Biron v. Upton

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

LISA BIRON, §

(BOP No. 12775-049) §

§

Plaintiff, §

V. § Civil Action No. 4:15-CV-205-P

§

JODY UPTON, Warden, §

FMC-Carswell, et al. §

§

Defendants. §

OPINION and ORDER GRANTING MOTION TO DISMISS

This 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

dismissed.

I. BACKGROUND

A. § 1915A/1915(e)(2)(B) Initial Screening, Appeal, and Order of Remand

Biron, 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 F. App’x 713 (5th Cir. 2018). After remand, Biron filed a first amended complaint. First

Am. Complaint 1–10, ECF No. 27.

B. Related Habeas Corpus Cases

Before 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).1 The background section

1The Court takes judicial notice of the docket and records of these prior cases filed

in this the Northern District of Texas. See Fed. R. Evid. 201(b)(2) and (c)(1).

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of the Opinion and Order issued by the court in case number 4:14-cv-772-O explains:

[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, No.4:14-CV-772-O.

As 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, 6–7.2 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

2Portions of the copy of the seven-page order of the New Hampshire court are located

in two places within the Respondent’s appendix filed in case number 4:14-cv-823-O; ECF

No. 19-1, 4-7 (order pages 1 through 4) and ECF No. 19, 6-8 (order pages 5 through 7).

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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.

C. Biron’s First Amended Complaint

Biron’s 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 R.B.

¶ 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 to call Michael Biron and R.B.

¶ 17. On or about December 12, 2014, Lauren Cimperman, in concert with SIS

Officer Kingsley, imposed a "Correctional Management Plan" to bar Ms.

Biron's contact with R.B.

¶ 18. On January 28, 2015, Lauren Cimperman issued a prison discipline report

against Ms. Biron for asking a family member over the phone to find out how

R.B. liked a book that she had received for Christmas.

¶ 19. On or about February 24, 2015, Lauren Cimperman issued a prison

discipline report against Ms. Biron for asking the family's pastor to contact R.B.

to see how she was doing.

¶ 20. On or about February 26, 2015, Ms. E. Smith-Branton sanctioned Ms.

Biron with loss of telephone privileges in connection with the February 24,

2015 incident report for attempting to exercise her constitutional right to

contact R.B.

¶ 21. On or about March 12, 2015, Ms. E. Smith-Branton sanctioned Ms. Biron

with loss of telephone privileges in connection with the January 28, 2015

incident report for attempting to exercise her constitutional right to contact R.B.

¶ 23. Since Ms. Biron's transfer to FCI Waseca, MN, she has requested that the

illegal bar to contact with her daughter R.B. be removed. Her request was

denied because the staff at Waseca did not independently evaluate the situation

and continue to enforce the Carswell defendants’ unconstitutional bar to

contact.

First Am. Complaint, 4–8, ECF No. 27. Immediately after the listing of each of these factual

allegations, Biron recites that “[This ‘act’ or ‘action’] violated Ms. Biron’s rights under the

First and Fifth Amendment to the U.S. Constitution as no State or Federal bar to contact

existed or exists and said act served no legitimate penalogical [sic] purpose in furtherance

of the safety and security of the institution or staff or protection of the public.” Id. Biron also

contends that she has a “First Amendment right to association with her daughter R.B. that

includes all legitimate forms of communication.” Id. 8. And Biron contends that she has a

“Fifth Amendment right to substantive due process which provides heightened protection

against government interferences with the parent-child relationship” and that the “defendants

have no legal basis to interfere with the constitutionally protected familial relationship.” Id.

at 9. As noted, Biron seeks both monetary damages and a declaratory judgment. Id. 10.

