Pettibone v. Biden

• Decision Date: 27 December 2021
• Docket Number: 3:20-cv-1464-YY
• Court: U.S. District Court — District of Oregon
• Parties: MARK PETTIBONE, et al. Plaintiffs, v. JOSEPH R. BIDEN, Jr., et al, Defendants.

MARK PETTIBONE, et al. Plaintiffs,
v.
JOSEPH R. BIDEN, Jr., et al, Defendants.

No. 3:20-cv-1464-YY

United States District Court, D. Oregon

December 27, 2021

OPINION AND ORDER

Michael H. Simon United States District Judge

United States Magistrate Judge Youlee Yim You issued Findings and Recommendations in this case on September 13, 2021. ECF 95. Judge You recommended that the Court grant the motion to dismiss filed by Defendants Chad Wolf, former Acting Secretary of the Department of Homeland Security (DHS), and Gabriel Russell, Federal Protective Services (FPS) Regional Director for Region 10 (collectively, Individual-Capacity Defendants). Judge You also recommended that the Court dismiss the First, Seventh, and Eighth Claims asserted against these two Defendants in their individual capacities. For the reasons stated below, the Court adopts in part Judge You's Findings and Recommendation and grants in part the motion to dismiss. The Court dismisses the First Claim as against Defendant Wolf and the Seventh and Eighth Claims as against both Defendants Wolf and Russell in their individual capacities. The Court denies Defendant Russell's motion to dismiss the First Claim as against him.

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STANDARDS

A. Review of Findings and Recommendation

Under the Federal Magistrates Act (Act), the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party objects to a magistrate judge's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id; Fed. R. Civ. P. 72(b)(3).

For those portions of a magistrate judge's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) ("There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed."); United States, v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate judge's findings and recommendations if objection is made, "but not otherwise"). Although in the absence of objections no review is required, the Act "does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that "[w]hen no timely objection is filed," the Court review the magistrate judge's recommendations for "clear error on the face of the record."

B. Motion to Dismiss

A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint

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and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'lEduc. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The court must draw all reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus, v. Ikon Office Sol, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit a plaintiffs legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79(2009).

A complaint must contain sufficient factual allegations to "plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr, 652 F.3d at 1216. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Ail. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).

DISCUSSION

Plaintiffs timely filed objections, to which Defendants Wolf and Russell timely responded. Plaintiffs argue that the Findings and Recommendations erred in recommending dismissal of Plaintiffs' First Claim for relief as an improper extension oiBivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiffs also argue that

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Defendants Wolf and Russell are not entitled to qualified immunity, an issue Judge You did not address based on her determination that Plaintiffs' Bivens claims must be dismissed. Plaintiffs additionally contend that the Findings and Recommendations erred by concluding that Plaintiffs have not adequately alleged an agreement between the Defendants Wolf and Russell and Portland Police Bureau (PPB) officers to deprive Plaintiffs of their civil rights sufficient to support a claim under 42 U.S.C. § 1985(3).^[1] Finally, Plaintiffs argue that Judge You erred in not granting Plaintiffs leave to amend.

A. Bivens

The Supreme Court "has made clear that expanding the Bivens remedy is now a 'disfavored' judicial activity." Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017). Extending Bivens "is a significant step under separation-of-powers principles," and Congress is the branch of government with the "substantial responsibility to determine whether, and the extent to which, monetary and other liabilities should be imposed upon individual officers and employees of the Federal Government." Id. at 1856. The Supreme Court "has 'consistently refused to extend Bivens [liability] to any new context or new category of defendants.' ... for the past 30 years." Id. at 1857 (quoting Corr. Svcs. Corp. v. Malesko, 534 U.S. 61, 68 (2001) (first alteration text in Malesko, omitted in Abbasi)). "The [Supreme] Court's precedents now make clear that a Bivens remedy will not be available if there are 'special factors counselling hesitation in the absence of affirmative action by Congress.'" Id. (quoting Carlson v. Green, 446 U.S. 14, 18 (1980)). Thus, in considering possible extensions of Bivens, courts "engage in a two-step inquiry." Hernandez v. Mesa, 140 S.Ct. 735, 743 (2020). The first step is to "inquire whether the request involves a claim that arises in a 'new context' or involves a 'new category of defendants.'" Id. (quoting Malesko, 534 U.S. at 68).

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If so, the second step is to "ask whether there are any special factors that counsel hesitation about granting the extension." Id. (simplified). Defendants Wolf and Russell argue that allowing claims against them would be extending claims to both a new context and new category of defendants, and that special factors counsel against extending Bivens under these circumstances.

1. New Context

Plaintiffs disagree with Judge You's Bivens "new context" analysis. Plaintiffs argue that the Findings and Recommendations created a large-scale law enforcement operations exception to Bivens. Plaintiffs contend that their claims are regular Fourth Amendment claims for illegal search, seizure, and excessive force, and are appropriate under Bivens, particularly considering Ioane v. Hodges, 939 F.3d 945 (9th Cir. 2018).

The Court does not read the Findings and Recommendations as concluding that Plaintiffs' claims present a new context for purposes of Bivens simply because of the large-scale operation of the federal officers' response to the Portland protests. Judge You referred to the scope of the operation, but she did so in the context of describing the difference between "line-level agents" in Bivens and the "high-level positions and non-direct roles held by Defendants Wolf and Russell in this case." ECF 95 at 8. Moreover, even if the Findings and Recommendations could be construed as creating a large-scale operation exception to Bivens, the Court does not adopt such an interpretation. The Court agrees with Judge You, however, that Plaintiffs seek to create supervisory or general agency liability under Bivens for Defendant Wolf, and that is a new context under Bivens. See, e.g., Wolfe v. City of Portland, 2021 WL 4713237, at*12(D. Or. Oct. 8, 2021).

Plaintiffs' reliance on Ioane is unavailing as to Defendant Wolf. In Ioane, the Ninth Circuit concluded that a plaintiffs claim was "similar to Bivens and therefore does not present a

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'new context'" because "[b]oth cases concern an individual's Fourth Amendment right to be free from unreasonable searches and seizures." Ioane, 939 F.3d at 952. The federal agent in Ioane, however, was one who personally performed a warrantless search of the plaintiffs person in her home. Id. at 950. As the Ninth Circuit explained, "[t]here is no difference between [Ioane and Bivens] with respect to the rank of the officers involved," and the "case also does not result in any intrusion by the judiciary into the functioning of other branches." Id. at 952. Here, as alleged by Plaintiffs, Defendant Wolf did not personally participate in the alleged illegal conduct^[2] and is of significantly higher rank. Instead, Plaintiffs allege that Defendant Wolf established high-level...