United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
pro se James Linlor alleges that Defendant Michael
Polson struck him in the groin during an airport security
screening. He contends that this constituted an excessive use
of force under the Fourth Amendment and seeks to recover
damages from Defendant pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S.
case is before the Court now on Defendant's Motion to
Dismiss [Dkt. 25] and Motion for Leave to File DVD with Clerk
of Court [Dkt. 29]. For the reasons that follow, the Court
will deny Defendant's Motion to Dismiss and grant
Defendant's Motion for Leave to File DVD with Clerk of
of irrelevancies and invectives, the facts set forth in
Plaintiff's Amended Complaint are straightforward. On
March 10, 2016, Plaintiff travelled through Washington Dulles
International Airport. See Am. Compl. [Dkt. 12] at
15. Plaintiff encountered Defendant, a Transportation
Security Officer, while attempting to pass through airport
security. See Id. Defendant instructed Plaintiff to
surrender certain documents Plaintiff had on his person
before passing through the airport's screening equipment.
Id. Plaintiff refused and was therefore required to
submit to a manual pat down conducted by Defendant.
stepped onto the rug reserved for that purpose, placing his
feet in the footprint outlines. See Id. at 16.
Defendant then instructed Plaintiff to widen his stance
unnecessarily. See Id. At that point, while
Plaintiff was vulnerable, Defendant “rammed his hand
into the genitals of the Plaintiff, causing the Plaintiff to
bend over and step away in pain.” Id.
Plaintiff alleges that Defendant took this action out of
anger, either intentionally or recklessly, and that Defendant
subsequently laughed and refused to apologize. See
id. Police were summoned after Plaintiff complained of
“aggravated sexual battery, ” but the police
officers refused to take any action against Defendant.
Id. at 16-17. Defendant's coworkers stone-walled
Plaintiff when he attempted to gather the names of witnesses.
Id. at 17.
submitted an administrative claim to the TSA contesting his
treatment, but did so using a pseudonym. Id. at 18.
Because Plaintiff did not provide his true name, the TSA
refused to process his claim. Id. Plaintiff
subsequently filed suit in this Court, again employing a
pseudonym. The Court, however, found that pseudonymous
litigation was not warranted by the facts of the case.
Accordingly, the Court ordered Plaintiff to file an amended
complaint including his true name, and Plaintiff complied.
10, 2015, Defendant filed the instant Motion to Dismiss for
Failure to State a Claim [Dkt. 25]. Defendant also submitted
a DVD containing security camera footage of the incident
giving rise to this lawsuit along with a Motion for Leave to
File DVD with Clerk of Court [Dkt. 29].
order to survive a motion to dismiss brought under Federal
Rule of Civil Procedure 12(b)(6), a complaint must set forth
“a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is facially plausible “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). When reviewing a motion
brought under Rule 12(b)(6), the Court “must accept as
true all of the factual allegations contained in the
complaint, ” drawing “all reasonable
inferences” in the plaintiff's favor. E.I. du
Pont de Nemours & Co., 637 F.3d at 440 (citations
omitted). “[T]he court ‘need not accept the
[plaintiff's] legal conclusions drawn from the facts,
' nor need it ‘accept as true unwarranted
inferences, unreasonable conclusions, or
arguments.'” Wahi v. Charleston Area Med. Ctr.,
Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting
Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4th
Cir.2006)) (alterations in original). Generally, courts may
not look beyond the four corners of the complaint in
evaluating a Rule 12(b)(6) motion. See Goldfarb v. Mayor
& City Council of Baltimore, 791 F.3d 500, 508 (4th
evaluating Defendant's Motion, the Court is mindful that
Plaintiff is proceeding in this matter pro se. 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) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
argues that Plaintiff's Amended Complaint must be
dismissed because (1) there is no Bivens remedy
available in this context and (2) Defendant is entitled to
qualified immunity. The Court addresses these arguments in
The Availability of a Bivens Remedy
itself, “[t]he Constitution does not ordinarily provide
a private right of action for constitutional violations by
federal officials.” Big Cats of Serenity Springs,
Inc. v. Rhodes, 843 F.3d 853, 859 (10th Cir. 2016). The
Supreme Court, however, held in Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S.
