Johnson v. Dettmering

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

XAVIER M. JOHNSON CIVIL ACTION

VERSUS

JACOB DETTMERING, NO. 19-00744-BAJ-SDJ

ET AL.

RULING AND ORDER

Before the Court is Defendant Jacob Dettmering’s Rule 12(b)(1), (6) Motion

To Dismiss (Doc. 20). The Motion is opposed. (Doc. 21). Defendant filed a Reply

Memorandum. (Doc. 22). Following a hearing on the Motion, the parties filed

supplemental briefs. (Doc. 30; Doc. 31). For the reasons stated herein, Defendant’s

Motion is GRANTED.

I. BACKGROUND

This case arises out of Plaintiff’s unlawful detention in the

West Feliciana Parish (hereinafter “Parish”) Detention Center based on

Federal Bureau of Investigation Special Agent Dettmering’s (hereinafter

“Defendant”) verbal request that he be detained. (Doc. 19, ¶¶ 1, 55). Plaintiff alleges

that he was arrested on state charges and placed into the custody of the Parish Sheriff

on October 28, 2018. (Id. at ¶ 1). Plaintiff allegedly posted bond on his state charges

in December 2018. (Id.). On November 5, 2018, however, Defendant contacted the

Sheriff’s Office and requested that Plaintiff not be released from custody because the

FBI planned to seek a federal arrest warrant for Plaintiff on charges pertaining to an

unrelated matter. (Id.).

Despite posting bond in December 2018, Plaintiff alleges that he was

unlawfully kept in custody based solely on Defendant’s phone call to the

Sheriff’s Office. (Id.). Plaintiff filed a Motion for Habeas Corpus on January 17, 2019,

which the Court granted. (Id.). Plaintiff asserts that he was unlawfully detained from

December 18, 2018 until January 17, 2019. (Id. at ¶ 68).

Plaintiff now brings claims under 42 U.S.C. § 1983 for violations of the Fourth,

Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution, along with claims

based on “Due Process,” “Equal Protection,” “denial of access to courts,” and “failure

to intervene.” (Id. at ¶¶ 20–53; 58–65). Plaintiff also alleges a violation of

42 U.S.C. § 1985(3) based on a conspiracy among Defendants Dettmering,

Darrel Roan, warden of the Parish Detention Center, and Archer Lee, a deputy of the

Parish Sheriff’s Office, while acting to deprive him of his constitutional rights.

(Id. at ¶¶ 54–57). Additionally, Plaintiff asserts claims under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violations of

his “constitutional rights as protected by the Fourth, Fifth, and Sixth Amendments.”

(Id. at ¶¶ 66–70). Finally, Plaintiff alleges Louisiana state law claims for false

imprisonment, intentional infliction of emotional distress, and respondeat superior.

(Id. at ¶¶ 71–81).

Plaintiff alleges that “[a]t all times relevant hereto, S.A. Jacob Dettmering was

acting under the color of law and in his capacity as a Special Agent within the F.B.I.”

(Id. at ¶ 6).

II. LEGAL STANDARD

Federal courts are courts of limited jurisdiction, and their authority to

adjudicate claims must be conferred by statute or the Constitution. Hall v. La.,

974 F. Supp. 2d 978, 985 (M.D. La. 2013) (citing In re FEMA Trailer Formaldehyde

Prods. Liab. Litig., 668 F.3d 281, 286–287 (5th Cir. 2012); Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Stockman v. FEC,

138 F.3d 144, 151 (5th Cir. 1998)). Further, “[t]he party invoking federal jurisdiction

bears the burden of pleading and proving the court's subject matter jurisdiction.”

Wagster v. Gautreaux, No. CIV.A. 12-00011-SDD, 2014 WL 465771, at *1

(M.D. La. Feb. 4, 2014) (citing Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001))

(additional citations omitted). Dismissal of a party's claims is appropriate under

Federal Rule of Civil Procedure 12(b)(1) if a party fails to carry this burden. Wagster,

2014 WL 465771, at *1 (citing Ramming, 281 F.3d at 161).

“When a Rule 12(b)(1) motion to dismiss is filed in conjunction with other

Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack

before addressing any attack on the merits. This requirement prevents a court

without jurisdiction from prematurely dismissing a case with prejudice.” Wagster,

2014 WL 465771, at *1 (citing Ramming, 281 F.3d at 161). “A motion to dismiss under

Rule 12(b)(1) is analyzed under the same standard as a motion to dismiss under

Rule 12(b)(6).” Wagster, 2014 WL 465771, at *1 (citing Hall, 974 F. Supp. 2d at 985).

