets were often broken and remained unrepaired. The detainees were given inadequate cleaning materials and could not clean their living areas. There was a lack of privacy when plaintiffs used the toilets and showers, where they were visible from each other and from guards who taunted and mocked them.
The guards joked about detainees’ sexual organs and ridiculed both men and women while they showered. The temperature in the Facility was freezing in the winter and stifling in the summer. Complaints went unanswered. In the worst of the heat detainees were forced to work unbearable hours.
The detainees were deprived of sleep. Bright lights were kept on 24 hours a day. Blankets were yanked from detainees heads when they sought to escape the glare. Guards woke up the detainees during the nights, taunted them, created loud noise and occasionally sexually abused them.
Plaintiffs were deprived of both indoor and outdoor recreation and such recreation facilities as there were, were totally inadequate.
The food was both inadequate and spoiled; the tap water was dirty. Foreign materials were found in the food and liquids. As a result detainees suffered from intestinal problems — diarrhea and vomiting. When they purchased supplemental food from the commissary much of it was stolen before delivery to them.
The plaintiffs were given inadequate clothing and that which was given to them was often filthy. Similarly towels, sheets and blankets were filthy when they were given at all. There was a lack of toilet paper, sanitary napkins and other basic hygiene products such as soap, razor blades, toothbrushes and toothpaste.
Detainees were beaten, confined without cause to solitary confinement and sexually abused and humiliated on repeated occasions. Complaints of such conduct fell on deaf ears.
Racial epithets were commonplace; strip searches were unjustified and abusive; access to legal materials and counsel was denied; religious dietary laws were not accommodated and in many ways plaintiffs’ religious rituals and prayers were interfered with; proper medical care was denied.
The Facility was understaffed, and its staff was inexperienced and lacked proper training.
These general conditions and kinds of conduct are disclosed in graphic detail in the testimony and interrogatory answers of detainees, in the INS Investigative Report and in documents.
INS Officials
The settlement agreement between the plaintiffs and the United States and INS, dated on or about October 30, 2001, settled
any and all claims
between the parties. The INS Officials Friess, Uzzle, Rozos and Boyer
12
asserted that as a result of this settlement, all claims brought
*354
by the plaintiffs against both the INS and its Officials have been barred. The specific language of the settlement agreement states:
In this Settlement Agreement, plaintiffs and the government defendants settle
any
and,
all claims
filed against the INS and/or the United States, including those stated in the first amended complaint filed on September 23, 1997 in
Jama, et al. v. INS, et al.,
Civ. No. 97-3093(DRD) (D.N.J.) (The “lawsuit”), alleging,
inter alia,
tort liability for damage to property and for emotional damages, violations of United States obligations under various international treaties, and violations of the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb.
The language of the settlement agreement is unequivocal. The dispute arises-with respect to this settlement agreement and is specifically authorized by the Federal Tort Claims Act (“FTCA”) 28 U.S.C. § 2672 . That section provides:
The acceptance by the claimant of any such award, compromise, or settlement shall be final and conclusive on the claimant, and shall constitute a complete release of any claim against the United States and against the employee of the government whose act or omission gave rise to the claim, by reason of .the same subject matter.
The INS Officials argue that by virtue of the settlement agreement, § 2672 takes effect, and that once the plaintiffs have accepted payment through the settlement, they have given up
all
claims against the government and its employees, here the INS Officials. Plaintiffs argue that while § 2672 does exempt government employees, if acting in the scope of their employment, from further suit, this is merely a tort statute and therefore the non-tort claims included in the settlement agreement, which have no such provision, are still valid as against those employees. Consequently, plaintiffs contend that the INS Officials are still liable to plaintiffs on the subsequent non-tort claims (RFRA, international law, etc.). The language of both the settlement agreement and § 2672, shows that plaintiffs’ argument is incorrect.
The FTCA is a jurisdictional statute permitting suit against the United States on a limited category of tort claims. Non-tort claims are covered by the settlement agreement. The fact that the settlement agreement includes tort claims triggers the application of § 2672. Once § 2672 has been implicated it applies to all claims that have arisen out of the “same subject matter.” All claims are now barred as against the INS or its officials because they each arose out of the same conduct by the INS Officials and are by reason of the same subject matter.
Plaintiffs contend that the INS Officials are not entitled to the statutory immunity conferred by the FTCA by virtue of the Westfall Act.
Plaintiffs note 28 U.S.C. § 2679 (b)(1) which provides that “[t]he remedy against the United States provided by sections 1346(b) and 2672 ... is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim ...” and that “[a]ny other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee ... is precluded without regard to when the act or omission occurred.” Plaintiffs contend, however, that they are within one of the two exceptions to § 2679(b)(2)(B):
Paragraph (1) does not extend to or apply to a civil action against an employee of the Government
*355
(B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.
Plaintiffs argues that their ATCA claims fall squarely within the statutory exception because they are brought for a violation of a statute, the Alien Tort Claims Act, under which an action against them is authorized. This argument fails because, as will be discussed in the next section of this opinion and in light of the Supreme Court’s opinion in
Sosa v. Alvarez-Machain,
— U.S.-, 124 S.Ct. 2739 , 159 L.Ed.2d 718 (2004), plaintiffs cannot proceed under the ATCA against the INS Officials. Thus the exception contained in § 2679(b)(2)(B) is not applicable.
In light of the foregoing the motions of the INS Officials for summary judgment will be granted.
Esmor Facility Administrator Willard Stovall, joined by the other defendants, argues that all of the
Jama
plaintiffs’ claims are barred by the dismissal and settlement of their FTCA claims against the United States. As set forth above, the claims against the INS Officials are barred by reason of that settlement. Stovall contends that he, and the other Esmor employees, were “employees of the government” and consequently, entitled to the same protection against further suit as that enjoyed by the INS Officials.
Stovall notes, accurately, that the settlement of plaintiffs’ property claims pursuant to § 2672 of the FTCA, effects a “complete release” of “any claim” related to the settled claim against any employee of the Government. Stovall further notes that the FTCA, at § 2671 defines “employee of the government” in pertinent part as follows:
“ ‘Employee of the government’ ” includes officers or employees of any federal agency ... and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.”
Section 2671 also provides in pertinent part:
“... ‘Federal agency’ includes the executive departments ... and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.”
It is Stovall’s contention that under the circumstances of this case he must be deemed an “employee of the government” under the FTCA and thus entitled to the benefit of the bar against plaintiffs’ remaining claims even though Esmor operated the Facility under a contract with the INS and Stovall was an Esmor employee.
To support his argument Stovall distinguishes the circumstances of this case from the circumstances in
Logue v. United States,
412 U.S. 521 , 93 S.Ct. 2215 , 37 L.Ed.2d 121 (1973), which held that county jail employees were employees of a contractor with the United States and could not be treated as employees of a federal agency. Logue, a federal prisoner, was housed in a county jail operated by the state that had contracted with the Federal Bureau of Prisons to provide for the safekeeping, care and subsistence of federal prisoners. The prison officers failed to provide the necessary means of preventing Logue from committing suicide. The Federal Bureau of Prisons had statutory authority to enter into such contracts, 18 U.S.C. § 4002 .
The statute contemplated that the day-to-day operations of the contractor’s facilities were to be in the hands of the contractor, with the government’s role limited to the payment of sufficiently high rates to induce the contractor to do a good job.
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The county undertook to provide custody in accordance with the Bureau of Prisons’s rules and regulations governing the case and custody of persons committed under the contract. The contract reserved to the United States the right to enter the institution at reasonable hours for the purpose of inspecting it and determining the conditions under which federal offenders are housed. Absent federal control of the day-to-day activities of the prison, the Court held that for the purposes of the FTCA, the county employees were not employees of a federal agency.
The Court addressed the plaintiffs’ alternative argument that even though the county employees might not be employees of a federal agency they might nevertheless be “acting on behalf of a Federal agency in an official capacity” thus making them an “employee of the government” under § 2671. The Court rejected this argument, stating:
The dissenting judges in the Court of Appeals expressed the view that “when the Government decides that a particular individual should assume obligations and responsibilities -virtually identical to those of a salaried Federal employee, there may very well be some persuasive basis for the suggestion that such an individual’s breach of a specific statutory duty owed by the salaried employee to a specific class of persons should visit identical liability upon the United States.”
[Logue v. U.S.,]
463 F.2d [1340] at 1342-1343 [(5th Cir.1972)]. But we are not persuaded that employees of a contractor with the Government, whose physical performance is not subject to governmental supervision, are to be treated as “acting on behalf of’ a federal agency simply because they are performing tasks that would otherwise be performed by salaried employees of the Government. If this were to be the law, the exclusion of contractors from the definition of “Federal agency” in § 2671 would be virtually meaningless, since it would be a rare situation indeed in which an independent contractor with the Government would be performing tasks that would not otherwise be performed by salaried Government employees.
412 U.S. at 531-32 , 93 S.Ct. 2215 .
In the case of the INS, as distinguished from the Bureau of Prisons, there is no federal statute expressly authorizing it to contract with private companies to provide detention facilities for aliens. However, 8 U.S.C. § 1357 (g)(1) permits the Attorney General to enter into a written agreement with “a State, or any political subdivision of a State” to carry out the functions of an immigration officer in relation to the investigation, apprehension, or detention of aliens. “In performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General.” 8 U.S.C. § 1357 (g)(3).
Stovall relies upon the provision which reads: “Except as provided in paragraph (8)
13
, an officer or employee of a State or political subdivision of a State performing functions under this subsection shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of Title 5 (relating to compensation for injury) and sections 2671 through 2680 of
*357
Title 28 (relating to tort claims).” 8 U.S.C. § 1357 (g)(7). Stovall argues that the incorporation of §§ 2671 through 2680 confers upon him and the other Esmor employees the benefits of § 2672, which provides that a settlement of claims against the INS pursuant to that section effects a complete release of any claim related to the settled claim against any employee of the government.
