Sheikh v. U.S. Dept. of Homeland Security

• Court: District Court, E.D. California
• Decided: November 16, 2022
• Docket: 2:22-cv-00409
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 FIRDOS S. SHEIKH, M.D., No. 2:22-cv-00409 WBS AC 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: MOTION TO DISMISS 15 U.S. DEPARTMENT OF HOMELAND SECURITY; CAROL WEBSTER, 16 Homeland Security Investigations Special Agent, in her individual 17 capacity; EUGENE KIZENKO, Homeland Security Investigations 18 Special Agent, in his individual capacity; and DOES 1-10, 19 inclusive, 20 Defendants. 21 22 ----oo0oo---- 23 Plaintiff Firdos S. Sheikh brought this action 24 asserting claims under Bivens v. Six Unknown Named Agents of the 25 Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Fourth 26 and Fifth Amendments of the United States Constitution, based on 27 defendants’ alleged fabrication of evidence which led to a search 28 of her home and her arrest and prosecution. (Docket No. 1.) 1 Defendants now move to dismiss the complaint in its entirety.1 2 (Docket No. 12.) 3 This court is acutely familiar with plaintiff’s 4 allegations, having presided over the criminal case brought 5 against her in 2018, United States v. Sheikh, No. 2:18-cr-119 6 WBS.2 In that case, Sheikh was indicted and charged with two 7 counts of trafficking with respect to forced labor under 18 8 U.S.C. § 1590(a), two counts of harboring for financial gain 9 under 8 U.S.C. §§ 1324(a)(1)(A)(iii) and (a)(1)(B)(i), one count 10 of obstruction of a forced labor investigation under 18 U.S.C. § 11 1590(b), and one count of false statements under 18 U.S.C. § 12 1001. 13 The charges arose out of allegations that Sheikh 14 harbored two aliens (“Alfredo” and “Prakash”) and forced them to 15 work on her property in Stockton, California between 2008 and 16 2013. The government alleged that Sheikh promised to pay Alfredo 17 and Prakash certain wages and provide food and housing, but paid 18 them substantially less than promised, provided little food and 19 substandard housing, required them to work long hours, and 20 threatened them with arrest and deportation. The government also 21 alleged that Sheikh directed Prakash to hide from government 22 1 Plaintiff does not oppose dismissal of the Department 23 of Homeland Security (Opp’n 2 n.3 (Docket No. 18)), and no Bivens remedy is available against a federal agency, Western Radio 24 Services Co., v. U.S. Forest Service, 578 F.3d 1116, 1119 (9th Cir. 2009). Accordingly, all claims against the Department are 25 hereby DISMISSED.

26 2 Given that plaintiff in this case was also the 27 defendant in the criminal case that led to this lawsuit, the court at times refers to plaintiff as “Sheikh” to avoid 28 confusion. 1 agents during a welfare check on her property and that Sheikh 2 made false statements to agents during their investigation. 3 The court held multiple hearings in the criminal case, 4 including a three-day evidentiary hearing. On Sheikh’s motion 5 under Brady v. Maryland, 373 U.S. 83 (1963), the court found, 6 among other things, that (1) the government should have disclosed 7 certain evidence and information that primarily undercut the 8 government’s allegations of physical force, restraint, or harm, 9 or threats of physical force, restraint or harm; (2) this 10 information was known to government agents, or they should have 11 known it, at the time of the warrant application; and (3) this 12 information tended to show that government agents intentionally 13 or recklessly made false or misleading statements or omissions in 14 their warrant application. However, the court found that 15 dismissal was not appropriate because the information was 16 disclosed well in advance of trial, the government attorneys did 17 not appear to have made any intentionally or recklessly false 18 statements to the court, and the previously undisclosed material 19 was not obviously Brady material. (Docket No. 104, Case No. 20 2:18-cr-119 WBS.) 21 The court also addressed whether the evidence of the 22 search of Sheikh’s property should be suppressed under Franks v. 23 Delaware, 438 U.S. 154 (1978). The court expressed its serious 24 concern with the warrant affidavit’s portrayal of forced labor 25 via use of physical, force, restraint, and harm, and threats of 26 physical force, restraint, and harm, given its description of 27 Prakash and Alfredo being restrained by a fence, a locked gate, 28 and surveillance cameras, without enough food to eat and no way 1 to escape or obtain food or help, when in fact, the alleged 2 victims could have walked off the property by stepping over the 3 short fence and could have obtained food at the shopping center 4 down the road. 5 The court was also concerned that the affidavit did not 6 disclose