# Smith v. Carvajal

> District Court, N.D. Texas · September 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10450478

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** September 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CALEB SMITH, §
§
Plaintiff, §
§
v. § CIVIL ACTION NO. 3:20-CV-2062-B
§
MICHAEL CARVAJAL, KRISTIN §
ZOOK, and UNITED STATES OF §
AMERICA, §
§
Defendants. §
MEMORANDUM OPINION AND ORDER
Before the Court are a motion to dismiss (Doc. 13) filed by the Government and a motion
to dismiss (Doc. 15) filed by Defendants Michael Carvajal and Kristin Zook.1 For the reasons that
follow, the Court GRANTS the motions and DISMISSES Plaintiff Caleb Smith’s amended
complaint (Doc. 12).
I.
BACKGROUND2
On February 26, 2016, Smith was sentenced to 235 months of imprisonment and three years
of supervised release after he pleaded guilty to conspiracy to possess with intent to distribute
methamphetamine. J. at 1–4, United States v. Smith, No. 4:15-CR-0214-A-2 (N.D. Tex. Feb. 28,
1 For simplicity’s sake, this Order refers to Carvajal and Zook, together, as “the Individual
Defendants” and refers to Carvajal, Zook, and the Government, collectively, as “Defendants.”
2 The Court derives the factual background from Plaintiffs’ Amended Complaint (Doc. 12) and from
matters of public record. See Norris v. Hearst Tr., 500 F.3d 454, 461 n.9 (5th Cir. 2007) (citation omitted).
For purposes of this Order, the Court takes all of Smith’s factual assertions as true. See In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (citation omitted).
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2016), ECF No. 60; Doc. 12, Am. Compl., ¶ 9. Smith, who is thirty-six years old, is currently
incarcerated at Seagoville Federal Correctional Institution (FCI), with a statutory release date of
November 4, 2031.3

In April 2020, near the onset of the COVID-19 pandemic in the United States, Smith filed
a motion for compassionate release in the court that sentenced him—the district court for the
Northern District of Texas, Fort Worth Division—citing “serious or life[-]threatening complications
if he contracts COVID-19” as the basis for his requested release. Mot. at 2, United States v. Smith,
No. 4:15-CR-0214-A-2 (N.D. Tex. Apr. 15, 2020), ECF No. 93. The court denied Smith’s motion
because he failed to exhaust his administrative remedies. Order at 1, United States v. Smith, No.
4:15-CR-0214-A-2 (N.D. Tex. Apr. 15, 2020), ECF No. 94; Final J. at 1, United States v. Smith, No.

4:15-CR-0214-A-2 (N.D. Tex. Apr. 15, 2020), ECF No. 95.
Smith claims to suffer from “severe asthma” and to be “highly prone to pneumonia,” and
alleges that these conditions make him “susceptib[le] to complications and death” should he contract
COVID-19. Doc. 12, Am. Compl. ¶ 9. Smith argues that the “growing spread” of COVID-19 and
rising “death count” in Texas “have put [him] at an even greater risk.” Id. ¶ 10. Moreover, Smith
notes that “[i]n prisons[,] inmates are held in tight quarters and have trouble practicing social

distancing” or implementing “other counter measures to stop the spread of” COVID-19. Id. On July
5, 2020, Smith was diagnosed with COVID-19. Id. ¶ 11. Since his diagnosis, Smith suffers from “fluid
in [his] lung[,] . . . a hacking cough, shortness of breath, [inability to smell or taste], and body aches
among other symptoms.” Id. Smith claims that “[t]here are indications that C[OVID]-19 immunity

3 The Court derives this information from the Bureau of Prisons (BOP)’s Inmate Locator, available
at https://www.bop.gov/inmateloc/ (last accessed August 26, 2021).
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wears off” and that he is thus “not guaranteed protection from reinfection.” Id. ¶ 12.
On April 13, 2020, and July 3, 2020, Smith’s counsel notified Zook4—the Warden of
Seagoville FCI—of the “medical situation involving” Smith. Doc. 12, Am. Compl., ¶ 16.

