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Bloem v. Unknown Department of Interior Employees

United States District Court, District of Columbia

March 12, 2014

DAVID BLOEM, Plaintiff,


JAMES E. BOASBERG United States District Judge.

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 (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 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 F.Supp.2d at 157. It is this tent-clearing action that spawned the claims currently before the Court. Id.

In March 2012, Plaintiffs again filed for, and were granted, leave to amend their Complaint. See ECF No. 24 (Pl.’s Mot. Am.); see also Minute Order, Apr. 17, 2012. In this Second Amended Complaint, Plaintiffs sought both an injunction and compensatory relief for the alleged seizure and destruction of their property on February 4. See ECF No. 27 (Second Am. Compl.). They also jettisoned their pursuit of class certification in favor of an action on behalf of ten named protestor-Plaintiffs, including Bloem for the first time. He specifically alleged the seizure and destruction of his property, including:

a green indoor/outdoor carpet which was approximately 10’ x 20’, a blue tarp which was about 30’ x 20’ and which was folded and underneath the green carpet, a baby stroller, a tent case, a 6” high white plastic fence, six garden stones which were approximately 1’ square and which had “Occupy DC” and children’s footprints stenciled on them.

Id., ¶ 46. “Unknown U.S. Park Police Employees” joined Interior as Defendants, see id., ¶ 19, and the case proceeded in this fashion until the fall of 2012.

That September, the ever-evolving parties in this case were whittled down to their present membership when the Court again granted Plaintiffs leave to amend and Bloem was named as sole Plaintiff in the Third Amended Complaint. See Minute Order, Sept. 19, 2012; see also ECF No. 35 (Third Am. Compl.). Bloem’s solitary state springs from his co-Plaintiffs’ failure to visit a USPP storage facility to determine if they could retrieve their seized property, a condition agreed to by the parties in order for Plaintiffs to maintain their claims. See ECF No. 31 (Order dated July 23, 2012); see also Motion to Dismiss, Att. 1 (Declaration of Mark White), ¶¶ 2, 5 (Bloem only one to inspect property). At that time Bloem also dropped Interior as a party, leaving only the unnamed employees as Defendants. See ECF No. 35 (Third Am. Compl.). This Third Amended Complaint is the operative pleading today.

In November of 2012, Defendants moved to dismiss for failure to state a claim, for insufficiency of process, and on grounds of qualified immunity. See ECF No. 41 (Mot. Dismiss) at 1. Although the Department of Interior was no longer a party to this litigation, the Government was allowed to appear and file a motion on behalf of the unnamed Defendants. See Chung v. DOJ, No. 00-1912, 2001 WL 34360430, at *8 n.11 (D.D.C. Sept. 20, 2001) (“The Court will accept DOJ’s arguments on behalf of the unknown officials at this stage . . . [because in part] DOJ sets forth prevailing arguments on the officials’ behalf.”), aff’d in part and rev’d in part on other grounds, 333 F.3d 273 (D.C. Cir. 2003). Ruling on the Motion, this Court held that a Bivens action was available for the alleged violations and denied the invocation of sovereign immunity. See Bloem, 920 F.Supp.2d at 156-57. The Court did not decide the service question, but cautioned that it would “allow [Defendants] to renew their service arguments if, at the conclusion of discovery, Plaintiff has failed to identify the Interior employees in question.” Id. at 158.

Shortly thereafter, on Valentine’s Day 2013, perhaps in the amicable spirit of the holiday, the parties indicated they were undertaking settlement negotiations. See ECF No. 48 (Mot. to Continue). These agreeable sentiments proved as evanescent as puppy love, however, and settlement efforts were abandoned when Bloem and his counsel parted ways, citing “irreconcilable differences.” See ECF No. 49 (Mot. to Withdraw as Atty.) at ECF p. 3; see also Minute Order, Mar. 22, 2013. Bloem has proceeded pro se since that time, and the case continued through the close of discovery on July 11, 2013.

Given that the Court had allowed Bloem to proceed against unnamed Interior employees on the condition that he substitute named Defendants after discovery, Bloem, 920 F.Supp.2d at 158, on July 15, 2013, the Court ordered him at a status conference to file for leave to amend the Complaint on or before August 5, in order to name Defendants if he now could. See Minute Order, July 15, 2013. On the prescribed date, Bloem instead filed a now-stricken Fourth Amended Complaint. See ECF No. 53. This version identified eleven individual Defendants, including four current or former members of Congress. See id. One month later, Defendants moved to strike this Complaint pursuant to Rule 15(a)(2), as they had not consented to its filing and the Court had only permitted Plaintiff to seek leave to amend his Complaint. See ECF No.54 (Defs.’ Mot. Strike) at 2. On October 1, 2013, the Court granted the Motion to Strike on the dual grounds that Plaintiff’s failure to respond had conceded the issue and that the Motion correctly stated the procedural facts. See ECF No. ...

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