Cohen v. Russell

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JENNIFER KRISTIANSEN and JOHN Case No. 3:21-cv-00546-IM

HACKER, (Lead Case)

Plaintiffs, OPINION AND ORDER

v.

GABRIEL RUSSELL, et al.,

Defendants.

NATHAN COHEN, Case No. 3:21-cv-00579-IM

(Trailing Case)

Plaintiff,

v.

GABRIEL RUSSELL, et al.,

Defendants.

ANGELINE MEAD, Case No. 3:21-cv-00672-IM

(Trailing Case)

Plaintiff,

v.

GABRIEL RUSSELL, et al.,

Defendants.

NATHAN HABERMAN-DUCEY, Case No. 3:21-cv-00890-IM

(Trailing Case)

Plaintiff,

v.

GABRIEL RUSSELL, et al.,

Defendants.

KRISTEN JESSIE-UYANIK, and LILLIAN Case No. 3:21-cv-00931-IM

DOROTHY “BECK” WEST, (Trailing Case)

Plaintiffs,

v.

GABRIEL RUSSELL, et al.,

Defendants.

JOE KETCHER, Case No. 3:21-cv-00983-IM

(Trailing Case)

Plaintiff,

v.

GABRIEL RUSSELL, et al.,

Defendants.

Michelle Burrows, Michelle R. Burrows PC, 16869 SW 65th Ave., Ste. 367, Lake Oswego, OR

97035; David D. Park, Elliot & Park, PC, 324 S Abernathy St., Portland, OR 97239; Gabriel

Michael Chase, Chase Law PC, 621 SW Alder St., Ste. 600, Portland, OR 97205; Jane L.

Moisan, People’s Law Project, 818 SW 4th Ave. # 221-3789, Portland, OR 97204; Christopher

A. Larsen, Pickett Dummigan McCall LLP, 210 SW Morrison St., Ste. 400, Portland, OR 97204;

Joseph E. Piucci, Piucci Law, 900 SW 13th Ave., Ste. 200, Portland, OR 97205; Erious Johnson,

Jr., Harmon Johnson LLC, 698 12th St. SE, Ste. 240/No. 4, Salem, OR 97301. Attorneys for

Consolidated Plaintiffs.

David G. Cutler, Glenn Greene, and David Inkeles, United States Department of Justice, P.O.

Box 7146, Washington, DC 20044. Attorneys for Gabriel Russell, Allen Jones, Russel Burger,

Mark Morgan, and Richard Cline. David H. Angeli, Michelle Holman Kerin, and Peter D.

Hawkes, Angeli Law Group LLC, 121 SW Morrison St., Ste. 400, Portland, OR 97205.

Attorneys for Andrew Smith.

IMMERGUT, District Judge.

On October 1, 2021, this Court consolidated the above-captioned cases to permit the

filing of a consolidated motion to dismiss. ECF 21.1 Defendants Russel Burger, former United

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

Russell, Regional Director, Region 10, Federal Protective Service (“FPS”); Richard Cline,

Principal Deputy Director, FPS; Allen Jones, Deputy Director of Operations, FPS; Mark

Morgan, former Acting Commissioner, United States Customs and Border Protection (“CPB”);

and Andrew Smith, Assistant Director for Tactical Operations, USMS (collectively,

“Defendants”) have now moved to dismiss. ECF 30; ECF 31. 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. See generally ECF 30.

Plaintiffs in the consolidated cases, Jennifer Kristiansen, John Hacker, Nathan Cohen,

Angeline Mead, Nathan Haberman-Ducey, Kristen Jessie-Uyanik, Lillian Dorothy “Beck” West,

and Joe Ketcher (collectively, “Plaintiffs”), are individuals who attended one or more 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. ECF 36 at 14–23. Each Plaintiff suffered

physical injuries while protesting, due to alleged excessive force by federal officers. Id. at 14–22.

Plaintiffs Kristiansen and Hacker also bring allegations of arrest without probable cause. Id. at

21–23. Plaintiffs seeks monetary damages from Defendants in their individual capacities under

1 Unless noted otherwise, citations to the docket refer to Kristiansen v. Russell, No. 3:21-

cv-00546-IM. Although each Plaintiff in the consolidated cases suffered unique injuries and the

complaints present unique factual allegations with regard to the Fourth Amendment claims, the

allegations against the supervisory Defendants are substantively similar across the complaints

and Defendants present the same legal defenses to each complaint. See ECF 18 at 2.