Additionally, through his counsel, Smith sent three additional letters to Zook and Carvajal—the
Director of the Federal Bureau of Prisons (BOP)—dated July 9, 2020, July 19, 2020, and July 29,
2020, “alerting them to the situation[.]” Id. ¶¶ 13–15. Zook and Carvajal did not respond to these
letters. Id.
On August 4, 2020, Smith filed a complaint (Doc. 1) in this Court against the Individual
Defendants and subsequently amended his complaint on February 23, 2021. See generally Doc. 12,
Am. Compl. In his amended complaint, Smith asserts “a claim against [the Individual] Defendants

for their deliberately indifferent, negligent, and grossly negligent medical care related to
C[OVID]-19.” Id. ¶ 20 (footnote omitted). Smith also asserts a claim against the Individual
Defendants for damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
Id. ¶ 19. Smith requests thirteen categories of damages, as well as “any other such relief as is deemed
just and proper.” Id. ¶ 21.
By a notice filed on February 2, 2021, the Government substituted itself for the Individual

Defendants, pursuant to the Westfall Act. Doc. 8, Gov’t’s Notice. Defendants filed their motions to
dismiss (Docs. 13 & 15) on March 9, 2021. The motions have been fully briefed and are ripe for
review.

4 Smith’s complaint misidentifies Zook as “Kristi Ciolli.” Doc. 12, Am. Compl., ¶ 6; Doc. 15,
Individual Defs.’ Mot., 1 n.1.
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II.
LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)

“Federal courts are courts of limited jurisdiction.” Stockman v. Fed. Election Comm’n, 138 F.3d
144, 151 (5th Cir. 1998). For that reason, they can adjudicate claims only when subject matter
jurisdiction is expressly conferred by the Constitution and federal statute. Id. “Federal Rule of Civil
Procedure 12(b)(1) provides the vehicle through which” a party may challenge federal jurisdiction.
Armstrong v. Tygart, 886 F. Supp. 2d 572, 584 (W.D. Tex. 2012) (citations omitted).
“A Rule 12(b)(1) motion can mount either a facial or factual challenge.” MacKenzie v. Castro,
2016 WL 3906084, at *2 (N.D. Tex. July 19, 2016). A facial challenge occurs “when a party files a

Rule 12(b)(1) motion without including evidence.” Id. A factual challenge, by contrast, occurs when
a party supports its Rule 12(b)(1) motion with evidence. Id.
In both cases, the burden of proof “is on the party asserting jurisdiction.” Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam). Yet that is no high bar: “[I]t is extremely
difficult to dismiss a claim for lack of subject matter jurisdiction.” Santerre v. AGIP Petrol. Co., 45 F.
Supp. 2d 558, 566 (S.D. Tex. 1999) (quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256,

1260 (11th Cir. 1997)).
In reviewing a facial challenge, courts consider just “the allegations in the complaint because
they are presumed to be true.” Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). But this
is a factual challenge. Plaintiffs enjoy no presumption of truthfulness here. See Williamson v. Tucker,
645 F.2d 404, 412–13 (5th Cir. 1981). Instead, they must “prove subject matter jurisdiction by a
preponderance of the evidence.” MacKenzie, 2016 WL 3906084, at *2 (citing Paterson, 644 F.2d at
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523). To that end, each party may submit affidavits, testimony, and other evidentiary materials in
support of their positions. Paterson, 644 F.3d at 523.
B. Federal Rule of Civil Procedure 12(b)(2)

Federal Rule of Civil Procedure 12(b)(2) allows for dismissal of an action in which the court
lacks personal jurisdiction over the defendant. “The due process clause of the Fourteenth
Amendment, as interpreted by the Supreme Court, permits the exercise of personal jurisdiction over
a nonresident defendant when (1) that defendant has established ‘minimum contacts’ with the forum
state; and (2) the exercise of jurisdiction over that defendant does not offend ‘traditional notions of
fair play and substantial justice.’” Ruston Gas Turbines, Inc. v. Donaldson Co., Inc., 9 F.3d 415, 418
(5th Cir. 1993) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “Both prongs of the

due process test must be met” to exercise personal jurisdiction over a defendant. See id.
A nonresident defendant’s minimum contacts may either support an assertion of specific or
general jurisdiction. WNS Inc. v. Farrow, 884 F.2d 200, 202 (5th Cir. 1989). A court may exercise
specific jurisdiction when a cause of action arises out of a defendant’s purposeful contacts with the
forum. Dalton v. R & W Marine, Inc., 897 F.2d 1359, 1361–62 (5th Cir. 1990). Alternatively, a court
is said to have general jurisdiction when a defendant has engaged in continuous and systematic

