Navarrette v. Department of Homeland Security

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 TOMMY NAVARRETTE, Case No.: 3:22-cv-0006-LL-AHG

12 Plaintiff, REPORT AND

RECOMMENDATION

13 v.

RECOMMENDING THE COURT

14 ROBIN WREN, GRANT DEFENDANT’S MOTION

TO DISMISS

15 Defendant.

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[ECF No. 26]

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1 Before the Court is the Motion to Dismiss Plaintiff’s Complaint for failure to state a

2 claim, filed by Defendant Special Agent Robin Wren of the Department of Homeland

3 Security Homeland Security Investigations (“Defendant”) on January 24, 2023. ECF No.

4 26. Defense counsel filed a Certificate of Service the same day, establishing that Plaintiff

5 was served with the Motion to Dismiss via First Class U.S. Mail. ECF No. 27. Plaintiff has

6 failed to respond to the Motion to Dismiss, despite being given ample notice of the motion

7 as well as a sua sponte extension of the response deadline. See ECF No. 31. In light of the

8 Court’s Order of Referral (ECF No. 30), this Report and Recommendation is submitted to

9 United States District Judge Linda Lopez pursuant to 28 U.S.C. § 636(b)(1) and Local Civil

10 Rule 17.1(a) of the United States District Court for the Southern District of California.

11 After reviewing the Motion to Dismiss and all supporting documents, and for the reasons

12 discussed below, the Court RECOMMENDS that the District Court GRANT the Motion,

13 and DISMISS this action with prejudice.

14 I. BACKGROUND

15 Plaintiff, who is proceeding pro se, first filed this action on January 4, 2022. ECF

16 No. 1. At the time, Plaintiff was incarcerated at the Santa Rita Jail, and the Court denied

17 his motion to proceed in forma pauperis (“IFP”) for failing to attach his inmate account

18 statement for the 6-month period immediately preceding the filing of his Complaint and

19 dismissed the action without prejudice for failure to pay the filing fee. See ECF No. 4.

20 Plaintiff renewed his motion to proceed IFP and notified the Court that he was no longer

21 incarcerated on February 11, 2022. ECF No. 5. After reviewing the renewed IFP motion,

22 the Court granted Plaintiff leave to proceed IFP and found that his Complaint stated a

23 plausible claim under the Fourth Amendment for false arrest against the individual

24 defendants Jane Doe 1 and Jane Doe 2 sufficient to survive the “low threshold” for sua

25 sponte screening under 28 U.S.C. § 1915(e)(2) and § 1915A(b). ECF No. 6 at 5-6.

26 However, the Court required Plaintiff to identify the Doe Defendants and substitute those

27 individual persons as parties before permitting Plaintiff’s claims to proceed, and granted

28 Plaintiff leave to amend his pleading to name the individual officers. Id. at 6-7.

1 Plaintiff filed the operative First Amended Complaint (“FAC”) on March 25, 2022,

2 naming Special Agent Robin Wren as an individual Defendant. ECF No. 7. In the FAC,

3 Plaintiff alleges that on January 10, 2020, he traveled from Los Angeles, California to

4 Tijuana, Mexico “to get some dental work completed and to visit some friends.” Id. ¶ 7.

5 While in Tijuana, Plaintiff alleges that he “accidentally took the wrong freeway and ended

6 up in the Sentry line to [] cross back to the U.S.[,]” presumably at the San Ysidro Port of

7 Entry. Id. ¶¶ 7-8. Plaintiff states that he had 14 grams of medical-grade marijuana and black

8 organic African soap in the trunk of his vehicle. Id. ¶ 7. Plaintiff states that, after speaking

9 to a border patrol agent, he was sent to secondary inspection, where agents located the

10 marijuana and told him that he would be cited and released within approximately one hour.

11 Id. ¶ 8. Plaintiff alleges he was “handcuffed to a metal bench where he sat for 8 hours

12 waiting to be cited for the marijuana[,]” and after approximately 8 hours, Defendant Special

13 Agent Robin Wren took Plaintiff into an interview room and began to interrogate him about

14 the substance in the trunk that Plaintiff identifies as black organic African soap. Id.

