Biron v. Upton

US DISTRICT □□□□□

NORTHERN DISTRICT OF TEXAS

_FTLED

IN THE UNITED STATES DISTRICT CQGURT [~

NORTHERN DISTRICT OF TEXAS ij 8A opie

FORT WORTH DIVISION JUL 23 2019

CLERK, U-S. DISTRICT COURT

LISA BIRON, § By

§ Depuix

Plaintiff, §

§

Vs. § NO. 4:19-CV-322-A

§

FEDERAL MEDICAL CENTER (“FMC”) 8

CARSWELL WARDEN JODY UPTON, §

ET AL., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

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.

L,

Background

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

'The “Doc. _” reference is to the number of the item on the docket in this action.

at PageID? 12. On April 22, 2019, defendants filed their notice

of removal, bringing the action before this court pursuant to 28

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

°The “PagelD __” reference is to the page number assigned by the court’s electronic filing

system and is used because the pages of the document are not consecutively numbered.

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. J 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. §8§ 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. 44 6-7.

Lil s

Grounds of the Motion

Defendants 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).

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

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.

LTT.

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 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 (Sth 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); McNutt v. General Motors

Acceptance Corp. of Ind.; Ine., 298 U.S. 178, 189 (1986), A

party who seeks to invoke federal court jurisdiction has the

burden to demonstrate that subject matter jurisdiction exists.

McNutt, 298 U.S. at 189; Ramming v. United States, 281 F.3d 158,

161 (5th Cir. 2001).

B. Fed. R. Civ. P. 12 (b) (6)

Rule 8(a) (2) of the Federal Rules of Civil Procedure

provides, in a general way, the applicable standard of pleading.

It requires that a complaint contain "a short and plain statement

of the claim showing that the pleader is entitled to relief,"

Fed. R. Civ. P. 8(a) (2), "in order to give the defendant fair

notice of what the claim is and the grounds upon which it rests,”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

quotation marks and ellipsis omitted). Although a complaint need

not contain detailed factual allegations, the "showing"

contemplated by Rule 8 requires the plaintiff to do more than

simply allege legal conclusions or recite the elements of a cause

of action. Twombly, 550 U.S. at 555 & n.3. Thus, while a court

must accept all of the factual allegations in the complaint as

true, it need not credit bare legal conclusions that are

unsupported by any factual underpinnings. See Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009) ("While legal conclusions can provide

the framework of a complaint, they must be supported by factual

allegations.").

Moreover, to survive a motion to dismiss for failure to

state a claim, the facts pleaded must allow the court to infer

that the plaintiff's right to relief is plausible. Iqbal, 556

U.S. at 678. To allege a plausible right to relief, the facts

pleaded must suggest liability; allegations that are merely

consistent with unlawful conduct are insufficient. Id. In other

words, where the facts pleaded do no more than permit the court

to infer the possibility of misconduct, the complaint has not

shown that the pleader is entitled to relief. Id. at 679.

"Determining whether a complaint states a plausible claim for

relief .. . [is] a context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense." Id.

Cy Qualified Immunity

Qualified immunity insulates a government official from

civil damages liability when the official's actions do not

"violate clearly established statutory or constitutional rights

of which a reasonable person would have known." Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). For a right to be "clearly

established," the right's contours must be "sufficiently clear

that a reasonable official would understand that what he is doing

violates that right." Anderson v. Creighton, 483 U.S. 635, 640

(1987). Individual liability thus turns on the objective legal

reasonableness of the defendant's actions assessed in light of

clearly established law at the time. Hunter v. Bryant, 502 U.S.

224, 228 (1991); Anderson, 483 U.S. at 639-40. In Harlow, the

court explained that a key question is “whether that law was

clearly established at the time an action occurred” because “[iJf

the law at that time was not clearly established, an official

could not reasonably be expected to anticipate subsequent legal

developments, nor could he fairly be said to 'know' that the law

forbade conduct not previously identified as unlawful.” 457 U.S.

at 818. In assessing whether the law was clearly established at

the time, the court is to consider all relevant legal authority,

whether cited by the parties or not. Elder v. Holloway, 510 U.S.

510, 512 (1994). If public officials of reasonable competence

could differ on the lawfulness of defendant's actions, the

defendant is entitled to qualified immunity. Mullenix v. Luna,

136 S. Ct. 305, 308 (2015); Malley v. Briggs, 475 U.S. 335, 341

(1986); Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th

Cir. 1992). "[A]Jn allegation of malice is not sufficient to

defeat immunity if the defendant acted in an objectively

reasonable manner." Malley, 475 U.S. at 341.

if

In analyzing whether an individual defendant is entitled to

qualified immunity, the court considers whether plaintiff has

alleged any violation of a clearly established right, and, if so,

whether the individual defendant's conduct was objectively

reasonable. Siegert v. Gilley, 500 U.S. 226, 231 (1991); Duckett

v. City of Cedar Park, 950 F.2d 272, 276-80 (5th Cir, 1992). In

so doing, the court should not assume that plaintiff has stated a

claim, i.e., asserted a violation of a constitutional right.

Siegert, 500 U.S. at 232. Rather, the court must be certain

that, if the facts alleged by plaintiff are true, a violation has

clearly occurred. Connelly v. Comptroller, 876 F.2d 1209, 1212

(Sth Cir. 1989). A mistake in judgment does not cause an officer

to lose his qualified immunity defense. In Hunter, the Supreme

Court explained:

The qualified immunity standard "gives ample room for

mistaken judgments" by protecting "all but the plainly

incompetent or those who knowingly violate the law."

