Clark v. Wolf

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ANGELICA CLARK, ELLEN GASS, Case No. 3:20-cv-01436-IM

NATHANIEL WEST, ROWAN MAHER,

and GARRISON DAVIS, individually and on OPINION AND ORDER

behalf of all similarly situated individuals,

Plaintiffs,

v.

CHAD WOLF, Acting Secretary United

States Department of Homeland Security;

KENNETH T. CUCCINELLI, Senior

Official Performing the Duties of the Deputy

Secretary United States Department of

Homeland Security; GABRIEL RUSSELL;

ALLEN JONES; RUSSEL BURGER;

ANDREW SMITH; MARK MORGAN;

RICHARD CLINE; LEONARD ERIC

PATTERSON; DONALD WASHINGTON;

DERRICK DRISCOLL; JEFF TYLER;

FPS SUPERVISORY OFFCIERS NOS. 2, 6,

8, 14, 16, 41, 42, and 44; ICE

SUPERVISORY OFFICER NO. 1; USMS

SUPERVISORY OFFICERS CD, CG1, and

OT1; CBP SUPERVISORY OFFICERS

NOS. 1, 2, 85, 87, 89, 90, 17, 91, 28, 94, 95,

96, 33, 98, 100–104, 106, 108, 109, 111, 112,

113, 67, 69, 114, 115, 72, 74, 116, 75, 119,

121, and 122; and JOHN DOE

SUPERVISORY AND PATROL-LEVEL

DEFENDANTS 1–140; agents of the U.S.

Marshals Service, Federal Protective Service,

U.S. Department of Homeland Security and

U.S. Customs and Border Protection, acting in

concert and in their Individual capacities,

Defendants.

David F. Sugerman and Nadia H. Dahab, Sugerman Dahab, 707 SW Washington St., Ste. 600,

Portland, OR 97205; David D. Park, Elliot & Park, P.C., 324 SW Abernethy St., Portland, OR

97239; Michelle R. Burrows, Michelle R. Burrows P.C., 1333 Orenco Station Parkway #525,

Hillsboro, OR 97124; Jane L. Moisan, People’s Law Project, 818 SW 4th Ave. #221-3789,

Portland, OR 97204, Erious Johnson, Jr., Harmon Johnson LLC, 1415 Commercial St. SE,

Salem, OR 97302; Christopher A. Larsen, Pickett Dummigan McCall LLP, 210 SW Morrison

St., 4th Fl., Portland, OR 97204; Gabriel Chase, Chase Law, PC, 621 SW Alder St., Ste. 600,

Portland, OR 97205; Joe Piucci, Piucci Law LLC, 900 SW 13th Ave., Ste. 200, Portland, OR

97205. Attorneys for Plaintiffs.

Glenn Greene, United States Department of Justice, P.O. Box 7146, Washington, DC 20044.

Attorney for Defendants.

IMMERGUT, District Judge.

This is a class action lawsuit brought by named Plaintiffs Angelica Clark, Ellen Gass,

Nathaniel West, Rowan Maher, Robert Evans, and Garrison Davis. ECF 96. The putative class

consists of individuals who attended one or more of the protests in support of the Black Lives

Matter movement that occurred during July 2020 near the Mark O. Hatfield United States

Courthouse in Portland, Oregon, and who were exposed to tear gas. Id. at ¶¶ 18–19.1 Plaintiffs

allege that they were subjected to unreasonable use of force and unlawful arrest or detention by

federal officers2 during these protests. See generally id. at ¶¶ 113–137. Plaintiffs seeks monetary

1 This “Tear Gas Class” comprises two subclasses: the “Shooting Subclass”—those who

were “hit by munitions in or near the protest zone”—and the “Truncheon Subclass”—those who

were “beaten . . . in or near the protest zone.” Id. Plaintiffs have not yet moved for class

certification.

2 Plaintiffs bring claims against Chad Wolf, Kenneth T. Cuccinelli, Gabriel Russell, Allen

Jones, Russel Burger, Andrew Smith, Mark Morgan, Richard Cline, Leonard Eric Patterson,

damages from the federal officers in their individual capacities under Bivens v. Six Unknown

Federal Narcotics Agents, 403 U.S. 388 (1971), for alleged violations of Plaintiffs’ Fourth

Amendment rights. Id.