15 According to the FAC, Plaintiff was unsure what substance Defendant was referring to and

16 was not able to answer her questions, and he was consequently “abruptly arrested and

17 transported to MCCSD where he was booked and arrested for possession of MDMA and

18 attempting to transport a controlled substance across the border into the U.S.” Id.

19 According to the FAC, the charges against Plaintiff were eventually dismissed on

20 February 5, 2020 after testing showed that the soap from his trunk did not contain any

21 controlled substances, and he was released from jail. Id. ¶ 11. Plaintiff alleges that the

22 substance “never tested positive for MDMA or characteristics of MDMA[,]” and accuses

23 Defendant Wren of falsifying the initial field test of the substance showing that it tested

24 positive for MDMA and “manufacturing” the probable cause statement she submitted in

25 support of Plaintiff’s arrest. Id. ¶¶ 10-12.

26 Plaintiff alleges that while he was illegally detained for 21 days between January 10

27 and January 31, 2020, his 2014 Toyota Prius (valued at approximately $14,000) was seized

28 and auctioned off, his United States passport (valued at approximately $150) and iPhone 8

1 (valued at approximately $900) were either misplaced or stolen by Defendant Wren, his

2 16-year-old daughter was displaced from the apartment she shared with Plaintiff and

3 became homeless, and Plaintiff suffered lost wages in the amount of $2,000. Id. ¶¶ 12-13.

4 Plaintiff further states that due to the stress of the situation, he suffered a bipolar manic

5 episode that lasted 4 months, during which he lost his apartment and ultimately ended up

6 in the San Francisco area, where he was involved in a physical altercation that led to

7 another arrest and a two-year incarceration in the Santa Rita Jail. Id. ¶ 13. Plaintiff

8 attributes his incarceration in the Santa Rita Jail to the incident underlying this case on the

9 basis that it triggered his manic episode, and contends that he also experienced cruel and

10 unusual punishment while in the Santa Rita jail. Id. ¶ 14. Based on these allegations,

11 Plaintiff contends that Defendant Wren violated his Fourth, Fifth, and Fourteenth

12 Amendment rights under the Constitution as well as his due process rights under the

13 California Constitution. Id. ¶¶ 15-20.

14 On May 16, 2022, upon screening of the FAC, the Court found that Plaintiff stated

15 a plausible claim against Defendant Wren for false arrest pursuant to the Fourth

16 Amendment and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

17 403 U.S. 388 (1971), sufficient to survive screening under 28 U.S.C. § 1915(e)(2). ECF

18 No. 9 at 3-4. The Court accordingly ordered the U.S. Marshal Service to effect service on

19 Defendant Wren and required her to file a responsive pleading to the FAC. Id. at 4-5.

20 Defendant filed the instant Motion to Dismiss on January 24, 2023, arguing that

21 Plaintiff’s constitutional claims present unwarranted extensions of Bivens, that Plaintiff’s

22 state constitutional claim is precluded by law, and that Defendant is entitled to qualified

23 immunity. ECF No. 26.

24 To date, Plaintiff has failed to file a response to the Motion to Dismiss, despite being

25 given a sua sponte extension of time to do so and being warned that failure to do so could

26 properly be construed as consent to grant the motion. See ECF No. 31; see also CivLR

27 7.1.f.3.c (explaining that the non-moving party’s failure to file an opposition to a motion

28 “may constitute a consent to the granting of a motion”); Ghazali v. Moran, 46 F.3d 52, 54

1 (9th Cir. 1995) (upholding a lower court’s application of a similar Local Rule, and finding

2 that a motion to dismiss may be granted as unopposed where a pro se litigant fails to file

3 any response because “pro se litigants are bound by the rules of procedure”). Nonetheless,

4 the undersigned recommends that the Court address Defendant’s Motion to Dismiss on the

5 merits, rather than granting the motion based solely on Plaintiff’s failure to respond.

6 II. LEGAL STANDARD

7 Generally, to survive a motion to dismiss under Rule 12(b)(6), a complaint must

8 “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

9 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

10 Twombly, 550 U.S. 544 , 570 (2007)). In making this assessment, the Court “must take all

11 allegations of material fact as true and construe them in the light most favorable to the

12 nonmoving party.” Turner v. City and Cty. of S.F., 788 F.3d 1206, 1210 (9th Cir. 2015).