Stovall’s reliance upon § 1357(g) is misplaced. It relates only to agreements between the Attorney General and “a State, or any political subdivision of a State.” Esmor is not a state or a political subdivision of a state, and therefore these statutory provisions are not applicable in the instant case.
Returning to Stovall’s contentions relying by negative implication upon
Logue ,
it is true that the INS under its agreement with Esmor and in fact exercised far more involvement in the running of the Facility than the Bureau of Prisons exercised in
Logue .
The contract between the INS and Esmor contained detailed requirements concerning the operation of the Facility. These are described in the September 9, 2004 Opinion. The INS owned and/or controlled the Facility. It maintained several of its own personnel at the Facility on a daily basis, including a contracting officer technical representative (“COTR”) who sought to ensure that Es-mor complied with the contract. Stovall argues that “Esmor’s employees were unquestionably ‘subject to the direction and supervision of the Attorney General,’ acting through the INS and its ever-present COFR.” (Stovall Brief at 26). Stovall points to a number of instances when the INS intervened, raised questions or asked that specific procedures be changed or implemented.
There is evidence, however, from which it can be inferred that Esmor and its employees in fact ran the Facility. The INS report is evidence that the INS did not have effective control of the Facility. The report recites the failures of Esmor to comply with the contract, examples of which are set forth in the September 2004 Opinion. The INS’s powers spelled out in the contract between the INS and Esmor were more extensive than the powers spelled out in the contract between the Bureau of Prisons and the county in the
Logue
case, and the INS used more personnel to monitor the contract relating to a Facility which held 300 inmates than the Bureau of Prisons used to monitor the Nueces County Jail. This does not lead to the conclusion that the Esmor employees were “employees of the government.”
Although an “employee of the government” includes “persons acting on behalf of a federal agency in an official capacity,” “federal agency” “does not include any contractor with the United States.” § 2671. Esmor was clearly a contractor with the United States. Certainly at the summary judgment stage of this case the Esmor Officials cannot be held to be employees of the government insulated from liability by plaintiffs’ settlement with the INS.
Recent Legal Developments
A.
Sosa :
The Supreme Court’s June 2004 opinion in
Sosa v. Alvarez-Machain,
— U.S.-, 124 S.Ct. 2739 , 159 L.Ed.2d 718 (2004), requires that this court’s rulings in its 1998 Opinion concerning the ATCA be revisited. The revisiting will have significant effects upon the plaintiffs’ substantive claims and upon statute of limitations issues.
The ATCA, 28 U.S.C. § 1350 , provides “[tjhat the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” To establish the law of
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nations plaintiffs relied upon nineteen treaties, charters on human rights, conventions and other international instruments articulating the rights of refugees and seekers of asylum and condemning or prohibiting in general or specific terms many of the kinds of abuses which are alleged in the complaint.
None of those treaties or other international instruments are self-executing, and plaintiffs recognize that they do not by themselves provide a basis for suit under the ATCA. Rather they were submitted to establish that the abuses plaintiffs suffered at the hands of the defendants violated customary international law as informed by various international human rights treaties and other international human rights instruments. The court held in the 1998 Opinion that the ATCA provides both jurisdiction and a cause of action for claims under customary international law. The Court also held that:
For the purposes of the present motions, the allegations of the complaints must be accepted as true and all reasonable inferences favorable to plaintiffs must be drawn from them. When this is done, it is evident that the totality of the treatment to which plaintiffs were subjected violated customary international law as it is now established. A multitude of sources establishes this rule of international law, and the references below are by way of example only.
227 Supp. 2 at 206.
Sosa
requires that this court revise its legal rulings and employ a different method of analysis in determining if plaintiffs have produced evidence to support an ATCA claim against any of the remaining defendants.
In
Sosa
the Drug Enforcement Administration (DEA) came to believe that Humberto Alvarez-Machain (Alvarez), a Mexican physician had participated in the torture and execution of a DEA agent in Mexico, for which he was indicted in the United States. Failing to obtain the cooperation of the Mexican government, the DEA hired Mexican nationals, including Jose Francisco Sosa, to abduct Alvarez from his house, hold him in a motel and then bring him by private plane to Texas, where federal officers arrested him. After trial for the torture and murder the court granted Alvarez’s motion for a judgment of acquittal.
After his return to Mexico Alvarez instituted a suit under the Federal Tort Claims Act and the ATCA (referred to in
Sosa
as “ATS”) against Sosa, six Mexicans, the United States and four DEA agents. Pertinent to the present case is Sosa’s suit under the ATCA alleging a violation of the law of nations. After disposition in the district court, the Court of Appeals held that the ATCA not only provides federal courts with subject matter jurisdiction but also creates a cause of action for an alleged violation of the law of nations, relying upon what it called the “clear and universally recognized norm prohibiting arbitrary arrest and detention” to support the conclusion that Alvarez’s arrest amounted to a tort in violation of international law.
The Supreme Court held that “the statute is in terms only jurisdictional,” but rejected Sosa’s and the government’s argument that “the statute does no more than vest federal courts with jurisdiction, neither creating nor authorizing the courts to recognize any particular right of action without further congressional action.” — U.S. at-, 124 S.Ct. at 2754 . However, the Court emphasized that at the time of its enactment Congress intended that the ATCA provide jurisdiction to hear only three clearly defined and limited claims, namely offenses against ambassadors, violations of safe conduct and individual actions arising out of prize captures and
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piracy, noting that “[t]he sparse contemporaneous cases and legal materials referring to the ATS tend to confirm both inferences, that some, but few, torts in violation of the law of nations were understood to be within the common law.”
Id.
at 2759 .
The Court observed that “it is correct, then, to assume that the First Congress understood that district courts would recognize private causes of action for certain torts in violation of the law of nations, though we have found no basis to suspect Congress had any examples in mind beyond these torts corresponding to Blackstone’s three primary offenses: violation of safe conduct, infringement of the rights of ambassadors, and piracy.”
Id.
at 2761 . The Court assumed “that no development in the two centuries from the enactment of § 1350 to the birth of the modern line of cases beginning with
Filartiga v. Pena-Irala,
630 F.2d 876 (CA 2 1980), has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law.”
Id.
Despite its holding that courts may add to the original violations of the law of nations that may be remedied in an ATCA proceeding, the Court warned that “there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind,” stating:
Accordingly, we think courts should require any claim based on the present day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms we have recognized. This requirement is fatal to Alvarez’s claim.
Id.
The door to further independent judicial recognition of actionable international norms “is still ajar subject to vigilant door-keeping, and thus open to a narrow class of international norms today.”
Id.
at 2764.
Informative in the instant case is the manner in which the Supreme Court determined whether the claim that Alvarez advanced could pass through the door and qualify as a claim subject to ATCA jurisdiction. His claim was that he was wrongfully abducted from his home in Mexico, held prisoner in a motel and then brought to the United States to face trial on a charge of torture and murder. Initially the Court observed “we are persuaded that federal courts should not recognize private claims under federal common law for violations of any international law norms with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted.”
Id.
at 2765.
Thus, Alvarez’s detention claim must be gauged against the current state of international law, looking to those sources we have long, albeit cautiously, recognized.
“[WJhere there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.”
The Paquete Habana,
175 U.S., 677, 700 , 20 S.Ct. 290 , 44 L.Ed. 320 (1900).
Id.
at 2766-67.
To support his claim Alvarez cited the Universal Declaration of Human Rights and the International Covenant on Civil
*360
and Political Rights which obligate the parties to them to refrain from arbitrary arrests. The Court noted the lack of binding effect of these and similar international undertakings and observed that Alvarez cites little authority that a broad rule prohibiting arbitrary detention has the status of a binding customary norm today.
Id.
at 2768.
Further, the Court observed that “the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, meritably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.”
Id.
at 2766. In a footnote, the Court addressed the relevance of the availability of alternative remedies:
This requirement of clear definition is not meant to be the only principle limiting the availability of relief in the federal courts for violations of customary international law, though it disposes of this case. For example, the European Commission argues as
amicus curiae
that basic principles of international law require that before asserting a claim in a foreign forum, the claimant must have exhausted any remedies available in the domestic legal system, and perhaps in other fora such as international claims tribunals. See Brief for European Commission as
Amicus Curiae
24, n. 54 (citing I. Brownie, Principles of Public International Law 472-481 (6th ed.2003)); c.f. Torture Victim Protection Act of 1991, § 2(b), 106 Stat. 73 (exhaustion requirement). We would certainly consider this requirement in an appropriate case.
Id.
at 2766 , ftn 21.
The plaintiffs in the instant case assert ATCA claims against Esmor, against Esmor Officers, and against individual Esmor Guards. The overall claim against Esmor and the Esmor Officers is their maintenance of a detention facility and the condoning of conduct within that facility that violated clearly established principles of international law. The claims against the Esmor Guards vary from guard to guard. Some are alleged to have committed indecent sexual acts against the inmates, such as touching an inmate’s penis while making a night time inspection or observing the inmate showering. Some are alleged to have robbed a plaintiff of money or stolen other property. Some have been charged with using racial epithets against the inmate. Some have been alleged to have used violence against an inmate.
In support of their contention that the actions of the Esmor defendants violated customary international law plaintiffs cited a plethora of international instruments, including the Universal Declaration of Human Rights and two treaties ratified by the United States — the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. In the court’s October 1998 Opinion denying defendants’ motion to dismiss, the court stated that “it is evident that the totality of the treatment to which plaintiffs were subjected violated customary international law as it is now established.” 22 F.Supp.2d at 363 .
