Opinion
Civil Action DR-22-CV-00013-AM-VRG
04-10-2023
ARTHUR JOYNER, Plaintiff, v. DEL RIO BORDER CONTROL STATION, AGENT ALEX, AGENT TANKE, and SERGEANT R. ROCHO, Defendants.
REPORT AND RECOMMENDATION
VICTOR ROBERTO GARCÍA UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ALIA MOSES, CHIEF UNITED STATES DISTRICT JUDGE:
The Court referred the above-captioned matter to the undersigned for initial proceedings consistent with 28 U.S.C. § 636(b). Defendants filed a Rule 12(b)(6) Motion to Dismiss, and Plaintiff responded. Plaintiff also filed a Motion to Set the Record Straight, to which Defendants did not respond. (ECF No. 39). For the following reasons, it is recommended that the Motion to Set the Record Straight [ECF No. 39] be DENIED, the Motion to Dismiss [ECF No. 60] be GRANTED, and that Plaintiff's claims be DISMISSED WITH PREJUDICE.
I. BACKGROUND
A. Procedural Background
Plaintiff Arthur Joyner filed his first complaint on March 25, 2022. (Compl., ECF No. 1.) He applied for in forma pauperis status on April 20, 2022, which the undersigned granted. (Appl. to Proceed in Forma Pauperis, ECF No. 5.) Plaintiff also filed his Amended Complaint with an attached Affidavit on May 26, 2022. (Am. Compl., ECF No. 11; Aff., ECF No. 11-1.) Before the Agents filed this Motion to Dismiss, Plaintiff filed various other motions. (Mot. for Leave to File Exs., ECF No. 22; Mot. for J. by Default, ECF No. 26; Mot. for Hr'g, ECF No. 27; Mot. to Address Ct., ECF No. 29; Mot. for Permission to File Electronically, ECF No. 30; Mot. for Hr'g and J. by Default, ECF No. 32; Mot. to Subpoena Camera Footage, ECF No. 37.) Among those motions are Plaintiff's Motion to Set the Record Straight and Motion to Adjust. (ECF Nos. 39 and 52.) On November 14, 2022, the Agents filed this Motion to Dismiss, to which Plaintiff responded. (Mot. to Dismiss, ECF No. 60; Resp. to Mot., ECF No. 61.) On November 22, 2022, the undersigned ordered a Spears hearing, which was held on December 20, 2022, before the undersigned. (Order Setting Spears Hr'g, ECF No. 62.) On March 27, 2023, Plaintiff filed a Motion for [sic] Exercise Rule 53.2. (ECF No. 69.) In an Order dated the same as this Report and Recommendation, the undersigned granted Plaintiff's Motion to Adjust as a motion for leave to file an amended complaint, granted Plaintiff's request to increase his damages amount as a motion to file a supplemental complaint, and denied Plaintiff's Motion for Exercise Rule 53.2
B. Factual Background
This suit alleges violations of Plaintiff's 4th, 5th, 6th, 8th, 13th, and 14th Amendment rights Texas under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics based on interactions on February 24-26, 2022, with Border Patrol Agents (“Agents”) near Del Rio, Texas. (Mot. to Adjust 1; Am. Compl. 1-4.) Plaintiff brought suit against the Agents in their individual capacities as well as Del Rio Border Patrol Station. (Mot. to Adjust 1.) He seeks damages of $50,000,000.00 for mental anguish and other damages incurred by him and his family. (Mot. for Exercise Rule 53.2.)
Plaintiff's Amended Complaint alleges the Agents “acted unlawfully and with negligence.” (Am. Compl. 4.) To the extent the Court liberally construes this as a claim for relief under the Federal Torts Claims Act (FTCA), the Court should dismiss this claim because Plaintiff failed to exhaust administrative remedies. 28 U.S.C. § 2675(a).
