claims properly dismissed as 13 frivolous under the PLRA are “those claims whose factual contentions are clearly baseless” and 14 “claims describing fantastic or delusional scenarios”
How later courts described this case
- claims properly dismissed as 13 frivolous under the PLRA are “those claims whose factual contentions are clearly baseless” and 14 “claims describing fantastic or delusional scenarios”
- “A district court should not dismiss a pro se complaint without 8 leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be 9 cured by amendment.’”
- recognizing a Fifth Amendment claim for 5 gender discrimination in employment
- three-year 2 statute of limitations applies to analogous § 1983 actions filed in Washington State
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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10 WILLIAM MCDOWELL,
CASE NO. 3:24-cv-05768-KKE-DWC
11 Plaintiff,
v.
ORDER DECLINING TO SERVE
12 COMPLAINT AND TO SHOW
UNKNOWN FEDERAL AGENT, et al.,
CAUSE
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Defendants.
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15 Plaintiff William McDowell, proceeding pro se and in forma pauperis, filed this civil
16 rights action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
17 388 (1971).1 Having reviewed and screened Plaintiff’s complaint (Dkt. 4-1), under 28 U.S.C. §
18 1915A, the Court declines to serve the complaint and, instead, orders Plaintiff to show cause why
19 this Bivens action should not be dismissed for failure to state a cognizable claim.
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23 1 Damages actions against federal officials for Constitutional violations must be brought under Bivens—the
judicially crafted counterpart to § 1983 that is virtually identical except for the replacement of a state actor with a
24 federal actor. Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991).
1 I. BACKGROUND
2 Plaintiff, who is currently incarcerated at Coyote Ridge Corrections Center, initiated this
3 civil rights action concerning certain conditions of supervision imposed in unspecified federal
4 conviction. Dkt. 1-4 at 4–5. According to Plaintiff, he was arrested by federal officers in October
5 2019. Id. Plaintiff asserts that his supervised release expired on February 27, 2020. Id. Despite
6 the expiration of his supervision, Plaintiff alleges he was not released until May 20, 2020, and
7 was required to wear an ankle-monitor for the next two years. Id. According to Plaintiff, this
8 continued monitoring without justification amounts to an unlawful seizure in violation of the
9 Fourth Amendment to the United States Constitution. Id. Plaintiff represents the specific charges
10 associated with his supervised release have since been dismissed. Id.
11 As relief, Plaintiff seeks monetary damages against the “unknown federal agents”
12 responsible for the alleged unlawful seizure. Id.
13 II. SCREENING STANDARD
14 Under the Prison Litigation Reform Act of 1995, the Court is required to screen
15 complaints brought by prisoners seeking relief against a governmental entity or officer or
16 employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss the
17 complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to
18 state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant
19 who is immune from such relief.” 28 U.S.C. § 1915A(b); see 28 U.S.C. § 1915(e)(2); Barren v.
20 Harrington, 152 F.3d 1193 (9th Cir. 1998). Dismissal on these grounds counts as a “strike”
21 under 28 U.S.C. § 1915(g).
22 To sustain a Bivens claim, a plaintiff must name a federal actor and show (1) he suffered
23 a violation of rights protected by the Constitution or created by federal statute, and (2) the
24 violation was proximately caused by a person acting under color of federal law. Bivens, 403 U.S.
1 at 409–10; Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). A plaintiff must provide
2 more than conclusory allegations; he must set forth specific, plausible facts to support his claims.
3 Ashcroft v. Iqbal, 556 U.S. 662, 678–83 (2009).
4 After screening a pro se complaint, the Court must generally grant leave to file an
5 amended complaint if there is a possibility the pleading deficiencies may be cured through
6 amendment. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992); Akhtar v. Mesa, 698
7 F.3d 1202, 1212 (9th Cir. 2012) (“A district court should not dismiss a pro se complaint without
8 leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be
9 cured by amendment.’”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203–04 (9th Cir.
