Opinion
Civil Action 5:20-CV-81
07-19-2021
GILBERTO GOMEZ VICENTE, INDIVIDUALLY AS THE SURVIVING FATHER OF CLAUDIA PATRICIA GOMEZ GONZALEZ AND AS HEIR-AT-LAW TO THE ESTATE OF CLAUDIA PATRICIA GOMEZ GONZALEZ, ET AL., Plaintiffs, v. UNITED STATES OF AMERICA; ROMUALDO BARRERA, AGENT FOR THE UNITED STATES B PATROL IN HIS INDIVIDUAL CAPACITY; AND DOES 1-20, AGENTS FOR THE UNITED STATES BORDER PATROL, IN THEIR INDIVIDUAL CAPACITIES, Defendants.
REPORT AND RECOMMENDATION
John A. Kazen United States Magistrate Judge
Before the Court is Defendant Romualdo Barrera's Motion to Dismiss Plaintiffs' Bivens Claims. (Dkt. No. 30). Defendant asks that the Court dismiss claims 3, 4, 5, and 6 of the complaint, (Dkt. No. 1). For the reasons discussed below, this Court recommends that the District Judge GRANT the motion.
I. Background
The complaint states that on May 23, 2018, Claudia Patricia Gomez Gonzalez
(“Claudia”) and a group of others were traveling along a road in Rio Bravo, Texas, a small town on the border of the Rio Grande River. (Dkt. No. 1 at 5). The group of travelers, including Claudia, then came into contact with a U.S. Border Patrol Agent. (Id. at 5). Plaintiffs believe this to be Defendant Romualdo Barrera (“Barrera”); if incorrect, Plaintiffs believe that the agent was one of Defendant Does 1-20. (Id.). The group was located in the corner of a private, residential, fenced-in lot with overgrown weeds and brush when they came into contact with Defendant Barrera. (Id.).
Upon coming into contact with Defendant Barrera, two members of the group ran toward the river. (Id.). Two other members ran to hide in an abandoned mobile home nearby. (Id.). Claudia and another person stayed in the vacant lot. (Id.).
As the group dispersed, Defendant Barrera drew his gun. (Id.). When Claudia took a step, Defendant Barrera shot her in the head. (Id.). Claudia fell to the ground, landing face down. (Id.). Defendant Barrera then chased the two people who had hidden in the abandoned mobile home. (Id.). Other Border Patrol agents soon arrived at the scene. (Id.).
A local resident heard the gunshot and began to record the incident on video. (Id.). When the video begins, another Border Patrol agent is standing over Claudia's body. (Id.). The agent turned over Claudia's body, showing that Claudia had not died yet. (Id.). The video showed that Claudia continued to breathe and did not die for several minutes. (Id.). The local resident who videotaped the event did not witness anything indicating that Claudia may have posed a threat to Border Patrol agents. (Id.).
After the shooting, United States Customs and Border Protection (“CBP”) issued a press release stating that Claudia and her companions had attacked Defendant Barrera with blunt objects. (Id.). CBP later retracted their original statement and issued a second statement that did not refer to blunt objects or allege that Claudia had assaulted Defendant Barrera. (Id.). Plaintiffs allege that CBP retracted its initial statement after concluding that Defendant Barrera's claims that Claudia assaulted him were not credible. (Id.). Since then, the FBI has opened a criminal investigation against Agent Barrera. (See, e.g., Dkt. No. 45).
Plaintiffs also filed the instant complaint in federal court. Plaintiffs' complaint sets forth eight causes of action. The third, fourth, fifth, and sixth claims are Bivens claims against Defendant Barrera and Defendant Does 1-20. (Dkt. No. 1 at 9-13). These are the only claims challenged in the motion to dismiss.
II. Legal Standard
Defendant moves for partial dismissal of Plaintiffs' claims under Fed.R.Civ.P. 12(b)(6). (Dkt. No. 30 at 4). In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must determine whether a plaintiff has stated a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). At the motion to dismiss stage, courts are “limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)).
