Roark v. United States

Filing 35

ORDER: ; Denying Plaintiff's Motion for Leave to File Amended Complaint/Petition 18 . Finding as Moot the Government's Motion to Dismiss Case for Lack of Jurisdiction; Motion to Dismiss for Failure to State a Claim 8 . Signed on 3/12/2013 by Chief Judge Ann L. Aiken. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DIANE ROARK,
Plaintiff,

v.
UNITED STATES OF AMERICA,
Defendant.
Diane Roark
2000 N. Scenic View Drive
Stayton, Oregon 97383
Pro se plaintiff
S. Amanda Marshall
United States Attorney
James E. Cox , Jr.
Assistant United States Attorney
District of Oregon
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
Attorneys for defendant
Page 1 - OPINION AND ORDER

Case No. 6:12-cv-01354-AA
OPINION AND ORDER

AIKEN, Chief Judge:
Defendant

the

United States of America

(the "government")

filed a motion to dismiss plaintiff Diane Roark's complaint, except
for her return of property claim,
12 (b) ( 1)

and Fed.

R.

Ci v.

P.

pursuant to Fed.

12 (b) ( 6) .

R.

In response,

moved to amend her complaint pursuant to Fed.

R.

Civ.

Ci v.

P.

plaintiff
P.

15(a).

For the reasons set forth below, plaintiff's motion is denied.
BACKGROUND

This case arises out of the government's allegedly wrongful
actions

pursuant

to

its

government information.

investigation into

leaked confidential

Following the September 11, 2001 attacks

on the United States,

President Bush established the Terrorist

Surveillance

("TSP"),

Program

which

authorized

the

National

Security Agency ("NSA") to intercept international communications
of persons linked to al Qaeda or related terrorist organizations.
On December 15, 2005, the New York Times began publishing a series
of articles describing a range of alleged NSA activities, including
the TSP and warrantless wiretaps; the Baltimore Sun also published
an article on the same subject.
Shortly after publication of the first New York Times article,
the

Department

of

Justice

("DOJ")

and

the

Federal

Bureau

of

Investigation ("FBI") initiated an investigation to ascertain the
source

or

sources

that

were

responsible

for

the

unauthorized

disclosure of classified information contained therein.

Page 2 - OPINION AND ORDER

Plaintiff,

a

former

staff

member

of

the

U.S.

House

Permanent Select Committee on Intelligence,

of

Representatives

was identified as a

subject of that investigation.
In February 2007, plaintiff voluntarily met with the DOJ and
FBI for three hours regarding their investigation.
of

the

interview,

questions,

plaintiff

except

that

she

answered
refused

all

to

of

Over the course
the

reveal

government's

her

sources

of

information on warrantless wiretaps, as well as the details of her
discussion

with

a

congressman.

At

that

time,

plaintiff

also

provided an affidavit, averring that she was not the source of the
classified information in the articles at issue.
In

July

2007,

the

government

applied

for

and

obtained

a

warrant from the U.S. District Courts for the Districts of Maryland
and Oregon to search plaintiff's personal residence for evidence
related

to

the

investigation.

On

July

26,

2007,

FBI

agents

executed the search warrant and confiscated a number of items,
including

computers,

hard

drives,

other

electronic

i terns,

and

various documents from plaintiff's home in Stayton, Oregon.
In

December

2 0 0 9,

DOJ prosecutors

alleged

that

plaintiff

perjured herself during their February 2007 interview and offered
her a plea bargain.

Plaintiff refused their offer.

Thereafter,

plaintiff was neither threatened with further charges nor did she
receive

notice

investigation.

that

she

was

no

longer

a

target

of

the

Three individuals subsequently admitted to being

Page 3 - OPINION AND ORDER

the

sources of the

leaked information;

none of them have been

prosecuted.
In

November

2011,

plaintiff

filed

a

l·awsuit

in

the

U.S.

District Court for the District of Maryland under Fed. R. Crim. P.
41(g), seeking the return of property seized from her residence in
July 2007.

