Case Information
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
BRIAN BENDEROFF, 2:23-CV-12824-TGB-DRG
Plaintiff, HON. TERRENCE G. BERG vs. ORDER GRANTING
ERIK JOHANSEN, JEFFREY DEFENDANTS’ MOTION TO ADAMISIN, JOSEPH PRESLEY, DISMISS PLAINTIFF’S FIRST MICHAEL WILLIAMS, BRIAN AMENDED COMPLAINT HELMERSON, MARK (ECF NO. 26) VAUGHAN, DEVALLONS DESMARETS, JEROME
DEAVEN, and CHRIS WALTER,
Defendants.
In this civil rights case, Plaintiff Brian Benderoff alleges that he was unlawfully detained after he arrived at Detroit Metropolitan Airport by Defendant state and federal law enforcement officers and thereafter maliciously prosecuted for more than six years in violation of the Fourth and Fifth Amendments to the United States Constitution. Now before the Court is Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint. ECF No. 26. The motion has been fully briefed. Upon review of the parties’ filings, the Court concludes oral argument will not aid in the resolution of this matter. Accordingly, the Court will resolve the present motion on the briefs. See E.D. Mich. L.R. 7.1(f)(2). For the reasons stated below, Defendants’ motion to dismiss will be GRANTED .
I. BACKGROUND
A. Factual Background
1. Benderoff’s June 23, 2016 Encounter with Defendants According to the allegations in Plaintiff’s First Amended Complaint, on June 23, 2016, Plaintiff Brian Benderoff took a flight from Las Vegas to Detroit carrying nearly $1,000,000 in cash he won playing blackjack at Caesars Palace. First Amended Complaint (“FAC”) ¶ 14, ECF No. 25. The cash was wrapped in Caesars Palace wrappers and was accompanied by documentation of the funds as lawful winnings. Id. Benderoff was accompanied on the flight by Dr. William Gonte, who also carried wrapped and documented cash proceeds in his carry-on bag. Id. At the airport in Las Vegas, Transportation Security Administration (“TSA”) officials stopped Gonte to inquire about the cash in his bag. Id. ¶ 15. Benderoff and Gonte were then permitted to proceed to the flight. The TSA officers recorded their contact with Gonte in a TSA blotter and also notified the Homeland Security Investigations (“HSI”) hotline that Gonte was carrying $200,000 to $250,000 in cash. Id. ¶¶ 15–16. TSA’s report did not mention Benderoff. Id. ¶ 16.
When Benderoff’s and Gonte’s flight landed in Detroit, Benderoff was met by four law enforcement officers with a police dog. Id. ¶ 17. Defendant Erik Johansen, who was part of a state/federal joint task force, motioned to Benderoff and said something along the lines of “We need to speak with you.” Id. Benderoff asked Officer Johansen why the officers wanted to question him and Officer Johansen commanded Benderoff not to speak. Id. ¶ 22. The officers then escorted Benderoff away from the gate area and an officer seized Benderoff’s carry-on bag. Id. ¶ 23.
Benderoff asked to use the bathroom, and Defendant Officer Joseph Presley accompanied him. Id. ¶ 24. As Benderoff sat in the stall sending a text message to his then-attorney, Officer Presley asked Benderoff “What are you doing? Hurry up.” Id. When Benderoff left the restroom, the officers escorted him to the baggage claim area. Id. ¶ 25. He identified his checked luggage and the officers grabbed the luggage from the carousel and took it into custody. Id. Officer Johansen then directed Benderoff to a government vehicle driven by Defendant Agent Michael Williams, and the three proceeded to the HSI Prisoner Processing Unit located about two miles from the airport. Id. Benderoff then spent the next ten and a half hours, from approximately 1:00 to 11:30 p.m., at the facility in the custody of HSI agents. Id. ¶ 28.
Once at the HSI facility, Agent Williams asked Benderoff to sign a Miranda waiver, which he did. Id. ¶ 32. Defendants Williams and Presley then questioned Benderoff about the source of his funds. Id. Defendant Officer Jeffrey Adamisin also searched Benderoff’s luggage. Id . ¶ 27. While at the HSI facility, Benderoff was kept either in the “Prisoner Processing” area or in a small prisoner’s cell which required an officer’s key card to enter and which lacked a doorknob on the inside. Id. ¶¶ 28, 33. Benderoff asked many times to go home, and Defendants either rejected his requests or stated that they were “working on it.” Id. ¶ 33.