Before the Court now is the Motion to Dismiss brought by Gabriel Russell, Regional

Director, Region 10, Federal Protective Service (“FPS”); Allen Scott Jones, Deputy Director of

Operations, FPS; Richard Cline, Principal Deputy Director, FPS; Mark Morgan, former Acting

Commissioner, United States Customs and Border Protection (“CPB”); Russel Burger, former

United States Marshal for the District of Oregon, United States Marshals Service (“USMS”); and

Andrew Smith, Assistant Director for Tactical Operations, USMS (collectively, “Defendants”).

ECF 101 at 10. Defendants seek to dismiss all claims asserted against them pursuant to Federal

Rule of Civil Procedure 12(b)(6), on the bases that a Bivens remedy is inappropriate in these

circumstances, and that even if this Court were to recognize such a remedy, Defendants are

entitled to qualified immunity. ECF 101 at 2, 10–11.3

This is a lawsuit about whether certain federal officers, in this case Defendants Burger,

Cline, Jones, Morgan, Russell, and Smith, should be held personally liable under Bivens for

conduct that occurred during the July 2020 protests in Portland, Oregon. This Court is not asked

to, nor will it, opine on the merits of the July 2020 protests or the law enforcement response to

those protests. Nor is this Court tasked with determining whether Plaintiffs deserve a remedy in

Donald Washington, Derrick Driscoll, and Jeff Tyler, as well as “FPS Supervisory Officers Nos.

2, 6, 8, 14, 16, 41, 42, and 44,” “ICE Supervisory Officer No. 1,” “USMS Supervisory Officers

CD, CG1, and OT1,” “CBP Supervisory Officers Nos. 1, 2, 85, 87, 89, 90, 17, 91, 28, 94, 95, 96,

33, 98, 100–104, 106, 108, 109, 111, 112, 113, 67, 69, 114, 115, 72, 74, 116, 75, 119, 121, and

122,” and “John Doe Supervisory and Patrol-Level Defendants 1–140.” ECF 96.

3 This Court previously dismissed similar claims as to Chad Wolf, former Acting

Secretary of the Department of Homeland Security (“DHS”), and Kenneth Cuccinelli, former

Senior Official Performing the Duties of Deputy DHS Secretary. ECF 91.

the abstract. Rather, this Court must determine—on the facts presented here and bound by

Supreme Court precedent—whether Plaintiffs may seek damages from these Defendants under

Bivens. Because this Court finds that Plaintiffs’ claims against these Defendants present a new

Bivens context and special factors counsel hesitation, a Bivens remedy is inappropriate and

Plaintiffs’ claims against these Defendants must be dismissed. Because this Court determines a

Bivens remedy is inappropriate, this Court declines to address Defendants’ arguments regarding

qualified immunity.

STANDARDS

A complaint must contain sufficient factual matter, accepted as true, to “state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). On a

motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court accepts all well-

pleaded factual allegations in the complaint as true and construes them in the light most

favorable to the non-moving party. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998

(9th Cir. 2010). However, the court need not credit a plaintiff’s legal conclusions that are

couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). To survive a

motion to dismiss under Rule 12(b)(6), the plaintiff’s complaint must set forth “more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

Twombly, 550 U.S. at 555.

DISCUSSION

In Bivens, the Supreme Court recognized for the first time an implied right of action

against federal officers for constitutional violations. The Court held that plaintiff Webster Bivens

was entitled to sue federal agents for damages arising out of an unlawful arrest and search, in

violation of his Fourth Amendment rights. Bivens, 403 U.S. at 389–90. In the years after Bivens,

the Court also recognized implied rights of action under the Constitution for damages in two

other contexts. See Davis v. Passman, 442 U.S. 228 (1979) (recognizing a damages remedy for a

gender discrimination claim against a United States Congressman under the equal protection

component of the Fifth Amendment Due Process Clause); Carlson v. Green, 446 U.S. 14 (1980)

(recognizing a damages remedy against federal prison officials for failure to provide adequate

medical treatment under the Eighth Amendment’s Cruel and Unusual Punishment Clause). The

“core purpose” of Bivens is “deterring individual officers from engaging in unconstitutional

wrongdoing.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001); see also Reid v. United

States, 825 F. App’x 442, 444 (9th Cir. 2020) (“A claim for damages based on individualized

mistreatment by rank-and-file federal officers is exactly what Bivens was meant to address.”)

