# Biron v. Upton

> District Court, N.D. Texas · July 23, 2019

URL: https://www.frixlaw.com/law-library/cases/10447665

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** July 23, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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. .
— ee
A / L a
JOAN
ited Statés Distyict Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10447665. Public record. Not legal advice.