Pursuant to Rule 12(b)(6), a complaint is subject to dismissal if a plaintiff fails

“to state a claim upon which relief can be granted.” Hall, 974 F. Supp. 2d at 985 (citing

Fed. R. Civ. P. 12(b)(6)). “To survive a Rule 12(b)(6) motion to dismiss, the plaintiff

must plead ‘enough facts to state a claim to relief that is plausible on its face.’”

Wagster, 2014 WL 465771, at *1 (citing Hall, 974 F. Supp. 2d at 986). In reviewing a

Rule 12(b)(6) motion, a court must accept all well-pleaded facts in the complaint as

true and view them in the light most favorable to the plaintiff. Hall,

974 F. Supp. 2d at 985–86.

When ruling on a Rule 12(b)(1) motion, however, “the court is permitted to look

at evidence in the record beyond simply those facts alleged in the complaint and its

proper attachments.” Wagster, 2014 WL 465771, at *1 (citing Ambraco, Inc. v.

Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009)). “Ultimately, a motion to dismiss for

lack of subject matter jurisdiction should be granted only if it appears certain that

the plaintiff cannot prove any set of facts in support of her claim which would entitle

her to relief.” Wagster, 2014 WL 465771, at *1 (citing Ramming, 281 F.3d at 161).

III. DISCUSSION

Defendant moves to dismiss all claims against him pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 20). Defendant seeks

Rule 12(b)(6) dismissal of Plaintiff’s claims “A” through “I” pursuant to

42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and Bivens. (Doc. 20-1, p. 1); see Bivens v.

Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

Defendant seeks Rule 12(b)(1) dismissal of Plaintiff’s claims “J” through “L,” state

law tort claims, based on sovereign immunity. (Doc. 20-1, p. 2).

While the Court would customarily consider the Rule 12(b)(1) jurisdictional

attack first, here, the Court will review the Rule 12(b)(6) Motion first because the

outcome of Plaintiff’s state law tort claims depends in part on the Court’s ruling

regarding Plaintiff’s Bivens claims. (See Doc. 21, p. 9 “Counts J-L [state law tort

claims] should not be dismissed as to [Defendant] as those counts are also relevant to

[Plaintiff’s] claim under Bivens.”).

A. Federal Rule of Civil Procedure 12(b)(6) Motion to Dismiss

Defendant seeks dismissal of Counts A through I under Federal Rule of Civil

Procedure 12(b)(6). (Doc. 20-1, p. 1).

i. 42 U.S.C. § 1983 Claims—Counts A through E and G through H

First, Defendant moves to dismiss Counts A through E and G through H, which

include claims under 42 U.S.C. § 1983 for alleged violations of the Fourth, Fifth,

Sixth, and Fourteenth Amendments of the U.S. Constitution, along with claims based

on “Due Process,” “Equal Protection,” “denial of access to courts,” and “failure to

intervene.” (Doc. 19, ¶¶ 20–53; 58–65; Doc. 20-1, p. 1–3).

Defendant argues that as a federal actor, a Special Agent of the FBI, he is not

subject to suit under Section 1983. (Doc. 20-1, p. 5; see also Doc. 19, ¶ 6 (Plaintiff

alleges that “[a]t all times relevant hereto, S.A. Jacob Dettmering was acting under

the color of law and in his capacity as a Special Agent within the F.B.I.”)). Because

Section 1983 only provides redress for actions taken under color of state law,

Defendant argues that the statute cannot provide a basis for liability against him.

(Doc. 20-1, p. 5).

Plaintiff responds that the notion that “there is no applicable redress for such

violations anytime the offender is a federal employee” is both “illogical and incorrect.”

(Doc. 21, p. 3). Plaintiff asserts that “[r]ights, constitutional and otherwise, do not

exist in a vacuum. Their purpose is to protect persons from injuries to particular

interests, and their contours are shaped by the interests they protect.” (Id. at p. 3

(citing Carey v. Piphus, 435 U.S. 247, 254 (1978)).