In the four decades since these Bivens, Davis, and Carlson were decided, the Supreme

Court has repeatedly refused to add to the claims allowed under Bivens. See Hernandez v. Mesa,

140 S. Ct. 735, 742–43 (2020) (collecting cases). Recently, the Supreme Court made clear that

expanding the Bivens remedy to any new context or category of defendants “is now a

‘disfavored’ judicial activity.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (quoting Iqbal, 556

U.S. at 675); see also Iqbal, 556 U.S. at 675 (explaining the Court is “reluctant to extend Bivens”

“[b]ecause implied causes of action are disfavored”). The Court explained that to do so

constitutes a “significant step,” Abassi, 137 S. Ct. at 1856, which risks offending separation-of-

powers principles, as “Congress is the best positioned to evaluate ‘whether, and the extent to

which, monetary and other liabilities should be imposed upon individual officers and employees

of the Federal Government’ based on constitutional torts.” Hernandez, 140 S. Ct. at 742 (quoting

Abbasi, 137 S. Ct. at 1856).

In considering possible extensions of Bivens, courts engage in a “two-step inquiry,” “first

inquir[ing] whether the request involves a claim that arises in a new context or involves a new

category of defendants,” and then, if so, “ask[ing] whether there are any special factors that

counsel hesitation” before extending the Bivens remedy. Id. at 743 (internal citations, alterations,

and quotation marks omitted). The “most important question” guiding this analysis is “who

should decide whether to provide for a damages remedy, Congress or the courts?” Id. at 750

(quoting Abbasi, 137 S. Ct. at 1857) (internal quotation marks omitted).

A. New Context Analysis

The Supreme Court’s understanding of a “new context” in a Bivens analysis is “broad.”

Hernandez, 140 S. Ct. at 743. A context is “‘new’ if it is ‘different in a meaningful way from

previous Bivens cases decided by [the Supreme] Court.’” Id. (quoting Abbasi, 137 S. Ct. at

1859).

As the Supreme Court explained in Abbasi:

Without endeavoring to create an exhaustive list of differences that

are meaningful enough to make a given context a new one, some

examples might prove instructive. 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.

Abbasi, 137 S. Ct. at 1859–60. The Supreme Court cautions that “even a modest extension is still

an extension,” and has “consistently refused to extend Bivens to any new context or new

category of defendants.” Id. at 1857, 1864 (internal quotation marks omitted) (quoting Malesko,

534 U.S. at 68); see also Loumiet v. United States, 948 F.3d 376, 382 (D.C. Cir. 2020) (noting

that “a new context is present whenever the plaintiff seeks damages from a new category of

defendants” (internal quotation marks and citation omitted)); Boule v. Egbert, 998 F.3d 370, 387

(9th Cir. 2021) (finding an extension, albeit “modest,” where the defendant “is an agent of the

border patrol rather than of the F.B.I.”).

1. Vicarious Liability

“[T]he Supreme Court acknowledged that Bivens claims cannot proceed on a theory of

respondeat superior, but must instead plead that a supervisor, by her ‘own individual actions,’

violated the Constitution.” Chavez v. United States, 683 F.3d 1102, 1109 (9th Cir. 2012) (quoting

Iqbal, 556 U.S. at 676); see also Iqbal, 556 U.S. at 677 (“Absent vicarious liability, each

Government official, his or her title notwithstanding, is only liable for his or her own

misconduct.”). “Bivens is not designed to hold officers responsible for acts of their

subordinates;” its purpose is rather to “deter the officer.” Abbasi, 137 S. Ct. at 1860 (internal

quotation marks and citation omitted).

To finds a Bivens remedy based on vicarious liability and the conduct of Defendants’

subordinates would extend Bivens to a new context and contravene the Supreme Court’s

directives. See Pereira Luna v. Thomas, No. 2:19-CV-00431-JFW (AFM), 2020 WL 473133, at

*7 (C.D. Cal. Jan. 28, 2020) (finding “any claims . . . against supervisory officials would also

arise in a new context because the Supreme Court has not extended a Bivens remedy against any

federal official under a theory of respondeat superior”). Moreover, to so extend implicates a

different rank of officer—supervisory—and specificity of conduct—vicarious—than were at

issue in Bivens. Abbasi, 137 S. Ct. at 1859–60; see also Mejia-Mejia v. U.S. Immigr. & Customs

Enf’t, No. 18-1445 (PLF), 2019 WL 4707150, at *4 (D.D.C. Sept. 26, 2019) (explaining “the

implied causes of action recognized by Bivens and its limited progeny have generally been made

against individuals . . . who have engaged in some personal misconduct in a direct and

particularized interaction with a plaintiff, not against individuals who have applied a general

policy that affected plaintiff and others in similar ways”).

