Mendia v. Garcia (165 F. Supp. 3d 861, 2016)

ORDER RE: MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND MOTIONS TO DISMISS

MARIA-ELENA JAMES, United States Magistrate Judge

INTRODUCTION

Pending before the Court is Plaintiff Bernardo Mendia’s (“Plaintiff’) Motion for Leave to File a Third Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a). Mot. to Am., Dkt. No. 101. Defendants John M. Garcia, Ching Chang, and the United States of America (collectively, “Defendants”) filed an Opposition (Dkt. No. 102), and Plaintiff filed a Reply (Dkt. No. 103). Before Plaintiff filed his Motion for Leave to Amend, Defendants sought to dismiss the ’ Second Amended Complaint (“SAC,” Dkt. No. 70). See United States and Official-Capacity Defendants’ Motion to Dismiss (“U.S. MTD”), Dkt. No. 87; Individual Agent Defendants’ Motion to Dismiss (“Agents MTD”), Dkt. No. 90. Plaintiff filed Oppositions to those Motions to Dismiss. Dkt. Nos. 97-98. However, the parties did not complete briefing as to the Motions to Dismiss, because— with the Court’s permission — Plaintiff filed the instant Motion to file his Third Amended Complaint. See Dkt. No. 100. Having considered the parties’ positions, relevant legal authority, and the record in this case, the Court rules as follows.

BACKGROUND

A. Factual Background

The following factual background is taken from Plaintiffs SAC. Dkt. No. 70. Plaintiff acquired derivative United States citizenship in 1987. Id. ¶ 10. On May 9, 2007, Plaintiff was arrested and charged with financial crimes, at which time he sought the assistance of a bail bondsman to secure his release from pretrial detention. Id. '¶¶ 19-20, 26-27. On June 15, 2007, Garcia and Chang, agents of Immigration and Customs Enforcement (“ICE”), interviewed Plaintiff, ostensibly selecting him for questioning because he is foreign-born. Id. ¶¶ 28-29. Plaintiff informed Chang that he was a United States citizen, gave his full social security number, and stated he had a United States passport issued in 1997. Id. ¶ 40. Plaintiff proceeded to invoke his Fifth Amendment right to remain silent, to which Garcia allegedly said something to the effect of “Oh! You don’t want to talk?” and “We’ll see if you want to talk when we’re deporting your ass!” Id. ¶¶ 42-43, 47.

Chang placed an immigration detainer on Plaintiff that same day. Id. ¶47; see Req. for Judicial Notice (“RJN”), Ex. C, Dkt. No. 85. The detainer stated ICE had initiated an investigation to determine whether Plaintiff was subject to removal. Id. Plaintiff alleges the immigration de-tainer “dissuaded all bail bondsmen [from] conducting] business with Plaintiff!,]” and he was thus unable to obtain a bail bond. SAC ¶¶ 53, 55-57.

On January 8, 2008, Garcia issued a second detainer. RJN, Ex. D. This detain-er was stamped with the words “Drop Hold” and was marked “Please cancel the detainer previously placed by this Service on 06-15-2007.” Id. Plaintiff alleges he was not aware the detainer had been can-celled until July 31, 2009, when the state court released Plaintiff on his own recognizance. SAC ¶¶ 77, 82, 84. Plaintiff refused to accept release until the court informed him no detainer was in place. Id. ¶ 84.

B. Procedural Background

Plaintiff submitted an administrative tort claim to DHS on June 9, 2009, which the agency denied on March 1, 2010. Id. ¶ 3. On August 31, 2010, Plaintiff, proceeding pro se, filed his initial Complaint against Garcia and DHS. Dkt. No. 1. Plaintiff alleged constitutional and tort claims arising out of the detainer Garcia placed on him while he was in state custody. Id. ¶¶ 11-15. Plaintiff, still proceeding pro se, then filed his First Amended Complaint (“FAC”) on August 11, 2011, in which he (1) added Chang as a defendant; (2) asserted claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) for violations of his constitutional rights to due process, equal protection, and right to bail; and (3) asserted claims under the Federal Tort Claims Act (“FTCA”) for false imprisonment, malicious prosecution, abuse of process, negligence, and negligent infliction of emotional distress. FAC ¶¶ 77-102.

Defendants filed a Motion to Dismiss Plaintiffs FAC (Dkt. No. 34), which the Court granted on the grounds that Plaintiff lacked Article III standing (Dkt. No. 51). Plaintiff appealed the Court’s dismissal of the action (Dkt. No. 52), and on April 8, 2014, the Ninth Circuit reversed, holding Plaintiff could show that Defendants caused his injury and thus had standing to sue. See Mendia v. Garcia, 768 F.3d 1009 (9th Cir.2014).

In the Court’s December 17, 2014 Order to Set Briefing Schedule, the Court granted Plaintiff 90 days to obtain new counsel and seek leave to file a second amended complaint. Dkt. No. 63. Plaintiff timely sought leave on March 10, 2015 (Dkt. No. 64) and filed his SAC, again proceeding pro se, on April 1, 2015 (Dkt. No. 68). As noted, Defendants then moved to dismiss Plaintiffs SAC. U.S. MTD; Agents MTD. The United States’ Motion addresses Plaintiffs FTCA claims for false imprisonment and intentional infliction of emotional distress, as well as Plaintiffs declaratory relief claims for violations of his Fifth Amendment rights to equal protection and substantive due process. See U.S. Mot. The Agents’ Motion addresses Plaintiffs Bivens claims for violations of his Fifth Amendment rights to equal protection and substantive due process. See Agents Mot. Plaintiff subsequently obtained counsel (Dkt. No. 93) and filed Oppositions to Defendants’ Motions (Dkt. Nos. 96, 98). Thereafter, the parties notified the Court Plaintiff intended to seek leave to file a third amended complaint. Dkt. No. 99. The Court suspended the deadline for Defendants’ Replies and the hearing pending this Order. Dkt. No. 100.

In seeking leave to file a third amended complaint, Plaintiff seeks to assert 11 new claims, including (1) Federal Tort Act claims against the United States for negligence, negligent infliction of emotional distress, and abuse of process; (2) Bivens claims against Chang and Garcia for violations of his Fourth Amendment right against unreasonable seizure, Fifth Amendment right to equal protection, First Amendment right to freedom of speech, and Eighth Amendment right against excessive bail; and (3) claims for equitable relief under the Declaratory Judgment Act against all Defendants for violations of his First Amendment right to freedom of speech, Fourth Amendment right against unreasonable seizure, Fifth Amendment right against self-incrimination, and Eighth Amendment right against excessive bail. Prop. TAC ¶¶ 110-19, 131-54, 160-76, 183-88, 197-224. Plaintiff also seeks to add a new defendant, ICE Field Office Director Timothy Aitken. Id. ¶ 14; Mot. to Am. at 1. All Defendants oppose amendment.

