Kennedy v. Osmanski, III

United States District Court

District of Massachusetts

)

Korluh Kennedy, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 22-11152-NMG

The Commonwealth of )

Massachusetts et al., )

)

Defendants. )

)

MEMORANDUM & ORDER

This case arises out of an alleged warrantless search of

the residence of Korluh Kennedy (“Kennedy” or “plaintiff”) by

Special Agent Joseph Osmanski (“Osmanski” or “defendant”) and

several other law enforcement officers, including members of the

Massachusetts State Police and the Worcester Police Department.

Plaintiff filed suit against Osmanski, several members of the

Massachusetts State Police and the Commonwealth of Massachusetts

(“defendants”).

Pending before the Court is Special Agent Osmanski’s motion

to dismiss.

I. Background

A. Factual History

At approximately 6:30 a.m. on April 10, 2019, Korluh

Kennedy was roused from her sleep by loud banging on her front

door at 184 Cohasset Street, Worcester, Massachusetts. When she

approached the door, she was confronted by a large group of

armed police officers pointing weapons at her and her tenant, a

young mother nursing an infant. After Kennedy opened the door,

the police officers immediately rushed into her residence,

without her consent or a search warrant. The officers told her

they were searching for her son, Augustus B. Kormah (“Kormah”),

for whom they had an arrest warrant.

Three weeks prior to the search, Kormah was stopped by

Massachusetts State Police for a moving traffic violation in

Worcester. Kormah consented to a search of his car during which

the state police trooper found a small red bag suggestive of

Oxycodone. Kormah was arrested and charged with a crosswalk

violation and possession of a Class B substance (Oxycodone). He

was scheduled for arraignment in the Worcester District Court on

March 25, 2019, but he did not appear and the court issued an

arrest warrant. Kormah did not reside at his mother’s house at

the time of the arrest, nor at the time of the search. When the

officers burst into her residence, Kennedy immediately informed

them that Kormah did not live there and was not present with

her.

Despite being so informed, defendants conducted an

extensive search of Kennedy’s entire residence, from garage to

attic, going through bathrooms, bedrooms and the kitchen,

dumping boxes and drawers. Two police K-9 officers brought

their dogs into the house to sniff it systematically and one of

the dogs urinated on Kennedy’s belongings. According to the

complaint and the photographs submitted as exhibits to the

complaint, the officers completely “trashed” plaintiff’s

residence, leaving it in “disastrous condition.”

After about 45 minutes, Kennedy asked the officers, none of

whom had identified themselves to her, if they had a search

warrant. Defendant Thiago Miranda, a Massachusetts State Police

trooper, told her they did not. When she informed them she

would call her lawyer, Miranda and the co-defendants packed up

their equipment and left the scene. She asked for their contact

information but Miranda refused to reveal his name or identity

and failed to mention that he worked for the Massachusetts State

Police.

B. Procedural History

On April 8, 2022, Kennedy filed a ten-count complaint in

the Massachusetts Superior Court for Suffolk County. She

alleged violations of 42 U.S.C. § 1983, a Bivens claim for

violation of the Fourth Amendment, trespass, invasion of

privacy, conspiracy, assault, violation of the Massachusetts

Civil Rights Act, M.G.L. c. 112 § 111M, intentional infliction

of emotional distress, violation of Massachusetts Public Records

Law, M.G.L. c. 66 § 10 and violation of the Massachusetts Torts

Claims Act, Chapter 258.

In July, 2022, Osmanski filed a notice of removal with this

Court pursuant to 28 U.S.C. § 2679(d)(1), certifying that he was

acting within the scope of his employment with the federal

government at the time of the incident out of which the

complaint arose.

The Commonwealth of Massachusetts promptly moved to sever

and remand Counts VIII and IX, the two state law claims against

it. In October, 2022, this Court allowed the Commonwealth’s

motion to sever and remand and dismissed the Commonwealth from

the present action.

With respect to the state law claims against Osmanski, the

United States (“the government”) substituted itself for him and

moved to dismiss those claims in September, 2022. The Court

allowed the government’s motion to dismiss without prejudice to

permit plaintiff to exhaust her administrative remedies and then

amend her complaint.

On behalf of Osmanski, the government now moves to dismiss

plaintiff’s Bivens claim against him in his individual capacity.

Plaintiff opposes that motion and the American Civil Liberties

Union of Massachusetts has filed an amicus brief encouraging the

Court to deny the motion to dismiss. For the reasons that

follow, the pending motion will be denied.

