# Oliveras v. New York City

> District Court, S.D. New York · February 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10321055

## Case

- **Court:** District Court, S.D. New York
- **Decided:** February 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MONET OLIVERAS,
Plaintiff,
-v.-
UNITED STATES DEPARTMENT OF HOMELAND
SECURITY INVESTIGATIONS SPECIAL 16 Civ. 9619 (KPF)
RESPONSE TEAM OFFICER ROBERT BASILE;
UNITED STATES DEPARTMENT OF HOMELAND OPINION AND ORDER
SECURITY SPECIAL RESPONSE TEAM OFFICER
SCOTT VOGEL; and UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
INVESTIGATIONS SPECIAL RESPONSE TEAM
OFFICER JOHN DOE,
Defendants.
KATHERINE POLK FAILLA, District Judge:
Plaintiff Monet Oliveras brings this action against two named officers of
the United States Department of Homeland Security Investigations Special
Response Team, Robert Basile and Scott Vogel, as well as an unnamed John
Doe officer (collectively, “Defendants”). Plaintiff alleges that in the early
morning of April 27, 2016, Defendants Basile and Vogel used “flash bangs”
while executing the arrest of a resident of her apartment building. These
explosives threw Plaintiff backwards, injuring and frightening her, and
shattered two of her windows. When Plaintiff tried to leave her apartment, the
John Doe officer prevented her from doing so.
Plaintiff originally brought her claims against the United States and
unnamed DHS officers, but the Court dismissed the claims against the United
States for lack of subject matter jurisdiction. See Oliveras v. United States, 371
F. Supp. 3d 105 (S.D.N.Y. 2019). Defendants, now being sued in their
individual capacities through a Bivens claim, bring a second motion to dismiss,
this time pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants

argue that: (i) Plaintiff has not brought a cognizable Bivens claim; (ii) they are
entitled to qualified immunity; and (iii) Plaintiff has not alleged a violation of
the Fourth Amendment. For the reasons set forth in the remainder of this
Opinion, the Court agrees that Plaintiff has not brought a claim on which relief
can be granted, and accordingly grants Defendants’ motion to dismiss.
BACKGROUND1
A. Factual Background
Plaintiff resided at all relevant times in a basement apartment at 1649

Taylor Avenue in the Bronx. (FAC ¶ 7). Plaintiff’s apartment is part of a
multistory building, but her apartment has a separate entrance from the rest of
the building. (Id. at ¶¶ 27-28). Plaintiff’s apartment is accessed from a
separate front door on the side of the building, which door is itself accessible
by a stairway running from the street down to the door, whereas all other
apartments in the building are accessed through the main front door of the
apartment building. (Id. at ¶¶ 29-31). Plaintiff’s apartment unit is the only one
accessible through that side door. (Id. at ¶ 30).

1 The facts contained in this Opinion are drawn from Plaintiff’s Fourth Amended
Complaint, which is the operative pleading in this case and is referred to in this Opinion
as the “FAC” (Dkt. #61). For ease of reference, the Court refers to the parties’ briefing
as follows: Defendants’ opening brief as “Def. Br.” (Dkt. #71); Plaintiff’s opposition brief
as “Pl. Opp.” (Dkt. #73); and Defendants’ reply brief as “Def. Reply” (Dkt. #74).
On April 27, 2016, Plaintiff was asleep in her apartment when she was
awakened by a noise from outside at approximately 4:00 a.m. (FAC ¶¶ 11-12).
Plaintiff got out of bed to shut the window when there was a flash and

explosion outside. (Id. at ¶¶ 13-14). The explosion threw Plaintiff backwards,
causing her to hit her head and back against the wall, and shattered a window
in her apartment. (Id. at ¶¶ 15-16). A second flash and explosion followed,
shattering an additional window. (Id. at ¶¶ 18-19). The explosions emanated
from flash bangs2 that Defendants Basile and Vogel had thrown during their
execution of an arrest warrant on the first floor of Plaintiff’s building. (Id. at
¶¶ 20, 26). The flash bangs detonated in the areaway outside of Plaintiff’s
basement apartment. (Id. at ¶ 33).

