MEMORANDUM OPINION
Plaintiff pro se James Linlor alleges that Defendant Michael Poison struck him in the groin during an airport security screening. He contends that this constituted an excessive use of force under the Fourth Amendment and seeks to recover damages from Defendant pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
The case is before the Court now on Defendant’s Motion to Dismiss [Dkt. 25] and Motion for Leave to File DVD with Clerk of Court [Dkt. 29]. For the reasons that follow, the Court will deny Defendant’s Motion to Dismiss and grant Defendant’s Motion for Leave to File DVD with Clerk of Court.
I. Background
Pared of irrelevancies and invectives, the facts set forth in Plaintiffs Amended
Plaintiff stepped onto the rug reserved for that purpose, placing his feet in the footprint outlines, See id. at 16. Defendant then, instructed Plaintiff to .widen his stance unnecessarily. See id. At that point,, while Plaintiff was vulnerable, Defendant “rammed his hand into the genitals of the Plaintiff, causing the Plaintiff to be,nd over and step away in pain.” Id. Plaintiff alleges that Defendant took this action out of anger, either intentionally or recklessly, and that Defendant subsequently laughed and refused to apologize. See id. Police were summoned after Plaintiff complained of “aggravated sexual battery,” but the police officers refused to take any action against Defendant. Id. at 16-17, Defendant’s coworkers stone-walled Plaintiff when he attempted to gather the names of witnesses. Id. at 17. '
Plaintiff submitted an administrative claim to the TSA contesting his treatment, but did so using a pseudonym. Id. at 18. Because Plaintiff did not provide his true name, the TSA refused to process his claim. Id. Plaintiff subsequently filed suit in this Court, again employing a pseudonym. The Court, howeyer, found that pseudonymous litigation was not warranted by the facts of the case. Accordingly, the Court ordered Plaintiff to file an amended complaint including his true name, and Plaintiff complied.
On May 10, 2015, Defendant filed the instant Motion to Dismiss for Failure to State a Claim [Dkt. 25], Defendant also submitted a DVD containing security cam-, era footage of the incident giving rise to this lawsuit along with a Motion for Leave to File DVD with Clerk of Court [Dkt. 29].
II. Legal Standard
In order to survive a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6), a complaint must set forth “a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
In evaluating Defendant’s Motion, the Court is mindful that Plaintiff is proceeding in this matter pro se. A “document filed pro se is ‘to be liberally construed,’
III. Analysis
Defendant argues . that Plaintiffs Amended Complaint must be dismissed because (1) there is no Bivens remedy available in this context and (2) Defendant is entitled to qualified immunity. The Court addresses these arguments in turn.
A. The Availability of a Bivens Remedy
By itself, “[t]he Constitution does not ordinarily provide a private right of action for constitutional violations by federal officials.” Big Cats of Serenity Springs, Inc. v. Rhodes,
Since then, Bivens has been applied sparingly, as the Supreme Court has “responded cautiously to suggestions that Bivens remedies be extended into new contexts.” Schweiker v. Chilicky,
Against this backdrop, “[i]t is clear that expansion of a Bivens-based cause of action ... is the exception, not the rule.” Cioca v. Rumsfeld,
Moreover, “Bivens actions are not recognized Amendment by Amendment in a wholesale fashion” but “are context-specific.” Wilson v. Libby,
The Court must first determine whether the case at bar presents a novel context requiring an extension of Bivens, or if it instead falls within the ambit of the remedy as it is already recognized. The Court notes first that Bivens has long been understood to provide a remedy for excessive force claims under the Fourth Amendment. See, e.g., Schultz v. Braga,
As the dissent in Tobey pointed out, however, the Fourth Circuit only assumed, but did not decide, that a Bivens remedy would lie in connection with an airport security screening. See
Moreover, the Supreme Court has recently clarified that “the new-context inquiry is easily satisfied.” Ziglar v. Abbasi, — U.S.-,
As Defendant points out, this case does not concern the type of law enforcement activity at issue in a typical Fourth Amendment Bivens suit, but rather an airport screening by a Transportation Security Officer. Under the test outlined in Ab-basi, this difference in setting and class of Defendant is sufficient to create a new “context” for purposes of the Bivens analysis. The Court therefore addresses the propriety of an extension of the Bivens remedy here.
