Moss v. United States Secret Service
750 F. Supp. 2d 1197
D. Or.2010Background
- Plaintiffs filed a §1983/Bivens action alleging First, Fourth, Fifth, and Fourteenth Amendment, Oregon Constitution, and common-law violations arising from the October 14, 2004 Jacksonville protest during President Bush’s visit.
- Ninth Circuit remanded after Twombly/Iqbal-based pleading challenges and allowed amendment.
- Plaintiffs filed a Second Amended Complaint (SAC) Oct. 15, 2009 restating some claims and adding new ones; Defendants moved to dismiss and for summary judgment.
- The district court adopted Judge Clarke’s Report and Recommendation in part, denying some claims and granting others, with various dismissals and stays.
- This order/Recommendation resolves the remaining pleaded claims by evaluating Twombly/Iqbal standards, qualified immunity, and conduct-based liability across federal, state, county, and city defendants.
- The court identifies four blocs of defendants (Federal, State, Local/County, City) and construes several motions as to both 12(b)(6) and summary judgment, ultimately dismissing injunctive and declaratory relief, Fifth/Fourteenth amendments claims, Oregon Constitution claims, and some 1983 claims, while preserving certain First/Fourth Amendment claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Plausibility of federal First Amendment Bivens claim | Plaintiffs allege impermissible motive and sub rosa policy discriminating against anti-Bush speech. | Defendants argue security rationale and lack of specific culpable conduct; no clearly established right violation. | Bivens claim survives motion to dismiss; allegations plausibly show impermissible motive and sub rosa policy. |
| Plausibility of State/County First Amendment claim against Ruecker and Rodriguez | Plaintiffs claim discriminatory purpose and actionable conduct by state actors. | Plaintiffs fail to plead personal conduct showing discriminatory purpose or clearly established rights against these officers. | §1983 First Amendment claim against Ruecker and Rodriguez dismissed. |
| Plausibility of State/County Fourth Amendment claim against Ruecker and Rodriguez | Excessive force and policy/supervisor liability alleged in moving anti-Bush demonstrators. | Defendants invoked qualified immunity and lack of clearly established rights given context. | State Defendants' motion to dismiss Fourth Amendment claim denied; claims plausibly alleged. |
| Plausibility of City of Jacksonville Fourth Amendment claim and Monell theory | City employees’ actions amount to excessive force; Monell theory alleged. | No plausible Monell claim; actions attributed to Secret Service supersede local liability. | City of Jacksonville Fourth Amendment claim survives; Monell claim rejected to the extent argued; other related claims dismissed. |
Key Cases Cited
- Twombly v. Bell Atlantic Corp., 550 U.S. 544 (U.S. Supreme Court 2007) (plausibility standard for pleading)
- Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. Supreme Court 2009) (plausibility and non-conclusory content required for §1983/Bivens claims)
- Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) (pleading standards after Twombly/Iqbal in Bivens actions)
- Saucier v. Katz, 533 U.S. 194 (U.S. Supreme Court 2001) (two-step qualified immunity framework)
- al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) (supervisory liability and personal participation standards)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (U.S. Supreme Court 1992) (content/viewpoint discrimination principles)
- Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658 (U.S. Supreme Court 1978) (local government liability under §1983 for official policy)