         10-1371-cv
         VanBrocklen v. United States




                                        UNITED STATES COURT OF APPEALS
                                            FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
     DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX O R AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER
     M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1               At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 4th day of January, two thousand eleven.
 4
 5       PRESENT:
 6                   PIERRE N. LEVAL,
 7                   DEBRA ANN LIVINGSTON,
 8                               Circuit Judges,
 9                   RICHARD M. BERMAN,*
10                               District Judge.
11       ____________________________________________________________
12
13       RUSSELL VANBROCKLEN
14                 Plaintiff-Appellant,
15
16                          -v.-                                                      10-1371-cv
17
18       UNITED STATES OF AMERICA, TRANSPORTATION SECURITY ADMINISTRATION,
19                   Defendants-Appellees.**
20       ___________________________________________________________
21
22       FOR APPELLANT:                   Russell VanBrocklen, pro se, West Sand Lake, New York.
23
24       FOR APPELLEES:                   Daniel J. Lenerz, United States Department of Justice,


                       *
                      Judge Richard M. Berman, of the United States District Court for the Southern
             District of New York, sitting by designation.
                       **
                      The Clerk of the Court is directed to amend the official caption to conform with the
             caption above.
1                                   Washington, D.C. (Tony West, Assistant Attorney General,
2                                   Richard S. Hartunian, United States Attorney for the Northern
3                                   District of New York, Douglas N. Letter, on the brief).
4
5           UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

6    DECREED that the district court judgment is AFFIRMED.

7           Plaintiff-Appellant Russell VanBrocklen, pro se, appeals from the April 7, 2010 judgment

8    of the United States District Court for the Northern District of New York (McAvoy, J.) dismissing

9    his complaint alleging violation of his rights under the Fourth Amendment for failure to state a

10   claim. We assume the parties’ familiarity with the underlying facts, the procedural history of the

11   case, and the issues on appeal.

12          This Court reviews the dismissal of a complaint pursuant to Rule 12(b)(6) de novo,

13   construing the complaint liberally and accepting all factual allegations in the complaint as true. See

14   Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead

15   “enough facts to state a claim to relief that is plausible on its face.” See Bell Atlantic Corp. v.

16   Twombly, 550 U.S. 544, 570 (2007). On appeal, VanBrocklen challenges only the dismissal of his

17   Fourth Amendment claim, and he has therefore abandoned any argument that the district court erred

18   by dismissing his other claims. As he stated at oral argument, “I want the Fourth Amendment thing

19   reversed for the reasons I’ve stated, and that’s it.” See LoSacco v. City of Middletown, 71 F.3d 88,

20   92-93 (2d Cir. 1995).

21          Defendants argue for the first time on appeal that VanBrocklen’s Fourth Amendment claim

22   should have been dismissed due to lack of subject matter jurisdiction. They are correct that




                                                       2
1    VanBrocklen may not raise his claim for monetary damages against any of the named defendants.1

2    See Chen v. United States, 854 F.2d 622, 626 (2d Cir. 1988). However, VanBrocklen could, under

 3   Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), assert a

4    Fourth Amendment claim directly against the individual federal agents involved in the contested

5    search. Because this issue was not raised in the district court, VanBrocklen did not have an

6    opportunity to amend his complaint to name an individual defendant. See Branum v. Clark, 927 F.2d

7    698, 705 (2d Cir. 1991) (“[T]he court should not dismiss [a pro se complaint] without granting leave

8    to amend at least once when a liberal reading of the complaint gives any indication that a valid claim

9    might be stated”).

10          While VanBrocklen has indicated in his briefing to this Court that he does not wish to seek

11   monetary damages from the individual agents involved in his search, remand is not necessary in any

12   case because the district court correctly concluded that VanBrocklen failed to state a Fourth

13   Amendment claim. After having reviewed VanBrocklen’s contentions on appeal and the record of

14   proceedings below, we affirm for substantially the same reasons stated by the district court in its

15   thorough and well reasoned opinion. We credit VanBrocklen’s assertion that the search conducted

16   in this case resulted in severe pain for him. However, despite VanBrocklen’s assertions that the TSA

17   agents should have sought help from a police officer in dealing with his medical condition or should

18   have simply stopped the search and indicated to him that he would not be able to fly, none of his



                1
                  We note that for the first time in his reply brief, VanBrocklen appears to assert an
        interest in injunctive or declaratory relief with regard to his Fourth Amendment claim. This
        relief was not pursued before the district court or even before this Court prior to the filing of
        an untimely reply brief. We find, nevertheless, for the reasons stated below, that
        VanBrocklen has failed to state a claim for such relief, as his complaint does not set forth
        facts plausibly alleging a Fourth Amendment violation.

                                                       3
1    suggested alternative courses of action alter the conclusion that his pleadings do not set forth a claim

2    that the search here represented an unreasonable intrusion on his Fourth Amendment privacy

3    interests. See Bd. of Educ. v. Earls, 536 U.S. 822, 837 (2002) (“[R]easonableness under the Fourth

4    Amendment does not require employing the least intrusive means . . . .”). As a result, even were

5    VanBrocklen permitted to amend his complaint to assert a Fourth Amendment Bivens claim directly

6    against the TSA agents in their individual capacities, the district court correctly concluded that the

7    factual allegations contained in VanBrocklen’s complaint failed to set forth a plausible Fourth

8    Amendment claim.

9             We have considered all of VanBrocklen’s remaining arguments and find them to be

10   without merit. Accordingly, the judgment of the district court is AFFIRMED.
11
12                                                          FOR THE COURT:
13                                                          Catherine O’Hagan Wolfe, Clerk
14
15




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