REQUEST FOR JUDICIAL NOTICE

All Defendants filed a Request for Judicial Notice to support their Motions to Dismiss, asking the Court to take judicial notice of the following documents: (1) Exhibit A: court records from The People of the State of California v. Bernardo Men-dia, Case No. 1-126105-6; (2) Exhibit B: court records from the case of The People of California v. Bernardo Mendia, Case No. 162581; (3) Exhibit C: Immigration Detainer (stamped “Hold”) dated June 15, 2007; (4) Exhibit D: Immigration Detainer (stamped “Drop Hold”) dated January 8, 2008; (5) Exhibit E: Plaintiffs First Amended FTCA claim to DHS dated August 9, 2009; (6) Exhibit F: October 9, 2009 letter and supplemental materials from Plaintiff to DHS counsel in support of his FTCA claim; (7) Exhibit G: letter dated March 1, 2010 from DHS to Plaintiff, denying his FTCA claim; (8) Exhibit H: March 10, 2010 letter and supplemental materials from Plaintiff to DHS counsel; (9) Exhibit I: certification stamp affixed by the Clerk of the Superior Court of California for Alameda County. RJN, Exs. A-I, Dkt. Nos. 85-(l-24).

Plaintiff objects to Defendants’ request. Dkt. No. 97. It appears, however, that Plaintiff does not contest the authenticity of the documents or their relevance, only Defendants’ characterization of them. Id. at 1. In the Agent Defendants’ Motion to Dismiss, they address “Facts for Judicial Notice,” in which they summarize many of the documents in their request. This, Plaintiff contends, is argument and not appropriate for judicial notice. Id.

The Court may take judicial notice of matters that are either (1) generally known within the trial court’s territorial jurisdiction or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). However, “[a] court may not take judicial notice of one party’s opinion of how a matter of public record should be interpreted.” United States v. S. Cal. Edison Co., 300 F.Supp.2d 964, 974 (E.D.Cal.2004). Rather, the Court may only take judicial notice of the documents themselves. Proper subjects of judicial notice court documents already in the public record and documents filed in other courts. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir.2006). Thus, courts “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992). Accordingly, the Court GRANTS Defendants’ request for judicial notice as to Exhibits A and B as they are public court documents.

The Court may also take judicial notice of Exhibits C and D, as Plaintiff refers to the immigration detainers extensively in his SAC and proposed TAC. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003) (“Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiffs claim.”); Sizemore v. Pac. Gas & Elec. Ret. Plan, 939 F.Supp.2d 987, 989 (N.D.Cal.2013) (taking judicial notice of letters referenced in complaint); SAC ¶¶ 48, 77; Prop. TAC ¶¶46, 50, 57-58, 70. Given Plaintiffs reliance on the detainers, the Court GRANTS Defendants’ request as to Exhibits C and D.

The Court does not consider Exhibits E, F, G, H, and I in this Order and therefore does not take judicial notice of them at this time.

LEGAL STANDARD

Federal Rule of Civil Procedure 15 provides that a party may amend its pleading once as a matter of course within (1) 21 days after serving the pleading or (2) 21 days after the earlier of service of a responsive pleading or service of a Rule 12(b) motion. Fed. R. Civ. P. 15(a)(1). Outside of this timeframe, “a party may amend its pleading only with the opposing party’s written consent or the court’s leave,” though the court “should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Although the rule should be interpreted with ‘extreme liberality,’ leave to amend is not to be granted automatically.” Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir.1990) (citation omitted).

A court considers five factors in determining whether to grant leave to amend: “(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint.” In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir.2013) (quotation omitted). “Not all of the factors merit equal weight. As this circuit and others have held, it is the consideration of prejudice to the opposing party that carries the greatest weight. Prejudice is the touchstone of the inquiry under Rule 15(a).” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003) (citation omitted). “Absent prejudice, or a strong showing of any of the remaining [ ] factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id. at 1052 (emphasis in original). “Denials of motions for leave to amend have been reversed when lacking a contemporaneous specific finding by the district court of prejudice to the opposing party, bad faith by the moving party, or futility of amendment.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186-87 (9th Cir.1987).

DISCUSSION

A.Bad Faith

Bad faith may be shown when a party seeks to amend late in the litigation process with claims which were, or should have been, apparent early. Bonin v. Calderon, 59 F.3d 815, 846 (9th Cir.1995). Plaintiff argues his request is not brought in bad faith because he recently obtained counsel, who has helped him' draft his proposed TAC and investigate other claims and defendants. Mot. to Am. at 6. Defendants do not argue that Plaintiff seeks to amend in bad faith, nor does the record before the Court indicate a bad faith purpose for Plaintiffs desire to amend. As such, the Court finds Plaintiff does not seek to amend his pleading in bad faith.

B. Undue Delay

“[D]elay alone no matter how lengthy is an insufficient ground for denial of leave to amend.” United States v. Webb, 655 F.2d 977, 980 (9th Cir.1981); see also Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990). However, undue delay combined with other factors may warrant denial of leave to amend. See, e.g., Jackson, 902 F.2d at 1387-89 (holding that prejudice and undue delay are sufficient to deny leave to amend); Morongo Band of Mission Indians, 893 F.2d at 1079 (“delay of nearly two years, while not alone enough to support denial, is nevertheless relevant”).

Defendants argue that amendment will further delay this case, which has been pending for over five years. Opp’n to Mot. to Am. at 8. However, much of this delay was the result of Defendants’ initial motion to dismiss and Plaintiffs subsequent successful appeal to the Ninth Circuit. Further, it was not until after he filed his SAC that Plaintiff obtained counsel, and Defendants have not shown that Plaintiff knew of the theories and legal bases for the amendments at the time he filed his prior complaints pro se. See Jackson, 902 F.2d at 1388; Johnson v. Serenity Trans., Inc., 2015 WL 4913266, at *5 (N.D.Cal. Aug. 17, 2015) (the undue delay “inquiry focuses on whether the plaintiff knew of the facts or legal bases for the amendments at the time the operative pleading was filed and nevertheless failed to act promptly to add them to the pleadings.”). As such, the Court finds Plaintiffs delay does not weigh against his Motion for Leave to Amend.

