Rivera v. Samilo

• Decision Date: 31 March 2019
• Docket Number: 16-cv-1105 (DLI)
• Citation: 370 F.Supp.3d 362
• Parties: Jouhan RIVERA, Plaintiff, v. DEA Special Agent David T. SAMILO, Defendant.
• Court: U.S. District Court — Eastern District of New York

370 F.Supp.3d 362

Jouhan RIVERA, Plaintiff,

v.DEA Special Agent David T. SAMILO, Defendant.

16-cv-1105 (DLI)

United States District Court, E.D. New York.

Signed March 31, 2019

Hector Benjamin Perez, H. Benjamin Perez & Associates, P.C., Tamara M. Harris, The Law Office of Tamara M. Harris, New York, NY, for Plaintiff.

Sean P. Greene, United States Attorney's Office, EDNY, Brooklyn, NY, for Defendant.

MEMORANDUM AND ORDER

DORA L. IRIZARRY, Chief United States District JudgeOn March 4, 2016, Plaintiff Jouhan Rivera ("Plaintiff") initiated this action against Defendant Drug Enforcement Agency Special Agent David T. Samilo ("Samilo") and others for alleged violations of Plaintiff's constitutional rights in connection with his arrest during a traffic stop in 2013. On March 30, 2018, the Court granted in part and denied in part Defendants' motion to dismiss the complaint (the "March 30, 2018 Order"). (Docket Entry No. 58 ). The Court dismissed all claims against all Defendants except Plaintiff's damages claim against Samilo for injuries allegedly sustained when Samilo allegedly used excessive force when handcuffing Plaintiff during his arrest.

On July 12, 2018, the Court held a pretrial conference. At the conference, the Court asked the parties to submit supplemental briefing to address the application of the intervening case from the United States Supreme Court captioned Ziglar v. Abbasi , ––– U.S. ––––, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017). This opinion addresses that supplemental briefing. For the reasons set forth below, the Court finds that Plaintiff's claim cannot stand under Ziglar , and this action is dismissed.

I. BACKGROUND

On the evening of October 22, 2013, Samilo and other federal law enforcement officers were surveilling Plaintiff as part of a narcotics investigation.¹ While following a vehicle in which Plaintiff was a passenger, the officers initiated a traffic stop. Plaintiff and the driver were searched for weapons. A search of the vehicle uncovered a duffel bag containing approximately three kilograms of cocaine in the spare tire well of the trunk. Plaintiff was placed under arrest. Plaintiff alleges that he told the arresting officers, including Samilo, that he had a hand injury, and that the handcuffs were too tight and aggravating that injury. Plaintiff alleges that Samilo squeezed the cuffs even tighter, would not let him retrieve a hand brace from the car, and that he sought medical assistance as a result of these injuries.

On March 4, 2016, Plaintiff filed his complaint against Samilo and six other federal officers alleging violations of Plaintiff's Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights under Bivens v. Six Unknown Named Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the seminal case in which the Supreme Court found an implied right of action for money damages against federal officers for certain violations of a plaintiff's constitutional rights. (Docket Entry No. 1.)

On April 21, 2017, the defendants moved to dismiss the Complaint pursuant to Rules 12(b)(1), 12(b)(5), 12(b)(6) of the Federal Rules of Civil Procedure, and, in the alternative, for summary judgment pursuant to Rule 56. (Docket Entry No. 39.) On March 30, 2018, the Court granted in part and denied in part defendants' motion. (Docket Entry No. 58.) The only claim that survived defendants' motion is Plaintiff's claim for a violation of his Fourth Amendment rights against Samilo for allegedly using excessive force in handcuffing Plaintiff.

On June 19, 2017, the Supreme Court issued its decision in Ziglar v. Abbasi , ––– U.S. ––––, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017), which clarified the analysis to be applied by the lower courts when deciding whether to find an "implied right of action" under Bivens .

On July 12, 2018, the Court held a pretrial conference. The Court, sua sponte , directed the parties to submit supplemental briefing to address the impact of Ziglar on Plaintiff's excessive force claim. The supplemental briefing was completed on August 23, 2018. (See , Samilo Br., Docket Entry No. 71 ; Rivera Br., Docket Entry No. 73 ; Samilo Rep., Docket Entry No. 75.)

For the reasons that follow, the Court finds that Ziglar and separation of powers principles counsel against finding an implied right of action on the facts of this case. Plaintiff's sole remaining claim is dismissed.