The U.S. Supreme Court declared, “[i]n 42 U.S.C. § 1983, Congress provided a

specific damages remedy for plaintiffs whose constitutional rights were violated by

state officials, but Congress provided no corresponding remedy for constitutional

violations by agents of the Federal Government.” Ziglar v. Abbasi,

137 S. Ct. 1843, 1848 (2017).

The United States Court of Appeals for the Fifth Circuit has held that Section

1983 “only provides redress for actions taken under color of state law,” but does not

apply to “actions [] taken pursuant to federal law by federal agents . . .” Zernial v.

U.S., 714 F.2d 431, 435 (5th Cir. 1983) (citing Broadway v. Block, 694 F.2d 979, 981

(5th Cir. 1982) (actions of federal officials taken under color of federal law cannot

form a basis of suit under section 1983) (additional citations omitted)). The court

reasoned that Section 1983 “only provides redress for actions taken under color of

state law.” Id.

This Court has held that Section 1983, “by its terms, only provides a cause of

action to anyone deprived of a federally protected right ‘under color of state law.’ []

This statute, therefore, applies only to claims asserted against state officials and does

not apply to actions taken by federal agencies or employees.” Fajardo-Guevara v.

United States, No. CV 14 0737-BAJ-EWD, 2016 WL 792392, at *1

(M.D. La. Jan. 29, 2016), report and recommendation adopted,

No. CV 14 00737 BAJ EWD, 2016 WL 816793 (M.D. La. Feb. 29, 2016).

Here, in support of his Bivens claim, Plaintiff asserts that Defendant was a

“federal actor by virtue of acting under color of federal law.” (Doc. 21, p. 9).

Accordingly, Plaintiff’s claims against Defendant are impermissible under

42 U.S.C. § 1983. See Abbasi, 137 S. Ct. at 1848; Zernial, 714 F.2d at 435;

Fajardo-Guevara, 2016 WL 792392, at *1.

Plaintiff’s argument that Defendant can be held liable under Section 1983

based on a conspiracy or joint activity with state officials does not persuade otherwise.

(Doc. 31, p. 2 (citing Knights of Ku Klux Klan Realm v. East Baton Rouge Par. Sch.

Board, 735 F.2d 895, 900 (5th Cir. 1984)). To state a conspiracy claim under

Section 1983, Plaintiff must allege facts showing Defendant’s specific intent to violate

a protected right and an agreement with state officials to commit such illegal actions.

See Angelle v. Town of Duson, No. 6:18-CV-00272, 2018 WL 4649788, at *8

(W.D. La. Aug. 7, 2018), report and recommendation adopted, No. 6:18-CV-0272,

2018 WL 4624114 (W.D. La. Sept. 26, 2018); see also Blakely v. Andrade,

360 F. Supp. 3d 453, 490 (N.D. Tex. 2019).

Courts have dismissed conspiracy claims under Section 1983 for failure to state

a claim when the Complaint did not specifically allege facts supporting an

“agree[ment] to commit an illegal act.” Blakely, 360 F. Supp. 3d at 490 (“Because

Husband ‘fails to set forth specific allegations that [Detective and Deputy] agreed to

commit an illegal act,’ his conspiracy claims against them should be dismissed for

failure to state a claim) (citing Simmons v. Jackson, No. 3:15-CV-1700-S-BT,

2018 WL 4574975, at *4 (N.D. Tex. Sept. 6, 2018), report and recommendation

adopted, No. 3:15-CV-1700-S-BT, 2018 WL 4568802 (N.D. Tex. Sept. 24, 2018)

(dismissing Section 1983 conspiracy claim for failure to state a claim)).

Here, the facts as alleged do not support an agreement between Defendant

Dettmering and state officials “to commit an illegal act.” See Blakely,

360 F. Supp. 3d at 490. Rather, at the time of Defendant’s phone call to state officials,

no matter how inadvisable, Plaintiff was lawfully in state custody. Plaintiff does not

allege facts supporting an agreement among Defendants to detain Plaintiff even if

his detention later became unlawful. Accordingly, Plaintiff’s Section 1983 claims

against Defendant, as asserted in Counts A through E and G through H, are

dismissed. (Doc. 19).

ii. 42 U.S.C. § 1985(3) Claims—Count F

Second, Defendant moves to dismiss Count F, Plaintiff’s “conspiracy to deprive

constitutional rights” claim pursuant to 42 U.S.C. § 1985(3). (Doc. 20-1, p. 6).