This conclusion must be modified in light of the kind of analysis that
Sosa
mandates. The conduct of each Esmor Guard will be described in a subsequent section of this opinion. A federal court applying the ATCA “should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms when § 1350 was enacted.”
Id
at 2765. None of the claims against the
*361
individual Esmor Guards can meet the rigorous
Sosa
requirements. Compare the conduct in which each individual Esmor Guards is alleged to have engaged with the torture and murder which was the subject of
Filartiga v. Pena-Irala, supra.
Summary judgment will be granted in favor of the Esmor Guards on plaintiffs’ ATCA claims.
Esmor is, of course, responsible for the conditions in the Facility and, by virtue of the doctrine of respondeat superior, for the actions of the guards and its other employees on duty there. In
Sosa
the Court warned that the rule Alvarez urged “would support a cause of action in federal court for any event, anywhere in the world, unauthorized by the law of the jurisdiction in which it took place, and would create a cause of action for any seizure of an alien in violation of the Fourth Amendment, supplanting the actions under Rev. Stat. § 1979, 42 U.S.C. § 1983 and
Bivens v. Six Unknown Fed. Narcotics Agents
[citation omitted]”
Id.
at 2768 .
The same danger might prevail if this were an action by prison inmates challenging the conditions of confinement. There is a large number of this kind of action throughout the United States. Any prison in which an alien was included among the inmates would face an ATCA case, even though the inmates would have available claims under 42 U.S.C. § 1983 or
Bivens.
The present case is different. It involves the alleged gross mistreatment, not of criminals or persons accused of crime, but rather of persons who have committed no crime but are awaiting a decision on their applications for asylum. The law of nations as evidenced in the various conventions, treaties, declarations and other sources cited by the
Jama
plaintiffs can be said to have reached a consensus that the inhumane treatment of a huge number of persons accused of no crime and held in confinement is a violation of the law of nations. Further, the remedies available to those who are held in penal institutions may not be available to detainees such as the plaintiffs in the instant case. Because state action is not involved 42 U.S.C. § 1983 is unavailable. As will be discussed below, under
Malesko ,
a Bivens action is not available. Even if a
Bivens
action were available, all but one of the plaintiffs (Jeffrey) are excludable aliens. They are deemed not to have entered the country and may not be entitled to the full panoply of constitutional rights.
Chi Thon Ngo v. INS,
192 F.3d 390, 396 (3d Cir.1999).
For those reasons the court concludes that there is evidence on the basis of which the
Jama
plaintiffs could establish an ATCA claim against Esmor and the Esmor Officers. Thus the motions of Esmor and the Esmor Officers for summary judgment on the ATCA claims will be denied.
B.
Malesko :
In addition to suing Es-mor, the Esmor Officers and the Esmor Guards under the ATCA, the plaintiffs charged that these defendants violated their constitutional rights and were liable under
Bivens v. Six Unknown Federal Agents,
403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971). The Supreme Court, in the case of
Correctional Serv. Corp. v. Malesko,
534 U.S. 61 , 122 S.Ct. 515 (2001), held that the implied damages action recognized in
Bivens
should not be extended to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons. All the parties agree that this decision bars plaintiffs’
Bivens
claims against Esmor. In
Malesko
the Court noted that “the question whether a
Bivens
action might lie against a private individual is not presented here,” 53 U.S. at 65. That question remains in the present case, however, and it must be determined whether plaintiffs can maintain a
Bivens
action against the
*362
individual defendants, namely, the Esmor Officers Stovall, Staley, Slattery, Speisman and Lima, and the Esmor Guards.
After
Bivens
recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights, the doctrine has been applied in a number of cases. Two criteria have surfaced in these cases: i) a right of action may be inferred because the plaintiff lacked any other remedy for the alleged constitutional deprivation,
Davis v. Passman,
442 U.S. 228 , 99 S.Ct. 2264 , 60 L.Ed.2d 846 (1979) and ii) a
Bivens
action may be sustainable even when there is an alternative remedy when the alternative remedy is insufficient to deter the unconstitutional acts of individuals.
Carlson v. Green,
446 U.S. 14 , 100 S.Ct. 1468 , 64 L.Ed.2d 15 (1980).
It is evident that the Supreme Court applies
Bivens
relief with caution. In
Malesko
it noted that “[s]ince
Carlson
we have consistently refused to extend
Bivens
liability to any new context or new category of defendants.” 534 U.S. at 68 , 122 S.Ct. 515 . Denying that Malesko had a
Bivens
claim against Correctional Services Corporation, the Court stated:
In sum, respondent is not a plaintiff in search of a remedy as in
Bivens
and
Davis .
Nor does he seek a cause of action against an individual officer, otherwise lacking, as in
Carlson .
Respondent instead seeks a marked extension of
Bivens ,
to contexts that would not advance
Bivens’
core purpose of deterring individual officers from engaging in unconstitutional wrongdoing. The caution toward extending
Bivens
remedies into any new context, a caution consistently and repeatedly recognized for three decades, forecloses such an extension here.
534 U.S. at 74 , 122 S.Ct. 515 .
Turning to the Esmor Officers and Esmor Guards, it is to be noted that although they were not federal officers, they were federal actors because they were employees of a corporation performing governmental functions pursuant to a contract with the INS under which the INS monitored the performance of the corporation and its employees. It must be determined whether
Malesko
bars a
Bivens
action against them.
A recent district court case,
Sarro v. Cornell Corr., Inc.,
248 F.Supp.2d 52 (D.R.I.2003), contains a thoughtful discussion of this question. In that case plaintiff, a federal detainee in a privately operated detention center sued certain employees for money damages, claiming violations of his Fifth and Eighth Amendment rights when guards allegedly failed to protect him from attack by fellow inmates and failed to provide him with adequate medical treatment. The complaint included a
Bivens
claim.
The district court held that the defendants were federal actors, performing public functions. It found no manifestation of a Congressional intent to preclude courts from awarding damages to prisoners at privately-operated prisons for violations of their constitutional rights. It found no significant factors counseling hesitation in applying
Bivens .
Addressing
Malesko ,
the district court noted that recognizing plaintiffs damages claim furthered the “core premise” of deterring individual defendants from committing constitutional violations. Referring to the availability of state law remedies the court observed that “making the federal remedies available to a federal prisoner at a privately-operated institution contingent upon whether there are adequate alternative state law remedies would require a case-by-case analysis of state law and would cause the availability of a
Bivens
*363
remedy to vary according to the state in which the institution is located, a result that
Bivens ,
itself sought to avoid.” 248 F.Supp.2d at 63 .
An important consideration in
Malesko
in reaching a determination of the availability of a
Bivens
remedy was whether such a remedy was needed to deter violations of federal constitutional rights. Applying that criteria in the present case, little deterrent effect would be achieved by allowing a
Bivens
action against the Es-mor Officers. They are closely tied to the corporation itself, almost its alter ego. They are (with one exception) represented by the same counsel and undoubtedly any judgment against them would be picked up by Esmor. To permit a
Bivens
claim against the Esmor Officers would constitute an evasion of
Malesko
which prevents a
Bivens
action against Esmor.
A
Bivens
against the Esmor Guards, on the other hand, would have a deterrent effect. There is no assurance that Esmor would make good any money damages against them, and, in fact, might theoretically have a claim against them for the damages which their conduct caused Esmor should Esmor be held liable to the plaintiffs. Thus, applying the reasoning of the
Sarro
case, the court concludes that the plaintiffs may assert a
Bivens
claim against the Esmor Guards. As the following discussion of the statute of limitations will suggest, this conclusion may provide little assistance to the plaintiffs.
C.
Statute of Limitations:
The Es-mor facility was in operation from August 1994 to July 1995. On June 17-18, 1995 the detainees rioted and were transferred elsewhere. Thus actions upon which plaintiffs rely to establish liability on the part of defendants must have occurred on or prior to June 18, 1995. The
Jama
plaintiffs filed their complaint in this court on June 16,1997.
The New Jersey statute of limitations period for tort claims for personal injury is two years, N.J.S.A. 2A:14-2.
DelCostello v. International Brotherhood of Teamsters,
462 U.S. 151, 152 , 103 S.Ct. 2281 , 76 L.Ed.2d 476 (1983) established the general rule with regard to federal statutes that lack a specific statute of limitations period “that Congress intended that the courts apply the most closely analogous statute of limitations under state law.” In the present case, with the exception of any ATCA claim or any RFRA claim, each claim is subject to the two year statute of limitations.
The
Jama
plaintiffs obviously confront statute of limitations problems with respect to their federal and state law claims, with the two exceptions noted. Plaintiffs rely upon two legal theories to avoid what would otherwise be a statute of limitations defense.
First, plaintiffs rely on the filing date of the
Brown
Action complaint— March 6, 1996. It is well settled that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class ...”
American Pipe & Constr. Co. v. Utah,
414 U.S. 538, 554 , 94 S.Ct. 756 , 38 L.Ed.2d 713 (1974). Commencement of a class action tolls the statute of limitations for all putative class members, even those who seek to file separate lawsuits rather than join the class.
Crown, Cork & Seal Co. v. Parker,
462 U.S. 345, 353-54 , 103 S.Ct. 2392 , 76 L.Ed.2d 628 (1983). The
Jama
plaintiffs fall within the definition of the
Brown
class and therefore can take advantage of the
Brown
Action filing date with a notable exception.
The original defendants in the
Brown
Action were Esmor and two of its officers, James Slattery and Aaron Speisman. The two individuals were never served with the
*364
complaint and were later dismissed with prejudice. As stated in
McKowan Lowe & Co., Ltd. v. Jasmine, Ltd.,
295 F.3d 380, 384-85 (3d Cir.2002):
... the Court in
American Pipe [& Construction Company v. Utah,
414 U.S. 538 , 94 S.Ct. 756 , 38 L.Ed.2d 713 (1974)] held that the tolling rule is consistent with the twin functions of statutes of limitation—providing defendants with timely notice and avoiding stale
claims—because the action is tolled only by timely service of the class complaint on the defendants by the named plaintiffs.