Plaintiff experienced numerous aftereffects from the explosions, including
a ringing in her ears and dizziness from hitting her head. (FAC ¶¶ 21-22).
Plaintiff also had trouble catching her breath, and her eyes began to sting from
the residual vapor and fumes from the explosions. (Id. at ¶¶ 22-23). Plaintiff
went to her front door and found the John Doe DHS officer outside in full
tactical gear, with his gun drawn. (Id. at ¶ 24). The unnamed officer informed
Plaintiff that she could not leave her apartment. (Id. at ¶ 25). None of the
Defendants provided Plaintiff with any explanation as to what was occurring,

exacerbating Plaintiff’s fearful state of mind. (Id. at ¶¶ 34-35).

2 There is some confusion between the parties as to whether the explosive devices at
issue in this action should be referred to as “flash bombs” (see FAC ¶¶ 20, 33), or “flash
bangs” (see Def. Br. 1 n.1). For the sake of consistency, the Court will refer to them as
flash bangs.
Eventually, Plaintiff was permitted to leave her apartment. (FAC ¶ 36).
Although Plaintiff asked Defendants for medical attention, she was ignored and
instead forced to call an ambulance for herself. (Id. at ¶¶ 37-38). At the

hospital, Plaintiff suffered from burning in her eyes, ringing in her ears, pain in
her back, a migraine, and chest pains that required attention from a
cardiologist. (Id. at ¶¶ 39-40). As a result of the damage to her home, Plaintiff
had to stay with family for three weeks. (Id. at ¶ 41). Moreover, Plaintiff
continued to suffer from irritation to her eyes, migraines, chest pains, and
psychological injury as a result of her ordeal. (Id. at ¶¶ 42-44).
B. Procedural Background
On December 13, 2016, Plaintiff filed this suit, naming as defendants

New York City and unknown police officers. (Dkt. #1). On December 29, 2017,
after gaining further information regarding the raid, Plaintiff filed an amended
complaint against the United States, DHS, and unnamed DHS officers. (Dkt.
#25). On March 6, 2017, Plaintiff filed a second amended complaint, dropping
her claims against DHS. (Dkt. #36).
On April 13, 2018, Plaintiff proposed, and the Court accepted, Plaintiff’s
third amended complaint. (Dkt. #41-42). The third amended complaint
brought claims against two unnamed DHS officers under Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for
false imprisonment and excessive force, and numerous Federal Tort Claims Act
(“FTCA”) claims against the United States. (Dkt. #41). On May 18, 2018, the
Government filed a motion to dismiss the FTCA claims against it (Dkt. #48-49),
with briefing completed on June 22, 2018 (Dkt. #50-51). On March 4, 2019,
the Court issued an Opinion and Order dismissing the FTCA claims against the
Government, but providing Plaintiff with the opportunity to continue with her

claims against the DHS officers in their individual capacities. (Dkt. #53).
On March 8, 2019, Plaintiff informed the Court that she wished to
proceed with her claims against the DHS officers in their individual capacities
and requested identification of the then-unnamed officers in order to allow for
proper service and amendment of her complaint. (Dkt. #54). On April 25,
2019, Plaintiff filed her FAC — which is the operative complaint — bringing
claims under 42 U.S.C. § 1983 and Bivens for (i) false imprisonment and false
arrest against Defendant John Doe and (ii) excessive use of force against

Defendants Basile and Vogel. (Dkt. #61). Defendants filed their motion to
dismiss under Rule 12(b)(6), with accompanying memorandum and
declaration, on September 23, 2019. (Dkt. #70-72). Plaintiff filed her opposing
brief on October 25, 2019. (Dkt. #73). Defendants filed their reply brief on
November 8, 2019. (Dkt. #74).
DISCUSSION
A. Plaintiff Has Failed to Raise a Cognizable Bivens Claim
1. Applicable Law

a. Motions to Dismiss Under Rule 12(b)(6)
Defendants raise numerous arguments, but principally argue that
Plaintiff has failed to allege a viable claim under Bivens. (Def. Br. 1-2).3
Rule 12(b)(6) provides a defense to parties when the plaintiff has failed “to state
a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When
considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
a court must “draw all reasonable inferences in Plaintiff’s favor, assume all
well-pleaded factual allegations to be true, and determine whether they

plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff is entitled to relief if she
alleges “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also In re Elevator
Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (“While Twombly does not
require heightened fact pleading of specifics, it does require enough facts to

