Alberto-Toledo v. Washington County et al
OPINION AND ORDER: Plaintiff's Motions for Temporary Restraining Order (ECF Nos. 3 , 11 ) and defendants' Motion to Dismiss (ECF No. 21 ) are DENIED. Plaintiff's Motion for Leave to Amend Complaint (ECF No. 30 ) is GRANTED w ith respect to his proposed Fourth Amendment claim against DDA Pulver and DENIED in all other respects. Within 30 days from the date of this Order, plaintiff may file a Second Amended Complaint alleging: 1) the facts set forth in his proposed Second Amended Complaint; 2) claims for declaratory and compensatory relief against Commander Massey, Washington County, and DDA Pulver arising from plaintiff's allegedly unlawful detention in April 2020; and 3) a claim for declaratory and injunctive relief against Sheriff Garrett in his official capacity arising from the current ICE hold against plaintiff. Signed on 07/15/2021 by Judge Michael J. McShane. (Deposited in outgoing mail to pro se party on 07/16/2021.) (bd)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
Case No. 3:20-cv-01557-MC
OPINION AND ORDER
WASHINGTON COUNTY; PAT
GARRETT; CAPRICE MASSEY,
MCSHANE, District Judge.
Plaintiff, a pretrial detainee appearing pro se, filed suit pursuant to 42 U.S.C. § 1983
alleging that Washington County officials violated his federal constitutional rights by unlawfully
detaining him pursuant to a United States Immigration and Customs Enforcement (ICE)
administrative hold. Before the Court are defendants’ Motion to Dismiss for Failure to State a
Claim, plaintiff’s Motion for Temporary Restraining Order (TRO), and plaintiff’s Motion for
Leave to Amend Complaint. Defendants’ Motion to Dismiss and plaintiff’s Motion for TRO are
DENIED, and plaintiff’s Motion for Leave to Amend is GRANTED, in part.
- OPINION AND ORDER
The following facts are taken from plaintiff’s Amended Complaint (ECF No. 9) and its
On June 6, 2019, plaintiff was arrested on state law charges in Washington County and
booked into the Washington County Jail. The next day, plaintiff posted bail and was released
from state custody pending trial.
On January 8, 2020, plaintiff was arrested and taken into custody by the U.S. Marshals on
a federal charge of Illegal Reentry. Plaintiff maintains that his defense attorney informed Deputy
District Attorney (DDA) Pulver, the prosecutor in his Washington County case, of plaintiff’s
arrest by federal authorities and his detention at the Multnomah County Jail on the federal
On March 13, 2020, DDA Pulver filed a motion to show cause why plaintiff’s bail and
pretrial release should not be revoked in his Washington County case for failure to notify the
state court of his new address, i.e., the Multnomah County Jail.
On March 16, 2020, the state court revoked plaintiff’s bail and issued a warrant for his
arrest. The court also imposed a new bail amount of $250,000.
On March 27, 2020, plaintiff pled guilty to the charge of Illegal Reentry in federal court
and was sentenced to time served. Plaintiff contends that he was no longer in federal custody at
that time, because ICE had not issued “a detainer or any other document seeking to take Plaintiff
into custody.” Am. Compl. ¶ 32. Plaintiff claims that he remained in custody at the Multnomah
County Jail solely because of the arrest warrant and hold from Washington County on his state
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Also on March 27, 2020, DDA Pulver filed a Motion for Transport Order in state court.
The proposed Transport Order stated that plaintiff was “presently” in ICE custody and ordered
plaintiff’s release to the Washington County Sheriff’s Office for his arraignment on state court
charges in Washington County. Am. Compl. ¶ 30. Dickens Decl. Ex. A (ECF No. 20-1). The
Order further stated that plaintiff “shall be returned” to ICE custody after his arraignment. Id.
Plaintiff alleges that DDA Pulver knew ICE had issued no warrants or detainers against plaintiff
at that time.