To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotations omitted). “[F]acial plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). This does not require detailed factual allegations but does require “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. The Court must “accept as true all well-pleaded facts.” Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 417 (5th Cir. 2010). However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
A claim raised under § 1983 cannot stand if it is not predicated on a violation of federal or constitutional law. West v. Atkins, 487 U.S. 42, 48 (1988). In § 1983 cases against a public official, the plaintiff must meet a heightened pleading standard. Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996). That heightened standard requires that a complaint “state with factual detail and particularity the basis for the claim which necessarily includes why the defendant-official cannot successfully maintain the defense of immunity.” Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). By contrast, the heightened pleading standard does not apply in § 1983 claims against a municipality because “municipalities do not enjoy immunity from suit-either absolute or qualified- under § 1983.” Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (5th Cir. 1993).
III. Discussion
Bivens actions allow a plaintiff to sue for damages when federal agents have violated the plaintiff's constitutional rights. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396-97 (1971). However, the U.S. Constitution does not explicitly provide for this relief. Id. Rather, the Supreme Court held in Bivens that the Constitution creates an implied cause of action because, without the ability to enforce their rights, the Constitution does not amount to more than words on a page. Id.
More recently in Ziglar v. Abbasi, the Supreme Court reviewed its decision in Bivens with a fresh concern for separation-of-powers principles. 137 S.Ct. 1843, 1857 (2017). Noting a swing in the judicial weathervane, the Court stated that “expanding the Bivens remedy is now a ‘disfavored' judicial activity.” Id. (citing Iqbal, 556 U.S. at 675). The Court explained that expanding Bivens may improperly encroach on Congress's authority to craft statutes that were better suited to enforcing constitutional rights. Id. at 1857-58 (“It is not necessarily a judicial function to establish whole categories of cases in which federal officers must defend against personal liability claims in the complex sphere of litigation.”). The Court's analysis focused on one question: who is better equipped to determine whether the Constitution provides a damages remedy in a particular situation-Congress, or the courts? Id. at 1857 (citing Bush v. Lucas, 462 U.S. 367, 380 (1983)).
The Court's analysis ultimately yielded a two-step approach for determining whether a Bivens claim may proceed. Hernandez v. Mesa, 140 S.Ct. 735, 743 (2020). First, courts must determine whether the Bivens claim at issue arises in a new context or whether the claim proceeds in the same context as one of the Supreme Court's previously blessed Bivens cases. Id. (citing Correctional Services Corp. v. Malesko, 534 U.S. 61, 68 (2001)). If the case proceeds in the same context as a previous Bivens claim, the court's inquiry is complete, and the claim survives the motion to dismiss. See Id. However, if the case arises in a different context from the previous claims, the court must then determine whether special factors counsel the court against considering this new kind of Bivens claim without express congressional approval. Mesa, 140 S.Ct. at 743 (citing Abbasi, 137 S.Ct. at 1857). If the answer is yes, the court must dismiss the claim. Id.
A. New Context
To determine whether a case provides a new Bivens context, the Court must evaluate whether the case is different in a meaningful way from previous Bivens cases decided by the Supreme Court. Abbasi, 137 S.Ct. at 1859. The Supreme Court has explained that
A case might differ in a meaningful way because of 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 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.Id. at 1860.
The Supreme Court has only allowed Bivens claims to proceed in three other cases: Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (approving a Fourth Amendment claim against federal agents for raiding the defendant's home without a warrant); Davis v. Passman, 442 U.S. 228 (1979) (approving a Fifth Amendment Due Process Clause claim against a congressman for gender discrimination); and Carlson v. Green, 446 U.S. 14 (1980) (approving an Eighth Amendment claim against federal prison officials for failing to provide medical treatment). “Virtually everything else is a new context.” Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020).
Although a claim should be brought under one or more of the same amendments in the sanctioned cases, a claim nonetheless “may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized.” Mesa, 140 S.Ct. at 743 (comparing Carlson, 446 U.S. at 16-18 with Malesko, 534 U.S. at 71-74). Put simply, the case at hand must mirror all the same meaningful facts in any one of the previous three cases in order to survive a motion to dismiss. “It is not enough even if a plaintiff asserts a violation of the same clause of the same amendment in the same way.” Oliva, 973 F.3d at 442 (emphasis in original) (citing Cantu v. Moody, 933 F.3d 414, 422 (5th Cir. 2019)).