3 Although the FAC alleges corresponding claims under 42 U.S.C. § 1983, the Court
dismisses those claims because § 1983 is not applicable against federal officials. See
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 456 F.2d 1339, 1341
(2d Cir. 1972); see also Dotson v. Griesa, 398 F.3d 156, 162 (2d Cir. 2005).
nudge plaintiff’s claims across the line from conceivable to plausible.” (internal
quotation marks omitted) (citing Twombly, 550 U.S. at 570)).
“Where a complaint pleads facts that are ‘merely consistent with’ a

defendant’s liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557). Moreover, “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
b. The Bivens Standard
Before the Court can determine whether Plaintiff has adequately alleged

a false arrest or excessive force violation, it must first determine whether
Plaintiff is able to make use of the implied remedy that is Bivens. Although
Congress in 1871 provided plaintiffs with a remedy for money damages if a
state official violates their constitutional rights, see 42 U.S.C. § 1983, Congress
has never created a similar remedy for unconstitutional acts by federal officials.
Nevertheless, in 1971 the Supreme Court created an implied damages remedy
to compensate a petitioner who suffered injury as a result of federal agents’
violation of his rights under the Fourth Amendment. See Bivens, 403 U.S. at

397. The Court noted that while the Fourth Amendment “does not in so many
words provide for its enforcement by an award of money damages[,] … [t]he
present case involve[d] no special factors counseling hesitation in the absence
of affirmative action by Congress.” See id. at 396.
Following Bivens, the Supreme Court recognized two other implied
constitutional causes of action: in Davis v. Passman, 442 U.S. 228 (1979), and
Carlson v. Green, 446 U.S. 14 (1980). Davis recognized a damages remedy for

gender discrimination under the Fifth Amendment’s Due Process Clause, see
442 U.S. at 248-49, while Carlson recognized a damages remedy for failure to
provide medical treatment to an incarcerated individual under the Eighth
Amendment’s proscription of cruel and unusual punishment, see 446 U.S. at
23. Beyond these three cases, the Court has refused to recognize an implied
cause of action for damages under the Constitution. See Ziglar v. Abbasi, 137
S. Ct. 1843, 1855 (2017). Indeed, since its decision in Carlson, the Supreme
Court has expressed caution as to the prospect of expanding Bivens any

further than the above three cases. See id. at 1855-56. Although the Court
has acknowledged Bivens as “settled law,” id. at 1857, it nevertheless has
“made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial
activity,” id. (quoting Iqbal, 556 U.S. at 675).
As other courts in the Second Circuit have noted, the Supreme Court’s
opinion in Ziglar makes “clear that the only recognized implied rights of action
are the narrow situations presented in Bivens, Davis, and Carlson, and lower
courts must scrutinize attempts to expand the Bivens remedy, even where

courts had assumed the availability of such a remedy.” Gonzalez v. Hasty, 269
F. Supp. 3d 45, 58 (E.D.N.Y. 2017) (emphasis in original), aff’d, 755 F. App’x
67 (2d Cir. 2018) (summary order); see also Silva v. Canarozzi, No. 18 Civ.
1771 (MPS), 2019 WL 1596346, at *2 (D. Conn. Apr. 15, 2019); Rivera v.
Samilo, 370 F. Supp. 3d 362, 367 (E.D.N.Y. 2019). And although the Second
Circuit has as of yet pointedly avoided answering whether Ziglar abrogates
prior precedents from the Circuit that have extended Bivens, see Gonzalez, 755

F. App’x at 69, other Circuits have acknowledged that Ziglar abrogates past
precedent, see Vanderklok v. United States, 868 F.3d 189, 199 (3d Cir. 2017)
(“It is not enough to argue … that First Amendment retaliation claims have
been permitted under Bivens before. We must look at the issue anew.”).
Therefore, even if the Second Circuit has previously recognized a Bivens
remedy that goes beyond the Supreme Court’s trinity, this Court cannot simply
rely on that precedent.
Instead, this Court is required to follow the “rigorous two-step inquiry …

to determine whether to imply a Bivens cause of action in a new context or
against a new category of defendants.” Rivera, 370 F. Supp. 3d at 367. The
first step requires the court to “determine whether a plaintiff’s claims arise in a
new Bivens context.” Id. “If the case is different in a meaningful way from
previous Bivens cases decided by this Court [i.e., Bivens, Davis, and Carlson],
then the context is new.” Ziglar, 137 S. Ct. at 1859-60. Moreover, the
Supreme Court has cautioned that “even a modest extension is still an
extension.” Id. at 1864.