Later in the day, Defendant Agents Brian Helmerson, Mark Vaughan, Devallons Desmarets, and Jerome Deaven questioned Benderoff. Id. ¶ 34. Defendant Helmerson told Benderoff he could leave if he provided “something good.” Id. Throughout the day, Defendant Chris Walter performed “cell checks” of Benderoff and Gonte. Id. ¶ 35. Finally, around 11:00 p.m., when Defendants Helmerson and Desmarets were questioning Benderoff, he signed a consent form permitting search of his cell phone, iPad, and email, and he also provided information “implicating himself” in a life insurance transaction involving himself, Gonte, and a third person in 2010 or early 2011 “which Defendants took to be part of a scheme to commit wire fraud.” Id. ¶ 36. Benderoff was then permitted to leave the HSI building, although Defendants kept his iPhone and iPad. Id. ¶ 38.
2. The criminal proceedings Over four years later, on August 26, 2020, a grand jury indicted Benderoff and Gonte on multiple counts of wire fraud affecting a financial institution under 18 U.S.C. § 1343. Id. ¶ 40; United States v. Gonte , No. 20-cr-20380, (E.D. Mich. Aug. 26, 2020), Indictment, ECF No. 1. The grand jury found probable cause that Benderoff and Gonte took part in a scheme “to obtain money and enrich themselves by, among other things, inducing entities to purchase, through false and fraudulent representations, life insurance policies in which the life of OWNER A’S MOTHER was insured.” Gonte , Case No. 20-cr-20380, Indictment ¶ 24, ECF No. 1. The grand jury further found that the fraudulent transactions affected a financial institution, Wells Fargo Bank, N.A., which took ownership of certain fraudulently-sold insurance policies. Id. ¶ 58.
In April 2021, Benderoff moved in the criminal case to suppress the statements he made during the June 2016 interaction with Defendants and “other evidence seized, … including information extracted from [his] iPhone and iPad,” arguing that the evidence was seized and statements were made involuntarily after his “unlawful arrest.” Gonte , Case No. 20- cr-20380, Motion, ECF Nos. 40, 110; FAC ¶ 43. The United States opposed the motion and offered evidence—including declarations from Defendants Johansen and Williams—that the June 2016 interaction was entirely consensual. Gonte , Case No. 20-cr-20380, Response, ECF Nos. 138, 138-3, 138-4; FAC ¶ 43. According to Benderoff, the Defendants falsely stated that Benderoff was “in good spirits” at the facility and had “absolutely no evidence to corroborate [his] claim that he was held in a locked cell for over nine hours against his will.” FAC ¶ 43.
Benderoff also moved to dismiss the indictment, arguing that the charges were barred by the statute of limitations. Gonte , Case No. 20-cr- 20380, Motion, ECF No. 124. Benderoff claimed that the fraud scheme did not affect a financial institution, making the charged conduct subject to a five-year statute of limitations (instead of the ten-year period for wire fraud that affects a financial institution). The government filed a response in opposition, contending that the charged conduct affected Wells Fargo (as the grand jury determined). Id. Response, ECF No. 134.
In September 2022, the court (District Judge Nancy G. Edmunds) granted Benderoff’s motion to dismiss the indictment, concluding that the charged conduct did not affect a financial institution because Wells Fargo only held the policies as an escrow agent. Id. Order, ECF No. 151, PageID.2922.
B. Procedural History
On November 6, 2023, Benderoff filed the instant action alleging claims for unlawful detention and malicious prosecution under 42 U.S.C. § 1983 and the Fourth and Fifth Amendments to the United States Constitution. ECF No. 1. The Defendants filed a motion to dismiss that Complaint, ECF No. 23, and Benderoff responded by filing a First Amended Complaint. FAC, ECF No. 25.
Defendants then filed a motion to dismiss the amended complaint. ECF No. 26. Defendants argue that, at the times relevant to Benderoff’s claims, Defendants were either employed by the Department of Homeland Security (“DHS”) or participating in a DHS task force known as the U.S. Immigration and Customs Enforcement (“ICE”) HSI Outbound Currency Airport Task Force, which was based out of Detroit Metropolitan International Airport. Specifically, Defendants Williams, Helmerson, Vaughan, Desmarets, Deaven, and Walter were agents with HSI, a component of DHS, and Defendants Johansen, Adamisin, and Presley were operating as part of the task force. Defendants argue that Benderoff’s claims fail because he is seeking an improper extension of a cause of action allowed against federal agents under the Bivens line of Supreme Court cases. Defendants further argue that Benderoff’s unlawful detention claim is barred by the statute of limitations and because Benderoff fails to allege a violation of a clearly established right. Defendants contend that Benderoff’s malicious prosecution claim fails because the grand jury found probable cause to indict him and he was not seized as a result of the prosecution. In addition, the claim is barred by qualified immunity because it relies on allegedly false statements made in his criminal case.
