1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TOMMY NAVARRETTE, Case No.: 3:22-cv-0006-LL-AHG 12 Plaintiff, REPORT AND RECOMMENDATION 13 v. RECOMMENDING THE COURT 14 ROBIN WREN, GRANT DEFENDANT’S MOTION TO DISMISS 15 Defendant.
16 [ECF No. 26] 17
18 19 20 21 22 23 24 25 26 27 28 1 Before the Court is the Motion to Dismiss Plaintiff’s Complaint for failure to state a 2 claim, filed by Defendant Special Agent Robin Wren of the Department of Homeland 3 Security Homeland Security Investigations (“Defendant”) on January 24, 2023. ECF No. 4 26. Defense counsel filed a Certificate of Service the same day, establishing that Plaintiff 5 was served with the Motion to Dismiss via First Class U.S. Mail. ECF No. 27. Plaintiff has 6 failed to respond to the Motion to Dismiss, despite being given ample notice of the motion 7 as well as a sua sponte extension of the response deadline. See ECF No. 31. In light of the 8 Court’s Order of Referral (ECF No. 30), this Report and Recommendation is submitted to 9 United States District Judge Linda Lopez pursuant to 28 U.S.C. § 636(b)(1) and Local Civil 10 Rule 17.1(a) of the United States District Court for the Southern District of California. 11 After reviewing the Motion to Dismiss and all supporting documents, and for the reasons 12 discussed below, the Court RECOMMENDS that the District Court GRANT the Motion, 13 and DISMISS this action with prejudice. 14 I. BACKGROUND 15 Plaintiff, who is proceeding pro se, first filed this action on January 4, 2022. ECF 16 No. 1. At the time, Plaintiff was incarcerated at the Santa Rita Jail, and the Court denied 17 his motion to proceed in forma pauperis (“IFP”) for failing to attach his inmate account 18 statement for the 6-month period immediately preceding the filing of his Complaint and 19 dismissed the action without prejudice for failure to pay the filing fee. See ECF No. 4. 20 Plaintiff renewed his motion to proceed IFP and notified the Court that he was no longer 21 incarcerated on February 11, 2022. ECF No. 5. After reviewing the renewed IFP motion, 22 the Court granted Plaintiff leave to proceed IFP and found that his Complaint stated a 23 plausible claim under the Fourth Amendment for false arrest against the individual 24 defendants Jane Doe 1 and Jane Doe 2 sufficient to survive the “low threshold” for sua 25 sponte screening under 28 U.S.C. § 1915(e)(2) and § 1915A(b). ECF No. 6 at 5-6. 26 However, the Court required Plaintiff to identify the Doe Defendants and substitute those 27 individual persons as parties before permitting Plaintiff’s claims to proceed, and granted 28 Plaintiff leave to amend his pleading to name the individual officers. Id. at 6-7. 1 Plaintiff filed the operative First Amended Complaint (“FAC”) on March 25, 2022, 2 naming Special Agent Robin Wren as an individual Defendant. ECF No. 7. In the FAC, 3 Plaintiff alleges that on January 10, 2020, he traveled from Los Angeles, California to 4 Tijuana, Mexico “to get some dental work completed and to visit some friends.” Id. ¶ 7. 5 While in Tijuana, Plaintiff alleges that he “accidentally took the wrong freeway and ended 6 up in the Sentry line to [] cross back to the U.S.[,]” presumably at the San Ysidro Port of 7 Entry. Id. ¶¶ 7-8. Plaintiff states that he had 14 grams of medical-grade marijuana and black 8 organic African soap in the trunk of his vehicle. Id. ¶ 7. Plaintiff states that, after speaking 9 to a border patrol agent, he was sent to secondary inspection, where agents located the 10 marijuana and told him that he would be cited and released within approximately one hour. 11 Id. ¶ 8. Plaintiff alleges he was “handcuffed to a metal bench where he sat for 8 hours 12 waiting to be cited for the marijuana[,]” and after approximately 8 hours, Defendant Special 13 Agent Robin Wren took Plaintiff into an interview room and began to interrogate him about 14 the substance in the trunk that Plaintiff identifies as black organic African soap. Id. 15 According to the FAC, Plaintiff was unsure what substance Defendant was referring to and 16 was not able to answer her questions, and he was consequently “abruptly arrested and 17 transported to MCCSD where he was booked and arrested for possession of MDMA and 18 attempting to transport a controlled substance across the border into the U.S.” Id. 19 According to the FAC, the charges against Plaintiff were eventually dismissed on 20 February 5, 2020 after testing showed that the soap from his trunk did not contain any 21 controlled substances, and he was released from jail. Id. ¶ 11. Plaintiff alleges that the 22 substance “never tested positive for MDMA or characteristics of MDMA[,]” and accuses 23 Defendant Wren of falsifying the initial field test of the substance showing that it tested 24 positive for MDMA and “manufacturing” the probable cause statement she submitted in 25 support of Plaintiff’s arrest. Id. ¶¶ 10-12. 