Elhady v. Unidentified CBP Agents
Filing
46
OPINION AND ORDER Denying Defendants' Motion to Dismiss (Dkt. 41 .) (Answer due by 3/15/2019.) Signed by District Judge Mark A. Goldsmith. (MacKay, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANAS ELHADY,
Plaintiff,
Case No. 17-cv-12969
v.
HON. MARK A. GOLDSMITH
MATTHEW PEW, et al,
Defendants,
_____________________________________/
OPINION & ORDER
DENYING DEFENDANTS’ MOTION TO DISMISS (Dkt. 41)
This matter is before the Court on Defendants’ motion to dismiss. The issues have been
fully briefed. Because oral argument will not aid the decisional process, the motion will be decided
based on the parties’ briefing. See E.D. Mich. LR 7.1(f)(2); Fed. R. Civ. P. 78(b). For the reasons
that follow, the Court denies the motion.
I. BACKGROUND
The facts in this section are taken from Plaintiff Anas Elhady’s Second Amended
Complaint. Elhady brings a claim under Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971), alleging violations of the Fifth and Eighth Amendments by
Customs and Border Protection (“CBP”) officers. Elhady is a United States citizen and Muslim
living in Wayne County. 2d Am. Compl. ¶ 8 (Dkt. 27). Defendants are officers or agents of CBP.
See id. ¶¶ 9-18.
Elhady alleges that he crossed through the Detroit-Windsor port of entry on April 10, 2015.
2d Am. Compl. ¶ 19. As he was crossing into Canada earlier that day, the Canadian inspection
1
officer had stopped Elhady, questioned him, and asked him to provide the time he expected to
cross back into the United States. Id. ¶ 20. Elhady told the Canadian officer that he would be
returning to the United States around midnight, which he ultimately did. Id. ¶¶ 21-24.
When Elhady approached the primary inspection booth to return to the United States, he
handed Defendant Pew his documents; Pew immediately demanded that Elhady place his hands
on the steering wheel, called for backup, and referred him to secondary inspection. Id. ¶¶ 25-26.
Defendants then surrounded Elhady’s car, ordered him out of the vehicle, and handcuffed him. Id.
¶¶ 27-28. Defendants took Elhady’s jacket and shoes, then confined him in isolation in a small,
freezing-cold holding cell with excessively bright lights for at least four hours. Id. ¶ 29. Elhady
contends that he was subjected to extreme sensory deprivation, psychological torture, and
isolation. Id. ¶ 31. After several hours, Elhady knocked on the door repeatedly and requested
medical treatment. Id. ¶ 32. Defendants ignored his pleas for help. Id. ¶ 33.
Elhady’s body began shaking uncontrollably, and he felt that he was going to die. Id. ¶¶
34-35. After several hours, he suffered from hypothermia and fell unconscious. Id. ¶ 36.
Defendants reentered the room while Elhady was unconscious; they woke him up and demanded
he stand, which Elhady was unable to do. Id. ¶¶ 37-38. Elhady repeatedly begged for an
ambulance, but his requests were ignored. Id. ¶ 39. He contends that he suffered from dehydration,
shock, and hypothermia as a result of the conditions of his confinement. Id. ¶ 40.
At some later point, Elhady was taken to an ambulance. Id. ¶ 41. Defendants Kehr and
Rocky handcuffed him in the ambulance at the instruction of Defendants Iverson and Lapsley;
Kehr and Rocky accompanied him to the hospital. Id. ¶ 42. Upon admission to the hospital, a
nurse asked Elhady why his lips were blue. Id. ¶ 45. After receiving treatment and medication,
2
Elhady was transported back to the Ambassador Bridge. Id. ¶ 47. At no point did Defendants find
any contraband or evidence indicating illegal activity. Id. ¶ 48.
II. STANDARD OF REVIEW
On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “[t]he
defendant has the burden of showing that the plaintiff has failed to state a claim for relief.” Directv,
Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451, 454-455
(6th Cir. 1991)), cert. denied, 552 U.S. 1311 (2008). To survive a Rule 12(b)(6) motion, the
plaintiff must allege sufficient facts to state a claim to relief above the speculative level, such that
it is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility
standard requires courts to accept the alleged facts as true, even when their truth is doubtful, and
to make all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Twombly, 550 U.S. at 555-556.
