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Hashemian v. United States Marshals

United States District Court, D. Alaska

December 11, 2019



          TIMOTHY M. BURGESS United States District Judge.

         On December 7, 2018, Scott Lewis Hashemian, a self-represented prisoner, filed a Prisoner's Complaint under the Civil Rights Act 42 U.S.C § 1983, with the Prisoner's Application to Waive Prepayment of the Filing Fee (“Motion to Waive Filing Fee”).[1] Additionally, Mr. Hashemian filed a Civil Cover Sheet, a “Motion to Compel/or Release Video Footage of Incident on 10-22-18 by Anchorage Jail East Complex” (“Motion to Compel”), and “Notice of Motion.”[2] Following this Court's Order dismissing the Complaint without prejudice for failure to state a claim on which relief may be granted, on April 30, 2019, Mr. Hashemian filed a First Amended Complaint (“Amended Complaint”).[3]

         On July 2, 2019, this Court issued an Order Directing Service and Response certifying that he has plausibly alleged a claim under 42 U.S.C. § 1983 and instructions on how to perform service on his case.[4] On July 25, 2019, the United States requested leave to enter amicus curiae.[5] The United States raised concerns that Mr. Hashemian's claim was certified under 42 U.S.C. § 1983 in error, that if he did have a claim it would be under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (2017) for an alleged constitutional violation caused by a federal actor. Additionally, the United States contested the recommended course of service provided by the Court's Order at Docket 10.

         In response, the Court issued an Order permitting the United States to enter as an amicus curiae and asked the United States to brief the following questions, in light of the recent Supreme Court decision of Ziglar v. Abbasi, 582 U.S.___, 137 S.Ct. 1843 (2017):

(1) Does Mr. Hashemian's claim, construed as a Bivens claim, allege a new context, and therefore require an extension of Bivens?
(2) What special factors, if any, counsel hesitation of judicial intervention in Mr. Hashemian's circumstances? and
(3) Whether Mr. Hashemian's allegation present any cognizable claim under the Federal Tort Claims Act, 28 U.S.C. § 1346.[6]

         The Government responded on October 11, 2019, and in sum, answered the Court's questions that: (1) Mr. Hashemian's allegations likely present a new context of Bivens; (2) there are alternative remedies and special factors counseling hesitation that the Court may need to consider; and (3) it is likely the Federal Tort Claims Act applies to both of Mr. Hashemian's claims, and that should he properly procedurally exhaust he may be able to amend his complaint to add two viable Federal Tort Claims Act claims.[7]

         In light of this additional briefing, the Court now rescreens Mr. Hashemian's First Amended Complaint. In his first claim, Mr. Hashemian alleges that on October 22, 2018, at approximately 8:00 a.m., an unknown U.S. Marshal physically assaulted him in violation of his federal Fourth Amendment constitutional rights.[8]Mr. Hashemian alleges that he had been called to attend court and was waiting to be transported there from Anchorage Correctional Complex East. He alleges that one of the marshals (“Unknown Marshal #1”) repeatedly said “I gotta search you, ” handcuffed him behind his back, and put him in “leg irons” face down on the floor.[9]

         Mr. Hashemian further alleges that while on the ground, Unknown Marshal #1 pulled down his pants and underwear to his knees and physically groped his groin, genitals and buttocks with “jabbing motions.”[10]

         Mr. Hashemian asserts that this conduct was not “standard procedure” and it caused him physical and mental pain and that he sustained injuries. Mr. Hashemian alleges sharp pain in his genitals; wrist and ankle pain caused by the restraints cutting into his skin; bodily injury to his groin, penis and buttocks areas. Furthermore, Mr. Hashemian asserts mental anguish and “ever since . . . I'm scared to be around U.S. Marshals and transport officers.”[11]

         In his second claim, Mr. Hashemian alleges another unknown U.S. Marshal (Unknown Marshal #2) witnessed the events of Claim 1 but did not intervene or stop the physical and sexual assault by Unknown Marshal #1.[12] Mr. Hashemian alleges that Unknown Marshal #2 watched the assault and failed to respond to his yells for help.

         For relief, Mr. Hashemian requests $1, 000, 000.00 in damages and $1, 000, 000.00 in punitive damages.[13] He also seeks an order requiring the defendants to “pay monetary funds for Fourth Amendment civil rights violation and punitive damages” and to “pay money for physical, mental, sexual, abuse, anguish caused by U.S. Marshals.”[14]


         Federal law requires a court to conduct an initial screening of a civil complaint filed by a self-represented prisoner seeking a waiver of the prepayment of the filing fee. In this screening, a court shall dismiss the case at any time if the court determines that the action:

(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.[15]

         To determine whether a complaint states a valid claim for relief, courts consider whether the complaint contains sufficient factual matter that, if accepted as true, “state[s] a claim to relief that is plausible on its face.”[16] In conducting its review, a court must liberally construe a self-represented plaintiff's pleading and give the plaintiff the benefit of the doubt.[17] Before a court may dismiss any portion of a complaint for failure to state a claim upon which relief may be granted, the court must provide the plaintiff with a statement of the deficiencies in the complaint and an opportunity to amend or otherwise address the problems, unless to do so would be futile.[18]


         Mr. Hashemian seeks to bring a § 1983 civil rights action against two federal employees. Mr. Hashemian alleges that his Fourth Amendment right to be free from unreasonable search and seizure was violated by two U.S. Marshals through alleged acts of (1) assault and battery and (2) negligence.

