Opinion
2:18-cv-00375-HL
05-03-2023
LUZ A. NUNEZ, an individual, Plaintiff, v. BRANDON JONES, ROBERT HOPE, PHILLIP MAPLE, RICHARD PATTEE, and RICHARD CROSS, in their individual capacities as agents of the United States Immigration and Customs Enforcement (“ICE”), Defendant.
AMENDED FINDINGS AND RECOMMENDATION
ANDREW HALLMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff Luz Nunez brings this action against Defendants, five federal officers. Plaintiff alleges the federal officers violated her Fourth Amendment rights by unlawfully arresting her after a traffic stop. Plaintiff sues the federal officers in their individual capacities for monetary damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Under the Supreme Court's recent decision in Egbert v. Boule, 142 S.Ct. 1793 (2022), Plaintiff does not have a Bivens remedy, and Defendant's Motion for Summary Judgment should be GRANTED.
The following facts are construed, and all reasonable inferences are drawn, in the light most favorable to Plaintiff as the nonmoving party. See Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108, 1112 (9th Cir. 2011).
Plaintiff is a Hispanic woman born in the United States and is a United States citizen. Luz Nunez Decl. (“Pl.'s Decl.”) ¶ 2, ECF 131; Second Am. Compl. ¶ 1, ECF 81. She is fluent in English and Spanish, and she was 19 years old on September 19, 2017. Pl.'s Decl. ¶¶ 2, 4.
On September 19, 2017, Plaintiff was driving in Ontario, Oregon, with two Hispanic male passengers: her then-boyfriend and his friend. Id. ¶ 3. Both male passengers were illegally present in the country and had criminal records. Defs.' Notice of Lodgment of Exhibits(“NOL”), Ex. B at 5-6, 70, ECF 116-1. At around 3:30 p.m., Defendants Paul Maple, Reo Hope, and Brandon Jones pulled Plaintiff over in unmarked cars. Paul Maple Decl. (“Maple Decl.”) ¶ 3, ECF 117; Reo Hope Decl. (“Hope Decl.”) ¶ 3, ECF 118; Brandon Jones Decl. (“Jones Decl.”) ¶ 4, ECF 119. Defendants Maple, Hope, and Jones (“ICE Defendants”) are all deportation officers with the U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement (“ICE”). Maple Decl.¶ 1; Hope Decl. ¶ 1; Jones Decl. ¶ 1; Pl.'s Decl. ¶ 5. In pulling Plaintiff over, Defendants were executing an arrest warrant for Plaintiff's boyfriend based on his immigration status and criminal record. NOL Ex. A at 2, Ex B at 4-7, ECF 166-1; NOL Ex. M at 92, ECF 120-1; Jones Decl. ¶ 2; Hope Decl. ¶ 2.
Defendant's Notice of Lodgment of Exhibits is filed as an attachment to Defendant's Motion for Summary Judgment. ECF 116-1. Exhibits A through L were filed as part of this attachment and Exhibits M through U were filed separately under seal. ECF 116-1; ECF 120-1. All these Exhibits have a NOL page number that continues as if every Exhibit was part of one large document. When citing these Exhibits, the Court will use this NOL page number as the pin cite along with the Exhibit's letter and the docket entry it was filed under. Some of these Exhibits are excerpts of depositions. When a deposition is cited, the Court will also include the depositions page and line number in parentheses.
Once Plaintiff's car was stopped, Defendant Maple approached the driver's side while Defendant Jones approached the passenger side. Maple Decl. ¶ 4; Jones Decl. ¶ 5. Defendant Jones asked Plaintiff's boyfriend what his name was. Pl.'s Decl. ¶ 8. Plaintiff then touched her boyfriend and told him to “wait” in Spanish. Id.; Jones Decl. ¶ 6. Plaintiff began using her phone to record what was happening, and Defendant Jones told her to stop. Pl.'s Decl. ¶ 9. Plaintiff's boyfriend exited the vehicle, was handcuffed, and taken to Defendant Jones's vehicle. NOL Ex. N (“Maple Dep.”) at 104 (81:24-25), 106 (86:8-22), Ex. O (“Hope Dep.”) at 126 (59:15-19), 129 (70:15-17), ECF 120-1. Then Defendant Maple ordered Plaintiff to exit her car and place her hands on the hood. Pl.'s Decl. ¶ 11; Maple Decl. ¶ 6.