26 Plaintiff alleges that while he was illegally detained for 21 days between January 10 27 and January 31, 2020, his 2014 Toyota Prius (valued at approximately $14,000) was seized 28 and auctioned off, his United States passport (valued at approximately $150) and iPhone 8 1 (valued at approximately $900) were either misplaced or stolen by Defendant Wren, his 2 16-year-old daughter was displaced from the apartment she shared with Plaintiff and 3 became homeless, and Plaintiff suffered lost wages in the amount of $2,000. Id. ¶¶ 12-13. 4 Plaintiff further states that due to the stress of the situation, he suffered a bipolar manic 5 episode that lasted 4 months, during which he lost his apartment and ultimately ended up 6 in the San Francisco area, where he was involved in a physical altercation that led to 7 another arrest and a two-year incarceration in the Santa Rita Jail. Id. ¶ 13. Plaintiff 8 attributes his incarceration in the Santa Rita Jail to the incident underlying this case on the 9 basis that it triggered his manic episode, and contends that he also experienced cruel and 10 unusual punishment while in the Santa Rita jail. Id. ¶ 14. Based on these allegations, 11 Plaintiff contends that Defendant Wren violated his Fourth, Fifth, and Fourteenth 12 Amendment rights under the Constitution as well as his due process rights under the 13 California Constitution. Id. ¶¶ 15-20. 14 On May 16, 2022, upon screening of the FAC, the Court found that Plaintiff stated 15 a plausible claim against Defendant Wren for false arrest pursuant to the Fourth 16 Amendment and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 17 403 U.S. 388 (1971), sufficient to survive screening under 28 U.S.C. § 1915(e)(2). ECF 18 No. 9 at 3-4. The Court accordingly ordered the U.S. Marshal Service to effect service on 19 Defendant Wren and required her to file a responsive pleading to the FAC. Id. at 4-5. 20 Defendant filed the instant Motion to Dismiss on January 24, 2023, arguing that 21 Plaintiff’s constitutional claims present unwarranted extensions of Bivens, that Plaintiff’s 22 state constitutional claim is precluded by law, and that Defendant is entitled to qualified 23 immunity. ECF No. 26. 24 To date, Plaintiff has failed to file a response to the Motion to Dismiss, despite being 25 given a sua sponte extension of time to do so and being warned that failure to do so could 26 properly be construed as consent to grant the motion. See ECF No. 31; see also CivLR 27 7.1.f.3.c (explaining that the non-moving party’s failure to file an opposition to a motion 28 “may constitute a consent to the granting of a motion”); Ghazali v. Moran, 46 F.3d 52, 54 1 (9th Cir. 1995) (upholding a lower court’s application of a similar Local Rule, and finding 2 that a motion to dismiss may be granted as unopposed where a pro se litigant fails to file 3 any response because “pro se litigants are bound by the rules of procedure”). Nonetheless, 4 the undersigned recommends that the Court address Defendant’s Motion to Dismiss on the 5 merits, rather than granting the motion based solely on Plaintiff’s failure to respond. 6 II. LEGAL STANDARD 7 Generally, to survive a motion to dismiss under Rule 12(b)(6), a complaint must 8 “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 9 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 10 Twombly, 550 U.S. 544 , 570 (2007)). In making this assessment, the Court “must take all 11 allegations of material fact as true and construe them in the light most favorable to the 12 nonmoving party.” Turner v. City and Cty. of S.F., 788 F.3d 1206, 1210 (9th Cir. 2015). 13 Although the Rule 8 pleading standard does not require “detailed factual allegations,” it 14 demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation. . . . 