13 Although the Rule 8 pleading standard does not require “detailed factual allegations,” it

14 demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation. . . .

15 Threadbare recitals of the elements of a cause of action, supported by mere conclusory

16 statements, do not suffice.” Iqbal, 556 U.S. at 678. To state a facially plausible claim, the

17 complaint must contain “factual content that allows the court to draw the reasonable

18 inference that the defendant is liable for the misconduct alleged.” Id. The “facial

19 plausibility” standard is not akin to a “probability requirement,” but “it asks for more than

20 a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.

21 at 556).

22 In this case, Defendant’s Motion to Dismiss presents an antecedent legal question

23 that the Court should address before turning to whether the complaint contains a facially

24 plausible claim that Defendant violated Plaintiff’s constitutional rights. Namely, although

25 the FAC purports to bring claims against Defendant under 42 U.S.C. § 1983, since

26 Defendant is a federal agent, Plaintiff’s constitutional claims arise under Bivens v. Six

27 Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Russell

28 v. U.S. Dep’t of the Army, 191 F.3d 1016, 1019 (9th Cir. 1999) (“Section 1983 [] provides

1 no right of action against federal (rather than state) officials.”); Van Strum v. Lawn, 940

2 F.2d 406, 409 (9th Cir. 1991) (“Actions under § 1983 and those under Bivens are identical

3 save for the replacement of a state actor under § 1983 by a federal actor under Bivens.”).

4 Because Plaintiff’s claims arise under Bivens, which gives courts limited authority to create

5 causes of action against federal actors, the Court must first determine whether a judicially-

6 created cause of action may lie under Bivens at all.

7 In Bivens, the Supreme Court “held that it had authority to create ‘a cause of action

8 under the Fourth Amendment’ against federal agents who allegedly manacled the plaintiff

9 and threatened his family while arresting him for narcotics violations.” Egbert v. Boule,

10 142 S. Ct. 1793, 1802 (2022) (quoting Bivens, 403 U.S. at 397). In the Egbert decision, the

11 Court explained that in the approximately 50 years since Bivens was decided in 1971, it

12 had “twice again fashioned new causes of action under the Constitution” against federal

13 actors—first, for a congressional staffer’s Fifth Amendment sex-discrimination claim in

14 Davis v. Passman, 442 U.S. 228 (1979), and second, for a federal prisoner’s Eighth

15 Amendment claim for cruel and unusual punishment against federal jailers for inadequate

16 medical care in Carlson v. Green, 446 U.S. 14 (1980)—but had otherwise “not implied

17 additional causes of action under the Constitution.” Egbert, 142 S.Ct. at 1802 (citations

18 omitted). Moreover, the Egbert Court made clear that “[a]t bottom, creating a cause of

19 action is a legislative endeavor[,]” and accordingly, “recognizing a cause of action under

20 Bivens is a disfavored judicial activity.” Id. at 1802, 1803 (quotations and citation omitted).

21 Indeed, reviewing its own precedent, the Supreme Court explained just how rarely a Bivens

22 action should lie:

23 When asked to imply a Bivens action, “our watchword is caution.”

[Hernández v. Mesa, 140 S. Ct. 735, 742 (2020)]. “[I]f there are sound reasons

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to think Congress might doubt the efficacy or necessity of a damages

25 remedy[,] the courts must refrain from creating [it].” Ziglar [v. Abbasi, 582

U.S. 120, 137 (2017)]. “[E]ven a single sound reason to defer to Congress” is

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enough to require a court to refrain from creating such a remedy. Nestlé USA,

27 Inc. v. Doe, [] 141 S. Ct. 1931, 1937 [] (2021) (plurality opinion). Put another

way, “the most important question is who should decide whether to provide

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1 for a damages remedy, Congress or the courts?” Hernández, [] 140 S. Ct. at

750 (internal quotation marks omitted). If there is a rational reason to think

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that the answer is “Congress”—as it will be in most every case, see Ziglar,

3 [582 U.S. at 135-36]—no Bivens action may lie.