If the context is indeed new, then the court must discern whether there
are “special factors counselling hesitation in the absence of affirmative action
by Congress.” Id. at 1857 (internal quotation marks omitted) (quoting Carlson,
446 U.S. at 18). A special factor is one that “cause[s] a court to hesitate” before
answering in the affirmative “whether the Judiciary is well suited, absent
congressional action or instruction, to consider and weigh the costs and
benefits of allowing a damages action to proceed.” Id. at 1858. “The threshold

for concluding that a factor counsels hesitation ‘is remarkably low ….
Hesitation is a pause, not a full stop.’” Ojo v. United States, 364 F. Supp. 3d
163, 175 (E.D.N.Y. 2019) (quoting Turkmen v. Ashcroft, No. 02 Civ. 2307 (DLI)
(SMG), 2018 WL 4026734, at *9 (E.D.N.Y. Aug. 13, 2018)).
Additionally, the court must ask “whether any alternative, existing
process for protecting the injured party’s interest” exists that may “amount to a
convincing reason for the Judicial Branch to refrain from providing a new and
freestanding remedy in damages.” Ziglar, 137 S. Ct. at 1858. “If there is an

alternative remedial structure present …, that alone may limit the power of the
Judiciary to infer a new Bivens cause of action.” Id. Of potential significance
to the instant motion, “[i]t matters not whether plaintiff’s alternative claims
w[ould] succeed.” Ojo v. United States, No. 16 Civ. 4112 (MKB) (LB), 2019 WL
3852391, at *14 (E.D.N.Y. Aug. 15, 2019) (citing Sanford v. Bruno, No. 17 Civ.
5132 (BMC), 2018 WL 2198759, at *7 (E.D.N.Y. May 14, 2018) (finding the
remedies that existed “to address plaintiff’s situation here are thus adequate
for purposes of determining whether to imply a Bivens remedy — even though

those remedies did not work in this instance”)), report and recommendation
adopted, No. 16 Civ. 4112 (MKB) (LB), 2019 WL 4602823 (E.D.N.Y. Sept. 23,
2019). At least two courts in this Circuit have found that a plaintiff’s ability to
pursue her claim under the FTCA precluded the creation of a new Bivens
remedy. See Martinez v. D’Agata, No. 16 Civ. 44 (VB), 2019 WL 6895436, at *7
(S.D.N.Y. Dec. 18, 2019); Turkmen, 2018 WL 4026734, at *11.
2. Analysis4

Although Defendants bring numerous arguments in support of their
motion to dismiss, they primarily argue that the Court should decline to extend
the Bivens remedy to this new context. (Def. Br. 2, 5-10). As detailed above,
the Court must engage in the two-step inquiry set out by Ziglar in order to
determine whether extension of the Bivens remedy is warranted in this case.
For the reasons that follow, the Court finds that it would be unwise to extend
Bivens to the facts that Plaintiff has presented.
First, the Court must determine whether Plaintiff’s claims present a new

Bivens context. See Gault v. Agard, No. 17 Civ. 0703 (PKC) (LB), 2019 WL
1115888, at *3 (E.D.N.Y. Mar. 11, 2019) (quoting Sanford, 2018 WL 2198759,
at *5). The operative question is whether Plaintiff’s case “is different in a
meaningful way” from Bivens, Davis, and Carlson, the three cases in which the
Supreme Court has approved of an implied damages remedy for constitutional

