Robinson v. Pilgram ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MELVIN RICHARD ROBINSON III,
Plaintiff,
v. Civil Action No. 20-cv-2965 (GMH)
AARON PILGRAM, et al.,
Defendants.
MEMORANDUM OPINION
This case boils down to whether the Court should fashion a remedy for alleged
constitutional violations where Congress has failed to enact one and the application of such a
remedy could have national security implications. The short answer is, “No.”
Melvin Richard Robinson III (“Plaintiff”), who proceeds pro se, brings this putative Bivens
action against two Secret Service officers, Aaron Pilgrim 1 and Paul Naples (“Defendants”) for
alleged deprivations of his constitutional rights arising from his arrest in Washington, D.C. on June
5, 2020. The arrest resulted from law enforcement’s discovery that Plaintiff’s vehicle, parked a
short distance from the White House, contained a high capacity magazine, a 10mm bullet, and
brass knuckles. 2 In rambling and often confusing filings, Plaintiff appears to assert that Defendants
violated his rights under the First, Second, Fourth, Fifth, Tenth, and Fourteenth Amendments to
the U.S. Constitution. Defendants moved to dismiss Plaintiff’s claims on various grounds,
including that Plaintiff’s pleadings fail to state a claim for relief; that Plaintiff’s claims are barred
1
“Pilgrim” appears to be the proper spelling of this defendant’s last name, and that spelling will be used throughout
the opinion.
2
Plaintiff faces criminal charges in Washington, D.C. for possession of the high-capacity magazine. See U.S. v.
Robinson, Case No. 2020 CF2 005181 (D.C. Sup. Ct. 2020).
1
by the doctrine of sovereign immunity; that no Bivens claims can be maintained against the
Defendants; and that Defendants are entitled to qualified immunity. In response to the Defendants’
motion to dismiss, Plaintiff appeared to raise yet more claims: that his Eighth and Ninth
Amendment rights were violated, too. Although Plaintiff’s allegations are far from a model of
clarity—and, indeed, contain a number of irrelevant statements and ad hominem attacks on
Defendants’ counsel—the Court has given them the most liberal reading possible. Even so, the
Court finds it lacks subject matter jurisdiction over Plaintiff’s official capacity claims against
Defendants and that a Bivens remedy should not be extended to his individual capacity claims,
which, in any event, are barred by qualified immunity. The Court therefore grants Defendants’
motion to dismiss. 3
I. BACKGROUND
A. Procedural Background
In this case, it is helpful to first recount the procedural background before discussing the
factual allegations in the operative complaint and the Defendants’ motion to dismiss.
Plaintiff first brought suit against the Defendants on October 6, 2020 (the “Initial
Complaint”). See ECF No. 1. The Initial Complaint, which was filed using a fillable “Complaint
For Violation of Civil Rights” form, indicated that Plaintiff was bringing a Bivens claim for
violations of his Second, Fourth, Fifth, and Tenth Amendment rights. See id. at 3. In response to
the form’s question “What are the facts underlying your claim(s)?,” Plaintiff’s entire response was
that he was “[a]rrest[ed] by the Secret Service behind white house – the local agencies should have
camera evidence.” Id. at 4. In response to the form’s question concerning his injuries, Plaintiff
3
The relevant docket entries for the purposes of this motion are Defendants’ Motion to Dismiss (ECF No. 21-1);
Plaintiff’s Response to Defendant’s Motion to Dismiss (ECF No. 23); and Defendants’ Reply to the Opposition to the
Motion to Dismiss (ECF No. 24). The page numbers cited herein are those assigned by the Court’s CM/ECF system.
2
wrote the following: “Reputation has been damaged, pain caused because of injuries. Emotional
distress. I was put in a position of discomfort by being handcuffed behind my back with a spine
injury.” Id. at 5. In the “Relief Sought” section, Plaintiff wrote the following:
TRO/Preliminary Injunction Relief.
20 million dollars.
A. Magazine Ammo limitations
B. 10mm Ammo Restrictions
C. Brass knuckles Ban
E. 2nd Amendment travel Restrictions
I’m asking for a TRO/Preliminary Injunction on these four unconstitutional laws
by state and local officials.
A. TRO/Injunction to return my electronics
B. TRO/Injunction to handcuff me in the Front Due to injury
C. TRO/Injunction to drop all unconstitutional charges
I’m asking for money for injuries to my reputation and my life will never be the
same.
Id. Plaintiff also asked that he be appointed an attorney “under Civil Rights laws.” Id.
The Court noted that the First Complaint was “deficient in several respects,” including that
it failed to “allege the specific actions taken by the defendants that violated [Plaintiff’s] civil
rights”; the doctrine of sovereign immunity barred Plaintiff’s claims for monetary relief; and it
“lack[ed] sufficient detail” in support of his requests for injunctive relief. ECF No. 3 at 2.
Plaintiff was ordered to amend his complaint within 30 days to cure these issues. See id.
at 3. Specifically, Plaintiff was told that his amended complaint had to “identify[ ] the claims he
3
intends to bring, against whom, and in what capacity.” Id. On November 9, 2020, Plaintiff filed
an amended complaint, which is now the operative pleading (the “Amended Complaint”). See
ECF No. 4. In granting Plaintiff’s motion to amend his complaint, the Court explained that, while
the claims “still are not a model of clarity,” they were “sufficiently colorable” to proceed. ECF
No. 6 at 2. However, the Court did dismiss Plaintiff’s claims for equitable relief, all of which were
styled as requests for a “TRO/Preliminary Injunction.” 4 See id. at 2–3. Plaintiff’s request for
appointment of counsel was also denied. See id. at 3. Thus, at this stage, only Plaintiff’s putative
Bivens claims against Defendants remain. 5 The Court now turns to the substance of those claims.
B. Factual Allegations and the Motion to Dismiss
Plaintiff’s Amended Complaint is labeled as a “Memorandum” and comes in the form of
several pages of typed text (not the form complaint previously filed). See generally ECF No. 4.
He alleges that he was in the District of Columbia “working as a freelance photo journalist” on
June 5, 2020, during the “George Floyd Protest.” Id. at 1–2. In the evening, when Plaintiff arrived
back at his vehicle that was “parked behind the White House,” he claims that “the Secret Service”
arrested him. Id. at 1. According to Plaintiff, “[m]any of the officers” were not wearing “proper
4
Plaintiff’s claims for preliminary injunctive relief were as follows: as to the First Amendment, Plaintiff sought “a
TRO/Preliminary injunction on my restraining order from the White House,” though it is not clear the “restraining
order” to which he refers. ECF No. 4 at 4. As to the Second Amendment, Plaintiff sought a “TRO/Preliminary
Injunction on laws banning High capacity magazines, Ammo restrictions and laws banning brass knuckles.” Id. As
to the Fourth Amendment, Plaintiff had two requests, the first to return his phones, i-Pad, and camera, and the second
“for all law [enforcement] to handcuff me in the front due to my injuries if I’m compliant.” Id at 4–5. As to the Fifth
Amendment, Plaintiff sought a “TRO/Preliminary Injunction on all local and state government officials from making
unconstitutional 2nd Amendment laws restricting my right to travel with a self-defense Tool” and “[a] nationwide
TRO/Preliminary injunction on all high -capacity magazine, ammo and brass knuckles restricting laws.” Id. at 5.
Last, concerning the Tenth Amendment, Plaintiff demanded that “all Government officials/Law enforcement to wear
a mask in Covid-19 hot spots across the country.” Id. The Court dismissed these claims because Plaintiff failed to
“allege[ ] any facts to support his request for preliminary injunctive relief” and did not “demonstrate[ ] that such
extraordinary relief is warranted in this circumstance.” ECF No. 6 at 2–3. Plaintiff then “appealed” the dismissal of
his injunctive relief claims, see ECF No. 9, which the Court denied in a minute order. See Minute Order (Jan. 28,
2021) (finding that “Plaintiff has failed to demonstrate a likelihood of success or irreparable harm with respect to his
preliminary injunction motion”).
5
To be clear, none of Plaintiff’s claims for equitable relief survive because the only equitable relief sought was the
multiple preliminary injunction requests that the Court denied.
4
face coverings” and therefore “increased [his] exposure to Covid-19.” Id. at 1–2. On this point,
Plaintiff cryptically cites the “10th Amendment (Jacobson vs Mass).” Id. at 1–2. Later, Plaintiff
describes his Tenth Amendment claim as “Public Health Risk.” Id. at 4.
Plaintiff then says the agents searched his vehicle and seized his “cell phones, I-pad and
camera,” intrusions he claims were “without cause or due process” and therefore violated the
Fourth and Fifth Amendments. Id. at 2. He acknowledges that, during the search of his vehicle,
the agents found “a high capacity magazine, one 10mm bullet, and Brass Knuckles.” Id. The
former two items, Plaintiff says, were purchased legally in North Carolina. See id. In any event,
Plaintiff asserts, he has a “5th Amendment right to travel with a self-defense tool,” which he claims
was violated during the arrest. Id. Later, Plaintiff makes another Fourth Amendment claim, this
time for excessive force. See id. at 3. Plaintiff explains that, due to a 2018 car accident, he has “a
spinal injury with concussive syndrome.” Id. As a result, he says, he “cannot be handcuffed
behind the back.” Id. The Amended Complaint suggests that Plaintiff was, however, handcuffed
behind the back despite his “peaceful and compliant” behavior and his multiple requests to “move
[his] hand posit[i]on.” Id.
He next pivots to a First Amendment claim. Because he was in Washington as a “freelance
photo journalist,” Plaintiff says his arrest “violated the 1st Amendment freedom of the press, when
[he] was taking pictures of the protest.” Id. at 2–3. He then alleges that his “1st Amendment rights
of freedom to assemble” were infringed because he “was walking on the side walk in protest to all
the destruction” and “was protesting the riots in support of local law enforcement and was
encouraging people to protest peacefully.” Id. at 3. Thus, Plaintiff claims, “[t]he Secret Service
violated the 1st Amendment twice by arresting [him] during a peaceful protest supporting the
police, while working as a photo journalist.” Id. at 3.