4 Egbert, 142 S. Ct. at 1803.

5 Therefore, when faced with a Bivens action, the first step of the Court’s analysis is

6 whether fashioning a judicial cause of action would require extending Bivens to a new

7 context. A “new context” is one that is “different in a meaningful way from previous Bivens

8 cases decided by this Court.” Ziglar, 582 U.S. at 139. In making this assessment, the Court

9 is limited to examining only the three cases in which the Supreme Court has found an

10 implied judicial cause of action against federal actors—i.e., Bivens, Davis, and Carlson—

11 and should not examine Bivens cases in lower courts. Egbert, 142 S. Ct. at 1803; Pettibone

12 v. Russell, 59 F.4th 449, 455 (9th Cir. 2023).

13 Second, whenever a plaintiff’s claims against a federal agent present a new Bivens

14 context, the action may not lie if there is “even a single sound reason” to think that Congress

15 is better-equipped to provide for a damages remedy than the federal courts. Egbert, 142 S.

16 Ct. at 1803. “[I]n all but the most unusual circumstances, prescribing a cause of action is a

17 job for Congress, not the courts.” Id. at 1800; see also, e.g., Mejia v. Miller, 61 F.4th 663,

18 669 (9th Cir. 2023) (“Under Egbert, rarely if ever is the Judiciary equally suited as

19 Congress to extend Bivens even modestly. The creation of a new cause of action is

20 inherently legislative, not adjudicative.”).

21 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory

22 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v.

23 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). Therefore, the antecedent Bivens

24 inquiry of “whether to allow an action for money damages in the absence of congressional

25 authorization” may appropriately be addressed at the motion to dismiss stage, prior to

26 addressing whether the complaint contains a plausible claim that the plaintiff suffered a

27 constitutional violation or whether qualified immunity applies. See Ziglar, 137 S. Ct. at

28 1869; see also Marquez v. Rodriguez, No. 3:18-CV-0434-CAB-NLS, 2021 WL 2826075,

1 at *13 (S.D. Cal. July 6, 2021) (noting that “a court may determine on a motion to dismiss

2 whether a plaintiff can in fact proceed under Bivens when that question is ‘antecedent’ to

3 the issue of qualified immunity”) (citation omitted). In performing this inquiry, however,

4 the Court must still apply the familiar 12(b)(6) standard—that is, the Court must accept all

5 the facts alleged in the complaint as true, and the complaint should not be dismissed “unless

6 it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim

7 which would entitle him to relief.” Balistreri, 901 F.2d at 699.

8 III. DISCUSSION

9 In the Motion to Dismiss, Defendant argues that Plaintiff’s federal constitutional

10 claims should be dismissed because they represent an unwarranted extension of the Bivens

11 remedy in a new context. ECF No. 26 at 4-8. Additionally, Defendant argues that she is

12 entitled to immunity against Plaintiff’s state constitutional claim that she violated his due

13 process rights under the California Constitution. Id. at 8-9.

14 Notably, in the Court’s Order screening Plaintiff’s FAC, the Court found only that

15 Plaintiff stated a “plausible Fourth Amendment false arrest claim against Defendant Wren

16 sufficient to survive the ‘low threshold’ set for sua sponte screening as required by 28

17 U.S.C. § 1915(e)(2).” ECF No. 9 at 4. Therefore, it appears only Plaintiff’s Fourth

18 Amendment claim survived screening, and thus no other claims in the FAC remain at issue.

19 Nonetheless, in an abundance of caution, the undersigned will address Plaintiff’s state

20 constitutional claim before turning to its Bivens analysis of the federal constitutional claims

21 in the FAC.

22 A. Plaintiff’s state constitutional claim against Defendant Wren

23 In the second cause of action in his FAC, Plaintiff relies on Article 1, Section 7(a)

24 of the California Constitution, which provides that “[a] person may not be deprived of life,

25 liberty, or property without due process of law or denied equal protection of the laws[.]”

26 Cal. Const. art. I, § 7(a). Plaintiff alleges that Defendant Wren violated his rights under this

27 provision “by her actions of illegally arresting, unlawfully detaining plaintiff without

28 probable cause as well as through falsifying a test on the [black organic African soap,] then

1 amending her probable cause statement to state ‘characteristics’ of MDMA.” ECF No. 7

2 ¶¶ 16-17. Based on these allegations, Plaintiff claims that Defendant violated his due

3 process rights under the California Constitution because her actions “resulted in

4 deprivation of plaintiff’s life, liberty, and property.” Id. ¶ 18. As a remedy, Plaintiff seeks

5 (1) a declaratory judgment that Defendant violated his rights under the Fourth, Fifth, and

6 Fourteenth Amendments of the United States Constitution and the California Constitution

7 Article 1, Section 7(a), (2) a nominal judgment in the amount of $1.00, and (3) an award

8 of compensatory and punitive monetary damages in amounts to be determined at trial. Id.