As Plaintiff got out of the car and moved her arms to comply with Defendant Maple's request, she yelled, “don't touch me” and jerked her right arm. Pl.'s Decl. ¶ 11; Maple Decl. ¶ 6; Hope Dep. 130-31 (78:21-22). The parties dispute which direction Plaintiff swung her right arm. Defendants claim Plaintiff swung her right arm toward Defendant Maple to try to strike him. Maple Decl. ¶ 6; Hope Decl. ¶ 4; Jones Decl. ¶ 7. Plaintiff maintains that she moved her right elbow away from Defendant Maple to prevent him from grabbing her. Pl.'s Decl. ¶ 11. After Plaintiff moved her right arm, Defendant Maple grabbed her arm just above the wrist, twisted it behind her back, and pressed Plaintiff against her car. Pl.'s Decl. ¶ 11; Maple Dep. 108 (96:13-24). While Defendant Maple pressed Plaintiff against her car, Defendant Hope threatened Plaintiff with pepper spray. Id.; Jones Decl. ¶ 8; Hope Dep. 127 (61:22-25). During Plaintiff's physical confrontation with the ICE Defendants, both male passengers were handcuffed in officer vehicles and could not view the confrontation. NOL Ex. M at 93, ECF 120-1; NOL Ex. C at 11, Ex. F at 42, 43 (9:18-21, 10:5-11), Ex. D at 16, ECF 116-1.
The ICE Defendants asked Plaintiff questions about her citizenship and identity. One of the officers asked Plaintiff where she was from, and Plaintiff responded that she was “from here,” meaning the United States. Pl.'s Decl. ¶ 15; NOL Ex. F at 59 (26:3-7), ECF 116-1; Maple Dep. 111 (147:1-9). Defendants Jones and Maple asked Plaintiff for identification, and she gave them her Oregon driver's license. Maple Decl. ¶ 7; NOL Ex. F at 43 (10:24-25), ECF 116-1. Plaintiff only spoke to Defendants in English. Pl.'s Decl. ¶ 19.
Eventually, Ontario police officers arrived at the scene wearing body cameras. Pl.'s Decl. ¶ 17. Around 5:30 p.m., Defendant Jones placed Plaintiff under arrest. Pl.'s Decl. ¶ 19; Jones Decl. ¶ 11. According to Plaintiff, she was not given a reason for her arrest. Pl.'s Decl. ¶ 20. Defendant Jones handcuffed Plaintiff and placed a chain around her waist before putting her in the back of his vehicle. Pl.'s Decl. ¶ 19.
Defendant Jones transported Plaintiff 55 miles away to the Department of Homeland Security (“DHS”) office in Boise, Idaho. Pl.'s Decl. ¶ 19; Jones Decl. ¶ 11. At the Boise office, Plaintiff was photographed, fingerprinted, and placed in a cell. Pl.'s Decl. ¶ 19.
An hour or two after Plaintiff arrived at the DHS office, Defendants Richard Pattee and Richard Cross (“DHS Defendants”) interviewed Plaintiff. Pl.'s Decl. ¶ 27; NOL Ex. F at 35 (2:2-7), ECF 116-1. The DHS Defendants told Plaintiff that the ICE Defendants arrested her because they “had no idea what [her] status was[.]” NOL Ex. F at 37 (4:2-4), ECF 116-1. Upon confirming that Plaintiff was a United States citizen, Plaintiff was released without any charges or conditions at 7:30 p.m. Pl.'s Decl. ¶ 29. Plaintiff was not provided any means of getting home. Id. Plaintiff's family member picked her up and drove her to her car in Ontario, Oregon, later that night. Id.