Evaluating a complaint’s plausibility is a “context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Although a
complaint that offers no more than “labels and conclusions,” a “formulaic recitation of the
elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement”
will not suffice, id. at 678, it need not contain “detailed factual allegations,” Twombly, 550 U.S.
at 555; see also Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“[S]pecific facts are not necessary . .
. .”). Rather, a complaint needs only enough facts to suggest that discovery may reveal evidence
of illegality, even if the likelihood of finding such evidence is remote. Twombly, 550 U.S. at 556.
III. ANALYSIS
Defendants raise several arguments. First, they argue that Elhady’s claims are time-barred
and that he is not entitled to equitable tolling. Next, they argue that Elhady has failed to state a
3
due process claim. Finally, they argue that Elhady has not sufficiently pled a Bivens claim, both
because he did not allege any action by any defendant that deprived him of a constitutional right
and because the Court should not create a Bivens cause of action for conditions of confinement
under the Fifth Amendment. The Court addresses each argument in turn.
A. Statute of Limitations and Equitable Tolling
Elhady does not contest that the statute of limitations expired before he filed his second
amended complaint, which first listed the names of the individual Defendants. Thus, this claim is
time-barred under Michigan’s three-year statute of limitations unless Elhady is entitled to equitable
tolling. See Harris v. United States, 422 F.3d 322, 331 (6th Cir. 2005) (noting that the local statute
of limitations applies to Bivens claims); Mich. Comp. Laws § 600.5805(2) (setting a three-year
period of limitations for death or injury actions to recover damages).
The Sixth Circuit has identified five factors to consider when determining whether
equitable tolling is appropriate: “(1) lack of actual notice . . .; (2) lack of constructive knowledge
. . .; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the defendant; and (5)
plaintiff’s reasonableness in remaining ignorant of the notice requirement.” EEOC v. Kentucky
State Police Dep’t, 80 F.3d 1086, 1094 (6th Cir. 1996). The first, second, and fifth elements are
not relevant here, as Elhady acknowledges that he was aware of the necessary requirements to
proceed.
Elhady cites a case that has many similarities to his own, Olmstead v. Fentress Cty., TN,
No. 16-46, 2017 WL 4176256 (M.D. Tenn. Sept. 21, 2017). In that case, the plaintiff asked the
court to allow early discovery immediately upon filing the complaint and before the statute of
limitations had expired. Olmstead’s claim accrued on July 20, 2015, and he filed the complaint
on June 23, 2016 – just one month before the one-year statute of limitations expired. Even though
4
the court did not address the request for early discovery until well after the limitations period
expired, the court allowed equitable tolling because it was “not Olmstead’s fault that the Court did
not address his motion” and because he was working to learn the names of the John Doe defendants
during the Court’s delay. Id. at *6.
Similarly, Elhady filed his suit with some seven months to spare before the statute of
limitations ran, and attempted to procure the names of the John Doe defendants even before filing
a discovery motion with the Court. He served the United States Attorney on September 28, 2017,
and the assigned Assistant United States Attorney did not refuse service until November 21, 2017,
see 11/21/2017 Letter, Ex. A to Pl. Resp. (Dkt. 43-2). The next week, in a separate case in Virginia,
Elhady’s counsel issued document requests to obtain documents related to his border crossing;
CBP produced the relevant documents on January 4, 2018 but redacted the names of the officers
involved, see Pl. Resp. at 5 (Dkt. 43). Elhady’s counsel followed up with an email requesting the
identities of the agents on January 11, 2018, see 1/11/2018 Email, Ex. D to Pl. Resp. (Dkt. 43-5).
The day before that email was sent, the Court had issued a show-cause order for failure to
prosecute, and Elhady responded by filing the motion for limited discovery on January 18, which
was then refiled on January 22 following a strike order. See 1/22/2018 Motion (Dkt. 16).
By January 22, 2018, Elhady had exhausted his ability to personally discover the names of
the John Doe defendants, and it was not his fault that the Court did not resolve the motion before
the statute of limitations expired in early April (more than two months after he filed the motion for
discovery). Although there was some delay between the filing of the complaint and the filing of
the motion for discovery, Elhady was acting diligently during that time to discover the names of
the John Doe defendants. He also allowed the Court more time to rule on his motion than the
plaintiff in Olmstead, who filed his complaint only one month before the statute of limitations
5
expired. Here, Elhady filed the motion more than two months before the limitations period
expired.