Defendant argues that the Fifth Circuit has held that Section 1985(3), like

Section 1983, is inapplicable to federal actors. (Id.) Defendant cites Mack v. Alexander

and Cantú v. Moody in support of his argument. Mack v. Alexander,

575 F.2d 488, 489 (5th Cir. 1978); Cantú v. Moody, 933 F.3d 414, 419 (5th Cir. 2019),

cert. denied, 141 S. Ct. 112, 207 L. Ed. 2d 1052 (2020).

In Mack, the Fifth Circuit held that Section 1985 provides a remedy for

deprivation of rights under color of state law but does not apply when the defendants

are acting under color of federal law. 575 F.2d at 489 (emphasis added). In Cantú, the

Fifth Circuit declared, “[o]ur precedent holds § 1985(3) does not apply to federal

officers.” 933 F.3d at 419. The court explained the following:

In Mack v. Alexander, 575 F.2d 488 (5th Cir. 1978) (per curiam), [the

Fifth Circuit] concluded [that] § 1983 and § 1985 “provide a remedy for

deprivation of rights under color of state law and do not apply when the

defendants are acting under color of federal law.” Id. at 489; accord

Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir. 1971). Other circuits have

criticized that holding for failing to grapple with Supreme Court

precedent. See, e.g., Iqbal v. Hasty, 490 F.3d 143, 176 n.13 (2d Cir. 2007),

rev'd on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662, 129

S.Ct. 1937, 173 L.Ed.2d 868 (2009); Ogden v. United States,

758 F.2d 1168, 1175 n.3 (7th Cir. 1985). And the Supreme Court recently

assumed § 1985(3) applies to federal officers. See Ziglar v. Abbasi, –––

U.S. ––––, 137 S. Ct. 1843, 1865–69, 198 L.Ed.2d 290 (2017). Mack may

not have aged well, but we need not decide whether it remains binding

on us.

Id.

Defendant asserts that although the Fifth Circuit has acknowledged that

“Mack may not have aged well,” it is a “strict stare decisis court,” meaning that “one

panel of th[e] court cannot disregard, much less overrule, the decision of a prior

panel[.]” (Doc. 20-1, p. 6 (citing Cantú, 933 F.3d at 419; Ford v. Cimarron Ins. Co.,

230 F.3d 828, 832 (5th Cir. 2000)).

Plaintiff responds that Cantú may soon be overturned because the decision is

on petition for writ of certiorari before the Supreme Court. (Doc. 21, p. 5). Since the

filing of Plaintiff’s Opposition, however, the Supreme Court has denied review of the

Fifth Circuit’s decision in Cantú. 141 S. Ct. 112, 207 L. Ed. 2d 1052 (2020).

Plaintiff also argues that “[s]tare decisis is no reason to cling to incorrect

decisions of the past,” and that the Fifth Circuit’s holding in Cantú is “contrary to the

plain language in § 1985 as well as Supreme Court precedent and therefore should

not be followed.” (Id. at p. 5–8). Plaintiff relies on Ziglar v. Abbasi, 137 S. Ct. 1843

(2017), wherein “the Supreme Court recently assumed § 1985(3) applies to federal

officers.” Cantú, 933 F.3d at 419 (citing Abbasi, 137 S. Ct. at 1865–69).

Cantú was decided by the Fifth Circuit in 2019, two years after the

Supreme Court’s 2017 ruling in Abbasi. Cantú, 933 F.3d at 419; Abbasi,

137 S. Ct. at 1843. Accordingly, Cantú is still “good law” in this Circuit and controls

this case. See Whirley v. Am. Brands, Inc., No. CIV. A. C-97-009, 1997 WL 881215,

at *3 (S.D. Tex. Apr. 7, 1997), aff'd, 139 F.3d 898 (5th Cir. 1998) (“The proposition

that a decision of the Fifth Circuit Court of Appeals incorrectly interprets an opinion

by the Supreme Court of the United States must be addressed to the Fifth Circuit,

the decisions of which are binding on this Court.”). Accordingly, the Court must

dismiss Plaintiff’s Section 1985(3) claim against Defendant because “[Fifth Circuit]

precedent holds § 1985(3) does not apply to federal officers.” Cantú, 933 F.3d at 419.

