Pettibone v. Biden

• Decision Date: 17 April 2023
• Docket Number: 3:20-cv-01464-YY
• Parties: MARK PETTIBONE, an individual, et al., Plaintiffs, v. JOSEPH R. BIDEN, Jr, in his official capacity, et al., Defendants.
• Court: U.S. District Court — District of Oregon

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MARK PETTIBONE, an individual, et al., Plaintiffs, v. JOSEPH R. BIDEN, Jr, in his official capacity, et al., Defendants.

No. 3:20-cv-01464-YY

United States District Court, D. Oregon, Portland Division

April 17, 2023

FINDINGS AND RECOMMENDATIONS

Youlee Yim You, United States Magistrate Judge.

FINDINGS

This suit arose from the protests in support of the Black Lives Matter movement that occurred during the summer of 2020. Many of those protests centered around the Mark O. Hatfield U.S Courthouse in downtown Portland. Plaintiffs are eight individuals who participated in protests outside the courthouse and two organizations whose members also took part in demonstrations outside the courthouse. Their complaint alleges, in relevant part, that federal agents assigned to protecting the federal courthouse during the protests used unreasonable force and unlawful arrest or detention against the individual plaintiffs.

Currently pending are a series of motions to dismiss filed by the federal agents accused of violating the individual plaintiffs' constitutional rights. ECF 170, ECF 174,^[1] ECF 175, ECF 178. These moving defendants include agents from U.S. Customs and Border Protection, the U.S. Marshals Service, and employees of the Federal Protective Service, who were engaged in the operation to defend the courthouse during the protests.^[2] Some of the individual federal agents have also requested judicial notice for a series of facts about the protests set out in media reports, social media posts and other sources. ECF 174.

The request for judicial notice should be granted, but only to take notice of the existence of the proffered materials and not for the truth of the matters asserted in those materials. The motions to dismissed should be granted because the U.S Supreme Court's recent decision in Egbert v Boule, 142 S.Ct. 1793 (2022), forecloses the availability of a so-called Bivens cause of action for plaintiffs' Fourth Amendment claims against the moving defendants.

I. Background

The following facts are taken from plaintiffs' Second Amended Complaint and the materials attached to it and are, for the purpose of resolving the current motions, assumed to be true. Starting in late May 2020, and for more than 80 consecutive nights at the time this action was filed in August 2020, protestors gathered and marched in “large numbers” in the streets of Portland, including the area surrounding the federal courthouse and the Multnomah County Justice Center. Sec. Am. Compl. ¶ 54, ECF 80. On June 26, 2020, former President Trump issued Executive Order 13,933 on “Protecting American Monuments, Memorials, and Statutes and Combating Recent Criminal Violence,” which directed cabinet officials and federal agency administrators, including defendant Chad Wolf as then-Acting Secretary of the Department of Homeland Security, to provide “personnel to assist with the protection of Federal monuments, memorials, statues, or property.” Id. ¶ 56. Wolf and other DHS officials “created and sent a Rapid Deployment Force to Portland in advance of the July 4, 2020 holiday weekend as part of what they termed ‘Operation Diligent Valor.' ” Id. ¶ 59. Federal agents from Customs and Border Protection, Immigration and Customs Enforcement, and the U.S. Marshals Service all participated in the operation. Id. ¶ 60.

According to the complaint, these federal agents, while purportedly engaged in the mission to “protect federal property,” used harsh and severe “tactics” against the protestors that included “surveillance, warrantless arrests, or custodial detentions of protesters, and the indiscriminate use of excessive force, including shooting protesters in the head and body with impact munitions and pepper balls, spraying them directly in the face with pepper spray, shoving them to the ground, hitting and beating them with batons, and firing massive clouds of tear gas at them, even when doing so was not necessary to protect federal property or the persons on it.” Id. ¶ 62. And it is these actions, as specifically used against plaintiffs here at various times, that are the basis of plaintiffs' complaint.

