Maria Inamagua Merchan, an undocumented alien awaiting deportation in an Immigration and Customs Enforcement (ICE) detention facility, died while in custody, and her estate brought an action under the Federal Tort Claims Act (FTCA) against ICE and the Department of Homeland Security (DHS), alleging medical malpractice, a Section 1983 claim, and a Bivens claim. The district court dismissed the case, and the Eighth Circuit Court of Appeals affirmed that dismissal.

The appeals court noted that the magistrate judge at the district court level "did not clearly err in finding that plaintiffs' claim accrued upon Inamagua's death." Unfortunately, plaintiffs and their counsel failed to timely file various notices, which rendered their claims susceptible to dismissal on jurisdictional grounds.

According to the appeals court, the "FTCA was dismissed because plaintiffs failed to file their administrative claim within two years after the claim had accrued, thus depriving the district court of jurisdiction to hear the dispute... With respect to the (private ICE detention) defendants, the magistrate judge determined that the Bivens action because such actions do not extend to private actors...when adequate state tort remedies are available." Likewise, "the district court properly dismissed the malpractice claim for failure to comply with Minnesota Statutes section 145.682..." Stowell v. Huddleston, 643 F.3d 631, 633 (8th Cir. 2011).

Although the court recognized a split in the circuits as the issue of whether "private actors" can be sued under Bivens, the court said that, "the Supreme Court resolved the circuit split in Minneci v. Pollard, 132 S. Ct 617 (2012), finding that a private citizen and private cooperation could not be liable under Bivens.

The claim against the ICE detention center, Ramsey County Detnetion Center, failed because the plaintiffs could not establish "deliberate indifference," since no evidence was introduced "to contradict the Ramsey County defendants' testimony that they were unaware of Inamagua's serious medical need, when she had complained only of headaches.

See: Flores et al. v. U.S., et al., 11-2222, U.S. Crt of Appeals for the Eighth Circuit, (2012).

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