5
Plaintiff then returns to the weapons found in his vehicle and claims that, by arresting him
for possession of the magazine, bullet, and brass knuckles, “they” (referring to “the Secret
Service”) violated his Second, Fifth, and Fourteenth Amendment rights. See id. at 3. Notably,
Plaintiff never mentions agents Pilgrim or Naples in his factual allegations and fails to explain
their roles in the alleged constitutional violations. Nor did Plaintiff adhere to the Court’s directive
to specify whether he was bringing claims against Defendants in their individual or official
capacities.
As to money damages, Plaintiff says that if compensatory damages are cognizable, he seeks
“20 million dollars for multiple constitutional violations.” Id. at 5. In apparent reference to the
criminal case pending against him, Plaintiff alleges that his reputation and employment prospects
will be impaired “in the future as a felon. See id. at 5. He also claims that financial compensation
would “help with [his] pain and suffering” resulting from being handcuffed behind his back. Id.
at 5–6.
Thus, liberally construed, the Amended Complaint asserts violations of Plaintiff’s First,
Second, Fourth, Fifth, Tenth, and Fourteenth Amendment rights and seeks $20 million in damages.
Defendants moved to dismiss Plaintiff’s claims on a number of grounds. See generally
ECF No. 21-1. First, Defendants assert that the Plaintiff has not alleged sufficient factual material
to support his claims, pointing particularly to his failure to “allege specific actions taken by the
Defendants that violated his constitutional rights.” Id. at 11–12. Second, Plaintiff’s Fourteenth
Amendment claim is not cognizable, Defendants argue, because that provision of the Constitution
is only applicable to the States, and Defendants are federal agents. See id. at 12. Third, Defendants
assert that even if Plaintiff had pleaded his claims adequately, they would nevertheless be barred
by the doctrine of sovereign immunity, at least as to any official capacity claims he brings. See id.
6
at 12–14. Fourth, as to the individual capacity (i.e., Bivens) claims, Defendants argue those fail at
the threshold because they are not factually supported. See id. at 14–15. Fifth, Defendants contend
that even if the Bivens claims were properly asserted, claims under Bivens are highly circumscribed
and should not be expanded into the new frontiers from which Plaintiff beckons. See id. at 15–22.
Finally, to the extent Plaintiff does have a Bivens remedy, Defendants say they are entitled to
qualified immunity. See id. at 22–24.
In his opposition to Defendants’ motion, Plaintiff eschewed any substantive response and
instead sought to add more facts and claims to an already-lengthy list of charges. 6 See generally
ECF No. 23. While these new claims, like the first set, are difficult to make out, it appears that
Plaintiff has added a Ninth Amendment claim stemming from his allegation that, during the arrest,
the federal agents “took [his] marijuana” and/or “took a couple of Vape carts, marijuana jelly, and
a leafy substance.” Id. at 1. For these allegedly unlawful deprivations, Plaintiff seeks over $50,000
and demands that “all federal agents stop arresting citizens for marijuana violations when states
have [made its possession] legal.” Id. at 1–2. Without any substantive analysis or argument,
Plaintiff avers that the Court should extend Bivens to cover Ninth Amendment claims “because
federal agents are arresting [individuals for the possession of] legal marijuana in states where the
people voted on it for recreational or medical use.” Id. at 2. The response also seems to add an
Eighth Amendment claim, which Plaintiff suggests stems from the agents handcuffing him behind
his back. See id. at 4. Elsewhere in his response, Plaintiff asserts that he is a member of the North
Carolina militia and has a Second and Fifth Amendment right to travel as a militia member. See
6
Although “[i]t is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to
address as conceded,” Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25 (D.D.C.
2003) aff’d sub nom. Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, United Methodist Church, 98 F. App’x
8 (D.C. Cir. 2004), the Court will duly consider all of Defendants’ arguments for dismissal in light of Plaintiff’s pro
se status..
7
id. at 2. He also attempts to clarify his Tenth Amendment claim, which he says arises from the
agents’ failures to “Follow The Mask mandates” when arresting him. Id. at 5.
II. LEGAL STANDARDS
A. Motions to Dismiss Under Rule 12(b)(1)
A motion under Federal Rule of Civil Procedure 12(b)(1) “presents a threshold challenge
to the court’s [subject-matter] jurisdiction” over the case before it. Thomas v. Wash. Metro. Area
Transit Auth., 305 F. Supp. 3d 77, 81 (D.D.C. 2018) (quoting Haase v. Sessions, 835 F.2d 902,
906 (D.C. Cir. 1987)); Fed. R. Civ. P. 12(b)(1). When deciding these motions, courts must accept
as true the factual allegations in the complaint and construe all reasonable inferences in the light
most favorable to the plaintiff. See Cause of Action Inst. v. IRS, 390 F. Supp. 3d 84, 91 (D.D.C.
2019). A court need not, however, “accept inferences unsupported by the facts alleged or legal
conclusions that are cast as factual allegations.” M.J. v. District of Columbia, 401 F. Supp. 3d 1,
7 (D.D.C. 2019) (quoting Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001)); see also Arpaio
v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (noting that, in assessing Rule 12(b)(1) motions, the
court does “not assume the truth of legal conclusions”). Where its power to hear a case is at issue,
a court will subject a plaintiff’s complaint to “closer scrutiny” than on a motion to dismiss for
failure to state a claim under Rule 12(b)(6). See, e.g., Walsh v. Comey, 118 F. Supp. 3d 22, 25
(D.D.C. 2015). Thus, unlike a Rule 12(b)(6) motion, a court ruling on a Rule 12(b)(1) motion may
consider evidence beyond the four corners of the complaint and material subject to judicial notice.
See Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 195 (D.D.C. 2002); see also Herbert v. Nat’l
Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). Indeed, where a party mounts a factual
challenge—that is, it attacks the “underlying facts contained in the complaint” rather than merely
the allegations included on the face of the complaint—the court “must weigh the allegations of the
8
complaint and evidence outside the pleadings in order to ‘satisfy itself as to the existence of its
power to hear the case.’” Flynn v. Ohio Bldg. Restoration, Inc., 260 F. Supp. 2d 156, 162 (D.D.C.
2003) (emphasis added) (quoting Loughlin v. United States, 230 F. Supp. 2d 26, 35 (D.D.C.
2002)). Ultimately, the plaintiff bears the burden of establishing that the court has subject matter
jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
B. Motions to Dismiss Under Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of a complaint on the
basis that it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
“[A] Rule 12(b)(6) motion does not test a plaintiff’s ultimate likelihood of success on the merits;
rather, it tests whether a plaintiff has properly stated a claim.” Coulibaly v. Kerry, 213 F. Supp.
3d 93, 123 (D.D.C. 2016). Although a court must assume the veracity of the complaint’s factual
allegations and construe them in the light most favorable to the plaintiff, a court need not accept
conclusory assertions or legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). And while detailed factual allegations are not
required at the pleading stage, a complaint must offer more than “unadorned, the-defendant-
unlawfully-harmed-me accusation[s].” Iqbal, 556 U.S. at 678 (citations omitted). Rather, the
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). To meet this standard, the
plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” 7 Id.Where, as here, a complaint is brought by a pro se party, the court should construe
the pro se plaintiff’s pleadings liberally in determining whether to dismiss a complaint for failure
7
Plaintiff is no doubt well aware of these pleading standards, having filed numerous pro se complaints in other federal
courts and seen them dismissed for pleading infirmities. See, e.g., Robinson v. Pardee UNC Healthcare, No. 1:20-
9
to state a claim upon which relief can be granted. Taylor v. District of Columbia, 606 F. Supp. 2d
93, 95 (D.D.C. 2009). Indeed, “where a pro se party has filed multiple submissions, the district
court must generally consider those filings together and as a whole.” Williams v. Shinseki, 161 F.
Supp. 3d 77, 84 (D.D.C. 2011); see also Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152
(D.C. Cir. 2015) (“[A] district court errs in failing to consider a pro se litigant’s complaint in light
of all filings, including filings responsive to a motion to dismiss.”). However, while complaints
filed by pro se parties “must be held to less stringent standards than formal pleadings drafted by
lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), they still “must present a claim on which
the [c]ourt can grant relief.” Belton v. Shinseki, 637 F. Supp. 2d 20, 23 (D.D.C. 2009)
(quoting Chandler v. Roche, 215 F. Supp. 2d 166, 168 (D.D.C. 2002)); see also Jarrell v. Tisch,
656 F. Supp. 237, 239 (D.D.C. 1987) (noting that the leeway afforded pro se parties is not “a
license . . . to ignore the Federal Rules of Civil Procedure or expect the Court to decide what claims
a plaintiff may or may not want to assert”). In addition, “courts are not responsible for hunting
through the record in search of material potentially helpful to a [pro se] party’s case,” because
“asking the Court to comb through attachments to discern the substance of the plaintiff’s claims
risks placing it more in the role of advocate than judge.” Nichols v. Vilsack, No. 13-1502, 2015
WL 9581799, at *1 (D.D.C. Dec. 30, 2015).
III. DISCUSSION
Given the most liberal reading possible, Plaintiff’s pleadings assert that, in arresting him
and confiscating the contraband and other items found on his person and in his vehicle, “the Secret
CV-372, 2021 WL 456633, at *2 (W.D.N.C. Jan. 11, 2021) (dismissing Plaintiff’s claims under the Americans with
Disabilities Act for failure to state a claim), appeal dismissed and remanded, 846 F. App’x 211 (4th Cir. 2021);
Robinson v. Brickton Vill. Ass’n, Inc., No. 1:20 CV 30, 2020 WL 7865723, at *4 (W.D.N.C. Sept. 25, 2020)
(recommending that Plaintiff’s claims under the Fair Housing Act be dismissed for failure to state a claim), report and
recommendation adopted, 2020 WL 7865279 (W.D.N.C. Dec. 30, 2020).
10
Service” violated his First, Second, Fourth, Fifth, Eighth, Ninth, Tenth, and Fourteenth
Amendment rights. 8 For these alleged deprivations, Plaintiff seeks tens of millions of dollars in
monetary damages.