On March 30, 2020, the state court issued the Transport Order and plaintiff was
transported to the Washington County Jail. Washington County Jail officials eventually informed
plaintiff that he had no “holds” and could post bail on his state court charges.
On April 1, 2020, plaintiff posted bail a second time. Despite this, Washington County
Jail officials would not release him. On March 31, 2020, Jail Commander Massey had lodged an
ICE hold against plaintiff pursuant to the Transport Order. Plaintiff alleges that Commander
Massey lodged the hold even though she knew ICE had not issued a detainer or warrant against
On April 2, 2020, plaintiff was transported to the Multnomah County Jail and taken into
ICE custody. The same day, ICE issued a Form I-205 against plaintiff, which is a Warrant of
While in ICE custody, plaintiff missed an April 3, 2020 state court appearance in
Washington County, and DDA Pulver requested that plaintiff’s bail be revoked due to his failure
to appear. The state court revoked plaintiff’s bail and imposed a new bail amount of $5,000,000.
Plaintiff contends that DDA Pulver orchestrated plaintiff’s absence at his state court hearing
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through issuance of the Transport Order and then misled the state court by falsely blaming
plaintiff for his failure to appear.
On April 8, 2020, plaintiff returned to state custody at the Washington County Jail and
the ICE hold was again lodged against him. DDA Pulver, knowing plaintiff could not possibly
appear in court on his own volition due to his custody status in another jurisdiction, requested
forfeiture of plaintiff’s bail. The state court judge placed plaintiff’s bail money in a trust account.
Plaintiff grieved the issue of the ICE hold with the Washington County Sheriff’s Office.
Chief Deputy Degman ultimately dismissed plaintiff’s grievance appeal, informing plaintiff that
ICE must withdraw the hold before Washington County Jail could release him, even if plaintiff
posted bail again on his state court charges.
In September 2020, plaintiff filed this § 1983 action and alleged violations of his
constitutional rights arising from the ICE hold. The Court advised plaintiff of several
deficiencies in his claims and allowed him the opportunity to amend. In response to the Court’s
Order, plaintiff filed an Amended Complaint and renewed his previous request for preliminary
Construing plaintiff’s allegations liberally, I found that plaintiff sufficiently alleged
Fourth Amendment claims for damages against Commander Massey and Washington County
arising from his continued detention after he posted bail on April 1, 2020, and a claim for
injunctive relief against Sheriff Garrett in his official capacity arising from the ICE hold
currently lodged against him. Order at 4-5 (ECF No. 15). I further found that DDA Pulver was
entitled to absolute immunity for actions related to plaintiff’s state court proceeding and
dismissed the charges against him. Id.
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I also ordered defendants to respond to plaintiff’s Motion for TRO with respect to the
current ICE hold against him. Defendants oppose plaintiff’s motion and move to dismiss his
claims for failure to state a claim. In turn, plaintiff moves for leave to file a second amended
A. Motion to Dismiss for Failure to State a Claim
Defendants move for dismissal on grounds that plaintiff’s claims ultimately seek “federal
court intervention to speed up his release from custody” and must be brought in a federal habeas
action. Defs.’ Mot. to Dismiss at 2 (ECF No. 21).
Defendants are correct that claims challenging the fact or duration of confinement usually
“fall within the ‘core’ of habeas corpus” and must be brought in a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Nelson v. Campbell, 541 U.S. 637, 643 (2004). However,
as construed by this Court, plaintiff’s Fourth Amendment claims do not challenge the state court
charges underlying his current confinement in state custody.1 Rather, plaintiff’s claims for
damages seek compensation for the harm allegedly caused by the actions of Commander Massey
and the policies of Washington County in extending his detention on April 1, 2020. Plaintiff’s
claim for injunctive relief seeks an order enjoining the Washington County Jail from extending
plaintiff’s detention pursuant to the ICE hold if he is otherwise entitled to release from custody.
Moreover, plaintiff cannot bring a federal habeas action challenging the ICE hold.