The Court in Billups v. Scholl, No. 13-258, 2016 WL 3959062 (S.D. Ohio July 22, 2016),
found similarly in denying a motion for summary judgment. There, the court determined that
summary judgment was not appropriate because a jury could find that the statute of limitations
should be tolled where only the police department “had access to the information regarding the
names of the officers who conducted the stop and Billups repeatedly attempted to obtain
information related to the stop.” Id. at *7. Here too, Elhady attempted to obtain information
related to the border-crossing incident by making discovery requests in the Virginia case and CBP
refused to provide it.
This is not a case where the plaintiff waited until the last hours before filing a relevant
motion, see Farzana K. v. Indiana Dept. of Educ., 473 F.3d 703, 705 (7th Cir. 2007) (“Waiting
until the last hours is not diligent; the errors that often accompany hurried action do not enable the
bungling lawyer to grant himself extra time.”); where the moving party has a history of nondiligent action, see Searcy v. Cty. of Oakland, 735 F. Supp. 2d 759, 769 (E.D. Mich. 2010) (“The
third factor—diligence—weighs decidedly against the plaintiff. He and his attorney have been
late with respect to nearly every significant procedural event in this case.”); or where the plaintiff
failed to file suit before the limitations period expired, despite efforts to find the names of John
Doe defendants within the limitations period, see Brown v. Cuyahoga Cty., Ohio, 517 F. App’x
431, 434 (6th Cir. 2013). For these reasons, the Court finds that Elhady is entitled to equitable
tolling of the statute of limitations.
B. Fifth Amendment Claim
6
Elhady brings a Fifth Amendment claim, as that amendment’s Due Process Clause
prohibits the government from imposing torture or cruel and unusual confinement conditions on
non-convicted detainees. See Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“[U]nder the Due Process
Clause, a detainee may not be punished prior to an adjudication of guilt”). This type of Fifth
Amendment claim is analyzed “under the same rubric as Eighth Amendment claims brought by
prisoners.” Villegas v. Metropolitan Government of Nashville, 709 F. 3d 563, 568 (6th Cir. 2013).
Not every injury suffered while detained constitutes an Eighth Amendment violation; rather, a
plaintiff must show (i) the deprivation alleged is “sufficiently serious,” such that it resulted in “the
denial of ‘the minimal civilized measure of life’s necessities,’” and (ii) the official operated with
“‘deliberate indifference’ to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834
(1994). The latter occurs when a plaintiff shows that an “official knows of and disregards an
excessive risk to inmate health or safety.” Id. at 837.
Defendants concede that a cold cell can constitute an Eighth Amendment violation in some
circumstances, see Def. Mot. at 17, but dispute that this case rises to that level. They cite a variety
of cases that they consider to be worse, but which did not constitute cruel and unusual punishment.
Elhady focuses primarily on two cases in which a violation was found. In Burley v. Miller, 241
F. Supp. 3d 828 (E.D. Mich. 2017), a prisoner survived summary judgment where he alleged that
he was required to stand outside in freezing rain for ten to twelve minutes and then was denied dry
clothing; the court determined that the plaintiff had a Bivens claim for the unconstitutional
deprivation of the basic “human need” of “warmth.” Id. at 839. In Hawk v. Two USM’s Names
Unknown, No. 17-00004, 2017 WL 3261460 (D. Mont. July 10, 2017), the court determined that
a prisoner stated a Bivens claim based on allegations that he was not permitted to use the bathroom
7
for five hours despite repeated requests, eventually causing him to endure severe pain and lay in
his own excrement for several hours.
The court’s opinion in Burley provides a good template for consideration of cold-condition
cases. In that case, the court observed that although the “Supreme Court has held that prison
conditions may be uncomfortable without violating the Eighth Amendment’s prohibition against
cruel and unusual punishment,” the Eighth Amendment does impose “duties on [prison] officials,
who must provide humane conditions of confinement; prison officials must ensure that inmates
receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to
guarantee the safety of the inmates.” Burley, 241 F. Supp. 3d at 836 (internal citations omitted)
(alteration in original). Courts are to consider “[t]he circumstances, nature, and duration of a
deprivation” in evaluating these claims. Id. (internal citations omitted) (alteration in original).