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), for alleged violations of

Plaintiffs’ Fourth Amendment rights. Id. at 6; see also, e.g., ECF 1 at ¶¶ 99–121.

This Court considers whether certain federal officers—here Defendants Burger, Russell,

Cline, Jones, Morgan, and Smith—should be held personally liable under Bivens for conduct that

occurred during the July 2020 protests in Portland, Oregon. Parties in this case have not asked

this Court to opine on the merits of the July 2020 protests or the law enforcement response to

those protests, including Operation Diligent Valor, and this Court does not do so here. This Court

is also not tasked with determining whether Plaintiffs deserve a remedy in the abstract. Rather,

this Court must determine—on the facts presented here and bound by Supreme Court and Ninth

Circuit precedent—whether Plaintiffs may seek damages from these supervisory 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.2

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

2 This Court has determined that oral argument would not aid in the resolution of these

issues. See LR 7-1(d).

(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.

“As a general rule, a district court may not consider any material beyond the pleadings in

ruling on a Rule 12(b)(6) motion.” Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) (internal

quotation marks and citation omitted). Rule 12(b)(6) provides that if:

[M]atters outside the pleading are presented to and not excluded by

the court, the motion shall be treated as one for summary judgment

and disposed of as provided in Rule 56, and all parties shall be

given reasonable opportunity to present all material made pertinent

to such a motion by Rule 56.

Fed. R. Civ. P. 12(b)(6). However, there are two exceptions to this rule. First, a trial court

may consider materials submitted as part of the complaint. Lee, 250 F.3d at 688. “If the

documents are not physically attached to the complaint, they may be considered if the

documents’ authenticity . . . is not contested and the plaintiff’s complaint necessarily relies on

them.” Id. (internal quotation marks and citation omitted). Second, under Federal Rule of

Evidence 201, “a court may take judicial notice of matters of public record.” Id. at 689 (internal

quotation marks and citation omitted); see also Fed. R. Evid. 201(b) (“The court may judicially

notice a fact that is not subject to reasonable dispute.”).

DISCUSSION

A. Judicial Notice

This Court first considers Plaintiffs’ Motion to Take Judicial Notice. ECF 34. Plaintiffs

ask this Court to take judicial notice of “documents” and “exemplars” pursuant to Federal Rule

of Evidence 201. Id. at 2. Specifically, Plaintiffs request judicial notice of various filings,

declarations, and opinions from following cases: (1) Index Newspapers v. City of Portland, No.

3:20-cv-1035-SI (D. Or.); (2) Clark v. Wolf, No. 3:20-cv-01436-IM (D. Or.); (3) Wise v. City of

Portland, No. 3:20-cv-01193-IM (D. Or.); (4) Pettibone v. Biden, No. 3:20-cv-01464-YY (D.

Or.); and (5) Western States Center, Inc. v. United States Department of Homeland Security, No.

3:20-cv-01175-JR (D. Or.). ECF 34 at 2; see also ECF 35. Plaintiffs also request judicial notice

of: (1) a United States Government Accountability Office (“GAO”) report titled Law

Enforcement: Federal Agencies Should Improve Reporting and Review of Less-Lethal Force; (2)

an Office of Inspector General (“OIG”) report titled DHS Lacks Oversight of Component Use of

Force; and (3) an OIG report titled DHS Had Authority to Deploy Federal Law Enforcement

Officers to Protect Federal Facilities in Portland Oregon, but Should Ensure Better Planning

and Execution in Future Cross-Component Activities. ECF 34 at 3; see also ECF 35.

Defendants object to the request. ECF 37; ECF 40; ECF 41. Defendants contend that

Plaintiffs’ “blanket request for judicial notice” fails to provide the information necessary for this

Court to determine whether judicial notice is appropriate. ECF 27 at 3–4 (citing Dauven v. U.S.