Using the motion to dismiss standard and taking all of Plaintiff's well-pleaded allegations as true, this suit is based on the following facts: Plaintiff, as well as his 4 passengers, were stopped by U.S Border Patrol agents outside of Del Rio, Texas on their way to San Antonio, Texas from Eagle Pass, Texas in a truck driven by Plaintiff. (Spears Hr'g, Dec. 20, 2022, at 1:35:06-1:35:32 and 1:36:11-1:37:20.) The truck belonged to Plaintiff's grandmother and bore Arkansas plates. (Spears Hr'g at 1:40:09-1:40:13.) The agents then told Plaintiff he was being taken in for questioning regarding the citizenship of his passengers. (Spears Hr'g at 1:38:10-1:38:35; Mot. to Adjust 2.) Plaintiff was then placed into an agent's vehicle without a seatbelt and without disinfecting the seat. (Mot. to Adjust 2.) The agents then drove off in Plaintiff's truck to search it for hidden compartments and took his three cell phones. (Mot. to Adjust 1-2.)
Plaintiff remained in a holding facility for 3 days. (Mot. to Adjust 2.) While at the facility, Plaintiff slept on the floor or on a toilet, was unable to shower, was not tested for COVID-19, was not asked about his allergies nor medical history, did not have his vital signs taken, and was not given an hour per day outside. (Mot. to Adjust 2.) Plaintiff did not eat during this period, although whether that was because no food was offered to Plaintiff or because Plaintiff did not want to eat as he was not asked about his allergies is unclear. (Mot. to Adjust 2.) Further, Plaintiff was not presented to a judge or grand jury, offered bail, given grievance forms, or able to call his family or an attorney while being held. (Mot. to Adjust 2; Spears Hr'g at 1:45:03.) Additionally, Plaintiff received no medical attention when he was wheezing from his asthma. (Spears Hr'g 1:42:40-1:43:00.) Plaintiff was finally released on February 26, 2022; he was never charged with a crime. (Aff. 1.) The Agents called Plaintiff a cab, which he had to pay for himself. (Mot. to Adjust 2.) Plaintiff received his truck and three cell phones seized by the agents after one hundred days. (Spears Hr'g at 1:41:25-1:41:30.)
Based on these facts, Plaintiff alleges the Agents violated his 4th Amendment right to be free from unreasonable searches and seizures, the 5th Amendment Takings Clause, his 6th Amendment right to counsel, the 8th Amendment prohibition against cruel and unusual punishment, the 13th Amendment prohibition against slavery, and his 14th Amendment equal protection rights. (Mot. to Adjust 2; Aff. 1-3.)
II. DISCUSSION
A. Motion to Set the Record Straight
First, the undersigned will analyze Plaintiff's Motion to Set the Record Straight. (ECF No. 39.) The exact purpose of this Motion is unclear; however, it appears Plaintiff is objecting to the undersigned's Order Denying without Prejudice his Motion for Hearing and Judgment by Default based on an argument that the Defendants were properly served through service upon “[t]he Office of Ashley Hoff.” (Id. at 1-2.) Because Plaintiff is proceeding pro se, the undersigned should liberally construe his filings. United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996) (per curium); see also Cooper v. Sherriff, Lubbock Cnty., 929 F.2d 1078, 1081 (5th Cir. 1991) (per curium). Further, filings should be construed based off their substance, as opposed to the labels assigned to them by the filing party. United States v. Cardenas, 13 F.4th 380, 384 (5th Cir. 2021); Med. Components, Inc. v. Osiris Med., Inc., 226 F.Supp.3d 753, 760 (W.D. Tex. 2013). Accordingly, the Motion is construed as a motion for relief from an order under Federal Rule of Civil Procedure 60(b). Under Rule 60(b), the court may relieve a party. . . from a final. . . order for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.”Fed. R. Civ. P. 60(b). None of these bases are alleged by Plaintiff or applicable here. Further, because the Defendants had not been served at the time of Plaintiff's Motion for Hearing and Judgment by Default, the denial of his Motion was proper. See Order, ECF No. 38; Summons, ECF Nos. 57-59; Kajeet, Inc. v. Infoweise Pty, Ltd., No. 6:21-CV-00704, 2022 U.S. LEXIS 125410, at *6 (W.D. Tex. July 15, 2022). Accordingly, the undersigned recommends this Motion [ECF No. 39] be DENIED.