“Some conditions of confinement may establish an Eighth Amendment violation in combination
when each would not do so alone, but only when they have a mutually enforcing effect that
produces the deprivation of a single, identifiable human need such as food, warmth, or exercise—
for example, a low cell temperature at night combined with a failure to issue blankets.” Id. (internal
quotation marks omitted) (emphasis in original). The court went on to analyze a number of cases,
ultimately drawing the conclusion that there exists a “right to be free from exposure to severe
weather and temperatures.” Id. at 839. Notably, the court cited a Seventh Circuit case finding that
frostbite, hypothermia, or a similar infliction is not an “absolute requirement to the inmate’s
challenge” in a cold-conditions case. See Del Raine v. Williford, 32 F.3d 1024, 1035 (7th Cir.
1994).
As noted previously, Elhady primarily relies on two cases. In Burley, the plaintiff alleged
that he was ordered to stand in freezing rain for ten to twelve minutes and was then forced to stay
8
in his wet clothes for another two hours. The plaintiff also had a respiratory condition, which
made him particularly susceptible to harm from exposure to cold conditions, and the defendants
knew of this condition. Burley, 241 F. Supp. 3d at 838-839. The court observed that there was no
penological justification for the defendants’ conduct, and that the defendants’ knowledge of
Burley’s condition showed deliberate indifference to his health. Id. at 838. In Hawk, the Court
considered a Fifth Amendment pre-trial detention claim. See 2017 WL 3261460. The Court found
that Hawk had sufficiently pleaded a Fifth Amendment claim, as “he was kept in a holding cell for
nearly five hours without the ability to use the restroom, he repeatedly requested to use the
restroom, and he was forced to endure severe pain and lay in his own excrement for several hours.”
Id. at *3.
Here, Elhady alleges that he told Canadian border patrol that he expected to return to the
United States around midnight, and that Defendants knew as a result when he expected to cross
back into the country. 2d Am. Compl. ¶¶ 22-24. He alleges that Defendants decreased the
temperature in the holding cell to freezing temperatures prior to his arrival, and took his jacket and
shoes from him before placing him into the cell. Id. ¶¶ 29-30. He asserts that he knocked on the
door repeatedly and begged for medical attention, but that his pleas were ignored. Id. ¶¶ 32-33.
He further alleges that he fell unconscious and suffered from dehydration, shock, and hypothermia
as a result of the conditions in the holding cell. Id. ¶¶ 36-37, 40. He was then taken to a hospital
by Defendants, where a nurse asked him why his lips were blue. Id. ¶¶ 41-45. He was provided
medication before being taken back to the Ambassador Bridge. Id. ¶ 46.
Given the allegations in the complaint, the Court finds that Elhady has sufficiently alleged
a Fifth Amendment claim. Elhady alleges that he was deprived of the basic human need for
warmth to the extent that he suffered hypothermia, satisfying the first prong of the Farmer analysis.
9
The allegations also show deliberate indifference, as Elhady maintains that Defendants
intentionally made the holding cell cold enough to cause harm, and also ignored his requests for
medical attention.
Defendants claim that other cases with more serious circumstances have failed to meet the
standard of deliberate indifference. However, those cases are all distinguishable. In Wells v
Jefferson Cnty. Sheriff Dep’t, 35 F. App’x 142 (6th Cir. 2002), the court addressed, in cursory
fashion, a plaintiff’s claim that his holding cell was cold and regularly sprayed with insecticides,
finding that “his alleged exposure to these conditions for a period of six days does not rise to the
level of a constitutional violation.” Id. at 143. The court also noted that the plaintiff “did not
intend to raise these allegations as a separate claim.” Id. However, according to the district court
opinion in that case, the plaintiff did not suffer any physical harm and did not complain to guards
that his cell was uncomfortable. See Wells v. Jefferson Cnty. Sheriff Dep’t, 159 F. Supp. 2d 1002,
1011 (S.D. Ohio 2001).
In Bean v. Monroe, No. 04-230, 2006 WL 625864 (W.D. Mich. Mar. 9, 2006), the court
dismissed a case brought by a disruptive prisoner who was left in a cold cell without a suicide
observation mat after he had assaulted staff who had previously tried to place the mat. In that case,
however, the court’s decision turned on the behavior of the plaintiff, with the court determining
that the prison staff responded appropriately to that behavior; there is no allegation of bad behavior
by Elhady here.
In Washington v. Burks, No. 04-10352, 2008 WL 8694601 (E.D. Mich. Dec. 17, 2008),
the court found that the plaintiff’s claim that she was deprived of a blanket on one of the coldest
days of the year was not sufficient to survive summary judgment on an Eighth Amendment claim.