Plaintiff was ultimately dismissed from that action for

improper venue.
*1-2

(D.Md.

See Wiebe v. Nat'l Sec. Agency, 2012 WL 1670046,

May

11,

2012).

Accordingly,

on

July

26,

2012,

plaintiff filed a complaint in this Court, alleging constitutional,
equitable,

and whistleblower

retaliation

claims,

as

well

return of property claim pursuant to Fed. R. Crim. P. 41(g).
commencing

her

lawsuit

in

this

District,

plaintiff

as

a

After

received

confirmation from the government that no criminal charges would be
filed against her arising out of the investigation or the July 2007
search and seizure.

On November 13, 2012, the government moved to

dismiss plaintiff's complaint, except for her return of property
claim.

On December 14, 2012, plaintiff filed a motion to amend the

complaint "to a Bivens return of property" action.
Amend 1.

That same day,

Pl.'s Mot.

plaintiff also filed a response to the

government's motion to dismiss.
STANDARD

Leave to amend pleadings "shall be freely given when justice
so requires."

Fed. R. Civ. P. 15(a).

"extreme liberality."

Courts apply Rule 15 with

Eminence Capital, LLC v. Aspeon, Inc., 316

Page 4 - OPINION AND ORDER

F.3d

1048,

1051

(9th

Cir.

2003)

(citations

omitted).

In

determining whether a motion to amend should be granted, the court
generally considers five factors:

( 1) undue delay;

( 2) bad faith;

(3) futility of amendment; (4) prejudice to the opposing party; and
(5)

whether the plaintiff has previously amended the complaint.

United States v.
2011)

Corinthian Colls.,

(citation omitted).

655 F. 3d 984,

995

(9th Cir.

These factors are not weighted equally:

"£utility of amendment alone can justify the denial of a motion" to
amend.

Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055

(9th Cir. 2009).
DISCUSSION

In her proposed amended complaint ("PAC") , plaintiff seeks to:
(1) omit the Sixth Amendment and add the Fourteenth Amendment as a
basis for her claims;
(3)

(2) remove the United States as a defendant;

add ten federal employees as defendants in their individual

capacities; and (4) allege Bivens 1 claims under the First, Fourth,
and Fifth Amendments.

See Pl.'s Mem. in Supp. of Mot. Amend 2-4.

The government argues

that plaintiff's motion should be denied

because there was no state action in this case, any Bivens action
is precluded by the statute of limitations, and the PAC does not
include sufficient factual allegations.

Further, the government

expressed confusion over whether plaintiff intended to abandon her

1

Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
Page 5 - OPINION AND ORDER

declaratory

and

injunctive

relief

claims,

since

they

are

not

expressly alleged in the PAC.
In response, plaintiff acknowledges that "no state or local
officials participated in the actions taken against her."
Reply to Mot. Amend 3.

Pl.'s

Plaintiff also states that she "is willing

to abandon her request for a Court declaration that the government
acted unconstitutionally

[but will]

continue to seek injunctive

relief to force reforms to curtail the indefinite withholding of
unclassified information for no permitted reason."

Id.

at 2-3.

Regardless, plaintiff stipulates that, if her request to add Bivens
claims are "not approved, she seeks [a] voluntary withdrawal from
the lawsuit without prejudice."
Mot.

Dismiss 1

Id. at 2; see also Pl.'s Resp. to

(plaintiff "requests Court approval to amend her

Complaint to [add a] Bivens Action [or] Voluntary Dismissal Without
Prejudice of the constitutional issues leaving for litigation a
Rule 41(g)

lawsuit for return of property").

As such, this case

hinges on whether plaintiff's proposed Bivens claims are timebarred and whether the PAC otherwise fails to state a claim.
In Bivens, the Supreme Court created a private right of action
through

which

federal

officials

can

be

held

liable

in

their

individual capacities for violating a person's Fourth Amendment
rights.

See

Bivens, 403 U.S. at 390-97; see also Papa v. United

States, 281 F.3d 1004, 1009

(9th Cir. 2002).

