In a Bivens action alleging that plaintiff was unlawfully arrested pursuant to a Bush Administration policy illegally using the federal material witness statute to detain suspected terrorists, the denial of defendant's motion to dismiss on qualified immunity grounds is affirmed in part, where plaintiff did not alleged adequate facts to render plausible defendant's personal involvement in setting the harsh conditions of his confinement. However, the order is reversed in part where: 1) defendant was acting in an investigative rather than a prosecutorial capacity in detaining plaintiff; and 2) plaintiff's right not to be arrested as a material witness in order to be investigated or preemptively detained was clearly established.
Argued April 8, 2008
Submitted May 18, 2009
Filed September 4, 2009
Opinion by Judge Smith
Partial Concurrence and Partial Dissent by Judge Bea