(emphasis added).
Thus the filing of the complaint in the
Brown
Action tolled the statute of limitations only as to Esmor, because it was the only defendant in the
Jama
Action which was served in the
Brown
Action. The statute of limitations has not been tolled with respect to the Esmor Officers and the Esmor Guards.
Next plaintiffs seek application of the continuing violation doctrine. They allege constitutional and state law claims for an ongoing pattern and practice of abuses and degrading conditions that did not end until they were removed from the facility. Federal and state courts recognize that when a pattern or practice of illegal behavior results in a continuing violation of a plaintiffs rights, the statute of limitations is deemed to begin running only with the conclusion of the pattern of harmful conduct, i.e., when the last wrongful event occurs, e.g.,
West v. Philadelphia Elec. Co.,
45 F.3d 744, 754-55 (3d Cir.1995). There is evidence that would support a finding that the conditions and conduct which is the subject of the
Jama
complaint continued until June 17-18, 1995. Thus the continuing violation principle might well be found to be applicable to the charges directed to Esmor, because it was responsible for all that went on at the Facility while it was in operation. The principle might well be found to be applicable to the Esmor Officials. As to the Esmor Guards, however, they are charged with discrete acts, such as a beating, a theft, a sexual approach. Each of these events will have to be examined to determine if it was a continuing practice extending into the limitation period or if it was simply an event or series of events that ended outside the limitation period.
Finally plaintiffs seek to avoid the effect of the statute of limitations by application of principles of equitable tolling,
e.g., Rotella v. Wood,
528 U.S. 549, 560 , 120 S.Ct. 1075 , 145 L.Ed.2d 1047 (2000). The record does not support application of equitable tolling. Although the record suggests that Esmor made it more difficult than it should have been for detainees to communicate with their lawyers, it is evident that a number of the detainees did in fact manage to communicate with their lawyers while they were at the Facility.
Jama’s lawyer wrote complaints regarding her treatment at the Facility. He sent a written complaint about the food dated September 2, 1994. Bakar met with a lawyer while in the Facility. He consulted with counsel in Lehigh after his transfer (Bakar 128). Attorney Joyce Phipps (in her deposition) talks about having represented Yower, Nanteza and Jeffrey (probably before and after the riot)—-complaining about access and their communicating with clients after they were sent to the York facility. Serwaa also appear to have had representation. Her lawyer was at one point turned away by mistake and then admitted pursuant to a Stovall memo (PI Esmor Facts para 44).
The
Brown
Action plaintiffs managed to file their action in a timely manner.
The
Jama
Action plaintiffs’ present counsel, Ms. Venetis, submitted a supple
*365
mental declaration (dated July 8, 2004) which recounts difficulties she had maintaining contact with some of the plaintiffs after they had been removed from the Facility. But even this declaration does not show that counsel were totally prevented for any significant period from contacting any of the plaintiffs. Ms. Yenetis’s emphasizes that she had no contact with plaintiffs prior to the riot, but the record establishes that plaintiffs could have, and many in fact did have, communication with other lawyers.
The record does not support a basis for a claim of equitable tolling.
Two other statutes of limitations are applicable in this case. RFRA has a statutory four-year statute of limitations. That leaves only the question of the statute of limitations to be applied to any surviving ATCA claims.
While the ATCA provides a course of redress for aliens who have been the subject of tortious conduct committed in violation of the law of nations, it fails to establish a statute of limitations period within which such a claim must be brought. Since its inception, this question has plagued lawmakers, and has become particularly difficult to answer in the last half century with the passage of other closely analogous statutes.
DelCostello v. International Brotherhood of Teamsters, supra,
established the general rule with regard to federal statutes that lack a specific statute of limitations provision, namely, the most closely analogous statute of limitations under state law.
The New Jersey statute of limitations period for tort claims for personal injury is two years. N.J.S.A. 2A:14-2. If that statute were applied, claims brought under the ATCA would be two years. This was the rule when analyzing ATCA cases until about 1991.
See e.g., Hanoch Tel-Oren v. Libyan Arab Republic,
517 F.Supp. 542, 550 (D.D.C.1981);
Von Dardel v. Union of Soviet Socialist Republics,
623 F.Supp. 246, 258 (D.D.C.1985)
The Torture Victim Protection Act (“TVPA”) was passed in 1992. Pub.L. No. 102-256, 106 Stat. 73 (1992). It’s purpose was to “carry out obligations of the United States under the United Nations Charter and other international agreements pertaining to the protection of human rights by establishing a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing.”
Id.
Section (2)(c) of the Act establishes a 10 year statute of limitations period.
Id.
This statute is closely analogous to the ATCA as it provides protection to aliens suffering from torture, which is a violation of international law, creating a cause of action in United States federal court in which they can seek redress. As a result of the close relationship between the two statutes, courts began to look to the TVPA to provide the statute of limitations for the ATCA.
See Papa v. U.S.,
281 F.3d 1004 (9th Cir.2002);
In re African-American Slave Descendants Litigation,
304 F.Supp.2d 1027, 1069 (N.D.Ill.2004). It was determined that, although originally applying the state limitation period, doing so eroded the purpose of the ATCA, making it more difficult for a claimant to bring his action. Consequently, with the TVPA’s passage, an exception to the
Del-Costello
rule was met, and looking to the period established by the most closely related federal statute became the appropriate approach. In the case at bar, all parties agree that up until recently the ATCA has been governed by the 10 year statute of limitations period outlined in the TVPA. Indeed, almost all cases decided since the passage of the TVPA in 1991 have held its statute of limitations applicable to ATCA
*366
claims.
See Papa,
281 F.3d at 1004;
In re African-American,
304 F.Supp.2d at 1069 .
Recently the debate has resumed in light of the Supreme Court’s opinion in
Sosa v. Alvarez-Machain,
— U.S.-, 124 S.Ct. 2739 , 159 L.Ed.2d 718 (2004).
The defendants in the instant case argue that the Supreme Court’s ruling that the ATCA is a jurisdictional statute undermines the application of the TVPA’s 10 year statute of limitations. According to the defendants, the claims brought under the ATCA were not for violations of the ATCA itself, but rather, were brought by way of the ATCA for violations of norms of international law or federal common law. Because of this difference and the fact that the violation is not of the ATCA itself, which was deemed to create no private cause of action, defendants argue that the TVPA is no longer the closely analogous statute. In effect, defendants urge resort to a pre-TVPA statute of limitations analysis of the ATCA as a result of
Sosa .
Public policy suggests that “borrowing” the TVPA’s 10 year statute of limitations period is still the correct way to go. Consequently, while
Sosa
does serve to limit the breadth of the claims eligible under the ATCA, that narrow reading does not influence the application of the TVPA 10 year statute of limitations.
The reason behind the courts’ initial decision to change the ATCA’s statute of limitations after the passing of the TVPA was to increase the fairness to the claimants trying to bring suit. As plaintiffs state in their brief, aliens bringing claims under the ATCA face greater obstacles than typical plaintiffs in tort suits and are therefore put at a disadvantage by such a short statute of limitations period as New Jersey’s two year limit. Some of these hindrances are difficulties of gathering evidence sufficient to support a complaint; unavailability or hesitation of witnesses who may fear reprisal by a corrupt regime; other delays caused by ongoing human rights violations. Essentially, using the words of the Court in
DelCostello ,
the use of a short statute of limitations period in this case would be “at odds with the purpose or operation of federal substantive law.” 462 U.S. at 161, 103 S.Ct. 2281 . “State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies.”
Id.
While it may be true that the causes of action do not stem from the ATCA itself, but rather from violations of international norms, the purpose behind the enactment of the ATCA would be furthered by applying the TVPA statute of limitations. This is a case where the “principles of federal equity are hostile to the ‘mechanical rules’ of statutes of limitations” provided by states.
Id.
at 162 , 103 S.Ct. 2281 .
For these reasons, the TVPA 10 year statute of limitations will be applied to the plaintiffs’ claims under the ATCA.
D.
RFRA:
Plaintiffs claim Esmor, Esmor Officials and the Esmor guards burdened their exercise of religion while they were detained at the Esmor Facility in violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb,
et seq.
Defendants contend they are entitled to judgment on Plaintiffs’ RFRA claims for several reasons.
14
*367
1.
Constitutionality as applied to the federal government:
Defendants first argue that Plaintiffs’ RFRA claims against them must fail as a matter of law because RFRA is unconstitutional (1) for the reasons explained in
City of Boeme v. Flores,
521 U.S. 507 , 117 S.Ct. 2157 , 138 L.Ed.2d 624 (1997) and (2) because it violates the Establishment Clause. For the reasons explained below, the court disagrees.
Congress passed RFRA in 1993. The statute provides, in pertinent part
(b) Government
15
may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — ■
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000bb~l. Courts had applied the “strict scrutiny” standard enshrined in RFRA to claims for violation of the Free Exercise Clause of the First Amendment prior to the Supreme Court’s decision in
Employment Div., Dept. of Human Resources of Oregon v. Smith,
494 U.S. 872 , 110 S.Ct. 1595 , 108 L.Ed.2d 876 (1990).
See, e.g., Sherbert v. Verner,
374 U.S. 398 , 83 S.Ct. 1790 , 10 L.Ed.2d 965 (1963).- In
Smith ,
the Court rejected that standard, and held that neutral, generally applicable - laws that incidentally burden religious practice pass muster under the Free Exercise Clause if they are merely rationally related to a legitimate governmental interest, i.e., they need not be the least restrictive means of furthering a compelling governmental interest to satisfy the Free Exercise Clause.