II. Motion to Dismiss

A. Legal Standard

To survive a motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6), the subject pleading must state a claim for relief

that is actionable as a matter of law and “plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

facially plausible if, after accepting as true all non-

conclusory factual allegations, the “court [can] draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Ocasio-Hernandez v. Fortuno-Burset, 640

F.3d 1, 12 (1st Cir. 2011) (quoting Iqbal, 556 U.S. at 678).

When rendering that determination, a court may not look

beyond the facts alleged in the complaint, documents

incorporated by reference therein and facts susceptible to

judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st

Cir. 2011). A court also may not disregard properly pled

factual allegations even if “actual proof of those facts is

improbable.” Ocasio-Hernandez, 640 F.3d at 12 (quoting Twombly,

550 U.S. at 556). Rather, the necessary “inquiry focuses on the

reasonableness of the inference of liability that the plaintiff

is asking the court to draw.” Id. at 13. The assessment is

holistic:

the complaint should be read as a whole, not parsed

piece by piece to determine whether each allegation,

in isolation, is plausible.

Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013)

(quoting Ocasio-Hernandez, 640 F.3d at 14).

B. The Bivens Doctrine

1. Background

Since 1971, the “Bivens doctrine [has] allow[ed] plaintiffs

to vindicate certain constitutionally protected rights through a

private cause of action for damages against federal officials in

their individual capacities.” DeMayo v. Nugent, 517 F.3d 11, 14

(1st Cir. 2008).

In Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971), the plaintiff alleged that

Federal Bureau of Narcotics agents entered his New York City

apartment without a warrant. In the absence of exigent

circumstances or consent, “a warrantless search of the home is

presumptively unconstitutional” under the Fourth Amendment. Groh

v. Ramirez, 540 U.S. 551, 564 (2004). Thus, the federal agents

unlawfully searched the residence and subsequently arrested

plaintiff for narcotics violations in front of his wife and

children without probable cause. Bivens, 403 U.S. at 389. The

Supreme Court held that a violation of the Fourth Amendment by a

federal agent acting under color of his authority gives rise to

a cause of action for damages, thus establishing a Bivens claim.

Id. at 397.

Throughout the following decade, the Supreme Court extended

the cause of action first articulated in Bivens to: (1) a Fifth

Amendment due process claim for sex discrimination, David v.

Passman, 442 U.S. 228 (1979), and (2) an Eighth Amendment

deliberate indifference claim for failure to provide proper

medical attention, Carlson v. Green, 446 U.S. 14 (1980). Along

with Bivens itself, those three contexts are the sole causes of

action recognized by the Supreme Court today under Bivens.

Egbert v. Boule, 142 S. Ct. 1793, 1802 (2022).

2. Two-Step Analysis

The Supreme Court uses a two-step inquiry to inform its

analysis of a Bivens claim. Id. at 1803:

(1) First, [the Court] ask[s] whether the case presents

a new Bivens context, i.e., is it meaningfully

different from the three cases in which the Court

has implied a damages action.

(2) Second, if a claim arises in a new context, a Bivens

remedy is unavailable if there are special factors

indicating that the Judiciary is at least arguably

less equipped than Congress to weigh the costs and

benefits of allowing a damages action to proceed.

Id. (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1858-60 (2017)

(internal quotation marks omitted)); see also González v. Vélez,

864 F.3d 45, 52-53 (1st Cir. 2017). Furthermore, the Supreme

Court has held that a court may not create a new Bivens cause of

action if Congress or the Executive has already provided “an

alternative remedial structure.” Id. at 1804 (quoting Ziglar,

137 S. Ct. at 1858).

3. Limitations on Bivens

In recent years, the Supreme Court has emphasized that

recognizing an implied cause of action under Bivens is a

“disfavored judicial activity.” Ziglar, 137 S. Ct. at 1857. The

Supreme Court has stressed repeatedly that Congress, not the

judiciary, should be responsible for providing a damages remedy

in most situations. Indeed, in the Supreme Court’s most recent

pronouncement on Bivens, Egbert v. Boule, 142 S. Ct. 1793

(2022), the Court explains that the Bivens two-step inquiry

“often resolve[s] to a single question: whether there is any

reason to think that Congress might be better equipped to create

a damages remedy.” 142 S. Ct. at 1803.

Although the Supreme Court in Egbert declares that if it

were to decide Bivens today, it would decline to discover any

implied causes of action in the Constitution, it did not

overturn Bivens. Id. at 1809. In fact, the majority opinion

concludes by stating, “to decide the case before us, we need not

reconsider Bivens itself.” Id.

C. Application

Special Agent Osmanski moves to dismiss because he argues

that Egbert v. Boule sharply curtailed the precedent set by

Bivens, making it nearly impossible for a plaintiff to bring a

Bivens claim against a federal law enforcement officer.