II. DEFENDANTS’ MOTION TO DISMISS

A. Rule 12(b)(6) Standard

A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6) is generally viewed with disfavor. Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242,

247 (5th Cir.1997). The court must accept all well-pleaded facts in the complaint as true and

view them in the light most favorable to the plaintiff. Bustos v. Martini Club Inc, 599 F.3d

458, 461 (5th Cir. 2010) (citing True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009)). Rule 12

must be interpreted in conjunction with Rule 8(a), which sets forth the requirements for

pleading a claim for relief in federal court and calls for “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court cannot

look beyond the face of the pleadings in resolving a Rule 12(b)(6) motion. Doe ex rel. Magee

v. Covington Cnty, Sch. Dist., 649 F.3d 335, 341 (5th Cir. 2011) (explaining that “[w]e

examine only the allegations within the four corners of the complaint”), aff’d on rehearing

en banc, 675 F.3d 849 (5th Cir. 2012). A plaintiff, however, must plead specific facts, not

mere conclusory allegations, to avoid dismissal. See Schultea v. Wood, 47 F.3d 1427, 1431

(5th Cir. 1995) (en banc); see also Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th

Cir. 2002) (“[C]onclusory allegations or legal conclusions masquerading as factual

conclusions will not suffice to prevent a motion to dismiss”) (citation omitted)). Rule of Civil

Procedure 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me-

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

As the United States Supreme Court explained in Bell Atlantic Corp. v. Twombly, the

plaintiff must plead “enough facts to state a claim to relief that is plausible on its face” and

his “factual allegations must be enough to raise a right to relief above the speculative level,

on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”

Twombly, 550 U.S. 544, 555 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46 (1957),

to the extent the Court concluded therein that a plaintiff can survive a motion to dismiss

“unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his

claims which would entitle him to relief”). Then, in Ashcroft v. Iqbal, the Supreme Court

clarified that review of a 12(b)(6) motion is guided by two principles: (1) a court must apply

the presumption of truthfulness only to factual matters and not to legal conclusions; and (2)

only a complaint that states a plausible claim for relief survives a motion to dismiss.

“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.”

Iqbal, 556 U.S. at 678-680. If the pleadings fail to meet the requirements of Iqbal and

Twombly no viable claim is stated and the pleadings are subject to dismissal.

B. Analysis – Whether Bivens Extends to Biron’s Constitutional Claims

1. Introduction

In Bivens, the United States Supreme Court for the first time “recognized ‘an implied

private action for damages against federal officers alleged to have violated a citizen’s

constitutional rights,’” specifically, under the Fourth Amendment. Butts v. Martin, 877 F.3d

571, 587 (5th Cir. 2017) (quoting Corr. Servs. Corp. V. Maelsko, 534 U.S. 61, 66 (2001)).

In subsequent decisions the Supreme Court decided only two other cases in which it

recognized an implied cause of action outside of the Fourth Amendment context: Davis v.

Passman, 442 U.S. 228 (1979) (holding the “Fifth Amendment Due Process Clause gave [the

petitioner] a damages remedy for gender discrimination”) and Carlson v. Green, 446 U.S.

14 (1980) (holding that the “Eighth Amendment Cruel and Unusual Punishments Clause gave

[a prisoner’s estate] a damages remedy for failure to provide adequate medical treatment”).

See Ziglar v. Abbasi, 137 S.Ct. 1843, 1854-55 (2017). In Abbasi, the Court noted that those

“three cases—Bivens, Davis, and Carlson—represent the only instances in which the Court

has approved of an implied damages remedy under the Constitution itself.” Id. at 1855. And

the Court explained it had “notabl[y] change[d] . . . [its] approach to recognizing implied

causes of action . . . ma[king] clear that expanding the Bivens remedy is now a ‘disfavored’

judicial activity.” Id. at 1857 (citing Iqbal, 556 U.S. at 675).