4 The following analysis focuses on Plaintiff’s excessive force claim, as opposed to
Plaintiff’s false arrest claim. Neither Plaintiff nor Defendants have addressed the false
arrest claim in briefing, in part because Defendants’ counsel does not claim to represent
the John Doe DHS officer. The Court observes, however, that Plaintiff has not served
the John Doe DHS officer within the 90-day period specified by Federal Rule of Civil
Procedure 4(m). See also Fed. R. Civ. P. 4(i)(3) (“To serve a United States officer or
employee sued in an individual capacity for an act or omission occurring in connection
with duties performed on the United States’ behalf (whether or not the officer or
employee is also sued in an official capacity), a party must serve the United States and
also serve the officer or employee under Rule 4(e), (f), or (g).” (emphasis added)). To be
clear, the Court recognizes that this failure of service is not the product of inattention
on Plaintiff’s part; instead, the Court understands that the Government was unable to
identify the agent in question. Nonetheless, the Court must dismiss this action with
respect to the John Doe DHS officer without prejudice. References to “Defendants” in
the remainder of this section concern Defendants Basile and Vogel.
torts. See Ziglar, 137 S. Ct. at 1859. The Supreme Court has characterized
the facts of those three cases narrowly: “[A] claim against FBI agents for
handcuffing a man in his own home without a warrant; a claim against a

Congressman for firing his female secretary; and a claim against prison officials
for failure to treat an inmate’s asthma.” Id. at 1860. The Court has also
explained that
[a] case might differ in a meaningful way because of 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 functioning of other
branches; or the presence of potential special factors
that previous Bivens cases did not consider.
Id.
Plaintiff argues that she has presented a “classic Bivens-style claim,” and
therefore that the Court need not move on to the second step of the Ziglar test.
(Pl. Opp. 7). However, even a cursory glance at Plaintiff’s claims shows that
Plaintiff has presented qualitatively different claims from those presented in
Bivens. In Bivens, federal agents entered the plaintiff’s apartment, arrested
him in front of his family, and searched the entirety of his apartment, all
without a warrant. See 403 U.S. at 389. By contrast, Plaintiff here has alleged
that she is the unwitting victim of collateral damage stemming from
Defendants’ execution of an arrest warrant. The only similarities between
Plaintiff’s claim and that presented in Bivens are that Defendants are federal
agents and that Plaintiff alleges a violation of the Fourth Amendment. Beyond
that lay numerous differences, all of which, whether considered separately or
in the aggregate, amount to a “meaningful difference.” See Martinez, 2019 WL
6895436, at *7 (finding new context where arrest was made pursuant to a

warrant outside the plaintiff’s home; the officers were members of a federal
task force, as opposed to DEA agents; the right at issue was the right to be free
from excessive force, as opposed to a right to privacy; and the theory of liability
was different).
In finding that Plaintiff’s claims arise in a new context, the Court takes
seriously the Supreme Court’s admonition that “even a modest extension is still
an extension.” Ziglar, 137 S. Ct. at 1864. Indeed, even if Plaintiff’s claims were
factually similar to those presented in Bivens — and they are not — the Court

would still find that this case arises in a new context because of the lack of
judicial guidance on the subject. In Ziglar, the Court held that the
respondents’ claim, although exhibiting “significant parallels” to Carlson,
nevertheless presented a new context because “the judicial guidance available
to [the] warden … was less developed.” See id. Similarly here, it is unclear
that judicial precedents exist that provide a meaningful guide for official
conduct under the facts alleged.
The most on-point precedent Plaintiff can point to is Terebesi v. Torreso,

a Second Circuit case involving an incident in which the police engaged in a
SWAT-style raid and threw three flash bangs into the plaintiff’s home in the
course of executing a search warrant of that home. See 764 F.3d 217, 221-22,
(2d Cir. 2014).5 The Second Circuit affirmed the district court’s denial of
qualified immunity to the officers who used the flash bangs, finding that “no
reasonable officer would think that his or her use of a stun grenade in the

course of executing a search warrant was beyond the purview of the Fourth
Amendment,” and that there were material questions, given the lack of any real
evidence that the plaintiff posed a threat, as to whether the defendants’
conduct was objectively reasonable under the circumstances. See id. at 237,
239. Although Terebesi provides judicial guidance to law enforcement
personnel considering lobbing flash bangs into the home of a non-violent target
of a search warrant, it unclear that Terebesi has much to say about whether
the Fourth Amendment has been transgressed when flash bangs are deployed

in an outdoor area, in the course of executing an arrest warrant, and
inadvertently injure a non-target of that warrant. Along with the factual
differences already highlighted, the lack of judicial clarity on the claims
presented in this action point to Plaintiff’s claims arising in a new context.
Having found that Plaintiff’s claims arise in a new context, the Court
must next determine whether “the plaintiff has at h[er] disposal ‘an alternative
remedial structure’ that would provide the same or similar relief in the absence
of an implied remedy.” Ojo, 364 F. Supp. 3d at 171 (quoting Ziglar, 137 S. Ct.