Defendant’s memorandum of law is peppered with quotes from the

Egbert majority opinion in an attempt to suggest that the

Supreme Court’s disinclination to expand Bivens in fact

prohibits almost all Bivens remedies but defendant fails to

acknowledge that Bivens and its progeny in the First Circuit

remain the law today.

To determine if a Bivens action may proceed, a court must

first evaluate whether the claim arises in a “new context,”

meaning a different setting than those present in the three

cases in which the Supreme Court has implied a damages action.

Egbert, 142 S. Ct. at 1803.

Osmanski contends that Kennedy’s claim presents a new

Bivens context and thus the Court must conduct a special factors

analysis under step two of the inquiry. In support of that

argument, he relies on the fact that the Egbert case presented

“almost parallel circumstances” yet the Supreme Court held that

Egbert arose in a new Bivens context. Id. at 1805-06. In

response, Kennedy submits that Osmanski misconstrues her claim

as a new Bivens context, when her case, in fact, falls squarely

within the cause of action that the Supreme Court originally

created in Bivens.

The Court is unconvinced by defendant’s primary argument.

Although the facts of Egbert were somewhat comparable to Bivens

in that they involved a federal law enforcement officer

assaulting a citizen on his own property, the Supreme Court held

that Egbert arose in a new national security context because the

incident occurred close to the Canadian border and involved a

Customs and Border Patrol agent. See id. at 1800-01, 1806.

Defendant next contends that two differences between the

facts of Bivens and Kennedy’s claim necessitate a finding that

the case at bar arises in a new context: (1) Bivens involved

agents from the now-defunct Federal Bureau of Narcotics, whereas

Osmanski is an FBI agent and (2) the federal agents in Bivens

were without a warrant while Osmanski possessed an arrest

warrant for Kennedy’s son.

Although Osmanski is correct that an entirely “new category

of defendants” arises in a new context, he neglects to mention

that such language originated in Correctional Services Corp. v.

Malesko, 534 U.S. 61, 68 (2001), in which the Supreme Court

declined to apply Bivens to a private prison defendant because

corporations are a “new category of defendants.” See Ziglar, 137

S. Ct. at 1857 (citing 534 U.S. at 68). FBI agents are not a

“new category of defendants.” First Circuit precedent allows

Bivens claims against FBI agents for Fourth Amendment violations

based on unjustified house searches. See Pagán-González v.

Moreno, 919 F.3d 582, 600-01 (1st Cir. 2019) (holding that FBI

agents were not entitled to qualified immunity in a Bivens

action arising from a warrantless search of plaintiff’s home in

violation of the Fourth Amendment).

Moreover, First Circuit precedent establishes the viability

of Bivens claims in the aftermath of an unreasonable search

during a routine law enforcement investigation. See DeMayo v.

Nugent, 517 F.3d 11, 17 (1st Cir. 2008) (finding the elements of

a cause of action under Bivens established when a Drug

Enforcement Agency (“DEA”) agent and state police officers

unlawfully searched plaintiffs’ residence during the controlled

delivery of a suspicious package).

An arrest warrant does not permit federal agents to search

the home of a third party, such as Kennedy, without exigent

circumstances or consent. See United States v. Steagald, 451

U.S. 204, 212-16 & n.7 (1981). Therefore, based on the facts as

alleged in the complaint, the possession of an arrest warrant

does not negate the unreasonable nature of the search and the

Court concludes that Kennedy’s claim is not a new Bivens

context.

Kennedy’s cause of action arises in the same context as

that of Bivens itself: federal agents conducting an unreasonable

search of someone’s residence without a search warrant. Thus,

it does not present a new cause of action that would require

this Court to proceed to step two to evaluate if there are

special factors indicating that Congress would be better suited

to create a damages remedy. See Egbert, 142 S. Ct. at 1803.

Furthermore, because this Court is not fashioning a new Bivens

context, the Court need not consider alternative remedial

structures. Id. at 1804.

Egbert did not overrule Bivens nor did it overrule the

First Circuit’s relevant Bivens jurisprudence. See Pagán-

González, 919 F.3d at 600-01; DeMayo, 517 F.3d at 17. This

Court is bound to apply existing First Circuit precedent which

would allow a Bivens cause of action under the facts of this

case. Accordingly, the Court finds that Kennedy has stated a

claim for relief under Bivens against Special Agent Osmanski.

ORDER

For the forgoing reasons, the motion of Joseph Osmanski to

dismiss (Docket No. 32) is DENIED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated November 30, 2022