Benderoff filed a response in opposition to Defendants’ motion. ECF No. 27. Benderoff argues that his claims are not barred because they allege “run-of-the mill” Fourth Amendment violations associated with routine law enforcement. He further disputes that his unlawful detention claim is barred by limitations, contending that Defendants fraudulently concealed their knowledge that Benderoff was in fact unlawfully detained. And he also argues that his claims are not barred by qualified immunity, and that Defendants are not entitled to witness immunity for statements they made in the criminal proceedings. Finally, he disputes that Defendants Johansen, Adamisin, and Presley were federal rather than state actors.
Defendants filed a reply brief, arguing that Benderoff’s response does not defeat their motion to dismiss. ECF No. 29
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows for the dismissal of
a case where the complaint fails to state a claim upon which relief can be
granted. To state a claim, a complaint must provide a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). “[T]he complaint ‘does not need detailed factual
allegations’ but should identify ‘more than labels and conclusions.’”
Casias v. Wal-Mart Stores, Inc.
, 695 F.3d 428, 435 (6th Cir. 2012)
(quoting
Bell Atlantic Corp. v. Twombly
,
When reviewing a motion to dismiss under Rule 12(b)(6), a court
must “construe the complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable inferences in favor
of the plaintiff.”
Handy-Clay v. City of Memphis
,
In ruling on a motion to dismiss, the Court may consider the complaint as well as: (1) documents that are referenced in the plaintiff’s complaint and that are central to plaintiff’s claims; (2) matters of which a court may take judicial notice; (3) documents that are a matter of public record; and (4) letters that constitute decisions of a governmental agency. Thomas v. Noder-Love , 621 F. App’x 825, 829–30 (6th Cir. 2015) (“Documents outside of the pleadings that may typically be incorporated without converting the motion to dismiss into a motion for summary judgment are public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies.”) (internal quotation marks and citations omitted); Armengau v. Cline , 7 F. App’x 336, 344 (6th Cir. 2001) (“We have taken a liberal view of what matters fall within the pleadings for purposes of Rule 12(b)(6). If referred to in a complaint and central to the claim, documents attached to a motion to dismiss form part of the pleadings…. [C]ourts may also consider public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies.”).
III. DISCUSSION
A. Whether Defendants Johansen, Adamisin, and Presley are state actors or federal actors
Plaintiff asserts claims for unlawful detention and malicious
prosecution pursuant to 42 U.S.C. § 1983 against Defendants Johansen,
Adamisin, and Presley. FAC, Counts I and III. Section 1983 creates a
cause of action to redress constitutional wrongs committed by state
officials. 42 U.S.C. § 1983. To state a § 1983 claim, a plaintiff must allege
that (1) a right secured by the Constitution or a federal statute has been
violated and (2) the violation was committed by a person acting under
color of state law.
West v. Atkins
,
In response, Defendants contend that they are all either federal employees or members of a federal task force, and thus Counts I and III of the FAC should be dismissed. Benderoff responds that although he has plead that Officer Johansen “was part of a state/federal joint task force” on the day in question, FAC ¶ 17, he has also alleged that Defendants Johansen, Adamisin, and Presley were local law enforcement officers, and he has not made any allegation that any of these three officers were full-time employees of a federal task force. He contends that, for purposes of this motion to dismiss, these three Defendants are state rather than federal actors. He concedes that “[i]f discovery proves that Officers Johansen, Adamisin, and Presley were in fact employed under an arrangement that exposes them to liability only under rather than § 1983, then Plaintiff will at that time seek leave to amend” his complaint to assert claims against those officers. ECF No. 27, PageID.218– 19.
