Newman v. United States of America et al

Filing 58

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS by Judge William Alsup [granting in part and denying in part 47 Motion to Dismiss]. (whasec, COURT STAFF) (Filed on 10/16/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JEREMY NEWMAN,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 16-06477 WHA

v.
UNITED STATES OF AMERICA,
and ONASSIS BATISTA,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

Defendants.
/

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INTRODUCTION
Plaintiff alleges violations of constitutional rights by a United States Park Police officer

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and federal tort claims against the government. Defendants move to dismiss. For the reasons

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herein, the motion is GRANTED IN PART and DENIED IN PART.

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STATEMENT
In November 2014, plaintiff Jeremy Newman was leaving an event at Herbst Pavilion

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in San Francisco, when he allegedly saw defendant Onassis Batista, a United States Park Police

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officer, screaming and cursing at two of his female friends. Newman “took hold” of one of

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the female’s shoulders and walked with her towards the parking lot. Officer Batista allegedly

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followed Newman and the two women, placing his hand on his weapon and “physically

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positioning himself in a threatening manner.” Newman took out his cell phone to video record

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Officer Batista, to which Officer Batista responded by threatening to take Newman to jail.

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As Newman attempted to access the camera on his phone, Officer Batista approached Newman

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and allegedly grabbed his left wrist, placing him in a “pronating wrist-lock pain compliance

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hold.” Officer Batista increased the pressure on Newman’s wrist until he finally shoved

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Newman forward and told him to leave the area immediately. None of the other officers in the

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area intervened. As a result of the incident, Newman suffers from pain, tingling, and numbness

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in his left shoulder, elbow, and wrist (Dkt. No. 39 ¶¶ 8–10, 12, 14–15, 19).

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Newman filed his initial complaint in the United States District Court for the Northern

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District of California in November 2016 (Dkt. No. 1). In August 2017, he amended the

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complaint, alleging four claims: (1) violation of the First Amendment against Officer Batista;
(2) violation of the Fourth Amendment against Officer Batista; (3) violation of the Fifth

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For the Northern District of California

United States District Court

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Amendment against Officer Batista, the United States, and the Department of the Interior;

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and (4) violation of the FTCA against the United States (Dkt. No. 39). Defendants now move

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to dismiss certain claims (Dkt. No. 47). Officer Batista moves to dismiss the first and third

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claims pursuant to FRCP 12(b)(6). The United States moves to dismiss all claims against it

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pursuant to FRCP 12(b)(1). Defendants have not moved to dismiss Newman’s Fourth

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Amendment claim.

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ANALYSIS

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1.

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FRCP 12(b)(1).
A.

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FTCA Claim.

Defendants United States and United States Department of the Interior first move to

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dismiss Newman’s FTCA claim for lack of subject-matter jurisdiction. The FTCA “provides

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a waiver of sovereign immunity for tortious acts of an agency’s employees [] if such torts

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committed in the employ of a private person would have given rise to liability under state law.”

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Pereira v. U.S. Postal Serv., 964 F.2d 873, 876 (9th Cir. 1992). Thus, to establish jurisdiction

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under the FTCA, Newman must show that the government’s actions, if committed by a private

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party, would constitute a tort in California. Love v. United States, 60 F.3d 642, 644 (9th Cir.

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1995).

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Defendants argue that Newman predicates his FTCA claim solely on constitutional

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violations as opposed to state-law torts, and therefore his claim cannot proceed as pled

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(Dkt. No. 47 at 23). Defendants acknowledge that Newman’s claim “references assault and

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battery,” but argue that this reference is “worded in the conditional and does not contain a

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declarative or complete sentence, much less a coherent theory of legal liability” (ibid.).

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Newman, on the other hand, argues that he has sufficiently stated the elements of

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assault, which is all that is required to support an FTCA claim (Dkt. No. 52 at 12). Newman is

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correct.

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Our court of appeals disregards the plaintiff’s characterization of the claim for relief
for purposes of determining whether the alleged conduct falls within the scope of the FTCA,

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For the Northern District of California

United States District Court

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instead “focus[ing its] inquiry on the conduct upon which plaintiff’s claim is based.”

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Sheehan v. U.S., 896 F.2d 1168, 1171 (9th Cir. 1990). In other words, it is not determinative

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that a plaintiff names a particular tort underlying his FTCA claim, so long as he asserts the

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factual predicate for an actionable FTCA violation.

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Here, Newman’s factual allegations state a claim for assault under California law.

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Specifically, Newman alleges, “As [he] proceeded to attempt to access the camera on his

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phone, Officer Batista quickly approached him, forcefully grabbing his left wrist, placing

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[Newman] in a pronating wrist-lock pain compliance hold” (Dkt. No. 39 ¶ 12); see Brooks v.

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United States, 29 F.Supp.2d 613, 617 (N.D. Cal. 1998) (Judge Delwen Jensen) (stating

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elements of assault). Officer Batista’s alleged conduct clearly sounds in tort under California

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law, despite Newman failing to name the specific state law cause of action. Defendants’

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motion to dismiss under FRCP 12(b)(1) for lack of jurisdiction is therefore DENIED.

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B.

FIFTH AMENDMENT CLAIM.

Defendants United States and United States Department of the Interior next move to

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dismiss Newman’s Fifth Amendment claim for lack of subject-matter jurisdiction, on grounds

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of sovereign immunity. Newman does not oppose defendants’ motion to dismiss this claim.