In remanding this case, the Fifth Circuit recognized the need for this court to address

the “foundational issue” of whether Bivens applies to Biron’s claims:

Since Bivens’s inception [in 1971], the Supreme Court has only extended

Bivens beyond the deprivation of Fourth Amendment rights on two occasions:

for violations of the Fifth Amendment Due Process Clause for gender

discrimination . . . and for violations of the Eighth Amendment prohibition

against cruel and unusual punishment.” Butts v. Martin, 877 F.3d 571, 587 (5th

Cir. 2017) (citing Davis v. Passman, 442 U.S. 228 (1979) and Carlson v.

Green, 446 U.S. 14 (1980)). Still alive because she has briefed them on appeal

are a First Amendment and a substantive due process claim under the Fifth

Amendment. If those are new contexts to which Bivens has not yet been

applied, the need arises to analyze whether Bivens should be extended to such

claims.

Biron, 737 F. App’x at 716.

In order to determine whether a Bivens remedy is available to Biron, this Court “must

first assess whether [her] claim[s] present a new Bivens context.” Butts, 877 F.3d at 587

(citing Ashcroft v. Iqbal, 556 at 675). “If so, there are two circumstances where Bivens does

not recognize an implied cause of action for constitutional violations. First, Bivens claims are

unavailable ‘if there are special factors counseling hesitation in the absence of affirmative

action by Congress.’” Butts, 877 F.3d at 587 (quoting Abbasi, 137 S.Ct. at 1857 (internal

citation omitted). “Second, Bivens remedies may be foreclosed by congressional action where

an ‘alternative, existing process for protecting the interest amounts to a convincing reason

for the Judicial Branch to refrain from providing a new and freestanding remedy in

damages.’” Butts, 877 F.3d at 587 (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)).

2. Whether Biron’s Claims Present a New Bivens Context

When confronted with an opportunity to extend Bivens to First Amendment claims,

the Supreme Court “decline[d] ‘to create a new substantive legal liability without legislative

aid and as at the common law’” because the Court determined that, “Congress is in a better

position to decide whether or not the public interest would be served by creating it.” Bush v.

Lucas, 462 U.S. 367, 390 (1983) (quoting United States v. Standard Oil Co. of Cal., 332 U.S.

301, 302 (1947); accord Iqbal , 556 U.S. at 675 (noting “we have declined to extend Bivens

to a claim sounding in the First Amendment”) (citing Bush, 462 U.S. at 368); Reichle v.

Howards, 566 U.S. 658, 663 N. 4 (2012) (“We have never held that Bivens extends to first

Amendment claims”) (citing Iqbal, 556 U.S. at 675; Bush, 462 U.S. at 368.) The Fifth Circuit

has also recognized that Bivens has not been extended to First Amendment claims. See Butts,

877 F.3d at 588 (5th Cir. 2017) (“Because the Supreme Court has not recognized a Bivens

remedy in the First Amendment context, Butts’s claim likely presents a new context under

Bivens”) (citing Abbasi, 137 S.Ct. at 1859 and Iqbal, 556 U.S. at 675); Brunson v. Nichols,

875 F.3d 275, 279 N.3 (5th Cir. 2017) (“[T]he Supreme Court strongly cautioned against

extending Bivens to new contexts. A First Amendment claim is likely a new context.”). Based

on these authorities and other recent cases, this Court concludes that Biron’s First Amendment

claim presents a new Bivens context. See Begay v. Leap, No. 3:17-cv-2639-N(BT), 2019 WL

1318410, at * 3 (N.D. Tex. Feb. 26, 2019) (reviewing the controlling case authority and

finding that federal prisoner plaintiff’s First Amendment claim presents a new Bivens

context), R & R adopted, 2019 WL 1315901 (N.D.Tex. Mar. 22, 2019); see also Zimmer v.

Sallet, No.17-7563, 2019 WL 5294944, at 5–6 (E.D. La. Oct. 18, 2019) (“A survey of district

court decisions in the wake of Butts shows a consistent hesitation in this [the Fifth] Circuit

to extend Bivens remedies to First Amendment claims”) (citations omitted).

