Arias v. Herzon

680 F.Supp.3d 61

2023 DNH 076

Robert ARIAS v. Noah A. HERZON, et al.

Civil No. 17-cv-516-LM

United States District Court, D. New Hampshire

Signed June 27, 2023

Jeremy David Eggleton, Orr & Reno PA, Concord, NH, for Robert Arias.

Robert Arias, Bruceton Mills, WV, Pro Se.

Michael T. McCormack, Terry L. Ollila, U.S. Attorney's Office, Concord, NH, for FNU Day, Noah A. Herzon, Ty Kurcharski, FNU Bernard.

ORDER

Landya McCafferty, United States District Judge

Plaintiff Robert Arias alleges that several Drug Enforcement Administration ("DEA") agents used excessive force on him (or failed to intervene against other agents' use of excessive force) when they arrested him in September 2016. Arias's claims arise under the Fourth Amendment. He seeks damages from the defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

Defendants move for summary judgment (doc. no. 66). They rely on recent Supreme Court precedent, Egbert v. Boule, 596 U.S. 482, 142 S. Ct. 1793, 213 L.Ed.2d 54 (2022), that strictly limits the applicability of Bivens outside of its original "context." Defendants contend that Arias's excessive force and failure-to-intervene claims seek to apply Bivens to a new context. Arias disagrees and contends that both claims survive summary judgment because they "fall within the ambit of Bivens."

For the reasons that follow, the court agrees with defendants and grants their motion for summary judgment.

STANDARD OF REVIEW

Summary judgment is proper only if the moving party can demonstrate that there is no evidence in the record to support a judgment for the nonmoving party. Borges v. Serrano-Isern, 605 F.3d 1, 5, 8 (1st Cir. 2010); see also Fed. R. Civ. P. 56(a). In evaluating a motion for summary judgment, the courts must view the evidence in the light most favorable to the nonmoving party, must draw all reasonable inferences in that party's favor, and may neither make credibility determinations nor weigh the evidence. Harris v. Scarcelli, 835 F.3d 24, 29 (1st Cir. 2016); Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014).

BACKGROUND

The following facts are drawn from the court's (McAuliffe, J.) first summary judgment order (doc. no. 56). They are uncontested for purposes of the issue before the court.

Law enforcement officers investigating drug trafficking made several controlled purchases of fentanyl-laced heroin from Arias. On September 8, 2016, the 6 named defendants¹ and 12 other federal law enforcement officers arrested Arias. Arias's arrest was authorized by an arrest warrant. All of the defendants are either DEA agents or local police officers assigned to a DEA task force.

The arrest occurred at the parking lot of the Rockingham Park Mall in Salem, New Hampshire. Arias arrived at the mall in a car driven by his pregnant wife, Carmen Jose. Arias sat in the front passenger seat. Carmen Jose pulled the car into a parking spot. Several police cars pulled in, blocking Arias's car into the spot. Seeing that she had nowhere to move the car, Carmen Jose put the car into park. The officers, many in plain clothes, approached the car with their weapons drawn.

The officers tried to remove Arias from the car, but he was wearing a seatbelt. An officer cut Arias's seatbelt and dragged him from the car, took him to the ground, and handcuffed him. Both Arias and Carmen Jose complied with all of the officers' commands. The officers stated in affidavits that the arrest was quick and nonviolent. They say that Arias suffered no injuries of significance.

By contrast, Arias stated in an affidavit that the officers dragged him from the car by his neck. Once the officers had Arias on the ground, they handcuffed him, stepped on his legs, and hit his head against the ground. Arias involuntarily urinated in his pants because of the fear the officers caused him. At some point, Arias lost consciousness. Carmen Jose recounted a similar version of events in her affidavit.

Arias brought this suit in 2017. He alleges that the arresting officers used excessive force against him in violation of the Fourth Amendment. He alleges that the officers who watched his violent arrest but failed to protect him also violated the Fourth Amendment.

Arias seeks money damages for the alleged physical and emotional injuries that he suffered. In January 2021, this court (McAuliffe, J.) denied defendants' motion for summary judgment on the ground of qualified immunity. Defendants filed this second motion for summary judgment after the Supreme Court's decision in Egbert v. Boule.