Defendant's motion to dismiss attacks only four of the claims in the complaint. (Dkt. No. 30 at 5). Two of those claims-claims 3 and 4-are brought under the Fourth Amendment. (Dkt. No. 1 at 9-10). Bivens is the only Fourth Amendment case that the Supreme Court has allowed to proceed under an implied-cause-of-action theory. Therefore, claims 3 and 4 cannot survive the motion to dismiss if this case differs in any meaningful way from Bivens. See Abassi, 137 S.Ct. at 1859.
The last two claims that Defendant's motion attacks are claims 5 and 6. (Dkt. No. 30 at 5). Those two claims are brought under the Fifth Amendment. (Dkt. No. 1 at 12- 13). Davis is the only Fifth Amendment case that the Supreme Court has allowed to proceed under an implied-cause-of-action theory. Therefore, claims 5 and 6 cannot survive the motion to dismiss if this case differs in a meaningful way from Davis. See Abassi, 137 S.Ct. at 1859.
In Mesa, a Border Patrol agent standing on U.S. soil shot across the U.S.-Mexico border, killing a Mexican teenager standing on Mexican soil. 140 S.Ct. at 740. The teenager's parents sued for damages under Bivens, arguing that the agent had violated their son's Fourth and Fifth Amendment rights. Id. In reviewing that case, the Supreme Court concluded that all of Plaintiffs' claims arose in a new context than that of Bivens or Davis. Specifically, the Court stated that
once we look beyond the constitutional provisions invoked in Bivens, Davis, and the present case, it is glaringly obvious that petitioners' claims involve a new context, i.e., one that is meaningfully different. Bivens concerned an allegedly unconstitutional arrest and search carried out in New York City, 403 U.S. at 389; Davis concerned alleged sex discrimination on Capitol Hill, 442 U.S. at 230. There is a world of difference between those claims and petitioners' cross-border shooting claims, where “the risk of disruptive intrusion by the Judiciary into the functioning of other branches” is significant. Abbasi, 582 U.S.___, at, 137 S.Ct. 1843.140 S.Ct. at 743-44.
Unlike Mesa, Plaintiffs' pleading asserts that Defendant Barrera shot Claudia near the border rather than across the border. Nonetheless, the shooting arose precisely because Defendant Barrera was charged with securing the border against illegal activity: a fundamentally different context from a warrantless police search in New York City, or a gender-discrimination case on Capitol Hill. Indeed, the Fifth Circuit has noted that “the Supreme Court's recent ruling in Hernandez v. Mesa strongly suggests that proximity to the border alone is sufficient to qualify as a ‘new context' in which Bivens is unavailable.” Angulo v. Brown, 978 F.3d 942, 948 n.3 (5th Cir. 2020) (assuming arguendo that Mesa does not preclude Bivens suits that take place near the border in order to resolve the separate question of qualified immunity presented on appeal).
Moreover, other meaningful facts place Plaintiffs' claim in a new context from that of Bivens and Davis. Defendant Barrera was not only of a different rank from the narcotics officers in Bivens; he was of an entirely different division of federal enforcement. In fact, Customs and Border Protection is not part of the same federal agency as federal drug enforcement.1 This means that Defendant Barrera was not operating under the same legal mandates as the narcotics officers in Bivens. Furthermore, the officers in Bivens were accused of both illegally searching the plaintiff's home without a warrant and of using excessive force when doing so. In the present case, Defendant Barrera seized Claudia on a public street and did not require a warrant. On cursory review, Defendant Barrera's seizure of Claudia appears to have been properly executed; his conduct after the seizure is what gives rise to the claims at issue. “When a claim involves different conduct by different officers from different agencies, courts are hesitant to extend Bivens to a new Fourth Amendment context.” Evans v. U.S. Border Patrol Agents, Civ. No. 7:19-cv-00358, 2020 WL 9066054, at *8 (S.D. Tex. July 20, 2020) (citing Cantu v. Moody, 933 F.3d 414, 423 (5th Cir. 2019)).