2. Supervisory Liability

Plaintiffs contend that “[t]hey seek only to hold certain Defendants liable as supervisors

and integral participants in the use of unconstitutional, egregious, and excessive force on

Plaintiffs and members of the putative class over the course of 30 consecutive days in July

2020.” ECF 107 at 20. Under Bivens, “each Government official, his or her title notwithstanding,

is only liable for his or her own misconduct.” Iqbal, 556 U.S at 677. In the Fourth Amendment

context, “a supervisor faces liability . . . only where it would be clear to a reasonable [supervisor]

that his conduct was unlawful in the situation he confronted.” Chavez v. United States, 683 F.3d

1102, 1110 (9th Cir. 2012) (internal quotation marks omitted). The Ninth Circuit has also

explained that “[a]n official may be liable as a supervisor only if either (1) he or she was

personally involved in the constitutional deprivation, or (2) a sufficient causal connection exists

‘between the supervisor’s wrongful conduct and the constitutional violation.’” Felarca v.

Birgeneau, 891 F.3d 809, 819–20 (9th Cir. 2018) (quoting Starr v. Baca, 652 F.3d 1202, 1207

(9th Cir. 2011)).4 “The requisite causal connection can be established by setting in motion a

series of acts by others, or by knowingly refusing to terminate a series of acts by others, which

the supervisor knew or reasonably should have known would cause others to inflict a

constitutional injury.” Id at 820. (internal quotation marks omitted) (quoting Starr, 652 F.3d at

1207–08). Nevertheless, a supervisor “may not be held liable merely for being present at the

4 Though Felarca and Starr are actions under 42 U.S.C. § 1983, the Ninth Circuit has

explained that “[a]lthough ‘more limited in some respects,’ a Bivens action is the federal analog

to an action against state or local officials under § 1983.” Starr, 652 F.3d at 1206 (quoting

Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)); see also Van Strum v. Lawn, 940 F.2d 406,

409 (9th Cir. 1991) (“Actions under § 1983 and those under Bivens are identical save for the

replacement of a state actor under § 1983 by a federal actor under Bivens.”). Accordingly, this

Court applies the standard set forth in Felarca and Starr for supervisor liability to the Bivens

context in this case.

scene of a constitutional violation or for being a member of the same operational unit as a

wrongdoer.” Id.

Plaintiffs’ Second Amended Complaint contains ten allegations specifically referencing

conduct by Defendants Burger, Cline, Jones, Morgan, Russell, and Smith.5 See ECF 96 at ¶¶ 25–

30, 72–73, 82, 92.

a. Defendant Cline

Plaintiffs allege that Defendant Cline “was the Principal Deputy Director of FPS” and

“responsible for the oversight, direction, and control of Patrol-Level Defendants” in Portland. Id.

at ¶ 30. Plaintiff additionally allege that Cline attended a press conference on July 21, 2020 with

then-Acting Director of the Department of Homeland Security (“DHS”), Chad Wolf, which

Defendant Morgan also attended. Id. at ¶ 82.

As pleaded, Plaintiffs’ allegations as to Cline are insufficient to establish liability under

the relevant Fourth Amendment standards. There is no allegation that Cline was “personally

involved” in any Fourth Amendment violation. See Felarca, 891 F.3d at 819–20. Nor is there

any allegation upon which this Court can find that a “sufficient casual connection exists”

5 As in its prior Opinion, this Court declines, without more, to summarily attribute

Plaintiffs’ allegations involving “Supervisory Defendants” to Defendants Burger, Cline, Jones,

Morgan, Russell, and Smith. See ECF 91 at 6 n.3. “Absent vicarious liability, each Government

official, his or her title notwithstanding, is only liable for his or her own misconduct” in a Bivens

action. Iqbal, 556 U.S. at 677 (emphasis added); see also Ivey v. Bd. of Regents of the Univ. of

Alaska 673 F.2d 266, 268 (9th Cir. 1982) (“Vague and conclusory allegations of official

participation in civil rights violations are not sufficient to withstand a motion to dismiss.”)