In the intervening

decades, two more non-statutory Bivens actions for constitutional

Page 6 - OPINION AND ORDER

violations have been created.
549

(2007)

See Wilkie v. Robbins, 551 U.S. 537,

(citing Davis v. Passman, 442 U.S. 228, 243-44

(1979)

(recognizing a Bivens claim for unlawful discrimination under the
Fifth Amendment); and Carlson v. Green, 446 U.S. 14, 19-24 (1980)
(recognizing
officials
however,

a

Bivens

under
"has

Kortlander

v.

the

claim

Eighth

for

violations

caused

Amendment)).

The
to

rejected

all

other

attempts

Cornell,

816

F.Supp.2d

982,

by

prison

Supreme

Court,

expand

989

Bivens."

(D.Mont.

2011)

(citations omitted); see also Corr. Servs. Corp. v. Malesko, 534

u.s. 61, 68-70 (2001).
I.

Statute of Limitations
Plaintiff's proposed Bivens claims are based on the allegedly

surreptitious searches and surveillance of her property that took
place prior to July 2007, the July 2007 search and seizure, and the
manner in which the government investigated, managed, and prolonged
her case following those events.
plaintiff's

PAC

is

that

the

Accordingly,

proposed

the gravamen of

defendants

conspired

to

establish an illegal investigation in retaliation for her outspoken
opposition to the NSA's warrantless wiretap programs.
In Oregon,

the applicable limitations period for

action is two years.
(9th

Cir.

1991)

a Bivens

See Van Strum v. Lawn, 940 F.2d 406, 410-11

(forum

state's

personal

limitations applies in Bivens actions); Or.

injury
Rev.

statute

Stat.

§

of

12.110

(two year statute of limitations for personal injury actions) .

Page 7 - OPINION AND ORDER

While the statute of limitations is derived from state law, federal
law determines when the limitations period accrues.
F.3d at 1009 (citation omitted).

See Papa, 281

A claim accrues under federal law

when the plaintiff "knows or has reason to know of the injury" that
is

the

basis

of

the

action.

Western

Ctr.

For

Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000).

Journalism v.
Thus, a "Bivens

claim arising out of a search accrues on the date of the search."
Kortlander, 816 F.Supp.2d at 990 (citing Kreines v. United State,
959 F.2d 834,

836

(9th Cir.

1992); and Johnson v.

Comm'n Bd., 925 F.2d 1299, 1300 (lOth Cir. 1991)).

Johnson Cnty.
Therefore, any

claims arising out of the July 26, 2007 search and seizure, or the
prior illegal surveillance upon which the warrant for that search
was

allegedly based,

instituted this

accrued on that

lawsuit

nearly

five

date.
years

Because plaintiff
later,

her

proposed

Bivens claims are time-barred.
Plaintiff acknowledges that she commenced this lawsuit over
two years after the allegedly illegal search and seizure at issue.
See Pl.'s Reply to Mot. Amend 18.

Nevertheless, plaintiff argues

that any Bivens claim did not begin to accrue until she became
aware of the full nature 2 of the government's constitutional torts:

2

Plaintiff relies on Toussie v. United States, 397 U.S. 112
(1970), in support of her argument.
In Toussie, the Supreme
Court held that a failure to register for the draft could not be
deemed a continuing offense for purposes of the statute of
limitations.
See Toussie, 397 U.S. at 123-24. Accordingly,
Tousie is inapplicable, as the case at bar does not require this
Court to examine tolling in the context of the government's
Page 8 - OPINION AND ORDER

"[plaintiff]

did not have sufficient evidence that there was a

deliberate conspiracy against her until a generic/group affidavit
applying to the 2007 search and seizure at her home was unsealed in
November, 2012."

Id. at 18-19 (emphasis omitted).

Initially, because the Court accepts as true all of the wellpleaded allegations in the PAC, proof of the injury is irrelevant
at this stage in the proceedings.

Further, a continuing violation

is occasioned only "by continual unlawful acts, not by continual
ill effects from an original violation."

Ward v. Caulk, 650 F.2d

1144,

order

1147

(9th

Cir.

