Judith Henry v. Essex County

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 23-1987

JUDITH HENRY

v.

ESSEX COUNTY; DETECTIVE LEONARD JACKSON, in

his individual and official capacity; DETECTIVE DIANE

MUNOZ, in her individual and official capacity; SHERIFF

OFFICER JOSEPH DENEQUOLO, in his individual and

official capacity; SHERIFF OFFICER JANICE GUY, in her

individual and official capacity; SHERIFF OFFICER

NAIMAH MARROW, in his individual and official capacity;

SHERIFF OFFICER JEREMY PEREZ, in his individual and

official capacity; CAPTAIN GARY NASH, in his individual

and official capacity; WARDEN TIMOTHY MATTHEW

BETTI, in his individual and official capacity;

LIEUTENANT JAY RUANE, in his individual and official

capacity; OFFICER KATE DIPIETRO, in her individual and

official capacity; OFFICER GARY LOKE, in his individual

and official capacity; AMY LAURIA, in her individual and

official capacity; LAUREN BIEBER, in her individual and

official capacity; LACKAWANNA COUNTY PRISON;

CAPTAIN SAVAGE, in his individual and official capacity;

LIEUTENANT BECKLEY in her individual and official

capacity; DENISE WOOD, in her individual and official

capacity; JAN LAMPER, in her individual and official

capacity; TIMOTHY B. RIEGLE, in his individual and

official capacity; DOUGLAS LONG, in his individual and

official capacity; ELIZABETH COOPER, in her individual

and official capacity; KELLI WINTER, LPN, in her

individual and official capacity; KRISTIN ZIERLE LYNN,

RN, in her individual and official capacity; MARGARET E.

THOMPSON, in her individual and official capacity;

OFFICER EULETIA LYNN, in her individual and official

capacity; INVESTIGATOR GARY DUNCAN, in his

individual and official capacity; SUPERVISORY DEPUTY

JERRY SANSERINO, in his individual and official capacity;

DEPUTY ANTHONY ROSSI, in his individual and official

capacity; ASSISTANT CHIEF DEPUTY PEDRO

ALVAREZ, in his individual and official capacity; DENISE

R. RAHAMAN, in her individual and official capacity; DR.

SALADIN ABDU NAFI, in his individual and official

capacity; JAMES NEAL, MD, in his individual and official

capacity; LIONEL ANICETTE, MD, in his individual and

official capacity

ESSEX COUNTY; DIANE MUNOZ; SHERIFF OFFICER

JOSEPH DENEQUOLO; JANICE GUY; SHERIFF

OFFICER NAIMAH MARROW; SHERIFF OFFICER

JEREMY PEREZ; CAPTAIN GARY NASH,

Third Party Plaintiffs

v.

CFG Health Systems, LLC,

Third Party Defendant

2

Pedro Alvarez, Jerry Sanseverino, Gary Duncan,

Anthony Rossi, Leonard Jackson, and Euletia Lynn,

Appellants

Appeal from the United States District Court

for the District of New Jersey

(District Court No. 2-20-cv-11159)

District Judge: Honorable Katharine S. Hayden

Argued on June 5, 2024

Before: HARDIMAN, PORTER, and AMBRO, Circuit

Judges

(Opinion filed: August 29, 2024)

Ashley C. Honold

United States Department of Justice

Civil Division Appellate

Room 7261

950 Pennsylvania Avenue NW

Room 7323

Washington, DC 20530

3

Casen Ross [Argued]

United States Department of Justice

Civil Division

950 Pennsylvania Avenue NW

Washington, DC 20530

Alan Ruddy

Essex County Counsel

465 Martin Luther King Boulevard

Hall of Record, Room 535

Newark, NJ 07102

Counsel for Appellants

Tisha N. Adams [Argued]

Suite 1103

60 Park Place

Newark, NJ 07102

Christopher N. Leeds

Cipriani & Werner

485 Route 1 S

Suite 120, Building E

Iselin, NJ 08830

Claudia M. Tesoro

Office of Attorney General of Pennsylvania

1600 Arch Street

Suite 300

Philadelphia, PA 19103

4

Jeffrey S. McClain

Holtzman McClain & Londar

3000 Atrium Way

Suite 200, PMB #319

Mount Laurel, NJ 08054

Counsel for Appellees

OPINION OF THE COURT

AMBRO, Circuit Judge

Plaintiff Judith Maureen Henry was arrested on a

warrant for a different woman with the same name. She was

detained for more than two weeks for a crime she did not

commit. After release, Henry sued many federal and state

officials for their roles in the mix-up. Among the defendants,

six deputy United States Marshals (the “Marshals”) filed a

motion to dismiss. They argued their qualified immunity from

her suit, that Henry could not pursue her claims under the cause

of action announced in Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and that her

complaint failed to state claims against them. The District

Court denied the Marshals’ motion. They appeal to us. We

reverse, as the facts in Henry’s case are far afield from those

the Supreme Court faced when it decided Bivens.

