Arias v. US Government et al

UNITED STATES DISTRICT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Arias
v. 	Civil No. 17-cv-516-SM
U.S. Government et al.1
REPORT AND RECOMMENDATION
Plaintiff Robert Arias has filed a complaint (Doc. No. 1),
asserting that his federal constitutional rights were violated
during his September 8, 2016 arrest by United States Drug
Enforcement Agency (“DEA”) agents. 	The matter is here for
preliminary review to determine, among other things, whether the
complaint asserts any claim upon which relief might be granted.
See 28 U.S.C. §§ 1915(e)(2), 1915A(a); LR 4.3(d)(1).
Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints filed in forma pauperis. 	See LR 4.3(d)(1); see also
28 U.S.C. §§ 1915(e)(2), 1915A. 	In conducting its preliminary
review, the court construes pro se complaints liberally. 	See
1Plaintiff has identified, as defendants to this action: the
United States government, the United States Drug Enforcement
Agency (“DEA”), and DEA Agents: Day, whose first name is unknown
(“FNU”); Noah Herzon; Juan Infante; FNU Garcia; Ty Kurcharski;
and FNU Bernard.
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Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	The
court then determines whether, so construed, stripped of legal
conclusions, and with all reasonable inferences construed in
plaintiff’s favor, the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief.’” 	See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Claims may be dismissed, sua sponte, if, among other things, the
court lacks jurisdiction, a defendant is immune from the relief
sought, or the complaint fails to state a claim upon which relief
may be granted. 	See 28 U.S.C. §§ 1915(e)(2), 1915A(b)(1); LR
4.3(d)(1)(A).
Background
On September 8, 2016, Robert Arias was arrested by DEA
agents. 	Arias alleges that, in the process of placing him under
arrest, the agents forcefully removed him from the car in which
he was sitting, and proceeded to assault him by kicking and
punching him, while restraining him on the ground. 	Arias alleges
that he did not resist the agents’ instructions or his arrest,
and that the assault was without justification. 	Arias states
that as a result, he has suffered physical and emotional
injuries.
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Discussion
I. 	Claims Asserted Against Individual DEA Agents
Arias has stated sufficient facts to warrant service of this
action upon the individual DEA agent defendants, as to the
following claims, under Bivens v. Six Unknown Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971):
1. 	The individual DEA agents involved in plaintiff’s
September 8, 2016 arrest exerted excessive force against
plaintiff during the arrest, in violation of plaintiff’s
Fourth and Fifth Amendment rights.
2. 	The individual DEA agents involved in plaintiff’s
September 8, 2016 arrested failed to protect plaintiff from
harm arising from the excessive force exerted upon plaintiff
by the other DEA agents present, in violation of plaintiff’s
Fourth and Fifth Amendment rights.
In an Order issued simultaneously with this Report and
Recommendation, the court directs service of these claims upon
the individual DEA agent defendants in this action.
II. 	Other Constitutional Claims
A. 	Fourteenth Amendment
Due process claims asserted against individuals acting under
the color of federal law arise under the Fifth Amendment. 	The
Fourteenth Amendment extends the Fifth Amendment’s due process
protections to the states. 	As the defendants in this case are
alleged to have acted under federal law, rather than state law,
no Fourteenth Amendment claim arises from the facts Arias has
alleged. 	The district judge should therefore dismiss the
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Fourteenth Amendment claims from this action.
B. 	Eighth Amendment
The Eighth Amendment protects convicted individuals from
cruel and unusual punishment. 	Arias’s claims arise out of his
arrest, during which he was not a convicted prisoner.
Accordingly, the Eighth Amendment did not at that time afford him
protection, and the district judge should dismiss Arias’s Eighth
Amendment claims.
III. Claims Against the United States and the DEA
“‘Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.’” 	Dep’t of Army v. Blue
Fox, Inc., 525 U.S. 255, 260 (1999) (quoting FDIC v. Meyer, 510
U.S. 471, 475 (1994)). 	“[T]he United States has not waived
sovereign immunity in suits claiming constitutional torts.”
Truman v. Armstrong, No. 2:17-cv-00004-DBH, 2017 WL 3448542, at
*5 (D. Me. Aug. 11, 2017) (internal quotation marks, alterations,
and citation omitted), R&R adopted, 2017 WL 3820945, at *1 (D.
Me. Aug. 31, 2017), appeal filed, No. 18-1095 (1st Cir. Feb. 1,
2018). 	Accordingly, Arias’s constitutional claims are not
cognizable against the United States or the DEA, a federal
agency. 	The district judge should dismiss the claims asserted
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against the United States per se and its agency, the DEA, and
those defendants should be dropped from this action.2
Conclusion
For the foregoing reasons, the district judge should dismiss
Arias’s Eighth and Fourteenth Amendment claims, and all of the
federal constitutional claims asserted against the United States
government and the DEA, and the United States and DEA should be
dropped as defendants in this action. 	Any objections to this
Report and Recommendation must be filed within fourteen days of
receipt of this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The
fourteen-day period may be extended upon motion. 	Failure to file
specific written objections to the Report and Recommendation
within the specified time waives the right to appeal the district
court’s order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d
163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
May 7, 2018
cc: 	Robert Arias, pro se
2It does not appear that Arias is attempting to assert any
claims under the Federal Tort Claims ACT, to which the United
States would be the appropriate defendant.
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