“Habeas corpus proceedings are available only for claims that a person ‘is in custody in violation
of the Constitution or laws or treaties of the United States.’” Dickerson v. United States, 530
U.S. 428, 439 n. 3 (2000) (quoting 28 U.S.C. § 2254(a)). Plaintiff is currently in state custody
In my previous Order, I recognized that plaintiff’s prayer for a lower bail amount
implicated the legality of his current confinement in state custody and was not cognizable in a
§ 1983 action. See Order at 4, n.2 (ECF No. 15).
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pursuant to state criminal charges, and the alleged ICE hold does not place plaintiff “in custody”
for purposes of federal habeas relief. See, e.g., Campos v. I.N.S., 62 F.3d 311, 314 (9th Cir. 1995)
(affirming that a “bare detainer letter alone does not sufficiently place an alien in INS custody to
make habeas corpus available”); Sayadeth v. Apker, 2016 WL 8731393, at *2-3 (E.D. Cal. Oct.
7, 2016) (finding that “an ICE detainer does not place a petitioner ‘in custody’ for purposes of
obtaining habeas corpus relief”). The “in custody” requirement of § 2254 is jurisdictional, and so
long as plaintiff is in state custody, this Court lacks jurisdiction over a federal habeas action
challenging the ICE hold against him. Wilson v. Belleque, 554 F.3d 816, 821 (9th Cir. 2009).
In sum, plaintiff’s claims do not lie at the core of habeas relief, and defendants’ Motion to
Dismiss is denied on this ground.
B. Motion for Preliminary Injunctive Relief
Plaintiff requests that this Court grant preliminary injunctive relief and enjoin
Washington County Jail officials from denying his release and extending his custody solely
because of the ICE hold.
A preliminary injunction is an “extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008). To obtain preliminary injunctive relief, plaintiff must establish: 1)
the likelihood of success on the merits of the underlying claim; 2) the likelihood of irreparable
harm in the absence of preliminary relief; 3) the balance of equities tips in his favor; and 4) an
injunction is in the public interest. Id. at 20. In the Ninth Circuit, “serious questions going to the
merits, as well as a balance of hardships that tips sharply towards the plaintiff, can support
issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood
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of irreparable injury and that the injunction is in the public interest.” California Trucking Ass’n
v. Bonta, 996 F.3d 644, 652, n. 6 (9th Cir. 2021) (citation omitted).
1. Likelihood of Success on the Merits
Plaintiff alleges that Washington County Jail officials have informed him they will not
release him if he posts bail on his state court charges because of the ICE hold lodged against
him. Plaintiff maintains that it is unconstitutional for Washington County Jail officials to extend
his detention solely because of an administrative ICE hold.
In response to plaintiff’s motion, defendants argue that they are entitled to absolute
immunity from liability in this action, because they simply complied with the state court’s
Transport Order requiring plaintiff’s return to ICE custody in April 2020.2 See Engebretson v.
Mahoney, 724 F.3d 1034, 1039-40 (9th Cir. 2013) (holding that corrections officials were
entitled to absolute immunity from liability under § 1983 for complying with a facially valid
court order). Granted, whether Commander Massey and Washington County Jail officials relied
on the Transport Order could potentially defeat plaintiff’s Fourth Amendment damages claim
arising from his extended detention on April 1, 2020. However, their compliance with a court
order in April of 2020 is irrelevant to plaintiff’s claim that Washington County Jail may not rely
on an administrative ICE hold to extend plaintiff’s current detention if he posts bail and becomes
eligible for release from state custody.
Once a detainee is entitled to release, law enforcement officials may not hold the detainee
in custody for a different purpose without probable cause justifying the “new” seizure. See, e.g.,
Illinois v. Caballes, 543 U.S. 405, 408 (2005) (explaining that a seizure justified by its initial
purpose “can become unlawful”); see also Ochoa v. Campbell, 266 F. Supp. 3d 1237, 1250 (E.D.
Defendants also repeat their argument that plaintiff’s claims must be brought in a
federal habeas action. As explained above, defendants are incorrect.
