Rodriguez v. Lerch

• Decision Date: 06 April 2023
• Docket Number: 3:18-CV-899 JD
• Parties: ENEDEO RODRIGUEZ JR., Plaintiff, v. KYLE LERCH, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

1

ENEDEO RODRIGUEZ JR., Plaintiff, v. KYLE LERCH, et al., Defendants.

No. 3:18-CV-899 JD

United States District Court, N.D. Indiana, South Bend Division

April 6, 2023

OPINION AND ORDER

JON E DEGUILIO Chief Judge

Plaintiff Enedeo Rodriguez is incarcerated and not represented by counsel. He filed an amended complaint under Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics 403 U.S. 388 (1971), and 42 U.S.C. § 1983 against multiple defendants, claiming that they violated his Fourth and Fourteenth Amendment rights when they investigated and searched his home and business for drug trafficking evidence.

“A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations omitted). Nevertheless, because Mr. Rodriguez is incarcerated, pursuant to 28 U.S.C. § 1915A, the Court must review the complaint and dismiss it if the action “is frivolous, malicious, or fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.” Id.

A. Federal Rule of Civil Procedure 15(c)(1)(C)

The amended complaint contains a number of defendants who were not named in the original complaint. Because Mr. Rodriguez filed his original complaint near the end of the statute of limitations period, substituting or adding new parties now may be foreclosed unless the addition of the new defendants is compatible with Federal Rule of Civil Procedure 15(c)(1)(C). However, the court cannot tell from the existing record whether some of the newly named defendants “received such notice of the action that [they] will not be prejudiced in defending on the merits” and “knew or should have known that the action would have been brought against [them], but for a mistake concerning the proper party's identity.” Fed.R.Civ.P. 15(c)(1)(C); see also Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 130 S.Ct. 2485, 2487, 177 L.Ed.2d 48 (2010) (holding that relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party's knowledge or timeliness in seeking to amend the pleading). As a result, if there are any issues as to whether Mr. Rodriguez's amended claims relate back to the original complaint, they must be raised by the affected defendants. This issue may also arise if Mr. Rodriguez attempts to add additional defendants later as he suggests in his amended complaint. (See Am. Compl., DE 136 at 2, 3 [¶¶ 1, 14.]) (“ . . . an unknown defendant who threw a flash-bang grenade in the presence of a child, the name should be revealed upon the completion of an unredacted discovery.”)).^[1]

B. Fourth Amendment Claims

(1) ATF Agent Wayne Lessner

The details of Mr. Rodriguez's complaint aren't always easy to discern, but it is clear that he is alleging that his constitutional rights were violated when a false search warrant affidavit was presented to a magistrate judge resulting in a subsequent search of his home and adjacent property by various law enforcement officers. As required by § 1915A, the Court will review his claims against each defendant. First in line is Wayne Lessner, an agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives.

According to the amended complaint, in October 2015, the Elkhart County Intelligence and Covert Enforcement Unit (“ICE”) began to investigate Jorge Moreida. Lessner was working as an undercover agent and was introduced to Moreida. During his investigation, Lessner drafted several search warrant applications for a United States magistrate judge to obtain search warrants for Mr. Rodriguez's phone and residence. Mr. Rodriguez alleges that the affidavits contained false and misleading statements and omissions which when properly considered nullify any finding of probable cause. In particular, Mr. Rodriguez complains that Lessner intentionally misrepresented that the investigation was a joint federal and state investigation; he lied about the dates of certain events and about what Mr. Rodriguez did on December 12, 2015. Mr. Rodriguez claims that the investigators were conducting shoddy surveillance, so Lessner made up the facts in support of probable cause to search his home. He says Lessner acted with corrupt motive and with intent to harm and destroy him. Mr. Rodriguez believes that, had Lessner not lied, the search warrant application would have contained no probable cause to issue a search warrant.

