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Bloem v. Unknown Dept. of the Interior Employees

United States District Court, District of Columbia

February 4, 2013

David BLOEM, Plaintiff,

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[Copyrighted Material Omitted]

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Jeffrey Louis Light, Law Office of Jeffrey Light, Washington, DC, for Plaintiff.

Marina Utgoff Braswell, U.S. Attorneys Office for the District of Columbia, Washington, DC, for Defendants.


JAMES E. BOASBERG, District Judge.

Beginning on October 1, 2011, numerous individuals participated in a round-the-clock occupation of McPherson Square in downtown Washington, D.C., known as " Occupy DC." Similar protests were carried out in cities across the country, beginning with the " Occupy Wall Street" protest in New York. On January 27, 2012, the National Park Service distributed flyers to the protesters indicating that the United States Park Police would soon begin enforcing NPS regulations prohibiting camping in the park. Several protest participants sought a preliminary injunction

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barring the USPP from enforcing these regulations, which this Court denied on February 2, and the USPP began clearing the park of violators on February 4. During the course of the USPP enforcement operation, many items of personal property were allegedly seized or destroyed, including property belonging to David Bloem, the sole remaining Plaintiff here.

In the Third Amended Complaint filed in this action, Plaintiff Bloem seeks relief under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for the seizure and destruction of his property, which he alleges violated his First, Fourth, and Fifth Amendment rights. Defendants now bring this Motion to Dismiss, arguing that no Bivens action may lie for the conduct at issue in this case, and that even if one were available, they are entitled to qualified immunity. [1] Because the Court finds that Plaintiff may pursue a Bivens remedy for the harm alleged here and that Defendants are not entitled to qualified immunity, it will deny their Motion.

I. Background

The facts surrounding the underlying dispute in this action and the Park Service's ability to enforce regulations barring camping in McPherson Square are set forth in this Court's prior Opinion denying the earlier Plaintiffs' request for a preliminary injunction. See Henke v. Department of the Interior, 842 F.Supp.2d 54 (D.D.C.2012). According to the Third Amended Complaint, which must be presumed true at this stage in the proceedings, participants in the " Occupy DC" protest set up a " 24 hour-a-day physical occupation" of the park, which was " expressed through the establishment of tents and other temporary structures, which remained in place around-the-clock." See Third Am. Compl., ¶ 15. Plaintiff Bloem was a participant in the protest and had set up a tent and display that included a green indoor/outdoor carpet, a blue tarp, a baby stroller, a tent case, a six-inch-high white plastic fence, and six garden stones stenciled with " Occupy DC" and children's footprints. Id., ¶ 29.

Several months later, after this Court had denied Plaintiffs' request for a preliminary injunction to bar police action, NPS personnel proceeded to enforce the camping regulations on February 4, 2012. Id., ¶ 28. Plaintiff alleges that " hundreds, if not thousands, of items of personal property in McPherson Square which were part of the Occupy DC vigil were seized and/or destroyed by or at the direction of the defendants." Id. After the USPP's enforcement operation, the prior Plaintiffs filed a Second Amended Complaint, seeking declaratory relief and damages for claimed violations of their Fourth and Fifth Amendment rights. See Second Am. Compl. (ECF No. 27) at 16. Pursuant to a joint request from these Plaintiffs and the Department of the Interior, the Court required prospective Plaintiffs to visit the D-1 Station of the United States Park Police, as well as the National Mall's open-air " Boneyard," to attempt to collect their property before being allowed to proceed in this case. See Scheduling Order of July 23, 2012 (ECF No. 31). Plaintiff Bloem visited both the Boneyard and the D-1 Station, but to no avail: he alleges that his property was immediately placed into a

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trash compactor during the USPP enforcement action, and he did not find his property at either location. See Third Am. Compl., ¶¶ 29-30. As the lone remaining Plaintiff, he then filed the Third Amended Complaint in this case, seeking damages under Bivens by alleging that the seizure and destruction of his property violated his First, Fourth, and Fifth Amendment rights. On behalf of the unnamed Department of the Interior employees who are the nominal Defendants in this case, the Government now brings this Motion to Dismiss.

II. Legal Standard

A. 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a claim for relief when the complaint " fail[s] to state a claim upon which relief can be granted." In evaluating a motion to dismiss, the Court must " treat the complaint's factual allegations as true and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000) (citation and internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A court need not accept as true, however, " a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C.Cir.2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Although " detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), " a complaint must contain sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation omitted). Though a plaintiff may survive a Rule 12(b)(6) motion even if " recovery is very remote and unlikely," the facts alleged in the complaint " must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

B. 12(b)(4) & 12(b)(5)

Defendants' Motion alternatively seeks to dismiss Plaintiff's suit for insufficient service of process under Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5). While Defendants correctly note that the individual Department of the Interior employees whose conduct is at issue here have not yet been served, " Plaintiff may bring an action against unknown John Doe defendants, but ... must substitute named defendants after the completion of discovery." Simmons v. District of Columbia, 750 F.Supp.2d 43, 45 (D.D.C.2011). " [A]n action may proceed against a party whose name is unknown if the complaint makes allegations specific enough to permit the identity of the party to be ascertained after reasonable discovery." Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.1995). Here, Plaintiff has made such allegations: he alleges that his property was seized and destroyed by Interior employees who were involved in the clearing of McPherson Square on the night of February 4, 2012, a sufficiently narrow group of employees that the actual perpetrators should be reasonably identifiable after discovery. The Court, accordingly, will limit its analysis to Defendants' Motion under Rule 12(b)(6), but will allow them to renew their service arguments if, at the conclusion of discovery, Plaintiff has failed to identify the Interior employees in question.

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III. Analysis

Defendants raise two distinct challenges to Plaintiff's claims. First, they contend that Bloem cannot bring an action under Bivens for the alleged conduct here. See Mot. at 1. A Bivens remedy should not be " creat[ed]," they argue, where a comprehensive statutory scheme— here, the federal small-claims statute, 31 U.S.C. § 3723— has been established to provide relief in a given area. See id. at 2, 8 (citing Davis v. Billington, 681 F.3d 377, 381 (D.C.Cir.2012) (Civil Service Reform Act), Wilson v. Libby, 535 F.3d 697, 704-10 (D.C.Cir.2008) (Privacy Act), and Spagnola v. Mathis, 859 F.2d 223, 229-30 (D.C.Cir.1988) (Civil Service Reform Act)). Second, Defendants maintain that " [e]ven if this Court were to entertain a Bivens claim against the individually-sued defendants, the Complaint fails to state a claim that can withstand the defense of qualified immunity." Id. at 14. They contend that the Interior employees— likely members of the U.S. Park Police— did not knowingly violate a " clearly established Constitutional right" here, as no reasonable law-enforcement officer would have known that he was violating Plaintiff's First, Fourth, or Fifth Amendment rights by seizing and destroying property in the context of clearing McPherson Square. Id. at 15, 18-22 (internal quotation marks omitted). The Court will address each challenge separately.

A. Availability of a Bivens Action

Defendants argue that the circumstances here " counsel[ ] against the creation of an alternative Bivens -type remedy," where a comprehensive statutory scheme— namely, the federal small-claims statute— provides relief. Mot. at 8-10. The existence of this scheme, Defendants assert, trumps precedent from this Circuit recognizing " a Bivens cause of action for a First Amendment claim involving demonstrations." Mot. at 8 (citing Dellums v. Powell, 566 F.2d 167 (D.C.Cir.1977)). The Court must separately address three issues to respond to Defendants' position. First, the Court will inquire whether a Bivens action may lie for violations of the First Amendment rights of protesters, as well as for Fourth and Fifth Amendment violations. Second, the Court must determine if the officers' alleged ...

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