Bancorp, 390 F. Supp. 3d 1262, 1270 (D. Or. 2019)). Defendants also argue that Plaintiffs are

improperly seeking to rely on the documents for the truth of their contents. ECF 41 at 6–7

(arguing that “Plaintiffs cannot supplement their allegations by attempting to import additional

alleged facts under the guise of ‘judicial notice’”); ECF 40 at 18–19. Finally, Defendants note

that “the Court need not take notice of documents that do not provide any additional relevant

information, even if they would otherwise be the proper subject of judicial notice.” ECF 40 at 19

(internal quotation marks omitted) (quoting Bryan v. City of Carlsbad, 297 F. Supp. 3d 1107,

1115 (S.D. Cal. 2018)).

This Court addresses each category of material in turn. As to the opinions from other

proceedings that Plaintiffs ask this Court to notice,3 on a Rule 12(b)(6) motion, a court may take

judicial notice of another court’s opinion. Lee, 250 F.3d at 690. However, “it may do so not for

the truth of the facts recited therein.” Id. (internal quotation marks and citation omitted); Wyatt v.

Terhune, 315 F.3d 1108, 1114 (9th Cir. 2003), overruled on other grounds by Albino v. Baca,

747 F.3d 1162 (9th Cir. 2014), (“[W]e have held that taking judicial notice of findings of fact

from another case exceeds the limits of Rule 201.”). Rather, the court may take judicial notice of

“the existence of the opinion, which is not subject to reasonable dispute over its authenticity.”

Lee, 250 F.3d at 690 (internal quotation marks and citation omitted). Accordingly, for purposes

of resolving the motions to dismiss, this Court takes judicial notice of the existence of the

opinions—which are not binding precedent—in Index Newspapers and Pettibone referenced in

the motion, but not of the findings of fact contained in the opinions. See ECF 34 at 2; see also

Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011).

As to the declarations that Plaintiff asks this Court to notice,4 “[d]eclarations can be used

to bring materials that are properly considered to the attention of the court.” Gerritsen v. Warner

Bros. Ent. Inc., 112 F. Supp. 3d 1011, 1020 (C.D. Cal. 2015). Defendants argue that such

materials cannot be used to introduce facts or evidence at this stage of the proceedings. See ECF

40 at 19; ECF 41 at 6–7. This Court agrees with Defendants’ assessment that it is inappropriate

to notice for their truth facts contained in declarations submitted as part of separate litigation.

3 See Index Newspapers v. City of Portland, No. 3:20-cv-1035-SI (D. Or.), ECF 157, ECF

191; Pettibone v. Trump, No. 3:20-cv-01464-YY (D. Or.), ECF 149.

4 See ECF 35-1, Attachment 1 (Russell declaration filed in Index Newspapers); ECF 35-

2, Attachment 2 (Jones declaration filed in Index Newspapers); ECF 35-3, Attachment 3 (Smith

declaration filed in Index Newspapers); ECF 35-4, Attachment 4 (Moore declaration filed in

Index Newspapers).

See Coal. for a Sustainable Delta v. F.E.M.A., 711 F. Supp. 2d 1152, 1172 n.6 (E.D. Cal. 2010)

(explaining that “[a]lthough it is appropriate to take judicial notice of the existence or content of

declarations filed as part of an official court record,” relying on the declaration “for the truth of

its contents” is “not a permissible use of a judicially noticed document”); see also Geanta v.

Compass Health, Inc., No. CV 13-07416 BRO (JCGx), 2017 WL 11634735, at *3 (C.D. Cal.

July 3, 2017) (“A court may not . . . take judicial notice of the contents of declarations filed in

other cases without an independent basis for doing so.”). For the purposes of resolving these

pending motions to dismiss, this Court, therefore, acknowledges the existence of the Russell,

Jones, Smith, and Moore declarations filed in Index Newspapers. But Plaintiffs seek to rely on

these declarations for the truth of their contents. See, e.g., ECF 36 at 24–28. This Court does not,

and cannot, notice the facts contained in the declarations for their truth or consider them as

conclusively established when resolving these motions to dismiss. If these facts are not

considered for their truth, their relevance to determining the legal issues presented in these

motions is also diminished. See Bryan, 297 F. Supp. 3d at 1115. The same logic applies to the

various other court filings in Index Newspapers, Clark, Wise, Pettibone, and Western States that

Plaintiffs request this Court notice. See ECF 34 at 2. This Court notices the existence of these

filings, but will not consider facts presented therein as conclusively established for the purposes

of resolving the motions to dismiss.