Biron’s other constitutional claim arises under the substantive due process clause of

the Fifth Amendment. The Supreme Court has declined to extend a Bivens remedy to due

process claims in a number of contexts. Indeed, in Abassi, the Court declined to allow a

Bivens remedy to aliens who were in the United States without legal authorization but were

allegedly held without bail for several months in extremely harsh and physically abusive

conditions. Abbasi, 137 S.Ct. at 1852-53. There, the Supreme Court found that the prisoner

petitioner’s abuse claim under the Fifth Amendment’s substantive due process component

sought to extend Carlson, and derivatively, Bivens, to a new context. Id. at 1864 (“The

constitutional right is different here, since Carlson was predicated on an Eighth Amendment

and this claim is predicated on the Fifth.”) But the Supreme Court remanded for the lower

court to engage an analysis of any special factors counseling hesitation. Id. at 1865. Based

on their review of Abassi, other courts have expressly determined that substantive due process

claims under the Fifth Amendment arise in a new Bivens context. See Doe v. United States,

381 F.Supp. 3d 573, 611-12 (M.D. N.C. 2019)(“This case [including allegations that

individual defendants violated Plaintiff’s substantive due process rights under the Fifth

Amendment] arises in a new Bivens context.”); Harris v. Dunbar, No. 2:17-cv-536-WTL-

DLP, 2018 WL 3574736, at *4 (S.D. Ind. July 25, 2018). Applying the logic of these cases

to the claims here, the Court also concludes that Biron’s Fifth Amendment substantive due

process claim presents a new Bivens context.

Further, the Court notes that Biron concedes that both of her constitutional claims

present a new context, acknowledging that the Supreme Court “never recognized a First

Amendment Bivens claim,” and that the Supreme Court’s “Fifth Amendment Bivens case

arose in a federal employment sex discrimination case [] which bears no resemblance to Ms.

Biron’s case.” Biron’s Mem. 2, ECF No. 28. Thus, as the Court has found that both of Biron’s

claims present a new Bivens context, and she concedes this point, the Court must determine

whether it should expand the Bivens remedy to include her claims. That requires a review of

whether any “special factors”counsel hesitation in recognizing a new judicial remedy, and

whether alternative processes protect Biron’s interests.

3. Overview of Special Factors to Consider

When a purported Bivens claim is asserted in a new context, Abbasi requires

consideration of whether “special factors” counsel against inferring such a cause of action

in the absence of “affirmative action by Congress” to create one. Abbasi, 137 S. Ct. at 1857.

As clarified by Abbasi, this “inquiry must concentrate on whether the Judiciary is well suited,

absent congressional action or instruction, to consider and weigh the costs and benefits of

allowing a damages action to proceed.” Id. at 1857–58. A Bivens remedy should not be

inferred if “there are sound reasons to think Congress might doubt the efficacy or necessity

of a damages remedy as part of the system for enforcing the law and correcting a wrong.” Id.

at 1858 (emphasis added). Relatedly, “if there is an alternative remedial structure present in

a certain case,” the existence of that existing process “alone may limit the power of the

Judiciary to infer a new Bivens cause of action.” Id.

Although Biron asserts in her response that Congress could not have intended to fail

to provide federal inmates the same protections offered through 42 U.S.C. § 1983

authorization for a person to seek relief against individual state and local employees, that

reality is at the heart of the Abassi analysis. Resp. 1–2, ECF No. 53. Congress chose to create

a statutory cause of action, 42 U.S.C. § 1983, for money damages against persons acting under

color of state law for alleged violations of constitutional rights, but has not created a similar

cause of action against federal officials. Though Biron may disagree with this as a matter of

policy—she suggests it is “incredible”—her preference for a non-existent statutory remedy

does not change the need to conduct the Abbasi analysis of whether a Bivens remedy should

be extended to her constitutional claims.