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Wash. 2017) (“A new Fourth Amendment seizure occurs if, as a factual matter, a person’s
detention is extended because of an immigration hold.”). If jail officials seek to extend the
detention of pretrial detainee because of suspected immigration violations, the Fourth
Amendment requires that they possess an adequate justification for a new seizure. Arizona v.
United States, 567 U.S. 387, 413 (2012) (explaining that “[d]etaining individuals solely to verify
their immigration status would raise constitutional concerns”); Miranda-Olivares v. Clackamas
Cty., Case No. No. 3:12-CV-02317-ST, 2014 WL 1414305, at *11 (D. Or. Apr. 11, 2014) (“In
order for the County to hold a person beyond the period necessary to execute an order of legal
authority to continue detention, it must meet the clearly defined reasonable seizure standards of
the Fourth Amendment.”).
Neither party presented evidence establishing the basis for the current ICE hold against
plaintiff. Based on plaintiff’s allegations, he is likely subject to removal after his conviction for
Illegal Reentry and the ICE hold presumably arises from the Warrant of Removal/Deportation
issued on April 2, 2020.
According to plaintiff’s Amended Complaint, on March 27, 2020, he pled guilty to the
federal charge of Illegal Reentry and was sentenced to time served. Am. Compl. ¶ 26. In his Plea
Petition, plaintiff admitted that he was “an alien and citizen of Mexico” and had “previously
been arrested and denied admission, excluded, deported, and removed from the United States as
an alien on November 7, 2017.” Plea Pet. ¶ 23, United States v. Alberto-Toledo, Case No. 3:19cr-00366-IM (ECF No. 22). After his conviction, ICE issued a Form I-205, an administrative
Warrant of Removal/Deportation. Am. Compl. ¶ 56. Plaintiff’s admissions in open court and the
Warrant of Removal/Deportation provide probable cause that plaintiff is a removable alien.
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The question remains whether plaintiff’s status as a removable alien provides
Washington County Jail officials with a valid basis to extend plaintiff’s detention without
running afoul of the Fourth Amendment. See Arizona v. United States, 567 U.S. at 407 (“As a
general rule, it is not a crime for a removable alien to remain present in the United States.”).
While probable cause of a civil immigration violation may permit the seizure of individuals by
federal immigration officials, courts have held that, “absent express direction or authorization by
federal statute or federal officials, state and local law enforcement officers may not detain or
arrest an individual solely based on known or suspected civil violations of federal immigration
law.” Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 465 (4th Cir. 2013); see also
Lopez-Aguilar v. Marion Cty. Sheriff’s Dep’t, 296 F. Supp. 3d 959, 977-78 (S.D. Ind. 2017)
(“Only when acting under color of federal authority, that is, as directed, supervised, trained,
certified, and authorized by the federal government, may state officers effect constitutionally
reasonable seizures for civil immigration violations.”).
Federal law does not expressly authorize the execution of Warrants of Removal/
Deportation by state or local officials. See Lopez-Aguilar, 296 F. Supp. 3d at 974 (citing 8 C.F.R.
§§ 241.2, 287.5). Further, the State of Oregon prohibits any “law enforcement agency of the
State of Oregon or of any political subdivision of the state” from using “agency moneys,
equipment or personnel for the purpose of detecting or apprehending persons whose only
violation of law is that they are persons of foreign citizenship present in the United States in
violation of federal immigration laws.” Or. Rev. Stat. § 181A.820. Thus, it is unlikely that
Washington County has an agreement with ICE or the Department of Homeland Security (DHS)
to detain individuals for civil immigration violations. See Lopez-Flores v. Douglas Cty., No.
6:19-CV-00904-AA, 2020 WL 2820143, at *3 (D. Or. May 30, 2020) (explaining that 8 U.S.C.
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§ 1357(g)(1) authorizes DHS to enter into “287(g) agreements” with local governments to allow
enforcement of immigration laws by local law enforcement officials).
