Full 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 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 . 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 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 Supreme 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. 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 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. 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. The motion of the INS Officials 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. 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. 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 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 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. As a result of these developments in the Jama action only the nine individual Plaintiffs listed above remain in the case. 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. 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 and (vii) alleged violation of the ATCA. The claims against Esmor are as follows : (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 follows: 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. 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. 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 asserted that as a result of this settlement, all claims brought 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 (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. 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), 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 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 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 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 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 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 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 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 exceptio