4. Special Factors Counsel Against Bivens Expansion.

One of the most significant special factors, emphasized repeatedly in Abbasi, are

separation-of-powers principles. See Abbasi, 137 S. Ct. at 1857 (“When a party seeks to asser

an implied cause of action under the Constitution itself, . . . separation-of-powers principles

are or should be central to the analysis”). Abbasi recognized that Congress’s failure to provide

a damages remedy is both “relevant” and “telling” when it has regulated extensively in a

specific arena and made specific policy choices as to how complaints should be resolved. Id.

at 1862. Here, Congress has legislated extensively with respect to prisoners’ rights, and

“legislative action suggesting that Congress does not want a damages remedy is itself a factor

counseling hesitation.” Id. at 1865. “Some 15 years after Carlson was decided, Congress

passed the Prison Litigation Reform Act of 1995 (“PLRA”), which made comprehensive

changes to the way prisoner abuse claims must be brought in federal court.” Id. (citing 42

U.S.C. § 1997e). “So it seems clear that Congress had specific occasion to consider the matter

of prisoner abuse and to consider the proper way to remedy those wrongs.” Id. Abbasi makes

clear that Congress could have extended the Carlson damages remedy to cases involving other

types of prisoner mistreatment, but chose not to. Id.

Biron argues in her response that Congress’s enactment of the PLRA actually should

be taken as evidence that Congress “approved of Bivens-damages actions.” Resp. 2 , ECF No.

53. However, Brion’s argument is refuted by the analysis in Abbasi. As noted above, the

Supreme Court noted in Abbasi that the PLRA “does not provide for a standalone damages

remedy against federal jailers”—even though Congress, when enacting the PLRA, “had

specific occasion to consider the manner of prisoner abuse and to consider the proper way

to remedy those wrongs.” Abbasi, 137 S. Ct. at 1865. Thus, Biron’s reference to the enactment

of the PLRA to justify an expansion of the Bivens remedy is rejected.

Additional special factors that weigh against extending Bivens to the type of First and

Fifth Amendment claims asserted by Biron are the system-wide costs associated with the

creation of a damages remedy absent congressional action. As Abbasi instructs, “the decision

to recognize a damages remedy requires an assessment of its impact on governmental

operations systemwide.” Abbasi, 137 S. Ct. at 1858. This includes “the burdens on

Government employees who are sued personally, as well as the projected costs and

consequences to the Government itself . . . .” Id. In the prison context, these burdens and costs

are particularly high due, in part, to the sheer volume of potential litigation arising from the

creation of a Bivens remedy––there are more than 175,000 federal inmates and over 36,000

BOP employees. See Federal Bureau of Prisons, About Our Agency,

https://www.bop.gov/about/agency/ (last visited Jan. 6, 2020).

Yet another special factor counseling hesitation here is the difficulty in creating a

workable cause of action. See Abbasi, 137 S. Ct. at 1864–65 (discussing the lack of clarity

as to the legal standard for a purported Bivens claim alleging a warden allowed staff to abuse

a pretrial detainee); Vanderklok v. United States, 868 F.3d 189, 209 (3d Cir. 2017)

(recognizing the “inherent uncertainty surrounding” the applicable legal standard as “a factor

counseling hesitation” in expanding Bivens). Congress and the Supreme Court have repeatedly

deferred to the Attorney General and prison administrators’ expertise because “the problems

that arise in the day-to-day operation of a corrections facility are not susceptible of easy

solutions.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). Biron’s claims relating to prison

officials’ attempts to manage Biron’s contact with her victim/daughter are matters of prison

administration and are not subject to any clear legal standard so as to make a Bivens claim

viable. Moreover, by not legislating a Bivens-type remedy in this area despite ample

opportunity to do so, it is clear that Congress does not intend for such a remedy to be created

and that these matters of prison discipline and control are better left to prison officials with

appropriate oversight through existing court procedures (like habeas petitions). This is

especially true in the context of this particular case, given the self evident policy implications

of preventing persons convicted of sexual crimes with a minor from contacting and having

further opportunities to attempt to manipulate their victims, even from prison.

