Hashemian v. United States Marshals et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SCOTT LEWIS HASHEMIAN,
Plaintiff,
v.
UNITED STATES MARSHALS,
UNKNOWN U.S. MARSHALS
TRANSPORT OFFICERS,
Defendants.
Case No. 3:18-cv-00286-TMB
AMENDED SCREENING ORDER
On December 7, 2018, Scott Lewis Hashemian, a self-represented prisoner,
filed a Prisoner’s Complaint under the Civil Rights Act 42 U.S.C § 1983, with the
Prisoner’s Application to Waive Prepayment of the Filing Fee (“Motion to Waive
Filing Fee”).1 Additionally, Mr. Hashemian filed a Civil Cover Sheet, a “Motion to
Compel/or Release Video Footage of Incident on 10-22-18 by Anchorage Jail East
Complex” (“Motion to Compel”), and “Notice of Motion.”2 Following this Court’s
Order dismissing the Complaint without prejudice for failure to state a claim on
which relief may be granted, on April 30, 2019, Mr. Hashemian filed a First
Amended Complaint (“Amended Complaint”).3
1 Dockets 1 (Complaint) & 3 (Motion to Waive Prepayment of the Filing Fee).
2 Dockets 2 (Civil Cover Sheet), 5 (Motion to Compel), & 6 (Notice of Motion).
3 Docket 9 (First Amended Complaint).
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On July 2, 2019, this Court issued an Order Directing Service and Response
certifying that he has plausibly alleged a claim under 42 U.S.C. § 1983 and
instructions on how to perform service on his case.4 On July 25, 2019, the United
States requested leave to enter amicus curiae.5 The United States raised concerns
that Mr. Hashemian’s claim was certified under 42 U.S.C. § 1983 in error, that if
he did have a claim it would be under Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (2017) for an alleged constitutional
violation caused by a federal actor. Additionally, the United States contested the
recommended course of service provided by the Court’s Order at Docket 10.
In response, the Court issued an Order permitting the United States to enter
as an amicus curiae and asked the United States to brief the following questions,
in light of the recent Supreme Court decision of Ziglar v. Abbasi, 582 U.S. ___, 137
S. Ct. 1843 (2017):
(1) Does Mr. Hashemian’s claim, construed as a Bivens claim, allege a new
context, and therefore require an extension of Bivens?
(2) What special factors, if any, counsel hesitation of judicial intervention in
Mr. Hashemian’s circumstances? and
4 Docket 10 (Order Directing Service and Response).
5 Docket 14 (Leave to Participate Amicus Curiae).
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(3) Whether Mr. Hashemian’s allegation present any cognizable claim under
the Federal Tort Claims Act, 28 U.S.C. § 1346.6
The Government responded on October 11, 2019, and in sum, answered
the Court’s questions that: (1) Mr. Hashemian’s allegations likely present a new
context of Bivens; (2) there are alternative remedies and special factors counseling
hesitation that the Court may need to consider; and (3) it is likely the Federal Tort
Claims Act applies to both of Mr. Hashemian’s claims, and that should he properly
procedurally exhaust he may be able to amend his complaint to add two viable
Federal Tort Claims Act claims.7
In light of this additional briefing, the Court now rescreens Mr. Hashemian’s
First Amended Complaint. In his first claim, Mr. Hashemian alleges that on October
22, 2018, at approximately 8:00 	a.m., 	an unknown U.S. 	Marshal 	physically
assaulted him in violation of his federal Fourth Amendment constitutional rights.8
Mr. Hashemian alleges that he had been called to attend court and was waiting to
be transported there from Anchorage Correctional Complex East. He alleges that
6 Docket 15 (Order Granting in Part and Denying in Part Docket 14).
7 Docket 17 (Amicus Curiae United States’ Brief Regarding Ziglar v. Abbasi and the
Federal Tort Claims Act).
8 Docket 9 at 3.
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one of the marshals (“Unknown Marshal #1”) repeatedly said “I gotta search you,”
handcuffed him behind his back, and put him in “leg irons” face down on the floor.9
Mr. 	Hashemian 	further 	alleges 	that 	while 	on 	the 	ground, 	Unknown
Marshal #1 pulled down his pants and underwear to his knees and physically
groped his groin, genitals and buttocks with “jabbing motions.”10
Mr. Hashemian asserts that this conduct was not “standard procedure” and
it 	caused 	him 	physical 	and 	mental 	pain 	and 	that 	he 	sustained 	injuries.