II. DISCUSSION

For a plaintiff to enforce his constitutional rights he must have a cause of action. That is, there must be a statute passed by Congress or a judicially implied claim for relief. Here, Plaintiff cannot point to any statute that would allow him to prosecute this action. The only question is whether there is a judicially implied claim for relief.

A. Bivens

In Bivens v. Six Unknown Narcotics Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court recognized "an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights." McGowan v. United States , 825 F.3d 118, 123 (2d Cir. 2016) (quoting Corr. Servs. Corp. v. Malesko , 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) ). The Bivens Court implied a private right of action under the Fourth Amendment for an unreasonable search and seizure claim against FBI agents for handcuffing a man in his own home without a warrant. Bivens , 403 U.S. at 389, 397, 91 S.Ct. 1999. Since then, the Supreme Court has recognized Bivens claims in only two other circumstances: (1) under the Fifth Amendment's Due Process Clause for gender discrimination against a congressman for firing his female secretary, Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and (2) under the Eighth Amendment's prohibition on cruel and unusual punishment against prison officials for failure to treat an inmate's asthma

which led to his death, Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).

"Although Carlson and Davis were handed down within a decade of Bivens , they mark the beginning of a still-unbroken period of nearly 40 years since the Supreme Court has authorized a Bivens damages action covering the exercise of any other constitutional right." Sanford v. Bruno , 2018 WL 2198759, at *3 (E.D.N.Y. May 14, 2018). This supports the majority's observation in Malesko that, since Bivens , "we have retreated from our previous willingness to imply a cause of action where Congress has not provided one." 534 U.S. at 67 n.3, 122 S.Ct. 515. It also supports the even stronger observation of two concurring Justices that

Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action—decreeing them to be "implied" by the mere existence of a statutory or constitutional prohibition.... [W]e have abandoned that power to invent "implications" in the statutory field. There is even greater reason to abandon it in the constitutional field, since an "implication" imagined in the Constitution can presumably not even be repudiated by Congress.

Malesko , 534 U.S. at 75, 122 S.Ct. 515 (Scalia, J., concurring) (internal citations omitted).

Notwithstanding the Supreme Court's retreat, lower courts have relied on Bivens as a blueprint for implying causes of action. Although acknowledging that the judicial damage remedy in Bivens itself is "extraordinary" and should "rarely if ever be applied in ‘new contexts,’ " Arar v. Ashcroft , 585 F.3d 559, 571 (2d Cir. 2009) (en banc) (quoting Malesko , 534 U.S. at 69, 122 S.Ct. 515 ), lower courts have recognized implied rights of action premised on constitutional rights other than the three identified by the Supreme Court.

B. Ziglar

Recently, however, the Supreme Court has re-emphasized that courts should not imply rights and remedies as a matter of course, "no matter how desirable that might be as a policy matter, or how compatible with the statute [or constitutional provision]." Ziglar , 137 S.Ct. at 1856 (quoting Alexander v. Sandoval , 532 U.S. 275, 286-87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ). "Given the notable change in the [Supreme] Court's approach to recognizing implied causes of action ... the Court has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity." Id. at 1857 (quoting Ashcroft v. Iqbal , 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

Ziglar also made it clear that the only recognized implied rights of action are the narrow situations presented in Bivens, Davis , and Carlson . Practically speaking, this means that, post- Ziglar , even where a Court of Appeals had previously found a Bivens remedy, that court or a district court must reconsider whether one is available. See , 137 S.Ct. at 1865 (vacating the Second Circuit's holding in Turkmen v. Hasty , 789 F.3d 218 (2d Cir. 2015) (panel decision), and Turkmen v. Hasty , 808 F.3d 197 (2d Cir. 2015) (en banc), because the court failed to conduct the appropriate Bivens analysis); See also , Vanderklok v. United States , 868 F.3d 189, 199-200 (3d Cir. 2017) (holding that, even though the Third Circuit previously had found a Bivens remedy in a First Amendment retaliation context, that precedent no longer holds in light of Ziglar and the court "must look at the issue anew in this particular context, ... and as it pertains to this particular category of defendants").

The recognition of a cause of action is context specific. The Supreme Court has set out a rigorous two-step inquiry for courts to determine whether to imply a Bivens cause of action in a new context or against a new category of defendants. First, the court must determine whether a plaintiff's claims arise in a new Bivens context. "If the case is different in a meaningful way from previous Bivens cases decided by [the Supreme Court], then the context is new." Ziglar , 137 S.Ct. at 1859. The Supreme Court did not offer an "exhaustive list of differences that are meaningful enough to make a given context a new one," but it did offer examples that ...