Smith,
494 U.S. at 877-82 , 110 S.Ct. 1595 ;
Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly,
309 F.3d 144, 165 (3d Cir.2002). Congress enacted RFRA for the express purpose of restoring the
pre-Smith
“strict scrutiny” standard.
16
Several years later, in
City of Boeme v. Flores,
the Supreme Court held that RFRA violated the constitution because, in enacting it, Congress had exceeded its remedial powers under section 5 of the Four
*368
teenth Amendment.
Boeme
involved a church’s challenge to application of a local government’s zoning regulation. The Court did not specify in its opinion whether it meant to invalidate RFRA only as applied to local and state governments (the application that was involved there), or whether it meant to invalidate the statute in its entirety (i.e., as applied to the federal government as well as state and local governments). Defendants argue that
Boeme
invalidated RFRA in its entirety.
The Court of Appeals has not squarely addressed this question.
See In re The Grand Jury Empaneling of the Special Grand Jury,
171 F.3d 826, 829 (3d Cir.1999) (“Here ... we need not decide whether any part of RFRA survives
[Boeme],
because we conclude that the federal government’s actions in this case would survive constitutional scrutiny even under the rigorous RFRA standard”);
Adams v. Commissioner of Internal Revenue,
170 F.3d 173, 175 (3d Cir.1999) (“For the purposes of this appeal, we assume without deciding that RFRA is constitutional as applied to the federal government”).
Every single other Circuit court that
has
squarely addressed the question, however, has held that
Boeme
did
not
invalidate RFRA in its entirety, and that the statute remains valid as applied to the federal government.
See O’Bryan v. Bureau of Prisons,
349 F.3d 399 , 400—401 (7th Cir.2003) (Easterbrook, J.);
Guam v. Guerrero,
290 F.3d 1210, 1218-1221 (9th Cir.2002);
Henderson v. Kennedy,
265 F.3d 1072, 1073 (D.C.Cir.2001);
Kikumura v. Hurley,
242 F.3d 950, 958-960 (10th Cir.2001);
Christians v. Crystal Evangelical Free Church,
141 F.3d 854 (8th Cir.1998). These courts reasoned that
Boeme’s
rationale for finding RFRA unconstitutional — that Congress exceeded its section 5 enforcement powers when it enacted the statute — has no relevance to the question of the statute’s constitutionality as applied to the
federal
government. This is because Congress’ ability to make laws applicable to the federal government does not stem from section 5;
17
that sec
*369
tion authorizes Congress to pass legislation regulating the conduct of
states only.
Defendants argue that
Boeme’s
holding was based not only on the limitations on Congress’s section 5 power, but also on the court’s finding that RFRA, by providing more protection for the right to free exercise than the Court in
Smith
held was required, violates separation of powers principles. The presence of this second rationale, Defendants claim, makes the statute as unconstitutional as applied to the federal government as it is as applied to state governments.
There is indeed language in
Boeme
suggesting that in enacting RFRA Congress usurped the judiciary’s power to interpret the constitution in violation of the separation of powers doctrine. Several courts and commentators have recognized, however, that this language is meaningless unless read within the context of the court’s discussion of section 5 of the Fourteenth Amendment.
See, e.g., Guerrero,
290 F.3d at 1219-20 (“[the
Boerne
court’s] discussion of the separation of powers doctrine was entirely within the framework of its section 5 analysis — not an independent rationale”);
Kikumura,
242 F.3d at 958-59 (“Although the court did mention separation of powers concerns in
[Boeme],
this language must be read in the context of the entire opinion and the question being considered”); Gregory P. Magarian,
How to Apply the Religious Freedom Restoration Act to Federal Law Without Violating the Constitution,
99 Mich. L.Rev. 1903, 1914 (2001) (recognizing that in
Boeme
“Justice Kennedy forcefully asserted the judicial prerogative to interpret the Constitution in language that might be understood to implicate [RFRA’s] applications to federal as well as state law,” but also that other language in the opinion indicates that the Court “situated [its] judicial supremacy concerns squarely in the context of the Fourteenth Amendment and state sovereignty”).
18
For these reasons, the
*370
court concludes that the
Boeme
court did not find RFRA unconstitutional as applied to the federal government, either on section 5 or separation of powers doctrine grounds.
Defendants assert that even if the court is not persuaded by its argument that
Boeme
invalidated RFRA as applied to the federal government, it must dismiss Plaintiffs’ RFRA claims because the statute violates the Establishment Clause. In support of this argument, Defendants cite Justice Stevens’ concurrence in
Boeme
in which he opined that RFRA violated the Establishment Clause because the statute “provided the Church with a legal weapon that no atheist or agnostic can obtain.”
Boerne,
521 U.S. at 537 , 117 S.Ct. 2157 (Stevens, J., concurring).
The court notes initially the significant fact that the
Boeme
majority declined to adopt Justice Stevens’ view of RFRA’s status under the Establishment Clause. Moreover, every Circuit court that has addressed the question has held that RFRA does not violate the Establishment Clause.
See Christians,
141 F.3d at 861-63 ;
Mockaitis v. Harcleroad,
104 F.3d 1522 , 1530 (9th Cir.1997),
overruled on other grounds by Boerne; Sasnett v. Sullivan,
91 F.3d 1018, 1022 (7th Cir.1996) (Posner, J.),
overruled on other grounds by Sullivan v. Sasnett,
521 U.S. 1114 , 117 S.Ct. 2502 , 138 L.Ed.2d 1007 (1997);
EEOC v. Catholic Univ. of Am,.,
83 F.3d 455, 470 (D.C.Cir.1996);
Flores v. City of Boerne,
73 F.3d 1352, 1364 (5th Cir.1996),
rev’d on other grounds by Boerne,
521 U.S. 507 , 117 S.Ct. 2157 , 138 L.Ed.2d 624 (1997).
Defendants argue that Justice Stevens’ concurrence has recently “found footing” in judicial interpretation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”),
19
citing
Cutter v. Wilkin
*371
son,
349 F.3d 257 (6th Cir.2003) in which the Sixth Circuit held that the provision of RLUIPA that applies to institutionalized persons violates the Establishment Clause. The
Cutter
court is not representative of courts that have assessed Establishment Clause challenges to RLUIPA, however; most of those courts (which include four Circuit courts and at least two district courts within the Third Circuit) have held that RLUIPA does
not
violate the Establishment Clause.
See Midrash Sephardi Inc. v. Town of Surfside,
366 F.3d 1214, 1240-42 (11th Cir.2004);
Madison v. Riter,
355 F.3d 310 (4th Cir.2003);
Charles v. Verhagen,
348 F.3d 601, 610-11 (7th Cir.2003);
Mayweathers v. Newland,
314 F.3d 1062 , 1068-69 (9th Cir.2002);
Congregation Kol Ami v. Abington Tp.,
No. Civ. A. 01-1919, 2004 WL 1837037 , at *12-15 (E.D.Pa. Aug.17, 2004);
Williams v. Bitner,
285 F.Supp.2d 593, 599-601 (M.D.Pa.2003).
The court agrees with the weight of authority cited above that RFRA must survive an Establishment Clause challenge because (1) it has a secular legislative purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it does not foster excessive government entanglement with religion, as these three requirements have been defined by the Supreme Court.
Lemon v. Kwrtzman,
403 U.S. 602, 612-13 , 91 S.Ct. 2105 , 29 L.Ed.2d 745 (1971).
2.
Claims against individual defendants for money damages:
Defendants argue that even if RFRA is constitutional, Plaintiffs’ claims under the statute against the Esmor officials and Esmor Guards must nevertheless fail because RFRA does not allow suits (1) against individuals (2) for money damages. The court disagrees. As explained more fully below, the plain language of RFRA indicates that Congress intended to create a cause of action against individuals as well as governmental entities. Plaintiffs may not use this cause of action to sue government officials in their official capacities for money damages because Congress did not waive sovereign immunity to such suits. However, based on RFRA’s text and purpose and the way other courts have interpreted the statute, the court finds that under RFRA plaintiffs may sue individual officers in their individual capacities for money damages.
Defendants suggest that RFRA does not allow suits against individuals challenging wrongful conduct, but rather allows only for suits against governmental bodies challenging laws and regulations on their face. In support of this argument, Defendants cite the language of RFRA, which addresses itself to “government” rather than individuals, and focuses its prohibitions on “laws” and “rules” that government enacts rather than the conduct of individuals.
It is true that some of the statutory text arguably indicates that when it drafted RFRA, Congress had in mind governmental bodies rather than individuals,
20
and legislation rather than conduct.
21
Oth
*372
er language in RFRA, however, clearly indicates that Congress intended the law to apply to individuals
as well as
governmental bodies, and conduct
as well as
legislation. For example, the definitions section of the statute defines “government” to include “a branch, department, agency, instrumentality, and
official
(or other
person
acting under color of law) of the United States, or of a covered entity.” 42 U.S.C. § 2000bb-2(l) (2000) (emphases added).
See Mack v. O’Leary,
80 F.3d 1175, 1177 (7th Cir.1996)
vacated on other
grounds.
22
Further, § 2000bb-3 makes clear that RFRA applies to conduct as well as laws and rules when it specifies that the statute applies to “all Federal law,
and the implementation of that law.”
(emphasis added).
23
Defendants argue next that even if individuals are proper defendants under RFRA, Plaintiffs’ claims must fail because RFRA does not allow for the award of money damages. The section of RFRA that addresses remedies under the statute reads, in pertinent part, as follows:
Judicial Relief. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.
42 U.S.C. § 2000bb-l(c) (1993). Defendants argue that an award of money damages against individual defendants is not “appropriate relief against a government.”