B. Motion to Dismiss under 12(b)(6)
i. Applicable Standard
“A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief ....” Fed.R.Civ.P. 8(a)(2). Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a complaint that “fail[s] to state a claim upon which relief can be granted ....” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Accordingly, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of . . . entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations, quotations, and alterations omitted); accord Ackerson v. Bean Dredging LLC, 589 F.3d 196, 208 (5th Cir. 2009). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Instead, “[f]actual allegations must be enough to raise a right to relief above the speculative level ....” Twombly, 550 U.S. at 555. That is, there must be “a ‘showing,'
rather than a blanket assertion, of entitlement to relief.” Id. at 555 n.3 (quoting Fed.R.Civ.P. 8(a)(2)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘shown' - ‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (alteration omitted) (quoting Fed.R.Civ.P. 8(a)(2)).
A Rule 12(b)(6) motion to dismiss “is viewed with disfavor and is rarely granted.” Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (quotation omitted); accord Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). Therefore, the complaint must be liberally construed in the plaintiff's favor, all reasonable inferences must be drawn in favor of the plaintiff's claims, and the factual allegations of the complaint must be taken as true. See Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986). In ruling on a Rule 12(b)(6) motion to dismiss, courts generally should not go beyond the pleadings and must limit their inquiry to the facts stated in the complaint. See Fed.R.Civ.P. 12(d); Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996).
ii. Application
Bivens
In Bivens v. Six Unknown Fed. Narcotics Agents, the Supreme Court created a cause of action against federal agents for constitutional violations. 403 U.S. 388, 389 (1971). Specifically, the Court in Bivens created a cause of action for an alleged violation of the 4th Amendment by agents of the “Federal Bureau of Narcotics.” Id. at 389, 397. Since 1971, the Supreme Court has only extended the cause of action to two very specific circumstances. First, the Court applied it to a 5th Amendment claim for sex discrimination against a member of Congress. Davis v. Passman, 442 U.S. 228, 229 (1979). Then, the Court extended it to an 8th Amendment medical attention claim for the death of a prisoner against Federal prison officials. Carlson v. Green, 446 U.S. 14, 16-18 (1980). However, these are the only two cases the Court has chosen to imply a cause of action under Bivens since its creation in 1971. Egbert v. Boule, 142 S.Ct. 1793, 1802 (2022); Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (listing cases in which the Supreme Court has declined to imply a cause of action).
In deciding whether to recognize a Bivens action in a particular case, courts use a two-part test. Egbert, 142 S.Ct. at 1803. The first step asks, “whether the case presents ‘a new Bivens context' - i.e. is it ‘meaningfully]' different from the three cases in which the Court has implied a damages action.” Id. (quoting Abbasi, 582 U.S. at 147). If the claim does arise in a new context, “a Bivens remedy is unavailable if there are ‘special factors' indicating the judiciary is at least arguably less equipped than Congress” to create a cause of action for damages. Although the test is often stated in two parts, the analysis is “often resolve[d] to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert, 142 S.Ct. at 1803. Further “if Congress already has provided, or has authorized the Executive to provide, ‘an alternate remedial structure,'” “that alone” is a special factor showing creation of Bivens remedy is not appropriate. Id. at 1803-04.
a. New Context
The first step of the Bivens inquiry analyzes whether the claim at issue “presents ‘a new Bivens context.'” Egbert, 142 S.Ct. at 1803. In Ziglar v. Abbasi, the Supreme Court gave a nonexhaustive list of factors for determining whether the case presents a new context. Abbasi, 582 U.S. at 140. Those factors 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 emergency to be confronted; the statute 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.” Id. The 5th Circuit has also stated that Bivens is limited to those three specific cases recognized by the Supreme Court - “virtually everything else is a ‘new context.'” Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020) (quoting Abbasi, 582 U.S. at 148). Additionally, a claim can arise in a new context even if it involves the same constitutional amendment as one of the three cases recognized by the Supreme Court. Hernandez v. Mesa,140 S.Ct. 735, 743 (2020).
4th Amendment
Plaintiff's 4th Amendment search and seizure claim presents a new context. Bivens itself involves an alleged violation of the Fourth Amendment for an unreasonable search. 403 U.S. at 389, 397. However, many of the factors suggest Plaintiff's claim presents a new context: the Federal agents involved are employed by U.S. Border Patrol, not the Federal Bureau of Narcotics; the interaction between Plaintiff and Defendants occurred near the Mexican border and at a detention center, not a private residence; and Plaintiff's claim implicates matters of national security and immigration, factors not considered in Bivens. Therefore, Plaintiff's claims present a new context.