It is also apparent that the claims in this case are fundamentally different from the claims in Davis. Davis involved a Fifth Amendment gender discrimination claim in an employment context. The instant case presents no gender discrimination claim and no employment context. While the claims in this case are raised against members of the United States Border Patrol-which fall under the Department of Homeland Security and therefore under the Executive Branch-the claims in Davis were levied against a U.S. Congressman. The claims are not against two different members of different agencies; they are levied against different members of entirely different branches of government. Put differently, the same meaningful facts that diverged from Bivens also diverge from Davis.
The Court concludes that this case presents a new context and proceeds to the second Bivens step.
B. Special Factors
Having found that this case arises in a different context from previous Bivens claims, the Court must next determine whether special factors counsel the Court against extending Bivens to these new claims without express congressional approval. Mesa, 140 S.Ct. at 743 (citing Abbasi, 137 S.Ct. at 1857). In Abassi, the Supreme Court concluded that Congress is generally in a better position to determine whether the public interest would be served by imposing a new substantive legal liability. Abassi, 137 S.Ct. at 1857 (citing Schweiker v. Chilicky, 487 U.S. 412, 426-27 (1988)). This is because “the decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide.” Id. at 1858. In recognition of these principles, the Court concluded that a Bivens claim cannot be entertained if there are “special factors counselling hesitation in the absence of affirmative action by Congress.” Id. at 1857 (citing Carlson, 446 U.S. at 18). Put differently, a Bivens case cannot survive if there are some special factors that give the Court some pause before concluding that the Court is better equipped to provide a damages remedy than Congress. Id. at 1857-58. The courts must have unequivocal confidence in their superior expertise compared to that of Congress. See id.
The Abassi Court provided several helpful examples of what a special factor might look like. For example, “Sometimes there will be doubt because the case arises in a context in which Congress has designed its regulatory authority in a guarded way, making it less likely that Congress would want the Judiciary to interfere.” Id. at 1858 (internal citations omitted). Alternatively, “if there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action.” Id. Notably, “the alternative relief necessary to limit Bivens need not provide the exact same kind of relief Bivens would.” Oliva, 973 F.3d at 444 (citing Minneci v. Pollard, 565 U.S. 118, 129 (2012)). “A special factor is a sound reason to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong.” Canada v. United States, 950 F.3d 299, 309 (5th Cir. 2020) (citing Abassi, 137 S.Ct. at 1858).
In Mesa, the Supreme Court stated that “Since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reason to hesitate before extending Bivens into this field.” Mesa, 140 S.Ct. at 747. The Supreme Court also pointed to an alternative remedial structure that was available to defendants in that case-the Federal Tort Claims Act (FTCA). Id. at 748. The FTCA is considered “the exclusive remedy for most claims against Government employees arising out of their official conduct.” Hui v. Castaneda, 559 U.S. 799, 806 (2010). As noted in Mesa, the FTCA also permits claims brought for a violation of the U.S. Constitution. Mesa, 140 S.Ct. at 747 n.9 (citing 28 U.S.C. § 2679(b)(a)(A)). Based on the foregoing, the Court finds that there are special factors present in this case which counsel hesitation for extending Bivens to a new context. Because Bivens should not be extended to the facts of this case, Plaintiffs have failed “to state a claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6).
IV. Conclusion
The Court RECOMMENDS that the District Judge GRANT Defendant
Romualdo Barrera's Motion to Dismiss Plaintiffs' Bivens Claims. (Dkt. No. 30). The Court RECOMMENDS that the District Judge DISMISS claims 3, 4, 5, and 6 of Plaintiffs' Complaint, (Dkt. No. 1), and that only claims 1, 2, 7, and 8 remain pending before the Court.
V. Notice of Right to Object
Within fourteen days after being served with a copy of this Report and Recommendation, the parties may file written objections to the findings and recommendations proposed above. 28 U.S.C. § 636(b)(1). The District Judge will review de novo those portions of the report or specified proposed findings or recommendations to which the party objects. The District Judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by this Court, and may also receive further evidence or recommit the matter to this Court with instructions. Id. The District Court need not consider frivolous, conclusive, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
If a party does not object within fourteen days, the party forfeits its right to District Court review. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen days after service shall bar an aggrieved party from de novo review by the District Court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the District Court, except on grounds of plain error or manifest injustice.