Viewing his pleadings as a whole, Plaintiff’s claims against the two Secret Service agents
fairly appear to be made pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court recognized an implied right of
action for damages against federal officials for violations of an individual’s Fourth Amendment
rights. A Bivens cause of action has since been extended to gender discrimination claims made
under to the Fifth Amendment and cruel and unusual punishment claims made under the Eighth
Amendment. See Davis v. Passman, 442 U.S. 228 (1979) (expanding Bivens to Fifth Amendment
gender discrimination claims); Carlson v. Green, 446 U.S. 14 (1980) expanding Bivens to Eighth
Amendment cruel and unusual punishment claims). However, Bivens has been extended no
further, and the “expansion of Bivens is ‘a “disfavored” judicial activity.’” 9 Hernandez v. Mesa,
__ U.S. __, __, 140 S. Ct. 735, 742 (2020) (quoting Ziglar v. Abbasi, 582 U.S. __, __, 137 S. Ct.
1843, 1857 (2017)).
Defendants’ threshold argument for dismissal of the Bivens claims is that Plaintiff has not
pleaded sufficient factual material to support them. See ECF No. 21 at 11–12. They are correct.
8
Plaintiff’s Eighth and Ninth Amendment claims appear for the first time in his response to Defendants’ motion to
dismiss. See ECF No. 23 at 1–2, 4. In other scenarios, these claims would not be considered. See Doe v. Lee, No.
19-CV-0085, 2020 WL 759177, at *8 n.4 (D.D.C. Feb. 14, 2020) (“[A] court cannot consider claims first raised in
an opposition brief when deciding a motion to dismiss.”). However, given Plaintiff’s pro se status, the Court will
assess the Eighth and Ninth Amendment claims as if properly raised.
9
Indeed, the Bivens doctrine rests on what appears to be increasingly shaky ground. At least two current Supreme
Court Justices favor doing away with it altogether, while a total of five “have gone so far as to observe that if ‘the
Court’s three Bivens cases [had] been . . . decided today,’ it is doubtful that we would have reached the same result.”
Hernandez, __ U.S. at __, 140 S. Ct. at 742–43 (quoting Abbasi, 582 U.S. at __, 137 S. Ct. at 1856); see also id. at
752 (Thomas, J., concurring, joined by Gorsuch, J.) (“[I]t appears that we have already repudiated the foundation of
the Bivens doctrine; nothing is left to do but overrule it.”).
11
In particular, Plaintiff utterly fails to allege that agents Pilgrim and Naples themselves took any
action that violated his constitutional rights. See generally ECF Nos. 4 and 23. Plaintiff repeatedly
points to the “officers,” “agents,” and “Secret Service” as the culprits, but he never—not once—
explains the roles of these Defendants. Id. “Even though a court must construe the pleadings of a
pro se plaintiff liberally in a civil rights case, a plaintiff must still allege facts with some specificity
as to the actions taken by each defendant to violate his rights.” Jones v. United States, No. CV 11-
2242, 2019 WL 1301788, at *11 (C.D. Cal. Feb. 25, 2019), report and recommendation
adopted, No. CV 11-2242, 2019 WL 1298971 (C.D. Cal. Mar. 21, 2019), appeal dismissed sub
nom. Jones v. Woodring, No. 19-55623, 2019 WL 6337446 (9th Cir. Sept. 13, 2019). Thus, the
court in Jones dismissed the plaintiff’s Bivens claim for “fail[ing] to allege any act by any
particular defendant.” Id. The same result obtains here, where Plaintiff did not attribute any
conduct to officers Naples or Pilgrim with any “specificity.” Indeed, it is difficult to see Plaintiff’s
claims as anything more than “unadorned, the-defendant-unlawfully-harmed-me accusation[s]”
proscribed by Iqbal, 556 U.S. at 678, when the sum total of the facts alleged are that Plaintiff was
in Washington as a “freelance photo journalist” when he was arrested (his electronics and
marijuana products confiscated in the process) and handcuffed behind his back—exacerbating a
preexisting injury—and was discovered to have a high capacity magazine, a 10mm bullet, and
brass knuckles in his possession. See generally ECF Nos. 4 and 23. However, even taking the
facts that are pleaded as sufficient, they do not entitle Plaintiff to relief for the other reasons set
forth by Defendants.
As noted above, despite the Court’s instructions, the Amended Complaint does not specify
whether Plaintiff is suing Defendants in their official and/or individual (personal) capacities. See
generally ECF No. 4. “Personal-capacity suits seek to impose personal liability upon a
12
government official for actions he takes under color of state law.” Kentucky v. Graham, 473 U.S.
159, 165 (1985). Suits against an officer in their official capacity, on the other hand, “generally
represent only another way of pleading an action against an entity of which an officer is an agent.”
Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n.55 (1978). “[A]n official-
capacity suit is, in all respects other than name, to be treated as a suit against the [government]
entity.” Graham, 473 U.S. at 166. Consistent with the leeway pro se parties must be afforded, the
Court will construe the Amended Complaint as bringing both official and individual capacity
claims. The Court addresses these claims in turn. 10
Before doing so, however, the Court can quickly dispose of Plaintiff’s claims under the
Eighth, Ninth, Tenth, and Fourteenth Amendments, all of which are facially invalid.
10
The Court notes briefly that Plaintiff’s claims, despite proceeding alongside parallel criminal proceedings in the
District of Columbia, see U.S. v. Robinson, Case No. 2020 CF2 005181 (D.C. Sup. Ct. 2020), are not barred by Heck
v. Humphrey, 512 U.S. 477 (1994). Heck held that “a criminal defendant may not recover damages under 42 U.S.C.
§ 1983 for ‘harm caused by actions whose unlawfulness would render [his] conviction or sentence invalid’ unless ‘the
conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas
corpus.’” Williams v. Hill, 74 F.3d 1339, 1339 (D.C. Cir. 1996) (per curiam) (alteration in original) (quoting Heck,
512 U.S. at 486–87). The D.C. Circuit has held that the rationale of Heck extends to Bivens claims. See id. at 1339–
41 (“The rationale of Heck applies equally to claims against federal officials in Bivens actions.”). However, because
Heck “has no application to an anticipated future conviction,” it does not operate to bar Plaintiff’s Bivens claims given
that his criminal prosecution remains ongoing. Stegemann v. Rensselaer Cty. Sheriff’s Off., 648 F. App’x 73, 76 (2d
Cir. 2016) (holding that a plaintiff’s Bivens claims could not be dismissed under Heck because the plaintiff’s “criminal
trial is still ongoing”); see also, e.g., Cohen v. Rosenstein, 610 F. App’x 240, 241 (4th Cir. 2015) (per curiam)
(reversing the district court’s dismissal of the plaintiff’s Bivens claims against federal prosecutors “[b]ecause no
conviction has yet occurred,” and therefore “the district court’s dismissal under Heck is premature”).
Likewise, and although neither party addressed the issue, the Court does not believe a stay of these
proceedings is necessary to maintain the integrity of Plaintiff’s criminal case, as the Supreme Court in Wallace v. Kato
suggested might be appropriate. 549 U.S. 384, 393–94 (explaining that “[i]f a plaintiff files . . . [a] claim related to
rulings that will likely be made in a pending or anticipated criminal trial[ ], it is within the power of the district court,
and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case
is ended”). The criminal charges brought against Plaintiff in the District of Columbia revolve around his alleged
possession of a high-capacity firearm magazine. See Complaint, U.S. v. Robinson, Case No. 2020 CF2 005181 (D.C.
Sup. Ct. June 4, 2020). It is difficult to envision how the resolution here of Plaintiff’s Eighth, Ninth, Tenth, and
Fourteenth Amendment claims would “relate[ ] to rulings that will likely be made in” a criminal case concerning the
possession of a firearm magazine. Plaintiff’s First, Second, Fourth, and Fifth Amendment claims are a bit different,
as they implicate issues that may very well be litigated in the criminal matter. However, in resolving Plaintiff’s Bivens
claims, the Court merely finds that Plaintiff is not entitled to civil relief under Bivens for those alleged constitutional
violations and does not take a position on whether the search of Plaintiff’s vehicle and the seizure of certain items
therein violated the Fourth or the Fifth Amendments or whether the prosecution itself violates the First or Second
Amendments.
13
A. The Facially Invalid Constitutional Claims
Plaintiff’s Eighth, Ninth, Tenth, and Fourteenth Amendment claims all fail.
At this juncture, Plaintiff cannot assert a claim under the Eighth Amendment, which
“applies only to individuals who are being punished, and thus does not protect those against whom
the government has not ‘secured a formal adjudication of guilt in accordance with due process of
law.’” Robertson v. District of Columbia, No. 09–cv–1188, 2010 WL 3238996, at *3 (D.D.C.
Aug. 16, 2010) (quoting Bell v. Wolfish, 441 U.S. 520, 536 (1979)). Plaintiff’s Eighth Amendment
claim appears to arise from conduct that occurred during his arrest—not after “a formal
adjudication of guilt.” See ECF No. 23 at 4 (alleging that Plaintiff’s Eighth Amendment claim
arises from his handcuffing during arrest). So, no Eighth Amendment claim is cognizable on these
facts.
Further, any Ninth Amendment claim Plaintiff asserts fails because that amendment “is a
rule of construction, not a substantive basis for a civil rights claim.” Rynn v. Jaffe, 457 F. Supp.
2d 22, 26 (D.D.C. 2006); see also McDonald v. City of Chicago, 561 U.S. 742, 851 n.20 (2010)
(Thomas, J., concurring in the judgment) (noting that the Ninth and Tenth Amendments are
“obvious examples” of constitutional provisions that “are not readily construed as protecting rights
that belong to individuals”); Marshall v. Reno, 915 F. Supp. 426, 428 (D.D.C. 1996) (rejecting the
plaintiff’s Ninth Amendment Bivens claim because “the Ninth Amendment does not set forth any
particular guarantees, but is merely a rule of construction”). Plaintiff simply cannot
“independently assert a cause of action under the Ninth Amendment.” Slaby v. Fairbridge, 3 F.
Supp. 2d 22, 30 (D.D.C. 1998).
