United States District Court, N.D. Texas, Fort Worth Division
LISA BIRON, (BOP No. 12775-049) Plaintiff,
JODY UPTON, Warden, FMC-Carswell, et al. Defendants.
OPINION AND ORDER GRANTING MOTION TO DISMISS
T. PITTMAN, UNITED STATES DISTRICT JUDGE.
case was recently reassigned from the docket of Judge Reed
O'Connor the docket of the undersigned district judge.
Special Order, ECF No. 55. Now pending is the collective
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) filed by all Defendants. Mot. Dismiss, ECF No. 45.
Plaintiff Lisa A. Biron has filed a response to the motion to
dismiss (ECF No. 53), and Defendants filed a reply (ECF No.
54). After considering the relief sought by Biron, the
record, the briefing and the applicable law, the Court finds
that the Defendants' motion to dismiss must be
GRANTED, and all Biron's claims must be
§ 1915A/1915(e)(2)(B) Initial Screening, Appeal, and
Order of Remand
then an inmate at the Bureau of Prisons' FMC-Carswell
facility, filed a complaint naming as defendants several
officials at FMC-Carswell in their individual and official
capacities, and asserting claims for relief under the First,
Fifth, and Eighth Amendments under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), and seeking monetary damages and declaratory and
injunctive relief. Compl. 2-6, ECF No. 1. In an order and
judgment issued under authority of 28 U.S.C. § 1915A and
1915(e)(2)(B), the then presiding judge dismissed all claims.
Order 1-13, ECF No. 13. Biron appealed. On appeal, the United
States Court of Appeals for the Fifth Circuit affirmed the
dismissal of Biron's Eighth Amendment claim and all
official capacity claims, but vacated the dismissal of the
remaining claims and remanded for further proceedings.
Biron v. Upton, 737 Fed.Appx. 713 (5th Cir. 2018).
After remand, Biron filed a first amended complaint. First
Am. Complaint 1-10, ECF No. 27.
Related Habeas Corpus Cases
the Court recites the claims in Biron's first amended
complaint, it is important to place those claims in context
with her criminal conduct, with prior suits seeking habeas
corpus relief, and with court orders issued during her
criminal prosecution proceedings. Prior to filing this civil
suit seeking relief under Bivens, Biron filed four
separate petitions challenging disciplinary proceedings in
this district under 28 U.S.C. § 2241; Biron v.
Upton, No. 4:14-cv-603-O (N.D. Tex. Aug. 1, 2014) (order
dismissing for lack of jurisdiction); Biron v.
Upton, No. 4:14-cv-627-A (N.D. Tex. Aug. 15, 2014)
(order dismissing for lack of exhaustion); Biron v.
Upton, No. 4:14-cv-772-O (consolidated with
4:14-cv-823-O) (N.D. Tex. June 9, 2015) (order dismissing in
part and denying in part). The background section of the Opinion
and Order issued by the court in case number 4:14-cv-772-O
[Biron] was charged in the United States District Court for
the District of New Hampshire with transportation of a minor
with intent to engage in criminal sexual activity, sexual
exploitation of children, and possession of child
pornography. Resp's App., No. 4:14-CV-823-O, at 6, ECF
No. 19. All charges involved her minor daughter, R.B. On
December 4, 2012, before the criminal trial, the 9th
Circuit-Family Division Court of Manchester, New Hampshire,
ordered that Petitioner “shall not contact or attempt
to contact R.B. either directly or indirectly” and
“shall have no contact with R.B. including third party
contact except that as may be deemed appropriate by and
monitored by DCYF.” [FN- “DCYF” stands for
the Division for Children, Youth and Families of the State of
New Hampshire's Department of Health and Human Services
according to the Department's website.] Id. at
6, 12. Also, on January 3, 2013, before the criminal trial,
the convicting court, as an addendum to its detention order,
ordered that Petitioner “shall have no contact (either
direct or indirect) with the minor victim between now and the
resolution of this case.” Id. at 21. Following
her convictions, Petitioner appealed, but, on November 14,
2014, the First Circuit affirmed the judgment of the
convicting court, and, on March 23, 2015, the Supreme Court
denied a petition for writ of certiorari. Id. at 78;
Order, Biron v. United States, 135 S.Ct. 1576
(2015). Petitioner continues to serve her combined 480-month
term of imprisonment.
