Oliveras v. New York City
440 F.Supp.3d 365
S.D.N.Y.2020Background
- Plaintiff Monet Oliveras lived in a basement apartment at 1649 Taylor Avenue, Bronx; her unit is accessed by a separate side door and stairway.
- On April 27, 2016, DHS agents executing an arrest warrant on the building’s first floor threw flash bangs that detonated in the areaway outside Plaintiff’s apartment, shattering windows and injuring Plaintiff (physical and psychological effects).
- A John Doe DHS officer blocked Plaintiff from leaving her apartment during the incident; Plaintiff later sought but was denied on-scene medical attention and required emergency care.
- Plaintiff sued federal actors initially via FTCA and Bivens-type claims; the Court previously dismissed FTCA claims against the United States (discretionary-function exception), and Plaintiff proceeded against individual DHS officers under Bivens and § 1983 (the latter inapplicable to federal actors).
- Defendants moved to dismiss under Rule 12(b)(6), arguing (i) Bivens does not extend to this context, (ii) qualified immunity, and (iii) no Fourth Amendment violation; the Court granted dismissal.
- The Court held this is a new Bivens context, identified special factors (including the FTCA as an alternative remedial structure and congressional intent) counseling hesitation, and dismissed claims against Basile and Vogel with prejudice and the John Doe without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of a Bivens remedy | Oliveras: classic Bivens-style Fourth Amendment claim for excessive force/false imprisonment; damages remedy should be implied | Basile & Vogel: this context is meaningfully different from Bivens/Davis/Carlson; courts should not extend Bivens | Court: New Bivens context; decline to extend Bivens—no cognizable Bivens claim |
| Alternative remedial structure (FTCA) | Oliveras: FTCA dismissal earlier doesn’t bar constitutional damages; 28 U.S.C. § 2679(b)(2)(A) preserves constitutional claims | Defendants: FTCA (and its scope) constitutes an alternative remedial scheme; special factor counseling hesitation | Court: Existence of FTCA and Congress’s design (including discretionary-function exception) is a special factor counseling hesitation; weighs against implying Bivens |
| Fourth Amendment violation (seizure/excessive force) | Oliveras: flash bangs and being prevented from leaving amounted to excessive force/false imprisonment | Defendants: Plaintiff was an unintended bystander; seizure requires intent/targeting; no willful acquisition of physical control | Court: Doubtful that a Fourth Amendment seizure occurred because actions were directed at arrest target, not Plaintiff; legal basis for violation was weak |
| Qualified immunity | Oliveras: relevant precedents (e.g., Terebesi) show officers can be liable for stun grenades | Defendants: Even if Bivens available, law was not ‘clearly established’ re: inadvertent bystander injury from flash bangs | Court: Even assuming a cognizable claim, law was not clearly established; officials would be entitled to qualified immunity |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (recognized implied damages remedy against federal agents for Fourth Amendment violations)
- Davis v. Passman, 442 U.S. 228 (1979) (recognized implied damages remedy under Fifth Amendment gender-discrimination claim)
- Carlson v. Green, 446 U.S. 14 (1980) (recognized Bivens-type remedy for Eighth Amendment failure-to-treat claim)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (established the two-step test for extending Bivens and emphasized caution/hesitation in creating new contexts)
- Terebesi v. Torreso, 764 F.3d 217 (2d Cir. 2014) (denial of qualified immunity where stun grenades were used during a SWAT-style search; relevant but factually different)
- Brower v. County of Inyo, 489 U.S. 593 (1989) (seizure requires willful acquisition of physical control)
- Medeiros v. O’Connell, 150 F.3d 164 (2d Cir. 1998) (for Fourth Amendment seizure, the victim must have been the intended target)
- Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005) (courts should defer to congressional scheme when considering implication of Bivens)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standards: courts need not accept legal conclusions)
- Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (qualified immunity requires law to be clearly established)
- Malley v. Briggs, 475 U.S. 335 (1986) (qualified immunity protects all but the plainly incompetent or those who knowingly violate the law)