5. Alternative Remedial Processes Available to Biron.

One key consideration against implying a Bivens remedy in a new context is the

availability of alternative processes to address the allegedly improper actions by prison

officials. For example, prisoners like Biron can seek “an injunction requiring the warden to

bring his prison into compliance” or can seek “some other form of equitable relief.” Abbasi,

137 S. Ct. at 1865. And this “existence of alternative remedies usually precludes a court from

authorizing a Bivens action.” Id. Here, in fact, Biron has already taken advantage of several

alternative processes available to her by: (1) filing separate habeas actions to contest the

discipline imposed against her for attempting to contact her victim/daughter; and (2) filing

official-capacity claims for equitable relief. The fact that Biron did not prevail in the other

habeas-corpus actions and abandoned her official-capacity claims on appeal in this case does

not change the calculus, because it is the availability of the alternative remedy that is key, not

whether the person is able to ultimately succeed under that remedy. See Andrews v. Miner,

301 F. Supp. 3d 1128, 1134-36 (N.D. Ala. 2017) (rejecting expansion of Bivens into a new

context after noting that the prisoner was able to pursue administrative remedies, “albeit

unsuccessfully”).

The Federal Bureau of Prisons’ Administrative Remedy Program is another alternative

process available to prisoners like Biron. Under this program, prisoners can file grievances

about any aspect of their confinement, the agency must provide written responses in specified

time frames, and prisoners may appeal institution-level responses to the agency’s regional

and central offices. See 28 C.F.R. §§ 542.10–19 (2017). Numerous courts post-Abbasi have

recognized that the Administrative Remedy Program is an alternative process and a special

factor that forecloses expansion of the Bivens remedy. See, e.g., Begae v. Leap, No. 3:17-CV-

2639-N-BT, 2019 WL 1318410, at *3 (N.D. Tex. Feb. 6, 2019), R and R adopted, 2019 WL

1315901 (N.D. Tex. Mar. 22, 2019) (“[S]everal courts have explicitly recognized the

administrative remedy program (‘ARP’) available in the prison setting as an alternative

process foreclosing a personal-capacity damages remedy”) (quoting Brunson v. Nichols, 2018

WL 7286410, at *3 (W.D. La. Dec. 7, 2018), R and R adopted, 2019 WL 545479 (W.D. La.

Feb. 11, 2019)); Vega v. United States, 881 F.3d 1146, 1154 (9th Cir. 2018); Muhammad v.

Gehrke, No. 2:15-CV-334, 2018 WL 1334936, at *4 (S.D. Ind. Mar. 15, 2018); Howard v.

Lackey, No. 7:16-CV-129, 2018 WL 1157547, at *3 (E.D. Ky. Mar. 5, 2018); and Gonzalez

v. Hasty, 269 F. Supp. 3d 45, 60 (E.D. N.Y. 2017). Although Biron argues in her response

that the three-level administrative remedy program is a “farce,” she acknowledges the “trend”

that various “U.S. District Courts” have refused to extend Bivens liability due to the

availability of that program. Resp. 8, ECF No. 53. But Biron does not offer any legal authority

undermining the administrative remedy program, and her conjectures regarding the

effectiveness of the program are inadequate to justify the creation of a new Bivens cause of

action.

Moreover, Biron also could have challenged any “no contact” orders or orders

involving her parental rights in the underlying state family-court proceedings or in her

criminal case. Biron disagress, arguing that her parental rights were never terminated. Resp.

6, ECF No. 53. But she never explains the significance of this fact in relation to the question

of whether Bivens should be expanded to her novel claims. The Court has already taken

judicial notice of the records of a prior habeas corpus proceeding before this Court, Biron v.