contacts with the forum. Id.
The party seeking to invoke federal jurisdiction bears the burden of establishing the requisite
minimum contacts. WNS, 884 F.2d at 203. Further, “uncontroverted allegations in the plaintiff’s
complaint must be taken as true, and conflicts between the facts contained in the parties’ affidavits
must be resolved in the plaintiff’s favor for purposes of determining whether a prima facie case for
personal jurisdiction exists.” D.J. Invs., Inc. v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d
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542, 546 (5th Cir. 1985) (citations omitted).
C. Federal Rule of Civil Procedure 12(b)(6)
A complaint must contain “a short and plain statement of the claim showing that the pleader

is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). If a plaintiff’s complaint fails to state such a claim,
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to dismiss. In
considering a Rule 12(b)(6) motion to dismiss, “[t]he court accepts all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” In re Katrina, 495 F.3d at 205 (quotation
marks omitted) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467
(5th Cir. 2004)). The Court will “not look beyond the face of the pleadings to determine whether
relief should be granted based on the alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.

1999) (citation omitted). However, the Court may “take judicial notice of matters of public record”
when deciding a Rule 12(b)(6) motion. Norris, 500 F.3d at 461 n.9.
To survive a motion to dismiss, a plaintiff “must plead facts sufficient to show that her claim
has substantive plausibility.” Johnson v. City of Shelby, 547 U.S. 10, 12 (2014). That means “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard “is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. When pleaded facts fail to meet this standard, “the complaint has alleged—but it has not
shown—that the pleader is entitled to relief.” Id. at 679 (quotation marks and alterations omitted).
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III.
ANALYSIS
Smith asserts against the Individual Defendants claims for “deliberately indifferent, negligent,

and grossly negligent medical care” and claims under Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971). Doc. 12, Am. Compl., ¶¶ 18–20 (footnote omitted). As discussed in Section
III.B., Smith’s claims for “deliberately indifferent, negligent, and grossly negligent medical care” are
asserted under the Federal Tort Claims Act (FTCA). Id. ¶ 20.
The Court first addresses the Government’s Notice of Substitution (Doc. 8) and finds that
the Government is substituted for the Individual Defendants as to Smith’s FTCA claims. Then, the
Court considers the Government’s motion to dismiss (Doc. 13) and dismisses Smith’s FTCA claims.

Finally, the Court considers the Individual Defendants’ motion to dismiss (Doc. 15) and dismisses
Smith’s remaining Bivens claims.
A. The Government Is Substituted for the Individual Defendants on Smith’s FTCA Claims.
The Government has properly substituted itself as the defendant in this case, pursuant to its
Notice of Substitution (Doc. 8).
Title 28 U.S.C. § 2679(d), also known as the Westfall Act, provides:

Upon certification by the Attorney General that the defendant employee was acting
within the scope of his office or employment at the time of the incident out of which
the claim arose, any civil action or proceeding commenced upon such claim . . . shall
be deemed an action or proceeding brought against the United States . . . , and the
United States shall be substituted as the party defendant.
28 U.S.C. § 2679(d)(2). Upon such certification, the action against the employee “shall proceed in
the same manner as any action against the United States [under the FTCA] . . . and shall be subject
to the limitations and exceptions applicable to those actions.” 28 U.S.C. § 2679(d)(4); see Williams
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v. Brooks, 862 F. Supp. 151, 152 (S.D. Tex. 1994).
The Government provides two certifications—both signed by the Civil Chief of the United
States Attorney’s Office for the Northern District of Texas5—stating that Carvajal and Zook were

“acting within the course and scope of [their] employment at the time of the incidents out of which
the claim[s] in this matter arose.” Doc. 8, Notice, 6, 8. These certifications are “prima facie evidence
that the employee[s’] challenged conduct was within the scope of employment.” Williams, 862 F.
Supp. at 152 (quoting Schrob v. Catterson, 967 F.2d 929, 935 (3d Cir. 1992)). If Smith disputes the
certifications, he “must come forward with specific facts . . . establishing that [Zook and Carvajal]
w[ere] not acting within the scope of [their] official duties under § 2679.” Id. (citations omitted).
Smith does not contest the certifications.