DISCUSSION

Relying on Egbert, defendants argue that the court must dismiss Arias's claims for excessive force and failure to intervene in the use of excessive force because this case applies Bivens in a "new context." Arias responds that the circumstances of his claims are, in all material respects, like those of Bivens. After reviewing the applicable law, the court addresses Arias's excessive-force claims first and his failure-to-intervene claims second.

The Fourth Amendment prohibits federal officers from using excessive force on arrestees. E.g., Miranda-Rivera v. Toledo-Davila, 813 F.3d 64, 70-71 (1st Cir. 2016). While 42 U.S.C. § 1983 permits plaintiffs to bring damages suits against state officials for constitutional violations, there is no analogous statutory cause of action for such suits against federal officials. See Ziglar v. Abbasi, 582 U.S. 120, 130-31, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017). Notwithstanding that absence of statutory authorization, the Supreme Court held in Bivens that an arrestee could bring a suit under the Fourth Amendment for damages from the federal officers who searched his home and arrested him, allegedly using excessive force in the process. 403 U.S. at 397, 91 S.Ct. 1999. Subsequently, the Supreme Court recognized a similar "implied cause of action" under the constitution in two other suits seeking damages for alleged constitutional violations. First, in Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Court held that a former congressional staffer could bring a suit for damages against a United States Congressman for sex discrimination in violation of the Fifth Amendment. Then, in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the Court held that a deceased federal inmate's estate could bring a suit for damages against prison officials for their failure to provide the inmate adequate medical treatment in violation of the Eighth Amendment.

But since deciding Carlson, the Supreme Court has "consistently refused" to extend Bivens despite numerous opportunities to do so. See Abbasi, 582 U.S. at 135, 137 S.Ct. 1843; see also Drewniak v. U.S. CBP, 554 F. Supp. 3d 348, 355 (D.N.H. 2021) (collecting Supreme Court cases). More recently, the Supreme Court "has scaled back Bivens significantly, delivering a trilogy of opinions expressing opposition toward any expansion of Bivens actions." See Bulger v. Hurwitz, 62 F.4th 127, 136 (4th Cir. 2023) (citing Egbert, 142 S. Ct. at 1803, Hernandez v. Mesa, 589 U.S. 93, 140 S. Ct. 735, 741, 206 L.Ed.2d 29 (2020), and Abbasi, 582 U.S. at 135, 137 S.Ct. 1843). This approach derives from the Court's separation-of-powers concerns, as the Supreme Court has expressed its view that Congress—not the courts—should determine whether a private right of action for damages should exist for constitutional violations. See Abbasi, 582 U.S. at 133-34, 137 S.Ct. 1843 ("[I]t is a significant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation.").

At the same time, the Supreme Court has not overruled Bivens. Egbert, 142 S. Ct. at 1803 ("[R]ather than dispense with Bivens altogether, we have emphasized that recognizing a cause of action under Bivens is 'a disfavored judicial activity.' "). Instead, the Supreme Court has imposed "a highly restrictive two-step analysis," which limits when claims for damages against federal officers may proceed. Bulger, 62 F.4th at 136-37.

Under the first step, the court must determine whether the claim seeks to apply Bivens in a "new context" or involves a "new category of defendant." Id. at 137 (quoting Hernandez, 140 S. Ct. at 743). A case presents "a new Bivens context" if it is "meaningfully" different from all three cases in which the Supreme Court has authorized damages claims against federal officers for constitutional violations. Egbert, 142 S. Ct. at 1803; Bulger, 62 F.4th at 137. Meaningful differences may include:

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 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 function of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

Abbasi, 582 U.S. at 140, 137 S.Ct. 1843 (emphasis added). Thus, a meaningful difference from Bivens exists where a claim presents "special factors" which the Supreme Court did not consider in Bivens. Id. In Egbert, the Supreme Court made clear that an alternative remedial structure, created by either the Executive or by Congress, is one such "special factor" that courts must consider in making this determination. See 142 S. Ct. at 1806-07. This followed from the Supreme Court's earlier holdings that legislatively created comprehensive alternative remedies can make the "situation altogether different from Bivens." See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 73, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001); Bush v. Lucas, 462 U.S. 367, 378, 385-86, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); see also ...