5th Amendment
Plaintiff's Fifth Amendment Takings claim also involves a new context. One case in the Bivens' trilogy involved a violation of the plaintiff's Fifth Amendment rights. Davis, 442 U.S. at 229. However, some distinctions can be made between this case and Davis: this case involves a Taking Clause claim, not a claim based on sex discrimination, and the federal actors here are U.S. Border Patrol agents, not congressmen. Further, Plaintiff cannot successfully assert a Takings Clause claim because his property was not taken for public use. Whitehurst v. United States, 275 F. App'x. 424, 425 (5th Cir. 2008) (per curium). Accordingly, this claim presents a new context and is not a cognizable cause of action.
6th Amendment
Even more clearly, Plaintiff's Sixth Amendment claim for denial of his right to counsel presents a new context. First, his claim involves a different constitutional amendment than any cases in the Bivens trilogy. Further, as mentioned above, none of the cases in the trilogy include a stop by U.S. Border Patrol agents, an individual temporarily held at a Border Patrol center for questioning, or immigration and national security concerns. Accordingly, this claim presents a new context.
8th Amendment
Before addressing Plaintiff's Eighth Amendment claim, the undersigned would like to address that, although Plaintiff pleads an Eighth Amendment violation, he likely is actually raising a Fifth Amendment claim. The Eighth Amendment provides protections for prisoners convicted of crimes; the Fifth Amendment, however, applies to claims of pretrial detainees as to the conditions of their confinement. Walters v. LaSalle Corr., No. EP-22-CV-00035, 2022 U.S. Dist. LEXIS 110167, at *18-19 (W.D. Tex. June 21, 2022). However, either way, this claim provides a new context. One of the cases recognized by the Supreme Court, Carlson v. Green, implied a Bivens cause of action based on the Eighth Amendment due to the death of a prisoner in custody. Carlson v. Green, 446 U.S. 14, 16-18 (1980). Plaintiff's case again differs from Carlson in many ways; however, the fact that he was a detainee and not prisoner is enough to present a different context. Rroku v. Cole, 726 F. App'x. 201, 206 (5th Cir. 2018) (per curium). Further, the Supreme Court has declined to find the prison cases presented to it arose in the same context. E.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001); Minneci v. Pollard, 565 U.S. 118, 126-27 (2012). Therefore, this claim arises in a new Bivens context.
13th Amendment
Plaintiff's Thirteenth Amendment claim also presents a new context. First, his claim involves a different constitutional amendment than the Bivens trilogy. Further, as mentioned above, none of the cases in the trilogy include a stop by U.S. Border Patrol agents, an individual temporarily held at a Border Patrol center for questioning, or immigration and national security concerns. Accordingly, this claim presents a new context.
14th Amendment
Finally, Plaintiff's Fourteenth Amendment claim arises in a new context. As with his 13th Amendment claim, this claim involves a different amendment and entirely different circumstances than the three Bivens cases recognized by the Supreme Court. Further, as the Fourteenth Amendment protects individuals from constitutional violations by the states, it is inapplicable in this case against federal actors. See U.S. Const. amend. XIV.
b. Special Factors
The Supreme Court recently cautioned against implying a Bivens cause of action against Border Patrol agents because special factors advised against the extension. Egbert, 142 S.Ct. at 1804-07. The Court held that, because the Plaintiff's interaction with the Border Patrol agent was due to “Border Patrol's mandate to ‘interdic[t] persons attempting to illegally enter or exit the United States or goods being illegally imported into or exported from the United States,” the matter was “intimately related to foreign policy and national security, and, therefore, a Bivens cause of action may not lie.” Id. at 1804-05. Further, it held “the Judiciary is comparatively ill suited to decide whether a damages remedy against any Border Patrol Agent is appropriate.” Id. at 1805 (emphasis added). Additionally, the Court in Egbert held that the U.S. Border Patrol has an alternative remedial process through its acceptance and review of grievances under 8 CFR §§ 287.10(a)-(b), which also would negate the extension of Bivens. Id. at 1806.