Accordingly, the Government is hereby SUBSTITUTED as the defendant for Smith’s FTCA
claims originally asserted against the Individual Defendants. Having determined that the substitution
is proper, the Court considers whether Smith’s FTCA claims against the Government should be
dismissed, and whether Smith’s Bivens claims against the Individual Defendants should be dismissed.
B. Smith’s FTCA Claims Are Dismissed.
Smith responds to the Government’s motion to dismiss by stating that he “has not sued the”

Government. Doc. 22, Pl.’s Resp., 1. But as discussed, the Government is substituted for the
Individual Defendants for Smith’s FTCA claims for “deliberately indifferent, negligent, and grossly
negligent medical care.” Doc. 12, Am. Compl., ¶ 20. Because Smith failed to exhaust his

5 The Attorney General has delegated his “authority to certify . . . to the United States Attorney for
each district, who has further delegated the authority to the Civil Chief for the United States Attorney’s
Office.” Doc. 8, Notice, 2–3; see 28 C.F.R. § 15.4(a); U.S. Dep’t of Just., Just. Manual § 4-5.630 (2018).
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administrative remedies prior to filing the instant suit, the Court lacks subject matter jurisdiction
over Smith’s claim against the Government.
“The United States is a sovereign, and, as such, is immune from suit unless it has expressly

waived such immunity and consented to be sued.” Hebert v. United States, 438 F.3d 483, 487–88 (5th
Cir. 2006) (alterations incorporated) (quoting Smith v. Booth, 823 F.3d 94, 96 (5th Cir. 1987)).
Through the FTCA, Congress waived sovereign immunity and consented to suit against the
Government “for injury or loss of property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while acting within the scope of his
office or employment[.]” 28 U.S.C. § 1346(b)(1); see Life Partners Inc. v. United States, 650 F.3d
1026, 1030–31 (5th Cir. 2011) (citing § 1346(b)). To establish jurisdiction in federal court under

the FTCA, however, a plaintiff must first exhaust his administrative remedies by “present[ing] the
claim to the appropriate Federal agency[.]” 28 U.S.C. § 2675(a); see Life Partners, 650 F.3d at
1029–30 (citations omitted). A federal lawsuit can only be instituted once the administrative claim
is either “finally denied by the agency, in writing” or deemed denied by “failure of an agency to make
final disposition of a claim within six months after it is filed[.]” § 2675(a). The purpose of this
exhaustion requirement “is to ease court congestion and avoid unnecessary litigation, while making

it possible for the Government to expedite the fair settlement of tort claims asserted against the
United States.” Life Partners, 650 F.3d at 1030 (quoting Frantz v. United States, 29 F.3d 222, 224 (5th
Cir. 1994)).
To start, Smith’s claims for “deliberately indifferent, negligent, and grossly negligent medical
care,” Doc. 12, Am. Compl., ¶ 20, fall squarely under the FTCA, which covers claims “for injury or
loss of property, or personal injury or death caused by the negligent or wrongful act or omission of
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any employee of the Government while acting within the scope of his office or employment.”
§ 1346(b)(1). Thus, the Court considers whether Smith exhausted his administrative remedies as
required under the FTCA. See § 2675(a).

Smith claims that he “filed all the necessary grievances and exhausted his administrative
remedies,” Doc. 12, Am. Compl., ¶ 17, and the Government “does not dispute that Smith filed an
administrative claim with the BOP.” Doc. 13, Gov’t’s Mot., 4. However, the Government provides
a copy of Smith’s administrative claim and points out that it “was deemed received by . . . the BOP
on September 14, 2020.” Id.; see also Doc. 14, Gov’t’s App., 4. And as the Government points out,
“Smith filed the instant lawsuit on August 4, 2020, more than a month before he filed an
administrative claim.” Doc. 13, Gov’t’s Mot., 5 (emphasis in original). Smith does not allege any

other administrative claim made to the BOP. See generally Doc. 12, Am. Compl.; Doc. 22, Pl.’s Resp.
Thus, the Government is correct that “any FTCA claim could not have been exhausted at
the time suit was filed.” Doc. 13, Gov’t’s Mot., 5. Indeed, Smith was required to wait until the BOP
denied his application or until March 12, 2021—six months after filing his claim—to institute a
federal lawsuit. § 2675(a). Smith, therefore, had not exhausted his administrative remedies before
filing suit and asserting his FTCA claim. And though the six-month waiting period has now passed,