C. Prejudice to the Opposing Party

This factor carries “the greatest weight” in whether to grant leave to amend, as “[prejudice is the touchstone of the inquiry under rule 15(a).” Eminence Capital, 316 F.3d at 1052 (quotation omitted). “The party opposing amendment bears the burden of showing prejudice.” DCD Programs, 833 F.2d at 187. “A need to reopen discovery and therefore delay the proceedings supports a district court’s finding of prejudice from a delayed motion to amend the complaint.” Lockheed Martin Corp. v. Network Sol., 194 F.3d 980, 986 (9th Cir.1999) (citing Solomon v. North Am. Life & Cas. Ins. Co., 151 F.3d 1132, 1139 (9th Cir.1998)). However, “[njeither delay resulting from the proposed amendment nor the prospect of additional discovery needed by the non-moving party in itself constitutes a sufficient showing of prejudice.” Tyco Thermal Controls LLC v. Redwood Indus., 2009 WL 4907512, at *3 (N.D.Cal. Dec. 14, 2009).

Defendants repeat the same argument to show prejudice as they do for undue delay: that amendment will delay litigation. Opp’n to Mot. to Am. at 8. They contend amendment is prejudicial because “[a]s time passes, the memories of witnesses fade, and they may become more difficult to locate, which increasingly prejudices Defendants.” Id. However, such generalized arguments are insufficient to meet their burden of showing prejudice. See In re Fritz Co. Sec. Litig., 282 F.Supp.2d 1105, 1110 (N.D.Cal.2003) (finding no prejudice because “[wjhile the fading of witnesses’ memory over time and the changes to the [defendant] company could perhaps prejudice defendants, they fail to show specifically how it would do so”). Moreover, no case management deadlines have been established and discovery has not yet commenced, and therefore there is no risk Defendants will need to duplicate any prior efforts. Cf. Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir.1993) (finding prejudice where “parties ha[d] engaged in voluminous and protracted discovery” prior to amendment and “[t]rial was only two months away, and discovery was completed”); Scognamillo v. Credit Suisse First Boston, LLC, 587 F.Supp.2d 1149, 1156 (N.D.Cal.2008) (finding prejudice where plaintiffs “sought leave to amend late in litigation, approximately twelve weeks before the ... discovery cutoff’ and where the proposed theories were “a radical departure” such that “[g]ranting leave to amend at this point would require extensive additional discovery on entirely new topics and the redeposition of witnesses[.]”). As such, the Court finds Defendants have failed to meet their burden of establishing prejudice sufficient to warrant denial of Plaintiffs Motion to Amend.

D. Previous Amendments

Courts have broader discretion in denying motions for leave to amend after leave to amend has already been granted. Chodos v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir.2002) (citing Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 879 (9th Cir.1999)). In Chodos, the Ninth Circuit affirmed the district court’s denial of leave to amend when the party knew of the factual basis for the amendment prior to a previous amendment. Id. Further, a party that contends it learned “new” facts to support a claim should not assert a claim that it could have pleaded in previous pleadings. Edwards Lifesciences LLC v. Cook Inc., 2008 WL 913328, at *3 (N.D.Cal. Apr. 2, 2008) (citing Chodos, 292 F.3d at 1003).

Defendants point out that Plaintiff has moved to amend his complaint following each of their motions to dismiss, which they argue has resulted in delayed litigation and wasted judicial resources. Opp’n to Mot. to Am.,at 6. They contend “Plaintiff should not be allowed to use the pleading process as a way to ferret out Defendants’ defenses or attempt to work around them.” Id. Defendants further argue Plaintiffs pro se status should have no bearing since Plaintiff was not incarcerated during • the litigation and has had “substantial opportunity” to retain counsel. Id.

Despite Defendants’ argument, “where, as here, a plaintiff files a motion to amend after a defendant files a motion to dismiss, courts will still grant the motion to amend absent an independent showing by the defendant of at least one of the [other] factors.” Naranjo v. Bank of Am. Nat’l Ass’n, 2015 WL 913031, at *6 (N.D.Cal. Feb. 27, 2015) (collecting cases). Although Plaintiff has amended his complaint twice before, he made those amendments without the benefit of counsel. Rather, it is in the interests of justice to allow Plaintiff, now with the guidance of his new counsel, to have an opportunity to set forth his claims with more precision. Thus, absent a finding that another factor weighs in favor of denying leave to amend, and given the policy of permitting amendment with “extreme liberality,” the Court finds this factor does not weigh against granting leave to amend.

E. Futility of Amendment

“A motion for leave to amend may be denied if it appears to be futile or legally insufficient. However, a proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim[.]” Miller v. Rykojf-Sex-ton, Inc., 845 F.2d 209, 214 (9th Cir.1988) (citations omitted). The standard to be applied is identical to that on a motion to dismiss for failure to state a claim under Rule 12(b)(6). Id. To satisfy the 12(b)(6) pleading standard, a plaintiff must plead his claim with sufficient specificity to “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell All. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation and internal quotation marks omitted).

Defendants generally assert amendment would be futile because the proposed TAC does not “cure the deficiencies” in Plaintiffs SAC. Opp’n to Mot. to Am. at 7. In addition, Defendants raise four specific arguments as to why amendment is futile: (1) Plaintiff fails to meet the state tort requirements under the FTCA; (2) the agents are entitled to qualified immunity; (3) Plaintiff lacks Article III standing for declaratory relief; and (4) Plaintiff cannot assert claims against Aitken, as Plaintiff cannot meet the requirements under Federal Rule of Civil Procedure 15(c) and the relation back requirements under California Code of Civil Procedure section 474. Opp’n to Mot. to Am. at 7-19. Because Defendants assert Plaintiffs “proposed TAC would be susceptible to the same arguments for dismissal posed by Defendants” in their motions to dismiss, the Court addresses those motions in this Order as well. Id. at 7.