Based on plaintiff’s allegations, he raises serious questions whether the ICE hold
provides Washington County authorities with a valid, constitutional basis to extend plaintiff’s
detention should he post bail and secure his release from state custody. I recognize that plaintiff
has not presented any evidence to support his request for preliminary injunctive relief and the
specific reason for the ICE hold against him has not been conclusively established. At the same
time, defendants have not disputed plaintiff’s allegations, and I accept them as true for purposes
of this motion.
Accordingly, to the extent the ICE hold against plaintiff at the Washington County Jail is
based solely on a civil immigration violation, plaintiff raises serious questions going to the
merits of his Fourth Amendment claim for injunctive relief.
2. Likelihood of Irreparable Harm
Plaintiff’s alleged irreparable harm is the Fourth Amendment violation arising from his
continued unlawful detention. However, plaintiff does not allege that his current detention in
state custody is unlawful or that Washington County Jail officials will imminently extend his
detention because of the ICE hold. In fact, plaintiff is currently detained at Lane County Adult
Corrections to answer criminal charges arising in Lane County.3 “To support injunctive relief,
harm must not only be irreparable, it must be imminent; establishing a threat of irreparable harm
in the indefinite future is not enough.” Amylin Pharms., Inc. v. Eli Lilly & Co., 456 Fed. App’x
For this reason, defendants argue that plaintiff’s motion for injunctive relief is moot. See
Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (explaining that “when a prisoner is moved
from a prison, his action will usually become moot as to conditions at that particular facility”).
Plaintiff responds that he will likely return to Washington County Jail, where he would remain
subject to the ICE hold. For purposes of this motion, I accept plaintiff’s representation and do not
find his motion to be moot.
10 - OPINION AND ORDER
676, 679 (9th Cir. 2011) (citing Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668,
674 (9th Cir. 1988)).
Plaintiff nonetheless maintains that he will return to the Washington County Jail and the
existence of the ICE hold would prevent him from posting bail because he knows he would not
be released. However, plaintiff presents no evidence – such as affidavits or other documents –
showing his current ability to post bail and secure his release from state custody on all charges
pending against him. Absence such evidence, plaintiff fails to show the imminence of irreparable
harm arising from the ICE hold at the Washington County Jail. For the same reasons, plaintiff
fails to show that the balance of equities tips in his favor or that the injunction he requests is in
the public interest.
Given the record before the Court and the lack of evidence presented to support
plaintiff’s claim of imminent harm, I am not inclined to impose the extraordinary remedy of
preliminary injunctive relief, and his Motion for TRO is denied.
C. Leave to Amend
Plaintiff also moves for leave to file a second amended complaint. Plaintiff seeks to
revive claims for damages against Sheriff Pat Garrett and DDA Pulver and claims alleging
excessive bail and equal protection violations.4 Plaintiff also seeks to add as defendants Assistant
U.S. Attorney Sarah Barr and ICE agents Corey Heaton and Prince Planthara.
This Court considers five factors when determining whether to allow amendment: 1) bad
faith; 2) undue delay; 3) prejudice to the opposing party; 4) futility of amendment; and 5) the
opportunity for previous amendment. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004).
Plaintiff alleged these claims in his Amended Complaint, and they were dismissed for
failure to state a claim. Order at 5-6 (ECF No. 15).
11 - OPINION AND ORDER
Plaintiff’s motion is granted with respect to his proposed claim against DDA Pulver and denied
as futile in all other respects.