Additionally, Plaintiff’s Section 1985(3) claim also “fail[s] for an independent

reason.” 933 F.3d at 419. The relevant text of Section 1985(3) criminalizes “only

conspiracies that involve depriving someone of ‘equal protection of the laws’ or ‘equal

privileges and immunities under the laws.’” Id. (citing 42 U.S.C. § 1985(3); Griffin v.

Breckenridge, 403 U.S. 88, 102–03 (1971)). “This kind of conspiracy requires some

form of class-based discrimination.” Id. (“Even assuming § 1985(3) covers Cantú’s

proffered class—convicted felons—Cantú’s claims still can't survive a Rule 12(b)(6)

motion.”) (additional citations omitted). Here, Plaintiff has failed to allege class-based

discrimination. Accordingly, the Court need not complete the analysis.

Plaintiff’s claim against Defendant under 42 U.S.C. § 1985(3), Count F, is

dismissed.

iii. Bivens Claims—Count I

Third, Defendant moves to dismiss Count I, which is Plaintiff’s claim under

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971). (Doc. 20-1, p. 1).

In Bivens, the Supreme Court recognized “an implied cause of action to sue

federal officers for violating an arrestee’s ‘rights of privacy’ by ‘manacl[ing] petitioner

in front of his wife and children,’ ‘threaten[ing] to arrest the entire family,’ and strip

searching him.” Cantú v. Moody, 933 F.3d 414, 421 (5th Cir. 2019), cert. denied,

141 S. Ct. 112, 207 L. Ed. 2d 1052 (2020) (citing Bivens, 403 U.S. at 389–90). In the

following decade, the Court allowed Bivens-type remedies only twice more, in a

Fifth Amendment gender-discrimination case, Davis v. Passman, 442 U.S. 228

(1979), and in an Eighth Amendment Cruel and Unusual Punishments Clause case,

Carlson v. Green, 446 U.S. 14 (1980). Ziglar v. Abbasi, 137 S. Ct. 1843, 1848 (2017).

These are the only cases in which the Court has approved an implied damages remedy

under the Constitution itself. Id.

Before allowing Plaintiff to sue under Bivens, the Court must ask two

questions. First, do Plaintiff’s claims fall into one of the three existing Bivens actions?

Second, if not, should the Court recognize a new Bivens action here? In the instant

case, the answer to both questions is no. See Cantú, 933 F.3d at 422.

Turning to the first question of whether Plaintiff’s claims fall into one of the

three existing Bivens actions, the Supreme Court set forth the following test:

The proper test for determining whether a case presents a new Bivens

context is as follows. If the case is different in a meaningful way from

previous Bivens cases decided by this Court, then the context is new.

Without endeavoring to create an exhaustive list of differences that are

meaningful enough to make a given context a new one, some examples

might prove instructive. 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.

Abbasi, 137 S. Ct. at 1859–60. The instant case presents a new context because it

differs in a meaningful way from previous Bivens cases. See id.

Here, Plaintiff alleges that Defendant caused him to be “unlawfully detained

from December 18, 2018 until January 17, 2019,” and “falsely imprisoned with no

lawful cause, thereby violating his constitutional rights as protected by the Fourth,

Fifth and Sixth Amendments.” (Doc. 19, ¶ 67–68).

Defendant argues that while Bivens itself involved a Fourth Amendment

violation, the instant case involves different conduct and a different federal agency.

(Doc. 20-1, p. 10–11). Regarding Plaintiff’s Fifth Amendment claim, Defendant

contends that “although Davis did allow a Fifth Amendment equal protection and due

process claim, Davis—concerning employment discrimination by a congressman—

involved none of the facts or types of federal officers at issue in this matter.”

(Id. at p. 10 (citing Davis v. Passman, 442 U.S. 228 (1979)). Finally, Defendant argues

that the Court has “never recognized a Bivens claim predicated on a violation of the

Sixth Amendment.” (Id.). The Court agrees. The Court notes its concern, however,

that in effect, Plaintiff faces a closed courthouse door when this case involves a direct

deprivation of liberty—arguably much more serious than employment

discrimination.

The Supreme Court recently addressed the threshold question of whether a

case presents a new Bivens context and rejected the “same right” reasoning. Cantú v.