Plaintiff Mark Pettibone was “snatched off the street by unidentified federal agents, who arrested him and detained him in jail for hours without ever informing him of the reasons for their actions, much less charging him with an offense.” Id. ¶ 119. Plaintiff Mac Smiff was shot by a federal agent “in the head with an impact munition while he was lawfully attending the protests,” id. ¶ 134, and plaintiff James McNulty was shot “three times with rubber bullets and one time with a pepper ball.” Id. ¶ 198. Plaintiff Andre Miller was “shot . . . in the head with a tear gas cannister, causing a gash in his head the required seven stitches and a concussion that continues to have lingering effects,” id. ¶ 175, and plaintiffs Nichol Denison and Maureen Healy were hit in the head with tear gas cannisters or other projectile. Id. ¶¶ 151, 163. Federal agents knocked plaintiff Christopher David to the ground, struck him multiple times with batons, and sprayed him with chemical irritant. Id. ¶¶ 172-73. Other federal agents also struck plaintiff Duston Obermeyer with batons and sprayed him in the face at point-blank range with a chemical irritant. Id. ¶ 189.

These plaintiffs have brought Fourth Amendment claims against the federal agents in their individual capacities. Id. ¶¶ 219-225 (Second Claim for Relief). There are numerous other claims alleged in the complaint, but the Fourth Amendment claims against the federal agents in their individual capacities are the primary target of the federal agents' pending motions to dismiss. The motions are brought as follows:

• Defendants 1 through 6 and 8 through 15 were involved in plaintiff Pettibone's arrest, search, and detention. Defendants 1 through 6 are employees of the U.S. Marshals Service; defendants 8 through 13 are Customs and Border Protection Agents; and defendants 14 and 15 are employees of the Federal Protective Service. Defs. 1-6, 815 Mot. Dismiss, ECF 170.

• Defendant 7 is a supervisor with the U.S. Marshals Service, and is alleged to have approved or directed the use of force by defendants 17, 18, and 19 against plaintiffs David and Obermeyer. Def. 7 Mot. Dismiss, ECF 175.

• Defendants 17 and 18 are employees of the U.S. Marshals Service who are alleged to have used excessive force against plaintiffs David and Obermeyer. Defs. 17 & 18 Mot. Dismiss, ECF 174.

• Defendant 16 is an employee of the U.S. Marshals Service who was allegedly involved in plaintiff Pettibone's arrest, search, and detention; defendant 19 is also an employee of the U.S. Marshals Service and is alleged to have been involved in using excessive force against plaintiffs David and Obermeyer. Defs. 16 & 19 Mot. Dismiss, ECF 178.

As will become clear, the specific federal agency for which any individual federal agent worked for is often not relevant to the legal analysis that follows. Thus, all the moving federal agents are generally referred to collectively as “defendants,” unless otherwise noted.^[3] The defendants have also moved to dismiss plaintiffs' Seventh and Eighth claims for relief, which allege a conspiracy to deprive plaintiffs of their constitutional rights. E.g., Defs. 1-6, 8-15 Memo ISO Mot. Dismiss 52-54, ECF 171; see also Sec. Am. Compl. ¶¶ 258-76, ECF 80. Additionally, defendants 17 and 18 have requested judicial notice of facts contained in various media reports, social media posts, and other sources. Defs. 17 & 18 Mot. Dismiss 3-7, ECF 174.

II. Standards

To state a claim for relief, a pleading 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). This standard “does not require ‘detailed factual allegations,' ” but does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' ” Id. (quoting Twombly, 550 U.S. at 555). To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a 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).

In evaluating a motion to dismiss, the court must accept the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. ParksSch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In addition to the allegations in the complaint, the court may consider documents that are attached to or incorporated by reference in the complaint, where the parties do not contest the authenticity of those documents, as well as matters capable of judicial notice. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

III. Discussion

A. Request for Judicial Notice

Defendants 17 and 18 request judicial notice of six groups of facts which depend on news reports, a Twitter post, and facts asserted in another lawsuit in the District of Oregon. Defs. 17 & 18 Mot. Dismiss 3-7, ECF 174. In resolving a Rule 12(b)(6) motion, review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on denial of reh'g, 275 F.3d 1187 (9th Cir. 2001). However, the Ninth Circuit has identified two exceptions to this general rule: “First, a court may consider material which is properly submitted as part of the complaint on a motion to dismiss without converting the motion to dismiss into a motion for summary judgment. If...