The next day, Defendant Pattee contacted the United States Attorney's Office in Eugene, Oregon, “to determine if there was enough probable cause to charge [Plaintiff] with assault on a federal agent.” NOL Ex. M at 94, ECF 120-1. The United States Attorney's Office declined to prosecute Plaintiff for any assault charges. Id.; Jones Decl. ¶ 12. Subsequently, DHS closed the investigation. NOL Ex. M at 94, ECF 120-1.
PROCEDURAL BACKGROUND
Plaintiff filed this suit in March 2018. Compl., ECF 1. In her Second Amended Complaint, Plaintiff asserts one Bivens claim for unlawful seizure under the Fourth Amendment. Second Am. Compl. ¶¶ 37-43, ECF 81. Plaintiff brings this claim against the three ICE Defendants who arrested her and the two DHS Defendants who interviewed her at the Boise office. Second. Am. Compl. ¶¶ 6-12. Plaintiff sues all Defendants in their individual capacities. Second. Am. Compl. ¶ 11.
Defendants filed a Motion for Summary Judgment on two main grounds: (1) This case presents a new Bivens context and special factors counsel against extending a new Bivens remedy; and (2) Defendants are entitled to qualified immunity because they had probable cause to arrest Plaintiff, and the law was not clearly established at the time of Plaintiff's arrest. Defs.' Mot. Summ. J., ECF 116.
In response, Plaintiff asserted that (1) her claim could be brought under Bivens, and (2) Defendants are not entitled to qualified immunity because they did not have probable cause to arrest Plaintiff under clearly established law. Pl.'s Opp'n to Defs.' Mot. Summ. J. 18-40, ECF 130.
The Court heard oral argument on this motion on October 27, 2021. ECF 148. After oral argument, the United States Supreme Court granted certiorari in Egbert v. Boule, 998 F.3d 370 (9th Cir. 2021), which was a case that both parties cited extensively in addressing whether Plaintiff's claims could be brought under Bivens. After the Supreme Court issued the decision in Egbert, 142 S.Ct. 1793, both parties submitted supplemental briefing concerning that decision. ECF 157, 160, 164, 165.
In their supplemental briefs, the parties dispute whether a Magistrate Judge issuing Findings and Recommendations pursuant to 28 U.S.C. § 636(b)(1)(C) should address both the Bivens issue and qualified immunity, see Pl.'s Reply to Defs.' Suppl. Br., ECF 164. or only address the threshold question of whether Plaintiff can bring a claim under Bivens, Defs.' Sur-Reply in Supp. of Mot. Summ. J. 3-5, ECF 165. This Court is neither required to nor prohibited from issuing findings and recommendations on any issue presented in the parties' briefing. Here, given Egbert's apparent rejection of any further expansion of Bivens, this Court concludes that it is unnecessary to also address qualified immunity. If the District Judge disagrees with all or part of that recommendation, then the District Judge “may accept, reject, or modify, in whole or in part, the findings or recommendations ....or recommit the matter to the magistrate judge with instructions.” See 28 U.S.C. § 636(b)(1)(C). Accordingly, this Court will only address the Bivens issue at this point.
On November 22, 2022, this Court issued its initial Findings and Recommendation, which were referred to District Judge Immergut. ECF 166, 167. The Ninth Circuit subsequently issued two decisions which are relevant to this Court's analysis: Mejia v. Miller, 61 F.4th 663 (9th Cir. 2023) and Pettibone v. Russell, 59 F.4th 449, 451 (9th Cir. 2023). Judge Immergut then remanded the Findings and Recommendation to this Court for consideration of this supplemental authority. ECF 182.