Moody, 933 F.3d 414, 422 (5th Cir. 2019), cert. denied, 141 S. Ct. 112, 207 L. Ed. 2d

1052 (2020). In short, a violation of the same clause of the same constitutional

amendment in the same way “still doesn’t cut it.” Id. (citing Chappell v. Wallace,

462 U.S. 296 (1983) (noting that the “Supreme Court rejected a Fifth Amendment

Due Process claim for unlawful termination (the claim at issue in Davis) because the

plaintiff was a military servicemember rather than a congressional employee.”));

compare Carlson v. Green, 446 U.S. 14, 17–18 (1980) (recognizing a Bivens claim

against federal prison officials for failure to provide medical treatment), with

Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (rejecting a Bivens claim against

private prison officials for failure to provide medical treatment)). “Naturally, these

principles apply in the Fourth Amendment context too.” Cantú, 933 F.3d at 422

(citing Alvarez v. ICE, 818 F.3d 1194, 1199, 1206 (11th Cir. 2016) (treating plaintiff's

Bivens claim for unreasonable seizure as a “new” one); De La Paz v. Coy, 786 F.3d

367, 375 (5th Cir. 2015) (same); cf. Arevalo v. Woods, 811 F.2d 487, 489–90 (9th Cir.

1987) (barring plaintiff's Bivens claim for unreasonable search and seizure)); see also

Ziglare v. Abbasi, 137 S. Ct. 1843, 1859–60 (2017).

In the recent case of Oliva v. Nivar, the Fifth Circuit held that Bivens claims

are limited to the circumstances of the Supreme Court’s trilogy of cases—Bivens,

Davis, and Carlson—and found that “[v]irtually everything else is a ‘new context.’”

Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020), cert. denied, No. 20-1060,

2021 WL 2044553 (U.S. May 24, 2021) (citing Abbasi, 137 S. Ct. at 1865).

Accordingly, the Court is constrained to find that Plaintiff’s claims are

meaningfully different from the Fourth Amendment claim in Bivens and the

Fifth Amendment claim in Davis, and therefore, present a “new context.”1 See Cantú,

933 F.3d at 423. Here, Plaintiff’s allegations involve different conduct by different

officers from a different agency. See id. Plaintiff does not allege that the “officers

entered his home without a warrant or violated his rights of privacy,” nor does

Plaintiff allege “a Fifth Amendment equal protection claim for employment

discrimination by a congressman.” See id. (citing Bivens v. Six Unknown Named

1 The Court notes that the Supreme Court has never recognized a Bivens claim in the context

of the Sixth Amendment.

Agents of Fed. Bureau of Narcotics., 403 U.S. 389–90 (1971); Davis v. Passman,

442 U.S. 228 (1979)).

Because Plaintiff’s claims present a “new context,” the Court turns to the

second question of whether the Court should recognize a new Bivens action here. The

Fifth Circuit explained that the Supreme Court “has admonished us to exercise

‘caution’ in the ‘disfavored judicial activity’ of extending Bivens to any new set of

facts.” Cantú, 933 F.3d at 421–22 (citing Abbasi, 137 S. Ct. at 1857) (additional

citations omitted). For decades, the Supreme Court has “consistently refused to

extend Bivens liability to any new context or new category of defendants.” Oliva v.

Nivar, 973 F.3d 438, 443 (5th Cir. 2020), cert. denied, No. 20-1060, 2021 WL 2044553

(U.S. May 24, 2021) (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). And

the Court recently reminded us, “for almost 40 years, [the Supreme Court has]

consistently rebuffed requests to add to the claims allowed under Bivens.” Id. (citing

Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020)).

In Cantú, the Fifth Circuit recognized two applicable “special factors”

counseling against extending Bivens action: (1) the existence of a statutory scheme

for torts committed by federal officers; and (2) the length of time Congress has gone

without statutorily creating a Bivens-type remedy for this context. Cantú,

933 F.3d at 423–24. In the face of these considerations, “courts may not create [a

cause of action], no matter how desirable that might be as a policy matter.” Id. at 424

(internal citations omitted). Because this case presents a new context and because

special factors counsel against extending Bivens, the Court cannot create a Bivens

cause of action here, no matter how troubling the conduct at issue and “no matter

how desirable that might be as a policy matter.” Accordingly, Plaintiff’s Bivens claim,

Count I, is dismissed against Defendant.