(citations omitted). Underscoring the conclusory nature of these general allegations, at oral

argument on this Motion to Dismiss, Plaintiffs’ counsel conceded that some of the “supervisory

defendants,” to whom Plaintiffs seeks to attribute these allegations, were not present in Portland,

Oregon during the relevant time period, but rather located in Washington, DC. See Chavez, 683

F.3d at 1110 (“The Court discounts, as it must, the plaintiffs’ wholly conclusory allegation that

the supervisory defendants ‘personally reviewed and, thus, knowingly ordered, directed,

sanctioned or permitted’ the allegedly unconstitutional stops.”).

between Cline’s conduct and any constitutional violations purportedly committed by FPS . See

id. The Complaint merely alleges that Cline was a supervisor and that he was present at a press

conference. Plaintiffs have pleaded no facts that Cline directed, condoned, or was otherwise

aware of any alleged misconduct, and therefore the Complaint does not support a finding that

Cline is properly liable for the alleged misconduct under Bivens. See Chavez, 683 F.3d at 1111

(finding “no factual basis for imputing any such knowledge” of constitutional violations to

supervisors “by virtue of [their] responsibilities”); Iqbal, 556 U.S. at 676 (requiring a plaintiff to

“plead that each Government-official defendant, through his own individual actions, has violated

the Constitution”). Plaintiffs have not stated a Fourth Amendment claim against Cline. As stated

above, “Bivens is not designed to hold officers responsible for acts of their subordinates,”

Abbasi, 137 S. Ct. at 1860, and to do so here would extend Bivens to an entirely new context.

b. Defendants Burger, Morgan, Jones, Smith, and Russell

Plaintiffs allege that Defendant Russell “was a Regional Director with the DHS’s FPS

Region 10,” “was the Commander of the DHS Rapid Deployment Force for Operation Diligent

Valor and Incident Commander with fourth-line daily operational control,” and “was responsible

for, and exercised tactical direction and control over [the DHS forces].” ECF 96 at ¶ 25.

Defendants Jones, Burger, Smith, and Morgan held various supervisory positions in FPS, USMS,

and CPB. Id. at ¶¶ 26–29.6 Plaintiffs allege that all five Defendants “knew that federal agents

6 Specifically, Jones “was the Deputy Director for Field Operations for DHS FPS Region

10 and was the Deputy Incident Commander of all DHS forces [in] Portland,” and “exercised

headquarters oversight, direction, and control over the conduct involved in Operation Diligent

Valor,” id. at ¶ 26; Burger “was the U.S. Marshal for the District of Oregon” and “was

responsible for and exercised tactical direction and control over all USMS forces stationed in or

deployed to Portland,” id. at ¶ 27; Smith “was employed by the USMS as the Assistant Director

for the Tactical Operations Division and was responsible for and exercised tactical direction and

control over USMS forces” in Portland, id. at ¶ 28; and Morgan “was the Acting Commissioner

routinely left federal property to engage in crowd control and that such agents did so on

numerous occasions without issuance of warnings or dispersal orders and in circumstances in

which federal agents were without lawful authority to issue such orders.” Id. at ¶ 73. They allege

that Russell, Smith, and Jones “manned the ‘Incident Command Post’ or ‘Emergency Operations

Center’ within the Hatfield Courthouse and observed live feed video of federal agents’ use of

excessive force and unlawful detention against peaceful protesters, photojournalists, members of

the press, and legal observers.” Id. at ¶ 72. Additionally, Plaintiffs allege that Morgan attended

the July 21, 2020 press conference, id. at ¶ 82, and that he stated, on July 29, 2020, that “federal

officers ‘are not leaving Portland’ until DHS deemed that ‘the violent criminal activity’ was

over,” id. at ¶ 92.

As with Cline, Plaintiffs do not allege that these Defendants personally and directly

committed any Fourth Amendment violation. See Felarca, 891 F.3d at 819–20. Rather, the crux

of the allegations are that Burger and Morgan “knew” officers “engage[d] in crowd control” at

times without proper or lawful dispersal orders, ECF 96 at ¶ 73, and Russell, Smith, and Jones

“manned” the command post within the Hatfield Courthouse and “observed” excessive force and

unlawful detention, id. at ¶ 72.

