Dibenedetto v. Diaz

Decision Date01 February 2018
Docket NumberCASE NO. 1:17-cv-01605-DAD-MJS
PartiesFRANK J. DIBENEDETTO, JR., Plaintiff, v. DEBORAH DIAZ, Defendant.
CourtU.S. District Court — Eastern District of California

ORDER FINDING NO COGNIZABLE CLAIMS AND REQUIRING PLAINTIFF TO AMEND OR RESPOND

THIRTY (30) DAY DEADLINE

Plaintiff Frank DiBenedetto is proceeding pro se and in forma pauperis in this complaint brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. His complaint is before the Court for screening.

I. Screening Requirement

Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the complaint to determine if it states a cognizable claim. The Court must dismiss a complaint or portion thereof if it determines that the action has raised claims that are legally "frivolous or malicious," "fails to state a claim upon which relief may be granted," or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

II. Pleading Standard

Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

"Actions under [42 U.S.C.] § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens." Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Under Bivens, a plaintiff may sue a federal officer in his or her individual capacity for damages for violating the plaintiff's constitutional rights. See Bivens, 403 U.S. at 397. To state a claim under Bivens, a plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the alleged violation was committed by a federal actor. See Van Strum, 940 F.2d at 409.

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action,supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

III. Plaintiff's Allegations

Plaintiff's allegations can be fairly summarized as follows: Plaintiff was employed by the U.S. Postal Service. On November 28, 2017, Defendant Diaz, apparently Plaintiff's acting manager, verbally harassed Plaintiff and kept him in the manager's room against his will by slamming the door as he was leaving and blocking his exit. She then ordered Plaintiff to sit down. Plaintiff responded that he was uncomfortable and wanted to leave. Diaz refused to allow him to leave. She asked for his time card. Plaintiff explained several times to Diaz that she needed to let him leave.

Plaintiff was given two days off and told not to return to United States Postal Property. Plaintiff was removed from the postal service.

Plaintiff seeks reinstatement and money damages.

IV. Analysis
A. Fourth Amendment

Plaintiff seeks to bring a Fourth Amendment claim against Defendant Diaz for not allowing him to leave the manager's office.

Such a claim is governed by the Bivens ruling, the federal analog to suits brought against state officials under 42 U.S.C. § 1983. Hartman v. Moore, 547 U.S. 250 (2006). A Bivens action arises out of illegal or inappropriate conduct on the part of a federal official or agent in violation of a clearly established constitutional right. Baiser v. Department of Justice, Office of U.S. Trustee, 327 F.3d 903, (9th Cir. 2003). Bivens allows for liability for individuals who are in direct employ of the federal government,including postal workers. See e.g., White v. United States Postal Serv., No. 12cv1283-LAB (MDD), 2012 U.S. Dist. LEXIS 126125, at *6 (S.D. Cal. Aug. 27, 2012).

The Ninth Circuit applies the same standards to Bivens actions as actions under § 1983 except for substituting a federal actor. Van Strum, 940 F.2d at 409 (9th Cir.1991) (applying same statute of limitations to Bivens actions as is applied to actions brought pursuant to section 1983). To state a claim under 42 U.S.C. § 1983, a complaint must allege: (i) the conduct complained of was committed by a person acting under color of state law and (ii) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Under § 1983, Plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

Bivens itself provides for a private right of action against federal officers for violations of the Fourth Amendment. Bivens, 403 U.S at 392-97. The Fourth Amendment "guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority." Id., 403 U.S. at 392. The Fourth Amendment prohibits "unreasonable searches and seizures by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." United States v. Arvizu, 534 U.S. 266, 273 (2002); Ramirez v. City of Buena Park, 560 F.3d 1012, 1020 (9th Cir. 2009). Under the Fourth Amendment, a detention or seizure of a person occurs when an officer, "by means of physical force or show of authority, has in some way restrained the liberty of a citizen . . . ." United States v. Orman, 486 F.3d 1170, 1175 (9th Cir. 2007).

The Fourth Amendment is "applicable to the activities of civil as well as criminal authorities." New Jersey v. T. L. O., 469 U.S. 325, 335 (1985) accord O'Connor v. Ortega, 480 U.S. 709, 715 (1987). The Supreme Court has held that the FourthAmendment's prohibition on unreasonable searches and seizures applies to public school officials, see T. L. O., 469 U.S. at 335, building inspectors, see Camara v. Municipal Court, 387 U.S. 523, 528 (1967), Occupational Safety and Health Act inspectors, see Marshall v. Barlow's Inc., 436 U.S. 307, 312-13 (1978), and firemen entering privately owned premises to battle a fire, see Michigan v. Tyler, 436 U.S. 499, 506 (1978).

However, while the Fourth Amendment has been held to apply to governmental conduct outside the realm of law enforcement, "the types of non-law enforcement conduct to which the [Supreme] Court has extended the scope of the amendment are... typically motivated by some sort of investigatory or administrative purpose designed to elicit a benefit for the government." United States v. Attson, 900 F.2d 1427, 1430 (9th Cir. 1990), cert. denied 498 U.S. 961 (1990). Therefore, in order for non-law enforcement governmental conduct to be considered a search or seizure under the Fourth Amendment, such conduct must have "as its purpose the intention to elicit a benefit for the government in either its investigative or administrative capacities." Id. at 1431.

A seizure of the person includes not only a full-fledged arrest, but also "investigatory detentions," see Davis v. Mississippi, 394 U.S. 721, 726 (1969), and any other "detention of [a person] against his will," see Cupp v. Murphy, 412 U.S. 291, 294 (1973). See also Ganwich v. Knapp, 319 F.3d, 1115, 1120 n.7 (9th Cir. 2003) (acknowledging that plaintiffs were seized within meaning of Fourth Amendment while assuming that plaintiffs' detention did not mature into a full-fledged arrest). However, an encounter between a government official and an individual "will not trigger Fourth Amendment scrutiny unless it loses its consensual nature." Florida v. Bostick, 501 U.S. 429, 434 (1991). A seizure occurs only when a person submits to the show of lawful authority or the application of physical force by an officer acting in the role of a law enforcement agent rather than as a public employer or supervisor and must be effectedby physical force or a show of lawful authority. See California v. Hodari D., 499 U.S. 621, 626-27 (1991); see also Terry v. Ohio, 392 U.S. 1, 19, n.16 (1968) ("Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred.").

"An individual's voluntary choices may give rise to a limitation on freedom that does not equate to a seizure by law enforcement." Myers v. Baca, 325 F. Supp. 2d 1095, 1105 (C.D. Cal. 2004). This is true of the work environment. While it is well-established that "searches and seizures by...

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