United States District Court, D. Alaska
AMENDED SCREENING ORDER
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]
SCREENING
REQUIREMENT
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]
DISCUSSION
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 ...