Defendants had made this argument in their 1998 motion to dismiss. At that time, the court left the question open, noting
It is not at all certain that “appropriate relief against a government” was not
*373
intended to include damages. The Act is relatively new; its construction and constitutionality are uncertain. In these circumstances the prudent course is to deny the motion to dismiss the RFRA claims without prejudice to a renewal of the motion at a time when more guidance concerning its intent may be available.
Jama,
22 F.Supp.2d at 370 . Defendants here renew their claim; though little more guidance regarding Congress’s intent is available now than was available in 1998, the court must now resolve the claim.
Defendants argue that money damages are not “appropriate relief against a government” because, they claim, Congress did not waive sovereign immunity to damages suits under RFRA. It is well-settled that the federal government is immune from suit unless it has waived immunity.
See, e.g., Dept. of the Army v. Blue Fox, Inc.,
525 U.S. 255, 260 , 119 S.Ct. 687 , 142 L.Ed.2d 718 (1999);
U.S. v. Bein,
214 F.3d 408, 412 (3d Cir.2000). Sovereign immunity bars suits against federal government officials — as well as the United States itself — if those officials are sued in their official' capacity.
24
The Supreme. Court has usually required that waivers of sovereign immunity be “unequivocally expressed in statutory text,”
25
and that they “extend
unambiguously
to ... monetary claims” if they are to allow such claims.
Lane v. Peña,
518 U.S. 187, 192 , 116 S.Ct. 2092 , 135 L.Ed.2d 486 (1996);
United States v. Nordic Village, Inc.,
503 U.S. 30 , 33-34 & 37, 112 S.Ct. 1011 , 117 L.Ed.2d 181 (1992) (emphasis added). The court agrees with Defendants and several other district courts that § 2000bb-l(c)’s reference to “appropriate relief’ “is not the kind of unambiguous waiver necessary to subject the United States to liability for damages.”
Tinsley v. Pittari,
952 F.Supp. 384, 389 (N.D.Texas 1996).
See also, e.g., Meyer v. Federal Bureau of Prisons,
929 F.Supp. 10, 13-14 (D.D.C.1996) (holding that “RFRA provides no waiver of governmental immunity ... As a result, the plaintiff has failed to state a claim under which he can recover the monetary damages he seeks”).
That Congress did not waive sovereign immunity for damages suits does not necessarily mean that Plaintiffs may not collect damages from the individual defendants, however. As noted, sovereign immunity protects government officials sued in their official capacity only. Federal officials sued in their
individual
capacities are not immune from suit.
See, e.g.,
*374
Larson v. Domestic & Foreign Commerce Corporation,
337 U.S. 682 , 686-87 & 689-90, 69 S.Ct. 1457 , 93 L.Ed. 1628 (1949);
State of Fla., Dept. of Business Regulation v. U.S. Dept. of Interior,
768 F.2d 1248 , 1251-52 (11th Cir.1985);
Sanchez-Espinoza v. Reagan,
770 F.2d 202, 207 (D.C.Cir.1985);
Gilbert v. DaGrossa,
756 F.2d 1455, 1459 (9th Cir.1985); 14 Chaeles AlaN WRight
&
Arthur R. Miller, Federal Practioe AND Procedure § 3655. Plaintiffs clarified in their Opposition Brief that they bring their RFRA claims seeking money damages from defendants in their
individual
capacities only.
The court reads RFRA to allow for individual capacity suits (as opposed to official capacity suits) against individual defendants. The mere fact that § 2000bb-2(l) provides that people who are not government officials (“and other person acting under color of law”) are “government,” and thus proper defendants under RFRA, indicates that individual capacity suits must be permitted because no one who is not a government official has an “official capacity” in which to be sued. Moreover, Congress knows how to specify that a statutory provision applies to government officials only in their “official capacity” when it wants to, and has not done so here.
See, e.g.,
28 U.S.C. § 1391 (e), which provides, in part, “[a] civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity ... may ... be brought in any judicial district,”
and Stafford v. Briggs,
444 U.S. 527 , 100 S.Ct. 774 , 63 L.Ed.2d 1 (1980) (holding, based in part on this statutory language, that § 1391(e) is not applicable to actions for money damages brought against federal officials in their individual capacities.”).
The court also reads RFRA to allow for individual capacity suits for money damages specifically (as opposed to for injunc-tive relief only). It arrives at this reading for several reasons.
First, while § 2000bb-l(c) does not explicitly permit individual capacity suits for money damages, it does not explicitly preclude them, either. It is by no means evident that because Congress did not expressly state that money damages are available in that section, “appropriate relief against a government” does not include money damages. Indeed, as another district court has noted, “it is at least as likely that Congress” [intended with the phrase “appropriate relief’ to] exclude any action against a [government] directly ... [but to include] an action for damages against [government] officials acting in their individual capacities.”
Commack Self-Service Kosher Meats Inc. v. State of N.Y.,
954 F.Supp. 65, 69 (E.D.N.Y.1997).
Second, a conclusion that RFRA does not allow for suits for money damages would seem to be at odds with the general Congressional purpose that animates the statute. Congress enacted RFRA because it wanted to re-invigorate protection of free exercise rights after the Supreme Court in
Smith
diluted the standard used to evaluate claimed violations of those rights. 42 U.S.C. § 2000bb(a) & (b);
Boerne,
521 U.S. at 512-16 , 117 S.Ct. 2157 . Courts have always recognized § 1983 and Bivens claims for money damages against officials for violation of the Free Exercise Clause.
See, e.g., Sutton v. Rasheed,
323 F.3d 236 , 249
&
258 n. 38 (3d Cir.2003) (§ 1983);
Jihaad v. O’Brien,
645 F.2d 556 (6th Cir.1981) (Bivens).
26
It seems unlike
*375
ly that Congress would
restrict the kind of remedies
available to plaintiffs who challenge free exercise violations in the same statute it passed to
elevate the kind of scrutiny
to which such challenges would be entitled. The statute’s legislative history appears to confirm this view.
See
S.Rep. No. 103-111, pt. V(f), at 1902, U.S.Code Cong.
&
Admin.News 1993, pp. 1892, 1902 (“the act does not expand, contract or alter the ability of a claimant to obtain relief in a manner consistent with the Supreme Court’s free exercise jurisprudence under the compelling governmental interest test prior to
Smith”).
Third, while no other court has explicitly theorized
why
money damages are available under RFRA, or held explicitly that they are, courts have considered (thus assuming the availability of) individual capacity claims for damages under the statute. While these courts have not
granted
damages in any of these cases, their denials of the claims for damages have been based on the merits of the claims or the defendants’ entitlement to qualified immunity rather than a finding that damages are unavailable under the statute.
See, e.g., Mack,
80 F.3d at 1177 (stating that defendants “do not question the propriety of damages as a remedy for violations of [RFRA], even though [RFRA] says nothing about remedies except that a person whose rights under the Act are violated ‘may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government, and then proceeding to evaluate the merits of plaintiffs RFRA claim for damages’ ”);
Malik v. Kindt,
107 F.3d 21 (10th Cir.1997);
Winburn v. Bologna,
979 F.Supp. 531, 535 (W.D.Mich.1997);
Gilmore-Bey v. Coughlin,
929 F.Supp. 146, 151 (S.D.N.Y.1996);
Rust v. Clarke,
851 F.Supp. 377, 381 (D.Neb.1994).
27
See also Brown v. Hot, Sexy & Safer Productions,
68 F.3d 525, 537-38 (1st Cir.1995) (assuming the availability of damages under RFRA in coming to its conclusion that the statute does not create a
retroactive
cause of action for such damages).
28
Congress has amended RFRA since these cases were decided;
29
that amendment gave Congress an opportunity to change statutory language and clarify that damages were not available under RFRA, but, significantly, Congress did not do this.
Plaintiffs argue that money damages are available also because of the well-settled common law principle that “absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.”
Franklin v. Gwinnett County Public Schools,
503 U.S. 60, 70-71 , 112 S.Ct. 1028 , 117 L.Ed.2d 208 (1992).
See also Nextel Partners Inc. v. Kingston Tp.,
286 F.3d 687 , 695 n. 6 (3d Cir.2002) (“when a statute creates a private right of action but does not specify what remedies are available, the availability of all appro
*376
priate remedies is generally presumed”). The court disagrees that this principle applies here because RFRA is not a statute in which Congress was “silent” on the question of remedies.
See Landgrafv. USI Film Products,
511 U.S. 244, 276 , 114 S.Ct. 1483 , 128 L.Ed.2d 229 (1994);
Snapp v. Unlimited Concepts, Inc.,
208 F.3d 928, 937 (11th Cir.2000). While Congress was not as explicit as it might have been in § 2000bb-l(c) about specifically what kind of relief is available under RFRA, it did include a limiting principle: “appropriate relief against a government.” Congress clearly stated that relief that is not appropriate against a government is not available under RFRA. It was therefore not “silent” on the issue of damages, and the
Franklin
presumption is consequently inapplicable.
30
For the foregoing reasons, the court holds that Plaintiffs’ individual capacity RFRA claim against the Esmor Guards for money damages may stand.
Neither the text nor the legislative history of RFRA indicates that Congress intended in that statute to abrogate the qualified immunity to which executive officials were entitled under common law. The court thus finds that the defense would have been available to the INS officials under RFRA had they remained parties to this action. However, the defense of qualified immunity is
not
available to the Esmor guards, because they are not executive officials.
Richardson v. McKnight,
521 U.S. 399 , 117 S.Ct. 2100 , 138 L.Ed.2d 540 (1997) (holding that prison guards who are employees of a private prison management firm are not entitled to a qualified immunity from suit brought by prisoners under § 1983).