Likewise, Plaintiff fails to state a Tenth Amendment claim. Numerous courts have
maintained that individuals have no right of action under the Tenth Amendment, which provides
14
that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.” U.S. CONST. amend. X; Rivera
v. Fed. Bureau of Investigation, No. 5:16-CV-00997, 2016 WL 6081435, at *3 n.4 (N.D.N.Y. Sept.
13, 2016) (“There is no private right of action under the Tenth Amendment.”), report and
recommendation adopted, 2016 WL 6072392 (N.D.N.Y. Oct. 17, 2016); Holland v. Azevedo, No.
14-CV-01349, 2016 WL 1754446, at *6 (N.D. Cal. May 3, 2016)
(“The Tenth Amendment ‘creates no constitutional rights cognizable in civil
rights cause of action.’” (quoting Strandberg v. City of Helena, 791 F.2d 744, 749 (9th Cir. 1986));
see also McDonald, 561 U.S. at 851 n.20 (Thomas, J., concurring in the judgment). However, the
Supreme Court held in Bond v. United States that individuals, “in a proper case,” can “challenge a
law as enacted in contravention of constitutional principles of federalism” reflected in the Tenth
Amendment. 564 U.S. 211, 223–24 (2011). Thus, any claim under the Tenth Amendment must
flow from an “injury [that] results from disregard of the federal structure of our Government.” Id.at 225–26; see also United States v. Johnson, 114 F.3d 476, 480 (4th Cir. 1997) (noting that the
Tenth Amendment requires a showing that a federal statute or regulation is beyond Congress’
power or that the “means of regulation employed . . . impermissibly infringes upon state
sovereignty”). Here, however, Plaintiff’s Tenth Amendment claim is based solely on his assertions
that, when he was arrested, “[m]any of the officers did not have proper face coverings” and “didn’t
Follow The Mask mandates.” ECF No. 4 at 1; ECF No. 23 at 5. Nowhere has Plaintiff “contended
that any governmental action taken exceeds the limits of federalism,” at least with respect to his
Tenth Amendment claim. Louis v. Seaboard Marine Ltd., Inc., No. 10-22719-CIV, 2012 WL
13071837, at *3 (S.D. Fla. Jan. 27, 2012) (dismissing plaintiff’s Tenth Amendment claim for
failure to allege conduct in contravention of federalism), report and recommendation adopted,
15
2012 WL 13071863 (S.D. Fla. Feb. 27, 2012). Absent such allegations, Plaintiff’s Tenth
Amendment claim cannot stand.
With reference to the Fourteenth Amendment, Plaintiff baldly alleges that his arrest for
possession of a “high-capacity magazine, 10mm bullet and a pair of brass knuckles . . . violated
the . . . 14th Amendment.” ECF No. 4 at 3. Whatever its merits, no Fourteenth Amendment claim
can be brought here. The Defendants are federal officers and, as they note, the Fourteenth
Amendment applies to action by the states, not the federal government or its agents. See Bolling
v. Sharpe, 347 U.S. 497, 499 (1954) ([T]he Fourteenth Amendment applies only to the states.”);
see also ECF No. 4 at 3 (referring to the officers who arrested Plaintiff as “federal agents”); ECF
No. 23 at 4 (same). Accordingly, Defendant has failed to state a plausible Fourteenth Amendment
claim, and that claim is dismissed. See, e.g., Webb v. Smith, No. CIV-15-213, 2016 WL 7666119,
at *1 (D. Utah Jan. 22, 2016) (dismissing plaintiff’s Fourteenth Amendment claim against federal
agents because “the Fourteenth Amendment of the United States Constitution does
not apply to federal officers”), aff’d, 656 F. App’x 414 (10th Cir. 2016); Russo v. Glasser, 279 F.
Supp. 2d 136, 142 (D. Conn. 2003) (similar); Jones v. Dist. of Columbia, 424 F. Supp. 110, 111
(D.D.C. 1977) (“[S]ince the fourteenth amendment was designed to apply only to states and not to
territories such as the District of Columbia, Congress lacked the power under
the fourteenth amendment to create a cause of action against federal officers.”).
With Plaintiff’s Eight, Ninth, Tenth, and Fourteenth Amendment claims off the table, all
that is left to address are his official and individual capacity claims under the First, Second, Fourth,
and Fifth Amendments. The Court will assess the official capacity claims first, and then move to
the individual capacity (or Bivens) claims.
16
B. Official Capacity Claims
As explained, the Court construes the Amended Complaint as bringing Bivens claims
against the Defendants in their official capacities. However, “Bivens claims
against federal officers in their official capacities are barred by sovereign immunity.” Powers-
Bunce v. District of Columbia, 479 F. Supp. 2d 146, 157 (D.D.C. 2007). Thus, the Court lacks
subject matter jurisdiction over Plaintiff’s claims against the Defendants in their official capacities.
A suit against federal agents in their official capacity is, in sum and substance, a claim
against the federal government. See Graham, 473 U.S. at 166. But the United States “may not be
sued except to the extent it consents to be sued.” Rudder v. United States, No. CIV.A. 85-1969,
1987 WL 19232, at *2 (D.D.C. Oct. 20, 1987). And the federal government “has
not consented to suit for alleged constitutional violations by its officials.” Applewhite v. D.C.
Dist. Att’ys Off., No. CIV.A. 09-2439, 2009 WL 5173514, at *1 (D.D.C. Dec. 30, 2009). Plaintiff
makes no argument to the contrary, even though it was his “burden of demonstrating waiver [of
sovereign immunity] for each claim that” he brought. Griffin v. United States, No. 19-CV-762,
2019 WL 4644022, at *2 (D.D.C. Sept. 24, 2019), appeal dismissed, No. 19-5323, 2020 WL
2565349 (D.C. Cir. Mar. 4, 2020). The Court accordingly lacks subject matter jurisdiction over
Plaintiff’s official capacity claims, and dismisses those claims. See id. (“If plaintiffs fail to identify
a statute expressly waiving immunity, the Court lacks subject matter jurisdiction to adjudicate a
claim against the United States.”); Driever v. United States, No. CV 19-1807, 2020 WL 6135036,
at *6 (D.D.C. Oct. 19, 2020) (dismissing claims against federal officials because plaintiff “has not
identified any consent to suit for monetary damages for the constitutional violations alleged
here”); Sutz v. Powers, No. 1:20-CV-01096, 2020 WL 2112057, at *1 (D.D.C. Apr. 30, 2020)
(dismissing claims against federal officials because “plaintiff has neither pled nor established that
17
the government has expressly consented to damages suits against its officials
for constitutional violations thereby waiving sovereign immunity”).
C. Individual Capacity Claims
Plaintiff’s claims against Defendants in their individual capacities fare no better, as they
seek to expand Bivens remedies far beyond the narrow limits the Supreme Court has established.
Yet even if Bivens should be extended to include the claims Plaintiff asserts, the Defendants are
nevertheless entitled to qualified immunity. Accordingly, the individual capacity claims must be
dismissed, too.
1. A Bivens Remedy Should Not be Extended to Plaintiff’s Claims
Bivens claims are highly circumscribed and, currently, are cognizable only in three, narrow
factual contexts. The context of Bivens itself was a “claim against FBI agents for handcuffing a
man in his own home without a warrant.” Abbasi, 582 U.S. at __, 137 S. Ct. at 1860. In Davis,
the context was a “a claim against a Congressman for firing his female secretary.” Id. And Carlson
presented a “claim against prison officials for failure to treat an inmate’s asthma.” Id.
“Significantly, the Supreme Court has never extended its holdings in [Bivens, Davis and Carlson]
beyond their context.” Mejia-Mejia v. U.S. Immigration and Customs Enforcement, No. 18-1445,
2019 WL 4707150 at *4 (D.D.C. Sept. 26, 2019).
A two-part inquiry governs any entreaty to extend Bivens, which Plaintiff seeks here.
Courts first must determine “whether the request involves a claim that arises in a ‘new context’ or
involves a ‘new category of defendants.’” Hernandez, __ U.S. at __, 140 S. Ct. at 743 (quoting
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). The Supreme Court’s conception of a
“new context” is “broad,” encompassing any context “different in a meaningful way from
previous Bivens cases decided by this Court.” Id. (quoting Abbasi, 582 U.S. at __, 137 S. Ct. at
18
1859). In assessing whether a “new context” is presented, courts should consider, among other
things, “the rank of the officers involved; the constitutional right at issue; the generality or
specificity of the official action; the extent of judicial guidance as to how an officer should respond
to the problem or emergency to be confronted; the statutory or other legal mandate under which
the officer was operating; [and] the risk of disruptive intrusion by the Judiciary into the functioning
of other branches.” Abbasi, 582 U.S. at __, 137 S. Ct. at 1860. A “modest extension” of Bivens is
an extension nonetheless. Id. at __, 137 S. Ct. at 1864.
If a “new context” is presented, courts must then “ask whether there are any ‘special factors
[that] counse[l] hesitation’ about granting the extension.” Hernandez, __ U.S. at __, 140 S. Ct. at
743 (alterations in original) (some internal quotation marks omitted) (quoting Abbasi, 582 U.S. at
__, 137 S. Ct. at 1857). The Supreme Court’s guidance on the “special factors” to consider has
oftentimes been less than helpful, even tautological. See, e.g., Abbasi, 582 U.S. at __, 137 S. Ct.
at 1858 (“Thus, to be a ‘special factor counselling hesitation,’ a factor must cause a court to hesitate
before answering [whether Bivens should be expanded] in the affirmative.”). However, this much
is clear: at the core of the “special factors” inquiry are “separation-of-powers principles.” Id. at
1857. So, courts should query whether “there are sound reasons to think Congress might doubt
the efficacy or necessity of a damages remedy” and “whether the Judiciary is well suited, absent
congressional action or instruction, to consider and weigh the costs and benefits of allowing a
damages action to proceed.” Id. at 1857–58.
One such “special factor” that cuts against the recognition of a Bivens remedy is the
existence of “an alternate remedial scheme.” Pinson v. U.S. Dep’t of Just., 514 F. Supp. 3d 232,
243 (D.D.C. 2021); see also Abbasi, 582 U.S. at __, 137 S. Ct. at 1858 ([I]f there is an alternative
remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer
19
a new Bivens cause of action.”); Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (explaining that a
“factor counseling hesitation” is the existence of an “alternative, existing process for protecting
the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new
and freestanding remedy in damages”). A related “special factor” is Congressional “activity in the
field” in which the plaintiff’s claim arises. Chappell v. Wallace, 462 U.S. 296, 304 (1983) (finding
that “Congress’ activity in the field” is a special factor making it inappropriate to extend Bivens).