The initial panel opinion in Mejia was issued prior to this Court's Findings and Recommendation, and this Court relied upon that decision therein. ECF 166 at 9 (citing Mejia v. Miller, 53 F.4th 501 (9th Cir. 2022)). Subsequently, the panel filed an amended opinion, which omitted portions of the prior opinion that this Court relied upon.
LEGAL STANDARD
Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact, and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine issue of material fact for trial. Id.
An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Id.
DISCUSSION
I. Legal Standards for Bivens Actions
In Bivens, the Supreme Court recognized for the first time an implied right of action against federal officers for constitutional violations. Bivens, 403 U.S. at 397. The Court held that plaintiff Bivens could sue federal agents for damages arising out of an unlawful arrest and search in violation of his Fourth Amendment rights. Id. at 389-90. In the years following Bivens, the Supreme Court also recognized implied rights of action involving constitutional violations in two other contexts. See Davis v. Passman, 442 U.S. 228 (1979) (recognizing a damages remedy for a gender discrimination claim against a United States Congressman under the equal protection component of the Fifth Amendment Due Process Clause); Carlson v. Green, 446 U.S. 14 (1980) (recognizing a damages remedy against federal prison officials for failure to provide adequate medical treatment under the Eighth Amendment's Cruel and Unusual Punishment Clause). “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.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1855 (2017).
In the four decades since those three cases, the Supreme Court has repeatedly refused to extend claims allowed under Bivens. See Hernandez v. Mesa, 140 S.Ct. 735, 742-43 (2020) (collecting cases). Recently, the Supreme Court clarified that expanding the Bivens remedy to any new context or category of defendants “is now a ‘disfavored' judicial activity.” Abbasi, 137 S.Ct. at 1857 (quoting Iqbal, 556 U.S. at 675). The Court explained that to do so constitutes a “significant step,” id. at 1856, that risks offending separation-of-powers principles, as “Congress is best positioned to evaluate ‘whether, and the extent to which, monetary and other liabilities should be imposed upon individual officers and employees of the Federal Government' based on constitutional torts.” Hernandez, 140 S.Ct. at 742 (quoting Abbasi, 137 S.Ct. at 1856).
In considering possible extensions of Bivens claims, district courts must apply a two-part test. First, the court considers whether the asserted claim arises in a “new context.” Abbasi, 137 S.Ct. at 1859-60. A claim arises in a new context when the claim is “different in a meaningful way” from the three Bivens claims that the Supreme Court has previously recognized. Id. at 1859. A claim may be meaningfully different based on many factors, including, but not limited to:
the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.Id. at 1860. Moreover, a Plaintiff must demonstrate that the case is not meaningfully different from a specific Bivens precedent, rather than “showing that each of its facts, taken separately, resembles facts found in different Bivens precedents.” Pettibone, 59 F.4th at 456.
Second, if the claim arises in a new context, the court must consider “whether there are any special factors that counsel hesitation about granting the extension.” Hernandez, 140 S.Ct. at 743 (alterations and quotations omitted) (citing Abbasi, 137 S.Ct. at 1861). Although the Supreme Court has not defined what constitutes “special factors,” the Court has noted that
the inquiry must concentrate on 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. Thus, to be a special factor counselling hesitation, a factor must cause a court to hesitate before answering that question in the affirmative.Abbasi, 137 S.Ct. at 1857-58 (internal quotations and citations omitted). Special factors may include whether the claim implicates policy questions or requires an intrusion into the deliberative policymaking process and whether other alternatives are available to vindicate the alleged right. Abbasi, 137 S.Ct. at 1861. The “most important question” guiding this two-step analysis is “who should decide whether to provide for a damages remedy, Congress or the courts?” Hernandez, 140 S.Ct. at 750 (quoting Abbasi, 137 S.Ct. at 1857) (quotations omitted).