1. Proposed FTCA Claims

“The United States can be sued only to the extent that it waives its sovereign immunity from suit.” Cervantes v. United States, 330 F.3d 1186, 1188 (9th Cir.2003). “The FTCA, enacted in 1946, was designed primarily to remove the sovereign immunity of the United States from suits in tort.” Levin v. United States, — U.S. -, 133 S.Ct. 1224, 1228, 185 L.Ed.2d 343 (2013) (internal quotations omitted). “The FTCA waives the federal government’s sovereign immunity for tort claims arising out of the negligent conduct of government employees and agencies in circumstances where the United States, if a private person, would be liable to the claimant under the law of the place where the act or omission occurred.” Green v. United States, 630 F.3d 1245, 1249 (9th Cir.2011). Under the FTCA, “federal district courts [have] exclusive jurisdiction over claims against the United States for ‘injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission’ of federal employees acting within the scope of their employment.” Levin, 133 S.Ct. at 1228 (quoting 28 U.S.C. § 1346(b)(1)). State law provides the substantive law governing an FTCA claim. Conrad v. United States, 447 F.3d 760, 767 (9th Cir.2006) (“In assessing the United States’ liability under the FTCA, we are required to apply the law of the state in which the alleged tort occurred.”); 28 U.S.C. § 1346(b)(1) (“the United States ... [is] liable to the claimant in accordance with the law of the place where the act or omission occurred”).

The United States’ waiver of immunity, however, is limited by the exceptions set forth in 28 U.S.C. § 2680. One provision, known as the intentional tort exception, “preserves the Government’s immunity from suit for ’[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.’” Millbrook v. United States, — U.S.-, 133 S.Ct. 1441, 1442, 185 L.Ed.2d 531 (2013) (quoting 28 U.S.C. § 2680(h)). There is, however, a “law enforcement proviso,” which extends the waiver of sovereign immunity to six intentional torts “covering claims that arise out of the wrongful conduct of law enforcement officers.” Id. (emphasis added) (quoting 28 U.S.C. § 2680(h)) (immunity lifted “with regard to acts or omissions of investigative or-law enforcement officers of the United States Government”). Those six intentional torts are assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution. Id. Section 2680(h) defines an “investigative or law enforcement officer” as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.”

In his proposed TAC, Plaintiff asserts five claims under the FTCA: (1) false arrest/false imprisonment, (2) negligence, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, and (5) abuse of process. Prop. TAC ¶¶ 95-147. Defendants argue amendment is futile as to these claims because Plaintiff cannot meet the state tort requirements. Opp’n to Mot. to Am: at 7.

a. False Arrest/False Imprisonment

Court One of the proposed TAC alleges “Defendants caused [Plaintiffs] false imprisonment June 15, 2007 to July 31, 2009” through the unlawful immigration detain-ers. Prop. TAC ¶¶ 95-109.

The Court applies California law to Plaintiffs false imprisonment claim. See Tekle v. United States, 511 F.3d 839, 853 (9th Cir.2007) (collecting cases where courts applied California law to FTCA claim for false imprisonment). Under California law, false imprisonment requires the “(1) nonconsensual, intentional confinement of a person, (2) without lawful privilege, (3) for an appreciable period of time, however brief.” Bocanegra v. Jakubowski, 241 Cal.App.4th 848, 855, 194 Cal.Rptr.3d 327 (2015) (internal quotations omitted); see also Watts v. Cty. of Sacramento, 256 F.3d 886, 891 (9th Cir.2001) (“Under California law, the torts of false arrest and false imprisonment are not separate torts, as false arrest is ‘but one way of committing a false imprisonment.’”) (quoting As- gari v. City of L.A, 15 Cal.4th 744, 63 Cal.Rptr.2d 842, 847 n. 3, 937 P.2d 273 (1997)).

As an initial matter, the Ninth Circuit has held that “Mendia lacks standing to seek damages for any period of pretrial detention he suffered after the state court granted him release on his own recognizance.” Mendia, 768 F.3d at 1013 n. 1. It explained that although “[approximately six months after lodging the de-tainer against Mendia, the ICE. agents cancelled it .... [i]n the interim, on an unspecified date, the state court removed the bail condition and granted Mendia release on his own recognizance.” Id. at 1011. Plaintiff, “believfing] the immigration de-tainer was still in place, ... refused to accept release, even though he no longer needed the assistance of a bail bondsman to get out.” Id. “Given that he chose to remain in state custody rather than accept release, .. [t]he loss of liberty he experienced after being granted release on his own recognizance is thus a self-inflicted injury.” Id. at 1013 n. 1. Plaintiffs SAC and proposed TAC do not provide any further details about this event, and the Court makes no findings at this time regarding the period for which Plaintiff may recover. Nevertheless, while the Ninth Circuit has held Plaintiff cannot seek damages for the entire time he was in state custody, he may still potentially recover for the time between the date Chang issued the June 16, 2007 immigration detain-er and the date the state court released Plaintiff on his own recognizance.

Turning to Defendants’ futility argument, they argue Plaintiff cannot state a claim for false imprisonment because his “arrest and subsequent pretrial detention ... were executed pursuant to lawful privilege by local police in accordance with [a] valid warrant and court order by the Superior Court of California in Contra Costa County.” U.S. MTD at 10. However, as Defendants themselves note, “Plaintiff does not challenge the lawfulness of his arrest by police or his pretrial custody” for financial crimes. Id.) see Prop. TAC ¶21-22. Rather, Plaintiff contests the validity of the immigration detainer Defendants placed on him and argues they compelled him to remain in pretrial detention when he otherwise would not have had to do so. Prop. TAC ¶ 105; see Martinez v. City of L.A., 141 F.3d 1373, 1380 (9th Cir.1998) (“Under California law, a claim for false imprisonment grounded upon prolonged detention may arise if a person is ‘deprived of his liberty after his jail term ends.”’) (quoting Sullivan v. Cty. of L.A., 12 Cal.3d 710, 715, 117 Cal.Rptr. 241, 527 P.2d 865 (1974)). Plaintiff alleges bail bondsmen refused to do business with him due to the detainers, and thus Plaintiff was unable to post bail. Prop. TAC ¶¶ 52-55. He further alleges the detainer prevented him from engaging in plea negotiations as “[bjeing branded an alien by ICE could be grounds for probation to be denied” or from petitioning the state court for a bail reduction or a grant of release on his own recognizance. Id. ¶¶ 58, 60. As such, Defendants have not shown Plaintiff is unable to state a claim for false imprisonment.

b. Negligence

Count Two of the Proposed TAC asserts a claim of negligence under the FTCA. Prop. TAC ¶¶ 110-19. Defendants do not raise a specific object to Plaintiffs negligence claim, but as noted above, have generally asserted that “Plaintiff fails to meet the state tort requirements under the FTCA.” Opp’n to Mot. to Am. at 7.