Assuming, arguendo, that these allegations are sufficient to plead Fourth Amendment

liability under Felarca and Chavez, a Bivens remedy here arises in a new context. Though

Plaintiffs urge otherwise, the Supreme Court has made clear that the new-context inquiry is

“broad.” Hernandez, 140 S. Ct. at 743. “A context [is] ‘new’ if it is ‘different in a meaningful

way from previous Bivens cases decided by [the Supreme] Court.” Id. (quoting Abbasi, 137 S.

of CBP” and “authorized and oversaw the deployment of CPB’s Border Patrol Tactical Unit” to

Portland, id. at ¶ 29.

Ct. at 1859). The claims against these Defendants implicate a new, meaningfully different

context.

The most analogous of the Supreme Court’s Bivens cases is Bivens itself, in which the

Court implied a remedy for an excessive force claim. “There, the plaintiff alleged that federal

narcotics agents violated his Fourth Amendment rights by arresting him, handcuffing him in his

home, and searching his home without probable cause or a search warrant.” Quintero Perez v.

United States, 8 F.4th 1095, 1104–05 (9th Cir. 2021) (citing Bivens, 403 U.S. at 389–90). That

Bivens and the instant case both invoke the Fourth Amendment is not sufficient to end the new-

context inquiry. Hernandez, 140 S. Ct. at 743 (“A claim may arise in a new context even if it is

based on the same constitutional provision as a claim in a case in which a damages remedy was

previously recognized.”). In contrast to the facts in Bivens, here, the claims arise out of measures

taken during protests in downtown Portland, which are alleged to have occurred pursuant to a

“de facto” policy associated with Operation Diligent Valor and multiple federal agencies. See

ECF 96 at ¶¶ 134–35. No Defendant is alleged to have directly and personally participated in the

conduct, or to have direct knowledge of any misconduct relating to a named Plaintiff. See

Chavez, 683 F.3d at 1111 (finding liability where the defendant “face[d] liability not only as a

supervisor, but also for his direct participation in the [vehicle] stops,” where the defendant “twice

personally stopped” the vehicle).7 The alleged constitutional deprivations here involve

“intervening steps,” which “bear[ ] little resemblance to the straightforward claims from Bivens.”

Farah v. Weyker, 926 F.3d 492, 499 (8th Cir. 2019); see also Schwarz v. Meinberg, 761 F.

App’x 732, 735 (9th Cir.), cert. denied, 140 S. Ct. 468 (2019) (“[E]xtending Bivens remedies to

7 Even if Defendants had directly participated in the allegedly unconstitutional conduct,

the Ninth Circuit has recently gone so far as to find a new context based on the defendant being

“an agent of the border patrol rather than of the F.B.I.” Boule, 998 F.3d at 387.

Schwarz’s claims against regional and national BOP officials, individuals who lack direct

connection to Schwarz’s grievances, undermines the purpose of Bivens liability—to deter

individual government officers, not their supervisors or the agency, from engaging in

unconstitutional conduct.”). “[A] modest extension is still an extension,” Abbasi, 137 S. Ct. at

1864, and this case seeks to extend Bivens to a new context.

Plaintiffs argue to the contrary and cite Abbasi for the proposition that Defendants’

“strategiz[ing], direct[ing], and deploy[ing] certain crowd-control and dispersal tactics . . . and

. . . aware[ness] of, direct[ing], and overs[eeing] repeated incidents of excessive force or

wrongful detention,” “is a classic context for a Bivens remedy against a supervisory-level

official.” ECF 107 at 23–24. In Abbasi, the Supreme Court “conclude[d] that the prisoner abuse

allegations against [a prison warden based on deliberate indifference] state a plausible ground to

find a constitutional violation if a Bivens remedy is to be implied.” Abbasi, 137 S. Ct. at 1864

(emphasis added). But the Court did not then imply a remedy; rather the Court found that “the

new-context inquiry is easily satisfied,” and remanded for a “special factors analysis.” Id. at

1864–65; see also ECF 110 at 10–11. On this Court’s reading, though the Abassi Court may have

contemplated Bivens liability for a supervisor, the Court by no means endorsed such a finding.

Given that the “watchword is caution,” this Court declines to read Abassi so broadly.

