Greiner v. Wall et al

Filing 188

ORDER denying 154 Defendants' Motion to Dismiss; signed by Judge Ronald B. Leighton.(DN)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JUNE B. GREINER, a single woman,
Plaintiff,

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v.

CASE NO. C14-5579RBL
ORDER

CAMERON WALL, et al.,

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Defendants.

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THIS MATTER is before the Court on Defendants’ Motion to Dismiss [Dkt. #154].

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Defendants argue that Plaintiff Greiner’s Bivens claim against them should be dismissed on two

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grounds: (1) this Court should not extend Bivens to a “new context,” and (2) most of the

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defendants are entitled to qualified immunity. The Court has reviewed the law on the evolving

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standards rising out of Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) and its

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progeny, particularly Zigler v. Abbasi, 137 S.Ct. 1843 (2017). Based upon the facts and

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circumstances of this case the motion is DENIED on both counts.

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I. FACTS
The Defendant IRS Agents were involved in a multi-Agency, complex, national and
international investigation of drug trafficking and money laundering. The participating agencies

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included Homeland Security, the IRS, the U.S. Postal Service, the Washington County, Oregon

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Sheriff’s Office, the High Intensity Drug Area Interdiction Taskforce, and the Portland Police

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Bureau. On December 17, 2013, nine Federal IRS law enforcement officers, armed and dressed

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in SWAT gear, arrived at Greiner’s front door to serve and execute a search warrant. They

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sought to obtain financial records as part of an FBI criminal investigation into a third party. The

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planning and execution of the search warrant was supposed to follow the training received by all

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state and federal law enforcement officers.

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The Agents serving the warrant received a copy of the approved search warrant plan in
the days leading up to its execution. Each attended a pre-operational briefing at the staging

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location at 6:45 a.m. on December 17, 2013. At the pre-operational briefing, Agent Wall

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summarized the operational plan, went over contingency plans, and made sure that each Agent

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knew their role in the service of the search warrant. Agents Mar and Martin began pre-warrant

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surveillance at Plaintiff’s residence at 7:00 a.m. The remaining Agents travelled from the staging

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location to plaintiff’s residence and served the search warrant at approximately 7:30 a.m.

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The approved search warrant plan stated that three two-person entry teams would “stack

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up” on the front door. The first team included Agents Daniels and Crouse. Daniels was

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designated to “knock and announce,” and Crouse was to log the evidence. The second team

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included Agents Johnson and Cole. Johnson was designated to sketch the residence, and Cole

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was designated as the evidence custodian/seizing Agent. The third team included Agents Fearn

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and Gleason. Fearn was designated an interview Agent and Gleason was designated as the

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photographer. Agents Mar and Ward were assigned to outside cover during service of the search

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warrant, and they did not “stack up” at the door. Wall was the Team Leader and Martin was to

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conduct pre-warrant surveillance. Under the plan, “IRS-CI will conduct normal entry procedures.

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IRS-CI will conduct a normal knock and announce and will give the occupants of the residence a

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reasonable amount of time to answer the door. . . . Agent Daniels will knock on the front door

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and announce police with a search warrant.”

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This Court dismissed Greiner’s claims on summary judgment, and she appealed. The

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Ninth Circuit reversed, holding that a genuine issue of material fact (whether the agents knocked

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and announced) required a trial. Defendants now seek dismissal of Greiner’s Bivens claim on the

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pleadings under Rule 12(c). They argue:

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is ineffective the Supreme Court’s decision in Ziglar v. Abbasi, 137 S. Ct. 1843

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(2017);

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2.

Each agent is entitled to qualified immunity because they were “mere bystanders”
to Agent Daniel’s allegedly unlawful entry; and

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Greiner’s effort to extend Bivens into a “new context” for constitutional remedies

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Greiner’s 18 U.S.C. § 3101 “knock and announce” statutory claim must be

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dismissed because federal employees can only be sued in their individual capacity

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under Bivens for constitutional claims and because the statute provides no private

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cause of action.

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Greiner does not oppose dismissal of her statutory claim because it was already

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dismissed, but she does point out that 18 U.S.C. § 3101 simply adopts the common and

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constitutional law describing when a federal law enforcement officers can “break open any outer

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or inner door” to “execute a search warrant.”
II. STANDARD OF REVIEW

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A motion for judgment on the pleadings under Rule 12(c) is “functionally identical” to a
motion to dismiss for failure to state a claim under Rule 12(b)(6). Dworkin v. Hustler

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Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). The same judicial standard applies to

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motions brought under either rule. Cagasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054

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n.4 (9th Cir. 2011). The only significant difference is that a Rule 12(c) motion is brought after

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an answer has been filed, but early enough not to delay trial, whereas a Rule 12(b)(6) motion

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must be filed before an answer. Fed. R. Civ. P. 12(b)-(c).

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In ruling on a Rule 12(c) motion, the Court must assume that the allegations in the

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challenged complaint are true and construe the complaint in the light most favorable to the

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nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However,

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the Court need not accept conclusory legal allegations as true. Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009).
A motion for judgment on the pleadings is “properly granted when, taking all the

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allegations in the pleadings as true, the moving party is entitled to judgment as a matter of

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law.” Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir. 1998). Dismissal is “appropriate

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only where the complaint lacks a cognizable legal theory or sufficient facts to support a

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cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th

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Cir. 2008).