As noted, the Court is constrained to dismiss Plaintiff’s Bivens claim based on

inflexible precedent. However, the Court is concerned about the complete lack of

federal actor accountability in this case and others like it. That a United States citizen

has no redress after being deprived of liberty without lawful basis for thirty days, and

a federal agent remains unaccountable because of his status as a federal officer,

reveals the absurdity of the legal doctrines the higher courts have fashioned. Such a

result could not have been intended by the framers of our Constitution. As

Chief Justice John Jay wrote in 1794, “Justice is indiscriminately due to all, without

regard to numbers, wealth, or rank.” State of Georgia v. Brailsford,

3 U.S. 1, 4, 1 L. Ed. 483 (1794). Today, government agents are often unaccountable,

even if their conduct violates the Constitution or other laws, because of the way

Courts and Congress have addressed, or in some instances, failed to address, these

unsettling situations.

Three recent cases illuminate the problem: Hernandez v. Mesa, Oliva v. Nivar,

and Byrd v. Lamb.

In Hernandez v. Mesa, the Supreme Court held that Bivens does not extend to

Fourth and Fifth Amendment claims made by a 15-year-old Mexican national’s family

after he was shot in the face and killed by a U.S. Border Patrol Agent.

140 S. Ct. 735, 737 (2020). Dissenting, Justice Ginsburg opined that “Even accepting,

arguendo, that the setting in this case could be characterized as ‘new,’ there is still

no good reason why Hernández's parents should face a closed courtroom door. As in

Bivens, plaintiffs lack recourse to alternative remedies.” Id. at 757 (Ginsburg, R.,

dissenting).

In Oliva v. Nivar, the Fifth Circuit held that a 70-year-old Vietnam War

veteran had no constitutional remedy after he was “choked and assaulted by federal

police in an unprovoked attack at a VA hospital.”2 Byrd v. Lamb, 990 F.3d 879, 883

(5th Cir. 2021) (Willett, D., concurring) (citing Oliva v. Nivar, 973 F.3d 438, 441

(5th Cir. 2020), cert. denied, No. 20 1060, 2021 WL 2044553 (U.S. May 24, 2021)).

In Byrd v. Lamb, the Fifth Circuit refused to extend Bivens and instructed the

district court to dismiss all claims against a federal agent after the agent allegedly

physically and verbally threatened Byrd with a gun to facilitate an unlawful seizure.3

No. 20-20217, 2021 WL 871199, at *1 (5th Cir. Mar. 9, 2021).

2 On February 16, 2016, Jose Oliva attempted to enter a Veterans Affairs (“VA”) hospital in

El Paso, Texas. Oliva v. Nivar, 973 F.3d 438, 440 (5th Cir. 2020), cert. denied, No. 20-1060,

2021 WL 2044553 (U.S. May 24, 2021). The entrance to the hospital was protected by VA

police and metal detectors. (Id.). While Oliva stood in line for the metal detector, he spoke

with one of the officers. Somehow the conversation escalated into a physical altercation which

ended when VA police wrestled Oliva to the ground in a chokehold and arrested him. Id. The

violent nature of the arrest required Oliva to undergo two shoulder surgeries and treatment

for post-traumatic stress disorder due to nightmares and anxiety stemming from the event.

Id. at 440–41.

3 The agent allegedly verbally threatened to “put a bullet through [Byrd’s] f—king skull” and

stated that “he would blow [Byrd’s] head off.” Byrd v. Lamb, No. 20-20217, 2021 WL 871199,

at *1 (5th Cir. Mar. 9, 2021). The agent allegedly attempted to smash the window of Byrd’s

car and left marks and scratches on the car window. Id. Shortly after the incident began,

Byrd called for police assistance. Id. Upon the officers’ arrival, the agent identified himself

as a federal agent and one of the officers immediately handcuffed and detained Byrd for

nearly four hours. Id. After reviewing the surveillance footage, the officers released Byrd and

took the agent into custody for aggravated assault with a deadly weapon and misdemeanor

criminal mischief. Id.

In the instant case, Plaintiff was allegedly detained without lawful cause for

30 days.

These cases all share a common theme: the absence of accountability. Notably,

this case, and others like it, are typically dismissed during the preliminary phase of

litigation before the opportunity to gather more evidence ever arises.4

In Byrd, Judge Willett concurred and declared, “[T]oday's result is

precedentially inescapable: Private citizens who are brutalized—even killed—by

rogue federal officers can find little solace in Bivens.” 2021 WL 871199, at *3

(Willett, D., concurring). The Court agrees with Judge Willet’s concerns:

My big-picture concern as a federal judge—indeed, as an everyday

citizen—is this: If Bivens is off the table, whether formally or

functionally, and if the Westfall Act preempts all previously available

state-law constitutional tort claims against federal officers acting within

the scope of their employment, do victims of unconstitutional conduct

have any judicial forum whatsoever? Are all courthouse doors—both

state and federal—slammed shut? If so, and leaving aside the serious

constitutional concerns that would raise, does such wholesale immunity

induce impunity, giving the federal government a pass to commit one-

off constitutional violations?