See id. at *10. In that case, unlike here, there were no allegations of physical injury. See id.
10
(“Absent evidence that plaintiff suffered a physical injury, deprivation of a mattress, blankets, or
other bedding for a fixed period of time, such deprivation does not violate the Eighth
Amendment.”).
In Leonard v. Knab, No. 10-956, 2010 WL 6463878 (S.D. Ohio Dec. 17, 2010), the court
found that plaintiff failed to “demonstrate that he was exposed to temperatures extreme enough to
constitute cruel and unusual punishment,” because “[b]eyond his conclusory allegations that the
cold temperatures are detrimental to his health, Plaintiff fail[ed to] provide an estimate of the
temperature, its duration, its affect on his health, or whether he [wa]s being denied warmer clothing
or blankets to combat the alleged temperatures.” Id. at *3. In Leonard, the plaintiff only alleged
that he was being subjected to “the detrimental effects of cold temperatures” and that he was “in
grave danger from the conditions.” Id. at *1. Here, in contrast, Elhady has provided more than
just conclusory allegations; he has specifically alleged that he suffered from dehydration, shock,
and hypothermia, and that a nurse observed that his lips were blue when he was admitted to a
hospital.
Finally, in Palmer v. Abdalla, No. 11-503, 2012 WL 4473203 (S.D. Ohio Sept. 26, 2012),
the court found that two days in a cell with no heat in February, leading to numbness in his hands
and feet, was not sufficient to satisfy an Eighth Amendment claim. Id. at *2. This case differs for
two reasons. First, Palmer sued the sheriff only in his official capacity, and there was no indication
of an official policy. Second, Elhady alleges more than just cold conditions; he alleges that he was
placed in a cell that was intentionally made cold.
Because Elhady has satisfied both elements of an Eighth Amendment claim under Farmer,
the Court finds that he has sufficiently pleaded a Fifth Amendment claim.
C. Bivens Claim
11
Defendants also argue that the Bivens aspect of Elhady’s claim must fail for two reasons.
First, Defendants argue that Elhady has not sufficiently pleaded the claim as to individual
Defendants, as the complaint does not allege any specific action by any defendant that deprived
him of a constitutional right. Second, Defendants argue that the Court should not create a Bivens
cause of action for conditions of confinement under the Fifth Amendment.
1. Specific Allegations
Defendants cite Shedden v. United States, 101 F. App’x 114 (6th Cir. 2004), to support
their contention that a failure to allege with specificity what each individual officer did to violate
the constitutional rights of a plaintiff dooms a Bivens claim. In that case, the plaintiff, a federal
prisoner, brought Bivens claims against the Bureau of Prisons, the warden of his prison, the health
services administrator at his prison, and three physician’s assistants at the prison for inadequate
medical care. The Court concluded that “Shedden failed to allege with any degree of specificity
which of the named defendants were personally involved in or responsible for the alleged violation
of his constitutional rights.” See id. at 115. Elhady responds that the Defendants before this Court
now are the individuals who placed him in a cell that they knew was intentionally made freezing
in order to exact punishment on him.
When bringing a Bivens claim, “a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009). Here, Elhady has met that pleading standard. Defendants are
correct that Elhady generally groups them together in recounting their supposedly unconstitutional
conduct. See, e.g., 2d Am. Compl. ¶ 30 (“Upon information and belief, because Defendants knew
that Mr. Elhady intended to return to the United States at or around midnight, they decreased the
temperature in the holding cell to freezing temperatures prior to Mr. Elhady’s arrival.”); id. ¶ 33
12
(“Defendants ignored his pleas for help and denied him medical treatment.”). However, Elhady’s
complaint also specifically alleges that Defendants Bradley, Piraneo, Beckham, Lapsley, Iverson,
Kehr, and Rocky (that is, all Defendants except Pew)1 were “responsible for Plaintiff’s secondary
inspection and confinement conditions.” See generally id. ¶¶ 11-18. Elhady learned of these
Defendants’ alleged roles through the discovery ordered by this Court, and this was the level of
specificity provided by the Government. See Resp. to Interrogs., Ex. B to 2d Am. Compl., at 3-5
(Dkt. 27-2). These allegations are sufficient to show that those Defendants violated Elhady’s
constitutional rights, as they were collectively responsible for the cold conditions of the holding
cell.
