United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE
the Court are (1) Defendant Mr. Leap's Rule 12(b)(6)
Motion to Dismiss (ECF No. 16), asking the Court to dismiss
Plaintiff's First Amendment claims brought under
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 389 (1971), and (2)
Plaintiff Ivan Begay's “Motion for Relief, from
‘Order' Entered May 22, 2018, Pursuant to Rule
60(b)(1).” (ECF No. 22). For the reasons stated, the
District Court should GRANT Defendant's Motion, and
Plaintiff's Motion is DENIED.
September 26, 2017, Plaintiff, a federal prisoner, serving a
302-month sentence for aggravated sexual abuse on an Indian
reservation, filed a complaint asserting claims against
federal prison officials for violating his First Amendment
rights and requesting damages as compensation. Compl. 1, 4-6
(ECF No. 3); Def.'s Br. 6-7 (ECF No. 17). Though
Plaintiff has been housed at several different federal
corrections institutions (“F.C.I.”s), the
relevant events occurred at F.C.I. Seagoville, Texas in
October 2015. Compl. 6.
alleges that Special Investigative Services
(“S.I.S”) Agents Leap and Arajo interviewed him,
along with an agent from the Office of Inspector General,
about Ms. Dunn, an F.C.I. Seagoville employee. Id.;
Def.'s Br. 7. Plaintiff maintains that the agents
threatened him with additional prison time if he did not
cooperate with the investigation. Compl 6. After they
questioned him, Plaintiff states that he encountered Ms.
Dunn, told her about the investigation, and asked her whether
he needed an attorney. Id. 7. Later, Plaintiff
recounts, Agents Leap and Arajo summoned him and demanded to
know what he said to Ms. Dunn. Id. Plaintiff told
the agents that he asked her why the agents were questioning
him about her and threatening him with additional prison time
if he withheld any information or made any false statements,
and whether he needed his own attorney. Id.
Plaintiff claims, as a result, that Mr. Leap told him that he
had ruined his stay at Seagoville. Id. Plaintiff
maintains that agents Leap and Arajo were “so upset,
they close [sic] the entire Seagoville Compound, to prevent
[him] from, speaking to [his] friends.” Id.
Plaintiff further asserts that he was later placed in a
special housing unit; while there, Mr. Leap came to
Plaintiff's door and told him that he had also ruined his
chance to be transferred to F.C.I. Englewood, Colorado.
Id. 8. Plaintiff asked, “What did you do? Is
this your doing?” Id. And, Mr. Leap allegedly
replied, “Yup!” Id. Plaintiff was later
transferred instead to F.C.I. Fort Dix, New Jersey.
Id. Plaintiff claims that Mr. Leap effectuated his
transfer to Fort Dix as retaliation for Plaintiff's
exercising his First Amendment right. Id. 4.
response to Plaintiff's Complaint, Defendant Leap filed
his Motion to Dismiss, arguing that the Court should dismiss
Plaintiff's claims against him on grounds of qualified
immunity and failure to state a claim under Bivens.
Plaintiff filed a response, (ECF No. 18), but later filed a
motion (ECF No. 20) requesting permission to file an amended
response to Defendant's Motion to Dismiss. The Court
granted Plaintiff's request and required him to file a
consolidated response by June 1, 2018. May 22, 2018 Order
(ECF No. 21). Plaintiff did not file a consolidated response
and instead filed his “Motion for Relief, from
‘Order' Entered May 22, 2018, Pursuant to Rule
60(b)(1).” (ECF No. 22). Defendant responded (ECF No.
24) to Plaintiff's Motion and subsequent “Notice of
Relation Back Amendment.” Notice (ECF No. 23.).
Accordingly, both motions are fully briefed and ripe for
Defendant's Motion to Dismiss Legal Standards
deciding a 12(b)(6) motion for failure to state a claim, the
court “accepts all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.”
In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007) (quotation marks and citation omitted).
To survive Defendant's Motion to Dismiss, therefore,
Plaintiff's Complaint must contain sufficient factual
matter to state a claim for relief that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “To be plausible, the complaint's
‘[f]actual allegations must be enough to raise a right
to relief above the speculative level.'” In re
Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210
(5th Cir. 2010) (quoting Twombly, 550 U.S. at 555).