Under the FTCA, a plaintiff may sue the United States for injuries caused by the negligence of federal employees. Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir.1984) (“The Federal Tort Claims Act provides that the United States is the sole party which may be sued for personal injuries arising out of the negligence of its employees.”)- “In order to establish negligence under California law, a plaintiff must establish four required elements: (1) duty; (2) breach; (3) causation; and (4) damages.” Ileto v. Glock Inc., 349 F.3d 1191, 1203 (9th Cir.2003) (citing Martinez v. Pac. Bell, 225 Cal. App.3d 1557, 1564, 275 Cal.Rptr. 878 (1990)).

Plaintiff alleges ICE officials have a duty to act with reasonable care and to not subject individuals to (1) personal injury; (2) “discriminatory treatment on the basis of actual or perceived race, ethnicity, and/or national origin;” and (3) “deprivations of liberty without due process.” Prop. TAC ¶¶ 111-14. He further asserts ICE officials have a duty “to adequately train and supervise their subordinates and to establish and enforce policies and practices that prevent the occurrence of unconstitutional and tortious actions by their subordinates.” Id. ¶ 115. But here Plaintiff asserts Defendants were negligent by wrongfully placing ICE detainers on him and by failing to (1) properly cancel the first ICE detainer; (2) take appropriate measures to ensure that it did not appear that the first ICE detainer was still in place; (3) take appropriate measures to ensure that it did not appear that another ICE detainer was put in place; and (4) inform Plaintiff when Garcia dropped the detainer. Id. ¶ 116. Given these allegations, Defendants have not shown Plaintiff is unable to state a claim for negligence.

c. Intentional Infliction of Emotional Distress

Count Three seeks to assert a claim of intentional infliction of emotional distress. Prop. TAC ¶¶ 120-30. Defendants contend Plaintiff fails to show “outrageous” behavior or intent to cause emotional distress as his allegations are merely conclusory. U.S. MTD at 14; see Prop. TAC ¶¶ 120-30.

The Ninth Circuit has held that “the tort of intentional infliction of emotional distress is not excluded as a matter of law from FTCA by § 2680(h).” Sheehan v. United States, 896 F.2d 1168, 1172 (9th Cir.1990), amended, 917 F.2d 424 (9th Cir.1990). In making this determination, the Sheehan court noted “ ’[t]here is no justification for this Court [or any court] to read exemptions into the [Federal Tort Claims] Act beyond those provided by Congress.’ ” (quoting Rayonier Inc. v. United States, 352 U.S. 315, 320, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) (alterations in the original)). Accordingly, to state a claim for intentional infliction of emotional distress under California law, a plaintiff must show “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” Corales v. Bennett, 567 F.3d 554, 571 (9th Cir.2009) (quotations omitted). “The California Supreme Court has set a ‘high bar’ for what can constitute severe distress.” Wong v. Tai Jing, 189 Cal.App.4th 1354, 1376, 117 Cal.Rptr.3d 747 (2010). “Severe emotional distress means emotional distress of such substantial ... or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1004, 25 Cal.Rptr.2d 550, 863 P.2d 795 (1993) (quotations omitted). Conduct is “outrageous” if it is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Christensen v. Super. Ct., 54 Cal.3d 868, 903, 2 Cal.Rptr .2d 79, 820 P.2d 181 (1991).

During the interrogation, Plaintiff alleges Chang and Garcia engaged in a “staring contest” with him when he refused to speak, and Garcia subsequently made a statement to the effect of “We’ll see if you want to talk when we’re deporting your ass!” Prop. TAC ¶¶ 44-45. Upon learning of the detainer, Plaintiff “first experienced anger that shifted to chagrin, then fright, followed by worry, and finally grief and depression.” Id. ¶ 125. This has “lasted over two years from June 16, 2007 to July 31, 2009, and continues to this day” and has also resulted in a gastrointestinal disorder. Id. Plaintiff alleges his “emotional distress was the natural consequence” of Chang’s and Garcia’s actions and that they intended to cause such distress. Id. ¶¶ 124, 129. Plaintiff’s allegations about the agents’ threat of deportation combined with Plaintiffs imprisonment under the de-tainer state plausible facts to support an intentional infliction of emotional distress claim. As such, Defendants have not shown that amendment would be futile.

d. Negligent Infliction of Emotional Distress

Count Four asserts a claim for negligent infliction of emotional distress. Prop. TAC ¶¶ 131-41. “A claim of negligent infliction of emotional distress is not an independent tort but the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply.” Wong, 189 Cal.App.4th at 1377, 117 Cal.Rptr.3d 747. Negligent infliction of emotional distress claims are instead treated as a type of negligence claim. Karimi v. GMAC Mortg., 2011 WL 3360017, at *3 (N.D.Cal. Aug. 2, 2011) (citing Delfino v. Agilent Techs., Inc., 145 Cal.App.4th 790, 818, 52 Cal.Rptr.3d 376 (2006)). As Plaintiff brings a separate claim for negligence, it would be redundant to allow him to also bring a claim for negligent infliction of emotional distress. Accordingly, leave to add a separate claim of negligent infliction of emotional distress would be futile.

e. Abuse of Process

Count Five asserts a claim of abuse of process under the FTCA. Prop. TAC ¶¶ 142-47. Under California law, abuse of process requires proof that the “ ‘the defendant (1) contemplated an ulteri- or motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.’ ” Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1011 (9th Cir. 2011), as amended Aug. 19, 2011 (quoting Booker v. Rountree, 155 Cal.App.4th 1366, 1371, 66 Cal.Rptr.3d 733 (2007)).

Plaintiff alleges Chang and Garcia “intentionally placed ICE detainers on Plaintiff to retaliate against him for asserting his Fifth Amendment right against self-incrimination and/or from engaging in speech protected by the First Amendment.” Prop. TAC ¶ 144. As this is a newly added claim, Defendants do not address it in their Motions to Dismiss, see U.S. MTD; Agents MTD, and their only argument is again a blanket assertion that “Plaintiff fails to meet the state tort requirements under the FTCA.” Opp’n to Mot. to Am. at 7. However, “under well-established California law, the tort of abuse of process ‘requires misuse of a judicial process.’ ” Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1037 (9th Cir.2008) (emphasis in original) (quoting Stolz v. Wong Commc’ns Ltd. P’ship, 25 Cal.App.4th 1811, 1822, 31 Cal.Rptr.2d 229 (1994)). In other words, “[i]t is a process that is ‘pursuant to authority of [a] court.’ ” Estate of Tucker, 515 F.3d at 1037 (alterations in the original) (quoting Meadows v. Bakersfield Sav. & Loan Ass’n, 250 Cal.App.2d 749, 753, 59 Cal.Rptr. 34 (1967)).