I previously found that DDA Pulver was entitled to absolute immunity, because
plaintiff’s claims against him appeared to implicate conduct “intimately associated with the
judicial phase of the criminal process.” Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009)
(citation omitted); see also Milstein v. Cooley, 257 F.3d 1004, 1008 (9th Cir. 2001). Plaintiff’s
proposed amendments make clear that plaintiff’s claims arise from DDA Pulver’s alleged
falsehoods and misrepresentations before the state court. A prosecutor “is not entitled to absolute
prosecutorial immunity for his conduct in swearing to facts in support of [a] bail revocation
motion,” because the prosecutor has “stepped outside of his prosecutorial role, and into the role
of witness” when personally attesting “to the truth of facts in the affidavit.” Cruz v. Kauai Cty.,
279 F.3d 1064, 1067 (9th Cir. 2002); see also Kalina v. Fletcher, 522 U.S. 118, 131 (1997).
Plaintiff alleges that DDA Pulver knowingly and deliberately lied in an affidavit and in
sworn declarations to obtain the initial revocation of plaintiff’s bail and a Transport Order that
would unlawfully extend plaintiff’s detention, cause plaintiff’s missed court appearance, and
trigger the second revocation of his bail. See Proposed Sec. Am. Compl. ¶¶ 19, 21-28, 30, 36-40,
62-63, 72-74, 77-78, 82-83 (ECF No. 30-1). Specifically, plaintiff alleges that DDA Pulver’s
March 13, 2020 affidavit in support of the motion to show cause intentionally omitted critical
information in order to mislead the court and obtain the initial revocation of plaintiff’s bail. Id.
¶¶ 21-26. Plaintiff further alleges that DDA Pulver’s March 27, 2020 sworn declaration in
support of the Transport Order falsely represented that plaintiff was in ICE custody in order to
obtain an order requiring plaintiff’s return to ICE custody. Id. ¶¶ 36-40. Plaintiff contends that
the state court entered the Transport Order based on DDA Pulver’s false assertions, and, as a
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result, plaintiff was denied release from custody when he posted bail on April 1, 2020. Id. ¶¶ 46,
52, 57, 59.
Plaintiff further alleges that after his detention was unlawfully extended, DDA Pulver
informed ICE agents Heaton and Planthara that plaintiff had a state court hearing on April 3,
2020 and “a warrant will be issued when Albert-Toledo [sic] fails to appear.” Proposed Sec. Am.
Compl. ¶ 63. Plaintiff claims that DDA Pulver orchestrated plaintiff’s failure to appear at the
hearing on April 3, 2020 and, during that hearing, intentionally misrepresented facts regarding
plaintiff’s absence in order to mislead the court and obtain the second revocation of plaintiff’s
bail. Id. ¶¶ 70-74. In sum, plaintiff alleges that DDA Pulver’s falsehoods directly caused the
revocation of plaintiff’s bail on March 16, 2020, the unlawful extension of his detention on April
1, 2020, his missed court appearance on April 3, 2020, and the revocation of bail and imposition
of an excessive bail amount after his failure to appear.
Construing these allegations liberally, plaintiff alleges that DDA Pulver stepped outside
his role as a prosecutor and acted as a witness when he personally attested to facts supporting his
motions and requests for bail revocation. Further, I find no undue delay, bad faith, or prejudice to
the defendants. Accordingly, plaintiff may amend his complaint to include a Fourth Amendment
claim for damages against DDA Pulver.
The remainder of plaintiff’s proposed claims are futile and will not be allowed. Nunes,
375 F.3d at 808 (“Futility alone can justify the denial of a motion for leave to amend.”).
Plaintiff’s proposed amendments fail to state a Fourth Amendment claim for damages
against Sheriff Garrett in his individual capacity. Liability under § 1983 arises upon a showing of
personal participation by each defendant, and a supervisor – such as the sheriff – is not liable for
the constitutional violations of employees unless the supervisor “participated in or directed the
- OPINION AND ORDER
violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d
1040, 1045 (9th Cir. 1989). Plaintiff simply alleges that Sheriff Garrett knew plaintiff was
entitled to release on April 1, 2020 without alleging facts that plausibly suggest Sheriff Garret
had actual knowledge of plaintiff’s custody status or personally participated in the decision to
deny his release after he posted bail. See Proposed Sec. Am. Compl. ¶¶ 59-61 (ECF No. 30-1).
Further, plaintiff cannot bring § 1983 claims against Barr, Heaton, and Planthara, because
they are federal officials and were not acting under color of state law. See 42 U.S.C. § 1983.