This pleading standard does not require
“‘detailed factual allegations, '” but
it does demand more than an unadorned accusation devoid of
factual support. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 555).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw a
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (citing
Twombly, 550 U.S. at 556). “[A] formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555 (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
“While legal conclusions can provide the framework of a
complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. Where
the facts do not permit the Court to infer more than the mere
possibility of misconduct, the Complaint has stopped short of
showing that Plaintiff is plausibly entitled to relief.
Id. at 678 (citing Twombly, 550 U.S. at
deciding a Rule 12(b)(6) motion, a court may not look beyond
the pleadings. Spivey v. Robertson, 197 F.3d 772,
774 (5th Cir. 1999). However, the pleadings, for the purpose
of determining a Rule 12(b)(6) motion, include documents
attached to the pleadings and to the motion to dismiss so
long as they “are referred to in the plaintiff's
complaint and are central to [his] claim.”
Causey v. Sewell Cadillac-Chevrolet, Inc.,
394 F.3d 285, 288 (5th Cir. 2004) (citing Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th
Bivens, the United States Supreme Court for the
first time “recognized ‘an implied private action
for damages against federal officers alleged to have violated
a citizen's constitutional rights, '”
specifically, under the Fourth Amendment. Butts v.
Martin, 877 F.3d 571, 587 (5th Cir. 2017) (quoting
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66
(2001); citing Bivens, 403 U.S. at 388). Unlike the
multitude of claims that may be brought against state
officials under 42 U.S.C. § 1983, “a
Bivens remedy is not available for all
constitutional violations.” Id.; see also
Iqbal, 556 U.S. at 675-76 (“In the limited
settings where Bivens does apply, the implied cause
of action is the ‘federal analog to suits brought
against state officials under . . . 42 U.S.C. §
1983.'”) (citations omitted).
decade after Bivens, the Supreme Court decided two
cases in which it recognized an implied cause of action
outside of the Fourth Amendment context; in Davis v.
Passman, 442 U.S. 228 (1979), the Court held that
“the Fifth Amendment Due Process Clause gave [the
petitioner] a damages remedy for gender discrimination,
” and in Carlson v. Green, 446 U.S. 14 (1980),
the Court held that the “Eighth Amendment Cruel and
Unusual Punishments Clause gave [a prisoner's estate] a
damages remedy for failure to provide adequate medical
treatment.” Ziglar v. Abbasi, 137 S.Ct. 1843,
1854-55 (2017). “[Those] three cases-Bivens,
Davis, and Carlson-represent the only instances
in which the Court has approved of an implied damages remedy
under the Constitution itself.” Id. at 1855.
And since Carlson, the Court has “notabl[y]
change[d] . . . [its] approach to recognizing implied causes
of action . . . ma[king] clear that expanding the
Bivens remedy is now a ‘disfavored'
judicial activity.” Id. at 1857 (citing
Iqbal, 556 U.S. at 675).
expanding Bivens is now a disfavored judicial
activity, the Supreme Court has not foreclosed the
possibility. The Supreme Court held that in considering a
request for a new Bivens remedy, it first looks to
“whether any alternative, existing process for
protecting the interest amounts to a convincing reason for
the Judicial Branch to refrain from providing a new and
freestanding remedy in damages, ” and second, even if
there is no alternative, whether there are “any special
factors counselling hesitation before authorizing a new kind
of federal litigation.” Wilkie v. Robbins, 551
U.S. 537, 550 (2007) (citing Bush v. Lucas, 462 U.S.
367, 378 (1983)). The Supreme Court has not defined
“special factors counselling hesitation, ” but
has noted that they encompass those things that cause a court
to hesitate before determining that it “is well suited,
absent congressional action or instruction, to consider and
weigh the costs and benefits of allowing a damages action to
proceed.” Ziglar, 137 S.Ct. at 1857-58.
Implying new causes of action under the Constitution
implicates separation-of-powers concerns such that