Upton, No. 4:14-CV-823-O that included a record of a New Hampshire court order that Biron

“not contact or attempt to contract [R.B.] either directly or indirectly” and shall have no

contact with [R.B.] including third party contact except that as my be deemed appropriate by

and monitored by DCYF.” See supra page 3, n. 2. Regardless of whether a termination-of-

rights occurred, the Court order in question clearly barred Biron from contacting her daughter.

Accordingly, Biron would have had every incentive to challenge this order if she believed

it to be inappropriate or improper. Biron elected not to do so. Her choice to forego processes

by which she could have challenged the no-contact order does not mean that an alternative

process was not then available to her. Biron essentially seeks to collaterally challenge the non-

contact decisions through an expansion of the Bivens remedy, but that is not proper given that

she had ample opportunity to litigate the issue of her relationship with her victim/daughter

in these other proceedings.

For the foregoing reasons, there are no grounds for expanding the Bivens remedy to

encompass Biron’s constitutional claims. Indeed, with respect to purported First Amendment

claims such as Biron’s, another court in this district recently noted that “independent research

further reveals that other district courts recently faced with similar questions about implying

a Bivens remedy in the First Amendment context have declined to do so because such action

would ‘violate Congress’s intent, create increased costs on the Bureau of Prisons, and have

a harmful effect on institutional security and federal officers’ discharge of their duties.”

Begay, 2019 WL 1318410, at *4 (quoting Butler v. Porter, 2018 WL 6920355, at *3 (W.D.

La. Sep. 10, 2018), R and R adopted, 2019 WL 81677 (W.D. La. Jan. 2, 2019)). Also

instructive is the Third Circuit’s recent discussion of such a claim in Bistrian v. Levi, 912 F.3d

79 (3d Cir. 2018). In rejecting a prisoner’s attempt to proceed on a First Amendment Bivens

claim, the court explained that “[t]he Supreme Court has never recognized a Bivens remedy

under the First Amendment” and that, “[n]ationwide, district courts seem to be in agreement

that, post-Abbasi, prisoners have no right to bring a Bivens action for violation of the First

Amendment.” Id. at 95, 96 (internal citations and quotation marks omitted). “Finally,

persuasive circuit court precedent informs the Court’s decision not to extend a Bivens remedy

to Plaintiff’s claims that his First Amendment rights were violated . . ..” Zimmer v. Sallet,

No.17-7563, 2019 WL 5294944, at *5 (E.D. La. Oct. 18, 2019) (citing Bistrian, 912 F.3d

at 95-96 and Vega v. United States, 881 F.3d 1146 (9th Cir. 2018)).

Similarly, courts that have considered purported Fifth Amendment Bivens claims

post-Abbasi have found such claims unavailable. See Gonzalez, 269 F. Supp. 3d at 59–63;

Mercer v. Matevousian, No. 1:18- CV-265, 2018 WL 3917969, at *2–3 (E.D. Cal. Aug. 14,

2018). Because Biron’s first amended complaint seeks monetary damages relief for violation

of her First and Fifth Amendment rights under Bivens, and review of the law and underlying

records confirms that no Bivens remedy is available for her claims, the Defendants’ collective

motion to dismiss these claims under Federal Rule of Civil Procedure 12(b)(6) must be

granted and Biron’s constitutional claims against all defendants must be dismissed.3

3In the motion to dismiss under Rule 12(b)(6), Defendants also argue that they are

each entitled to qualified immunity. Mot. Dismiss 17–19, 26–28, ECF No.45. Because the

Court has determined that plaintiff Biron lacks a cause of action under Bivens, the Court need

not address the qualified immunity issue. See generally Maria S. As Next Friend for E.H.F.

v. Garza, 912 F.3d 778, 783 (5th Cir. 2019)(“The district court granted summary judgment

on the issue of qualified immunity, but the defendants prevail on an alternative basis: the

plaintiffs lack an implied cause of action under Bivens”). Furthermore, and alternatively, each

remaining Defendant is entitled to qualified immunity for the reasons stated in the

defendants’ motion to dismiss, at section II(B) and III(B)(1).