In Egbert, the Supreme Court reiterated, “the longstanding first step of the Bivens question, but clarified that the second step is now whether[] ‘special factors indicate that the Judiciary is at least arguably less equipped than Congress to weigh the costs and benefits of allowing a damages action to proceed.'” Mejia, 61 F.4th at 667 (citing Egbert, 142 S.Ct. at 1797-98). After Egbert, the two-step analysis “often resolve[s] to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert, 142 S.Ct. at 1803. Under Egbert,
any rational reason to think that Congress is better suited to weigh the costs and benefits is enough to preclude extending Bivens. If there are alternative remedial structures that alone is reason enough to not infer a new Bivens cause of action. Similarly, uncertainty about the potential systemwide consequences of implying a new Bivens cause of action is by itself a special factor that forecloses relief.Mejia, 61 F.4th at 667 (alterations, citation, and quotations omitted) (citing Egbert, 142 S.Ct. at 1803-1805). Moreover, “[u]nder Egbert, rarely if ever is the Judiciary equally suited as Congress to extend Bivens even modestly. The creation of a new cause of action is inherently legislative, not adjudicative.” Id. at 669.
II. Whether Plaintiff's Claim Arises in a New Context
Plaintiff's Bivens claim arises in a new context. Egbert identifies the “legal mandate under which the officer was operating” as an example of a new context. Egbert, 142 S.Ct. at 1814. “[T]he question is whether to create a cause of action against all of an agency's officers,” which focuses on the agency as a whole. Mejia, 61 F.4th at 668 (citing Egbert, 142 S.Ct. at 1806)). In this case, the main officers involved were ICE agents acting under the Immigration and Nationality Act (“INA”). That act allows agents to interrogate and make arrests if they believe that someone is unlawfully present in the United States or violating criminal laws. See 8 U.S.C. § 1357(a)(1-2), (g)(5). There is no evidence in the record that would suggest that ICE “has the same mandate as agencies enforcing federal anti-narcotics law.” See Mejia, 61 F.4th at 668; Sheikh v. U.S. Dep't of Homeland Sec, et. al., No. 2:22-CV-00409 WBS AC, 2022 WL 16964105, at *5 (E.D. Cal. Nov. 16, 2022) (“DHS employees clearly have a different legal mandate than the Federal Bureau of Narcotics agents at issue in Bivens.”).
Plaintiff relies on Ioane v. Hodges, 935 F.3d 945 (9th Cir. 2020) to assert that the agency involved is not a “meaningful difference” so long as the officers are performing routine searches and seizures within the common and recurring sphere of law enforcement. Pl.'s Suppl. Br. 8, ECF 181. This Court agrees with Defendants that the discussion of the agency involved from Ioane is clearly irreconcilable with Egbert (and now Mejia, 61 F.4th at 668) and therefore does not consider that discussion in its analysis.
There are other meaningful differences as well. Bivens involved a warrantless entry into the plaintiff's home at night based on suspected drug offenses, Bivens, 403 U.S. at 389, while Plaintiff's claim involves a traffic stop during the day due to suspected immigration violations. These factual distinctions are sufficient to conclude that Plaintiff's claims arose in a new context. See Mejia, 61 F.4th at 668 (concluding that there is a meaningful difference between a search of a person's home and a search on public land based on the individual's expectation of privacy); Pettibone, 59 F.4th at 455 (discussing the specific conduct at issue in Bivens and concluding that Plaintiff's claims presented a new context for multiple reasons). The facts of this case bear little resemblance to the facts of Bivens, and are therefore “different in a meaningful way” from Bivens. Abbasi, 137 S.Ct. at 1859-60.
Because Defendants were operating under a different legal mandate, and because the facts Plaintiff's case are meaningfully different from those in Bivens, Plaintiff's claims arise in a new context.
III. Whether Any Factors Counsel Hesitation Against Extending Bivens
This Court also concludes that there are “reason[s] to think that Congress might be better equipped to create a damages remedy.” Egbert, 142 S.Ct. at 1803.