As to the two OIG reports and GAO report,5 public records can be appropriate documents

for judicial notice under Rule 201. See Santa Monica Food Not Bombs v. City of Santa Monica,

450 F.3d 1022, 1025 (9th Cir. 2006). Nevertheless, Plaintiffs have asked the Court to take

5 See ECF 35-5, Attachment 5 (GAO report); ECF 35-6, Attachment 6 (2017 OIG report);

ECF 35-7, Attachment 7 (2021 OIG report).

judicial notice of entire reports, not specific facts pulled therefrom, and have not clearly

established the relevance of the reports to resolving the legal issues presented in the motions to

dismiss. See Elhassani v. U.S. Citizenship & Immigr. Servs., No. 33:20-cv-02159-BEN-AHG,

2022 WL 168631, at *18 (S.D. Cal. Jan. 14, 2022) (finding the petitioner’s request for judicial

notice “improper” where “it asks the Court to take judicial notice of entire documents rather than

specific facts from the documents or the fact that the documents were published on a specific

date”); Bryan, 297 F. Supp. 3d at 1115. Because this Court finds these reports are not relevant to

its disposition of the legal issues presented in the motions to dismiss—i.e., whether a Bivens

remedy is appropriate in this context—this Court declines to take judicial notice of them.

Accordingly, Plaintiffs’ motion for judicial notice is granted insofar as this Court

acknowledges the existence of some of the requested materials, but this Court declines to notice

these materials for their truth.

B. Motions to Dismiss

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

against federal officers for constitutional violations and held that the plaintiff 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 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

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

1. 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.”).

a. 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 only 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”). This Court, therefore,

considers whether these Bivens claims may proceed under a theory of supervisory liability.

b. Supervisory Liability

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)).6

“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 scene of a constitutional

violation or for being a member of the same operational unit as a wrongdoer.” Id.

Plaintiffs each allege distinct Fourth Amendment violations against one or more unnamed

federal officers for injuries Plaintiffs suffered during the protests in Portland. Plaintiffs’

allegations against Defendants are largely consistent across their complaints. As to Defendant

Russell, Plaintiffs allege that he was the Regional Director of the Department of Homeland

Security (“DHS”) FPS Region 10 and commanded the DHS Rapid Deployment Force for

Operation Diligent Valor. ECF 36 at 25. He was “personally responsible for and exercised

tactical direction and control over” the DHS forces in Portland during the relevant time. Id. As to

6 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.

Defendant Jones, Plaintiffs allege that he was the Deputy Director for Operations of FPS Region

10 and Deputy Incident Commander of DHS forces in Portland for Operation Diligent Valor. Id.

at 26. Plaintiffs allege that Defendant Burger was the U.S. Marshal for the District of Oregon and

“responsible for an exercised tactical direction and control over all USMS forces” in Portland

during the relevant time. Id. Plaintiffs allege Defendant Smith was the USMS Assistant Director

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

and control over USMS forces” in Portland at the relevant time. Id. at 27. As to Defendant

Morgan, Plaintiffs allege he was the Acting Commissioner of CBP, and in that capacity

“authorized and oversaw the deployment” of CBP forces to Portland for Operation Diligent

Valor. Id. at 28. Finally, as to Defendant Cline, Plaintiffs allege he was the Deputy Director of

FPS and “authorized and oversaw the deployment of FPS forces . . . to Portland, Oregon, as part

of Diligent Valor.” Id.

This Court notes that these allegations may not, for some Defendants, suffice to establish

liability under Felarca and Starr.7 Nevertheless, even assuming Plaintiffs have alleged Fourth

Amendment supervisory liability violations as to each of these Defendants, this Court finds that

Plaintiffs seek to extend Bivens to a new and different context here.

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

7 For instance, Plaintiffs do not include an allegation that Cline was in Portland during the

relevant time period. There are no clear allegations that Cline was “personally involved” in any

Fourth Amendment violation, or that a “sufficient casual connection exists” between Cline’s

conduct and any constitutional violations purportedly committed by FPS. See Felarca, 891 F.3d

at 819–20; 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 the official’s own individual actions, has violated the Constitution”).