Further, even if these allegations would not be sufficient in a typical case, the particular
circumstances of this case make the identity of the specific actors unknowable at this stage of the
litigation. The allegations that give rise to the constitutional claim, specifically the decrease of the
temperature in the holding cell and ignoring Elhady’s calls for help, occurred outside of the
presence of Elhady, and thus it would be impossible for him to know, without the benefit of
discovery, the identities of the specific Defendants who took those actions. Cf. Greeg v. City of
Highland Park, Michigan, 884 F.3d 310, 315-316 (6th Cir. 2018) (“Although damage claims
against government officials arising from alleged violations of constitutional rights must allege,
with particularity, facts that demonstrate what each defendant did to violate the asserted
constitutional right, . . . courts are disinclined to dismiss complaints that fail to allege specific
conduct by each officer when the officers’ actions have made them impossible to identify.”)
(internal quotation marks omitted) (emphasis in original).
1
Elhady also alleged that Defendant Pew was the officer who referred him to secondary inspection.
2d Am. Compl. ¶ 10.
13
Accordingly, the Court finds that the complaint is specific enough as against each
Defendant.
2. Existence of Bivens Claim
Defendants also argue that applying Bivens to these circumstances would constitute an
extension of Bivens. If a Bivens claim arises in a new context, a court must consider whether there
are any “special factors counselling hesitation” in the expansion of Bivens before doing so. Ziglar
v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (internal quotation marks omitted).
a. New Context
Defendants argue that a claim of cruel and unusual conditions of confinement incident to
a border stop and search has never been recognized by the Supreme Court as giving rise to a Bivens
cause of action, and thus that allowing this Fifth Amendment claim to move forward would be an
extension of Bivens. Elhady responds that his claim falls within historical Bivens contexts, as
line-level CBP agents have had Bivens claims brought against them in the past, and confinement
in medically-dangerous conditions is not a new Bivens context.
As both parties acknowledge, “expanding the Bivens remedy is now considered a
‘disfavored’ judicial activity.” Ziglar, 137 S. Ct. at 1857 (quoting Iqbal, 556 U.S. at 675). “The
proper test for determining whether a case presents a new Bivens context” is to ask whether “the
case is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court.”
Id. at 1859. The three contexts in which the Supreme Court has allowed a Bivens claim to proceed
are Fourth Amendment searches, Fifth Amendment gender-discrimination claims, and Eighth
Amendment failure to provide medical care claims. See id. at 1854-1855. A non-exhaustive list
of meaningful differences includes
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
14
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.
This case represents a new Bivens context. The Supreme Court has been very particular
in distinguishing between various contexts in the past. For example, a case against a private prison
for failure to provide medical treatment was found to be a new context even though the Supreme
Court had previously allowed a case with “almost parallel circumstances” to proceed against a
federal prison. See Ziglar, 137 S. Ct. at 1859 (comparing Carlson v. Green, 446 U.S. 14 (1980),
with Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001)). If the difference between those
two cases is enough to constitute a new context, then an expansion to a different amendment – the
Supreme Court has never acknowledged a Bivens claim for the Fifth Amendment right to be free
from non-punitive claims of abuse – and a new agency also constitutes a new context. See Linlor
v. Polson, 263 F. Supp. 3d 613, 620 (E.D. Va. 2017) (finding a new Bivens context, post-Ziglar,
where the right at issue was a Fourth Amendment violation committed by a TSA officer, rather
than a “typical” Fourth Amendment Bivens suit); Cuevas v. United States, No. 16-299, 2018 WL
1399910 (D. Colo. Mar. 19, 2018) (finding a new Bivens context, post-Ziglar, where the right at
issue was a non-medical Eighth Amendment claim rather than an Eighth Amendment claim for
deliberate indifference to medical needs). Thus, the Court finds that this case represents a new
Bivens context.
b. Propriety of Bivens Extension – Special Factors
Having determined that this case represents a new Bivens context, the Court must next
analyze whether special factors counsel hesitation in expanding Bivens. The focus of this inquiry
is “whether the Judiciary is well suited, absent congressional action or instruction, to consider and
15
weigh the costs and benefits of allowing a damages action to proceed.” Ziglar, 137 S. Ct. at 1858.