Mr. Hashemian alleges sharp pain in his genitals; wrist and ankle pain caused by
the restraints cutting into his skin; bodily injury to his groin, penis and buttocks
areas. Furthermore, Mr. Hashemian asserts mental anguish and “ever since . . .
I’m scared to be around U.S. Marshals and transport officers.”11
In his second claim, Mr. Hashemian alleges another unknown U.S. Marshal
(Unknown Marshal #2) witnessed the events of Claim 1 but did not intervene or
stop the physical and sexual assault by Unknown Marshal #1.12 Mr. Hashemian
alleges that Unknown Marshal #2 watched the assault and failed to respond to his
yells for help.
9 Id.
10 Id.
11 Id.
12 Docket 9 at 4.
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For 	relief, 	Mr. 	Hashemian 	requests 	$1,000,000.00 	in 	damages 	and
$1,000,000.00 in punitive damages.13 He also seeks an order requiring the
defendants to “pay monetary funds for Fourth Amendment civil rights violation and
punitive damages” and to “pay money for physical, mental, sexual, abuse, anguish
caused by U.S. Marshals.”14
SCREENING REQUIREMENT
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a self-represented prisoner seeking a waiver of the prepayment
of the filing fee. In this screening, a court shall dismiss the case at any time if the
court determines that the action:
(i) 	is frivolous or malicious;
(ii) 	fails to state a claim on which relief may be granted; or
(iii) 	seeks monetary relief against a defendant who is immune
from such relief.15
To determine whether a complaint states a valid claim for relief, courts
consider whether the complaint contains sufficient factual matter that, if accepted
as true, “state[s] a claim to relief that is plausible on its face.”16 In conducting its
13 Docket 9 at 8.
14 Id.
15 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(a), (b).
16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In making this determination, a court may consider “materials that
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review, a court must liberally construe a self-represented plaintiff’s pleading and
give the plaintiff the benefit of the doubt.17 Before a court may dismiss any portion
of a complaint for failure to state a claim upon which relief may be granted, the
court must provide the plaintiff with a statement of the deficiencies in the complaint
and an opportunity to amend or otherwise address the problems, unless to do so
would be futile.18
DISCUSSION
Mr. Hashemian seeks to bring a § 1983 civil rights action against two federal
employees. Mr. Hashemian alleges that his Fourth Amendment right to be free
from unreasonable search and seizure was violated by two U.S. Marshals through
alleged acts of (1) assault and battery and (2) negligence.
Mr. Hashemian’s allegations likely state violations of the Federal Tort Claims
Act (FTCA). However, Mr. Hashemian has not exhausted his claims in accordance
with the administrative procedure required by the FTCA. Therefore at this time, the
Court lacks subject matter jurisdiction over any FTCA claims Mr. Hashemian may
be attempting to raise. Once Mr. Hashemian has exhausted his administrative
are submitted with and attached to the Complaint.” United States v. Corinthian Colleges,
655 F.3d 984, 999 (9th Cir. 2011) (citing Lee v. L.A., 250 F.3d 668, 688 (9th Cir. 2001)).
17 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985) (en banc)).
18 See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (citing Albrecht v.
Lund, 845 F.2d 193, 195 (9th Cir. 1988)).
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remedies directly with the U.S. Marshals Service, then he may submit these claims
to the District Court, which at that time would likely establish subject matter
jurisdiction to adjudicate his allegations under the FTCA.
As to his constitutional allegations, and in light of the recent Supreme Court
decision in Ziglar v. Abbasi, it is questionable whether Mr. Hashemian can seek
relief under the implied cause of action created by Bivens claims. In order for the
Court to extend Bivens to Mr. Hashemian’s claims, the Court must conduct a two-
step analysis finding (1) if the allegations constitute a “new Bivens context,” and if
so, that (2) no “special factors” counseling hesitation would control or negate his
claims. Due to the unsettled law surrounding his constitutional claims and the
availability of alternative remedies under the FTCA (through the administrative
process), the Court declines to make a decision as to whether a Bivens claim
exists, in order that Mr. Hashemian may first pursue his administrative remedies
under the FTCA. As a result, the Court will dismiss the action without prejudice, so
that Mr. Hashemian may fully and properly seek administrative relief directly from
the U.S. Marshals Service as required by the Federal Tort Claims Act. Should
Mr. Hashemian not receive relief directly from the U.S. Marshals Service, then
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Mr. Hashemian may revive his allegations by filing a new complaint with three
possible claims:
(1) a claim under the FTCA against U.S. Marshal #1 for the torts of assault
and/or battery;
(2) 	a 	claim 	under 	the 	FTCA 	against 	U.S. 	Marshal 	#2 	for 	the 	tort 	of
negligence; and
(3) a claim alleging a constitutional violation of his Fifth Amendment right to
due 	process 	by 	a 	federal 	actor, 	Unknown 	U.S. 	Marshal 	#1, 	under 	Bivens.