Another is national security concerns. See Black Lives Matter D.C. v. Trump, __ F. Supp. 3d at
__, __, 2021 WL 2530722, at *6 (D.D.C. 2021) (noting that “the Supreme Court has repeatedly
recognized that national security concerns are a weighty special factor in the Bivens analysis”); see
also Doe v. Rumsfeld, 683 F.3d 390, 394 (D.C. Cir. 2012) (“The Supreme Court has never implied
a Bivens remedy in a case involving the military, national security, or intelligence.”). Finally, as
the ultimate aim of Bivens is to “deter[ ] individual officers from engaging in unconstitutional
wrongdoing,” any extension of Bivens that does not comport with that goal should be rejected.
Malesko, 534 U.S. at 74.
Notably, simply because a litigant claims a violation of the same constitutional right for
which a Bivens remedy is recognized does not necessarily mean the claim arises in the same
“context.” See Hernandez, __ U.S. at __, 140 S. Ct. at 743 (“A claim may arise in a new context
even if it is based on the same constitutional provision as a claim in a case in which a damages
remedy was previously recognized.”); see also Cantú v. Moody, 933 F.3d 414, 422 (5th Cir. 2019)
(“Courts do not define a Bivens cause of action at the level of ‘the Fourth Amendment’ or even at
the level of ‘the unreasonable-searches-and-seizures clause.’” (quoting FDIC v. Meyer, 510 U.S.
471, 484 n.9 (1994))). In Malesko, for example, plaintiff asserted an Eighth Amendment cruel and
unusual punishment Bivens claim against the corporate owner of a private halfway house that was
20
contracted by the federal Bureau of Prisons. See 534 U.S. at 64. In that case, halfway house
employees allegedly denied plaintiff’s request to use an elevator to reach his room, despite
plaintiff’s cardiac ailments. See id. Plaintiff later suffered a heart attack climbing the facility’s
stairs and was injured. See id. Twenty years earlier, in Carlson, the Court had recognized a Bivens
remedy for Eighth Amendment cruel and unusual punishment claims in what appeared to be a
similar “context.” In Carlson, as in Malesko, the plaintiff was harmed when prison officials failed
to provide him with adequate medical care. See 446 U.S. at 16 & n.1. Yet the Malesko Court
found that recognizing a Bivens remedy against a private entity “would not advance Bivens’ core
purpose of deterring individual officers from engaging in unconstitutional wrongdoing.” 534 U.S.
at 74. Thus, “[e]ven though the right and the mechanism of injury were the same [in Malesko] as
they were in Carlson,” consideration of “special factors” made an extension of Bivens
inappropriate. Abbasi, 582 U.S. at __, 137 S. Ct. at 1859; see also Cantú, 933 F.3d at 422 (“What
if a plaintiff asserts a violation of the same clause of the same amendment in the same way? That
still doesn’t cut it.”).
Applying these principles to Plaintiff’s claims makes clear that no Bivens remedy should
be recognized on these facts.
a. Plaintiff’s Bivens Claims Arise in New Contexts
i. First Amendment
Plaintiff’s First Amendment claims are twofold. He asserts that, in arresting him as he was
“protesting the riots in support of local law enforcement,” the Defendants infringed his right to
assemble peaceably. ECF No. 4 at 3. Plaintiff also says that the arrest violated the First
Amendment’s guarantee of a free press because he was “working as a freelance photo journalist”
when he was detained. Id. at 2–3. “[T]he constitutional right at issue” is a factor in determining
21
whether a Bivens claim arises in a new context. Abbasi, 582 U.S. at __, 137 S. Ct. at 1860. Thus,
these claims assuredly place Bivens in a “new context” because the Supreme Court has “never held
that Bivens extends to First Amendment claims.” Reichle v. Howards, 566 U.S. 658, 663 n.4
(2012); see also Black Lives Matter D.C., __ F. Supp. 3d at __, 2021 WL 2530722, at *5 (“The
plaintiffs’ First Amendment claim arises in a new context because the Supreme Court has never
extended Bivens to a claim brought under the First Amendment.”).
ii. Second Amendment
Plaintiff alleges that Defendants also violated his Second Amendment right to bear arms
when they arrested him for possession of the high-capacity magazine, 10mm bullet, and brass
knuckles. 11 See ECF No. 4 at 2. This claim, too, arises in a new context, as the Supreme Court
has never sanctioned a Bivens remedy for Second Amendment violations. See Yorzinski v.
Imbert, 39 F. Supp. 3d 218, 223 (D. Conn. 2014) (“Bivens liability has not been extended to
violations of the Second Amendment.”); see also Meeks v. Larsen, 611 F. App’x 277, 286 (6th
Cir. 2015) (affirming the district court’s refusal to extend Bivens to the plaintiffs’ claims under the
Second Amendment).
iii. Fourth Amendment
Despite being of the same general nature as the claims at issue in Bivens, Plaintiff’s Fourth
Amendment claims also arise in a new context. Plaintiff says Defendants violated his Fourth
Amendment rights in two distinct ways. First, Plaintiff avers that Defendants unlawfully searched
his vehicle and seized his personal electronics, including his phones, tablet, and camera. See ECF
11
Plaintiff also asserts a Fifth Amendment right to “travel with a self-defense tool” that he says was infringed when
he was arrested for possession of the high capacity magazine, the 10mm bullet, and brass knuckles. See ECF No. 4 at
2 (asserting that “every American has the right to travel with the protection of a tool or device made for defense if
bought legally”). The Constitution does not expressly enumerate such a right. Liberally read, however, Plaintiff’s
claim sounds in the Second Amendment’s right to bear arms, and so the Court will construe Plaintiff’s Fifth
Amendment claim as an allegation that his Second Amendment rights were violated.
22
No. 4 at 2. Second, Plaintiff argues the officers used excessive force when they handcuffed him
behind his body, allegedly exacerbating a preexisting injury. See id. at 3.
Again, the inquiry here is not simply whether “the right and the mechanism of injury [are]
the same” as in Bivens—that is, a Fourth Amendment claim arising from an allegedly unlawful
search and seizure—but whether the facts plead by Plaintiff place his claim in a “meaningful[ly]”
different context than was present in Bivens. Abbasi, 582 U.S. at __, 137 S. Ct. at 1859. They do.
Bivens featured federal narcotics officers entering and searching a private residence, which is
“markedly different” from searching a private vehicle on a public street in the vicinity of the White
House. Cf. Black Lives Matter D.C., __ F. Supp. 3d at __, 2021 WL 2530722, at *5 (concluding
that the context of Bivens was “markedly different” from “government officers’ response to a large
protest in Lafayette Square outside the White House”). Thus, courts have found that Fourth
Amendment claims involving vehicle searches bring Bivens into a new context. See, e.g., Smith
v. Clark, No. 5:19-CV-00675, 2020 WL 5820534, at *3–*4 (W.D. Tex. Sept. 29, 2020)
(concluding that Bivens claims arose in a new context where the plaintiffs’ allegedly “consented
to a search of their car for weapons and [the defendant] exceeded the scope of that consent when
she searched the [plaintiffs’] cell phones without a warrant”); Evans v. U.S. Border Patrol Agents,
No. 7:19-CV-00358, 2020 WL 9066054, at *8 (S.D. Tex. July 20, 2020) (finding that the plaintiff’s
excessive force Bivens claim arose in a new context because “the actions at issue in Bivens were
predicated on allegations of a warrantless search and seizure occurring at a residence, unlike
the vehicle stop initiated” in the present case), report and recommendation adopted sub
nom. Evans v. Castillo, No. CV M-19-358, 2021 WL 1215843 (S.D. Tex. Mar. 31, 2021); Rivera
v. Samilo, 370 F. Supp. 3d 362, 368–69 (E.D.N.Y. 2019) (finding that the plaintiff’s excessive
force claim that “arose from a lawful vehicle search” placed Bivens in new context).
23
As to Plaintiff’s claim of excessive force, they appear similar to the circumstances in
Bivens, where the plaintiff also alleged “that unreasonable force was employed in making the
arrest.” Bivens, 403 U.S. at 389. Yet “this similarity is not enough.” Evans, 2020 WL 9066054,
at *7. The Supreme Court has a broad conception of “new context,” and courts have distinguished
excessive force claims arising from facts quite similar to those in Bivens. Take Rivera, for
example. In that case, similar to here, federal law enforcement officers took the plaintiff into
custody after stopping his vehicle, a search of which revealed contraband. 370 F. Supp. 3d at 365.
Just as in this case, the officers restrained the plaintiff with handcuffs, which plaintiff complained
“were too tight and aggravating” a preexisting injury. Id. The plaintiff in Rivera asserted, just as
the Bivens plaintiff did, that the officers’ excessive use of force violated his Fourth Amendment
rights. Id. at 365–66. The court nonetheless ruled that the Bivens claim arose in a new context,
because whereas the claim in Bivens centered around an alleged violation of privacy rights through
a warrantless home invasion and the unreasonable search and seizure of property, Rivera’s “claim
arises from the force allegedly applied in making a lawful street arrest.” Id. at 369. So, too, here:
unlike Bivens, Plaintiff’s harm stems from an arrest outside the home based on Plaintiff’s
possession of illegal weapons. This is sufficient to distinguish this case from Bivens. Accordingly,
both Plaintiff’s Fourth Amendment claims bring Bivens into a new context.
iv. Fifth Amendment
Plaintiff’s remaining Fifth Amendment claim 12—that Defendants’ seizure of his
electronics (phones, tablet, and camera) violated his Fifth Amendment due process rights—is
meaningfully different from the due process claims at issue in Davis and therefore constitutes a
new context. See ECF No. 4 at 2 (alleging that the agents “took my cell phones, I-pad, and camera
12
As explained in note 11 supra, Plaintiff’s other Fifth Amendment claim was based on an alleged violation of the
right “to travel with a self-defense tool.” The Court construed that claim to allege a Second Amendment violation.