C. Dismissal of Remaining Claim for Declaratory Relief

As noted above, Biron also continues to seek relief against the Defendants for a

declaratory judgment that the acts and omission of the defendants violated her constitutional

rights. First Am. Complaint 2, 10, ECF No. 27. First, as the court of appeals’ disposition of

this case made clear, Biron abandoned any official capacity claims against the defendants.

Biron, 737 F. App’x at 716. Therefore, any claim for declaratory relief would have to be

considered only against the defendants in their individual capacities. Where Biron is seeking

relief relating to the defendants’ actions taken in the course of their duties as prison officials,

however, no such relief is available in a personal capacity. See Feit v.Ward, 886 F.2d 848,

858 (7th Cir. 1989) (concluding that a plaintiff’s “attempt to obtain declaratory and injunctive

relief from the defendants in their personal capacities fails to state a claim upon which relief

may be granted”); Thomas v. Matevousian, No. 1:17-CV- 1592, 2018 WL 5099763, at *5

(E.D. Cal. Oct. 18, 2018) (“Relief under Bivens does not encompass injunctive and declaratory

relief where the equitable relief sought requires official government action. . . . Bivens is both

inappropriate and unnecessary for claims seeking solely equitable relief against actions by

the federal government . . ..”) (internal citations omitted), R and R adopted as modified on

other grounds, 2019 WL 266323 (E.D. Cal. Jan. 18, 2019).

Further, while this case was previously on appeal, Biron was transferred from FMC-

Carswell, where all Defendants are based and where all of her claims arise, to the BOP’s FCI-

Waseca facility in Waseca, Minnesota.4 ECF No. 21 (Biron’s letter to the Clerk of Court

4Biron remains housed at FCI-Waseca. See www.bop.gov (Lisa Biron, register number

12775-049) (last visited January 6, 2020).

providing new BOP address). Any claims that Biron may purport to have for declaratory relief

against the defendants in this case—all FMC-Carswell officials—were therefore rendered

moot by Biron’s transfer out of FMC-Carswell. See Smith v. City of Tupelo, 281 F. App’x

279, 282 (5th Cir. 2008) (“A claim for declaratory and injunctive relief based on conditions

of confinement is rendered moot upon the prisoner’s release or transfer from the facility.”);

Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (transfer mooted claim for declaratory

relief, and “any suggestion of relief based on the possibility of transfer back to the [plaintiff’s

prior facility of incarceration] is too speculative to warrant relief”). If a case becomes moot,

it deprives the court of jurisdiction and it should be dismissed under Federal Rule of Civil

Procedure 12(b)(1). Beleno v. Lakey, 306 F. Supp. 3d 930, 946 (W.D. Tex. 2009) (citing

Spencer v, Kemna, 523 U.S. 1, 7 (1998)). A court may sua sponte raise a 12(b)(1) motion to

dismiss for lack of jurisdiction at any time. Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07

(2006); MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). And, Rule

12(h)(3) requires the Court to dismiss an action it it determines it lack subject matter

jurisdiction. See Fed. R. Civ. P. 12(h)(3). Therefore, Biron’s remaining claim for a declaratory

judgment must be dismissed under authority of Rules 12(b)(1) and 12(h)(3).

III. CONCLUSION AND ORDER

For all of the above and foregoing reasons,

It is ORDERED that the Defendants’ motion to dismiss for failure to state a claim

under Rule 12(b)(6) is GRANTED such that all plaintiff Lisa Biron’s claims under the First

and Fifth Amendments to the Constitution are DISMISSED WITH PREJUDICE; and

furthermore, Biron’s remaining claim for declaratory judgment is DISMISSED for lack of

jurisdiction.

SO ORDERED on this 7th day of January, 2020.