9 at 12.

10 As an initial matter, in an extensive and detailed opinion, the California Supreme

11 Court has held that Article 1, Section 7(a) does not create a private right of action for

12 damages. Katzberg v. Regents of Univ. of California, 58 P.3d 339, 342-58 (Cal. 2002).

13 Therefore, to the extent Plaintiff is attempting to bring a claim for monetary damages

14 directly under that provision of the California Constitution, it must be dismissed.1

15 Further, to the extent Plaintiff’s claims against Defendant could be construed as

16 state-law tort claims, as Defendant Wren argues in her Motion to Dismiss, she enjoys broad

17 immunity from state tort claims under the Westfall Act. ECF No. 26 at 8 (citing United

18 States v. Smith, 499 U.S. 161, 163 (1991)); see also Westfall Act, codified in various

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21 1 Although California does not recognize a private right of action under Article 1, Section

7(a) of the California Constitution, plaintiffs alleging such violations may under certain

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circumstances bring suit under the Tom Bane Civil Rights Act, section 52.1 of the

23 California Civil Code, which is “the California state law analog to section 1983.” Johnson

v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1167 (9th Cir. 2013). However, to prevail

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on such a claim, he would have to allege that Defendant not only violated his rights under

25 the California Constitution, but also that she did so using “threats, intimidation, or

coercion.” Cal. Civ. Code § 52.1(b)-(c); Jones v. Kmart Corp., 949 P.2d 941, 943-44 (Cal.

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1998). Plaintiff has made no such allegations in the FAC that Defendant engaged in threats,

27 intimidation, or coercion, nor has he made any attempt to state a cause of action under the

Bane Act. Therefore, the potential availability of this private cause of action for state

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1 subsections of 28 U.S.C. §§ 2671, 2674, 2679. Under the Westfall Act, the “exclusive”

2 remedy for claims for injury or loss of property, or personal injury or death arising or

3 resulting from the negligent or wrongful act or omission of any federal employee acting

4 within the scope of their employment, is to bring an action under the Federal Tort Claims

5 Act. 28 U.S.C. § 2679(b)(1). “Any other civil action or proceeding for money damages

6 arising out of or relating to the same subject matter against the employee [] is precluded

7 without regard to when the act or omission occurred.” Id. The statute provides two

8 exceptions to the exclusive remedy provision, stating that it does not apply to a civil action

9 against a federal employee (A) which is brought for a violation of the Constitution of the

10 United States, or (B) which is brought for a violation of a statute of the United States under

11 which such action against an individual is otherwise authorized. Id. § 2679(b)(2)(A)-(B).

12 Therefore, because Defendant is a federal employee who was acting within the scope of

13 her employment as an HSI special agent when engaging in the conduct alleged in the FAC,

14 Plaintiff’s state-law claims for money damages against her must be dismissed.

15 That leaves the question of whether Plaintiff’s claim for a declaratory judgment that

16 Defendant violated his rights under the California Constitution may proceed. As explained

17 by the California Supreme Court in Katzenberg, although there is no private right of action

18 for damages available under Article 1, Section 7(a) of the California Constitution,

19 declaratory or injunctive relief may yet be available. See 58 P.3d at 355-56. However, the

20 FAC at hand does not present an appropriate basis for the Court to grant a declaratory

21 judgment. The purpose of a declaratory judgment is to offer “a means by which rights and

22 obligations may be adjudicated in cases brought by any interested party involving an actual

23 controversy that has not reached a stage at which either party may seek a coercive remedy

24 and in cases where a party who could sue for coercive relief has not yet done so.” Seattle

25 Audubon Soc. v. Moseley, 80 F.3d 1401, 1405 (9th Cir. 1996) (internal quotations and

26 citations omitted). Thus, declaratory judgment actions “are justiciable if ‘there is a

27 substantial controversy, between parties having adverse legal interests, of sufficient