As a federal agent, Lessner stands on a different footing in this lawsuit than his state counterparts. Section 1983 authorizes lawsuits for deprivation of rights against persons acting under color of state law. But there's no corresponding statute for suing federal officers. Ziglar v. Abbasi, 137 S.Ct. 1843, 1854 (2017). However, fifty-two years ago, the Supreme Court recognized an implied cause of action against federal officials who, without a warrant, entered Webster Bivens's apartment, arrested him for alleged drug violations, threatened his family, searched his apartment, and took him for interrogation and booking. Bivens v. Six Unknown Named Fed. Agents, 403 U.S. 388 (1971). The Supreme Court found that, under those circumstances, “the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen.” Id. at 392. Yet this holding has proven to be limited to only a certain class of cases, and, since Bivens, the Supreme Court found only in two other cases an implied cause of action involving other constitutional violations:

In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), an administrative assistant sued a Congressman for firing her because she was a woman. The Court held that the Fifth Amendment Due Process Clause gave her a damages remedy for gender discrimination. Id., at 248-249, 99 S.Ct. 2264. And in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), a prisoner's estate sued federal jailers for failing to treat the prisoner's asthma. The Court held that the Eighth Amendment Cruel and Unusual Punishments Clause gave him a damages remedy for failure to provide adequate medical treatment. See id., at 19, 100 S.Ct. 1468. These three cases-Bivens, Davis, and Carlson-represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself.

Abbasi, 137 S.Ct. at 1854-55.

“To understand Bivens and the two other cases implying a damages remedy under the Constitution, it is necessary to understand the prevailing law when they were decided. In the mid-20th century, the Court followed a different approach to recognizing implied causes of action than it follows now.” Id. at 1855. Since then, “the [Supreme] Court [has] adopted a far more cautious course before finding implied causes of action.” Id. In fact, although it had many opportunities, the Supreme Court has declined to provide a Bivens remedy in other types of cases. See, e.g., Hernandez v. Mesa, 140 S.Ct. 735 (2020) (Fourth and Fifth Amendment suit against border patrol agent in a cross-border shooting); Ziglar v. Abbasi, 137 S.Ct. 1843, 1863 (2017) (Fourth and Fifth Amendment suit over prison mistreatment against high-ranking officials); Minneci v. Pollard, 565 U.S. 118, 131 (2012) (Eighth Amendment suit against prison guards at private prison); Wilkie v. Robbins, 551 U.S. 537, 561 (2007) (Fifth Amendment due process suit against Bureau of Land Management officials); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (Eighth Amendment suit against private prison operator); Schweiker v. Chilicky, 487 U.S. 412, 414 (1988) (Fifth Amendment due process suit against Social Security officials); United States v. Stanley, 483 U.S. 669, 685-86 (1987) (Fifth Amendment suit against military officers for violation of due process); FDIC v. Meyer, 510 U.S. 471, 486 (1984) (Fifth Amendment due process suit for wrongful termination from federal employment); Bush v. Lucas, 462 U.S. 367, 390 (1983) (First Amendment suit against federal employer for defamation and retaliatory demotion); Chappell v. Wallace, 462 U.S. 296, 305 (1983) (Fifth Amendment race discrimination suit against military officers). This is so because “the Bivens remedy is now a ‘disfavored' judicial activity.” Abbasi, 137 S.Ct. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).

With this backdrop in mind, the Court must decide whether Mr. Rodriguez's Fourth Amendment claim against Lessner may proceed. There are two primary considerations for evaluating claims under Bivens:

The first question a court must ask is whether the plaintiff's claim presents a new Bivens “context,” “i.e., whether the case is different in a meaningful way from previous Bivens cases decided by this Court.” If it is, the court must then decide whether there are “special factors counselling hesitation” in allowing the claim to go forward. The focus of that inquiry is “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.”

Greenpoint Tactical Income Fund LLC v. Pettigrew, 38 F.4th 555, 561-62 (7th Cir. 2022) (citations omitted).

There's a disagreement among courts in how to treat Bivens claims in the context of false search warrant applications. The Court of Appeals for the Seventh Circuit has observed that “[i]n the wake of Abbasi's new limits on Bivens claims, some courts have taken a fresh look at the precedents that have authorized Bivens ...