any information about the benefits alleged victims of 7 forced labor receive from the government or from a certain 8 outside organization, such as food, housing, and temporary 9 status, which may have created an incentive to exaggerate their 10 conditions. In the court’s view, this information should have 11 been disclosed to the Magistrate Judge to enable him to fairly 12 assess whether there was probable cause before issuing the search 13 warrant, and the warrant affiant recklessly omitted these facts 14 from the affidavit presented to the Magistrate Judge because he 15 should have known his affidavit overstated the gravity of 16 physical force, restraint, and harm, or threats of physical 17 force, restraint, and harm faced by Prakash and Alfredo. 18 However, the court found that even excluding these allegations, 19 the warrant affidavit raised a fair probability that the alleged 20 victims feared financial harm in the form of lost unpaid wages or 21 feared immigration harm based on Sheikh’s threats to have them 22 deported, and thus the warrant affidavit provided probable cause 23 for a violation of 18 U.S.C. § 1589. (Docket No. 122, Case No. 24 2:18-cr-119 WBS.) Accordingly, the court denied Sheikh’s Franks 25 motion. 26 Eventually, however, the court dismissed Sheikh’s 27 indictment under the Speedy Trial Act, 18 U.S.C. § 3161, finding 28 that if the government had timely disclosed all Brady material, 1 the case would have proceeded to trial before COVID-19 led to the 2 suspension of all trials in the Eastern District of California, 3 and that the ends of justice required dismissal. (Docket No. 4 151, Case No. 2:18-cr-119 WBS.) The court’s dismissal was 5 without prejudice, though the government has not re-indicted 6 Sheikh. 7 Sheikh eventually filed the complaint in this case 8 against the Department of Homeland Security and Carol Webster and 9 Eugene Kizenko, former special agents for Homeland Security 10 Investigations (“HSI”), an investigative arm of the Department of 11 Homeland Security. The complaint alleges that Agents Webster and 12 Kizenko conducted a warrantless “welfare check” on her property 13 on July 1, 2013, and Kizenko obtained the search warrant used to 14 conduct a search of her property on July 8, 2013. Webster and 15 Kizenko allegedly (1) knew that the claims of Prakash, Alfredo, 16 and a third individual who had worked for Sheikh were false and 17 exaggerated; (2) intentionally wrote reports for prosecutors that 18 omitted exculpatory evidence; and (3) actively supported 19 Prakash’s and Alfredo’s fraudulent T-Visa applications. Based on 20 defendants’ allegedly falsified evidence, Sheikh’s property was 21 searched, she was indicted and held in jail for several hours, 22 her reputation in the community was destroyed, and she suffered 23 severe emotional distress. 24 I. Discussion 25 As discussed above, this court has already expressed 26 its deep concern with the actions of Agent Webster and Agent 27 Kizenko. However, the court must here determine whether Sheikh’s 28 claims are permitted under Bivens and subsequent Supreme Court 1 precedent. 2 While plaintiffs may bring claims under 42 U.S.C. § 3 1983 against state and local actors, § 1983 does not apply to 4 federal defendants, and Congress has not created a parallel 5 statute for constitutional violations by federal actors.3 Ziglar 6 v. Abbasi, 137 S. Ct. 1843, 1854 (2017). Nevertheless, in Bivens 7 and two other cases, Davis v. Passman, 442 U.S. 228 (1979), and 8 Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court 9 recognized an implied cause of action under (1) the Fourth 10 Amendment against federal agents who arrested the plaintiff and 11 searched his home without a warrant; (2) the Fifth Amendment for 12 a former congressional staffer’s sex discrimination claim; and 13 (3) the Eighth Amendment for a federal prisoner’s inadequate-care 14 claim, respectively. 15 The Supreme Court most recently examined Bivens claims 16 in Egbert v. Boule, 142 S. Ct. 1793 (2022). The Egbert court 17 explained that since Bivens, Davis, and Carlson, it has not 18 implied any additional causes of action under the Constitution, 19 despite multiple opportunities to do so, noting (1) the tension 20 between judicially created causes of action and the separation of 21 powers under the Constitution and (2) Congress’ superior position 22 to consider the policy considerations of creating a cause of 23