“[a]n action that is filed before the expiration of the six-month waiting period, and is thus untimely,
cannot become timely by the passage of time after the complaint is filed.” Price v. United States, 69
F.3d 46, 54 (5th Cir. 1995) (citing McNeil v. United States, 508 U.S. 106, 112–13 (1993)). The
Court’s subject matter jurisdiction “is conditioned on compliance with 28 U.S.C. § 2675(a), which
declares that ‘an action shall not be instituted’ unless the plaintiff has filed an administrative claim
and either obtained a written denial or waited six months. . . . This requirement is jurisdictional, and
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may not be waived.” Id. (quoting § 2675(a)).
Smith’s failure to exhaust his administrative remedies before asserting his FTCA claim in this
Court deprives this Court of jurisdiction. See id. Accordingly, the Court GRANTS the Government’s

motion (Doc. 13) and DISMISSES Smith’s FTCA claims.
C. Smith’s Bivens Claims Are Dismissed.
Because the Government is substituted for the Individual Defendants on Smith’s FTCA
claims, “[a]ny other civil action or proceeding for money damages arising out of or relating to the
same subject matter against [Carvajal or Zook] . . . is precluded[.]” § 2679(b)(1). Smith’s FTCA
claims, as asserted against the Individual Defendants, are therefore dismissed and the Court only
considers Smith’s Bivens claim.

The Individual Defendants seek dismissal of Smith’s Bivens claims on various grounds such
as lack of personal jurisdiction, and qualified immunity, and failure to state a claim. See generally Doc.
15, Individual Defs.’ Mot. The Court addresses these grounds and dismisses Smith’s Bivens claims.
1. The Court lacks personal jurisdiction over Carvajal.
Smith’s Bivens claims against Carvajal are dismissed for lack of personal jurisdiction. Smith,
as “[t]he party seek[ing] to invoke the jurisdiction of the district court[,] bears the burden of

establishing” the requisite minimum contacts. WNS, 884 F.2d at 203 (citation omitted). Even taking
the “uncontroverted allegations in [Smith’s] complaint . . . as true,” Smith has not established “a
prima facie case for personal jurisdiction[.]” See D.J. Invs., 754 F.2d at 546 (citations omitted).
Indeed, Smith fails to allege “minimum contacts” between Carvajal and the forum
state—Texas. See Ruston Gas, 9 F.3d at 418 (quoting Int’l Shoe, 326 U.S. at 316). First, Smith does

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not allege that Carvajal is a resident of Texas6 and does not otherwise allege that Carvajal has
“engaged in continuous and systematic contacts with” Texas such that the Court has general
jurisdiction over Carvajal. See Dalton, 897 F.2d at 1361–62.

Moreover, Smith does not adequately allege that his “cause of action arises out of [Carvajal’s]
purposeful contacts with” Texas. See id. The only apparent contacts between Carvajal and Texas
relevant to this case include Carvajal’s supervisory authority over Seagoville FCI—a prison in
Texas—and his failure to respond to letters written on behalf of Smith. See Doc. 12, Am. Compl.
¶¶ 7, 13–15. However, as the Individual Defendants point out, Carvajal “cannot be subject to
personal jurisdiction in Texas simply because, in his capacity as BOP Director, he oversees federal
prisons in the state.” Doc. 15, Individual Defs.’ Mot., 6; see also Hill v. Pugh, 75 F. App’x 715, 719

(10th Cir. 2003) (“It is not reasonable to suggest that federal prison officials may be hauled into court
simply because they have regional and national supervisory responsibilities over facilities within a
forum state.”); Nwanze v. Philip Morris, Inc., 100 F. Supp. 2d 215, 220 (S.D.N.Y. 2000) (“Mere
supervision over the [BOP], the reach of which extends into every state, is insufficient to establish
a basis for the exercise of personal jurisdiction.”). And Carvajal’s failure to respond to Smith’s letters,
if considered “contact[]” at all, certainly does not demonstrate “purposeful contacts with” Texas. See

Dalton, 897 F.2d at 1361 (emphasis added).
Accordingly, Smith fails to satisfy his burden of establishing personal jurisdiction over
Carvajal. See WNS, 884 F.2d at 203. The Court thus DISMISSES Smith’s claims against Carvajal.