Defendants present two factors that they claim counsel hesitation: (i) the availability of an alternate
remedial structure, i.e., the Federal Torts Claims Act (“FTCA”); and (ii) the relationship between
this case and national security.
As for the first argument, the Supreme Court has expressly held that the FTCA and Bivens
exist as alternate paths, and that the existence of the FTCA does not have any bearing on the option
of bringing a Bivens claim. See Correctional Services Corp. v. Malesko, 534 U.S. 61, 68 (2001)
(“We also found it crystal clear that Congress intended the FTCA and Bivens to serve as parallel
and complementary sources of liability.”) (internal quotation marks omitted); Linlor, 263 F. Supp.
3d at 621 (quoting Malesko, post-Ziglar, to find that the existence of the FTCA does not counsel
against expanding Bivens). “An FTCA claim is simply not ‘a substitute for a Bivens action.’”
Linlor, 263 F. Supp. 3d at 621 (quoting Bush v. Lucas, 462 U.S. 367, 378 (1983). Thus, the
existence of the FTCA does not counsel hesitation.
As for the second argument, there are only a handful of cases post-Ziglar that touch upon
national security issues. One is Hernandez v. Mesa, 885 F.3d 811 (5th Cir. 2018), in which the
Fifth Circuit, on remand from the Supreme Court, determined that the family of a fifteen-year-old
Mexican citizen could not bring a claim against the CBP agent who shot and killed him; the shot
was fired from the United States and killed the boy in Mexico. The court found that there were
numerous “special factors” at issue. First, the court observed that “[t]he Supreme Court has never
implied a Bivens remedy in a case involving the military, national security, or intelligence.” Id. at
818-819 (quoting Doe v. Rumsfeld, 683 F.3d 390, 394 (D.C. Cir. 2012)). National security is the
prerogative of the executive and legislative branches, and “[n]ational-security concerns are hardly
‘talismanic’ where, as here, border security is at issue.” Id. at 819 (internal quotation marks
16
omitted). The court determined that “the threat of Bivens liability could undermine the Border
Patrol’s ability to perform duties essential to national security,” and thus found that the claim could
not proceed. Id.
A district court in the Western District of Washington found similarly in Boule v. Egbert,
No. 17-106, 2018 WL 3993371 (W.D. Wash. Aug. 21, 2018). In that case, a CBP agent entered
onto the plaintiff’s property – an inn – hoping to speak to a guest about his immigration status.
The plaintiff asked the agent to leave, after which the agent remained on the property and
confirmed that the guest was legally in the country. The plaintiff brought a Bivens action for
violation of the Fourth Amendment. The court concluded that the agent violated the Fourth
Amendment, but nonetheless dismissed the claim, finding “that Plaintiff’s claims raise significant
separation-of-powers concerns by implicating the other branches’ national-security policies.” Id.
at *5. According to the court, “the risk of personal liability would cause Border Patrol agents to
hesitate and second guess their daily decisions about whether and how to investigate suspicious
activities near the border, paralyzing their important border-security mission.” Id.
The Third Circuit held similarly in a case involving TSA agents. See Vanderklok v. United
States, 868 F.3d 189 (3d Cir. 2017). In that case, the plaintiff was referred to secondary inspection
at the Philadelphia airport. According to the plaintiff, he requested a complaint form and “stated
his intention to report [Agent] Keiser’s behavior.” Id. at 194. He was allowed to leave the
screening area. According to the defendant, the plaintiff made a bomb threat and so he called the
Philadelphia Police Department after the plaintiff left the screening area.
Video evidence
contradicted the agent’s point of view, and the plaintiff was acquitted following a motion for
judgment of acquittal in the Pennsylvania state courts. The plaintiff brought a host of claims,
including a First Amendment retaliatory prosecution claim and Fourth Amendment malicious
17
prosecution claim against the agent. The Third Circuit dismissed the claims, finding that special
factors counseled hesitation in extending Bivens to that context. Id. at 205-206. The court noted
that “[m]atters intimately related to foreign policy and national security are rarely proper subjects
for judicial intervention,” id. at 206 (quoting Haig v. Agee, 453 U.S. 280, 292 (1981)) (alteration
in original), and that the “reluctance of the Supreme Court to weigh in on issues of national security
strongly suggests that we too should hesitate to create a remedy when those issues are in play,” id.
at 207. The court concluded that the “threat of damages liability could indeed increase the
probability that a TSA agent would hesitate in making split-second decisions about suspicious
passengers,” and dismissed the case. Id.