1981).

Thus,

in

to

qualify

as

a

continuing violation, "repeated instances or continuing acts of the
same nature" must be the basis of the claim.

Sisseton-Wahpeton

Sioux Tribe of Lake Traverse Indian Reservation,
Dakota v.

United

States,

denied, 498 U.S. 824
at

1157

("[f]or

a

895

F.2d

588,

597

N.

(9th

Dakota & S.
Cir.),

cert.

(2000); Western Ctr. For Journalism, 235 F. 3d
continuing

violation

to

be

established,

a

plaintiff must show a series of related acts, one or more of which
falls

within

the

limitations

period")

( citations

and

internal

quotations omitted).
Here,
allegations

plaintiff's

pleadings

that may be

relevant

and
to

briefs

her

contain

four

continuing violations

theory:

(1) the government's December 2009 false charge of felony

perjury

based

on

statements

she

made

at

ability to indict under a criminal statute.
Page 9 - OPINION AND ORDER

the

February

2007

interview;

( 2)

January 2013,
Plaintiff

the

government's

"that in fact,

and

no

intention

investigation"

or

file

failure

to

inform

her,

until

there is no open investigation of
by

criminal

the

government

charges;

( 3)

to

the

reopen

the

government's

retention of seized property; and (4) the government's "refusal to
confirm or deny the indications of a possible sneak and peek entry
sometime prior to July 26, 2007, or other trespass." 3

Pl.'s Reply

to Mot. Amend 19-25 (citations, internal quotations, and emphasis
omitted) .
Plaintiff has not cited to, and the Court is not aware of, any
authority applying the continuing violations doctrine under such
circumstances.

To the contrary, courts examining this issue hold

that the threat of prosecution existing after an allegedly illegal
search "is a continuing impact from that search repeated

instance

or

a

continuing

Kortlander, 816 F.Supp.2d at 991.

act

of

the

it is not a
same

nature."

The same is true for the failure

to timely prosecute or provide notification that no charges would
be

filed.

Moreover,

the

government's

retention

of

the

property seized from plaintiff's residence in July 2007 is likewise

3

She also asserts that "there appears to have been
prolonged and illegal electronic monitoring of Plaintiff." Pl.'s
Reply to Mot. Amend 23. While ongoing illegal searches and
surveillance may qualify as a series of related acts for the
purposes of the continuing violations doctrine, the PAC does not
include any facts regarding such events. As such, the Court is
unable to determine whether the proposed defendants' alleged
surveillance was related to the investigation or extended into
the limitations period.
Page 10 - OPINION AND ORDER

a continuing impact from that search.

Accordingly, because the PAC

is premised on the ill effects of the proposed defendants' failure
to properly investigate

the

2005

and 2006

leaks,

any proposed

Bivens claims relating to or arising out of the July 2007 search
and seizure would be futile.

Therefore,

plaintiff's motion to

amend her complaint is denied.
II.

Failure to State a Claim
Even assuming that the proposed Bivens claims were not time-

barred, plaintiff's motion is nonetheless denied because the PAC
fails to state a claim.

To state a Bivens claim, a "plaintiff must

allege facts, not simply conclusions, that show that an individual
was personally involved in the deprivation of [her] civil rights."
Barren v. Harrington, 152 F.3d 1193, 1194
denied,
Strum,

525 U.S.

1154

(1999)

940 F. 2d at 409

(9th Cir. 1998), cert.

(discussing 42 U.S.C.

("Bivens'

§

1983); Van

actions are identical to those

brought under 1983 except for the substitution of a federal actor
for a state actor"); see also Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009) .

As such, a plaintiff is required to establish each Bivens

defendant's

"integral

unconstitutional conduct.

the

alleged

participation"

in

Chuman v. Wright,

76 F.3d 292, 294-95

(9th Cir. 1996).
Here, the PAC fails to meet these requirements.

Plaintiff has

not alleged that any of the proposed individual defendants are
federal officers who harmed her while acting in their individual
capacities.