Instead, plaintiff must bring claims against them pursuant to the Supreme Court’s decision in
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
Even if Bivens provided a remedy for plaintiff’s claims – which is highly unlikely –
plaintiff alleges no facts suggesting that Barr, Heaton, or Planthara personally participated in the
allegedly unlawful extension of his confinement.5 Plaintiff alleges only that Barr “put
Defendants Heaton and Pulver in contact” and “instructed” them to “coordinate” plaintiff’s
Transport Order, and that Heaton and Planthara were informed plaintiff had a state court hearing
and a warrant would issue. Proposed Sec. Am. Compl. ¶¶ 29, 63. Plaintiff does not allege that
Barr instructed Pulver or Heaton to misstate facts or make false representations in order to secure
plaintiff’s continued detention, and plaintiff alleges no actions taken by Heaton or Planthara.
In Bivens, the Supreme Court “recognized for the first time an implied right of action
for damages against federal officers alleged to have violated a citizen’s constitutional rights”
under the Fourth Amendment. Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017) (per curiam)
(citation omitted). Since then, the Supreme Court has allowed a Bivens remedy in only two other
contexts and has made clear that expanding the Bivens remedy is “a ‘disfavored’ judicial
activity.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). If a Bivens remedy is sought in a new
context, courts must assess “special factors counselling hesitation” against recognizing a Bivens
remedy. Id. at 1858-1860. Plaintiff’s proposed claims against Barr, Heaton, and Planthara arise
in a new context because they differ “in a meaningful way from previous Bivens cases.” Id. at
1859. Section 1983 provides plaintiff with a remedy against the Washington County defendants
for his allegedly unlawful detention, and this fact, combined with the limited involvement of
Barr, Heaton, and Planthara, would weigh heavily against a Bivens remedy in this context.
14 - OPINION AND ORDER
Plaintiff’s proposed claims of excessive bail and equal protection violations likewise fail
to state viable claims for relief. The named defendants were not involved in setting plaintiff’s
bail, and to the extent their conduct caused injury, those damages are encompassed within
plaintiff’s Fourth Amendment claims. Further, plaintiff alleges no specific facts suggesting that
Washington County officials discriminated against him as a member of a class or singled him out
for disparate treatment because of his ethnicity or national origin.
Finally, plaintiff seeks two forms of relief that this Court cannot provide. Plaintiff seeks a
declaration that defendants’ conduct violated Or. Rev. Stat. § 181A.820 and an order requiring
defendants to abide by the Release Agreement plaintiff entered into when he posted bail on April
1, 2020. Proposed Sec. Am. Comp. Prayer for Relief ¶¶ 7, 11. Plaintiff does not bring claims
under Or. Rev. Stat. § 181A.820 and a declaration that defendants violated this statute is beyond
the scope of his claims. Likewise, the Release Agreement pertains to plaintiff’s release on bail
rather than Washington County’s enforcement of the ICE hold against him, and it is not within
the scope of his claim for injunctive relief.
Plaintiff’s Motions for Temporary Restraining Order (ECF Nos. 3, 11) and defendants’
Motion to Dismiss (ECF No. 21) are DENIED. Plaintiff’s Motion for Leave to Amend
Complaint (ECF No. 30) is GRANTED with respect to his proposed Fourth Amendment claim
against DDA Pulver and DENIED in all other respects.
Within 30 days from the date of this Order, plaintiff may file a Second Amended
Complaint alleging: 1) the facts set forth in his proposed Second Amended Complaint; 2) claims
for declaratory and compensatory relief against Commander Massey, Washington County, and
DDA Pulver arising from plaintiff’s allegedly unlawful detention in April 2020; and 3) a claim
- OPINION AND ORDER
for declaratory and injunctive relief against Sheriff Garrett in his official capacity arising from
the current ICE hold against plaintiff.
IT IS SO ORDERED.
DATED this 15th day of July, 2021.
s/ Michael J. McShane
MICHAEL J. MCSHANE
United States District Judge
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