Nor does Carlson require this Court to find otherwise. The factual—and legal—scenario

presented in Carlson is “clearly dissimilar” from the facts alleged here. Quintero Perez, 8 F.4th

at 1104 n.4 (declining to consider Carlson when analyzing whether to apply Bivens to alleged

Fourth Amendment violations). In Carlson, the plaintiff’s estate sued “federal prison officials”

alleging violations of the Eighth Amendment, 446 U.S. at 16, including the chief medical officer

who was “directly responsible for the prison medical services,” but who “did not provide any

emergency procedure for those times when a physician was not present,” Green v. Carlson, 581

F.2d 669, 671 (7th Cir. 1978). Though not directly addressed, the Supreme Court in Carlson

contemplated liability for a defendant in a supervisory role—the chief medical officer—for

Eighth Amendment violations. See Carlson, 446 U.S. at 16 n.1 (describing alleged deliberate

indifference of the officials to the prisoner’s severe medical condition). This Court notes first

that when Carlson was decided, the Supreme Court “followed a different approach to

recognizing implied causes of action” described as the “ancien regime.” Abbasi, 137 S. Ct. at

1855 (internal quotation marks omitted) (quoting Alexander v. Sandoval, 532 U.S. 275, 287

(2001)). The Supreme Court has since endorsed a “far more cautious course.” Id. Second, the

Supreme Court did not consider the sufficiency of the allegations in Carlson. See ECF 120 at 2.

Further, even if those allegations suffice under the Eighth Amendment standard, the Supreme

Court has not endorsed such an extension under the Fourth Amendment, and the specificity of

the allegations described by the Court in Carlson differ from those in the instant case. See

Carlson, 446 U.S. at 16 n.1 (noting officials were “fully apprised of the gross inadequacy” at the

prison, “kept [the prisoner] in that facility against the advice of doctors,” and “failed to give him

competent medical attention”). Accordingly, this Court finds that the context presented in this

case meaningfully differs from that presented in Carlson.8

8 This Court is aware that the Honorable Michael H. Simon recently held that the

plaintiffs in Pettibone v. Biden stated a Fourth Amendment claim against Russell and that their

“claims against Defendant Russell do not involve a new context or a new type of defendant for

the purposes of Bivens.” No. 3:20-CV-1464-YY, 2021 WL 6112595, at *4, 7 (D. Or. Dec. 27,

2021); see also ECF 119. “A decision of a federal district court judge is not binding precedent in

either a different judicial district, the same judicial district, or even upon the same judge in a

different case.” Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (internal quotation marks and

citation omitted). In other words, “district court decisions—unlike those from the courts of

appeals—do not necessarily settle constitutional standards.” Id. As explained in this Opinion, on

this Court’s analysis, Carlson is sufficiently distinguished from the facts alleged here such that a

new context is implicated. Moreover, in Pettibone, Judge Simon credited Plaintiffs’ allegations

B. Special Factors Analysis

Having found that Plaintiffs’ Bivens claims arise in a new context, this Court proceeds to

conduct a special factors analysis and “ask whether there are factors that counsel hesitation” in

extending Bivens to Plaintiffs’ claims. See Hernandez, 140 S. Ct. at 743. “The [Supreme] Court’s

precedents now make clear that a Bivens remedy will not be available if there are ‘special factors

counselling hesitation in the absence of affirmative action by Congress.’” Abbasi, 137 S. Ct. at

1857 (quoting Carlson, 446 U.S. at 18). The Supreme Court has not defined “special factors

counselling hesitation,” but has indicated that “the inquiry must concentrate on 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 1857–58. “[T]o be a ‘special

factor counselling hesitation,’ a factor must cause a court to hesitate before answering that

question in the affirmative.” Id.; see also Hernandez, 140 S. Ct. at 743 (“[I]f we have reason to

pause before applying Bivens in a new context or to a new class of defendants—we reject the

request.”); Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009) (describing the threshold for a

factor to counsel hesitation as “remarkably low”).

that “Russell had specific knowledge of the conduct against Plaintiffs Christopher David and

Mark Pettibone” and that he “directed or ordered . . . some of the unlawful arrests,” explaining

that “Plaintiffs’ claims against Defendant Russell largely focus on his personal conduct in

Portland.” Pettibone, 2021 WL 6112595, at *5–6; see also Amended Complaint at ¶ 25,

Pettibone, 2021 WL 6112595, ECF 18 (“[Russell] was aware of the use of force against

protesters by federal officers, including but not limited to the use of force against Plaintiff

Christopher David. On information and belief, he also directed and was aware of the arrests of

protesters, including Plaintiff Mark Pettibone.”). There are no such allegations that any

Defendant had specific knowledge of constitutional deprivations suffered by a named Plaintiff in

the instant case. This Court’s own analysis of the facts alleged in this case also lead it to

conclude that special factors counsel against extending Bivens to this new context. Compare

Pettibone, 2021 WL 6112595, at *7–8.