Accordingly, the Court hereby dismisses Mr. Hashemian’s case and provides the
following guidance for Mr. Hashemian to seek relief.
I. Federal Tort Claims Act
In general, the United States government, as well as its officers and
agencies, 	are 	shielded 	from 	civil 	lawsuits 	under 	the 	doctrine 	of 	sovereign
immunity.19 	This 	doctrine 	prevents 	private 	citizens 	from 	suing 	the 	federal
government except in certain limited circumstances. As a result, federal courts do
not have jurisdiction to hear cases brought against the United States, its officers,
or its agencies, unless either (1) the federal government has agreed to the suit; or
19 See FDIC v. Meyer, 510 U.S. 471, 475 (1994).
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(2) sovereign immunity has been waived by an act of Congress.20 Without such a
waiver, Federal Courts must dismiss a suit against the federal government.
The FTCA is a federal statute that operates as a limited waiver of the United
States’ traditional sovereign immunity. Under the FTCA, private parties can bring
certain 	civil 	suits 	against 	the 	federal 	government 	for 	monetary 	damages.21
Specifically, the FTCA “waives the sovereign immunity of the United States” and
allows lawsuits to proceed against the United States, its agencies, or its officers
and employees “for certain torts committed by federal employees.”22
However, the FTCA is limited in several ways. First, FTCA claims against
federal government employees require that the named defendant(s) were “acting
within the scope of his office or employment.”23 As defined in the FTCA, an
“employee of the government” includes (1) “officers or employees of any federal
agency . . . and persons acting on behalf of a federal agency in an official capacity,
temporarily or permanently in the service of the United States, whether with or
without compensation.”24
20 Id.; see also Lane v. Pena, 518 U.S. 187, 192 (1996).
21 See 28 U.S.C. §§ 2671 - 2680.
22 See Vacek, 447 F.3d at 1250 (quoting Smith v. United States, 507 U.S. 197, 201 (1993)
(emphasis omitted) (quoting 28 U.S.C. § 2675(a)).
23 28 U.S.C. § 1346(b).
24 28 U.S.C. § 2671.
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Second, the FTCA “discretionary function exception” bars any FTCA claim
where the conduct of the government employee at issue is “based upon the
exercise or performance or failure to exercise or perform a discretionary function
or duty . . . whether or not the discretion involved be abused.”25 This means that in
many cases, if the government employee is exercising “an element of judgment or
choice” in taking action, and that judgment “involves considerations of social,
economic, or political policy,” if this exception applies a claimant cannot recover
any damages.26
Third, FTCA claims can seek only money damages for the injury itself: no
injunctive or equitable relief is available.27 Any recovery is limited to compensation
for the injury itself, and cannot include punitive damages.
And, last, in most cases the FTCA allows only tort claims for negligence; i.e.,
claims that assert an injury was “caused by the negligent or wrongful act or
omission” of a government employee.28 The only exception is that claims may be
brought against law enforcement officers for certain intentional torts, including
25 28 U.S.C. § 2680(a).
26 See Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996) (citations omitted).
27 See Id. Damages are available for “injury or loss of property, or personal injury or death”
caused by the negligence of a government employee or employees. Id.
28 28 U.S.C. § 1346(b). For example, claims for most intentional torts, such as assault,
are not within the scope of the FTCA. See 28 U.S.C. § 2680(h); see also Sheridan v.
United States, 487 U.S. 392, 398 (1988).
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assault, battery, and false arrest,29 so long as those intentional torts occur within
the scope of the defendant’s employment.30 This is known as the law enforcement
proviso.31
Prior to initiating a lawsuit in federal court, however, an individual who seeks
to recover money damages from the government under the FTCA must first raise
their claims—i.e., “exhaust” their claims—with the appropriate federal agency.32
To meet the exhaustion requirement, a claimant must first “present” the claim in a
timely manner to the “appropriate Federal agency,”33 otherwise, any lawsuit
asserting 	those 	claims 	will 	be 	dismissed 	because 	“’[t]he 	requirement 	of 	an
administrative claim is jurisdictional.”34 The federal district court lacks subject
matter jurisdiction over any FTCA claim that has not been exhausted.35
29 28 U.S.C. § 2680(h). Specifically, claims against law enforcement officers may be
brought for “[a]ny claims arising out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights.” Id.