24 3 One may argue that Congress has not created a federal cause of action against federal actors because it had no need to, 25 given the availability of Bivens remedies. However, such argument ignores the fact that once the Supreme Court extended § 26 1983 to constitutional violations by state and local actors in 27 Monroe v. Pape, 365 U.S. 167 (1961), Congress did not create any cause of action against federal actors in the subsequent ten 28 years before Bivens was decided. 1 action. Given these concerns, “if there are sound reasons to 2 think Congress might doubt the efficacy or necessity of a damages 3 remedy, the courts must refrain from creating it.” Id. at 1802- 4 03 (citing, inter alia, Ziglar, 137 S. Ct. 1858). “Even a single 5 sound reason to defer to Congress is enough to require a court to 6 refrain from creating such a remedy,” and “[i]f there is a 7 rational reason to think that” Congress should decide whether to 8 provide for a damages remedy, “[n]o Bivens action may lie.” Id. 9 Based on this understanding, the Supreme Court has set 10 forth a two-step test to determine whether a plaintiff may assert 11 a Bivens claim. A court presented with a Bivens claim must 12 examine (1) “whether the case presents a new Bivens context, -- 13 i.e., is it meaningfully different from the three cases in which 14 the Supreme Court has implied a damages action;” and (2) if the 15 claim arises in a new context, whether there are “‘special 16 factors’ indicating that the Judiciary is at least arguably less 17 equipped than Congress to weigh the costs and benefits of 18 allowing a damages action to proceed.” Id. at 1803 (quoting 19 Ziglar, 137 S. Ct. 1858-60) (internal punctuation omitted). 20 Here, both of Sheikh’s claims arise in a new context. 21 The Supreme Court has explained that a claim may present a new 22 context because of, among other things,

23 [T]he rank of the officers involved; the constitutional right at issue; the generality or 24 specificity of the official action; the extent of judicial guidance as to how an officer should respond 25 to the problem or emergency to be confronted; the statutory or other legal mandate under which the 26 officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of 27 other branches; or the presence of special factors that previous Bivens cases did not consider. 28 1 Ziglar, 137 S. Ct. at 1860. “When one or more meaningful 2 differences exist, it is not enough to identify a few 3 similarities.” Ahmed v. Weyker, 984 F.3d 564, 570 (8th Cir. 4 2020). “A claim may arise in a new context even if it based on 5 the same constitutional provision as a claim in a case in which a 6 damages remedy was previously recognized,” Hernandez v. Mesa, 140 7 S. Ct. 735, 743 (2020), because “even a modest extension is still 8 an extension,” Ziglar, 137 S. Ct. at 1864. Thus, the fact that 9 Bivens involved the Fourth Amendment and Davis involved the Fifth 10 Amendment is not enough to show that plaintiff’s claims under the 11 Fourth and Fifth Amendment do not arise in a new context. 12 The only Supreme Court case finding a Bivens claim 13 under the Fifth Amendment involved an employment discrimination 14 claim, which is clearly a different context than plaintiff’s 15 Fifth Amendment fabrication of evidence claim. See, e.g., Cantu 16 v. Moody, 933 F.3d 414, 422 (5th Cir. 2019) (explaining that 17 Davis, 442 U.S. 228, does not hold that “the entirety of the 18 Fifth Amendment’s Due Process Clause is fair game in a Bivens 19 action”); Annappareddy v. Pascale, 996 F.3d 120, 134 (4th Cir. 20 2021) (fabrication and destruction of evidence claims were “far 21 afield from the sex discrimination context presented in Davis”). 22 While there is some similarity between plaintiff’s 23 Fourth Amendment claim and that in Bivens, the numerous 24 differences between the claims make this a new context. Bivens 25 involved a warrantless search where the plaintiff was manacled in 26 front of his family, his family was threatened with arrest, his 27 apartment was searched, and then he was strip searched after 28 booking. The alleged misdeeds here are materially different from 1 those in Bivens, in that the fabrication of false evidence in the 2 context of “information-gathering and case-building activities 3 are a different part of police work than the apprehension, 4 detention, and physical searches at issue in Bivens.” See Farah 5 v. Weyker, 926 F.3d 492, 498 (8th Cir. 2019). Further, searches 6 and seizures conducted with a warrant are meaningfully different 7 from searches and seizures without a warrant, as they involve a 8 different legal mandate and different judicial guidance regarding 9 officer conduct. See Annappareddy, 996 F.3d at 135-36; Cantu, 10 933 F.3d at 423.4 11 The court finds that special factors also indicate that 12 Congress is better equipped to weigh the costs and benefits of 13 allowing a damages action to proceed here. See Egbert, 142 S. 14 Ct. at 1803. Foremost of these special factors is the existence 15 of remedial processes. As defendants point out, the Hyde 16 Amendment, Pub. L. No. 105-119, 111 Stat. 2440, 2519 (1997), 17 allows courts to award attorney’s fees to criminal defendants who 18 prevail against bad faith prosecutions, and the Department of 19 Homeland Security is required to investigate any “[a]lleged 20 violations of the standards for enforcement activities” under 8 21 C.F.R. § 287.10(a)-(b), which can and has led to criminal 22 prosecutions of individuals violating these standards. See, 23 e.g., De La Paz v. Coy, 786 F.3d 367, 376-77 (5th Cir. 2015) 24 (rejecting Bivens claim against Border Patrol agents in part due 25 to the existence of § 287.10(a)-(b)), even though plaintiffs 26

