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Linlor v. Polson

United States District Court, E.D. Virginia, Alexandria Division

July 11, 2017

CAPTAIN JAMES LINLOR, Plaintiff,
v.
MICHAEL POLSON, Defendant.

          MEMORANDUM OPINION.

          JAMES C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.

         Plaintiff 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. 388 (1971).

         The 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 Court.

         I. Background

         Pared 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. Id.

         Plaintiff 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.

         Plaintiff 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.

         On May 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].

         II. Legal Standard

         In 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 Cir. 2015).

         In 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)).

         III. Analysis

         Defendant 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 turn.

         A. The Availability of a Bivens Remedy

         By 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.

         Since 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.

         Against 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).

         Moreover, “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).

         1. Whether This Case Presents a New Context

         The 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.”).

         As the 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 ...


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