Op. and Order 1-2, ECF No. 16, Biron v. Upton,
referenced, prior to Biron's criminal conviction, on
December 4, 2012, the 9th Circuit Family Division Court of
Manchester, New Hampshire, held a “dispositional
hearing” regarding Biron's parental rights with
respect to her daughter. Hearing Order 1-7, Biron v.
Upton, No. 4:14-CV-823-O, ECF No. 19-1, 4-7; ECF No. 19,
Finding that Biron's daughter had suffered abuse, the New
Hampshire, Family Division Court ordered that Biron
“shall not contact or attempt to contact [R.B.] either
directly or indirectly” and “shall have no
contact with [R.B.] including third party contact except that
as may be deemed appropriate by and monitored by DCYF.”
Hearing Order 7, Biron v. Upton, No. 4:14-cv-823-O,
ECF No. 19. Each of Biron's § 2241 petitions
ultimately challenged the Bureau of Prisons (BOP)
disciplinary proceedings brought against Biron for her
attempts, while housed in FMC-Carswell, to make contact with
her minor daughter R.B. See Op. and Order 1-2,
Biron v. Upton, No. 4:14-cv-603-O, ECF No.
4; Mem. Op. and Order 1-2, Biron v. Upton,
No. 4:14-cv-627-A, ECF No. 6; Op. and Order 2-8, Biron v.
Upton, No. 4:14-cv-772-O, ECF No. 16.
Biron's First Amended Complaint
first amended complaint re-asserts violations of the First
and Fifth Amendments to the Constitution over actions taken
by FMC-Carswell officials to attempt to regulate her
continuing efforts to make contact with R.B., including
seeking compensatory and punitive monetary damages and
declaratory relief. First Am. Complaint 1-2, 10, ECF No. 27.
She names as defendants persons associated with FMC-Carswell:
Jody Upton, (then) warden; Lauren Cimperman (Carter), staff
psychologist; Debra Winger, special investigative services
(SIS) officer; Lieutenant Kingsley, SIS officer; and E.
Smith-Branton, identified as a member of the disciplinary
committee. Id. 1, 4. Biron recites numerous claims
against these defendants arising from their actions in
attempting to block her communication with R.B. including (as
numbered by Biron):
¶ 9. On or about June 30, 2014, SIS Officer Wenger
intercepted, stopped, and confiscated a letter mailed by Ms.
Biron to her daughter R.B.
¶ 10. On or about June 30, 2014, SIS Officer Wenger
intercepted, stopped, and confiscated mail mailed by Ms.
Biron to her father (and power of attorney) Michael Bonczar.
¶ 11. On or about July 5, 2014, Warden Jody Upton was
made aware of this wrongful mail interception and
confiscation via detailed email from Ms. Biron and failed to
act to rectify this wrongful action.
¶ 12. On or about July 15, 2014, Lauren Cimperman told
Ms. Biron not to contact or attempt to contact her daughter
¶ 13. On or about October 16, 2014, warden Jody Upton
issued a "Restricted Correspondence Notification"
to bar Ms. Biron's lawful mail to her daughter R.B.
¶ 14. On or about November 19, 2014 and on or about
November 30, 2014, SIS Officer Wenger intercepted and stopped
two (2) letters written and mailed by Ms. Biron to Michael
Biron (her ex-husband) and told Ms. Biron that she could no
longer send mail to Michael Biron.
¶ 15. On or about December 1, 2014 through December 3,
2014, Warden Jody Upton was informed and failed to intervene
and correct the wrongful interference with the two (2)
November 2014 mailings to Michael Biron, and directed or
allowed staff to block future mailings to both R.B. and
Michael Biron by disabling her ability to print TRULINCS
labels to their address which are required to send mail.
¶ 16. On or about November 27, 2014, SIS Officer Wenger
in concert with Warden Upton blocked Ms. Biron's ability