27 4 Defendants have identified other “meaningful differences” in their briefs but the court does not discuss all 28 of them. 1 complained they had no damages remedy against individual agents 2 under applicable immigration law). 3 Notably, this very regulation, § 287.10, was pointed to 4 by the Supreme Court in Egbert as an available remedy that 5 foreclosed a Bivens action against Border Patrol agents employed 6 by the Department of Homeland Security. 142 S. Ct. at 1806-07. 7 Egbert explained that “it [does not] matter that existing 8 remedies do not provide complete relief” or if “a court 9 independently concludes” that administrative remedies “are not as 10 effective as an individual damages remedy.” 142 S. Ct. at 1804, 11 1807 (citations and internal punctuation omitted). Further, even 12 remedies that provide no compensation for victims or little 13 deterrence may weigh against recognizing a Bivens claim, as 14 “[t]he fact that Congress has expressly provided a damages remedy 15 for some victims of [a] particular type of injury, but not for 16 others, suggests that it considered the issue and made a 17 deliberate choice.” Farah, 926 F.3d at 501-02. Overall, the 18 existing remedies available to address defendants’ alleged 19 misconduct, while perhaps providing little redress to Dr. Sheikh 20 personally, weigh against extending Bivens here. 21 The court recognizes plaintiff’s argument that the 22 judiciary may have an interest in enforcing a remedy for 23 fabrication of evidence in a criminal case, which directly 24 affects the integrity of the judicial process. However, the 25 remedy plaintiff would have the court provide is simply to permit 26 a Bivens claim against the individual officers for fabrication of 27 evidence. Congress on the other hand is much better equipped 28 than the courts to fashion a remedy tailored to address this 1 particular concern. For example, Congress could elect to enact a 2 statutory scheme similar to that in the Federal Tort Claims Act, 3 28 U.S.C. §§ 1346(b) and 2671 et seq., where Congress authorized 4 suits against the United States to recover damages for the 5 negligence or wrongful acts of government employees 6 preconditioned upon the filing of an administrative claim with 7 the appropriate agency. 8 Sheikh relies heavily on the case Lanuza v. Love, 899 9 F.3d 1019 (9th Cir. 2018), for the proposition that allowing a 10 Bivens claim here would not present a new context, and that no 11 special factors weigh against extending her claims here. The 12 court notes that while Lanuza has not been explicitly overruled, 13 its more permissive approach to Bivens claims was implicitly 14 overruled by Egbert. Notably, Egbert reversed a Ninth Circuit 15 decision which had allowed a Bivens claim to proceed and which 16 relied in part on its prior decision in Lanuza. See Boule v. 17 Egbert, 998 F.3d 370, 389 (9th Cir. 2021). Accord Hoffman v. 18 Preston, 50 F.4th 927 (9th Cir. 2022) (withdrawing prior 19 published decision, 26 F.4th 1059 (9th Cir. 2022), which had 20 allowed a “modest expansion” of Bivens, in light of Egbert); 21 Hoffman v. Preston, No. 20-15396, 2022 WL 6685254 (9th Cir. Oct. 22 11, 2022) (subsequent unpublished memorandum disposition 23 affirming the district court’s dismissal of the same Bivens 24 claim).5 25 The court’s conclusion that Lanuza was implicitly 26 5 The Lanuza court also did not address the ability of 27 individuals to lodge complaints with the Department of Homeland Security, a remedial scheme the Supreme Court found key in 28 Egbert. 1 overruled is reinforced by the Ninth Circuit’s published decision 2 in Mejia v. Miller, 2022 WL 16911857, --- F.4th ---- (9th Cir. 3 2022), issued just two days ago on the same day as oral argument 4 in this case. There, the Ninth Circuit noted that after Egbert, 5 “[t]he question is no longer whether the Judiciary is well 6 suited,” to weigh the costs and benefits of allowing a damages 7 action to proceed, as stated by Ziglar, 137 S. Ct. at 1857-58, 8 “but whether Congress is better suited.” 