Plaintiff relies on the issuance of the immigration detainer as the basis for his claim; but he has not identified any judicial process Defendants allegedly abused. Without more, he has failed to allege a cognizable abuse of process claim. See United States v. Juarez-Velasquez, 763 F.3d 430, 435 (5th Cir.2014) (describing immigration detainer as “simply an administrative mechanism”); Estate of Tucker, 515 F.3d at 1037 (“Misuse of an administrative proceeding- — even one that is quasi-judicial — does not support a claim for abuse of process.”). As such, the Court cannot grant Plaintiff leave to add this claim as it would be futile.

2. Proposed Bivens Claims

Plaintiffs SAC alleges two Bivens claims against Chang and Garcia for violations of his Fifth Amendment rights to equal protection and substantive due process. SAC ¶¶ 118-50. Plaintiffs Proposed TAC seeks to add four more Bivens claims against Chang and Garcia for violations of his First, Fourth, and Eighth Amendment rights as a result of the allegedly improper detainer. CITE. Chang and Garcia argue these claims are futile because (1) there is no Bivens remedy in the immigration context, and (2) Chang and Garcia are entitled to qualified immunity. Agents MTD at 11-34; see Opp’n to TAC Mot. at 7 (re-raising qualified immunity argument and arguing Court should decide issue at earliest instance).

The Bivens case was the first time the Supreme Court “recognized ... an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (citing Bivens, 403 U.S. at 391, 91 S.Ct. 1999). In doing so, the Supreme Court established that “federal courts have the inherent authority to award damages against federal officials to compensate plaintiffs for violations of their constitutional rights.” W. Ctr. For Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000) (citations omitted). A plaintiff who asserts a Bivens claim therefore “seeks to hold federal officers individually liable for constitutional violations.” Starr v. Baca, 652 F.3d 1202, 1206 (9th Cir.2011); see Malesko, 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (“The purpose of Bivens is to deter individual federal officers from committing constitutional violations.”). A“ Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity.” Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). “This is because a Bivens suit against a defendant in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity.” Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir.2007).

a. Availability of Bivens Remedy

Chang and Garcia make three arguments against Plaintiffs Bivens claims: (1) the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., precludes a Bivens remedy; (2) Congress’ and the Executive Branch’s plenary powers over immigration matters warrants dismissal of Plaintiffs Bivens claims; and (3) Plaintiffs status as a fugitive should preclude him from seeking a remedy in this Court. Agents MTD at 16-26; Opp’n to TAC Mot. at 7 (“[T]he special factors’ defense against Bivens claims receives the same consideration in the context of the proposed TAC.”).

The Supreme Court disfavors implied causes of action like Bivens and therefore limits their availability. Iqbal, 556 U.S. at 675, 129 S.Ct. 1937. A Bivens remedy “has to represent a judgment about the best way to implement a constitutional guarantee.” Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). Damages are not “an automatic entitlement no matter what other means there may be to vindicate a protected interest.” Id. In the 44 years since Bivens, the Court “ha[s] recognized two more non-statutory damages remedies, the first for employment discrimination in violation of the Due Process Clause, ... and the second for an Eighth Amendment violation by prison officials[.]” Id. at 549-50, 127 S.Ct. 2588 (2007) (internal citations omitted); see Davis v. Passman, 442 U.S. 228, 245-48, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (implying a damages action under the Fifth Amendment Due Process Clause to hold that a former congressional employee could seek damages against her employer for a claim of gender discrimination); Carlson v. Green, 446 U.S. 14, 17-18, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (implying another Bivens in allowing a prisoner’s estate to pursue damages against federal prison officials for violations of the prisoner’s Eighth Amendment rights). Carlson marks the last time the Supreme Court extended Bivens. See Minneci v. Pollard, — U.S. -, 132 S.Ct. 617, 622, 181 L.Ed.2d 606 (2012) (“Since Carlson, the Court has had to decide in several different instances whether to imply a Bivens action. And in each instance it has decided against the existence of such an action.”). Rather, “[t]he [Supreme] Court has ... ‘recently and repeatedly said that a decision to create a private right of action is one better left to legislative judgment in the great majority of cases.” Mirmehdi v. United States, 689 F.3d 975, 981 (9th Cir.2012) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 695, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004)). As a result, the Supreme Court “ha[s] consistently refused to extend Bivens liability to any new context or new category of defendants.” Malesko, 534 U.S. at 68, 122 S.Ct. 515; see Minneci, 132 S.Ct. at 622-23 (summarizing cases where Court declined to extend Bivens).

The context in which a plaintiff asserts a Bivens action is key; the Supreme Court “ha[s] responded cautiously to suggestions that Bivens remedies be extended into new contexts.” Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). When faced with a Bivens claim, the Ninth Circuit “construe[d] the word ‘context’ as it is commonly used in law: to reflect a potentially recurring scenario that has similar legal and factual components.” Mirmehdi, 689 F.3d at 981 (internal quotations omitted). The Supreme Court has implied a Bivens action only “to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer’s unconstitutional conduct.” Malesko, 534 U.S. at 70, 122 S.Ct. 515. “Where such circumstances are not present, [the Court] ha[s] consistently rejected invitations to extend Bivens [.]” Id. In particular, “the Court has emphasized that ’[s]o long as the plaintiff had an avenue for some redress, bedrock principles of separation of powers foreclosed judicial imposition of a new substantive liability.’ ” Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir.2003) (alterations in the original) (quoting Malesko, 534 U.S. at 69, 122 S.Ct. 515).