Bivens cases decided by [the Supreme] Court.” Id. (quoting Abbasi, 137 S. Ct. at 1859). The

claims against 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 consolidated cases all 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 by multiple federal agencies, pursuant to high-level policy decisions, during

weeks of protests in downtown Portland. See, e.g., ECF 1 at ¶¶ 11–14, 20. Plaintiffs in these

consolidated cases have not alleged that Defendants directly and personally participated in the

conduct. See, e.g., 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). And to the extent Plaintiffs have

alleged that Defendants had direct knowledge of the allegedly unconstitutional conduct taken

against one of them, the Ninth Circuit has recently found a new context where a defendant

directly participated in this conduct but was “an agent of the border patrol rather than of the

F.B.I.” Boule, 998 F.3d at 387.

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 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 urge this Court to adopt the analysis contained in a recent decision from this

same District, Pettibone v. Biden, No. 3:20-CV-1464-YY, 2021 WL 6112595 (D. Or. Dec. 27,

2021). ECF 36 at 33–34. In that decision, the court, relying heavily on its analysis of Carlson,

found the plaintiffs stated a Fourth Amendment claim against Russell—who is also a defendant

in the instant consolidated cases—and that the plaintiffs’ “claims against Defendant Russell do

not involve a new context or a new type of defendant for the purposes of Bivens.” 2021 WL

6112595, at *4, 7. “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, 563 U.S. at 709 n.7 (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. Though the Supreme Court appeared to contemplate liability

for a supervisory defendant—the chief medical officer—for Eighth Amendment violations in

Carlson, 446 U.S. at 16 n.1, on this Court’s reading, Carlson does not require this Court to find

Bivens liability for these Defendants in these consolidated cases. The factual and legal

circumstances presented in Carlson are “clearly dissimilar” from those presented in the cases

before this Court. Quintero Perez, 8 F.4th at 1104 n.4 (declining to consider Carlson when

analyzing whether to apply Bivens to alleged Fourth Amendment violations). And 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. Next, the specificity of the allegations in

Carlson differs from those in the instant cases. 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”). This Court

finds that the context presented in these cases meaningfully differs from that presented in

Carlson, and declines to adopt the reasoning set forth in Pettibone.

C. Special Factors Analysis

Having found that Plaintiffs’ Bivens claims arise in a new context, this Court now “ask[s]

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”).

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 these cases. First, 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”); see also Clark v. Wolf, No. 3:20-CV-01436-IM, 2021 WL

2386115, at *5 (D. Or. June 10, 2021); Clark v. Wolf, No. 3:20-CV-01436-IM, 2022 WL

326738, at *7 (D. Or. Feb. 3, 2022). Though each Plaintiff in the consolidated cases alleges

Fourth Amendment violations tied to injuries personally suffered during protests in Portland,

their claims against these supervisory Defendants implicate the implementation of widespread,

multi-agency policies during the protests, including by some Defendants who were allegedly not

even in Portland for any or the majority of the relevant time period. This Court also finds that

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

connection to Plaintiffs’ injuries 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).8

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

their interests. Abassi, 137 S. Ct. at 1858; see ECF 30 at 35–37; ECF 36 at 36. “[W]hen

alternative methods of relief are available, a Bivens remedy usually is not.” Abassi, 137 S. Ct. at

1863. Though this Court considers the availability—or lack thereof—of an alternative remedy,

the lack of an adequate alternative remedy is not dispositive in determining whether a Bivens

These considerations counsel caution. This Court is cognizant that the circumstances

presented here are serious and that Plaintiffs suffered injuries during the protests. But the

considerations presented above 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

must be dismissed. Therefore, the Court declines to reach Defendants’ qualified immunity

arguments.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion to Take Judicial Notice, ECF 34, is

GRANTED IN PART and DENIED IN PART, and Defendants Burger, Cline, Jones, Morgan,

Russell, and Smith’s Motions to Dismiss, ECF 30; ECF 31, are GRANTED. Plaintiff’s claims

against these Defendants are DISMISSED for failure to state a claim.

IT IS SO ORDERED.

DATED this 2nd day of June, 2022.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge

action to award money damages against the individual officers is appropriate. See Quintero

Perez, 8 F.4th at 1105 (citing Schweiker v. Chilicky, 487 U.S. 412, 421–22 (1988)).