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III. ARGUMENT

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A. The Facts of this Case Clearly Fall Within the Classic Contour of Bivens Jurisprudence.

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In 42 U.S.C. § 1983, Congress provided a specific damages remedy for plaintiffs whose

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constitutional rights are violated by state officials. Congress provided no corresponding remedy

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for constitutional violations by agents of the Federal Government. Against this background, in

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1971 this Court recognized in Bivens an implied damages action to compensate persons injured

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by federal officers who violated the Court Amendment’s prohibition against unreasonable

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searches and seizures. In the following decade, the Supreme Court allowed Bivens-type remedies

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twice more, in a Fifth Amendment gender-discrimination case, Davis v. Passman, 442 U.S. 228

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(1979), and in an Eighth Amendment Cruel and Unusual Punishments Clause case, Carlson v.

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Green, 446 U.S. 14 (1980). These are the only cases in which the Court has recognized an

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implied damages remedy under the Constitution itself. Bivens, Davis and Carlson were decided

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at a time when the prevailing law assumed that a proper judicial function was to “provide such

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remedies as are necessary to make effective” a statute’s purpose. J.I. Case Co. v. Borak, 377 U.S.

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426, 433 (1964). The Court has since adopted a far more cautious course, clarifying that, when

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deciding whether to recognize an implied cause of action, the “determination” question is one of

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statutory intent. Alexander v. Sandoval, 532 U.S. 275, 286 (2001).

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If a statute does not evince Congress’ intent “to create the private right of action

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asserted,” Touche Ross Co. v. Redington, 442 U.S. 560, 568 (1979), no such action will be

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created through judicial mandate. Similar caution must be exercised with respect to damages

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actions implied to enforce the Constitution itself. Bivens is well-settled law in its own context,

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but expanding the Bivens remedy is a “disfavored” judicial activity. Ashcroft v. Iqbal, 556 U.S.

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662, 675 (2009).

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When a party seeks to assert an implied cause of action under the Constitution,

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separation-of-powers principles should be central to the analysis. The question is whether

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Congress or the courts should decide to authorize a damages suit. Bush v. Lucas, 462 U.S. 367,

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380 (1983). Most often it will be Congress, for Bivens will not be extended to a new context if

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there are “special factors counselling hesitation in the absence of affirmative action by

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Congress.” Carlson, supra, 446 U.S. at 18. If there are sound reasons to think Congress might

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doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law

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and correcting a wrong, courts must refrain from creating that kind of remedy. An alternative

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remedial structure may also limit the Judiciary’s power to infer a new Bivens cause of action.

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Ziglar v. Abbasi, 137 S.Ct. 1843, 1854-57 (2017); see also Hernandez v. Mesa, ____ S.Ct.____

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(2020) 2020 WL 889193.

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The proper test for determining whether a claim arises in a new Bivens context is as

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follows. If the case is different in a meaningful way from previous Bivens cases, then the context

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is new. Meaningful differences may include, e.g., the rank of the officers involved; the

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constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of

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disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of

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potential special factors not considered in previous Bivens cases.

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The planning and the execution of the December 17, 2013, Search Warrant hits the sweet

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spot of Fourth Amendment search and seizure principles that enforce the training of every law

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enforcement officer in America. The defendants argue that because they are IRS agents, and not

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some other law enforcement agents who were trained under the same rules, protocols and laws as

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the IRS agents, they should nevertheless be treated differently. The Ninth Circuit already

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addressed and rejected the distinction. Ione v. Hodges, 939 F.3d 945 (9th Cir. 2019).

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B. Defendants Are Not Entitled to Qualified Immunity.

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If Greiner’s allegations are true and well-pled, the question is whether a reasonable

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officer in the defendants’ position would have known the alleged conduct was an unlawful

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conspiracy. The qualified-immunity inquiry turns on the “objective legal reasonableness” of the

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officials acts. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982), “assessed in light of the legal

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rules that were ‘clearly established’ at the time [the action] was taken,” Anderson v. Creighton,

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483 U.S. 635, 639 (1987). If it would have been clear to a reasonable officer that the alleged

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conduct “was unlawful in the situation he confronted,” Saucier v. Katz, 533 U.S. 194, 202,

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(2001), the defendant officer is not entitled to qualified immunity. But if a reasonable officer

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might not have known that the conduct was unlawful, then the officer is entitled to qualified

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immunity. Ziglar v. Abbasi, 137 S.Ct. at 1866 (2017).

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The “knock and announce” law has long been clearly-established. If Greiner can establish

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that individual defendants failed to follow that law, she may pursue Bevins actions against those

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individuals. Chuman v. Wright, 76 F.3d 292, 294-295 (9th Cir. 1996).

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There are material issues of fact to be resolved by a jury. These include whether the

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officers gave Greiner the required “notice” (knock and announce) before breaking her front door

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and entering. If they did not, the jury will have to determine which individual defendant officers

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knew beforehand of the “audible” to skip that part of the agreed-upon. The record established

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thus far will not allow the Court to decide these questions in summary fashion. For these reasons,

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the Defendants’ motion on qualified immunity is DENIED.

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IT IS SO ORDERED.

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Dated this 2nd day of March, 2020.

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A

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Ronald B. Leighton
United States District Judge

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