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Accordingly, Newman’s claims under the Fifth Amendment against the United States
and the Department of the Interior are DISMISSED.
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FRCP 12(B)(6).
A.

EXCESSIVE FORCE ANALYZED
UNDER FOURTH AMENDMENT.

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Newman’s Fifth Amendment claim against Officer Batista also fails as a matter of law.
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Although Bivens-type remedies have been allowed in certain cases for Fifth Amendment
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violations, “all claims that law enforcement officers have used excessive force [] in the course
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of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under
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the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due
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process’ approach.” Graham v. Connor, 490 U.S. 386, 395 (1989). Newman’s due process
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claim relies on the same factual allegations which underlie his Fourth Amendment claim.
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rights by, without warning or provocation, forcefully placing [Newman] into a pronating
For the Northern District of California

United States District Court

Specifically, Newman claims that Officer Batista “violated [Newman]’s Fifth Amendment
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wrist-lock pain compliance hold with such force he caused permanent damage to [Newman]’s
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shoulder, elbow, and wrist” (Dkt. No. 39 ¶ 55). Because the incident here constitutes a
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“seizure” under the Fourth Amendment, Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968), it will be
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analyzed under this constitutional provision — one of Newman’s two remaining claims —
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rather than under the Fifth Amendment. Newman’s Fifth Amendment claim against Officer
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Batista is therefore DISMISSED.
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B.

NO FIRST AMENDMENT CLAIM UNDER BIVENS.

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Officer Batista moves to dismiss Newman’s First Amendment claim on the ground that
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Bivens remedies do not extend to First Amendment claims.
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The Supreme Court has made clear that “expanding the Bivens remedy is now a
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disfavored judicial activity,” and has “consistently refused to extend Bivens to any new context
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or new category of defendants.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017). Abbasi sets
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forth a two-part test to determine whether a Bivens claim may proceed. A district court must
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first consider whether the claim presents a new context from previously established Bivens
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remedies. If so, it must then apply a “special factors” analysis to determine whether “special
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factors counsel hesitation” in expanding Bivens absent affirmative action by Congress.
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Id. at 1857, 1875.
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“If [a] case is different in a meaningful way from previous Bivens cases decided by [the

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Supreme Court], the context is new.” Id. at 1859. Abbasi lays out several circumstances under

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which a case will present a “new context” including cases that implicate a different

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constitutional right from those previously recognized by the Supreme Court as a predicate for a

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Bivens claim. This is such a case. To date, the Supreme Court has only recognized a Bivens

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remedy in the context of the Fourth, Fifth, and Eighth Amendments. See Bivens v. Six Unknown

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Named Agents, 403 U.S. 388 (1971); Davis v. Passman, 442 U.S. 228 (1979); Carlson v.

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Green, 446 U.S. 14 (1980).

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Newman’s arguments to the contrary are unpersuasive. Although the Court has
discussed the burden upon a plaintiff to show probable cause in a Bivens First Amendment

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For the Northern District of California

United States District Court

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retaliatory-prosecution action, see Hartman v. Moore, 547 U.S. 250 (2006), the only time it

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squarely addressed whether to extend Bivens to a First Amendment context, it declined to do so.

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See Bush v. Lucas, 462 U.S. 367 (1983).*

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Moreover, these decisions are of little persuasive value in light of the more recent

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Abbasi decision, in which the Court unequivocally declared that Bivens, Davis, and Carlson

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“represent the only instances in which the Court has approved of an implied damages remedy

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under the Constitution itself.” Abbasi, 137 S.Ct. at 1855.

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Although our court of appeals has gone against the federal government and joined other

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circuits in authorizing Bivens claims based on the First Amendment, see Gibson v. U.S.,

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781 F.2d 1334 (9th Cir. 1986), Abbasi draws into question whether it is still prudent to do so.

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Here, Newman’s First Amendment claim presents a new context in Bivens and requires

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the court to consider whether there are special factors counseling against extension of Bivens

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into this area. This requires the court to assess the impact on governmental operations

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system-wide, including the burdens on government employees who are sued personally, as well

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as the projected costs and consequences to the government itself. Abbasi, 137 S.Ct. at 1858.

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* In Iqbal, the Court assumed arguendo that a First Amendment claim was actionable under Bivens for
purposes of discussing the necessary elements a plaintiff must plead in order to state a claim of unconstitutional
discrimination against officials entitled to raise the defense of qualified immunity. Ashcroft v. Iqbal, 556 U.S.
662, 1948 (2009).

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This case may not be a good vehicle for deciding the extent to which federal officers

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should be individually liable for alleged First Amendment violations because Newman’s

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Fourth Amendment Bivens claim — which is predicated upon the exact same conduct as his

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First Amendment claim — will adequately vindicate the Bill of Rights. In the event

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Newman’s Fourth Amendment claim loses, then we return to the question of whether or not

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his First Amendment claim should be allowed in this new context.

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CONCLUSION
Defendants’ motion to dismiss is GRANTED IN PART and DENIED IN PART. Defendants’

the Department of the Interior is GRANTED. Defendants’ motion to dismiss the FTCA claim

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For the Northern District of California

motion to dismiss the Fifth Amendment claims against Officer Batista, the United States, and

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United States District Court

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against the United States is DENIED. Defendants’ motion to dismiss the First Amendment claim

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against Officer Batista is DENIED for now without prejudice to subsequent motion practice.

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IT IS SO ORDERED.

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Dated: October 16, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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