28 immediacy and reality to warrant the issuance of a declaratory judgment.’” Id. (quoting

1 Nat’l Basketball Ass’n v. SDC Basketball Club, 815 F.2d 562, 565 (9th Cir. 1987)). In other

2 words, past acts cannot be the basis for declaratory judgment. Cotton v. Bashant, No. 18-

3 CV-325 TWR (DEB), 2021 WL 4942709, at *3 (S.D. Cal. Oct. 22, 2021). See also John

4 M. Floyd & Assocs., Inc. v. First Imperial Credit Union, No. 16-CV-1851 DMS (WVG),

5 2017 WL 4810223, at *5 (S.D. Cal. Oct. 25, 2017), aff'd, 771 F. App’x 840 (9th Cir. 2019)

6 (“A declaratory judgment is not a corrective action, and therefore, it should not be used to

7 remedy past wrongs.”). Where, as here, Plaintiff does not seek to “define the legal rights

8 and obligations of the parties in anticipation of some future conduct,” but rather seeks to

9 “proclaim liability for a past act[,]” no claim for declaratory relief can stand. See Couch v.

10 Morgan Stanley & Co., No. 1:14-CV-0010 LJO JLT, 2014 WL 1577463, at *7 (E.D. Cal.

11 Apr. 18, 2014) (quoting Lawrence v. Kuenhold, 271 F. App’x 763, 766 (10th Cir. 2008)).

12 Accordingly, to the extent Plaintiff’s claim against Defendant Wren arising under the

13 California Constitution survived screening in the first instance, the undersigned

14 recommends that the Court grant Defendant’s motion to dismiss it at this juncture.

15 B. Plaintiff’s federal constitutional claims against Defendant Wren

16 The Court now turns to the Bivens inquiry governing Plaintiff’s remaining federal

17 constitutional claims.

18 In determining whether a Bivens action may lie under the factual circumstances

19 presented by Plaintiff’s FAC, the Supreme Court’s decision in Egbert is directly on point

20 and must control the Court’s analysis. Specifically, Egbert involved a Fourth Amendment

21 excessive force claim and First Amendment retaliation claim against a Border Patrol agent,

22 sued in his individual capacity. See 142 S. Ct. at 1800-02. The Supreme Court found that

23 the Ninth Circuit Court of Appeals below “plainly erred” by creating causes of action for

24 the plaintiff’s claims against the agent, on the grounds that “Congress is better positioned

25 to create remedies in the border-security context” than are the courts, and “the Government

26 already has provided alternative remedies that protect plaintiffs” like the one in Egbert. Id.

27 at 1804. In reaching this conclusion, the Egbert court relied in part on its earlier decision

28 in Hernández v. Mesa, 140 S. Ct. 735 (2020), which also dealt with an excessive-force

1 claim against a Border Patrol agent. In Hernández, the Court refused to create a new federal

2 cause of action under Bivens because “regulating the conduct of agents at the border

3 unquestionably has national security implications,” and the “risk of undermining border

4 security provides reason to hesitate before extending Bivens into this field.” 140 S. Ct. at

5 747. The Egbert Court explained that the same “reasoning applies here with full force”

6 because, during the alleged altercation with the plaintiff, “Agent Egbert was carrying out

7 Border Patrol’s mandate to ‘interdic[t] persons attempting to illegally enter or exit the

8 United States or goods being illegally imported into or exported from the United States.’”

9 142 S. Ct. at 1804. (quoting 6 U.S.C. § 211(e)(3)(A)). Thus, “[b]ecause ‘[m]atters

10 intimately related to foreign policy and national security are rarely proper subjects for

11 judicial intervention,’ we reaffirm that a Bivens cause of action may not lie where, as here,

12 national security is at issue.” Egbert, 142 S. Ct. at 1804-05 (quoting Haig v. Agee, 453 U.S.

13 280, 292 (1981)). Reversing the Court of Appeals, the Supreme Court emphasized that the

14 Bivens inquiry requires the Court to answer “only one question: whether there is any

15 rational reason (even one) to think that Congress is better suited to weigh the costs and

16 benefits of allowing a damages action to proceed” and expressly stated that “the Judiciary

17 is comparatively ill suited to decide whether a damages remedy against any Border Patrol

18 agent is appropriate.” Egbert, 142 S. Ct. at 1805 (emphasis in original).