at 1858). Defendants argue that the FTCA exists as the alternative remedial

5 Specifically, the officers in Terebesi “planned to smash Terebesi’s windows, detonate at
least three stun grenades … inside the home, break down the front door with a
battering ram, and storm the house with weapons drawn,” all in order to search the
home “for a small amount of crack cocaine and drug paraphernalia.” Terebesi v.
Torreso, 764 F.3d 217, 221-22 (2d Cir. 2014).
structure, and in light of that statute’s existence, Plaintiff is precluded from
bringing a Bivens claim. (Def. Br. 8-9). Plaintiff, for her part, notes both that
this Court has already found that she cannot bring a successful claim under

the FTCA, see Oliveras, 371 F. Supp. 3d at 110, and that the FTCA expressly
does not preclude claims “brought for a violation of the Constitution,” see 28
U.S.C. § 2679(b)(2)(A). (Pl. Opp. 9-10).
Although the Supreme Court in Carlson found that the existence of the
FTCA did not preclude plaintiffs from bringing Bivens claims, see 446 U.S. at
23, courts in this Circuit have noted that Carlson’s analysis of that issue may
not have survived Ziglar, see, e.g., Ojo, 364 F. Supp. 3d at 174-75; Turkmen,
2018 WL 4026734, at *10. Moreover, several sister courts have found that the

existence of the FTCA as an alternative remedy was enough to preclude the
extension of Bivens. See Martinez, 2019 WL 6895435, at *7; Rivera, 370 F.
Supp. 3d at 370-71; Abdoulaye v. Cimaglia, No. 15 Civ. 4921 (PKC), 2018 WL
1890488, at *7 (S.D.N.Y. Mar. 30, 2018); Morgan v. Shivers, No. 14 Civ. 7921
(GHW), 2018 WL 618451, at *6 (S.D.N.Y. Jan. 29, 2018).
The Court acknowledges that it is a close question as to whether
Carlson’s analysis of the interrelationship between the FTCA and Bivens is still
valid. Nevertheless, the Court finds that the existence of the FTCA as an

alternative remedy qualifies as a special factor that counsels hesitation in
extending Bivens to cover Plaintiff’s claims. The Court comes to this
conclusion for several reasons. First, the Court is strongly guided by the
contrasts between the Supreme Court’s language in Carlson and its more
recent language in Ziglar. In the former case, the Court explained that a
Bivens action may be precluded “when defendants show that Congress has
provided an alternative remedy which it explicitly declared to be a substitute for

recovery directly under the Constitution and viewed as equally effective.”
Carlson, 446 U.S. at 18-19 (first emphasis added, second in original). By
contrast, the Court in Ziglar set a far broader standard, requiring only
Congress’s creation of “any alternative, existing process for protecting the
injured party’s interest.” See 137 S. Ct. at 1858 (internal brackets omitted).
This broader language fatally undermines Carlson’s finding that the FTCA is
not an adequate alternative remedy, because the Ziglar court has made clear
that the law no longer requires an “explicit congressional declaration that

persons injured … may not recover money damages from agents but must be
remitted to another remedy, equally effective in the view of Congress.” See
Carlson, 446 U.S. at 19; see also Turkmen, 2018 WL 4026734, at *10. All that
is required now is the existence of an alternative remedial structure that could
encompass the plaintiff’s claim. The Ziglar court recognized the possibility of
this analytical change in declaring that “it is possible that the analysis in the
Court’s three Bivens cases might have been different if they were decided
today.” 137 S. Ct. at 1856.