2. Alternative, Existing Processes
A Bivens claim will not lie where “any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie,
Defendant first argues that the availability of claim under the Federal
Moreover, it is not entirely clear that an FTCA action is available to Plaintiff. The FTCA exempts from its limited waiver of sovereign immunity “[a]ny claim arising out of assault [or] -battery[.]” 28 U.S.C. § 2680(h). While that exemption does not extend to “law enforcement officers of the United States Government,” some Courts have interpreted - the term “law enforcement officers” to exclude TSA officials like Defendant. See Pellegrino v. U.S. Transp. Sec. Admin., No. CIV.A. 09-5505,
Defendant next argues that “if Plaintiff wished to challenge TSA’s pat-down screening procedures as applied to him by Officer Poison as a violation of the Fourth Amendment, he could have filed a petition for review of those procedures in an appropriate court of appeals pursuant to 49 U.S.C. § 46110.” Mem. in Supp. of Mot. [Dkt. 27] at 11. Plaintiff does not, however, seek “review” of TSA procedures or any “order issued by” an aviation authority. 49 U.S.C. § 46110(a). It would afford Plaintiff no relief for the Court to “affirm, amend, modify, or set aside” any such order. Id. § 46110(c). Rather, Plaintiff challenges a discrete instance of abuse not' authorized by the TSA — to wit, Defendant’s alleged use of excessive force in intentionally and gratuitously striking Plaintiffs groin. Plaintiff seeks compensation for a past wrong, not prospective relief from considered agency action. The statute Defendant cites is simply inapplicable to the case at bar.
Finally, Defendant argues that Plaintiff may seek redress through the TSA’s “Contact Center,” which “passengers and others may use in order to register their complaints and concerns via phone, email, or internet submission form.” Mem. in Supp. of Mot. [Dkt. 27] at 11. Judging by Defendant’s description, this is, essentially, a consumer complaint hotline. It is not clear what, if any, relief a complainant may receive. It appears that the “Contact Center” affords individuals only the bare opportunity to make the TSA aware of a complaint. See id. At that point, the TSA will unilaterally direct the .complaint to the “correct TSA recipient ... for additional consideration and, if deemed necessary, action.” Id.
This meager opportunity is not the sort of alternative process that provides a “convincing reason for the Judicial Branch to refrain from providing a new and free
In short, Defendant has not identified any meaningful alternative to a Bivens remedy available to Plaintiff. That being so, this is “a case like Bivens or Davis in which ‘it is damages or nothing.’ ” Abbasi,
3, Factors Counselling Hesitation
A Bivens action will not he where “special factors” suggest that the Court should hesitate to imply a Bivens remedy. See Wilkie,
Defendant argues that special factors are presented here because this case implicates- national security. While the Court agrees that appreciable national security 'concerns would, if raised, preclude a Bivens remedy here, Defendant does not adequately explain how this case presents such concerns.
As an initial matter, the Court notes that Defendant consistently and erroneously refers to this case as arising in the “national security context.” This conflates two distinct aspects of the Bivens analysis. A “context,” for purposes of implying a Bivens remedy, is a relatively narrow set of circumstances and legal issues. See Abbasi,
Defendant’s Motion does little to tie specific national security concerns to the context under consideration. Rather, it rests primarily upon generalizations about the mi generis nature of the airport setting. Defendant is correct that Courts have consistently recognized airports 'as loci of special security concerns. See, e.g,, City of Indianapolis v. Edmond,
The only specific concern Defendant identifies is the risk that implying a Bivens remedy here might chill legitimate TSA activity and discourage TSA officers from performing appropriately thorough, security screenings. The risk of deterring legitimate law enforcement activity through personal liability, however, is not unique to this context. Indeed, it is a risk that inheres whenever courts imply a Bivens remedy. Federal officers have, for nearly fifty years, navigated such concerns while performing Fourth Amendment searches. Many of Defendant’s observations about the nature of the TSA’s work — for example, that' TSA officers must make split second decisions in a fast moving environment to protect public safety — are no less applicable to the work' of other federal agents who have successfully contended with Bivens liability. Cf. Graham v. Connor,
This concern seems particularly unwarranted given that — as also discussed above — many courts have hitherto presumed the availability of a Bivens remedy against TSA officers in connection with airport security screenings. When other courts have expressly addressed the propriety of Bivens actions against TSA officers, they have permitted the action to proceed. See Vanderklok v. United States, No. CV 15-00370,
Defendant does not cite, and the Court cannot see, any other reason why national security concerns would counsel hesitation to imply a Bivens remedy here. Plaintiff alleges that Defendant employed excessive force during a security screening, deliberately and gratuitously striking Plaintiff in the groin. This is not conduct that the TSA has deemed necessary, or even desirable, to protect national security. Indeed, the TSA expressly forbids its officers to engage in such behavior. See 81 Fed. Reg. 11,364, 11,374 (Mar. 3, 2016) (“inappropriate touching of a passenger by an employee is strictly prohibited”).
This matter therefore little resembles other cases in which courts have declined to imply a Bivens remedy due to national security concerns. Generally, those cases have involved lawsuits against officials alleged to have acted in accordance with national security policy. Thus, for example, in Lebron v. Rumsfeld,
This case is self-evidently more straightforward. There is no comparable risk of entangling the judiciary in sensitive matters of national security through second-guessing executive policy. Indeed, if anything, this action harmonizes with the TSA’s avowed policy.
Moreover, while this case arises in a new context — an airport security screening conducted by a Transportation Security Officer — the Fourth Amendment claim at issue falls squarely within the heartland of Bivens. It presents a relatively simple, discrete question of whether a federal officer applied excessive force during a Fourth Amendment search. See Pellegrino,
This is, in all relevant respects, precisely the kind of Fourth Amendment search- and-seizure case Courts have long adjudicated through Bivens actions. Defendant has identified no meaningful difference, no reason for the Court to doubt its competence to carry the venerable Fourth Amendment Bivens remedy into this context, and no reason to believe that Congress would disapprove of the Court’s decision to do so.
Courts must approach novel Bivens claims with skepticism. That does not mean, however, that vague generalizations about the importance of national security are sufficient to defeat Bivens liability. To hold otherwise here would be to disregard the Supreme Court’s injunction that “national-security concerns must not become a talisman used to ward off inconvenient claims[.]” Abbasi,
B. Qualified Immunity
Defendant next contends that he is entitled to qualified immunity. In evaluating whether Defendant is entitled to qualified immunity, the Court must determine “(1) whether the plaintiff has established the violation of a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation.” Raub v. Campbell,
In making this determination on a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6), the Court generally confines its analysis to the allegations of fact set forth in the plaintiffs complaint. Here, however, Defendant claims that the Court can consider an additional piece of extrinsic evidence: a video
As the Court finds that Plaintiff interposes no valid objection, the Court will grant Defendant’s Motion for Leave to File the DVD containing the video with the Clerk of the Court. Nonetheless, the Court finds that it may not properly consider the footage Submitted by Defendant in deciding the instant Motion.
There exist a few limited exceptions to the general rule that a court may consider only the allegations of a plaintiffs complaint in evaluating a motion brought under Federal Rule of Civil Procedure 12(b)(6). The Court may, for example, consider exhibits attached to the Complaint and other documents expressly incorporated by reference. See, e.g., Goldfarb,
Defendant contends that the Court may nonetheless consider the footage because' it is integral to Plaintiffs Amended Complaint. There are, however, three problems with this argument. First, it is not clear that the footage in question is integral to Plaintiffs Amended Complaint in any relevant sense. A document is “integral” to a complaint, and therefore fair game on a Rule 12(b)(6) motion, when the plaintiffs claims “turn on, [ ]or are .... otherwise based on” the document in question. Goines v. Valley Cmty. Servs. Bd.,
Second, Plaintiff has suggested that he disputes the provenance of the security footage in question. While the Court finds itself skeptical of Plaintiffs claims; generally it is only appropriate to consider' documents extrinsic to a complaint on a 12(b)(6) motion where there is “no dispute about the document’s authenticity.” Gomes,
Third, Plaintiff contends that additional footage will be produced in discovery that will vindicate his account of events. See Opp. [Dkt. 33] at 3. It is therefore not clear that Plaintiffs various references to security footage in his Amended Complaint refer specifically to the video submitted by Defendant, as opposed to security footage generally. Under sueh circumstances, it is not entirely clear that the specific document Defendant has submitted is cited in, much less integral to, Plaintiffs Amended Complaint.
Turning to the question of whether Defendant is entitled to qualified immunity based solely on the allegations of Plaintiffs Amended Complaint, the Court
At no point does Defendant address these relatively straightforward allegations. Defendant first argues that the TSA’s pat-down search procedures are constitutional. See Mem. in Supp. of Mot. [Dkt. 27] at 21-23. But as discussed above, Plaintiff does not challenge the constitutionality of the TSA’s pat-down search procedures. Defendant next argues that Plaintiff has failed to state a claim in light of the video footage submitted by Defendant. See id. at 23-26. As also discussed above, however, the Court finds that it cannot properly consider this footage in evaluating Defendant’s Motion.
Defendant argues further that Plaintiff fails to set forth any well-pled allegations of fact demonstrating that Defendant violated the Fourth Amendment. See id. at 26-27. But herd again, Defendant does not address the clear narrative included in Plaintiffs Amended Complaint. Rather, Defendant primarily takes issue with the 14-page preamble to that narrative— which, the Court agrees, consists largely of irrelevant invectives. Finally, Defendant argues that “even if this Court could construe Plaintiffs allegations to include a claim that Officer Poison utilized excessive force (outside of the alleged hand ‘ramming1) during the patdown, the intrusiveness during the standard pat-down screening procedure was minimal, and the manner was routine.” Id. at '27. It is not clear, however, why the Court would look beyond the “hand ‘ramming’” to find a Fourth Amendment violation, as that is clearly the basis of Plaintiffs Fourth Amendment claim.
Defendant’s Reply Brief is little better. In it, Defendant appears to ask the Court to disregard the. allegations of Plaintiffs Amended Complaint and find “that contact with Plaintiffs genitals, if any at all, was incidental and occurred through the course of a typical security pat-down,” Rep. [Dkt. 42] at 8. The Court, however, is not free to simply disbelieve the clear factual allegations of Plaintiffs Amended Complaint on a 12(b)(6) Motion. Plaintiff claims that Defendant intentionally, gratuitously struck him in the groin on a specific date in a specific location. Whether or not that is so can be resolved only on summary judgment or at trial. ■
Defendant’s oratorical calisthenics appear calculated to avoid simple questions with obvious answers: First, does the Fourth Amendment permit a federal offi-. cer to gratuitously strike an individual during a search? No. Sécond, was that clearly established in the law at the time? Yes.
When evaluating an excessive force claim, Courts engage in “ ‘a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.’” Smith v. Ray,
Taking the allegations of Plaintiffs Complaint as true, Plaintiff was not suspected of committing any crime, posed no threat to Defendant or others, and fully complied with Defendant’s instructions during the pat-down search. The search in question went well beyond what was necessary to detect contraband, and was not confined to that purpose. There was, in short, no legitimate government interest served by Defendant’s alleged use of force to be weighed against Plaintiffs substantial interest in being free from an unreasonable seizure. Such an action is “objectively unreasonable,” Graham,
Defendant nonetheless argues that “[e]ven if the Court were to conclude that Plaintiff had sufficiently alleged a violation of the Fourth Amendment, [Defendant] would still be entitled to qualified immunity because there was no law clearly establishing the specific degree of permissible intrusiveness of a security screening pat-down[.]” Rep. [Dkt. 42] at 11. The Fourth Circuit, however, “repeatedly ha[s] held that it is not required that a right violated already have been recognized by a court in a specific context before such right may be held ‘clearly established’ for purposes of qualified immunity.” Meyers v. Baltimore Cty., Md.,
In sum, Defendant is not entitled to qualified immunity based on the allegations of Plaintiffs Amended Complaint. The issue, of course, may — and perhaps should — be raised again on a motion for summary judgment, at which point the Court will be able to take into account a wider range of evidence.
IY. Conclusion
For the foregoing reasons, the Court will deny Defendant’s Motion to Dismiss Plaintiffs Amended Complaint. Additionally, the Court will grant Defendants’ Motion for Leave to File DVD with Clerk of Court.
An appropriate Order will issue.
Notes
. While Defendant notes that Congress has legislated on the subject of redress for travelers wrongly prevented from boarding aircraft, see Mem. in Supp. of Mot. [Dkt, 27] at 17, the Court is unconvinced that this legislation has any bearing on the present situation, The process Defendant describes is a means of appealing a federal agency's considered decision — a topic having little to do with redress for an individual TSA officer's unauthorized use of excessive force. The Court will not presume that Congress has been conspicuously silent on the topic under consideration due to unrelated legislation.
. Similarly, Defendant makes much of the TSA’s status as an integral part of the United States' "national security apparatus.” Many— perhaps most — federal law enforcement bodies haye some claim to that status, The.Federal Buieau of Investigation, for example, is no less a vital part of the "national security apparatus” than the TSA. See Abbasi,
. Moreover, while Defendant notes that TSA officers process a high volume of passengers , and luggage every, day, see Mem. in. Supp. of Mot. to Dismiss [Dkt. 27] at 15, Defendant
. The Court notes that while Defendant has submitted affidavits attesting to the video’s authenticity, the Court is not able consider these extrinsic documents in deciding the present motion. See, e.g., Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16CV932 (JCC/IDD),