30 See Millbrook v. United States, 569 U.S. 50, 54–55 (2013).
31 Id. at 52–53.
32 28 U.S.C. § 2675(a). Stating, “an action shall not be instituted upon a claim against the
United States for money damages” unless the claimant has first exhausted administrative
remedies.
33 28 U.S.C. § 2675(a).
34 Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir. 2011) (quoting Brady v. United
States, 211 F.3d 499, 502 (9th Cir. 2000)). See 28 U.S.C. § 2401(b).
35 FTCA claims that have not been exhausted must be dismissed, even if a plaintiff
exhausts his administrative remedies with the federal agency while the FTCA lawsuit is
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Each federal agency has a procedure for presenting FTCA claims, and
claims must be presented with the agency in writing.36 A claim is “deemed to have
been presented when a Federal agency receives from a claimant . . . an executed
Standard Form 95 or other written notification of an incident.”37
A tort claim must be presented to the appropriate Federal agency within two
years of the date the injury occurred.38 If the federal agency denies the claim, or
takes no action within six months after receiving the claim, the claimant may then
file a lawsuit challenging that decision in federal court.39 If the claimant receives a
denial, he must file a lawsuit within six months of the date the denial was mailed.40
pending but substantial progress in the litigation has not occurred. See McNeil v. United
States, 508 U.S. 106, at 111–12 (1993). However, a plaintiff who prematurely files a
complaint in federal court may amend the complaint to add an FTCA claim and the United
States as a defendant after the administrative procedure is complete so long as the claim
was not raised in the initial complaint. See D.L. by & through Junio v. Vassilev, 858 F.3d
1242, 1245–46 (9th Cir. 2017); Valadez-Lopez v. Chertoff, 656 F.3d 851, 854–58 (9th Cir.
2011).
36 28 U.S.C. § 2401(b).
37 28 C.F.R. § 14.2(a).
38 28 U.S.C. § 2401(b); but see U.S. v. Kwai Fun Wong, 135 S.Ct. 1625, 1633 (2015)
(“Section 2401(b) is not a jurisdictional requirement. The time limits in the FTCA are just
time limits, nothing more. Even though they govern litigation against the Government, a
court can toll [suspend] them on equitable grounds.”).
39 See 28 U.S.C. § 2675(a) (permitting liability “under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.”).
40 28 U.S.C. § 2401(b). See also Ruchert v. Williamson, No. 3:16-CV-00413-BLW, 2017
WL 3120267, at *2 (D. Idaho July 21, 2017) (“A court action cannot be instituted until the
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The United States’ liability under the FTCA mirrors the liability that a private
person would have for the same conduct. To determine liability, the court will apply
the tort law of the state where the injury occurred.41 Thus, in this case, the FTCA
allows recovery of damages under the laws of the state of Alaska.42
Mr. 	Hashemian 	alleges 	two 	tort 	claims 	against 	two 	federal 	employee
defendants. With respect to Claim 1, for physical assault by a law enforcement
officer, and Claim 2, for negligence, these claims are likely to be recoverable under
the Federal Tort Claims Act. Mr. Hashemian may decide to pursue an intentional
tort claim and a negligence claim through the FTCA administrative process
asserting these allegations by filing a complaint with the United States Marshals
Service.
Importantly, the Prison Litigation Reform Act has altered the FTCA for
prisoners. No prisoner convicted of a felony “may bring a civil action against the
United States or an agency, officer, or employee of the Government, for mental or
emotional injury suffered while in custody without a prior showing of physical
agency has either: (1) made a final denial in writing, or (2) failed to act within six-months
after the administrative claim is filed.”).
41 See FDIC v. Meyer, 510 U.S. 471, 478 (“Indeed, we have consistently held that
§ 1346(b)’s reference to the ‘law of the place’ means law of the State—the source of
substantive liability under the FTCA.”)
42 See Vacek, 447 F.3d at 1250 (quoting Smith v. United States, 507 U.S. 197, 201 (1993)
(emphasis omitted) (quoting 28 U.S.C. § 2675(a)).
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injury.”43 This means that for Mr. Hashemian to recover for mental or emotional
distress he will also need to show and prove physical injury.