15 Threadbare recitals of the elements of a cause of action, supported by mere conclusory 16 statements, do not suffice.” Iqbal, 556 U.S. at 678. To state a facially plausible claim, the 17 complaint must contain “factual content that allows the court to draw the reasonable 18 inference that the defendant is liable for the misconduct alleged.” Id. The “facial 19 plausibility” standard is not akin to a “probability requirement,” but “it asks for more than 20 a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. 21 at 556). 22 In this case, Defendant’s Motion to Dismiss presents an antecedent legal question 23 that the Court should address before turning to whether the complaint contains a facially 24 plausible claim that Defendant violated Plaintiff’s constitutional rights. Namely, although 25 the FAC purports to bring claims against Defendant under 42 U.S.C. § 1983, since 26 Defendant is a federal agent, Plaintiff’s constitutional claims arise under Bivens v. Six 27 Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Russell 28 v. U.S. Dep’t of the Army, 191 F.3d 1016, 1019 (9th Cir. 1999) (“Section 1983 [] provides 1 no right of action against federal (rather than state) officials.”); Van Strum v. Lawn, 940 2 F.2d 406, 409 (9th Cir. 1991) (“Actions under § 1983 and those under Bivens are identical 3 save for the replacement of a state actor under § 1983 by a federal actor under Bivens.”). 4 Because Plaintiff’s claims arise under Bivens, which gives courts limited authority to create 5 causes of action against federal actors, the Court must first determine whether a judicially- 6 created cause of action may lie under Bivens at all. 7 In Bivens, the Supreme Court “held that it had authority to create ‘a cause of action 8 under the Fourth Amendment’ against federal agents who allegedly manacled the plaintiff 9 and threatened his family while arresting him for narcotics violations.” Egbert v. Boule, 10 142 S. Ct. 1793, 1802 (2022) (quoting Bivens, 403 U.S. at 397). In the Egbert decision, the 11 Court explained that in the approximately 50 years since Bivens was decided in 1971, it 12 had “twice again fashioned new causes of action under the Constitution” against federal 13 actors—first, for a congressional staffer’s Fifth Amendment sex-discrimination claim in 14 Davis v. Passman, 442 U.S. 228 (1979), and second, for a federal prisoner’s Eighth 15 Amendment claim for cruel and unusual punishment against federal jailers for inadequate 16 medical care in Carlson v. Green, 446 U.S. 14 (1980)—but had otherwise “not implied 17 additional causes of action under the Constitution.” Egbert, 142 S.Ct. at 1802 (citations 18 omitted). Moreover, the Egbert Court made clear that “[a]t bottom, creating a cause of 19 action is a legislative endeavor[,]” and accordingly, “recognizing a cause of action under 20 Bivens is a disfavored judicial activity.” Id. at 1802, 1803 (quotations and citation omitted). 21 Indeed, reviewing its own precedent, the Supreme Court explained just how rarely a Bivens 22 action should lie: 23 When asked to imply a Bivens action, “our watchword is caution.” [Hernández v. Mesa, 140 S. Ct. 735, 742 (2020)]. “[I]f there are sound reasons 24 to think Congress might doubt the efficacy or necessity of a damages 25 remedy[,] the courts must refrain from creating [it].” Ziglar [v. Abbasi, 582 U.S. 120, 137 (2017)]. “[E]ven a single sound reason to defer to Congress” is 26 enough to require a court to refrain from creating such a remedy. Nestlé USA, 27 Inc. v. Doe, [] 141 S. Ct. 1931, 1937 [] (2021) (plurality opinion). Put another way, “the most important question is who should decide whether to provide 28 1 for a damages remedy, Congress or the courts?” Hernández, [] 140 S. Ct. at 750 (internal quotation marks omitted). If there is a rational reason to think 2 that the answer is “Congress”—as it will be in most every case, see Ziglar, 3 [582 U.S. at 135-36]—no Bivens action may lie. 4 Egbert, 142 S. Ct. at 1803. 5 Therefore, when faced with a Bivens action, the first step of the Court’s analysis is 6 whether fashioning a judicial cause of action would require extending Bivens to a new 7 context. A “new context” is one that is “different in a meaningful way from previous Bivens 8 cases decided by this Court.” Ziglar, 582 U.S. at 139. In making this assessment, the Court 9 is limited to examining only the three cases in which the Supreme Court has found an 10 implied judicial cause of action against federal actors—i.e., Bivens, Davis, and Carlson— 11 and should not examine Bivens cases in lower courts. Egbert, 142 S. Ct. at 1803; Pettibone 12 v. Russell, 59 F.4th 449, 455 (9th Cir. 2023). 