10 1988)). However, if the claims put forth in the complaint lack any arguable substance in law or
11 fact, then the Court should dismiss the complaint as frivolous and without leave to amend. 28
12 U.S.C. § 1915A(b); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (claims properly dismissed as
13 frivolous under the PLRA are “those claims whose factual contentions are clearly baseless” and
14 “claims describing fantastic or delusional scenarios”).
15 III. DISCUSSION
16 Plaintiff puts forth a single unlawful seizure claim against two unnamed defendants,
17 alleging he was subject to GPS monitoring beyond the expiration of his supervised release. Dkt.
18 4-1. Plaintiff’s claim is deficient in several ways, and it is unlikely he will be able to cure the
19 deficiencies through amendment.
20 A. Unavailability of Bivens Remedy in New Contexts
21 First, Plaintiff’s claim would likely require application of Bivens to a new context. In
22 Bivens, the Supreme Court recognized an implied cause of action to seek damages against
23 federal narcotics officers for an unreasonable search and seizure under the Fourth Amendment.
24 Bivens, 403 U.S. at 389–90. In Bivens, federal agents entered the plaintiff’s apartment and
1 arrested him. Id. at 389. The agents threatened the plaintiff’s family, searched his apartment,
2 took him to a federal courthouse, interrogated him, and subjected him to visual strip search—all
3 without a warrant. Id. The Supreme Court subsequently recognized a Bivens action in two other
4 contexts. See Davis v. Passman, 442 U.S. 228 (1979) (recognizing a Fifth Amendment claim for
5 gender discrimination in employment); Carlson v. Green, 446 U.S. 14 (1980) (recognizing an
6 Eighth Amendment claim asserting cruel and unusual punishment against prison officials for
7 failing to treat the prisoner’s asthma). Following the creation of an implied cause of action in
8 Bivens and application of the remedy to these three discrete contexts, the United States Supreme
9 Court foreclosed the availability of Bivens remedies in new contexts. Ziglar v. Abbasi, 582 U.S.
10 120, 131–35 (2017).
11 It appears Plaintiff’s claim, which alleges unlawful seizure by federal probation officers
12 in the context of postconviction supervision, would require application of Bivens to a new
13 context. See Quinonez v. United States, 667 F. Supp. 3d 1015, 1036 (N.D. Cal. 2023) (finding
14 “the plaintiffs’ claims involving the alleged search and seizure of mailed packages by Postal
15 Service employees [stood] in stark contrast” to the warrantless search and seizure claim
16 involving excessive force by federal narcotics officers first recognized in Bivens); Massaquoi v.
17 Fed. Bureau of Investigation, 2023 WL 5426738, at *2 (9th Cir. Aug. 23, 2023) (finding a
18 Fourth Amendment claim presented a new Bivens context because the claim involved a new
19 category of defendants—FBI agents—who acted pursuant to a search warrant). Accordingly,
20 before he may proceed further in this action, Plaintiff must show cause why his claim does
21 involve a new Bivens context.
22 B. Individual Liability
23 Next, Plaintiff identifies two “unknown federal agents” as defendants in this action and
24 indicates both defendants are sued in their individual capacities. Dkt. 4-1 at 3, 5. Plaintiff has
1 failed to state a claim against either defendant. “Because vicarious liability is inapplicable to
2 Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through
3 the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S.
4 662, 676 (2009). That is, to state an individual capacity claim, a plaintiff must show a defendant
5 personally participated in causing the alleged constitutional injury by committing an affirmative
6 act, by participating in another’s affirmative act, or by failing to perform a legally required act.
7 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981) (citing Johnson v. Duffy,
8 588 F.2d 740, 743-44 (9th Cir. 1978)). The instant complaint includes only threadbare
9 allegations; Plaintiff does not explain how either unnamed defendant personally participated in
10 his alleged unlawful seizure. He has thus failed to state Bivens claim against either defendant in
11 their individual capacities. Therefore, Plaintiff must also show cause why this action should not
12 be dismissed for failure to state a viable claim against any defendant.