The Court will first address Defendant Johansen, who Benderoff
alleges “was part of a state/federal joint task force” and working with the
Defendant DHS agents during the alleged events on June 23, 2016. In
Petty v. United States
, 80 F. App’x 986 (6th Cir. 2003), the Court of
Appeals for the Sixth Circuit stated that federally deputized local law
enforcement officers are federal actors, pointing out that a city police
officer assigned to a multi-jurisdictional task force was considered a
federal employee for purposes of the Federal Tort Claims Act (“FTCA”)
“[b]y virtue of his assignment to an FBI-operated task force,” while other
city police officers involved in the same incident who were not attached
to the task force were not subject to the FTCA “because they [were] not
federal employees.”
Id.
at 987–90.
See also King v. United States
, 917
F.3d 409, 433 (6th. Cir. 2019) (finding no § 1983 action available against
the defendant working full time with an FBI task force at the time of the
incident at issue rather than in her role as a state detective),
rev’d on
other grounds sub nom
.
Brownback v. King
,
In view of the relevant case law, Benderoff’s § 1983 claims against Defendant Johansen must be dismissed because Benderoff’s allegation that Johansen was “part of a state/federal joint task force” and working with the HSI agents at the times relevant to this case sufficiently alleges that he was a federal actor at that time.
Turning next to Defendant Adamisin, Defendants argue that
Adamisin’s July 19, 2016 report, which is quoted in paragraph 27 of the
FAC and discussed in other paragraphs of the FAC, FAC ¶¶ 27, 46–47,
states that he “was working at Detroit Metropolitan Airport as a Task
Force Officer assigned to Homeland Security Investigations (HSI).”
Adamisin Report, ECF No. 29-2. On a motion to dismiss, the Court may
consider documents that are referenced in the plaintiff’s complaint and
that are central to plaintiff’s claims.
Armengau
,
Finally, Benderoff’s allegation in his FAC that Defendant Presley
is employed by the Wayne County Airport Authority is demonstrably
false. Presley was employed by the Department of Homeland Security at
the time of the events in this case, not the Wayne County Airport
Authority.
See
Presley SF-50 Notification of Personnel Action, ECF No.
29-3. The Court may take judicial notice of this U.S. Office of Personnel
Management Standard Form Notification of Personnel Actions as to
Presley, showing that he was a federal employee of the U.S. Customs and
Border Patrol at the times relevant to this case because it is an official
record and its contents cannot reasonably be questioned. See Fed. R.
Evid. 201(b)(2) (“A judicially noticed fact must be one not subject to
reasonable dispute in that it is ... capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.”);
see also Dent v. Holder
,
Because Defendants Johansen, Adamisin, and Presley were federal actors at the time relevant to this case, Benderoff’s § 1983 claims in Counts I and III of his FAC against those Defendants will be DISMISSED .
B. Plaintiff’s Claims
While Congress created 42 U.S.C. § 1983 to provide a claim for damages when a state official violates an individual’s constitutional rights, “Congress did not create an analogous statute for federal officials.” Ziglar v. Abbasi , 582 U.S. 120, 130 (2017). However, in 1971, the Supreme Court created an implied cause of action for monetary damages against federal officials who violate the Fourth Amendment by executing a warrantless search of a plaintiff’s home. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics , 403 U.S. 388 (1971). Private causes of action for damages against federal officials for constitutional violations have since become known as Bivens actions.
“Over the following decade, the Court twice again fashioned new
causes of action under the Constitution—first, for a former congressional
staffer’s Fifth Amendment sex-discrimination claim, see
Davis v.
Passman
, 442 U.S. 228 [ ] (1979); and second, for a federal prisoner’s
inadequate-care claim under the Eighth Amendment, see
Carlson v.
Green
, 446 U.S. 14 [ ] (1980).”
Egbert v. Boule
, 596 U.S. 482, 490–91
(2022). However, in the 45 years since these three cases were decided, the
Supreme Court has not implied
any
additional cause of action under the
Constitution. The Supreme Court recognizes that “[a]t bottom, creating
a cause of action is a legislative endeavor.”
Egbert
,
The Supreme Court has devised a two-part inquiry to determine when the Court should engage in the “disfavored judicial activity” of recognizing a new Bivens action. See Egbert , 596 U.S. at 492. The framework asks:
(1) Does the case present a new context meaningfully different from Bivens , Davis , and Carlson ?
(2) If so, do “special factors” indicate that “the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed’”?
Egbert
,
As to the first inquiry, the Supreme Court has prepared a non- exhaustive list of differences that “may” be “meaningful”:
the rank of the officers involved; the constitutional right at
issue; the generality or specificity of the official action; the
extent of judicial guidance as to how an officer should respond
to the problem or emergency to be confronted; the statutory or
other legal mandate under which the officer was operating;
the risk of disruptive intrusion by the Judiciary into the
functioning of other branches; or the presence of potential
special factors that previous cases did not consider.