II. Bivens claims after Ziglar v. Abbasi
In 1971, in the groundbreaking case, Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court of the United States
held that an individual had an implied right of action to sue federal actors for
violating federal constitutional rights. In Bivens, the Court approved Mr. Bivens’
right to sue federal agents for damages for a violation of his Fourth Amendment
rights, because he was improperly arrested without a warrant.44 The Bivens case
reasoned that “where legal rights have been invaded, . . . federal courts may use
any available remedy to make good the wrong done.”45 In subsequent years, the
Court further extended “Bivens claims” to allow for private causes of action for (1)
gender discrimination under the Fifth Amendment in Davis v. Passman,46 and for
(2) a prisoner’s claims that inadequate medical care amounted to an Eighth
Amendment violation in Carlson v. Green.47
43 28 U.S.C. § 1346(b)(2).
44 Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
45 Bivens, 403 U.S. at 396.
46 Davis v. Passman, 442 U.S. 288 (1979).
47 Carlson v. Green, 446 U.S. 14 (1980).
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However after these cases, the Court began restricting the use of Bivens
claims.48 Most notably in the recent case Ziglar v. Abbasi, the Supreme Court
heavily cautioned against the use of implied Bivens actions and declared it to be a
“’disfavored’” judicial activity.49 The Supreme Court then rearticulated and firmly
entrenched a two-step test that courts must apply when confronted with possible
Bivens claims.
First, courts must determine whether a litigant’s claim presents a “new
Bivens context.”50 Effectively, this means that a Court must evaluate whether an
alleged claim is under the Fourth, Fifth, or Eighth Amendment contexts 	as
established in Bivens, Davis, and Carlson or alleges a new fact pattern or legal
theory, which would require an extension of the Bivens framework. In order to
evaluate whether a claim presents a “new Bivens context,” a court must evaluate
whether there are meaningful differences from the prior approved Bivens claims.
Such meaningful differences may include: “the rank of the officers involved; the
constitutional right at issue; the generality or specificity of the official action; the
extent of judicial guidance as to how an officer should respond to the problem or
48 See Bush v. Lucas, 462 U.S. 367 (1983); FDIC v. Meyer, 510 U.S. 471 (1994);
Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001); Wilkie v. Robbins, 551
U.S. 537 (2007); Minneci v. Pollard, 565 U.S. 118 (2011).
49 Ziglar v. Abbasi, 582 U.S. ___, 137 S. Ct. 1843 at 1856-57 (2017).
50 Abbasi, 137 S. Ct. at 1859-60.
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emergency to be confronted; the statutory or other legal mandate under which the
officer was operating; the risk of disruptive intrusion by the judiciary into the
functioning of other branches; or the presence of potential special factors that
previous Bivens cases did not consider.”51
Second, if a “new Bivens context” is found, then a court must consider
whether special factors exist that would counsel hesitation of court intervention.52
Put plainly, a court must look to the pre-existing legal schemes and evaluate if and
how Congress has, or has not, chosen to act regarding similar claims. Additionally,
a court must consider if there are any alternative remedies or pathways for a litigant
to seek relief.
Here, Mr. Hashemian has alleged that while he was a pre-trial detainee a
U.S. Marshal violated his constitutional right to be free from unreasonable search
and seizure under the Fourth Amendment. Under liberal construction, the Court
acknowledges that Mr. Hashemian’s claim would be properly brought under the
Fifth Amendment as a violation of due process, because of his pre-trial detainee
status. The Court notes that in Ziglar v. Abbasi, the Supreme Court remanded a
similar claim and question as to whether Bivens should be extended to pre-trial
51 Id.
52 See Id. at 1859-69.
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detainees who suffered physical abuse at the hands of detention staff.53 Under this
prong of the test, it appears that Mr. Hashemian’s claim may facially meet the
standards for a “new Bivens context.”
In regard to special factors counseling hesitation, the Court recognizes that
Mr. Hashemian has an alternative remedy available to him under the FTCA.
Specifically, Mr. Hashemian may be able to (1) seek administrative relief directly
from the U.S. Marshals Service; and in the event he does not receive relief and
has properly exhausted his claim administratively, he may (2) file those tort claims
directly with the District Court. Additionally, the Court notes that Congress passed
the Prison Litigation Reform Act and could have established a right of action for
such claims then but did not do so.54 However while the Court recognizes the
existence of these factors, neither is dispositive upon screening.