13 Second, whenever a plaintiff’s claims against a federal agent present a new Bivens 14 context, the action may not lie if there is “even a single sound reason” to think that Congress 15 is better-equipped to provide for a damages remedy than the federal courts. Egbert, 142 S. 16 Ct. at 1803. “[I]n all but the most unusual circumstances, prescribing a cause of action is a 17 job for Congress, not the courts.” Id. at 1800; see also, e.g., Mejia v. Miller, 61 F.4th 663, 18 669 (9th Cir. 2023) (“Under Egbert, rarely if ever is the Judiciary equally suited as 19 Congress to extend Bivens even modestly. The creation of a new cause of action is 20 inherently legislative, not adjudicative.”). 21 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory 22 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 23 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). Therefore, the antecedent Bivens 24 inquiry of “whether to allow an action for money damages in the absence of congressional 25 authorization” may appropriately be addressed at the motion to dismiss stage, prior to 26 addressing whether the complaint contains a plausible claim that the plaintiff suffered a 27 constitutional violation or whether qualified immunity applies. See Ziglar, 137 S. Ct. at 28 1869; see also Marquez v. Rodriguez, No. 3:18-CV-0434-CAB-NLS, 2021 WL 2826075, 1 at *13 (S.D. Cal. July 6, 2021) (noting that “a court may determine on a motion to dismiss 2 whether a plaintiff can in fact proceed under Bivens when that question is ‘antecedent’ to 3 the issue of qualified immunity”) (citation omitted). In performing this inquiry, however, 4 the Court must still apply the familiar 12(b)(6) standard—that is, the Court must accept all 5 the facts alleged in the complaint as true, and the complaint should not be dismissed “unless 6 it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim 7 which would entitle him to relief.” Balistreri, 901 F.2d at 699. 8 III. DISCUSSION 9 In the Motion to Dismiss, Defendant argues that Plaintiff’s federal constitutional 10 claims should be dismissed because they represent an unwarranted extension of the Bivens 11 remedy in a new context. ECF No. 26 at 4-8. Additionally, Defendant argues that she is 12 entitled to immunity against Plaintiff’s state constitutional claim that she violated his due 13 process rights under the California Constitution. Id. at 8-9. 14 Notably, in the Court’s Order screening Plaintiff’s FAC, the Court found only that 15 Plaintiff stated a “plausible Fourth Amendment false arrest claim against Defendant Wren 16 sufficient to survive the ‘low threshold’ set for sua sponte screening as required by 28 17 U.S.C. § 1915(e)(2).” ECF No. 9 at 4. Therefore, it appears only Plaintiff’s Fourth 18 Amendment claim survived screening, and thus no other claims in the FAC remain at issue. 19 Nonetheless, in an abundance of caution, the undersigned will address Plaintiff’s state 20 constitutional claim before turning to its Bivens analysis of the federal constitutional claims 21 in the FAC. 22 A. Plaintiff’s state constitutional claim against Defendant Wren 23 In the second cause of action in his FAC, Plaintiff relies on Article 1, Section 7(a) 24 of the California Constitution, which provides that “[a] person may not be deprived of life, 25 liberty, or property without due process of law or denied equal protection of the laws[.]” 26 Cal. Const. art. I, § 7(a). Plaintiff alleges that Defendant Wren violated his rights under this 27 provision “by her actions of illegally arresting, unlawfully detaining plaintiff without 28 probable cause as well as through falsifying a test on the [black organic African soap,] then 1 amending her probable cause statement to state ‘characteristics’ of MDMA.” ECF No. 7 2 ¶¶ 16-17. Based on these allegations, Plaintiff claims that Defendant violated his due 3 process rights under the California Constitution because her actions “resulted in 4 deprivation of plaintiff’s life, liberty, and property.” Id. ¶ 18. As a remedy, Plaintiff seeks 5 (1) a declaratory judgment that Defendant violated his rights under the Fourth, Fifth, and 6 Fourteenth Amendments of the United States Constitution and the California Constitution 7 Article 1, Section 7(a), (2) a nominal judgment in the amount of $1.00, and (3) an award 8 of compensatory and punitive monetary damages in amounts to be determined at trial. Id. 9 at 12. 