24
(4th and 5th Amendment violation – illegal seizure)”). Although Plaintiff does not specify whether
this Fifth Amendment claim is procedural or substantive in nature, the distinction is ultimately of
no moment because it is in all respects meaningfully different from Davis. That case featured
gender discrimination claims against a Congressman; specifically, that he fired his secretary on
account of her gender in violation of the “equal protection component of the Due Process Clause.”
See 442 U.S. at 230–31, 235. That context is a world away from the Plaintiff’s allegations, which
assert a taking of his electronic devices. Further, the Supreme Court has never extended Bivens to
invasions of property rights under the Fifth Amendment. See, e.g., Wilkie, 551 U.S. at 541; Cantú,
933 F.3d at 422 (“No one thinks Davis—which permitted a congressional employee to sue for
unlawful termination in violation of the Due Process Clause—means the entirety of the Fifth
Amendment’s Due Process Clause is fair game in a Bivens action.”). The Court therefore finds
that Plaintiff’s Fifth Amendment claim arises in a new context. Cf. Black Lives Matter D.C., __
F. Supp. 3d at __, 2021 WL 2530722, at *5 (finding that “government officers’ response to a large
protest in Lafayette Square outside the White House” was “‘meaningfully different’ from the
context of sex-based employment discrimination at issue in Davis”).
* * * * *
Thus, each of Plaintiff’s Bivens claims arise in new contexts. For the First and Second
Amendment claims, this is primarily because no Bivens cause of action has ever been recognized
for alleged violations of the rights guaranteed by those amendments. On the other hand, while the
Supreme Court has recognized Bivens claims for Fourth and Fifth Amendment violations, the
violations of those amendments alleged here are meaningfully different from the contexts of Bivens
and Davis, respectively. Further, all these claims arise in a “new context” for another reason: all
seek to extend Bivens to a novel class of defendants—Secret Service agents. Courts have
25
consistently refused to extend Bivens to new contexts where the claim “involve[s] different
conduct by different officers from a different agency.” Cantú, 933 F.3d at 423; see also Malesko,
534 U.S. at 68 (“Since Carlson we have consistently refused to extend Bivens liability to any new
context or new category of defendants.”); Drewniak v. U.S. Customs & Border Protection, et al.,
No. CV 20-CV-852, 2021 WL 1318028, at *7 (D.N.H. Apr. 8, 2021) (finding that plaintiff’s Bivens
claims arose in new context because he sought damages from Border Patrol agents, whereas
Bivens, Davis, and Carlson sought remedies from FBI agents, a Congressman, and Bureau of
Prisons officials, respectively). The analysis now turns to whether “special factors” cut against
the creation of Bivens remedies in these new contexts.
b. Special Factors Weigh Against Extending Bivens To Plaintiff’s
Claims
The Supreme Court has explained that separation-of-powers concerns lie at the heart of the
“special factors” inquiry. See Hernandez, __ U.S. at __, 140 S. Ct. at 743. Extending a Bivens
remedy to Plaintiff in this case would not only encroach upon Congress’ legislative authority and
its regulation of the Secret Service, but also has the potential to impede the Executive Branch’s
protection of the President and compromise the security of the area surrounding the White House.
“[T]he costs and benefits of allowing a damages action to proceed” in cases like the one here are
for the other branches—not this Court—to “consider and weigh.” Abbasi, 582 U.S. at __, 137 S.
Ct. 1858. For these reasons—and as further explained below—the Court declines to expand Bivens
to encompass Plaintiff’s claims.
First, extending Bivens to each of Plaintiff’s constitutional claims would implicate serious
national security concerns and impair the Executive Branch’s ability to properly respond to
security risks around its nerve center, the White House. As the D.C. Circuit has recognized, “the
White House area is . . . a unique situs for considerations of presidential and national security,”
26
and “the need for effective security in the vicinity of the White House is great.” White House Vigil
for ERA Comm. v. Clark, 746 F.2d 1518, 1533 (D.C. Cir. 1984). The Secret Service has, along
with other law enforcement agencies, provided that security for over 125 years. See Judicial
Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 211 n.1 (D.C. Cir. 2013) (noting that
“[t]he Secret Service began protecting presidents part-time in 1894”); Friedman v. U.S. Secret
Serv., 923 F. Supp. 2d 262, 282 (D.D.C. 2013) (“[The Secret Service] is responsible for
the protection of various individuals, including the President and Vice President of the United
States.” (internal quotation marks omitted)). Our collective national interest in the work that the
Secret Service does in maintaining the security of the President and the White House campus
simply cannot be gainsaid. See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam)
(noting the nation’s “overwhelming[ ] interest in protecting the safety of its Chief Executive”); see
also Rubin v. United States, 525 U.S. 990, 990–91 (1998) (Breyer, J., dissenting from denial of
certiorari) (“The physical security of the President of the United States has a special legal role to
play in our constitutional system.”).
Here, Plaintiff was arrested for possession of illegal weapons at his vehicle that was parked
“behind the White House” on Constitution Avenue, NW. ECF No. 4 at 1; see also ECF No. 1 at
4. While that location is perhaps not as close as the protestors in Black Lives Matter D.C. were to
the President and the residence—they were directly across Pennsylvania Avenue in Lafayette
Park—it is nevertheless within “the vicinity of the White House,” where “the need for effective
security . . . is great.” 13 White House Vigil for the ERA Comm., 746 F.2d at 1533; see also A
13
Of course, this is not to say that checks on the conduct of law enforcement, particularly in public forums, are
unnecessary. They absolutely are. There is no better example of such a public forum than the areas around the White
House, which have historically been open for First Amendment activity. However, the road to a Bivens remedy is a
rocky one, and one which recognizes the Executive Branch’s legitimate national security interests in safeguarding the
White House. Further, as will be explained, individuals in Plaintiff’s position are not wholly without a remedy for the
conduct of law enforcement officers occurring in the vicinity of the White House. See infra n.18.
27
Quaker Action Grp. v. Morton, 516 F.2d 717, 729 (D.C. Cir. 1975) (noting “the uniqueness and
importance of the security interest of protection of the White House”); Quaker Action Grp. v.
Hickel, 429 F.2d 185, 187 (D.C. Cir. 1970) (noting “the critical area of providing security in the
vicinity of the White House”). Indeed, courts in this Circuit have recognized that security concerns
can be implicated by persons in the precise area where Plaintiff was arrested. In Washington
Mobilization Committee v. Cullinane, the D.C. Circuit noted that police were “fearful that
[demonstrators] intended mischief at the White House,” and so they “established a line on the
north side of Constitution Avenue” to prevent the demonstrators, who had congregated at the
corner of 15th Street, NW and Constitution Avenue, NW, from “crossing onto the Ellipse, adjacent
to the grounds of the White House.” 566 F.2d 107, 113 (D.C. Cir. 1977). This is precisely the
area in which Plaintiff was detained.
As Judge Friedrich explained in Black Lives Matter D.C., the question here is “not whether
the national security risk actually justified the particular action taken” against the plaintiff. __ F.
Supp. 3d at __, 2021 WL 2530722, at *6 (citing Hernandez, __ U.S. at __; 140 S. Ct. at 746).
Instead, the inquiry focuses on “whether ‘national-security concerns’ were present in the decision-
making process the federal officials faced.” Id. (citing Hernandez, __ U.S. at __; 140 S. Ct. at
746). Given the proximity of Plaintiff and his vehicle to the White House and the intensity of the
demonstrations that had occurred in Washington in early July 2020, it seems highly likely that
security of the White House complex—and by implication national security concerns—was a
factor in the Secret Service’s decision to investigate Plaintiff’s vehicle and later arrest him. 14
14
Though not a factor in the Court’s analysis, it is also worth remembering that, on June 4, 2020—the day before
Plaintiff was arrested—a series of metal barriers were erected along Constitution Avenue N.W. in response to the civil
unrest occurring in the District of Columbia. See Betsy Klein, “White House fortifies security perimeter ahead of
continued protests”, CNN (June 4, 2020) (noting that “the fencing extended down 17th Street from Pennsylvania
Avenue to Constitution Avenue”), available at https://www.cnn.com/2020/06/04/politics/white-house-fence-
barricade/index.html. The area in which Plaintiff was arrested is directly outside those barriers.
28
Nor does the fact that Plaintiff challenges the conduct of individual officers—rather than a
Secret Service or broader government policy—weigh in favor of extending Bivens here. To be
sure, Abbasi characterized the “national security” special factor as one focusing on national
security “policy,” not the “standard law enforcement operations” at issue in this case. 582 U.S. at
__, 137 S. Ct. at 1860–61. In accordance with that guidance, a court in the Eastern District of
Pennsylvania found that a Secret Service agent could be subjected to a Fourth Amendment Bivens
claim where, as here, the plaintiff “merely challeng[ed] the constitutionality of a one-off arrest”
rather than “government policy.” Graber v. Dales, No. CV 18-3168, 2019 WL 4805241, at *4
(E.D. Pa. Sept. 30, 2019). Graber, however, was decided before Hernandez, which “involved a
challenge to one instance of a single line officer’s conduct, yet the Supreme Court still found that
national security was a special factor counseling against extension of the Bivens remedy.” Black
Lives Matter D.C., __ F. Supp. 3d at __, 2021 WL 2530722, at *6 (internal citations omitted). If
Hernandez means anything in this context, it is that “national security” concerns can be implicated
even when government policy writ large is not at issue.
The Court also shares Defendants’ concern about the potential impact of recognizing a
Bivens claim in this context. See ECF No. 21-1 at 21–22. As Justice Ginsburg once explained,
“[o]fficers assigned to protect public officials must make singularly swift, on the spot, decisions
whether the safety of the person they are guarding is in jeopardy.” Reichle, 566 U.S. at 671(Ginsburg, J., concurring in judgment). This is particularly true with respect to the Secret Service,
which routinely places its agents between the Presidents and crowds. The Court is troubled by the
prospect that, when engaged in that vitally important work, individual agents’ decisionmaking may
become bogged down by considerations of future liability and damages. That is certainly sufficient
to “counse[l] hesitation” about extending the Bivens remedy here. Hernandez, __ U.S. at __, 140
29
S. Ct. at 743 (alteration in original); see Haig v. Agee, 453 U.S. 280, 292 (1981) (“Matters
intimately related to . . . national security are rarely proper subjects for judicial intervention.”).