In the interest of justice, the Court declines to make a determination as to
whether Mr. Hashemian alleges a claim which requires the Court extend the
Bivens framework into a new context. As a pro se litigant, Mr. Hashemian should
be given the opportunity to properly exhaust his alternative remedies that as a
prisoner, he likely did not have access to understand, nor readily access from his
incarcerated position. Accordingly, the Court dismisses Mr. Hashemian’s action so
53 Id. at 1869.
54 See 42 U.S.C. § 1997(e) (codifying the “Prison Litigation Reform Act”).
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that he may exhaust his administrative remedies with the U.S Marshals Service as
required by the FTCA.
III. Conclusion
For the reasons described above, Mr. Hashemian’s action is DISMISSED
WITHOUT 	PREJUDICE. 	The 	Court 	is 	sending 	a 	form 	which 	may 	assist
Mr. Hashemian in initiating the FTCA administrative process to exhaust each of
his FTCA claims against Unknown Marshal #1 and Unknown Marshal #2, but this
Court encourages Mr. Hashemian to contact the U.S. Marshals Service in order to
obtain the most up to date information about how to file an administrative tort
claim.55
Should Mr. Hashemian not receive relief directly from the U.S. Marshals
Service, then Mr. Hashemian may refile his complaint with the District Court for the
District of Alaska with three possible claims: (1) a claim under the FTCA against
U.S. Marshal #1 for the torts of assault and/or battery, (2) a claim under the FTCA
against U.S. Marshal #2 for the tort of negligence, and (3) a claim alleging a
55 Because Mr. Hashemian alleges two claims against employees of the U.S. Marshals
Service, he must initiate the FTCA administrative process with the U.S. Marshals Service.
According to their website a claimant may “present” a claim by following the instructions
and mailing Standard Form (SF) 95, Claim For Damage, Injury, or Death to “U.S.
Marshals 	Service, 	Office 	of 	General 	Counsel, 	Attn: 	OGC 	Torts 	Team
(USMSTORTClaims@usdoj.gov) Building CG-3, 15th Floor, Washington, D.C. 20530-
0001”. Instructions and information can be found at www.usmarshals.gov.
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3:18-cv-286-TMB, Hashemian v. United States Marshals, et al.
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constitutional violation of his Fifth Amendment right to due process by a federal
actor, Unknown U.S. Marshal #1, under Bivens.
IT IS THEREFORE ORDERED:
1. The action is DISMISSED WITHOUT PREJUDICE for lack of subject matter
jurisdiction.
2. The Court recommends Mr. Hashemian exhaust his administrative remedies
with the U.S. Marshals Service in accordance with the Federal Tort Claims Act.
Mr. Hashemian should follow the guidance provided with this order and any
instructions provided by Standard Form (SF) 95, Claim for Damage, Injury, or
Death, or any other proper claim form as provided by the U.S. Marshals Service.
The Court encourages Mr. Hashemian to contact the U.S. Marshals Service in
order 	to 	obtain 	the 	most 	up 	to 	date 	information 	about 	how 	to 	file 	an
administrative tort claim.56
3. If Mr. Hashemian does not receive relief from the administrative process, the
Court invites him to refile his allegations within the appropriate timelines as
56 Because Mr. Hashemian alleges two claims against employees of the U.S. Marshals
Service, he must initiate the FTCA administrative process with the U.S. Marshals Service.
According to their website a claimant may “present” a claim by following the instructions
and mailing Standard Form (SF) 95, Claim For Damage, Injury, or Death to “U.S.
Marshals 	Service, 	Office 	of 	General 	Counsel, 	Attn: 	OGC 	Torts 	Team
(USMSTORTClaims@usdoj.gov) Building CG-3, 15th Floor, Washington, D.C. 20530-
0001”. Instructions and information can be found at www.usmarshals.gov.
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3:18-cv-286-TMB, Hashemian v. United States Marshals, et al.
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established above. Mr. Hashemian is instructed to do so using the PS01
Prisoner Civil Rights Form that is provided with this Order.
4. The Clerk of Court is directed to send Mr. Hashemian the following forms with
this Order: (1) Instructions for Submitting an Administrative Tort Claim with the
United States Marshals Service; (2) Standard Form (SF) 95, Claim for Damage,
Injury, or Death; and (3) PS01 Prisoner Civil Rights Form with an amended
heading simply stating “Prisoner’s Complaint.”
DATED at Anchorage, Alaska this 11th day of December, 2019.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
United States District Judge
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