Leuthauser v. United States

Decision Date21 December 2021
Docket NumberCase No. 2:20-CV-479 JCM (VCF)
Citation576 F.Supp.3d 806
Parties Michele LEUTHAUSER, Plaintiff(s), v. UNITED STATES of America, et al., Defendant(s).
CourtU.S. District Court — District of Nevada

Jonathan Corbett, Pro Hac Vice, Law Office of Jonathan Corbett, Esq., Hollywood, CA, Kristina S. Holman, Kristina S. Holman, Attorney at Law, Las Vegas, NV, for Plaintiff(s).

Brianna Smith, U.S. Attorney's Office, Las Vegas, NV, for Defendant United States of America.

ORDER

James C. Mahan, United States District Judge

Presently before the court is defendant Anita Serrano's ("Serrano") motion to dismiss. (ECF No. 31 ). Plaintiff Michele Leuthauser ("Leuthauser") filed a response (ECF No. 39 ), to which Serrano replied (ECF No. 46 ).

I. BACKGROUND

The present case stems from an incident that occurred at Las Vegas International Airport. (See ECF No. 4 ). Leuthauser alleges that Serrano, a Transportation Security Administration (TSA) employee, sexually assaulted her during an airport security screening. (Id. at 1).

On June 30, 2019, Leuthauser was a passenger for a flight departing from Las Vegas. (Id. at 3). When Leuthauser proceeded through a TSA security screening checkpoint, she went through a body scanner, which set off an alarm. (Id. ). The body scanner operator informed Leuthauser that she needed to submit to a "groin search" and Serrano instructed Leuthauser to accompany her to a private room. (Id. ).

Leuthauser followed Serrano into a private room where an additional TSA agent was present. (Id. ). There was a mat in the private room with footprints on it to indicate how a passenger should stand during a pat-down. (Id. at 4). Leuthauser stood on the mat as indicated, but Serrano instructed her to widen her stance. (Id. ). Serrano began the pat-down by sliding her hands along the inside of plaintiff's thigh and allegedly proceeded to digitally penetrate and inappropriately fondle Leuthauser. (Id. ). As a result, Leuthauser became severely distressed. (Id. at 5). A supervisor arrived and dismissed Serrano and completed the pat-down. (Id. ). Leuthauser then contacted airport police, but they advised her that TSA was outside of their jurisdiction and did not take action. (Id. ).

Leuthauser brings a claim of unreasonable search in violation of the Fourth Amendment, and state law claims of battery and intentional infliction of emotional distress ("IIED"). (Id. at 6–11). Serrano now moves to dismiss the Fourth Amendment claim for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6).

II. LEGAL STANDARD
a. Rule 12(b)(6)

Federal Rule of Civil Procedure 8 requires every complaint to contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8. Although Rule 8 does not require detailed factual allegations, it does require more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). In other words, a complaint must have plausible factual allegations that cover "all the material elements necessary to sustain recovery under some viable legal theory." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted) (emphasis in original); see also Mendiondo v. Centinela Hosp. Med. Ctr. , 521 F.3d 1097, 1104 (9th Cir. 2008).

The Supreme Court in Iqbal clarified the two-step approach to evaluate a complaint's legal sufficiency on a Rule 12(b)(6) motion to dismiss. First, the court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in the plaintiff's favor. Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937. Legal conclusions are not entitled to this assumption of truth. Id. Second, the court must consider whether the well-pleaded factual allegations state a plausible claim for relief. Id. at 679, 129 S.Ct. 1937. A claim is facially plausible when the court can draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678, 129 S.Ct. 1937. When the allegations have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ; see also Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011).