388, 389 (1971), that “violation of [the Fourth
Amendment] by a federal agent . . . gives rise to a cause of
action for damages” directly under the Constitution,
without the need for a congressionally created remedy.
then, Bivens has been applied sparingly, as the
Supreme Court has “responded cautiously to suggestions
that Bivens remedies be extended into new
contexts.” Schweiker v. Chilicky, 487 U.S.
412, 421 (1988). The Court has made clear that no
Bivens remedy should be implied where “any
alternative, existing process for protecting the interest [at
issue] amounts to a convincing reason for the Judicial Branch
to refrain from providing a new and freestanding remedy in
damages.” Wilkie v. Robbins, 551 U.S. 537, 550
(2007). Bivens relief is further limited to
situations in which “no special factors counsel[ ]
hesitation.” Bivens, 403 U.S. at 396.
this backdrop, “[i]t is clear that expansion of a
Bivens-based cause of action . . . is the exception,
not the rule.” Cioca v. Rumsfeld, 720 F.3d
505, 510 (4th Cir. 2013). Indeed, as is often observed, since
Bivens the Supreme Court has only twice implied
similar remedies in new contexts. See Davis v.
Passman, 442 U.S. 228 (1979) (finding a Bivens
remedy for violation of the Due Process Clause of the Fifth
Amendment); Carlson v. Green, 446 U.S. 14 (1980)
(finding a Bivens remedy for violation of the Cruel
and Unusual Punishment Clause of the Eighth Amendment).
“Bivens actions are not recognized Amendment
by Amendment in a wholesale fashion” but “are
context-specific.” Wilson v. Libby, 498
F.Supp.2d 74, 86 (D.D.C. 2007), aff'd, 535 F.3d
697 (D.C. Cir. 2008). “For example, a Bivens
action alleging a violation of the Due Process Clause of the
Fifth Amendment may be appropriate in some contexts, but not
in others.” F.D.I.C. v. Meyer, 510 U.S. 471,
484 n.9 (1994). Accordingly, the fact that Plaintiff invokes
the Fourth Amendment - the subject of Bivens itself
- does not end the Court's inquiry as to whether a
Bivens remedy is appropriate here. Cf. De La Paz
v. Coy, 786 F.3d 367, 380 (5th Cir. 2015) (declining to
imply a Bivens remedy for alleged Fourth Amendment
violations by Customs and Border Patrol agents in the course
of civil immigration removal proceedings).
Whether This Case Presents a New Context
Court must first determine whether the case at bar presents a
novel context requiring an extension of Bivens, or
if it instead falls within the ambit of the remedy as it is
already recognized. The Court notes first that
Bivens has long been understood to provide a remedy
for excessive force claims under the Fourth Amendment.
See, e.g., Schultz v. Braga, 455 F.3d 470,
479-80 (4th Cir. 2006). Moreover, other courts have applied
Bivens to airport security screenings by TSA
officials without suggesting that this presents a novel
context. See, e.g., George v. Rehiel, 738
F.3d 562, 568-69 (3d Cir. 2013) (assuming that a
Bivens remedy is available where a TSA officer
violates the Fourth Amendment in connection with an airport
security screening); Corbett v. Transportation Sec.
Admin., 568 F.App'x 690, 697-98 (11th Cir. 2014)
(same); Hernandez v. United States, 34 F.Supp.3d
1168, 1184 (D. Colo. 2014) (same); Mocek v. City of
Albuquerque, No. CIV 11-1009 JB/KBM, 2013 WL 312881, at
*58-63 (D.N.M. Jan. 14, 2013) (same). Most saliently, in
Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013), the
Fourth Circuit held that an individual had plausibly alleged
a First Amendment Bivens claim against TSA officers
in connection with an airport security screening. In so
holding, the Court suggested that the airport setting does
not, in and of itself, insulate federal officers from
constitutional claims. See id. at 393 (“We . .
. are therefore unwilling to relinquish our First Amendment
protections - even in an airport.”).
dissent in Tobey pointed out, however, the Fourth
Circuit only assumed, but did not decide, that a
Bivens remedy would lie in connection with an
airport security screening. See 706 F.3d at 405 n.*
(Wilkinson, J., dissenting). Accordingly, Tobey does
not resolve the issue now before the Court. See De La
Paz, 786 F.3d at ...