“[T]he decision whether to recognize a Bivens remedy may require two steps.” Wilkie, 551 U.S. at 550, 127 S.Ct. 2588. The Ninth Circuit first asks “whether there is ‘any alternative, existing process for protecting the plaintiff[’s] interests. If there is such an alternative remedy, [the] inquiry stops. If there is not, [courts] proceed to the next step and ask whether there nevertheless are factors counseling hesitation before devising such an implied right of action.” Mirmehdi, 689 F.3d at 982 (quotations and marks omitted). In other words, even absent an alternative remedy, courts should not extend Bivens if there are “any special factors counselling hesitation before authorizing a new kind of federal litigation.” Wilkie, 551 U.S. at 550, 127 S.Ct. 2588 (quotations omitted). With that test, the Court considers whether Bivens provides a remedy for Plaintiffs claims for (1) First' Amendment retaliation, (2) Fourth Amendment unreasonable seizure, (3) Fifth Amendment equal protection, self-incrimination, and due process, and (4) Eighth Amendment excessive bail.

(i) Existence of Alternative Remedies

The Supreme Court has refused to extend Bivens “[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration[.]” Schweiker, 487 U.S. at 423, 108 S.Ct. 2460. Defendants argue there are two alternate remedies that preclude a Bivens remedy: the remedial measures set forth in the INA and federal habeas relief.

Defendants urge the Court to follow the holding of Mirmehdi, where the Ninth Circuit declined to extend Bivens to constitutional violations stemming from deportation proceedings; in part due to the comprehensive remedial scheme of the INA. Agents MTD at 19-20. The Mirmeh-di plaintiffs were Iranian citizens who were arrested for immigration violations and detained for approximately four years during immigration proceedings. 689 F.3d at 979-80. Having challenged their detention “on direct appeal of their detention, during the merits proceeding related to their asylum applications, and in a federal petition for a writ of habeas eorpus[,]” the plaintiffs subsequently sued a Federal Bureau of Investigation agent and an Immigration and Naturalization agent, asserting claims of wrongful detention under Bivens. Id. at 979. The court concluded that “de.portation proceedings constitute the relevant environment of fact and law in which to decide whether to recognize a Bivens remedy.” Id. (quotations omitted).

The Ninth Circuit first held that the existing remedial system in the INA and the availability of habeas relief precluded the availability of a Bivens remedy, as the plaintiffs could and did use those schemes to challenge their detention. Id. The court next found two factors that “counselled] hesitation” before extending Bivens. Id. First, the INA presented a “complex[ ] and comprehensive[ ] ... existing remedial system[.]” Id. Second, “immigration issues ‘have the natural tendency to affect diplomacy, foreign policy, and the security of the nation,’ which further ‘counsels hesitation’ in extending Bivens.” Id. (quoting Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir.2009) (en banc)). Thus, “given the extensive remedial procedures available to and invoked by them and the unique foreign policy considerations implicated in the immigration context!,]” the Ninth Circuit declined to extend Bivens to allow illegal immigrants to sue federal agents for wrongful detention pending deportation proceedings. Id. at 983.

The Court disagrees with Defendants’ contention that “[although it did not deal with detainers per se, the holding in Mir-mehdi should apply with full force” to this case. Agents MTD at 19. Several factors distinguish Mirmehdi from this case. First, the Ninth Circuit identified deportation proceedings as the context in which it considered the availability of a Bivens remedy and limited its holding to that context. Id. at 981, 983 (“[W]e decline to extend Bivens to allow the [plaintiffs] to sue federal agents for wrongful detention pending deportation!.]”). Plaintiff, however, seeks to sue Chang and Garcia for constitutional violations arising out of an immigration detainer — deportation proceedings against Plaintiff never commenced and no order of removal was ever issued. This case therefore presents a different context than the one considered in Mirmehdi. Second, Plaintiffs citizenship further differentiates the case. The Mir-mehdi court specifically addressed “whether an alien not lawfully in the United States may sue for monetary damages claiming constitutionally invalid detention.” 689 F.3d at 978. Whether a citizen may bring a Bivens claim requires a different analysis. Id. at 981 n.3 (“[W]e must consider whether an immigrant may bring a Bivens claim to vindicate certain constitutional rights separately from whether a citizen may bring such a Bivens claim.”). Plaintiff alleges he is a U.S. citizen, not an alien, and there are no indications that Plaintiff resided in the country illegally. See SAC ¶ 10 (asserting Plaintiff acquired derivative U.S. citizenship); Prop. TAC ¶ 1 (same); see also 8 U.S.C. § 1101(a)(3) (“The term ‘alien’ means any person not a citizen or national of the United States.”).

Plaintiffs U.S. citizenship makes this case more similar to Lyttle v. United States, 867 F.Supp.2d 1256 (M.D.Ga.2012), where the court found the INA did not preclude a Bivens remedy. The Lyttle plaintiff asserted Bivens claims for violations of his Fourth and Fifth Amendment rights against ICE agents who allegedly detained and deported the plaintiff to Mexico despite knowing the plaintiff was a U.S. citizen. Id. at 1269-74. While Lyttle did not concern the issuance of an immigration detainer, the court’s analysis of whether the INA provided adequate remedies for citizens so as to foreclose a Bivens remedy is applicable to this situation. Id. at 1276. The Lyttle court found “[t]he remedy under the INA [was] not constitutionally adequate for citizens” because it failed to “provide ‘meaningful safeguards or remedies’ for a U.S. citizen like [the plaintiff].” Id. at 1276 (quoting Schweiker, 487 U.S. at 425, 108 S.Ct. 2460). Noting the INA provided some “procedural protections for citizens who may be wrongly identified as deportable aliens,” the court nevertheless determined those protections were “constitutionally inadequate” to redress a citizen’s constitutional violations. Id. at 1277 (citing 8 U.S.C. § 1252(b)(5) (authorizing courts of appeal to review a petitioner’s claim of nationality upon final order of removal)). The court “conclude[d] that the INA does not provide any meaningful remedy and review procedure for ... a U.S. citizen” and thus did not prevent the court from crafting a Bivens remedy. Id. at 1278.

Thus, while Defendants refer to several provisions of the INA which they contend contain procedures to challenge ICE detention and removal, Agents MTD at 20 (citing 8 U.S.C. §§ 1225, 1229, 1229a, 1229b, 2241), those sections apply specifically to “aliens,” which the INA defines as “any person not a citizen or national of the United States.” 8 U.S.C. § 1101. Given Plaintiffs U.S. citizenship, those INA provisions are inapplicable here and do not provide a means of relief.

Finally, although the INA contemplates the possibility of the removal of a U.S. citizen, those remedial measures are inapplicable to Plaintiffs situation. Section 1252(b)(5) provides that following a final order of removal, “[i]f the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner’s nationality is presented, the court shall decide the nationality claim.” 8 U.S.C. § 1252(b)(5). Because there was no final order of removal, Plaintiff could not have availed himself of this procedure, and such protection is therefore inadequate to address his injuries. As Plaintiff is a U.S. citizen and no order of removal was issued for him, the Court finds the INA does not provide a remedy to address the alleged violations of his constitutional rights.