10 As an initial matter, in an extensive and detailed opinion, the California Supreme 11 Court has held that Article 1, Section 7(a) does not create a private right of action for 12 damages. Katzberg v. Regents of Univ. of California, 58 P.3d 339, 342-58 (Cal. 2002). 13 Therefore, to the extent Plaintiff is attempting to bring a claim for monetary damages 14 directly under that provision of the California Constitution, it must be dismissed.1 15 Further, to the extent Plaintiff’s claims against Defendant could be construed as 16 state-law tort claims, as Defendant Wren argues in her Motion to Dismiss, she enjoys broad 17 immunity from state tort claims under the Westfall Act. ECF No. 26 at 8 (citing United 18 States v. Smith, 499 U.S. 161, 163 (1991)); see also Westfall Act, codified in various 19
20 21 1 Although California does not recognize a private right of action under Article 1, Section 7(a) of the California Constitution, plaintiffs alleging such violations may under certain 22 circumstances bring suit under the Tom Bane Civil Rights Act, section 52.1 of the 23 California Civil Code, which is “the California state law analog to section 1983.” Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1167 (9th Cir. 2013). However, to prevail 24 on such a claim, he would have to allege that Defendant not only violated his rights under 25 the California Constitution, but also that she did so using “threats, intimidation, or coercion.” Cal. Civ. Code § 52.1(b)-(c); Jones v. Kmart Corp., 949 P.2d 941, 943-44 (Cal. 26 1998). Plaintiff has made no such allegations in the FAC that Defendant engaged in threats, 27 intimidation, or coercion, nor has he made any attempt to state a cause of action under the Bane Act. Therefore, the potential availability of this private cause of action for state 28 1 subsections of 28 U.S.C. §§ 2671, 2674, 2679. Under the Westfall Act, the “exclusive” 2 remedy for claims for injury or loss of property, or personal injury or death arising or 3 resulting from the negligent or wrongful act or omission of any federal employee acting 4 within the scope of their employment, is to bring an action under the Federal Tort Claims 5 Act. 28 U.S.C. § 2679(b)(1). “Any other civil action or proceeding for money damages 6 arising out of or relating to the same subject matter against the employee [] is precluded 7 without regard to when the act or omission occurred.” Id. The statute provides two 8 exceptions to the exclusive remedy provision, stating that it does not apply to a civil action 9 against a federal employee (A) which is brought for a violation of the Constitution of the 10 United States, or (B) which is brought for a violation of a statute of the United States under 11 which such action against an individual is otherwise authorized. Id. § 2679(b)(2)(A)-(B). 12 Therefore, because Defendant is a federal employee who was acting within the scope of 13 her employment as an HSI special agent when engaging in the conduct alleged in the FAC, 14 Plaintiff’s state-law claims for money damages against her must be dismissed. 15 That leaves the question of whether Plaintiff’s claim for a declaratory judgment that 16 Defendant violated his rights under the California Constitution may proceed. As explained 17 by the California Supreme Court in Katzenberg, although there is no private right of action 18 for damages available under Article 1, Section 7(a) of the California Constitution, 19 declaratory or injunctive relief may yet be available. See 58 P.3d at 355-56. However, the 20 FAC at hand does not present an appropriate basis for the Court to grant a declaratory 21 judgment. The purpose of a declaratory judgment is to offer “a means by which rights and 22 obligations may be adjudicated in cases brought by any interested party involving an actual 23 controversy that has not reached a stage at which either party may seek a coercive remedy 24 and in cases where a party who could sue for coercive relief has not yet done so.” Seattle 25 Audubon Soc. v. Moseley, 80 F.3d 1401, 1405 (9th Cir. 1996) (internal quotations and 26 citations omitted). Thus, declaratory judgment actions “are justiciable if ‘there is a 27 substantial controversy, between parties having adverse legal interests, of sufficient 28 immediacy and reality to warrant the issuance of a declaratory judgment.’” Id. (quoting 1 Nat’l Basketball Ass’n v. SDC Basketball Club, 815 F.2d 562, 565 (9th Cir. 1987)). In other 2 words, past acts cannot be the basis for declaratory judgment. Cotton v. Bashant, No. 18- 3 CV-325 TWR (DEB), 2021 WL 4942709, at *3 (S.D. Cal. Oct. 22, 2021). See also John 4 M. Floyd & Assocs., Inc. v. First Imperial Credit Union, No. 16-CV-1851 DMS (WVG), 5 2017 WL 4810223, at *5 (S.D. Cal. Oct. 25, 2017), aff'd, 771 F. App’x 840 (9th Cir. 2019) 6 (“A declaratory judgment is not a corrective action, and therefore, it should not be used to 7 remedy past wrongs.”). Where, as here, Plaintiff does not seek to “define the legal rights 8 and obligations of the parties in anticipation of some future conduct,” but rather seeks to 9 “proclaim liability for a past act[,]” no claim for declaratory relief can stand. See Couch v. 10 Morgan Stanley & Co., No. 1:14-CV-0010 LJO JLT, 2014 WL 1577463, at *7 (E.D. Cal. 11 Apr. 18, 2014) (quoting Lawrence v. Kuenhold, 271 F. App’x 763, 766 (10th Cir. 2008)). 12 Accordingly, to the extent Plaintiff’s claim against Defendant Wren arising under the 13 California Constitution survived screening in the first instance, the undersigned 14 recommends that the Court grant Defendant’s motion to dismiss it at this juncture. 15 B. Plaintiff’s federal constitutional claims against Defendant Wren 16 The Court now turns to the Bivens inquiry governing Plaintiff’s remaining federal 17 constitutional claims. 18 In determining whether a Bivens action may lie under the factual circumstances 19 presented by Plaintiff’s FAC, the Supreme Court’s decision in Egbert is directly on point 20 and must control the Court’s analysis. Specifically, Egbert involved a Fourth Amendment 21 excessive force claim and First Amendment retaliation claim against a Border Patrol agent, 22 sued in his individual capacity. See 142 S. Ct. at 1800-02. The Supreme Court found that 23 the Ninth Circuit Court of Appeals below “plainly erred” by creating causes of action for 24 the plaintiff’s claims against the agent, on the grounds that “Congress is better positioned 25 to create remedies in the border-security context” than are the courts, and “the Government 26 already has provided alternative remedies that protect plaintiffs” like the one in Egbert. Id. 27 at 1804. In reaching this conclusion, the Egbert court relied in part on its earlier decision 28 in Hernández v. Mesa, 140 S. Ct. 735 (2020), which also dealt with an excessive-force 1 claim against a Border Patrol agent. In Hernández, the Court refused to create a new federal 2 cause of action under Bivens because “regulating the conduct of agents at the border 3 unquestionably has national security implications,” and the “risk of undermining border 4 security provides reason to hesitate before extending Bivens into this field.” 140 S. Ct. at 5 747. The Egbert Court explained that the same “reasoning applies here with full force” 6 because, during the alleged altercation with the plaintiff, “Agent Egbert was carrying out 7 Border Patrol’s mandate to ‘interdic[t] persons attempting to illegally enter or exit the 8 United States or goods being illegally imported into or exported from the United States.’” 9 142 S. Ct. at 1804. (quoting 6 U.S.C. § 211(e)(3)(A)). Thus, “[b]ecause ‘[m]atters 10 intimately related to foreign policy and national security are rarely proper subjects for 11 judicial intervention,’ we reaffirm that a Bivens cause of action may not lie where, as here, 12 national security is at issue.” Egbert, 142 S. Ct. at 1804-05 (quoting Haig v. Agee, 453 U.S. 13 280, 292 (1981)). Reversing the Court of Appeals, the Supreme Court emphasized that the 14 Bivens inquiry requires the Court to answer “only one question: whether there is any 15 rational reason (even one) to think that Congress is better suited to weigh the costs and 16 benefits of allowing a damages action to proceed” and expressly stated that “the Judiciary 17 is comparatively ill suited to decide whether a damages remedy against any Border Patrol 18 agent is appropriate.” Egbert, 142 S. Ct. at 1805 (emphasis in original). 19 Additionally, the Supreme Court explained that Congress had provided alternative 20 remedies for the plaintiff, by requiring the United States Border Patrol to investigate 21 “[a]lleged violations of the standards for enforcement activities” and to accept grievances 22 from “[a]ny persons wishing to lodge a complaint.” Id. at 1806 (citing 8 C.F.R. §§ 23 287.10(a)-(b)). Although the plaintiff in Egbert complained that this grievance process was 24 inadequate because he was not entitled to participate and had no right to judicial review of 25 an adverse determination, the Court explained that “[s]o long as Congress or the Executive 26 has created a remedial process that it finds sufficient to secure an adequate level of 27 deterrence, the courts cannot second-guess that calibration by superimposing a Bivens 28 remedy[,] even if a court independently concludes that the Government’s procedures are 1 not as effective as an individual damages remedy.” 142 S. Ct. at 1807 (internal quotations 2 and citation omitted). 3 Similarly, here, Plaintiff’s claims all arise in the context of border patrol security, 4 where Defendant Special Agent Robin Wren was carrying out national-security duties with 5 the Department of Homeland Security (“DHS”) as an agent for Homeland Security 6 Investigations (“HSI”). In the statute establishing DHS, Congress provided that part of the 7 Department’s “primary mission” is to “monitor connections between illegal drug 8 trafficking and terrorism, coordinate efforts to sever such connections, and otherwise 9 contribute to efforts to interdict illegal drug trafficking.” 6 U.S.C. § 111(b)(1)(H). As noted 10 by Defendant in her Motion, HSI is considered the “principal investigative arm” of DHS, 11 with “authority to conduct federal criminal investigations into the illegal cross-border 12 movement of people, goods, money, technology and other contraband throughout the 13 United States.” ECF No. 26 at 3 (quoting Homeland Security Investigations, U.S. 14 Immigration and Customs Enforcement, https://www.ice.gov/about-ice/homeland- 15 security-investigations (last updated April 14, 2023)). Therefore, the facts underlying 16 Plaintiff’s claims against Defendant for her role in investigating the nature of the substance 17 in his trunk at secondary inspection station of the border port of entry, and in preparing the 18 probable cause statement leading to his arrest and prosecution, directly involve issues of 19 national security. The Supreme Court has directed that “a Bivens cause of action may not 20 lie where [] national security is at issue.” Egbert, 142 S. Ct. at 1805. For that reason alone, 21 the Court should grant Defendant’s Motion to Dismiss. 22 Moreover, Congress has provided for alternative remedies for the harms alleged by 23 Plaintiff here. Specifically, with respect to Plaintiff’s claim that Defendant falsified the 24 field test results showing that the substance in his trunk tested positive for MDMA, the 25 Department of Homeland Security is required to investigate any such alleged violations of 26 the standards for enforcement activities pursuant to 8 C.F.R. § 287.10(a)-(b)—the same 27 regulation discussed in Egbert. Pursuant to that regulation, “alleged violations of the 28 standards for enforcement activities established in accordance with the provisions of 1 § 287.8 shall be investigated expeditiously consistent with the policies and procedures of 2 [DHS].” 8 C.F.R. § 287.10(a). Any person wishing to lodge a complaint that an officer has 3 violated the enforcement standards set out in § 287.8 may contact the DHS Office of the 4 Inspector General by mail or by phone to do so. 8 C.F.R. § 287.10(b). Section 287.8, in 5 turn, applies to “every immigration officer involved in enforcement activities” and 6 provides in pertinent part that “[a]n arrest shall be made only when the designated 7 immigration officer has reason to believe that the person to be arrested has committed an 8 offense against the United States or is an alien illegally in the United States” 8 C.F.R. 9 § 287.8(c)(2)(i). Therefore, under these regulations, Plaintiff could report the facts 10 underlying his false arrest claim against Defendant Wren by lodging a complaint with DHS 11 that she falsified the results of the field test and included false information in the probable 12 cause statement to justify his arrest, which would trigger an investigation. 13 Further, with respect to Plaintiff’s claim that Defendant falsified or manufactured 14 the information in the probable cause statement supporting Plaintiff’s arrest, the Hyde Act 15 provides for the payment of reasonable attorney fees and other litigation expenses to 16 criminal defendants who prevail against vexatious, frivolous, or bad-faith prosecutions. 17 Pub. L. No. 105–119, 111 Stat. 2440 (1997). See also Sheikh v. U.S. Dep’t of Homeland 18 Sec., No. 2:22-CV-00409 WBS AC, 2022 WL 16964105, at *4 (E.D. Cal. Nov. 16, 2022) 19 (relying on both 8 C.F.R. § 287.10(a)-(b) and the same section of the Hyde Act to find that 20 there were existing remedies available to address the alleged misconduct of HSI special 21 agent defendants). The Sheikh court faced very similar allegations to those at hand in the 22 present case—namely, the plaintiff there claimed that two HSI special agents conducted a 23 warrantless check on her property and later obtained a search warrant for the property based 24 on information they knew to be false. 2022 WL 16964105, at *2. Based on the evidence 25 allegedly falsified by the HSI agents, the plaintiff’s “property was searched, she was 26 indicted and held in jail for several hours, her reputation in the community was destroyed, 27 and she suffered severe emotional distress.” Id. Although the Sheikh court expressed “deep 28 concern with the actions of” the HSI agents, and agreed with the plaintiff “that the judiciary 1 may have an interest in enforcing a remedy for fabrication of evidence in a criminal case, 2 which directly affects the integrity of the judicial process[,]” the court nonetheless declined 3 to imply a cause of action under Bivens because “Congress [] is much better equipped than 4 the courts to fashion a remedy tailored to address this particular concern.” Id. at *2, *5. 5 The Court should apply the same analysis here. Even assuming the facts of Plaintiff’s 6 FAC to be true—i.e., that Defendant Special Agent Wren fabricated the field test results 7 showing that the soap in Plaintiff’s trunk tested positive for MDMA, and later provided 8 false information in the probable cause statement that led to Plaintiff’s arrest and 9 prosecution—the Court is not in a position to fashion a new cause of action under Bivens 10 to address that misconduct. As explained in Egbert, “Congress is better positioned to create 11 remedies in the border-security context” than are the courts, and “the Government already 12 has provided alternative remedies that protect plaintiffs” who are the victims of false arrest 13 and prosecution at the hands of federal agents charged with maintaining border security. 14 Id. at 1804. See also Sheikh, 2022 WL 16964105, at *5-*6. 15 Based on the foregoing analysis, the undersigned recommends that the Court dismiss 16 Plaintiff’s federal claims in the FAC for failure to state a cognizable legal theory, because 17 no Bivens action may lie against Defendant Special Agent Wren under the facts alleged. 18 See Balistreri, 901 F.2d at 699 (explaining that dismissal is proper under Rule 12(b)(6) for 19 failure to state a cognizable legal theory); Ziglar, 137 S. Ct. at 1869 (dismissing detention 20 policy claims under Bivens at the motion to dismiss stage, on the basis that special factors 21 counseled against extending the Bivens remedy to the new context presented by the claims); 22 Egbert, 142 S. Ct. at 1804-05 (explaining that regulating the conduct of agents at the border 23 “unquestionably has national security implications,” and reaffirming that the Bivens 24 remedy may not be extended to any context where “national security is at issue.”) 25 (quotations and citation omitted). 26 \\ 27 \\ 28 \\ I IV. CONCLUSION 2 For the reasons explained above, the undersigned RECOMMENDS that the Court 3 ||GRANT Defendant’s Motion to Dismiss (ECF No. 26) in its entirety, and DISMISS this 4 || action with prejudice.’ 5 The Court submits this Report and Recommendation to United States District Judge 6 ||Linda Lopez under 28 U.S.C. § 636(b)(1). Any party to this action may file written 7 || objections with the Court and serve a copy on all parties no later than May 25, 2023. The 8 document should be captioned “Objections to Report and Recommendation.” 9 IT IS SO ORDERED. 10 11 ||Dated: May 11, 2023 _SpbiormH. Xion Honorable Allison H. Goddard 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 || 26 Because Plaintiff's FAC should be dismissed on the basis that he has failed to state either 27 cognizable state constitutional claim under state law or a cognizable federal constitutional 28 claim under Bivens, the undersigned does not reach Defendant’s qualified immunity argument.