United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
for consideration the motion of defendants, Federal Medical
Center ("FMC") Carswell Warden Jody Upton
("Warden"), FMC Carswell Psychologist Leticia A.
Armstrong ("Armstrong"), and FMC Carswell
Psychologist E. Dixon ("Dixon"), to dismiss
plaintiff's first amended complaint. The court, having
considered the motion, the response of plaintiff, Lisa Biron,
the reply, the record, and applicable authorities, finds that
the motion should be granted.
January 31, 2019, plaintiff filed a "Civil Complaint for
Damages and Injunctive and Declaratory Relief" in the
District Court of Tarrant County, Texas. 141st Judicial
District. Doc. 1 at PageID 12. On April 22, 2019, defendants
filed their notice of removal, bringing the action before
this court pursuant to 2 8 U.S.C. § 1442(a)(1). Doc. 1.
Defendants filed a motion to dismiss. Doc. 11. In response,
plaintiff filed her first verified complaint. Doc. 15.
amended complaint, plaintiff alleges: Plaintiff was convicted
of sex offenses. Doc. 15 ¶ 8 . Plaintiff was directed by
God to research, pray about, study the Bible concerning
God's view of morality involving sex and sexual conduct,
and to record these findings in writing for use in her
rehabilitation and to help educate others. Id.
¶ 13. On or about September 25, 2015, Dixon conducted a
search of plaintiff's locker and removed 144 pages of her
manuscript draft and notes. Id. ¶ 16. The
removal caused plaintiff extreme emotional distress,
resulting in panic attacks and an upset stomach. Id.
¶ 18. On or about September 30, 2015, plaintiff sent an
email to Warden asking for help, but he refused to intervene.
Id. ¶ 23. On or about October 15, 2015,
Armstrong, who then had plaintiff's writing, told
plaintiff that the writing would not be returned to her
because it was sexually explicit and constituted "hard
contraband." Id. ¶ 19. The taking of
plaintiff's writing served solely as forced treatment to
alter her behavior. Id. ¶ 24. On May 2, 2017,
plaintiff received the final denial of her administrative
remedy regarding the writing. Id. ¶ 27.
says that she brings claims under the Fifth Amendment's
Due Process and Equal Protection Clauses, the Religious
Freedom Restoration Act, 42 U.S.C. §§ 2000bb to
2000bb-4 ("RFRA"), the Administrative Procedures
Act ("APA"), the First Amendment's Free
Exercise, Freedom of Expression, and Establishment Clauses,
and for declaratory judgment and injunctive relief. Doc. 15
at ¶ 2. She sues Warden in his official capacity and
Alexander and Dixon in their official and individual
capacities. Id. ¶¶ 6-7.
of the Motion
maintain that the personal capacity claims must be dismissed
because plaintiff cannot show that a
Bivens remedy is available; nor can she show that
a claim for money damages is authorized by RFRA or any other
source of law. Further, even if such claims were possible,
defendants are entitled to qualified immunity, and the
challenge to sex offender treatment is barred by Heck v.
Humphrey, 512 U.S. 477 (1994).
maintain that the official capacity claims must be dismissed
under the doctrine of derivative jurisdiction, since the
state court did not have jurisdiction over those claims. In
addition, no jurisdiction exists for any claim relating to
sex offender treatment since plaintiff is no longer housed at
FMC Carswell. Doc. 17 at 1-2.
Fed.R.Civ.P. 12 (b) (1)
of a case is proper under Rule 12(b)(1) of the Federal Rules
of Civil Procedure when the court lacks the statutory or
constitutional power to adjudicate the case. Home
Builders Ass'n of Miss., Inc. v. City of Madison,
Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). When
considering a motion to dismiss for lack of subject matter
jurisdiction, the court construes the allegations of the
complaint favorably to the pleader. Spector v. L Q Motor
Inns, Inc., 517 F.2d 278, 281 (5th Cir. 1975). However,
the court is not limited to a consideration of the
allegations of the complaint in deciding whether subject
matter jurisdiction exists. Williamson v. Tucker,
645 F.2d 404, 413 (5th Cir. 1981). The court may consider
conflicting evidence and decide for itself the factual issues
that determine jurisdiction. Id. Because of the
limited nature of federal court jurisdiction, there is a
presumption against its existence. See Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365,
374 (1978); McMutt v. General Motors ...