If the court grants a Rule 12(b)(6) motion to dismiss, it should grant leave to amend unless the deficiencies cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc. , 957 F.2d 655, 658 (9th Cir. 1992). Under Rule 15(a), the court should "freely" give leave to amend "when justice so requires," and absent "undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments ... undue prejudice to the opposing party ... futility of the amendment, etc." Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The court should grant leave to amend "even if no request to amend the pleading was made." Lopez v. Smith , 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks omitted).

b. Bivens Actions

The Constitution does not ordinarily provide a private right of action against federal officers for constitutional violations. However, in 1971, the Supreme Court first recognized an "implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights." Corr. Servs. Corp. v. Malesko , 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (emphasis added) (citing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 391, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ). In doing so, the Supreme Court established that "federal courts have the inherent authority to award damages against federal officials to compensate plaintiffs for violations of their constitutional rights." W. Ctr. For Journalism v. Cederquist , 235 F.3d 1153, 1156 (9th Cir. 2000) (citations omitted).

In Bivens , the Supreme Court recognized that an implied private cause of action arises when law enforcement officials violate a plaintiff's Fourth Amendment right by executing a warrantless search of a plaintiff's home. Bivens , 403 U.S. at 391, 91 S.Ct. 1999. In the 47 years since Bivens , the Supreme Court "ha[s] recognized two more nonstatutory damages remedies, the first for employment discrimination in violation of the Due Process Clause, ... and the second for an Eighth Amendment violation by prison officials[.]" Wilkie v. Robbins , 551 U.S. 537, 549–50, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (internal citations omitted); see Davis v. Passman , 442 U.S. 228, 245–48, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (allowing a Bivens claim for a congressional staff member who was wrongfully terminated on the basis of her sex); see also Carlson v. Green , 446 U.S. 14, 17–18, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (allowing a Bivens claim under the Eight Amendment for a deceased federal prisoner against prison officials for failing to provide proper medical attention).

The Supreme Court has "recently and repeatedly said that a decision to create a private right of action is one better left to legislative judgment in the great majority of cases." Sosa v. Alvarez-Machain , 542 U.S. 692, 695, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). Thus, the Supreme Court "ha[s] consistently refused to extend Bivens liability to any new context or new category of defendants." Malesko , 534 U.S. at 68, 122 S.Ct. 515 ; see also Iqbal , 556 U.S. at 675, 129 S.Ct. 1937 (holding that the Supreme Court disfavors implied causes of action like Bivens and therefore limits their availability).

Nevertheless, courts may extend Bivens in rare circumstances in order "to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer's unconstitutional conduct." Malesko , 534 U.S. at 70, 122 S.Ct. 515. The decision to recognize a new Bivens cause of action is a two-step analysis. First, courts can extend Bivens only if there does not exist an alternative remedy. Mirmehdi v. United States , 689 F.3d 975, 982 (9th Cir. 2012). Second, if an alternative remedy does not exist, courts must consider whether special factors counsel against creating a new Bivens claim. Id.

III. DISCUSSION
a. New Bivens Context

The first question the court must answer is whether the facts and allegations presented in this case constitute a new Bivens context. The Supreme Court has instructed that a Bivens context is new if it is "different in a meaningful way from previous Bivens cases."

Ziglar v. Abbasi , ––– U.S. ––––, 137 S.Ct. 1843, 1859, 198 L.Ed.2d 290 (2017). The Ziglar court offered a non-exhaustive list of meaningful differences, including, inter alia , "the rank of the officers involved; the constitutional right at issue ... [or] the statutory or other legal mandate under which the officer was operating." Id. at 1860. The Court further clarified that "even a modest [ Bivens ] extension is still an extension." Id. at 1864.

Leuthauser argues that her claim is "substantially similar" to Bivens since her claim implicates the Fourth Amendment and involves a "one-time incident of misconduct directed solely at the plaintiff." (ECF No. 39 at 7 ). While true that Leuthauser's claim implicates the same constitutional right as Bivens , the alleged unconstitutional search occurred under very different circumstances. In Bivens , the search occurred at a private residence as part of traditional law-enforcement during a criminal investigation, and without a warrant. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 409 F.2d 718 (2d Cir. 1969). Here, the challenged conduct occurred during an administrative search as part of a security checkpoint in a public airport.

Moreover, the federal officials in Bivens were operating under a...

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