The parties disagree whether Plaintiffs have “alterative, existing process[es]” to protect

their interests. Abassi, 137 S. Ct. at 1858. “[W]hen alternative methods of relief are available, a

Bivens remedy usually is not.” Id. at 1863. Defendants contend that Plaintiffs could seek

injunctive or declaratory relief, relief under the Administrative Procedures Act, relief pursuant to

the Federal Tort Claims Act (“FTCA”), or an investigation by the DHS Inspector General. ECF

101 at 32–34. Plaintiff argues that these proposed alternatives are not sufficiently meaningful to

preclude a Bivens remedy. ECF 107 at 33 (noting that injunctive or declaratory relief cannot

compensate Plaintiffs for past injuries, the APA is inapplicable for the claims, and the FTCA is

not a bar to Bivens claims). Although Plaintiffs may be correct about the unavailability of a

satisfactory alternative remedy, the lack of an adequate alternative remedy is not dispositive in

determining whether a Bivens action to award money damages against the individual officers is

appropriate. Quintero Perez, 8 F.4th at 1105 (citing Schweiker v. Chilicky, 487 U.S. 412, 421–22

(1988)). This Court must consider whether special factors counsel against a remedy. Id.

This Court finds that Plaintiffs’ claims against Defendants Burger, Cline, Jones, Morgan,

Russell, and Smith present special factors counseling against extending Bivens to the

circumstances present in this case. First, as this Court found in its prior Opinion, ECF 91, Bivens

suits are not the appropriate mechanisms by which to litigate objections to government policies

of widespread applicability. See Abassi, 137 S. Ct. at 1860; Malesko, 534 U.S. at 74 (explaining

that a Bivens action is not a “proper vehicle for altering an entity’s policy”). Though Plaintiffs

frame their claims against these Defendants as “conventional Fourth Amendment claims that

arise directly under Bivens,” and claim that they do not seek to challenge the policy decisions

underlying the deployment of federal officers to Portland, see ECF 107 at 22, Plaintiffs’ claims

against supervisory officers implicate the implementation of widespread policies during the

protests, including by certain Defendants who were not even present in Portland during the

protests. See, e.g., ECF 96 at ¶ 5 (“To implement [President Trump’s] Order, Defendants

deployed militarized federal agents to Portland.”); id. at ¶ 134 (“Supervisory Defendants . . .

adopted and implemented a de facto policy of deployment of excessive force . . . .”). Further,

extending Bivens remedies to claims against individuals who lack a direct and particularized

connection to Plaintiffs’ harms would undermine the purpose of Bivens liability—“to deter

individual federal officers from committing constitutional violations.” Malesko, 534 U.S. at 70;

Quintero Perez, 8 F.4th at 1105–06 (dispensing with claim against Border Patrol Chief because

“he had no direct involvement in the shooting,” and Bivens is not the proper vehicle to challenge

an agency’s policy).

These considerations counsel caution and suggest to this Court that Congress is the more

appropriate body “to consider and weigh the costs and benefits of allowing a damages action to

proceed” against these Defendants. Abassi, 137 S. Ct. at 1857–58. Where there are “sound

reasons to think Congress might doubt the efficacy or necessity of [the] damages remedy”

Plaintiffs seek, this Court must refrain from creating one. Id. at 1858. Plaintiffs’ Bivens claims

against Defendants Burger, Cline, Jones, Morgan, Russell, and Smith must be dismissed.

Accordingly, the Court declines to reach Defendants’ qualified immunity arguments.

CONCLUSION

For the foregoing reasons, Defendants Burger, Cline, Jones, Morgan, Russell, and

Smith’s Motion to Dismiss, ECF 101, is GRANTED. Plaintiff’s claims against these Defendants

are DISMISSED for failure to state a claim.

IT IS SO ORDERED.

DATED this 3rd day of February, 2022.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge