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Bloem v. Unknown Department of the Interior Employees

United States District Court, District of Columbia

March 12, 2014

DAVID BLOEM, Plaintiff,
v.
UNKNOWN DEPARTMENT OF THE INTERIOR EMPLOYEES, Defendants

Page 98

DAVID J. BLOEM, Plaintiff, Pro se, Vienna, VA.

For DEPARTMENT OF THE INTERIOR, Defendant: Marina Utgoff Braswell, U.S. ATTORNEYS OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC.

For U.S. PARK POLICE EMPLOYEES, UNKNOWN, Defendant: Marina Utgoff Braswell, LEAD ATTORNEY, U.S. ATTORNEYS OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC.

OPINION

JAMES E. BOASBERG, United States District Judge.

Page 99

MEMORANDUM OPINION

Pro se Plaintiff David Bloem brought this action against unnamed Department of Interior employees pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). His suit arises from the well-documented " Occupy D.C." protests, an offshoot of the " Occupy Wall Street" movement, which took up residence in downtown Washington's McPherson Square during the fall of 2011. In an earlier iteration of this action, a group of protestors claimed that Interior and the U.S. Park Police violated their constitutional rights while clearing the Square to enforce anti-camping regulations. Although the claims of all other protestors have long since been resolved, Bloem soldiers on. As discovery closed in July 2013 and Bloem has yet to serve any Defendant, the Government has now moved to dismiss for failure to serve timely process under Federal Rule of Civil Procedure 4(m). Alternatively, it argues that Plaintiff's failure to follow the Court's orders warrants dismissal under Rule 41(b). Finding merit in the first argument, the Court need not address the second in order to dismiss the case.

I. Procedural Background

The factual underpinnings of Bloem's claims are laid out in the Court's earlier decisions, Henke v. Department of Interior, 842 F.Supp.2d 54 (D.D.C. 2012), and Bloem v. Unknown Department of the Interior Employees, 920 F.Supp.2d 154 (D.D.C. 2013). To briefly recap, the events giving rise to this suit were set in motion on October 1, 2011, when " Occupy D.C." undertook a round-the-clock occupation of McPherson Square. See Third Am. Compl., ¶ ¶ 10-13. The group gathered there in solidarity with " Occupy Wall Street," a protest movement concerned with income and power disparities in American society, which had spread that fall from New York City to localities around the country. See id.

This litigation first came before the Court on December 5, 2011, as Henke v. Dept. of Interior, when counsel filed a Complaint on behalf of a sole Plaintiff, Brett Henke, against a sole Defendant, the Department of Interior. See ECF No. 1 (Compl.). Henke alleged his First and Fourth Amendment rights were violated when he was temporarily separated from his property -- namely, a tent. See id., ¶ 24. This occurred during a period in which officers of the United States Park Police (a subagency of Interior) provisionally cordoned off a section of the Square to remove a wooden structure erected by protestors. See id. Contemporaneously, Henke sought a temporary restraining order enjoining the USPP from closing off sections of McPherson Square and from seizing, without probable cause, his property or that of other protestors. See ECF No. 2 (Mot. for TRO); id. (Proposed Order) at 1. The Court was able to broker an agreement among parties that same day, leaving the protestors in the park and obviating the need for a restraining order. See Minute Order, Dec. 5, 2011. As part of that agreement, the Government committed to provide the protestors with twenty-four hours' notice before taking action to enforce the anti-camping regulations at issue. Id.

On January 4, 2012, Plaintiffs filed their first of several amended Complaints. See

Page 100

ECF No. 3 (First Am. Compl.). This Complaint added another protestor, Laura Potter, as a named Plaintiff; in addition, it asserted that because Plaintiffs' suit was on behalf of protestors too numerous to practicably count, they deserved certification as a class action. See id., ¶ ¶ 7-9. The newly numerous Plaintiffs alleged fear of imminent eviction from the Square, rooting their claims in the Fourth Amendment's protections from unreasonable seizures and the Due Process Clause of the Fifth Amendment. See id., ¶ ¶ 30, 37-39. They sought a preliminary injunction to prevent the enforcement of anti-camping regulations in McPherson Square, the eviction of protestors, and the seizure of their property. See ECF No. 7 (PI Mot.) at 2. The sole Defendant at that time remained the Department of the Interior. See First Am. Compl. On January 10th, Plaintiffs filed proof-of-service affidavits, showing they had served both Interior and the United States in accordance with Federal Rule of Civil Procedure 4(i). See ECF Nos. 8-10.

In denying Plaintiffs' motion, this Court refused to issue an injunction, concluding, inter alia, that no destruction of the protestors' property was imminent. See Henke, 842 F.Supp.2d at 64. Subsequently, on February 4, 2012, after providing the required notice to protestors, the Park Service enforced anti-camping regulations by clearing tents from the park. See Bloem, 920 ...


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