Siaka Massaquoi v. Fbi

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 23, 2023
• Docket: 22-55448
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 23 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SIAKA MASSAQUOI, as a natural person, No. 22-55448 on behalf of himself and all others similarly situated, D.C. No. 2:21-cv-08569-SVW-PD Plaintiff-Appellant,

v. MEMORANDUM*

FEDERAL BUREAU OF INVESTIGATION; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Submitted August 18, 2023** Pasadena, California

Before: TASHIMA, CHRISTEN, and SUNG, Circuit Judges.

Plaintiff-Appellant Siaka Massaquoi appeals the district court’s order

dismissing with prejudice his pro se amended complaint, which alleges that the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Federal Bureau of Investigation (FBI) Director and agents violated his

constitutional rights. Massaquoi seeks damages pursuant to Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).1 A

motions panel of our court previously granted Defendants’ motion for summary

affirmance as to Massaquoi’s First and Fifth Amendment claims, so we address

only his remaining Fourth Amendment claim. Because the parties are familiar

with the facts of this case, we do not recite them. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.

We review de novo the district court’s order granting Defendants’ motion to

dismiss the amended complaint for failure to state a claim, Weston Fam. P’ship

LLLP v. Twitter, Inc., 29 F.4th 611, 617 (9th Cir. 2022), and review for abuse of

discretion the district court’s denial of reconsideration and leave to amend,

Havensight Cap. LLC v. Nike, Inc., 891 F.3d 1167, 1171 (9th Cir. 2018). We

construe Massaquoi’s pro se complaint liberally, mindful that it was properly

dismissed only “if it appears beyond doubt that [Massaquoi] can prove no set of

facts in support of his claim which would entitle him to relief on his claim.”

1 The district court also dismissed Massaquoi’s claim under the Privacy Act. Because Massaquoi does not challenge the dismissal of his Privacy Act claim on appeal, we do not address it. See Dep’t of Fish & Game v. Fed. Subsistence Bd., 62 F.4th 1177, 1179 n.1, 1181 n.3 (9th Cir. 2023) (noting that causes of action and claims for relief not raised on appeal are forfeited).

2 Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Wilhelm v. Rotman,

680 F.3d 1113, 1121 (9th Cir. 2012)).

The Supreme Court has repeatedly emphasized that expanding the Bivens

remedy is a “disfavored judicial activity” and for some time the Court has

consistently declined to extend Bivens to any new context or new category of

defendants. See, e.g., Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022); Ziglar v.

Abbasi, 582 U.S. 120, 135–36 (2017). Our analysis of a Bivens claim proceeds in

two steps. First, we ask whether the case presents “a new Bivens context—i.e., is it

meaningfully different from the three cases in which the Court has implied a

damages action[?]” Egbert, 142 S. Ct. at 1803 (alteration accepted) (internal

quotation marks and citation omitted). Second, if a claim arises in a new context

or category of defendants, “a Bivens remedy is unavailable if there are special

factors indicating that the Judiciary is at least arguably less equipped than

Congress to weigh the costs and benefits of allowing a damages action to proceed.”

Id. (internal quotation marks and citation omitted). In particular, “a court may not

fashion a Bivens remedy if Congress already has provided, or has authorized the

Executive to provide[] an alternative remedial structure.” Id. at 1804 (internal

quotation marks and citation omitted).

We affirm the district court’s ruling. Massaquoi’s Fourth Amendment claim

presents a new Bivens context because the agents had a search warrant, and the

3 claim involves a new category of defendants, the FBI agents and the FBI Director.

We also discern a dispositive special factor: Congress has authorized the Executive

to provide an alternative remedial structure for claims like Massaquoi’s. See 5

U.S.C. § 301. Under Department of Justice regulations implemented pursuant to

Congress’s statutory mandate, Massaquoi may report non-frivolous allegations of

misconduct to the Department’s Office of the Inspector General (OIG), which may

investigate the allegations or refer them for investigation by another department.

See 5 U.S.C. § 413(b)(2), (d); 28 C.F.R. §§ 0.29c(d), 0.29h. We have held that

similar OIG procedures are adequate alternative remedies for Bivens purposes. See

Pettibone v. Russell, 59 F.4th 449, 456–57 (9th Cir. 2023) (addressing the

Department of Homeland Security’s OIG grievance procedures). We are not free

to second-guess the Executive’s determination that this “remedial process [is]

sufficient to secure an adequate level of deterrence.” Egbert, 142 S. Ct. at 1807.

Accordingly, the district court properly dismissed Massaquoi’s amended complaint

and did not err in denying reconsideration.

AFFIRMED.