         Mr. Hashemian's allegations likely state violations of the Federal Tort Claims Act (FTCA). However, Mr. Hashemian has not exhausted his claims in accordance with the administrative procedure required by the FTCA. Therefore at this time, the Court lacks subject matter jurisdiction over any FTCA claims Mr. Hashemian may be attempting to raise. Once Mr. Hashemian has exhausted his administrative remedies directly with the U.S. Marshals Service, then he may submit these claims to the District Court, which at that time would likely establish subject matter jurisdiction to adjudicate his allegations under the FTCA.

         As to his constitutional allegations, and in light of the recent Supreme Court decision in Ziglar v. Abbasi, it is questionable whether Mr. Hashemian can seek relief under the implied cause of action created by Bivens claims. In order for the Court to extend Bivens to Mr. Hashemian's claims, the Court must conduct a two-step analysis finding (1) if the allegations constitute a “new Bivens context, ” and if so, that (2) no “special factors” counseling hesitation would control or negate his claims. Due to the unsettled law surrounding his constitutional claims and the availability of alternative remedies under the FTCA (through the administrative process), the Court declines to make a decision as to whether a Bivens claim exists, in order that Mr. Hashemian may first pursue his administrative remedies under the FTCA. As a result, the Court will dismiss the action without prejudice, so that Mr. Hashemian may fully and properly seek administrative relief directly from the U.S. Marshals Service as required by the Federal Tort Claims Act. Should Mr. Hashemian not receive relief directly from the U.S. Marshals Service, then Mr. Hashemian may revive his allegations by filing a new complaint with three possible claims:

(1) a claim under the FTCA against U.S. Marshal #1 for the torts of assault and/or battery;
(2) a claim under the FTCA against U.S. Marshal #2 for the tort of negligence; and
(3) a claim alleging a constitutional violation of his Fifth Amendment right to due process by a federal actor, Unknown U.S. Marshal #1, under Bivens. Accordingly, the Court hereby dismisses Mr. Hashemian's case and provides the following guidance for Mr. Hashemian to seek relief.

         I. Federal Tort Claims Act

         In general, the United States government, as well as its officers and agencies, are shielded from civil lawsuits under the doctrine of sovereign immunity.[19] This doctrine prevents private citizens from suing the federal government except in certain limited circumstances. As a result, federal courts do not have jurisdiction to hear cases brought against the United States, its officers, or its agencies, unless either (1) the federal government has agreed to the suit; or (2) sovereign immunity has been waived by an act of Congress.[20] Without such a waiver, Federal Courts must dismiss a suit against the federal government.

         The FTCA is a federal statute that operates as a limited waiver of the United States' traditional sovereign immunity. Under the FTCA, private parties can bring certain civil suits against the federal government for monetary damages.[21]Specifically, the FTCA “waives the sovereign immunity of the United States” and allows lawsuits to proceed against the United States, its agencies, or its officers and employees “for certain torts committed by federal employees.”[22]

         However, the FTCA is limited in several ways. First, FTCA claims against federal government employees require that the named defendant(s) were “acting within the scope of his office or employment.”[23] As defined in the FTCA, an “employee of the government” includes (1) “officers or employees of any federal agency . . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.”[24]

         Second, the FTCA “discretionary function exception” bars any FTCA claim where the conduct of the government employee at issue is “based upon the exercise or performance or failure to exercise or perform a discretionary function or duty . . . whether or not the discretion involved be abused.”[25] This means that in many cases, if the government employee is exercising “an element of judgment or choice” in taking action, and that judgment “involves considerations of social, economic, or political policy, ” if this exception applies a claimant cannot recover any damages.[26]

         Third, FTCA claims can seek only money damages for the injury itself: no injunctive or equitable relief is available.[27] Any recovery is limited to compensation for the injury itself, and cannot include punitive damages.

         And, last, in most cases the FTCA allows only tort claims for negligence; i.e., claims that assert an injury was “caused by the negligent or wrongful act or omission” of a government employee.[28] The only exception is that claims may be brought against law enforcement officers for certain intentional torts, including assault, battery, and false arrest, [29] so long as those intentional torts occur within the scope of the defendant's employment.[30] This is known as the law enforcement proviso.[31]

         Prior to initiating a lawsuit in federal court, however, an individual who seeks to recover money damages from the government under the FTCA must first raise their claims-i.e., “exhaust” their claims-with the appropriate federal agency.[32]To meet the exhaustion requirement, a claimant must first “present” the claim in a timely manner to the “appropriate Federal agency, ”[33] otherwise, any lawsuit asserting those claims will be dismissed because “'[t]he requirement of an administrative claim ...

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