For reasons similar to those discussed above, the court finds that Esmor is a proper defendant for Plaintiffs’ RFRA claims and that money damages may be awarded against it. Esmor is a proper defendant for the same reasons courts have found private companies which operate correctional facilities to be proper defendants for § 1983 claims.
See
note 10. The court may order Esmor to pay money damages if it finds Esmor has burdened Plaintiffs’ religious exercise for two reasons: (1) Esmor is not immune from suit for damages because it is not entitled to government contractor immunity for the reasons explained in this court’s earlier opinion,
Hawa Abdi Jama v. I.N.S., et al.,
334 F.Supp.2d 662 (D.N.J.2004), and (2) money damages are appropriate relief under RFRA for all the reasons discussed in the preceding section.
Discussion
A. Issues Determined in the 2004
Brown
Opinion: On September 9, 2004 the court issued the 2004
Brown
Opinion which addressed, among other things, Es-mor’s motion for summary judgment in the
Brown
Action. Many of the issues disposed of in that opinion are raised in Es-mor’s and the other defendants’ motions for summary judgment in the
Jama
Ac
*377
tion. These issues will be resolved in the same manner insofar as they are pertinent to the
Jama
Action motions. There follows a recital of these legal rulings.
The INS Interim Report is admissible evidence. It provides evidence upon which the
Jama
plaintiffs may rely in support of their various claims.
The
Jama
Action plaintiffs, like the
Brotm
Action class plaintiffs have alleged that under New Jersey law Esmor was negligent in hiring, retention, training and supervision of its employees. As stated in the 2004
Brown
Opinion, “there is ample evidence in the record to support Plaintiffs’ negligence claims.” For this reason Esmor’s motion to dismiss the
Jama
plaintiffs’ negligence claims must be denied.
The 2004
Brown
Opinion rejected Es-mor’s defense that it is immune from liability for any negligence in its hiring, retention, training or supervision because its policies and practices in these areas were specifically approved by the government. The court held that at least at the summary judgment stage Esmor could not avail itself of the government contractor defense. Similarly at the summary judgment stage Esmor cannot avail itself of that defense against the
Jama
Action plaintiffs’ claims.
The 2004
Brown
Opinion also ruled that “[b]ecause Plaintiffs claim of intentional wrongdoing is redundant, and because they have not argued thát it is appropriately viewed as a cause of action distinct from their negligence claim, Esmor’s motion for summary judgment will be granted as to that claim.” Because the claims of the
Jama
Action plaintiffs go well beyond the claims of the
Brown
Action plaintiffs this ruling will not have blanket application to the claims of the
Jama
plaintiffs.
The 2004 Opinion found that no provisions of the INS-Esmor contract expressed an intent to confer a right of performance on any of the detainees and that the detainees had no basis to claim that they should be treated as third party beneficiaries under the contract. These findings require that Esmor’s motion for summary judgment on the
Jama
Action plaintiffs third party beneficiary claims must be granted.
B.
Summary Judgment Standard:
Summary judgment will be granted if the record establishes that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
Rule 56(c) imposes á burden on the moving party simply to point out to the district court that there is, an absence of evidence to support the nonmoving party’s case.
Celotex Corp. v. Catrett,
477 U.S. 317, 325 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the burden then shifts to the opposition to “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(c). The evidence need not be in a form that would be admissible at trial.
Celotex,
477 U.S. at 324 , 106 S.Ct. 2548 .
The nonmovirig party “must do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus, v. Zenith Radio .Corp.,
475 U.S. 574, 586 , 106 S.Ct. 1348 ; 89 L.Ed.2d 538 (1986). Further, a party may not simply “replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit.”
Lujan v. National Wildlife Federation,
497 U.S. 871, 888 , 110 S.Ct. 3177 , 111 L.Ed.2d 695 (1990) (citing
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986)). Rather, she must
*378
“set forth specific facts showing that there is a genuine issue for trial.” Rule 56(e).
At the summary judgment stage, the court’s function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial.
Anderson,
477 U.S. at 249 , 106 S.Ct. 2505 . The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.
Id.
at 247 , 106 S.Ct. 2505 . In determining whether there exists a material issue of disputed fact, however, the facts and the inferences to be drawn from the facts are to be viewed in the light most favorable to the nonmoving party.
Pollock v. American Tel. & Tel. Long Lines,
794 F.2d 860, 864 (3d Cir.1986).
In the following sections of this opinion the court will determine, applying the legal conclusions set forth earlier in this opinion, whether the various defendants in the
Jama
Action are entitled to summary judgment in their favor on some or all of the
Jama
plaintiffs’ claims.
C.
Esmor:
Certain claims against Es-mor have already been disposed of and upon which it is entitled to summary judgment. They are: i) the
Bivens
claims which allege that Esmor violated various of plaintiffs’ constitutional rights, ii) claims brought pursuant to the Fair Labor Standards Act and iii) third party beneficiary claims under the INS-Esmor contract.
There is evidence in the record that precludes summary judgment in Esmor’s favor on other claims. There is evidence to support the
Jama
Action plaintiffs’ claims under the ATCA as has been discussed above. As discussed at length in the 2004
Brown
Opinion, there is also evidence to support the
Jama
plaintiffs’ claims under New Jersey state law based on Esmor’s alleged negligent hiring, training, supervision and retention of its employees. The claim for failing to protect plaintiffs’ property is subsumed within that claim. Esmor’s motion for summary judgment on these claims will be denied.
There is also evidence to support the
Jama
plaintiffs’ claims under RFRA. By way of example only: Kenneh testified that, in accordance with general practices, his Koran was taken from him at intake and that he was not allowed to have it in his dormitory. He was not allowed to perform ablutions at appropriate times. Bakar testified that Friday prayer was denied. Jama stated that requests for food other than pork were denied and the guards removed from her body the sheet required for prayer. No adjustment was made for timing of meals for Ramadan. For three days an officer stopped Muslims from praying. Guards would not let members of Pentecostal sects to pray out loud. Raji stated that in searches guards discarded religious items such as Bibles. These are but a few instances of episodes in which Esmor guards burdened a detainee’s exercise of religion. At best it is a factual question whether these and other burdens placed on the detainees’ exercise of religion were in furtherance of a compelling governmental interest and were the least restrictive means of furthering that compelling governmental interest. Accordingly, Esmor’s motion for summary judgment on the
Jama
Action plaintiffs’ RFRA claims will be denied.
For multiple reasons none of plaintiffs’ surviving claims against Esmor are barred by the applicable statutes of limitations. The ATCA claims are subject to a ten-year limitation period and the RFRA claims are subject to a four-year limitation period. Those periods had not run when the
Jama
plaintiffs filed their complaint on June 16, 1997.
*379
Nor is the New Jersey state law claim for negligent hiring, training, supervision and retention barred by the applicable two year statute of limitation. The filing of the
Brown
Action complaint on or about March 6, 1996 tolled that statute with respect to claims against Esmor (but not against the other defendants in this case). The offenses charged against Es-mor were not only continuing offenses that persisted until the plaintiffs were removed from the facility; they occurred during the two-year period prior to March 6, 1996. The facility was in operation only from August 1994 until June 16-17,1995.
D.
Esmor Officers:
The Esmor Officers against whom the Jama plaintiffs assert claims are James F. Slattery, President and Chief Executive Officer of Esmor and the person who had general responsibility for setting and implementing company policy; Willard Stovall, John Lima, Richard Staley and Aaron Speisman.
Speisman was Vice President of Esmor and had some role in surprising operations of the Facility, although the exact extent of his role is unclear. Staley was Vice President of Operations and had primary responsibility for overseeing the Elizabeth Facility.
There was shifting responsibility for on-site administration of the Facility. Lima apparently was administrator in April 1994 and during various periods thereafter until January 1995 when Willard Stovall became administrator and Lima reverted to becoming Stovall’s assistant.
Stovall reported to Staley, with whom he spoke every day by telephone. Staley reported to Slattery.
When Lima was second in command of the Facility under Stovall, he had under him a chief of security with the rank of captain. Under the captain were three lieutenants, each of whom commanded a shift.
There was coordination with the INS, which stationed a representative at the Facility to ensure compliance with the INS-Esmor contract. Initially Michael D. Rozos was the INS’s Contracting Officer and Technical Representative (“COTR”). Norman Uzzle replaced Rozos as COTR in March 1995. The COTR and an Esmor Official walked around the facility on a daily basis. Slattery testified that he toured the facility a few times and talked to detainees, who voiced complaints to him. Lima testified that Slattery visited as often as once a week and would sometimes stay for a week. Staley also visited the facility frequently and walked around the facility when he did so.
Stovall has presented evidence upon the basis of which a jury could conclude that the aggregate of the conditions of which plaintiffs complain did not constitute a deprivation of the minimal civilized necessities of life.
Young v. Quinlan,
960 F.2d 351, 359 (3d Cir.1992). This evidence would bear importantly upon plaintiffs’ ATCA and New Jersey negligence claims. He has also presented evidence upon the basis of which a jury could conclude that he had not been deliberately indifferent to any conditions of confinement or incidents of conduct which would allegedly violate the ATCA, RFRA or New Jersey negligence standards.
Stovall was responsible for administering the facility for only a short period of time—from January 25,1995 through June 18, 1995. He cannot be held responsible for events that took place prior to January 25, 1995. Some of the evidence that Sto-vall produced portrays him in a highly favorable light, listening to detainee complaints, seeking to correct deficiencies in the conditions of confinement, addressing misbehavior of Esmor guards and general
*380
ly attempting to run the Facility in as humane and orderly manner as possible. For these efforts he even received expressions of appreciation from some of the inmates.