19 Additionally, the Supreme Court explained that Congress had provided alternative

20 remedies for the plaintiff, by requiring the United States Border Patrol to investigate

21 “[a]lleged violations of the standards for enforcement activities” and to accept grievances

22 from “[a]ny persons wishing to lodge a complaint.” Id. at 1806 (citing 8 C.F.R. §§

23 287.10(a)-(b)). Although the plaintiff in Egbert complained that this grievance process was

24 inadequate because he was not entitled to participate and had no right to judicial review of

25 an adverse determination, the Court explained that “[s]o long as Congress or the Executive

26 has created a remedial process that it finds sufficient to secure an adequate level of

27 deterrence, the courts cannot second-guess that calibration by superimposing a Bivens

28 remedy[,] even if a court independently concludes that the Government’s procedures are

1 not as effective as an individual damages remedy.” 142 S. Ct. at 1807 (internal quotations

2 and citation omitted).

3 Similarly, here, Plaintiff’s claims all arise in the context of border patrol security,

4 where Defendant Special Agent Robin Wren was carrying out national-security duties with

5 the Department of Homeland Security (“DHS”) as an agent for Homeland Security

6 Investigations (“HSI”). In the statute establishing DHS, Congress provided that part of the

7 Department’s “primary mission” is to “monitor connections between illegal drug

8 trafficking and terrorism, coordinate efforts to sever such connections, and otherwise

9 contribute to efforts to interdict illegal drug trafficking.” 6 U.S.C. § 111(b)(1)(H). As noted

10 by Defendant in her Motion, HSI is considered the “principal investigative arm” of DHS,

11 with “authority to conduct federal criminal investigations into the illegal cross-border

12 movement of people, goods, money, technology and other contraband throughout the

13 United States.” ECF No. 26 at 3 (quoting Homeland Security Investigations, U.S.

14 Immigration and Customs Enforcement, https://www.ice.gov/about-ice/homeland-

15 security-investigations (last updated April 14, 2023)). Therefore, the facts underlying

16 Plaintiff’s claims against Defendant for her role in investigating the nature of the substance

17 in his trunk at secondary inspection station of the border port of entry, and in preparing the

18 probable cause statement leading to his arrest and prosecution, directly involve issues of

19 national security. The Supreme Court has directed that “a Bivens cause of action may not

20 lie where [] national security is at issue.” Egbert, 142 S. Ct. at 1805. For that reason alone,

21 the Court should grant Defendant’s Motion to Dismiss.

22 Moreover, Congress has provided for alternative remedies for the harms alleged by

23 Plaintiff here. Specifically, with respect to Plaintiff’s claim that Defendant falsified the

24 field test results showing that the substance in his trunk tested positive for MDMA, the

25 Department of Homeland Security is required to investigate any such alleged violations of

26 the standards for enforcement activities pursuant to 8 C.F.R. § 287.10(a)-(b)—the same

27 regulation discussed in Egbert. Pursuant to that regulation, “alleged violations of the

28 standards for enforcement activities established in accordance with the provisions of

1 § 287.8 shall be investigated expeditiously consistent with the policies and procedures of

2 [DHS].” 8 C.F.R. § 287.10(a). Any person wishing to lodge a complaint that an officer has

3 violated the enforcement standards set out in § 287.8 may contact the DHS Office of the

4 Inspector General by mail or by phone to do so. 8 C.F.R. § 287.10(b). Section 287.8, in

5 turn, applies to “every immigration officer involved in enforcement activities” and

6 provides in pertinent part that “[a]n arrest shall be made only when the designated

7 immigration officer has reason to believe that the person to be arrested has committed an

8 offense against the United States or is an alien illegally in the United States” 8 C.F.R.

9 § 287.8(c)(2)(i). Therefore, under these regulations, Plaintiff could report the facts

10 underlying his false arrest claim against Defendant Wren by lodging a complaint with DHS

11 that she falsified the results of the field test and included false information in the probable

12 cause statement to justify his arrest, which would trigger an investigation.

13 Further, with respect to Plaintiff’s claim that Defendant falsified or manufactured

14 the information in the probable cause statement supporting Plaintiff’s arrest, the Hyde Act

15 provides for the payment of reasonable attorney fees and other litigation expenses to

16 criminal defendants who prevail against vexatious, frivolous, or bad-faith prosecutions.