Other courts have reached similar conclusions. See, e.g., Vanderklok v. United States, 868 F.3d
189, 207 (3d Cir. 2017) (“The threat of damages liability could indeed increase the probability that
a TSA agent would hesitate in making split-second decisions about suspicious passengers. In light
of Supreme Court precedent, past and very recent, that is surely a special factor that gives us pause”
in the Bivens analysis.); Brunson v. Nichols, No. 1:14-CV-2467, 2018 WL 7286410, at *4 (W.D.
La. Dec. 7, 2018) (declining to extend Bivens because “[o]fficials would be continuously faced
with the threat of damages liability which would have the potential to thwart an official in making
a split-second decision undermining the paramount need to protect inmates and staff”), report and
recommendation adopted, 2019 WL 545479 (W.D. La. Feb. 11, 2019); Boule v. Egbert, No. C17-
0106, 2018 WL 3993371, at *5 (W.D. Wash. Aug. 21, 2018) (“This Court agrees that the risk of
personal liability [under Bivens] would cause Border Patrol agents to hesitate and second guess
their daily decisions about whether and how to investigate suspicious activities near the border,
paralyzing their important border-security mission.”).
The Court is mindful that “national security” should not employed as a “talisman used to
ward off inconvenient claims—a ‘label’ used to ‘cover a multitude of sins.’” Abbasi, 582 U.S. at
__, 137 S. Ct. at 1862 (quoting Mitchell v. Forsyth, 472 U.S. 511, 523 (1985)). In this case, though,
the national security concerns are legitimate, even if they might not have “actually justified”
Defendants’ conduct. Black Lives Matter D.C., __ F. Supp. 3d at __, 2021 WL 2530722, at *6.
Properly securing the vicinity around the White House is of paramount importance, and
recognizing a Bivens claim stemming from an arrest of a person who allegedly possessed illegal
weapons within that zone could seriously undermine that interest. Cf. Cmty. for Creative Non-
30
Violence v. Kerrigan, 865 F.2d 382, 389 (D.C. Cir. 1989) (finding that regulations restricting the
use of certain areas around the White House for First Amendment activities furthered the
“significant” government interest in “preventing terrorists from using signs, packages, or other
props to conceal weapons”). Thus, national security interests counsel against extending a Bivens
remedy to Plaintiff’s claims.
Second, Congress’ failure to create a cause of action against Secret Service agents when
carrying out their duties in the area surrounding the White House—despite the legislature’s
longstanding attention to the Secret Service—also gives the Court some pause in considering
whether Bivens should be extended, particularly as to Plaintiff’s First Amendment claims. After
an attempted assassination of President Truman in 1951, Congress “permanently authorized
the Secret Service to protect the President and Vice President.” Judicial Watch, 726 F.3d at 211
(citing Pub. L. No. 82–79, § 4, 65 Stat. 121, 122 (1951) (codified at 18 U.S.C. § 3056(a))). Over
the decades, Congress has consistently tinkered with the Secret Service’s mandate, and the
Service’s protection of the President and the White House have been the subject of multiple
Congressional inquiries. See Timeline of Our History,
https://www.secretservice.gov/about/history/timeline (last visited Dec. 16, 2021). Notably,
Congress convened a Select Committee on Assassinations in 1976 to investigate the assassination
of President Kennedy, and the Committee evaluated the conduct of individual Secret Service
officers. See H.R. Rep. No. 95-1828 at 235 (describing the response of individual Secret Service
officers to the shooting of President Kennedy). Importantly, that Committee “acknowledged the
potential for conflict between the demands of presidential security and protesters’ freedoms”—
which is highly relevant to Plaintiff’s First Amendment claims—and yet Congress still did not
authorize “a damages remedy for federal officers’ violations of protesters’ rights.” Black Lives
31
Matter D.C., __ F. Supp. 3d at __, 2021 WL 2530722, at *7; see also H.R. Rep. No. 95-1828 at
464 (noting that “[t]he committee was acutely aware of the problem of insuring that civil liberties
are preserved, while affording adequate protection to the institutions of democratic society and to
public figures”). Further, Congress has held hearings as recently as 2014 on White House security
and the role of the Secret Service in safeguarding the grounds. See White House Perimeter Breach:
New Concerns About the Secret Service: Hearing Before the H. Comm. on Oversight and Gov’t
Reform, 113th Cong. (2014), available at https://www.hsdl.org/?view&did=806336. Yet, despite
the consistent legislative attention paid to the Secret Service over the course of 70 years, Congress
has never made Secret Service agents liable for constitutional claims against them. The Black
Lives Matter D.C. court concluded that such legislative inaction despite Congress’ “extensive
activity in the field” indicated that the “‘failure to provide a damages remedy might be more than
mere oversight, and that congressional silence might be more than inadvertent.’” Black Lives
Matter D.C., __ F. Supp. 3d at __, 2021 WL 2530722, at *7 (quoting Abbasi, 582 U.S. __, 137 S.
Ct. at 1862). Indeed, Justice Kennedy made clear in Abbasi that “the silence of Congress is
relevant” in determining whether “there are sound reasons to think Congress might doubt the
efficacy or necessity of a damages remedy.” Abbasi, 582 U.S. at __, 137 S. Ct. at 1858, 1862. So
it is here, where Congress has long considered the competing interests of Presidential security and
First Amendment interests in the area around the White House. “[G]iven the many years Congress
has had ‘to extend the kind of remedies’ sought by” Plaintiff, Black Lives Matter D.C., __ F. Supp.
3d at __, 2021 WL 2530722, at *7 (quoting Abbasi, 582 U.S. at __, 137 S. Ct. at 1862), the lack
of a statutory remedy against Secret Service officers counsels against the judicial creation of a
Bivens claim. 15
15
Of course, it is certainly possible that, as the Graber court suggested, “low-level misconduct” by Secret Service
agents might have well “escape[d] congressional notice,” and therefore nothing should be read into Congress’ silence.
32
The Defendants also assert that the availability of alternative remedies, namely injunctive
relief, cuts against recognizing a Bivens claim in these circumstances. The Court is not persuaded.
As a general matter, it is true that “the existence of alternative remedies usually precludes a court
from authorizing a Bivens action.” Abbasi, 582 U.S. at __, 137 S. Ct. at 1865. More, what matters
is the availability of the alternative remedy, not whether it is equally as effective in redressing the
plaintiff’s harm as a Bivens claim. See Kelley v. Fed. Bureau of Investigation, 67 F. Supp. 3d 240,
270 (D.D.C. 2014) (“[I]t is not necessary for the alternative statutory scheme to provide the exact
same remedies that would be available in a Bivens action.”); see also Minneci v. Pollard, 565 U.S.
118, 129 (2012) (observing that alternative remedies “need not be perfectly congruent” to preclude
a Bivens remedy); Malesko, 534 U.S. at 69 (“So long as the plaintiff had an avenue for some
redress, bedrock principles of separation of powers foreclosed judicial imposition of a new
substantive liability.”); Wilson v. Libby, 535 F.3d 697, 706, 709 (D.C. Cir. 2008) (concluding that
an alternative remedies can cut against extending Bivens even if that alternative process affords
no remedy).
In this case, Plaintiff requested preliminary injunctive relief when he amended his claims.
See ECF No. 4 at 4–5. The Court dismissed those claims early in the litigation. See ECF No. 6 at
2–3. However, the Court is not convinced that Plaintiff ever had a colorable claim for injunctive
relief. Injunctions are intended to “deter future wrongful acts,” United States v. W.T. Grant
Co., 345 U.S. 629, 633 (1953), and so courts must determine “whether there is a real and
immediate threat of repeated injury.” D.C. Common Cause v. District of Columbia, 858 F.2d 1,
8–9 (D.C. Cir. 1988). Past harm, while relevant, is not dispositive in the analysis. Here, Plaintiff
never clearly articulated a fear of future harm, and the Court can discern none based on the limited
2019 WL 4805241, at *5. On the other hand, though, the Select Committee on Assassinations did consider the conduct
of individual Secret Service officers. See H.R. Rep. No. 95-1828 at 235.
33
information before it. Indeed, Plaintiff’s claims revolve around what was done to him, not what
would continue being done to him. So, it is unclear whether Plaintiff had even a colorable claim
for injunctive relief available to him, and the Court is therefore unwilling to count the remote
possibility of an equitable remedy against Plaintiff in the Bivens analysis. Cf. Black Lives Matter
D.C., __ F. Supp. 3d at __, 2021 WL 2530722, at *7, *11 (finding that the plaintiffs had standing
to pursue injunctive relief claims for alleged infringement of First Amendment activity in Lafayette
Square (adjacent to the White House), and therefore injunctive relief was an alternative remedy
that weighed against extending Bivens). The Court is keenly aware that alternative remedies need
not be successful in order counsel against the extension of a Bivens remedy. See id., at *7 (finding
that equitable relief claims are legitimate alternative remedies even “[t]hough these alternative
avenues may ultimately prove unsuccessful”). But as the Defendants’ concede, such alternatives
must, at the very least, provide the plaintiff with some “‘means to be heard’ on his position” (ECF
No. 21-1 at 21 (citing Wilkie, 551 U.S. at 552)), and it is simply not clear that seeking equitable
relief was a credible alternative for Plaintiff. In any event, even assuming that Plaintiff lacked a
colorable basis for injunctive relief in this case, that alone does not demand the availability of a
Bivens remedy. See Malesko, 534 U.S. at 69 (noting that the Supreme Court has “rejected the
claim that a Bivens remedy should be implied simply for want of any other means for challenging
a constitutional deprivation in federal court”). 16
16
The Federal Tort Claims Act (“FTCA”) may also provide alternative redress for some of Plaintiff’s harm (see infra
n.18) thereby militating against recognizing a Bivens remedy, but because the parties have not briefed the issue, and
it is a subject of some disagreement within the lower courts, the Court declines to address it. In Abbasi, the Court
observed that “any alternative, existing process for protecting the [injured party’s] interest” could be a “convincing
reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” 582 U.S. at __,
137 S. Ct. at 1858 (alteration in original) (quoting Wilkie, 551 U.S. at 550). Some courts have interpreted this remark
to mean that the availability of FTCA relief undermines any argument to extend Bivens. See, e.g., Annappareddy v.