However, for summary judgment purposes, great as the likelihood that Stovall will ultimately prevail on the merits, may be, the court cannot grant Stovall’s motion on the three remaining claims against him if there is some evidence from which a reasonable jury could find in favor of the plaintiffs. There is some such evidence. He walked around the Facility on a daily basis and attended weekly meetings with INS personnel, Esmor staff and representatives of the detainees. Thus he had intimate knowledge of the Facility and its problems.
There is testimony or other evidence to support each of the following allegations: i) For a period of time shackles were used when detainees had contact visits or court appearances; ii) shackles were used when detainees were placed in segregation; iii) during and after the June 18, 1995 riot detainees were abused by deprivation of food, beatings and other physical abuse— some of this abuse was inflicted by Esmor guards and some may have been inflicted by police and INS employees; iv) detainees were beaten; v) inmates were subject to verbal abuse including racial epithets and remarks; vi) inmates were sexually harassed, for example, by guards watching women take showers, ridiculing inmates’s genitals, touching a male inmate’s penis, sexually assaulting a female inmate in the laundry room; vii) unnecessary searches and pat-downs, particularly at night by the SERT team; viii) spoiled, under cooked, rotten and inadequate food, ix) physical facilities were unlighted and toilet and shower facilities lacked privacy; x) filthy clothing was provided and frequently inadequate or inappropriate clothing was provided; xi) toilets and showers remained in disrepair and inadequate cleaning supplies were provided, leading to unsanitary living quarters; xii) heating was defective and the cold of the winter was accentuated by inadequate clothing and the allocation of only one blanket to each detainee; xiii) lights were kept on for 24 hours of the day or night in dormitory areas, and sleep was further disrupted by loud talking and TV playing by the guards and middle of the night headcounts; xiv) there was virtually no outdoor recreation; xv) inmates were deprived of hygiene supplies such as sanitary napkins, toothpaste and tooth brushes; xvi) conditions in segregation were even more intolerable — cells soiled with feces, blocked toilets, lack of sheets or blankets; xvii) inadequate medical care and medication were provided; xviii) segregation was imposed on inmates without notice or hearings; xix) in a variety of ways detainees were denied access to counsel and the courts, e.g., limiting or denying phone calls to lawyers, guards remaining present during visits with lawyers, inadequate or non-existent law libraries or materials; loss or destruction of legal papers; xx) the property of detainees was taken from them and not returned; xxi) the inmates’ right to exercise their religions was interfered with, whither Muslim, Hindu or Christian.
The Esmor Officers are charged with i) a Fifth Amendment due process claim based on the alleged failure to curb the pattern of abuse at the facility; ii) alleged violation of ATCA, iii) a First Amendment claim that they acted with deliberate indifference towards plaintiffs’ attempts to exercise their religions; iv) violation of RFRA, v) violation of the Thirteenth Amendment by acting with deliberate indifference towards
Jama
plaintiffs engaging in forced, unpaid labor; vi) alleged violation of FLSA; and vii) negligent failure to protect plaintiffs’ property and
*381
negligent hiring, training, supervision and retention of Esmor’s guards and other employees.
There is evidence that Stovall and Lima were fully aware of the deficiencies and abuses listed above. They learned of them through inmate complaints, guards’ reports, INS complaints, inmate and staff meetings and personal observations. In view of their daily presence at the Facility it could hardly be otherwise. Through their supervisory roles, regular communication with Stovall and Lima and visits to the Facility it can be inferred that Slater-ry, Speisman and Staley were also aware of these deficiencies at least in general terms, if not their specifics.
The Esmor Officers are entitled to summary judgment on certain of plaintiffs’ claims. In light of the Court of Appeals decision in
Tourscher v. McCullough,
184 F.3d 236 (3d Cir.1999) summary judgment will be granted in favor of the Esmor Officers on the FLSA claim. In a similar vein summary judgment in favor of the Esmor Officers will be granted on plaintiffs’ claim under the Thirteenth Amendment based on alleged involuntary servitude.
Hause v. Vaugkt,
993 F.2d 1079 (4th Cir.1993);
Bijeol v. Nelson,
579 F.2d 423 (7th Cir.1978) (pretrial detainees may be required to perform “general housekeeping responsibilities consistent with the Due Process Clause”).
For the reasons set forth in an earlier section of this opinion the
Jama
Action plaintiffs are precluded from bringing a
Bivens
claim against the Esmor Officers for violation of their federal constitutional rights. Therefore these officials are entitled to summary judgment in their favor on the
Jama
Action plaintiffs’ Fifth, First and Thirteenth Amendment claims.
There is no evidence that any individual Esmor Officers personally engaged in conduct that would constitute intentional infliction of emotional distress, i.e., outrageous conduct that results in severe emotional distress.
Buckley v. Trenton Sav. Fund Soc.,
111 N.J. 355 , 544 A.2d 857 (1988). Further, plaintiffs do not have claims under the New Jersey Constitution. Summary judgment will be granted in favor of the Esmor Officers on those claims.
The two-year statute of limitation was not tolled by the filing of the
Broim
Action complaint with respect to the
Jama
Action plaintiffs’ claims against the Esmor Officers because those Officers either were not named as defendants in the
Brown
Action complaint or were never served. Nevertheless, there is evidence that the conditions and conduct of which the
Jama
Action plaintiffs complain extended into the two year period prior to the filing of the
Jama
Action complaint and constitute continuing offenses. This requires denial of the Esmor Officers’ motion for summary judgment on the
Jama
Action plaintiffs’ claims based on negligent failure to protect plaintiffs’ property and negligent hiring, training, supervision and retention of Esmor’s guards and other employees. The ATCA claims are subject to a ten-year statute of limitations. As discussed in an earlier section of this opinion there is evidence to support the
Jama
Action plaintiffs’ ATCA claims; there is also evidence to support their RFRA claims, which are subject to a four-year statute of limitations. The Esmor Officers’ motions for summary judgment on these three claims will be denied.
E. The Esmor Guards: The Esmor Guards against whom the
Jama
plaintiffs have filed their complaint who have not been dismissed from this action are Michael Melendez, Okay Nkenke, Phillip Johnson, Kevin Brodie, Dorian Hunter and Michael Jackson. Each has moved for
*382
summary judgment on all claims of each plaintiff.
1.
Hawa Abdi Jama :
Jama arrived at the Facility on August 24, 1994. She testified that she was shackled when she met with her attorney, during visitation periods and when she was placed in segregation. When the INS was notified of Esmor’s policy of use of leg restraints on detainees for visitation and courts hearings, Esmor was directed to cease this practice on March 23, 1995. It would appear that any detainee present at the facility before that date was subject to this form of restraint. She also testified that in the aftermath of the riot when she was outside the facility she was not given food or drink during a twelve hour period. She recounts rough treatment apparently by the police (at least there is no evidence that it was by Esmor employees) during the riot.
Jama recounts that defendant Catrina Clark (against whom a default has been entered) beat her. An Esmor exhibit indicates that this took place on March 5, 1995. Jama was then placed in segregation without a hearing by Stovall. She mentioned the beating to Stovall and Lima. Clark kept working as normal, and Jama was kept in segregation for a week.
Jama, of course, like the other detainees was subject to the alleged general conditions and abuses previously described.
The only evidence that Jama produces that targets a particular guard is Clark’s assault and her subsequent confinement in segregation by Stovall. Both of those incidents took place in March 1995 and thus the claims arising out of them are barred by the statute of limitations. In these circumstances all of the Esmor Guards are entitled to summary judgment in them favor on all of Jama’s claims.
2.
Anantharajah Jayakumar:
Jayakumar was at the Facility from October 28, 1994 until the spring of 1995. Accordingly he has no claims connected to the riots. He testified that he was shackled when meeting with his attorney. Like the other detainees he was subject to the general alleged adverse conditions of the Esmor facility. He has produced no evidence of illegal conduct by the Esmor Guards, and consequently their motion for summary judgment on all his claims against them will be granted.
3.
Abu Bakar:
Abu Bakar was in the Facility from August 4,1994 until its closing. He was granted asylum in 1997.
Bakar was shackled when he met with his attorneys. He was also shackled when he performed outside work, but his outside work did not continue until June 16, 1995. He was denied food during twelve hours after the riot. He was treated roughly at that time, apparently by the police.
Bakar testified that on one occasion guard Gill touched his penis as he was conducting a night time tour of the dormitory. Bakar complained to defendant Johnson who told him that if he continued to complain he would be put in segregation. Apparently Lima investigated the charge, confronted Gill and transferred Gill to another dormitory. Stovall received general allegations that Gill was homosexual and told Gill to leave his orientation outside the Facility. Stovall could not corroborate any specific allegations about Gill. According to Esmor’s records the Gill-Bakar episode took place about April 28,1995.
Bakar, too, was subject to the alleged adverse general conditions of the Facility. The only allegations he makes against specific guards are against Gill and Johnson. The claims arising out of those allegations are barred by the statute of limitations. The Esmor Guards’ motion for summary
*383
judgment on all of Baker’s claims against them mil be granted.
4.
Cecilia Kou Jeffrey:
Jeffrey arrived at the Esmor Facility on April 13, 1995 and remained there until the riot. She arrived after the policy of shackling detainees for visitations, attorney visits and court hearings had ended.
She testified that Stovall was present while detainees were being verbally abused after the riot. She also testified that she was punched by a guard (“Michelle”) when she asked for a tampon for another detainee. She discussed the attack at several meetings, and consequently it had to have occurred before the limitations period.
Jeffrey testified that she was frequently assaulted sexually by defendant Johnson when she worked in the laundry room. It is unclear from her account whether she was actually threatened or tried refusing to go to work in the laundry room, but she was afraid not to go. Two major incidents occurred in April 1995, during one of which Johnson’s finger penetrated her vagina through he

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2518180. Public record. Not legal advice.