The same factors apply here. Plaintiff alleges constitutional violations by Defendants, also Border Patrol agents, due to their investigation into the citizenship of the passengers of Plaintiff's vehicle near the border. (Spears Hr'g at 1:35:06-1:35:32; 1:36:11-1:37:20; 1:38:101:38:35). These actions were in furtherance of Border Patrol's mandate, as stated in Egbert, and is therefore closely connected to national security. Further, the same grievance process analyzed in Egbert is available to Plaintiff. Accordingly, the undersigned does not recommend extending the Bivens doctrine to any of Plaintiff's claims.
Qualified Immunity
Additionally, the individual Defendants assert a qualified immunity defense to Plaintiff's Bivens claims. (Mot. to Dismiss 10, ECF No. 60.) However, “the Bivens question is antecedent to the questions of qualified immunity.” Oliva, 973 F.3d at 441 (quoting Hernandez v. Mesa, 137 S.Ct. 2003, 2006 (2017) (per curium) (internal quotations omitted). If a plaintiff “fail[s] to plead a cognizable Bivens cause of action, [the] court does not need to address...qualified immunity as to that claim.” Canada v. U.S. IRS, 950 F.3d 299, 312 n.15 (5th Cir. 2020). Accordingly, the undersigned does not address Defendants' qualified immunity claims.
Agency Claims
Finally, the undersigned will address Plaintiff's Bivens claim against “Del Rio Border Patrol Station.” Bivens actions do not apply to claims against federal agencies. FDIC v. Meyer, 510 U.S. 471, 473 (1994). U.S. Border Patrol is a federal agency. See Gilson v. Alvarez, No. EP-21-CV-00110-DCG, 2022 U.S. Dist. LEXIS 143321, at *16 (W.D. Tex. Aug. 11, 2022). Therefore, a Bivens action cannot be brought against the U.S. Border Patrol. Accordingly, to the extent the Court finds a claim against U.S. Border Patrol has survived Plaintiff's amendments to his complaint, the Court should dismiss the claim.
C. Leave to Amend Complaint
“[P]ro se litigants[s] should be offered an opportunity to amend [their] complaint before it is dismissed.” Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009) (per curiam). Granting leave to amend is not required, however, if the plaintiff has already pleaded his "best case." Id. (quoting Bazriwx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam)). “A Spears hearing is in nature of an amended complaint . . . .” Hirsch v. Fortner, 192 F. App'x. 279, 279 (5th Cir. 2006) (citing Adams v. Hansen, 906 F.2d 192, 194 (5th Cir. 1990)). The undersigned allowed the Plaintiff to further develop his claims at a Spears hearing on December 20, 2022. (Order, ECF No. 62.) Additionally, Plaintiff has submitted multiple documents clarifying his claims to the undersigned. (Am. Compl., ECF No. 11; Mot. to Set the R. Straight, ECF No. 39; Mot. to Adjust and Introduce, ECF No. 52; Supp. Statement, ECF No. 65; Mot. for Exercise Rule 53.2, ECF No. 69.) Therefore, it appears Plaintiff has already presented his “best case,” and further amendment of his complaint is not necessary. See Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 423 (5th Cir. 2017) (per curiam).
A court may also dismiss claims with prejudice if any amendment would be futile. HCB Fin Corp. v. McPherson, 8 F.4th 335, 346 (5th Cir. 2021). If the defects of the complaint cannot be cured, amendment of the complaint is futile. See id. Plaintiff alleges Bivens claims against Border Patrol agents; such claims against this type of defendant have no basis in law as explained in this Report and Recommendation. Accordingly, any amendment to the complaint is futile, and Defendants' Motion should be granted without providing Plaintiff with any further opportunity to amend his complaint.
III. CONCLUSION & NOTICE
For the reasons set forth in this Report and Recommendation, it is RECOMMENDED that Plaintiff's Motion to Set the Record Straight [ECF No. 39] be DENIED and Defendants' Motion to Dismiss [ECF No. 60] be GRANTED.
The Parties may wish to file objections to the above recommendations. Failure to file written objections to the findings and recommendations contained in this Report and Recommendation within fourteen (14) days from the date of its receipt shall bar an aggrieved party from receiving de novo review by the District Court of the findings and recommendations contained herein, see 28 U.S.C. 636(b)(1)(C), and shall bar an aggrieved party, except on grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). This Report and Recommendation disposes of all issues and controversies referred to the undersigned in the above-captioned cause. The Clerk shall terminate the referral.