13 C. Statute of Limitations
14 Finally, Plaintiff’s Bivens claim is likely barred by the applicable statute of limitations.
15 As noted above, the Supreme Court in Bivens created an implied cause of action for
16 constitutional deprivations proximately caused by federal actors. In the absence of an explicit
17 limitations period, federal courts look to the law of the forum state to determine the statute of
18 limitations applicable to Bivens claims.2 Montgomery v. West, No. 23-15728, 2024 WL 2843637,
19 at *1 (9th Cir. June 5, 2024). Under Washington law, Plaintiff had three years from the date his
20 claim accrued to file a Bivens action. See Syvyy v. Wawrzycki, No. 10-cv-5073-RBL, 2010 WL
21 2545452, at *2–3 (W.D. Wash. June 21, 2010) (three-year statute of limitations to file Bivens
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2 Ordinarily, the statute of limitations is affirmative defense raised by an opposing party; even so, may be
23 grounds for sua sponte dismissal of an in forma pauperis complaint where the defense is complete and obvious from
the face of the pleadings. See Franklin v. Murphy, 745 F.2d 1221, 1228–30 (9th Cir. 1984).
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1 action in Washington State); Rose v. Rinaldi, 654 F.2d 546, 547 (9th Cir. 1981) (three-year
2 statute of limitations applies to analogous § 1983 actions filed in Washington State).
3 “While the statute of limitations period is derived from state law, federal law determines
4 when the statute of limitations period accrues.” W. Ctr. For Journalism v. Cederquist, 235 F.3d
5 1153, 1156 (9th Cir. 2000). “A Bivens claim accrues when the plaintiff knows or has reason to
6 know of the injury.” Id. (citing Bagley v. CMC Real Estate Corp., 923 F.2d 758, 761–62 (9th
7 Cir. 1991)). However, “it is not necessary that [a plaintiff] have knowledge of all the details or
8 all of the persons involved in order for [their] cause of action to accrue.” Id. at 1157.
9 The final step in determining whether a claim is time barred is application of the
10 equitable tolling doctrine. In federal court, a litigant seeking equitable tolling of a limitations
11 period generally bears the burden of establishing two elements: (1) that he has pursued his rights
12 diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo,
13 544 U.S. 408, 418 (2005) (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96
14 (1990)). “The doctrine [of equitable tolling] is not available to avoid the consequence of one’s
15 own negligence and does not apply when a late filing is due to claimant’s failure to exercise due
16 diligence in preserving his legal rights.” Redlin v. United States, 921 F.3d 1133, 1140 (9th Cir.
17 2019).
18 From the allegations in the complaint, it appears Plaintiff either knew or had reason to
19 know of his unlawful seizure when he was allegedly detained and subject to conditions of
20 supervision beyond the expiration of his supervised released. Dkt. 4-1 at 4–5. Taking his
21 allegations as true, Plaintiff’s Bivens claim accrued the day after his supervised released expired
22 on February 27, 2020, making the last day for him to file a timely Bivens claim three years later
23 on February 28, 2023. This action was not filed until September 12, 2024, and it does not appear
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1 equitable tolling would apply. Thus, Plaintiff must show cause why his Bivens claim should not
2 be dismissed as time barred.
3 IV. INSTRUCTIONS TO PLAINTIFF
4 Due to the deficiencies described above, the Court will not serve Plaintiff’s complaint.
5 Instead, if Plaintiff intends to pursue this Bivens action, he must show cause (1) why his unlawful
6 seizure claim would not require application of Bivens to a new context, (2) why it should not be
7 dismissed for failure to demonstrate individual liability for any defendant, and (3) why it should
8 not be dismissed as time barred. If Plaintiff fails to respond to this order or show cause on or
9 before October 28, 2024, the undersigned will recommend dismissal of this action for failure to
10 state a claim and failure to comply with a court order.3
11 Dated this 27th day of September, 2024.
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A
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David W. Christel
United States Magistrate Judge
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24 3 Dismissal on these grounds constitutes a “strike” under 28 U.S.C. § 1915(g).