Ziglar
,
With respect to the second inquiry, the Court considers whether
any special factors counsel against extending a cause of action.
Ziglar
,
582 U.S. at 136. The Supreme Court has “not attempted to ‘create an
exhaustive list’ of factors that may provide a reason not to extend ,”
but it has explained that the separation of powers should be a guiding
light.
Hernandez
, 589 U.S. at 102. Accordingly, the Supreme Court
instructs that the courts must not create a cause of action if there is “a
single sound reason to defer to Congress.”
Egbert
,
Defendants argue that Benderoff seeks an improper extension of Bivens in this case. Benderoff disagrees, claiming that he instead raises “heartland Bivens claims.” Applying the principles outlined above to the fact in this case, the Court finds that Benderoff’s Bivens claim fails.
1. Step One: New
Bivens
Context
Defendants argue that Benderoff’s Fourth and Fifth Amendment
claims present a new
Bivens
context because the Defendants here were
DHS agents or task force officers, a “new category of defendants,”
Malesko
,
The Court first notes that just because Benderoff here asserts
Fourth and Fifth Amendment claims, the same constitutional provisions
at issue in
Bivens
and
Davis
, that alone does not demonstrate that these
claims would be a permissible extension of
Bivens.
It is settled law that
“[a] claim may arise in a new context even if it is based on the same
constitutional provision as a claim in a case in which a damages remedy
was previously recognized.”
Hernandez
, 589 U.S. at 103. Where a
proposed claim presents “even a modest extension” of the factual or legal
circumstances at issue in
Bivens
and its progeny, the claim arises in a
new
Bivens
context.
Ziglar
, 582 U.S. at 147. It cannot reasonably be
disputed that this case differs from
Bivens
and
Davis.
While Benderoff
here alleges unlawful seizure and interrogation, those actions occurred
at an international airport. The incident was not a search of Benderoff’s
home without a warrant and with him handcuffed in front of his family,
as alleged in
Bivens
. “The information-gathering and case-building
activities” alleged by Benderoff in this case “are a different part of police
work than the apprehension, detention, and physical searches at issue in
.”
Farah v. Weyker
,
Courts have held that these kinds of factual differences and
dissimilar defendants constitute “meaningful” differences constituting a
“new”
Bivens
context in other cases.
See Hernandez
, 589 U.S. at 103
(declining to create a damages remedy for an excessive-force claim
against a Border Patrol agent who shot and killed a 15-year-old Mexican
national across the border);
Elhady
,
Against this deluge of case law, Benderoff pushes back and contends that unlike Hernandez and Egbert , there is no connection to foreign affairs or national security in this case because he was a United States citizen and he was detained on United States soil. However, this argument goes nowhere, because the citizenship of the suspect or the location of the arrest have not been held to be the determinative factors in deciding whether the investigation is driven by a national security- oriented mission. Egbert also involved a United States citizen and alleged constitutional violations on United States soil, as have a number of the cases cited above. Benderoff also asserts that his claims are more like those Bivens claims permitted by the Sixth Circuit in Jacobs v. Alam , 915 F.3d 1028 (6th Cir. 2019). In Jacobs , the defendants were deputized U.S. Marshals who were searching for a fugitive in a house in which Jacobs lived with others. Id. at 1033. The Court of the Appeals for the Sixth Circuit found that the plaintiff’s Bivens claim in that case did not arise in a new context when it was based on a U.S. Marshals Service search of a home for a fugitive and the firing of shots at the plaintiff. The court determined instead that it was a “run-of-the-mill” challenge to “standard law enforcement operations that fall well within Bivens itself.” Id. at 1033–34, 1038–39. A review of that case illustrates that it is by no means factually similar to this case. Jacobs concerned the actions of deputized U.S. Marshals enforcing criminal law—not HSI agents enforcing the legal mandate of the DHS—by conducting a home raid that resulted in a man being shot—not alleged detention and questioning at the airport. Moreover, Jacobs was decided before the Supreme Court’s decisions in Hernandez (holding there was no Bivens action against U.S. Border Patrol agent) and Egbert (same), and the Sixth Circuit’s decision in Elhady (same, and applying Hernandez to conclude that a “context is new if it differs in virtually any way from the Bivens trilogy”). Jacobs therefore does not control here.