17 Pub. L. No. 105–119, 111 Stat. 2440 (1997). See also Sheikh v. U.S. Dep’t of Homeland

18 Sec., No. 2:22-CV-00409 WBS AC, 2022 WL 16964105, at *4 (E.D. Cal. Nov. 16, 2022)

19 (relying on both 8 C.F.R. § 287.10(a)-(b) and the same section of the Hyde Act to find that

20 there were existing remedies available to address the alleged misconduct of HSI special

21 agent defendants). The Sheikh court faced very similar allegations to those at hand in the

22 present case—namely, the plaintiff there claimed that two HSI special agents conducted a

23 warrantless check on her property and later obtained a search warrant for the property based

24 on information they knew to be false. 2022 WL 16964105, at *2. Based on the evidence

25 allegedly falsified by the HSI agents, the plaintiff’s “property was searched, she was

26 indicted and held in jail for several hours, her reputation in the community was destroyed,

27 and she suffered severe emotional distress.” Id. Although the Sheikh court expressed “deep

28 concern with the actions of” the HSI agents, and agreed with the plaintiff “that the judiciary

1 may have an interest in enforcing a remedy for fabrication of evidence in a criminal case,

2 which directly affects the integrity of the judicial process[,]” the court nonetheless declined

3 to imply a cause of action under Bivens because “Congress [] is much better equipped than

4 the courts to fashion a remedy tailored to address this particular concern.” Id. at *2, *5.

5 The Court should apply the same analysis here. Even assuming the facts of Plaintiff’s

6 FAC to be true—i.e., that Defendant Special Agent Wren fabricated the field test results

7 showing that the soap in Plaintiff’s trunk tested positive for MDMA, and later provided

8 false information in the probable cause statement that led to Plaintiff’s arrest and

9 prosecution—the Court is not in a position to fashion a new cause of action under Bivens

10 to address that misconduct. As explained in Egbert, “Congress is better positioned to create

11 remedies in the border-security context” than are the courts, and “the Government already

12 has provided alternative remedies that protect plaintiffs” who are the victims of false arrest

13 and prosecution at the hands of federal agents charged with maintaining border security.

14 Id. at 1804. See also Sheikh, 2022 WL 16964105, at *5-*6.

15 Based on the foregoing analysis, the undersigned recommends that the Court dismiss

16 Plaintiff’s federal claims in the FAC for failure to state a cognizable legal theory, because

17 no Bivens action may lie against Defendant Special Agent Wren under the facts alleged.

18 See Balistreri, 901 F.2d at 699 (explaining that dismissal is proper under Rule 12(b)(6) for

19 failure to state a cognizable legal theory); Ziglar, 137 S. Ct. at 1869 (dismissing detention

20 policy claims under Bivens at the motion to dismiss stage, on the basis that special factors

21 counseled against extending the Bivens remedy to the new context presented by the claims);

22 Egbert, 142 S. Ct. at 1804-05 (explaining that regulating the conduct of agents at the border

23 “unquestionably has national security implications,” and reaffirming that the Bivens

24 remedy may not be extended to any context where “national security is at issue.”)

25 (quotations and citation omitted).

26 \\

27 \\

28 \\

I IV. CONCLUSION

2 For the reasons explained above, the undersigned RECOMMENDS that the Court

3 ||GRANT Defendant’s Motion to Dismiss (ECF No. 26) in its entirety, and DISMISS this

4 || action with prejudice.’

5 The Court submits this Report and Recommendation to United States District Judge

6 ||Linda Lopez under 28 U.S.C. § 636(b)(1). Any party to this action may file written

7 || objections with the Court and serve a copy on all parties no later than May 25, 2023. The

8 document should be captioned “Objections to Report and Recommendation.”

9 IT IS SO ORDERED.

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11 ||Dated: May 11, 2023

_SpbiormH. Xion

Honorable Allison H. Goddard

13 United States Magistrate Judge

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26 Because Plaintiff's FAC should be dismissed on the basis that he has failed to state either

27 cognizable state constitutional claim under state law or a cognizable federal constitutional

28 claim under Bivens, the undersigned does not reach Defendant’s qualified immunity

argument.