Free Motion to Dismiss Case/Lack of Jurisdiction - District Court of Arizona - Arizona

PAUL K. CI~IAR“£ft”O‘N . I
United States Attorney
District of Arizona _,
EOHN TR. MAYPIELD U l
Assistant U.S. Attorney I
A1'I'Z0l`|i1 State- Bar No,. 4843 )
Two R.enaissan.ce Square - .
40 North Central Avenue, Suite 3200
Phoenix, Arizona 85004-4408 ·· ‘ _
Telephone: (602) 51437500 _ I
jo‘[email protected] , _ _ _ _
· UNITED STATES· DISTRICT COURT
DISTRICT OF ARIZONA .
Carlos_!.Artl1u1· Powel?l,
Plaintiff CIV 03-}.8}.9~PHX—JAT (LOA)
VS. · _
- _ _ _ _ DECLARATION
F. Garcia, (Assist. Warden); C. M1i€S(UH1`I of Earl R. Sealer
Manager/Bravo); E. Seaiei, (INS;)
My name is Earl R. Scalet. I am currently en1p.l.oyed by the Department of Homeland
Security, U.S. Inmiigration and Customs Enforce1nent‘(ICE) as a Deportation Officer. Iam
currently assigned to the Plioeriiir, Arizona Field_O.£1Hce-..
From March of 2001 until Feirruary of 2006, I-was employed as an Immigration Agent by
the United S-tates I.mmi_gratio.n and Naturalizatioti Service (INS). IN S was replaced by ICE after
the creation ofthe Department of ;HO1`.lI€I.EiI1d Security, and my job title was changed to `
Immigration Enforcement Agent in August of 2003. I .
During that period, Iwas assi gied to the }Eloy.Detentio1.1 Center, Institutio·1ia`l Removal
Pi·og1··a·m (IRP). My duties were to interview the United States Bureau of Prisons (BOP) inmates n _
housed into removal proceedings Deteiition. Center to determine their citizenship, and piace them
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into removal proceedings if appropriate based upon their citimnship and criminal convictions.
It was in this capacity that I came into contact with Mr. Carlos Powell (known to ICE as
liianl. Ernesto Aionao). Mir. Powell was afBOP imnate, which BOP had listed as a citizen. of
Cuba.
In approximately December of 2003, I received by mail a notice from the Uitiited States -
District Cotnt, District of Arizona, Civil Division, that I had been named as a defendant in the
i case of Cor/os Powell v. F. Gczrciaef oi (CV—03~`i8l9—PHX—IAT). The notice indicated that I _
was being sued in both my ofticim and personal capacity. At the same time, Ireceived a request _ ‘
to waive service. After consulting with ICE Office of Chief Counsei’s oeitice, I opted not to
waive service. At no time did I authorize anyone to accept service on my behalf i
I remained an employee of ICE at the Eioy Detention Center until February ot`2006. This-
is the same location where I had my initial contact with Mt. Powell. Mr. Powell could have
attempted to effect personal service up to the point he was transferred to a different BOP tecility .
in Taft, California in approximately June of 2004. Even ifhe were unable to effect personal
- service due to his incarceration in a segregated unit at Eloy Detention Center, he certainly could
have directed the `United States Marshals Serviceof effect service upon nie at the Eioy Detention
Center where he knew I was- employed.
At. no point did I attempt to evade sewice, I was simply insisting that Mr. Powell ensure
that I had been served in person. l
When the United States iii/iarsliais S-erv.ice eventually did attempt to efiect service upon ‘
me at the Eioy Detention Center, in late- January of 2‘00‘6‘, I was assigned to a three~·week training
course at the Federal Law Enforcement Training Center in Georgia. The person who the U.S.
Marshals contacted at Eloy, Ms. Kimberly Shepard, did notlcnow my whereabouts at that time
because slienwas not in my direct chain of connnand.
Upon my return to Eloy after training, I was transferred to the Phoenix Field Office. This
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transfer wes not am attempt to avoid service, it a competitive promotioii to Depottation
_ Officer. U l U _
A When the United States lviarshzzls contacted me at my iiew location in the Plrtoenix `Fielcl —
Ofiice regarding service, I informed them that all they n.ee_cled to do was show up at the oihce
and I would gladly accept service. Later that same momi-ng, {met with-a deputy UQS. Marshal in.
the lobby of£l1eICE office and accepted service personally. Had. Mt. Powell properly instructed
the U.S. Marsha1_l_s Service 011- where to effect service, as he is eequircd to do, he clearly could
have had me setvedi.11 a timely1mu111e1·as opposed to the approximately 2 I/2_yce1·s it actually
took him. l
I cieciate under penalty oi? pcrj ury, pmtseamt to 28 U .S.C.§=‘l1746, thattheiEo1·cgoin1gis tree
and correct. Dated this ig; day of June, 2006. _
Earl R. Scaiet
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