Malley, [475 U.S.] at 343. . . . This accommodation for

reasonable error exists because "officials should not err

always on the side of caution" because they fear being sued.

502 U.S. at 229. Further, that the officer himself may have

created the situation does not change the analysis. That he could

have handled the situation better does not affect his entitlement

to qualified immunity. Young v. City of Killeen, 775 F.2d 1349,

1352-53 (Sth Cir. 1985).

When a defendant relies on qualified immunity, the burden is

on the plaintiff to negate the defense. Kovacic v. Villarreal,

628 F.3d 209, 211 (5th Cir. 2010); Foster v. City of Lake

Jackson, 28 F.3d 425, 428 (5th Cir. 1994). Although Supreme Court

precedent does not require a case directly on point, existing

precedent must place the statutory or constitutional question

beyond debate. White v. Pauly, 137 S. Ct. 548, 551 (2017). That

is, the clearly established law upon which plaintiff relies

should not be defined at a high level of generality, but must be

particularized to the facts of the case. Id. at 552. Thus, the

failure to identify a case where an officer acting under similar

circumstances was held to have violated a plaintiff’s rights will

most likely defeat the plaintiff's ability to overcome a

qualified immunity defense. Id.; Surratt v McClarin, 851 F.3d

389, 392 (5th Cir. 2017).

IV.

Analysis

As the Supreme Court has explained, a Bivens claim may only

be asserted in three limited sets of circumstances. They are: for

a Fourth Amendment violation by federal agents in conducting a

warrantless search and seizure in a home; for a Fifth Amendment

equal protection claim based on gender discrimination by a

congressman against an employee; and, for an Eighth Amendment

claim for deliberate indifference to serious medical needs.

Ziglar v. Abbasi, 137 S. Ct. 1843, 1854-55 (2017). The three

cases recognizing those claims, Bivens itself, Davis v. Passman,

442 U.S. 228 (1979), and Carlson v. Green, 446 U.S. 14 (1980),

are “the only instances in which the [Supreme] Court has approved

of an implied damages remedy under the Constitution itself.”

Abbasi, 137 S. Ct. at 1855. The Court has “consistently refused

to extend Bivens to any new context or new category of

defendants.” Id. at 1857 (quoting Correctional Servs. Corp. v.

Malesko, 534 U.S. 61, 68 (2001)). Here, none of the factors set

forth in Abassi would support the recognition of a new Bivens

claim in favor of plaintiff. See Reichle v. Howards, 566 U.S.

658, 663 n.4 (2012) (Supreme Court has never held that Bivens

extends to First Amendment claims).

Plaintiff does not dispute that the APA does not provide

relief against the individual defendants.

RFRA allows for “appropriate relief against a government.”

42 U.S.C. § 2000bb-1(c). It does not appear that the Fifth

circuit has determined whether RFRA provides a private right of

action against federal employees acting in their personal

Capacities. At least one district court has held that it does

not, Bloch v. Samuels, No. H-04-4861, 2006 WL 2239016, at *7

(S.D. Tex. Aug. 3, 2006), and this court is inclined to agree.

10

The court need not decide, however, as it is clear that Dixon and

Alexander are entitled to qualified immunity.

Plaintiff has not pointed out any case showing that

defendants' confiscation of her manuscript violated a clearly

established constitutional or statutory right of which reasonable

officials would have known. Her failure to cite any case where an

official acting under similar circumstances was held to have

violated a plaintiff's rights is fatal.

As defendants note, a further bar to plaintiff's claims

regarding sex offender treatment, to the extent she asserts any,

is Heck v. Humphrey, 512 U.S. 477 (1994). See Pearson v. Holder,

No. 3:09-CV-682-0, 2011 WL 13185719, at *4-6 (N.D. Tex. Apr. 29,

2011).

Plaintiff's official capacity claims are claims against the

government itself, Kentucky v. Graham, 473 U.S. 159, 165-66

(1985), over which the state court had no jurisdiction absent a

specific waiver of sovereign immunity. See Lane v. Pena, 518 U.S.

187, 192 (1996). Because the state court lacked jurisdiction over

these claims, this court could not acquire it upon removal. Lopez

v. Sentrillon Corp., 749 F.3d 347, 350-51 (5th Cir. 2014). This

is the doctrine of derivative jurisdiction. Id. at 350 (“when a

case is removed from state to federal court, the jurisdiction of

the federal court is derived from the state court’s

11

jurisdiction”). Here, defendants argue that because the court

does not have derivative jurisdiction over the official capacity

claims, plaintiff simply cannot re-assert those claims through

her amended complaint to establish jurisdiction. Doc. 17 at 24-

25; Doc. 23 at 9-10. See Francis v. ENI Exploration Program 1980-

II, No. 84-0005-CV, 1984 WL 817, at *2 (W.D. Mo. May 25,

1984) (citing Pavlov v. Parsons, 574 F. Supp. 393, 396-97 (S.D.

Tex. 1983)). Again, the court need not decide. Plaintiff is no

longer incarcerated at FMC Carswell and it appears that the

declaratory or injunctive relief she seeks is moot. See Tamfu v.

Ashcroft, 54 F. App’x 408, 2002 WL 31689212 (Sth Cir. 2002);

Edwards v. Johnson, 209 F.3d 772, 776 (5th Cir. 2000).

Vv.

Order

The court ORDERS that defendants’ motion to dismiss be, and

is hereby, granted, and that plaintiff’s claims be, and are

hereby, dismissed.

SIGNED July 23, 2019. .

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A / L a

JOAN

ited Statés Distyict Judge

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