2022 WL 16911857, at *4 9 (emphasis added). This ruling is directly contrary to the 10 analysis in Lanuza, which applied Ziglar and determined that the 11 judiciary was well-equipped to weight the costs and benefits of 12 allowing the plaintiff’s fabrication of evidence claim. See 13 Lanuza, 899 F.3d at 1032-34. The Mejia court further noted that 14 “reading the Egbert majority opinion as a whole, it conveys a 15 heightened restriction on Bivens.” Id. at *5. 16 Applying Egbert, the Mejia court found that the 17 plaintiff could not assert a Bivens claim for excessive force 18 against a Bureau of Land Management (“BLM”) officer because, 19 among other things, (1) the legal mandate under which the officer 20 was operating was new, because the BLM has a different mandate 21 from other federal agencies; (2) no Supreme Court case had ever 22 recognized a Bivens excessive force claim against a BLM officer; 23 (3) allowing a Fourth Amendment excessive force claim against BLM 24 officers would have systemwide consequences for BLM’s mandate to 25 maintain order on federal lands; and (4) the plaintiff had an 26 alternative remedy, specifically the ability to report the 27 officer’s alleged misconduct via the BLM’s complaint process. 28 Id. 1 Applying the same framework here as the Ninth Circuit 2 did in Mejia, it is clear that plaintiff cannot proceed with her 3 Bivens claims in this case. The Supreme Court has never extended 4 a Bivens claim against Department of Homeland Security employees, 5 and DHS employees clearly have a different legal mandate than the 6 Federal Bureau of Narcotics agents at issue in Bivens. Allowing 7 Bivens claims against DHS employees would also potentially have 8 systemwide consequences for DHS’ ability to investigate and 9 prosecute cross-border human trafficking and enforce and 10 implement this nation’s immigration laws. See Egbert, 142 S. Ct 11 at 1803-04. Finally, as discussed above, there are alternative 12 remedies to address DHS misconduct through the Hyde Amendment and 13 administrative complaints. Overall, Congress is better equipped 14 to weigh the costs and benefits of extending Bivens to allow 15 plaintiff’s claims here. 16 Thus, while Lanuza has not been explicitly overruled, 17 Egbert and Mejia require dismissal of plaintiff’s complaint. 18 Henceforth, it must be up to the Congress to provide whatever 19 federal remedy may be available to victims of the sort of 20 official misconduct alleged here. As Judge Halbert so 21 presciently taught us more than 65 years ago,

22 Courts may, and should, interpret the law as it has been legally created or enacted, but courts should not 23 add to, subtract from, repeal, or promulgate laws on their own initiative. In other words, the courts may 24 clarify and make workable the laws that have been legally created, but the courts may not under our form 25 of government judicially legislate. It is one of the fundamental principles of our form of government that 26 the legislative power shall be separated from the judicial power. The power to declare what the law 27 shall be belongs to the legislative branch of government; the power to declare what the law is, or 28 1 has been, belongs to the judicial branch of the government. 2 3 In re Shear, 139 F. Supp. 217, 220 (N.D. Cal. 1956). Justice 4 Gorsuch reaffirmed this proposition in his concurrence in Egbert 5 when he noted that “[w]eighing the costs and benefits of new laws 6 is the bread and butter of legislative committees. It has no 7 place in federal courts charged with deciding cases and 8 controversies under existing laws.” 142 S. Ct. at 1810. 9 II. Leave to Amend 10 Plaintiff requested leave to amend in her opposition to 11 the motion to dismiss. “Valid reasons for denying leave to amend 12 include undue delay, bad faith, prejudice, and futility.” Cal. 13 Architectural Bldg. Prods. v. Franciscan Ceramics, 818 F.2d 1466, 14 1472 (9th Cir. 1987). While leave to amend must be freely given, 15 the court is not required to allow futile amendments. See DeSoto 16 v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 17 Plaintiff does not propose, nor can the court conceive of, any 18 factual allegations that could remedy the complaint to allow her 19 to raise her Bivens claims. Under the circumstances, allowing 20 plaintiff to amend her complaint would only serve to increase 21 plaintiff’s litigation expenses and further tax the time and 22 resources of the court and the government. Accordingly, the 23 court will not grant plaintiff leave to amend. 24 IT IS THEREFORE ORDERED that defendants’ motion to 25 dismiss (Docket No. 12) be, and the same hereby is, GRANTED 26 without leave to amend. The Clerk of Court is directed to close 27 this case. 28 /// eee IEEE I IE II I IIE OS OIE OE NER III ES eee

1 | Dated: November 16, 2022 bitte Ah ha bee WILLIAM B. SHUBB 2 UNITED STATES DISTRICT JUDGE 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15