Lating, No. 1:18-CV-03012, 2019 WL 12094026, at *10 (D. Md. Oct. 18, 2019) (noting that, “after Abbasi,
an FTCA claim can be considered a special factor weighing against permitting the extension of Bivens”), aff’d in part,
rev’d in part on other grounds and remanded sub nom., No. 19-2285, 2021 WL 1603987 (4th Cir. Apr. 26, 2021);
Johnson v. Roberts, C/A No. 3:17-3017, 2018 WL 6363921, at *5 (D.S.C. Oct. 17, 2018) (finding Bivens claim
34
* * * * *
As in Hernandez, “this case features multiple factors that counsel hesitation about
extending Bivens, but they can all be condensed to one concern—respect for the separation of
powers.” __ U.S. at __, 140 S. Ct. at 749. To recognize a Bivens remedy in this case would, first
and foremost, undercut the ability of the Executive Branch and its agents to effectively secure the
physical space around the White House. This would implicate serious national security concerns
that the Supreme Court has said figure prominently in the “special factors” analysis. See id. at
745–46; Abbasi, 582 U.S. at __, 137 S. Ct. at 1861. Expanding Bivens here would also offend the
separation of powers between the Judiciary and Congress by implying rights of action the
legislature has not seen fit to create. Congress’ silence is salient here given that the Secret Service
and the general security of the President and White House area have repeatedly been the subject
of hearings, investigations, and other legislation for decades—yet at no time has Congress
authorized the sort of remedy Plaintiff seeks here. In light of these special factors, Plaintiff’s
Bivens claims against Defendants in their individual capacities must be dismissed.
2. Even if Plaintiff’s Bivens Claims Were Cognizable, Defendants are Entitled
to Qualified Immunity
Assuming that Plaintiff’s Bivens claims against Defendants could move forward—and they
cannot—they are nonetheless be barred by qualified immunity. “Qualified immunity shields
precluded because the FTCA is a sufficient alternative remedy to “address claims against the United States for personal
injuries caused by government employees acting within the scope of their employment”), report and recommendation
adopted, 2018 WL 6344136 (D.S.C. Dec. 5, 2018). Other courts have declined to construe Abbasi as foreclosing a
Bivens claim when FTCA relief is available. See, e.g., Bueno Diaz v. Mercurio, 442 F. Supp. 3d 701, 711 (S.D.N.Y.
2020) (reviewing pre-Abbasi Supreme Court case law indicating that the FTCA “does not preclude a Bivens remedy”
and noting that “the Supreme Court has not specifically called into question its prior analysis regarding the FTCA’s
availability in Bivens actions”); Lineberry v. United States, C/A No. 5:17-CV-04124, 2018 WL 4224458 (S.D. W. Va.
Sept. 5, 2018) (finding “that the FTCA and state tort law” were not appropriate alternative remedies for plaintiff’s
constitutional claims”); see also K.O. v. U.S. Immigration & Customs Enforcement, 468 F. Supp. 3d 350, 367 n.3
(D.D.C. 2020) (maintaining post-Abbasi and Hernandez, that FTCA claims “are not an alternative of the sort that
qualifies as a special factor in the Bivens analysis,” but not addressing the “any alternative” language in Abbasi).
35
federal and state officials from money damages 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.” Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[T]he dispositive question” in determining
whether a right is “clearly established” is “‘whether the violative nature of particular conduct is
clearly established.’” Abbasi, 582 U.S. at __, 137 S. Ct. at 1866 (quoting Mullenix v. Luna, 577
U.S. 7, 136 (2015) (per curiam)). “Qualified immunity is properly evaluated at the motion to
dismiss stage.” K.O., 468 F. Supp. 3d at 368.
As explained, “[t]he first prong of the qualified immunity analysis is whether the plaintiff
has shown the defendant violated a constitutional right.” Jones, 2019 WL 1301788, at *14. As
explained, nowhere in his filings does Plaintiff articulate any conduct committed by officers
Pilgrim or Naples, specifically, that violated any of Plaintiff’s constitutional rights. Courts have
found claims barred by qualified immunity on that basis. See, e.g., Jones, 2019 WL 1301788, at
*11, *14 (finding the plaintiff’s Bivens claims barred by qualified immunity where the plaintiff
“failed to allege what defendants here did with respect to his First Amendment claim with any
particularity” and “fail[ed] to allege any act by any particular defendant”). But even if Plaintiff
had pleaded sufficient facts to support a plausible claim that his constitutional rights were violated,
he nevertheless failed explain how or why those rights were “clearly established” as of the time of
his arrest. See generally ECF No. 4 and No. 23. Even for pro se litigants, courts in this Circuit
find failure to adequately allege whether the right at issue was “clearly established” at the time of
the alleged injury dispositive in the qualified immunity analysis. See, e.g., Bozgoz v. Blackwell,
No. CV 19-2790, 2021 WL 4243402, at *7 (D.D.C. Sept. 17, 2021) (finding a pro se litigants’
claims barred by qualified immunity where they “fail[ed] to identify any clearly established
36
constitutional right”); Driever, 2020 WL 6135036, at *8 (finding a pro se litigant’s claims barred
by qualified immunity where, as here, the litigant “cite[d] no case law that suggests that the
constitutional claims she presents arise from clearly established law”). Thus, even if Plaintiff
could maintain Bivens claims against Defendants in their individual capacities, he still has not
navigated the qualified immunity hurdle. His claims must be dismissed for these reasons, as well.
III. CONCLUSION
The issue in this case is not whether law enforcement agents may roam free in the area
around the White House, detain persons at will, and generally do whatever they please. Of course
that is not the case. 17 Rather, the essential question is whether this Court should create a
Constitutional remedy that Congress has failed to enact despite ample opportunity to do so. To
recognize a Bivens remedy in these circumstances would not only encroach upon Congress’
authority, but also has the potential to impair the Executive Branch’s ability to secure the area
surrounding White House—with possible national security consequences. Consistent with the
Supreme Court’s proviso that such judicial activity is “disfavored,” the Court declines to extend a
Bivens remedy to Plaintiff’s claims. And even if the Court took that extraordinary, “disfavored”
17
The FTCA provides a check on the actions of law enforcement officials in and around the White House grounds.
The FTCA “contains an express waiver” of sovereign immunity for “‘acts or omissions of investigative or law
enforcement officers of the United States Government’” arising out of any claim “‘of assault [or] battery’” or false
arrest, false imprisonment, and malicious prosecution, among others. Murphy v. United States, 121 F. Supp. 2d 21,
24 (D.D.C. 2000) (quoting 28 U.S.C. § 2680(h)), aff’d, 64 F. App’x 250 (D.C. Cir. 2003). An “investigative or law
enforcement officer” is “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.” 28 U.S.C. § 2680(h). This surely includes Secret Service
agents. See, e.g., Parker v. Blackerby, 368 F. Supp. 3d 611, 618 (W.D.N.Y. 2019) (discussing applicability of FTCA
to conduct of Secret Service agent); Murphy, 121 F. Supp. 2d at 24 (same). Importantly, the law enforcement officer
must have been “engaged in investigative or law enforcement activities” at the time the tortious conduct occurred in
order to trigger the exception to sovereign immunity found in § 2680(h). Murphy, 121 F. Supp. 2d at 25 (quoting
Employers Ins. of Wausau v. United States, 815 F. Supp. 255 (N.D. Ill. 1993). Thus, for individuals in Plaintiff’s
position, the FTCA may very well afford a remedy that Bivens does not.
37
step and implied a Bivens remedy on these facts, Plaintiff has failed to explain why qualified
immunity would not also bar his claims.
For the foregoing reasons, Defendants’ motion to dismiss is granted, and the Amended
Complaint is dismissed with prejudice. 18 An Order to that effect accompanies this Memorandum
Opinion.
G. Michael Digitally signed by G.
Michael Harvey
Date: December 17, 2021
Harvey Date: 2021.12.17
14:47:17 -05'00'
___________________________________
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE
18
The Court finds that Plaintiff’s Bivens claims are not cognizable as a matter of law, and therefore amendment would
be futile. Other federal courts have reached similar conclusions. See, e.g., Johnson v. Cooke, No. 15-21790-CIV,
2021 WL 2561794, at *9 (S.D. Fla. May 6, 2021) (“Because the Court has found that Bivens does not provide a remedy
for Plaintiff's [constitutional] claims, any amendment would be futile and the Complaint should therefore be
dismissed with prejudice.” (emphasis omitted)), appeal filed, 21-12096 (11th Cir. 2021); Negron v. United States, 19-
cv-05442, 2020 WL 5634304, at *10 (S.D.N.Y. Sept. 21, 2020) (“As to Plaintiff’s Bivens claims, any amendment
would . . . be futile. Absent a Supreme Court decision creating a new Bivens remedy on all fours with Plaintiff’s
alleged Bivens Claims, Plaintiff’s Bivens Claims cannot survive a motion to dismiss. Accordingly, . . . the Court
dismisses Plaintiff’s . . . Bivens Claims with prejudice.”); see also Simpkins v. District of Columbia, 108 F.3d 366,
370 (D.C. Cir. 1997) (“[T]o permit [the plaintiff] to file another suit containing the same worthless claims would be
inconsistent with the duty of lower federal courts to stop insubstantial Bivens actions in their tracks and get rid of
them. Such lawsuits impose undue burdens on the officer being sued, and thus interfere with the operations of
government.” (internal citations omitted)). Further, the Court notes that when Plaintiff was previously provided an
opportunity to amend his claims, he failed to adhere to the Court’s instructions to specify whether he was bringing his
claims against the Defendants in their official and/or personal capacities. This does not inspire confidence that
permitting further amendment would be fruitful. For all these reasons, Plaintiff’s claims are dismissed with prejudice.
38