In addition,

Page 11 - OPINION AND ORDER

the PAC does not outline any acts or

omissions by the proposed defendants or provide any allegations
about

their

issue.

participation

in

the

constitutional

violations

at

In fact, beyond the first page, the PAC does not contain a

single reference to any proposed defendant.

Plaintiff responds

with discussion about the individually named defendants; however,
most

of

this

demonstrate

information

these

is

indi victuals'

allegedly unconstitutional
lawsuit.

either

irrelevant

or

neglects

"integral participation"

events

that

form

the

basis

in
of

to
the

this

See Pl.'s Reply to Mot. Amend 5-18.

Additional deficiencies appear in the PAC which suggest that
plaintiff will be unable to state a Bivens claim against some of
the

putative

defendants.

For

attorneys as defendants in PAC.

instance,

plaintiff

named three

If these individuals are named

based on actions taken in their prosecutorial capacities, then such
a claim would fail on the basis of absolute immunity.
v. State of Cal., 564 F.2d 849, 856 (9th Cir. 1977)

See Briley

("prosecutorial

immunity extends to the process of plea bargaining as an integral
part of the judicial process"); see also Van de Kamp v. Goldstein,
555

u.s. 335, 341-43 (2009).

Similarly, plaintiff's reply brief

indicates that the former and current directors of the NSA are
named as Bivens defendants because they supervised individuals who
violated her constitutional rights; however, such a claim would be
futile

because

actions."

"respondeat

superior

is

inapplicable

to

Bivens

Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991)

Page 12 - OPINION AND ORDER

(citations omitted); see also Moss v. U.S. Secret Serv., 675 F.3d
1213, 1230-31 (9th Cir. 2012).
Finally, it is questionable whether plaintiff would be able to
sustain a Bivens claim based on a criminal investigation that was
in retaliation for whistleblowing activities.

As discussed above,

the circumstances under which a Bivens claim can be maintained have
been carefully circumscribed; the decision whether to recognize a
new Bivens remedy generally requires evaluation of two factors.
First, the court must consider whether there is "any alternative,
existing

process

for

protecting

the

plaintiffs'

interests."

Western Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1120,
cert. denied,
550).

130 S.Ct. 2402

(2010)

(quoting Wilkie,

551 U.S. at

If no such alternative remedy exists, the court proceeds to

the next step and inquires "whether there nevertheless are 'factors
counseling hesitation'
action."

I d.

before devising such an implied right of

(quoting Wilkie, 551 U.S. at 550) .

Due to the other inadequacies in plaintiff's pleadings, the
Court

declines

While

not

to

formally

dispositive,

the

undertake
Court

this

two-prong

nonetheless

notes

analysis.
that

the

proposed claims fall outside of established Bivens jurisprudence.
The only other court that has examined this issue held that a
plaintiff cannot evince the existence of a
based on a retaliatory investigation.
F. 3d 828, 850-51

See Rehberg v.

(11th Cir. 2010), aff'd,

Page 13 - OPINION AND ORDER

constitutional tort
Paulk,

132 S.Ct. 1497

611

(2012).

Similarly,

plaintiff "does not have an implied cause of action

under Bivens for a Fifth Amendment takings claim."
v. Fishel, 2004 WL 1630240, *8 (D.Or. July 19, 2004).

Anoushiravani
Thus, it is

questionable whether plaintiff can plead a Bivens claim as a matter
of law.

Therefore, plaintiff's motion to amend is denied.
CONCLUSION

Plaintiff's motion to amend the complaint (doc. 18) is DENIED.
The government's motion to dismiss

(doc.

8)

is DENIED as moot.

Pursuant to plaintiff's stipulation and this Court's finding that
her

Bivens

claims

are

not

approved,

plaintiff's

request

for

voluntary withdrawal from this lawsuit without prejudice regarding
the constitutional claims is GRANTED, leaving for litigation a Fed.
R. Crim. P. 41(g) lawsuit for return of property.
IT IS SO ORDERED.
Dated this

/~day of March 2013.

Ann Aiken
United States District Judge

Page 14 - OPINION AND ORDER