First, “a Bivens cause of action may not lie where, as here, national security is at issue.” Egbert, 142 S.Ct. at 1805. To be sure, the arrest of a United States citizen hundreds of miles from an international border hardly implicates a national security concern. However, the issue is not whether Plaintiff's claims specifically implicate national security concerns but whether “the Judiciary is comparatively ill suited to decide whether a damages remedy against any [ICE officer] is appropriate.” See id. (addressing Customs and Border Patrol agents). Defendants were carrying out their mandate to investigate immigration violations within the United States when they arrested Plaintiff. See 8 U.S.C. § 1357. “[I]mmigration investigations in this country . . . impact the national security of the United States.” Egbert, 142 S.Ct. at 1806. Accordingly, national security concerns provide a reason to believe that Congress is at least arguably better equipped to create a damages remedy against ICE officers.
Plaintiff relies on Lanuza v. Love, 899 F.3d 1019, 1030 (9th Cir. 2019) to assert that “expanding Bivens to [routine immigration proceedings] does not threaten the political branches' supervision of national security and foreign policy.” This Court agrees with Defendants that Lanuza conflicts with Hernandez and Egbert and therefore does not consider that decision in its analysis. See Sheikh, 2022 WL 16964105, at *5 (concluding that Lanuza has been implicitly overruled).
Even if national security concerns were not present, there would be other factors that counsel against an extension of Bivens. Allowing claims against ICE officers may have systemwide consequences for ICE's mandate to investigate immigration violations, “and uncertainty about these consequences provides a reason not to imply such a cause of action.” Mejia, 61 F.4th at 668 (citing Egbert, 142 S.Ct. at 1803-04).
“Second, ‘if there are alternative remedial structures in place, ‘that alone,' like any special factor, is reason enough to ‘limit the power of the Judiciary to infer a new Bivens cause of action.'” Pettibone, 59 F.4th at 456 (quoting Egbert, 142 S.Ct. at 1804). Plaintiff had administrative remedies for her claims, which were explained to her after her arrest. See NOL Ex. F at 65 (32:6-16), ECF 116-1; 8 C.F.R. § 287.10(b) (INA regulation providing that “[a]ny persons wishing to lodge a complaint pertaining to violations of enforcement standards” may do so by “contacting the Department of Homeland Security ....”). The existence of these administrative remedies, even if they would have “provided little redress to [Plaintiff] personally, weigh against extending Bivens here.” Sheikh, 2022 WL 16964105, at *5 (noting that § 287.10 “was pointed to by the Supreme Court in Egbert as an available remedy that foreclosed a Bivens action against Border Patrol agents employed by [DHS].”). Accordingly, the existence of alternative remedies is another reason Congress is arguably better equipped to fashion a damages remedy for Plaintiff's claims against Defendants. Plaintiff therefore cannot pursue a Bivens action against the federal officers named in this case.
Whether Plaintiff actually pursued those remedies-or whether Defendants obstructed Plaintiff's ability to access them-is immaterial: “So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy.” Egbert, 142 S.Ct. at 1807.
Defendants also argue that Plaintiff's damages remedy under the Federal Tort Claims Act, 28 U.S.C. § 2674, were a sufficient alternative remedy. Def.'s Suppl. Br, 3-4, ECF 184. The Supreme Court has held previously held that “FTCA and Bivens remedies were parallel, complementary causes of action.” Wilkie v. Robbins, 551 U.S. 537, 553 (2007). Although defendants are correct the Supreme Court's recent decisions cast doubt on that holding, this Court is in no position to reject it absent clear guidance from the Ninth Circuit or the Supreme Court.
RECOMMENDATION
Defendants' Motion for Summary Judgment, ECF 116, should be GRANTED.
SCHEDULING ORDER
The Amended Findings and Recommendation will be referred to Judge Immergut. Supplemental objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. The parties are advised that they do not need to resubmit their previously filed objections and responses, ECF 174, 177, 180, 181, 184, or restate the arguments contained therein. If no supplemental objections are filed, then the Findings and Recommendation will go under advisement in fourteen days.
These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.