Second, the Court believes that its conclusion better reflects Congress’s
intent. Plaintiff’s only argument that the FTCA does not preclude her Bivens
claim relies on 28 U.S.C. § 2679(b)(2)(A) (Pl. Opp. 10-11), which provides that
§ 2679(b)(1)’s designation of the FTCA as the exclusive remedy for tort actions
against the Government does not preclude actions brought against individual
employees “for a violation of the Constitution of the United States.” But as
Defendants point out (Def. Reply 6), the mere fact that the FTCA does not by its

terms bar constitutional claims against employees cannot mean that a Bivens
remedy must be available, because then a Bivens remedy would need to be
available for all constitutional torts. Ziglar, as noted above, is crystal clear that
this is simply not the case. A reading of § 2679(b)(2)(A) and Supreme Court
precedent leads to the more logical conclusion that Congress wished to
preserve the Bivens remedy in the specific contexts where it has been found
available — not expand the remedy in a roundabout fashion. Therefore,
understanding that it is properly Congress’s (and not the Court’s) role to

determine whether a plaintiff may seek damages in the absence of any
statutory authorization, see Ziglar, 137 S. Ct. at 1857, the Court finds that
Congress did not intend for individuals with Plaintiff’s claims to be able to
bring an action for damages under Bivens.
Third and finally, the Court’s understanding of Congress’s intent is also
in accordance with precedent. The Court acknowledges that, having already
found that Plaintiff’s claims against the Government were barred by the FTCA’s
discretionary function exception, see Oliveras, 371 F. Supp. 3d at 110, the

Court’s present decision will leave Plaintiff entirely without a remedy. However,
as other courts in this Circuit have noted, “just because Congress has not
enacted a remedial scheme that would satisfy plaintiff on the facts of his
particular case does not mean that the alternative remedial scheme that it did
pass is inadequate under Ziglar.” Sanford, 2018 WL 2198759, at *6. Indeed,
the Second Circuit itself has noted that “it is the overall comprehensiveness of
the statutory scheme at issue, not the adequacy of the particular remedies

afforded, that counsels judicial caution in implying Bivens actions.” Dotson v.
Griesa, 398 F.3d 156, 167 (2d Cir. 2005) (citing to Schweiker v. Chilicky, 487
U.S. 412, 421-22 (1988)). Here, Congress not only enacted a comprehensive
statute providing for remedies against tortious conduct by Government
employees, but even more relevantly, explicitly exempted from liability the kind
of conduct at issue here through the discretionary function exception. See
Oliveras, 371 F. Supp. 3d at 110; see also 28 U.S.C. § 2680(a).
“Congressional inaction or limited action may be as indicative of its

intent as the creation of a remedy that would satisfy a particular plaintiff.”
Sanford, 2018 WL 2198759, at *6. Given Congress’s decisions to provide an
exemption to Governmental liability in this action and to not provide any
express remedy against the individual Defendants, the Court finds that both
Ziglar and Dotson require the Court to defer to Congress’s (in)action. See
Ziglar, 137 S. Ct. at 1857 (“[T]he Legislature is in the better position to consider
if the public interest would be served by imposing a new substantive legal
liability.” (internal quotation marks omitted)); Dotson, 398 F.3d at 167 (“[T]he

concept of special factors counseling hesitation in the absence of affirmative
action by Congress has proved to include an appropriate judicial deference to
indications that congressional inaction … has not been inadvertent.” (internal
quotation marks omitted) (quoting Schweiker, 487 U.S. at 423)).
Moreover, even if the existence of the FTCA as an alternative remedy
were not sufficient to counsel hesitation, the Court would nevertheless have
ample reason to hesitate. As Defendants have noted (Def. Br. 10-12), it is

unlikely that Plaintiff has actually alleged a violation of the Fourth
Amendment. “Violation of the Fourth Amendment requires an intentional
acquisition of physical control. … [T]he detention or taking itself must be
willful.” Brower v. Cty. of Inyo, 489 U.S. 593, 596 (1989) (internal citations
omitted) (emphasis added). Clarifying the concept of intent, the Second Circuit
has held that for there to be a seizure under the Fourth Amendment, the victim
must have been the intended target of the governmental action, even if law
enforcement were “mistaken as to the victim’s identity.” See Medeiros v.