Chief Justice John Marshall warned in 1803 that when the law no longer

furnishes a “remedy for the violation of a vested legal right,” the

United States “cease[s] to deserve th[e] high appellation” of being called

“a government of laws, and not of men.” Fast forward two centuries, and

redress for a federal officer's unconstitutional acts is either extremely

limited or wholly nonexistent, allowing federal officials to operate

in something resembling a Constitution-free zone. Bivens today is

essentially a relic, technically on the books but practically a dead letter,

meaning this: If you wear a federal badge, you can inflict excessive force

on someone with little fear of liability.

4 Each Ruling cited here was resolved at the Motion to Dismiss phase, which is typically

litigated prior to the discovery process and the opportunity to uncover key information

regarding the underlying events in the case.

Id. at *4 (Willett, D., concurring) (emphasis added).

Finally, “[a] written constitution is mere meringue when rights can be violated

with nonchalance. I add my voice to those lamenting today's rights-without-remedies

regime, hoping (against hope) that as the chorus grows louder, change comes sooner.”

Id. at *5 (Willett, D., concurring). The Court joins the chorus.

B. Federal Rule of Civil Procedure 12(b)(1) Motion to Dismiss—Counts J

through L

Finally, Defendant moves to dismiss Counts J through L, including state law

claims for false imprisonment, intentional infliction of emotional distress, and

respondeat superior, pursuant to Rule 12(b)(1). (Doc. 20-1, p. 1). Defendant asserts

that Counts J through L are barred by sovereign immunity. (Id. at p. 2). Defendant

argues that the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., provides the

exclusive remedy for asserting tort claims against the United States, and Plaintiff

has failed to assert his claims pursuant to the FTCA. (Id.). Additionally, Defendant

contends that Plaintiff has not alleged, nor can he show, that he has exhausted his

administrative remedies as the FTCA requires. (Id.). Therefore, Defendant argues

that the Court lacks subject matter jurisdiction over Plaintiff’s state law claims

against him, requiring dismissal without prejudice. (Id.).

Plaintiff responds that Counts J through L should not be dismissed as to

Defendant because these counts are also relevant to Plaintiff’s claims under Bivens.

(Id. at p. 9). Because the Court has dismissed Plaintiff’s Bivens claims against

Defendant, the Court disagrees.

The Federal Tort Claims Act (FTCA) allows a plaintiff to bring certain state

law tort suits against the Federal Government. Brownback v. King,

141 S. Ct. 740, 745 (2021) (citing 28 U.S.C. § 2674; see also § 1346(b)). “In 1946,

Congress passed the FTCA, which waived the sovereign immunity of the

United States for certain torts committed by federal employees acting within the

scope of their employment.” Brownback, 141 S. Ct. at 746 (citing FDIC v. Meyer,

510 U.S. 471, 475–476 (1994)). A “suit against the United States under the FTCA is

the exclusive remedy for tort claims arising from the actions of [federal] government

agencies or employees.” Galvin v. Occupational Safety & Health Admin.,

860 F.2d 181, 183 (5th Cir. 1988) (citing 28 U.S.C. § 2679(a) (1982)).

Plaintiff does not bring his tort claims pursuant to the FTCA, the exclusive

remedy for tort claims arising from the actions of federal employees. See id.

Accordingly, Plaintiff’s state law claims against Defendant will be dismissed.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that Defendant Jacob Dettmering’s Rule 12(b)(1), (6)

Motion To Dismiss (Doc. 20) is GRANTED.

IT IS FURTHER ORDERED that Plaintiff’s claims pursuant to

42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and Bivens against Defendant

Jacob Dettmering are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff’s state law tort claims against

Defendant Jacob Dettmering are DISMISSED WITHOUT PREJUDICE.

Baton Rouge, Louisiana, this 29th day of July, 2021

_______________________________________

JUDGE BRIAN A. JACKSON

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA