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finding that excessive force claims against Deputy U.S. Marshals by a pretrial detainee leaving a courtroom involve "facts that are materially different from those addressed in Bivens, Davis, and Carlson"
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C. A. 4:20-4298-JFA-TER
01-09-2023
Jamarv Paremore Hammond, a/k/a Jamarv P. Hammond, Plaintiff, v. Two Unknown Named Agents of the United States Marshals Service, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed pro se by Jamarv Paremore Hammond (“Hammond/Plaintiff”). Hammond, a former federal pretrial detainee, now convicted, is currently housed at the U.S.P. Big Sandy, Inez, Kentucky. Hammond filed this action on December 11, 2020, while a federal pretrial detainee housed at the Sheriff Al Cannon Detention Center in South Carolina, alleging a violation of his constitutional rights. He alleges claims of excessive force and failure to protect by two unknown named agents of the United States Marshals Service on or about December 5, 2018. This matter is currently before the court on Defendants' motion to dismiss Unknown Agents of the United States Marshal Service. (ECF No. 65). As the Plaintiff is proceeding pro se, the court issued an order on or about June 1, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion to dismiss procedure and the possible consequences if he failed to respond adequately. After being granted three extensions to file a response to the Defendants' motion to dismiss, Plaintiff failed to file a response.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d),DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the District Judge.
STANDARD FOR MOTION TO DISMISS
Defendants seek dismissal of Plaintiff's claims pursuant to Rule 12(b)(6). Fed.R.Civ.P. A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:
[T]he pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” 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 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003). The court may consider documents attached to a complaint or motion to dismiss “so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir.2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n. 1 (4th Cir.2006)).
DISCUSSION
ALLEGATIONS
Plaintiff commenced this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), seeking money damages against the Defendants based on allegations of excessive force and failure to protect. Specifically, Plaintiff alleges that after exiting the federal courthouse in Charleston, South Carolina, where he was attending a pretrial bar meeting involving federal charges, he was assaulted by an agent of the United States Marshals Service. Plaintiff alleges that deputy U.S. Marshal #1 became irritated with him for speaking with his counsel after the bar meeting and “. . . gave the Plaintiff a subtle shove which almost caused the Plaintiff to trip on the steps leading from the juror box to the outside of courtroom.” (Id. at 8). Deputy U.S. Marshal #2 escorted Plaintiff and another defendant into a hallway to go to the courthouse's holding cell when deputy U.S. Marshal #1 entered through another door into the hallway and “violently shoved [Plaintiff] on an unlawful assault.” (ECF 1 at 9). Plaintiff avers that Deputy U.S. Marshal #2 did not intervene to protect him. (Id.). Deputy U.S. Marshal #1 then began to verbally assault him and “violently slammed [him] into a solid metal door face and shoulder first” while wearing restraints. Plaintiff asserts that Deputy U.S. Marshal #2 again did nothing to intervene. (Id.). Plaintiff alleges that he received “extensive damage to his face, his mandible and his rotator cuff.” Id. at 12. Plaintiff contends that approximately ten minutes later, Deputy U.S. Marshal #2 came to the holding cell and provided an apology to the Plaintiff stating that the agent had simply ‘lost his cool.'” (Id.). Plaintiff seeks monetary damages.
Defendants filed a motion to dismiss arguing, among other things, that the law does not recognize a claim for damages under the theory in this case.
AVAILABILITY OF A BIVENS
The Supreme Court held for the first time in Bivens that the plaintiff had an implied cause of action under the Fourth Amendment that entitled him to sue federal officials for money damages arising from an unreasonable search and seizure by agents of the Federal Bureau of Narcotics. After Bivens, the Court in Davis v. Passman, 442 U.S. 228 (1979), held that the plaintiff, a former congressional assistant, was allowed a claim for money damages alleging a claim against her employer, a member of Congress, for termination of her employment on the basis of her sex in violation of the equal protection component of the Fifth Amendment's Due Process Clause. Third, the Court in Carlson v. Green, 446 U.S. 14 (1980), allowed a claim under the Eighth Amendment for money damages by an inmate's estate against federal prison officials who allegedly acted with deliberate indifference in failing to treat the inmate's asthma, leading to his death. The Supreme Court has not recognized a Bivens claim outside of Bivens, Davis, and Carlson.
As the Fourth Circuit recently noted:
. . . in the 42 years following Carlson, which was decided in 1980, the Court has “consistently rebuffed” every request - 12 of them now - to find implied causes of action against federal officials for money damages under the Constitution. Hernandez v. Mesa,___ U.S.___, 140 S.Ct. at 735, 743, 206 L.Ed.2d 29 (2020); see also Egbert v. Boule,___ U.S.___, 142 S.Ct. 1793, 1799, 213 L.Ed.2d 54 (2022). And in the last 5 years in particular, it has handed down a trilogy of opinions not only expressing regret over its Bivens cases but also demonstrating hostility to any expansion of them. See Ziglar v. Abbasi,___U.S.___, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017) (noting that “expanding the Bivens remedy is now a disfavored judicial activity” (cleaned up)); Hernandez, 140 S.Ct. at 742-43 (noting that if its “three “Bivens cases
had been decided today, it is doubtful that we would have reached the same result” (cleaned up)); Egbert, 142 S.Ct. at 1802 (noting, “Now long past the heady days in which this Court assumed common-law powers to create causes of action [as in Bivens], we have come to appreciate more fully the tension between judicially created causes of action and the Constitution's separation of legislative and judicial power” (cleaned up)). And the Court's recent admonitions are clear: “[T]he Judiciary's authority to [create causes of action under the Constitution] is, at best, uncertain,” Egbert, 142 S.Ct. at 1803; courts must beware of “arrogating legislative power,” Hernandez, 140 S.Ct. at 741; and “our watchword is caution,” Id. at 742; Egbert, 142 S.Ct. at 1803.Tate v. Harmon, 54 F.4th 839, 843-44 (4th Cir. 2022).
While the Supreme court has not overruled any of the three Bivens cases, the Court “imposed a highly restrictive analysis for Bivens cases by (1) narrowing the precedential scope of Bivens, Davis, and Carlson and (2) imposing a broad standard of criteria that, if satisfied, require courts to reject any expansion of Bivens remedies.” Tate, 54 F.4th at 844. As a result, the Supreme Court has prescribed “a two step inquiry.” Hernandez, 140 S.Ct. at 743. First, a court must determine whether a claim falls within the causes of action authorized under the Supreme Court's three Bivens cases or whether it “arises in a ‘new context' or involves a ‘new category of defendants.' ” Hernandez, 140 S.Ct. at 743 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001)). The Court explained that its “understanding of a ‘new context' is broad,” thus requiring the scope of the existing Bivens causes of action to be construed narrowly. Id. A context is new, the Court explained, when it is “different in a meaningful way from previous Bivens cases decided by [the] Court.” Ziglar, 137 S.Ct. at 1859.
If the court concludes that a claim arises in a “new context,” the second step must be analyzed to ask whether there are “any special factors that counsel hesitation about granting the extension” of Bivens. Tate, 54 F.4th at 844 (quoting Hernandez, 140 S.Ct. at 743 (cleaned up)). Quoting Egbert v. Boule, 142 S.Ct. 1793, 1803 (2022), the Fourth Circuit recognized:
While our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.Tate, 54 F.4th at 848.
We must construe “new context” broadly. Tate, 54 F.4th at 846. A single fact distinguishing a case from Bivens, Davis, and Carlson, potentially can create a “new context.” Id. A non-exhaustive list of special factors noted by the Supreme Court includes:
(1) ‘uncertainty alone' as to whether allowing a Bivens claim would have systemic consequences; (2) a ‘new category of defendants'; (3) a difference as small as the ‘rank of the officers involved'; (4) the ‘statutory or other legal mandate under which the officer was operating'; (5) a ‘potential effect on foreign relations' and ‘national security'; (6) Congress's ‘repeatedly declin[ing] to authorize the award of damages' in the relevant context; and (7) the risk that ‘ the burden and demand of litigation would prevent Executive officials ‘from devoting the time
and effort required for the proper discharge of their duties.'Id. at 846 (internal citations omitted).
As set forth above, this case involves facts that are materially different from those addressed in Bivens, Davis, and Carlson. For this reason alone, an extension of Bivens is not appropriate and summary judgment should be granted. Nonetheless, as discussed below, special factors further support disallowing this claim.
Special factors analysis focuses on “separation -of-power principles.” Tate, 54 F.4th at 844 (quoting Zigler, 137 S.Ct. at 1857).
Here, even if it can be construed that Plaintiff is attempting to raise an FTCA claim, it would fail. Even if Plaintiff named the appropriate party as a defendant for an FTCA claim, he has failed to exhaust his administrative remedies before filing suit, and it would be untimely. It is also noted that the FTCA expressly exempts from the waiver of sovereign immunity the intentional tort of “assault,” as well as claims “arising out of” an alleged assault. 28 U.S.C. § 2680(h); see also Harms v. United States, No. 91-2627, 1992 WL 203942, at *4-5 (4th Cir. Aug. 24, 1992); Taylor v. Thornton, No. 8:22-CV-01557-PX, 2022 WL 11183453, at *4 (D. Md. Oct. 19, 2022).
Excessive force claims between Deputy United States Marshals and pre-trial detainees clearly involves “systemic levels potentially affecting not only the scope of their responsibilities and duties but also their administrative and economic decisions.” See Tate 54 F.4th at 846. Federal law enforcement officers often must make split-second decision in rapidly changing circumstances when administering their duties. In Egbert, the Supreme Court held that “Recognizing any new Bivens action ‘entail[s] substantial social costs, including the risk that fear of personal monetary liability and harassing litigation, will unduly inhibit officials in the discharge of their duties.'” Egbert, 142 S.Ct. at 1807 (quoting Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)); See, e.g., Graham v. Connor, 490 U.S. 386, 39697 (1989) (. . . “recognizing the fact that the officer may be ‘forced to make split-second judgements' in situations ‘that are tense, uncertain, and rapidly involving.'”). Potential liability for how pre-trial detainees are handled is a matter best left to Congress. Additionally, as recognized in footnote 3, an alternative remedy possibly exists under the FTCA.
As set forth in Egbert, the court should not imply an extension of Bivens if “there is any rational reason to think that Congress is better suited to ‘weigh the cost and benefits of allowing a damages action to proceed.'” Egbert, 142 S.Ct. at 1805. If there is uncertainty whether Congress might doubt the efficacy or necessity of a damages remedy under a given set of circumstances, it is not for the courts to create that remedy. See Tate, 54 F.4th at 845 (citing Zigler, 137 S.Ct. at 1858; Egbert, 142 S.Ct. At 1804).
In Tate, supra, a federal prisoner brought a Bivens action against the Bureau of Prisons (BOP) employees and officials alleging the conditions in the special housing unit to which he was sent were so degrading and detrimental that they amounted to cruel and unusual punishment, in violation of the Eighth Amendment. The court held that the prisoner's Bivens claim arose in a new context, and special factors counseled against extending Bivens remedy to federal prisoner's claim.
The Fourth Circuit cautioned about extending Bivens stating:
Against this now critical condition of Bivens jurisprudence and the caution that the Court has mandated when applying it, courts are clearly warned to act with utmost hesitation when faced with actions that do not fall precisely under Bivens, Davis, or Carlson. And we have so proceeded. See, e.g., Annappareddy v. Pascale, 996 F.3d 120 (4th Cir. 2021) (rejecting a requested extension of Bivens to claims of wrongdoing by prosecutors and criminal investigators, allegedly in violation of the Fourth and Fifth Amendments); Earle v. Shreves, 990 F.3d 774 (4th Cir. 2021) (rejecting a requested extension of Bivens to claims of wrongful retaliation by prison officials for filing grievances, allegedly in violation of the First Amendment); Tun-Cos v. Perrotte, 922 F.3d 514 (4th Cir. 2019) (rejecting a requested extension of Bivens to claims of wrongful searches and seizures by Immigration and Customs Enforcement agents, allegedly in violation of the Fourth and Fifth Amendments). In short, courts' authority now to create new causes of action for money damages under the Constitution is most limited, for “if there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III.” Ziglar, 137 S.Ct. at 1858. And even “uncertainty alone” in this regard “forecloses relief.” Egbert, 142 S.Ct. at 1804.Tate, 54 F.4th 845.
Here, Plaintiff brings this action alleging claims for excessive force and failure to protect. As set forth above, Plaintiff alleges that one Deputy U.S. Marshal used excessive force on him while at the federal courthouse in Charleston while another U.S. Marshal failed to intervene to protect him. The factual allegations in this case are different from those in Bivens, Davis, and Carlson and special factors counsel against recognizing a claim for damages without guidance from Congress. At best, there is uncertainty here. Thus, Plaintiff's claims for excessive force and failure to protect arise in a “new context.”
“The Supreme Court has instructed not only that ‘new context' must be understood broadly but also that a new context may arise if even one distinguishing fact has the potential to implicate separation-of-powers considerations.” See Tate, 54 F.4th 846, (citing Egbert, 142 S.Ct. at 1805). The court further found that “. . . in Egbert, the Court's most recent Bivens case, the Court recognized a substantial overlap between the factors relevant to whether a purported Bivens claim arose out of a ‘new context' and the special factors that counsel hesitation for any extension, often leading to an analysis that addresses just a single question. As the Court observed:
While our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.Id.
Since this court finds that Plaintiff has presented no cognizable claim for damages, the remaining arguments by Defendants need not be addressed.
RECOMMENDATION
Based on the above reasoning, it is RECOMMENDED that the motion to dismiss (ECF No. 65) be granted and this action be dismissed. Further, if the District Judge agrees and adopts this report and recommendation, it is recommended that any outstanding motions be deemed moot.
Plaintiff's attention is directed to the important notice on the next page.