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Biron v. Federal Medical Center ("FMC")

United States District Court, N.D. Texas, Fort Worth Division

July 23, 2019

LISA BIRON, Plaintiff,


         Came on 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.



         On 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] 1 at PageID[2] 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.

         In her 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.

         Plaintiff 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.


         Grounds of the Motion

         Defendants maintain that the personal capacity claims must be dismissed because plaintiff cannot show that a Bivens[3] 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).

         Defendants 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.


         Applicable Legal Standards

         A. Fed.R.Civ.P. 12 (b) (1)

         Dismissal 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 ...

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