However, the Ninth Circuit ruled differently in Rodriguez v. Swartz, 899 F.3d 719 (9th
Cir. 2018), another cross-border shooting case. In Rodriguez, the family of a Mexican minor
brought suit against the CBP agent who shot and killed their child. The court found that no special
factors counseled hesitation. Notably, the court considered and rejected a national-security
challenge to the suit, finding that “holding [the defendant] liable for this constitutional violation
would not meaningfully deter Border Patrol agents from performing their duties.” Id. at 746. The
court explained that the “United States and [the defendant] have identified no duty that would have
required [the defendant] to shoot [the victim].” Id.
A judge in the Eastern District of Virginia found similarly to the court in Rodriguez. See
Linlor, 263 F. Supp. 3d at 624. In that case, the plaintiff alleged that a TSA officer punched him
in the groin while conducting a screening. The court rebuffed any national-security concern,
finding that cases in which courts refused to extend Bivens “have involved lawsuits against
officials alleged to have acted in accordance with national security policy.” Id. (emphasis in
original). The court noted that, although “[c]ourts must approach novel Bivens claims with
18
skepticism,” that does not mean that “vague generalizations about the importance of national
security are sufficient to defeat Bivens liability.” Id. at 625.
This present case is more aligned with Rodriguez and Linlor, and thus the Court concludes
that a national-security concern does not counsel hesitation in extending Bivens here. Notably,
unlike in the three cases that declined to extend Bivens, Elhady does not challenge the action that
does touch upon national security, i.e., his detention. That is to say, he does not argue that he was
impermissibly detained. Rather, Elhady challenges only the conditions of his detention, and
Defendants have offered no plausible explanation why intentionally placing a detainee in a
freezing-cold holding cell protects national security. Accordingly, even though this is a new
Bivens context, Defendants have provided no reasons that counsel hesitation, and thus the claim
should be allowed to proceed.
To find to the contrary would be to allow “national-security concerns” to “become a
talisman used to ward off inconvenient claims,” which the Supreme Court specifically warned
against in Ziglar. See 137 S. Ct. at 1862. Defendants try to do exactly that here; Defendants do
not even attempt to describe how this case implicates national security, but rather claim “national
security” in the hope that the Court will look no further. But there is no plausible national-security
interest in placing a person in a room so cold that he develops hypothermia within a matter of
hours, and Defendants’ refusal to offer any kind of explanation speaks volumes. See Meshal v.
Higgenbotham, 804 F.3d 417, 445 (D.C. Cir. 2015) (Pillard, J., dissenting) (“If Article III judges
must sometimes cede our rights-protective role in deference to the political branches on matters of
national security, we should do so only with a responsible official’s authoritative and specific
assurance of the imperative of doing so. . . . Before declining to recognize a cause of action because
of national security concerns, the court should require the government to provide a concrete,
19
plausible, and authoritative explanation as to why the suit implicates national security concerns.”).
By claiming national security and refusing to offer any kind of justification for that claim,
Defendants essentially seek immunity for any CBP action taken against a United States citizen at
the border. Ziglar disavows such an attempt, and the Court will not allow that argument to win
the day in this case.2
IV. CONCLUSION
For these reasons, Defendants’ motion to dismiss (Dkt. 41) is denied. Defendants shall
answer the amended complaint within fourteen days. A notice for an in-person on-the-record
scheduling conference shall be issued.
SO ORDERED.
Dated: March 1, 2019
Detroit, Michigan
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 1, 2019.
s/Kristen MacKay for Karri Sandusky
Case Manager
2
Defendants similarly make a bare-bones claim arguing that the Court should not extend Bivens
to this claim because immigration issues may implicate “foreign policy.” See Def. Mot. at 25. But
“just as national security cannot be used as a talisman to ward off inconvenient claims, neither
does the mere incantation of the magic words ‘foreign policy’ cause a Bivens remedy to
disappear.” Rodriguez, 899 F.3d at 746 (internal quotation marks omitted). Defendants do not
even attempt to explain how placing a United States citizen in a freezing-cold cell at the border
would implicate foreign policy; thus there is no need to address it. See McPherson v. Kelsey, 125
F.3d 989, 995-996 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived. It is not sufficient for a party
to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its
bones.”) (alteration in original) (internal quotation marks omitted).
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?