6 Smith’s Amended Complaint does not allege Carvajal’s residence, but does allege that Zook “is an
individual and a resident of Dallas County, Texas[.]” Doc. 12, Am. Compl., ¶ 6. The Individual Defendants
state that “Carvajal is not a Texas Resident[.]” Doc. 15, Individual Defs.’ Mot., 6.
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2. Zook is entitled to qualified immunity.
Next, Smith’s Bivens claim against the remaining Individual Defendant, Zook, is dismissed
because Smith fails to rebut the “presumption in favor of qualified immunity for” Zook as a federal

officer. See Morgan v. Swanson, 755 F.3d 757, 760 (5th Cir. 2014) (citations omitted). Thus, Smith
does not state a claim upon which relief may be granted. In order to overcome the presumption of
qualified immunity, Smith has the burden of showing (1) Zook “violated [Smith’s] constitutional
right” and (2) “the violated right was ‘clearly established’ at the time of the alleged violation.” Joseph
ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 329 (5th Cir. 2020) (citation omitted). In other words,
“[q]ualified immunity attaches when an official’s conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly,

137 S. Ct. 548, 551 (2017) (per curiam) (citation and quotation marks omitted).
Smith does not specify which Constitutional right he alleges Zook violated, nor does he
directly explain how she did so. See generally Doc. 12, Am. Compl. However, Smith’s amended
complaint suggests that his claim is that Zook violated Smith’s Eighth Amendment right to be free
from cruel and unusual punishment by failing to release him from FCI Seagoville in light of the
COVID-19 pandemic and Smith’s medical conditions. See generally id.

However, as the Individual Defendants argue, “it is far from clear that exposure to the risk
of contracting COVID-19 violates the Constitution.” Doc. 15, Individual Defs.’ Mot., 14. To show
that a right is clearly established, Smith must show that “existing precedent . . . placed the . . .
constitutional question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). Phrased
differently, “[a] clearly established right is one that is sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11
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(2015) (citation and quotation marks omitted). And as the Supreme Court explained, “the clearly
established law must be ‘particularized’ to the facts of the case.” White, 137 S. Ct. at 552 (citation
omitted). Otherwise, plaintiffs could subject federal officials to “virtually unqualified liability simply

by alleging violation of extremely abstract rights.” Id. (quoting Anderson v. Creighton, 483 U.S. 635,
639 (1987)).
Here, Smith has not satisfied his burden of showing that Zook violated his “clearly
established” right. See id. He does not attempt to draw analogies from prior cases, either in his
amended complaint or response, showing that Zook violated his clearly established right. See generally
Doc. 12, Am. Compl.; Doc. 22, Pl.’s Resp. And his general statement that “[p]risoners are entitled
to medical care,” Doc. 22, Pl.’s Resp., 8, does not suffice to show established law “particularized to

the facts of th[is] case.” White, 137 S. Ct. At 552 (citation and quotation marks omitted).
Accordingly, Smith fails to rebut the presumption of qualified immunity for Zook and the Court
DISMISSES his Bivens claim against Zook.
Because the Court lacks personal jurisdiction over Carvajal and because Zook is entitled to
qualified immunity on Smith’s Bivens claims, the Court GRANTS the Individual Defendants’
motion (Doc. 15) and DISMISSES Smith’s claims against the Individual Defendants. In light of

these grounds for dismissal, the Court need not address the issue of whether Smith’s claims are
actionable under Bivens or whether Smith adequately states a claim under Bivens. See Doc. 15,
Individual Defs.’ Mot., 7–13.
IV.
CONCLUSION
For the reasons stated above, the Court GRANTS the Government’s motion to dismiss
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(Doc. 13) and the Individual Defendants’ motion to dismiss (Doc. 15), and DISMISSES Smith’s
amended complaint (Doc. 12).

SO ORDERED.
SIGNED: September 1, 2021.

JANE J. BOY
UMTED ST TES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10450478. Public record. Not legal advice.