O’Connell, 150 F.3d 164, 168-69 (2d Cir. 1998). Under the facts alleged, it is
clear that Defendants’ flash bangs were directed not at Plaintiff, but at the
subject of the arrest warrant. Given that Plaintiff’s injuries to person and
property — while regrettable — were no more than the “unintended
consequence of government action,” id. at 169 (internal brackets omitted), it is
unclear that Plaintiff has even alleged a valid constitutional claim. In other
words, while sympathetic to the substance of Plaintiff’s claims, the Court is
appropriately hesitant to recognize a judicially created remedy for a claim that

rests on such a shaky legal foundation.
Having found that Plaintiff’s claims arise in a new context and that
numerous special factors counsel hesitation in recognizing the extension of the
Bivens remedy to such a context, the Court finds that Plaintiff has no
cognizable claims on which relief may be granted. Accordingly, Plaintiff’s
claims are dismissed.6
CONCLUSION

For the reasons set forth in this Opinion, Defendants’ motion to dismiss
is GRANTED and Plaintiff’s claims are DISMISSED. Specifically, Plaintiff’s
claims against Defendants Basile and Vogel are dismissed with prejudice, and
her claims against the John Doe Defendant are dismissed without prejudice.

6 Even if Plaintiff did have a cognizable Bivens claim, Defendants would still be entitled to
qualified immunity. On a motion to dismiss, the court must, while affording the
plaintiff to all reasonable inferences in her favor, “ask whether the plaintiff has pled
facts showing [i] that the official violated a statutory or constitutional right[;] and
[ii] that the right was ‘clearly established’ at the time of the challenged conduct.” Neary
v. Wu, 753 F. App’x 82, 84 (2d Cir. 2019) (summary order) (internal quotation marks
omitted) (quoting Ganek v. Leibowitz, 874 F.3d 73, 80 (2d Cir. 2017)). “Official conduct
violates clearly established law ‘when, at the time of the challenged conduct, the
contours of a right are sufficiently clear that every reasonable officer would have
understood that what he is doing violates that right.’” Terebesi, 764 F.3d at 230
(internal quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011)). In determining whether the relevant law was clearly established, courts
consider “the specificity with which a right is defined, the existence of Supreme Court or
Court of Appeals case law on the subject, and the understanding of a reasonable officer
in light of preexisting law.” Id. at 231 (citing Scott v. Fischer, 616 F.3d 100, 105 (2d Cir.
2010)). In this case, only Supreme Court and Second Circuit precedent are relevant to
the inquiry. See Sanchez v. Bonacchi, 791 F. App’x 218, 220 (2d Cir. 2019) (summary
order). Moreover, “existing precedent must have placed … the constitutional question
beyond debate.” Id. at 221 (quoting al-Kidd, 536 U.S. at 741). In the end, the Supreme
Court “has held that qualified immunity protects ‘all but the plainly incompetent or
those who knowingly violate the law.’” Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
As already discussed in the Court’s Bivens analysis, the most relevant precedent to this
action is Terebesi. However, Terebesi has three notable distinctions from the instant
action: (i) the flash bangs were thrown directly into the plaintiff’s home, instead of
thrown outside the home; (ii) the flash bangs were thrown in the course of executing a
search warrant, as opposed to an arrest warrant; and (iii) the flash bangs were thrown
at, and injured, the officers’ intended target, as opposed to inadvertently injuring a
bystander. Given that “clearly established law should not be defined at a high level of
generality,” Sanchez, 791 F. App’x at 221 (quoting White v. Pauly, 137 S. Ct. 548, 552
(2017)), and that the relevant precedent must have placed the question of whether
Defendants’ conduct violated the Fourth Amendment “beyond debate,” id., the Court
concludes that the right at issue here — the right to not be inadvertently injured by
flash bangs — was not clearly established. Cf. id. at 221-22 (finding law was not clearly
established as to body cavity searches for felony drug arrests because relevant
precedent was only clear as to people arrested for misdemeanors).
The Clerk of Court is directed to terminate all pending motions, adjourn all
remaining dates, and close this case.
SO ORDERED.
Dated: February 25, 2020 ' :
New York, New York Kathe Mal. fild-
KATHERINE POLK FAILLA
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10321055. Public record. Not legal advice.