The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Mary Komongnan filed this Bivens action against the U.S. Marshals Service, alleging a violation of her Fourth Amendment rights during an alleged search of her home by several United States Marshals. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971). Defendant U.S. Marshals Service has moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) and (b)(1) for failure to state a claim and lack of subject matter jurisdiction. As explained herein, the Court grants defendant's motion to dismiss.
According to plaintiff, on May 17, 2003, an unspecified number of U.S. Marshals arrived at her home in the District of Columbia to search for a fugitive named Ameer Culbreath, whom the Marshals stated was on the back porch of her home. (Compl. ¶¶ 1, 2.) Plaintiff states that she told the Marshals that Mr. Culbreath was already incarcerated at this time. (Id. ¶ 3.) The Marshals allegedly did not produce a search warrant, but plaintiff admits that she "consented to the search of her residence." (Id. ¶¶ 2, 4.) According to plaintiff, one Marshal went down into her basement to search for the fugitive, and plaintiff thereafter went to the basement to inform the Marshal that Mr. Culbreath was already incarcerated. (Id. ¶¶ 5, 6.) When plaintiff reached the bottom of the basement stairs, the Marshal searching in the basement allegedly "slapped the magazine of his gun and pointed the weapon directly at [plaintiff] an told her to go upstairs . . . ." (Id. ¶ 7). Another Marshal also instructed her to come upstairs, which, according to plaintiff, "end[ed] the situation." (Id. ¶ 8) According to defendant, the U.S. Marshals Service "has no record of ever conducting a fugitive investigation for Mr. Culbreath at or near [p]laintiff's residence." (Def. Mot. at 2.) Defendant also states that Mr. Culbreath was considered a "violent" fugitive at the time. (Def. Mot. at 2.)
Plaintiff filed this suit against the U.S. Marshals Service on May 15, 2006, asserting a cause of action under Bivens for the violation of her constitutional rights, and requesting "[c]ompensatory damages which she has suffered as the result of having a pistol pointed at her." (Compl. at 2; Pl. Opp. at 1.) On August 31, 2006, plaintiff served the complaint on the U.S. Marshals Service, the U.S. Attorney General, and the U.S. Attorney for the District of Columbia. (See Dkt.3 [Affidavit of Service].) Defendant did not file an answer, but instead it has moved to dismiss plaintiff's complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendant argues, inter alia, that (1) the doctrine of sovereign immunity bars this suit against an agency of the United States; (2) because a Bivens action does not lie against a federal agency, plaintiff has not named a proper defendant, and is now barred from doing so by the statute of limitations; (3) even if the plaintiff were to name the U.S. Marshal whom she alleges pointed the gun at her, plaintiff fails to state a constitutional claim under Bivens, and (4) the Marshal who allegedly pointed the gun would be entitled to a dismissal of this action on the basis of qualified immunity. (Def. Mot. at 3, 6-11.)
In her opposition to defendant's motion to dismiss, plaintiff states unequivocally that "[t]his suit was intended to be a Bivens action against an unknown member of the U.S. Marshals Service" and seeks "to amend [the[ complaint to reflect such an action." (Pl. Opp. at 1.) Plaintiff offers no explanation for her failure to identify and name the Marshal whom she claims pointed a gun at her in the over three years since the alleged events occurred, except to claim that "the titling of the complaint is a misnomer." (Id. at 2.) Plaintiff also argues that "the act of physically pointing a weapon at her after she consented to the search of her home was arguabl[y] objectively unreasonable" because "removing her from the basement could have been accomplished with sharp commands." (Id. at 3.)
Defendant moves to dismiss for lack of subject matter jurisdiction and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) respectively. Under Fed. R. Civ. P. 12(b)(6), dismissal is appropriate only where a defendant has "show[n] 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle [her] to relief.'" In re Swine Flu Immunization Prod. Liab. Litig., 880 F.2d 1439, 1442 (D.C. Cir.1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The allegations in plaintiff's complaint are presumed true and all reasonable factual inferences should be construed in plaintiff's favor. See Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995). Similarly, when, as here, the government attacks the existence of subject matter jurisdiction based on allegations in the complaint, "the Court considers the factual allegations of the complaint in the light most favorable to the non-moving party." Loughlin v. United States, 230 F. Supp. 2d 26, 35-36 (D.D.C. 2002).
I. Plaintiff's Constitutional Claim against the U.S. Marshals Service
In the absence of an express waiver, sovereign immunity precludes suits against the United States and its agencies, see United States v. Mitchell, 445 U.S. 535, 538 (1980), and it is well-established that "no cause of action for damages for constitutional violations -- whether called a Bivens action or not -- is to be implied against government agencies" Taylor v. FDIC, 132 F.3d 753, 768 (D.C. Cir. 1997); see FDIC v. Meyer, 510 U.S. 471, 484-86 (1994). Indeed, a Bivens cause of action was created in part because government agencies are immune from suit under the doctrine of sovereign immunity. See Meyer, 510 U.S. at 485. Plaintiff does not dispute that her Bivens claim is not properly brought against a federal government agency. Accordingly, plaintiff's Bivens claim against the U.S. Marshals Service must be dismissed for lack of subject matter jurisdiction.*fn1
II. Plaintiff's Putative Constitutional Claim against the Unknown Marshal
To save her complaint from dismissal, plaintiff now "seek[s] to amend [the] complaint" to name "an unknown member of the U.S. Marshals Service" as the sole defendant. (Pl. Opp. at 1.) Fed. R. Civ. P. Rule 15(a) provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served . . . ." Fed. R. Civ. Proc. 15(a). Because a motion to dismiss is not considered a responsive pleading for purposes of Rule 15(a), see James V. Hurson Assoc., Inc. v. Glickman, 229 F.3d 277, 283 (D.C. Cir. 2000), plaintiff is free to amend her complaint without leave of the Court. However, plaintiff has not done so, and thus her would-be claim against an unknown member of the U.S. Marshal Service is not presently before the Court.*fn2
Moreover, even if plaintiff had properly amended her complaint to name an unknown member of the U.S. Marshals Service, that claim would also be unable to survive defendant's motion to dismiss. Plaintiff titles her complaint "Complaint for Damages Based Upon Unreasonable Search." (Compl. at 1.) But plaintiff acknowledges that she consented to the search of her residence, and does not allege that she withdrew that consent at any time. (Id. ¶ 4.) It is "well settled that one of the specifically established exceptions to the [constitutional] requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); see United States v. Harrison, 679 F.2d 942, 946 (D.C. Cir. 1982). Therefore, plaintiff has failed to allege a constitutional violation with respect to the alleged search of her home. However, though she does not fully explain the nature of her constitutional claim, it appears from plaintiff's opposition brief that she objects to the alleged pointing of the gun at her as an unreasonable seizure of her person in violation of the Fourth Amendment. (See Pl. Opp. at 3.) Treating all the facts alleged in the complaint as true, and drawing all reasonable factual ...