Finding that Benderoff’s claims here arise in a new context, the Court turns to the second inquiry—whether there are any special factors counseling hesitation in expanding remedies. Egbert , 596 U.S. at 492.
2. Step Two: Special Factors
The Court next asks if there is a single “rational reason” to think
that Congress is better equipped to conduct a cost-benefit analysis and
decide that a damage remedy is warranted in the context of this case.
See
Egbert
,
The Supreme Court in
Egbert
first stated that “potential special
factors” arise when a case involves a “new category of defendants” that
“represent situations in which a court is not undoubtedly better
positioned than Congress to create a damages action” because “[e]ven in
a particular case, a court likely cannot predict the ‘systemwide’
consequences of recognizing a cause of action under .”
Egbert
, 596
U.S. at 492–93. The Supreme Court stated “[t]hat uncertainty alone is a
special factor that forecloses relief.”
Id.
at 493 (citation omitted).
Defendants here were HSI agents or task-force officers. Homeland
Security Investigations (“HSI”) is “a premier federal law enforcement
agency within
the Department
of Homeland Security.”
https://www.ice.gov/about-ice/hsi [https://perma.cc/JD8K-KRB5]. “HSI
conducts federal criminal investigations into the illegal movement of
people, goods, money, contraband, weapons and sensitive technology
into, out of and through the United States,” including investigating
“financial fraud and scams.”
Id.
“Matters intimately related to foreign
policy and national security are rarely proper subjects to judicial
intervention.”
Haig v. Agee
,
While Benderoff discounts the agents’ actions in this particular
case, contending that there is no connection to foreign affairs or national
security in the same sense as in
Hernandez
and
Egbert
, the Supreme
Court in
Egbert
cautioned that “a court should not inquire, … whether
Bivens
relief is appropriate
in light of the balance of the circumstances in
the ‘particular case.’” Egbert
,
In addition, when considering this inquiry, the Court must be
mindful that it “may not fashion a remedy if Congress already has
provided, or has authorized the Executive to provide, an alternative
remedial structure.”
Egbert
, 596 U.S. at 493;
Ziglar
, 582 U.S. at 145
(“[W]hen alternative methods of relief are available, a remedy
usually is not.”). Although Congress has not authorized a cause of action
for damages against federal HSI agents that Benderoff could bring, it has
authorized alternative remedies. The existence of such remedies
independently foreclose approving the creation of a action here.
As the Supreme Court recognized in
Egbert
, the Secretary of Homeland
Security is “statutorily obligated to ‘control, direct[], and supervis[e] …
all employees’ [under] 8 U.S.C. § 1103(a)(2)” and “must investigate
‘[a]lleged violations of the standards for enforcement activities’ and
accept grievances from ‘[a]ny persons wishing to lodge a complaint’
[under] 8 C.F.R. §§ 287.10(a)–(b).”
Egbert
,
Defendants also state that, when establishing the DHS, Congress
expressly included an Office of Inspector General (“OIG”), 6 U.S.C.
§ 113(b), authorizing it to investigate, among other things, federal officer
abuses of civil rights or civil liberties. 5 U.S.C. § 417. Congress
established DHS’s Office of Civil Rights & Civil Liberties (“CRCL”), 6
U.S.C. §§ 113(d)(3); 345, and instructed the OIG to refer to the CRCL any
“civil liberties matters” that OIG does not investigate. 5 U.S.C. § 417.
“Several courts have pointed to the existence of administrative and
statutory procedures, including the Department of Homeland Security’s
civil rights complaint process, as constituting an alternative remedy
counseling against creation of
Bivens
remedies.”
Boules
, 2024 WL
4203832 at *5 (collecting cases);
see also Sheikh
, 106 F.4th at 928–29
(recognizing that the existence of alternative remedial structures
precluded
Bivens
action in claim against HSI agents);
Pettibone v.
Russell
, 59 F.4th 449, 456 (9th Cir. 2023) (declining to extend
Bivens
because “[a]ggrieved parties can report any alleged misconduct to the
Inspector General or the Department of Homeland Security, who must
either investigate or refer the matter to the Officer for Civil Rights and
Civil Liberties.”). It does not matter if the alternative remedies do not
provide all the relief Benderoff seeks. “So long as Congress or the
Executive has created a remedial process that it finds sufficient to secure
an adequate level of deterrence, the courts cannot second-guess that
calibration by superimposing a remedy. That is true even if a court
independently concludes that the Government’s procedures are ‘not as
effective as an individual damages remedy.’”
Egbert
, 596 U.S. at 498
(citing
Bush v. Lucas
,
For these reasons, the Court concludes that Benderoff’s Fourth and Fifth Amendment Bivens claims in Counts II and IV of his FAC present a new context under and that special factors counsel against extending an implied cause of action here. Accordingly, Benderoff’s Bivens claims in Counts II and IV of his FAC will be dismissed for failure to state a claim.
The Court pauses for a moment to return to its disposition of Counts I and III of the FAC raising § 1983 claims against Defendants Johansen, Adamisin, and Presley under the assumption that they were state actors. As stated above, these claims were dismissed because those Defendants were actually federal actors against whom a § 1983 may not be brought. This disposition presents the logical question of whether a Bivens claim could be made against them as federal actors. Based on the same reasoning that the Court explains above, Benderoff’s claims against these three Defendants would also be dismissed. [3]
C. Unlawful Detention Barred by Limitations
Even if Benderoff could state an unlawful detention claim against
any Defendant in this case, such a claim would be barred by the statute
of limitations. The Court must look to state law to provide the statute of
limitations for a claim and a § 1983 claim.
Harris v. United States
,
Here is it undisputed that Benderoff was released from the alleged unlawful detention on June 23, 2016. Accordingly, his unlawful detention claim accrued on that day. Benderoff did not bring this lawsuit until November 6, 2023, well over three years after his claim accrued. Defendants therefore contend that Benderoff’s unlawful detention claim is barred by limitations.
In response, Benderoff suggests that the limitations period should be extended because he has sufficiently pleaded facts that Defendants fraudulently concealed the existence of the claim from him, and that he brought this lawsuit within two years of when he discovered, or should have discovered, the existence of his claim. Benderoff supports his position by citing Michigan law allowing such an extension of the limitations period for fraudulent concealment. See MCL § 600.5855. Benderoff alleges in the FAC that Defendants “ma[de] assertions from 2016 through July 2022 that Mr. Benderoff had not been detained or that his detention was consensual or otherwise lawful” and that “[i]t was not until Agent Helmerson’s July 20, 2022” statements suggesting that he believed Benderoff was detained on June 23, 2016, that Benderoff “discovered or could have discovered that, at the time of [his] detention, it was plainly obvious to officers in Defendants’ position [he] had been unlawfully detained.” FAC ¶ 54.
MCL § 600.5855 provides “[i]f a person who is or may be liable for
any claim fraudulently conceals the existence of the claim or the identity
of any person who is liable for the claim from the knowledge of the person
entitled to sue on the claim, the action may be commenced at any time
within 2 years after the person who is entitled to bring the action
discovers, or should have discovered, the existence of the claim or the
identity of the person who is liable for the claim, although the action
would otherwise be barred by the period of limitations.” Tolling for
fraudulent concealment requires the plaintiff to demonstrate that the
defendant actively concealed the claim.
Sills v. Oakland Gen. Hosp.
, 559
N.W.2d 348, 352 (Mich. App. 1996) (citing MCL § 600.5855). Mere silence
or passive nondisclosure is insufficient; there must be an intentional
effort to keep the plaintiff in the dark.
Doe v. Roman Cath. Archbishop of
Archdiocese of Detroit
, 692 N.W.2d 398, 406–07 (Mich. App. 2004)
(“[C]auses of action do not constitute fraudulent concealment [if] they
amount to mere silence.” (citation omitted)). In addition, a plaintiff must
demonstrate due diligence in discovering his claim. “[T]he plaintiff must
be held chargeable with knowledge of the facts, which it ought, in the
exercise of reasonable diligence, to have discovered.”
Gomba Music, Inc.
v. Avant
,
Based on the allegations in the FAC, it is clear that Benderoff knew,
or should have known, of his alleged unlawful detention on June 23, 2016,
because it states that he was brought to an offsite facility and spent ten
and a half hours either involuntarily in “a small prisoner’s cell … which
required an officer’s key card to enter, and which lacked a doorknob on
the inside” or in the “Prisoner Processing area” and that he “
reasonably
and correctly believed that he was detained
in that cell.” FAC ¶¶ 25–38
(emphasis added). That claim is plainly grounded on events that occurred
on June 23, 2016, and it says that Benderoff experienced, observed, and
understood his own situation to be an alleged detention.