The Court next considers whether Plaintiff can remedy his injuries through federal habeas relief. Defendants further argue that “ICE detention ... may also be challenged through habeas where appropriate.” Agents MTD at 18. But Plaintiff contends habeas relief was unavailable in his case because he was never “in custody” for purposes of a habeas petition. Opp’n to Agents MTD at 8, Dkt. No. 96.

“.Habeas corpus proceedings are available only for claims that a person ‘is in custody in violation of the Constitution or laws or treaties of the United States.’ ” Dickerson v. United States, 530 U.S. 428, 439 n. 3, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (quoting 28 U.S.C. § 2254). The Ninth Circuit, however, has held that an immigration detainer does not render a person in custody for purposes of habeas relief. See Garcia v. Taylor, 40 F.3d 299, 303 (9th Cir.1994) (“We now agree with the circuits which have expressed the opinion that the bare [INS] detainer letter alone does not sufficiently place an alien in INS custody to make habeas corpus available.”), superseded by statute on other grounds as stated in Campos v. I.N.S., 62 F.3d 311, 314 (9th Cir.1995). However, “individuals are ‘in custody’ for purposes of [habeas corpus] if they are ‘subject to a final order of deportation.’ ” Veltmann-Barragan v. Holder, 717 F.3d 1086, 1088 (9th Cir.2013) (quotation omitted). As noted earlier, Plaintiff was never “subject to a final order of deportation” and thus was never in custody. See id. Because Plaintiff was not “in custody,” he could not have sought a writ of habeas corpus.

In light of the foregoing, the Court finds there are no alternate remedies to protect Plaintiffs interests so as to prevent the Court from implying a Bivens remedy. The Court next considers whether special factors counsel against in doing so.

(ii) Special Factors

First, Chang and Garcia argue Congress’ and the Executive Branch’s plenary powers over immigration matters constitute a special factor that precludes the availability of a Bivens remedy. Agents MTD at 22-23. When the defendants in Lyttle asserted a similar argument, the court acknowledged this “general observation” but nevertheless rejected the contention because

fail[ed] to make the distinction between the use of the immigration process to regulate the admission and removal of aliens, a legitimate exercise of the power of the political branch of government, and the use of that process to detain and remove citizens, an unauthorized exercise of political branch power unless additional constitutional protections are provided to safeguard against the wrongful removal of a citizen from his own country.

867 F.Supp.2d at 1278 (emphasis in original). The Court agrees with Lyttle that the issuance of an immigration detainer on a U.S. citizen is not a proper exercise of congressional power.

Second, Defendants argue the “fugitive disentitlement doctrine” prevents Plaintiff from asserting his Bivens claims. Agents MTD at 23-26. The fugitive disen-titlement doctrine is a “discretionary sanction courts can impose to prevent appellate review for escapees from the criminal justice system.” Mamigonian v. Biggs, 710 F.3d 936, 940 (9th Cir.2013) (internal quotations omitted). “Courts have regularly applied this doctrine to dismiss both criminal appeals and related civil proceedings instituted by fugitives.” Cordell v. Tilton, 515 F.Supp.2d 1114, 1119 (S.D.Cal.2007) (collecting cases). The Ninth Circuit has “recognized that fugitive disentitlement is a severe sanction that courts should not lightly impose.” Mastro v. Rigby, 764 F.3d 1090, 1096 (9th Cir.2014) (quotations omitted). In doing so, use of the doctrine is generally limited “to challenges to detentions, where a [person’s] status as a fugitive from confinement clearly undercuts his challenge to his confinement.” Id.

To apply the fugitive disentitlement doctrine here would be inconsistent with that position, as such a severe sanction is not warranted here. Moreover, courts also require a nexus between the criminal conviction and the civil matter before applying the doctrine. See Willis v. Mullins, 2009 WL 1657451, at *2 (S.D.Cal. June 12, 2009) (“[A] sufficient nexus is required in order to apply the fugitive disentitlement doctrine.”). There is no such connection in this case. Defendants argue there are outstanding warrants for Plaintiffs arrest, and his status as a fugitive is predicated on the criminal charges for which he was in pretrial detention when the events at issue in this case occurred. Agents MTD at 23, 25; see RJN, Ex. B at 1 (clerk’s docket and minutes revoking Plaintiffs probation and issuing bench warrant, dated July 25, 2014). Although Plaintiff was initially in pretrial detention because of those criminal charges, the immigration detainer on which this lawsuit is based was unrelated to those charges, and those charges have no bearing on this matter. As such, the Court does not find a connection between Plaintiffs criminal matters and the instant lawsuit to apply the fugitive disentitlement doctrine.

b. Qualified Immunity

Having established the availability of Bivens, the Court considers Defendants’ argument that Chang and Garcia are entitled to qualified immunity. Opp’n to Mot. to Am. at 7; Agents MTD at 26-28. “[T]he qualified immunity analysis is identical under either [section 1983 or Bivens] eause[s] of action.” Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Thus, “[e]ven in circumstances in which a Bivens remedy is generally available, an action under Bivens will be defeated if the defendant is immune from suit.” Hui v. Castaneda, 559 U.S. 799, 807, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010); see F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1314 (9th Cir.1989) (“Federal officials may raise a defense of qualified immunity to a Bivens action.”).

“Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Reichle v. Howards, —— U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011)). It “is both a defense to liability and a limited entitlement not to stand trial or face the other burdens of litigation.” Iqbal, 556 U.S. at 672, 129 S.Ct. 1937 (internal quotation omitted). Qualified immunity purports “to strike a balance between the competing ‘need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.’ ” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir.2011) (en banc) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). An official is entitled to qualified immunity “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” al-Kidd, 131 S.Ct. at 2080 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “[C]ourts have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first.” Id.

To determine “whether the constitutional right was clearly established at the time of the conduct — the critical question is whether the contours of the right were ‘sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ ” Mattos, 661 F.3d at 442 (quoting al-Kidd, 131 S.Ct. at 2083; some internal marks omitted). “The plaintiff bears the burden to show that the contours of the right were clearly established.” Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir.2011). While there need not be “a case directly on point, ... existing precedent must have placed the statutory o