See Cooey v.
Strickland
,
Accordingly, even if Benderoff could assert an unlawful detention claim against Defendants under or § 1983, that claim would be time barred.
D. Malicious Prosecution
Finally, even if Benderoff could state a malicious prosecution claim against any Defendant, that claim would fail as a matter of law. Benderoff alleges that Defendants violated his Fourth, Fifth, and Fourteenth Amendment right to be free from malicious prosecution “by continuing or prolonging his prosecution when they knowingly or recklessly made false statements in 2022 to show that [he] was not detained on June 23, 2016, when in fact he was detained on that date.” FAC ¶¶ 72–73. Benderoff pleads that “[b]ut for these false statements, [his] prosecution … would have terminated sooner than it did.” Id. ¶ 74. He alleges that the prosecution was terminated in his favor and that there was no probable cause to support the prosecution. Id. ¶¶ 75–76.
To establish a Fourth Amendment claim for malicious prosecution,
a plaintiff must prove four elements: (i) that a criminal prosecution was
initiated against him, and that the defendants made, influenced, or
participated in the decision to prosecute; (ii) that there was a lack of
probable cause to support the prosecution; (iii) that the plaintiff suffered
a deprivation of liberty as a consequence of the legal proceeding; and (iv)
that the legal proceeding was resolved in the plaintiff's favor.
Sykes v.
Anderson
,
“[T]he gravamen of the Fourth Amendment claim for malicious
prosecution … is the wrongful initiation of charges without probable
cause.”
Thompson v. Clark
, 596 U.S. 36, 43 (2022). “[A] bindover
determination after a preliminary hearing, or a grand jury indictment,
proves the existence of probable cause sufficient to call for trial on the
charge and forecloses a claim for malicious prosecution.”
Parnell v. City
of Detroit
,
Benderoff makes the conclusory allegation that “[t]here was no probable cause to support [his] prosecution.” FAC ¶ 68. He pleads that Defendants “knowingly or recklessly made false statements in 2022 to show that [he] was not detained on June 23, 2016, when in fact he was detained on that date,” and that these false statements continued or prolonged his prosecution. FAC ¶¶ 72–73. However, Benderoff fails to plead or explain how statements regarding his detention in 2016 prolonged or continued his prosecution for a wire fraud scheme involving the sale of life insurance policies that he was indicted for on August 25, 2020. As of August of 2020, a grand jury had found probable cause and issued a lawful indictment. His criminal case was ultimately dismissed not because he did not commit the charged conduct, but because the wire fraud charges were barred by the five-year statute of limitations and not the 10-year statute of limitations for fraud “affecting” a financial institution. The court found that Wells Fargo’s role in the alleged fraudulent scheme was “akin to that of escrow agent in the initial transaction, which then services the account and provides fee-based administrative functions” but that the bank was not exposed to an actual risk of loss, which had to be shown in order to invoke the 10-year statute of limitations. Gonte , Case No. 20-cr-20380, Order, ECF No. 151. That dismissal had nothing to do with the Defendants’ alleged statements regarding Benderoff’s detention in 2016. In fact, that court found that Benderoff’s motion to suppress statements he made on June 23, 2016 was mooted by the court’s decision dismissing the case. Accordingly, Benderoff has failed to sufficiently plead facts to overcome the presumption of probable cause for his prosecution, and his malicious prosecution claim against Defendants is therefore foreclosed.
E. CONCLUSION
For all the reasons stated above, Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint, ECF No. 26, is GRANTED and Plaintiff’s claims are DISMISSED WITH PREJUDICE.
This is a final order that closes the case.
IT IS SO ORDERED.
Dated: March 31, 2025 /s/Terrence G. Berg
HON. TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
Notes
[1] The Sixth Circuit Court of Appeals and courts in this District have
recently held that even the search of a home pursuant to an arrest
warrant is a sufficiently new context to set apart those cases from the
warrantless search that was alleged in
Bivens
.
See Cain v. Rinehart
, No.
22-1893,
[2] While the Sixth Circuit in
Elhady
noted that the Ninth Circuit was
the only circuit court that had created a cause of action against a
Border Patrol agent under the First and Fourth Amendments, the
Supreme Court has since reversed that Ninth Circuit decision and held
that there is no action in that case.
See Egbert
,
[3] Because the Court dismisses Benderoff’s claims for failure to state a claim, it need not address Defendants’ arguments for qualified immunity.