5

I. Background

A. Henry’s Claims

As this is an appeal from an order denying a motion to

dismiss, we presume the non-conclusory allegations in the

operative Third Amended Complaint (“TAC”) are true and

recite them here. Ashcroft v. Iqbal, 556 U.S. 662, 678-79

(2009). In 1993, a different woman named Judith Maureen

Henry (the “Absconder”) skipped parole in Pennsylvania. 1

Fast forward to 2019, when the director of the

Pennsylvania Interstate Parole Services issued a warrant for the

Absconder’s arrest for the parole violation. That warrant,

however, targeted Henry’s home address and attached her

driver’s license photo. Parole Services forwarded the warrant

to officials in New Jersey.

Certain Marshals, along with New Jersey officials,

“discussed and planned” Henry’s apprehension. App. 47.

Those Marshals, along with others, arrested Henry at her home

on the morning of August 22, 2019. They transported her to

the Essex County Correctional Facility and assisted with her

booking that day. Henry repeatedly told the Marshals and

others that she was innocent. She offers no non-conclusory

allegations that the Marshals were involved in her detention

after that point.

1

While not discussed in the TAC, Henry’s papers state that the

Absconder “pled guilty to possession of cocaine and drug

paraphernalia and nolo contendere for the offense [of]

conspiracy to deliver” cocaine. Henry Br. 2.

6

Henry was held in New Jersey until September 1, when

she was transferred to Pennsylvania. Throughout her

detention, she continued to declare her innocence and

requested that authorities compare her fingerprints to the

Absconder’s. But no official did so until Henry reached

Pennsylvania. Officials there discovered on September 3 that

Henry’s fingerprints did not match those of the Absconder.

Yet her detention continued for another two days before she

was released on September 5. This means Henry was

imprisoned for more than two weeks for the Absconder’s

parole violation.

B. Procedural History

In August 2020, Henry sued several individuals and

entities, including the United States Marshals Service (but not

the Marshals themselves). She named the Marshals, both in

their personal and official capacities, as defendants for the first

time in the TAC, filed in December 2021. (Henry’s claims

against the Marshals in their official capacity were later

dismissed with prejudice. As noted, the Marshals filed a

motion to dismiss, arguing that they were protected by

qualified immunity, Henry’s claims impermissibly extended

the Bivens doctrine, and she failed to state a claim under Rule

12(b)(6). In an oral ruling, the District Court rejected those

arguments for want of factual development. The Marshals

timely appealed to us.

7

II. Analysis

A. Jurisdiction

The District Court had jurisdiction over Henry’s claims

under 28 U.S.C. §§ 1331, 1343(a) & 1367. We have

jurisdiction over the Marshals’ appeal. That is because we can

immediately review decisions denying qualified immunity

when they turn solely on issues of law. Ashcroft v. Iqbal, 556

U.S. 662, 671-72 (2009). Our jurisdiction lets us examine the

“sufficiency of [Henry’s] pleadings,” id. at 673, and whether

her claims can be pursued through a Bivens action at all. Wilkie

v. Robbins, 551 U.S. 537, 549 n.4 (2007). This is so because

the recognition of Bivens claims and sufficiency of Henry’s

allegations are “directly implicated by the defense of qualified

immunity and [so are] properly before us on interlocutory

appeal.” Hartman v. Moore, 547 U.S. 250, 257 n.5 (2006).

B. The District Court’s Analysis Was Incorrect.

Whether a complaint pleads allegations that overcome

qualified immunity or fall with the limits of the cause of action

created in Bivens is a purely legal issue that can be resolved on

the pleadings at the motion-to-dismiss stage. See, e.g.,

Hernandez v. Mesa, 589 U.S. 93, 98-99 (2020) (Bivens); James

v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012)

(qualified immunity). A complaint must be dismissed if,

viewed in the generous light our precedent offers, it lacks

sufficient factual allegations to state a claim. See Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). In this context,

further record development is not the way to proceed.

Accordingly, we review whether the TAC can proceed against

the Marshals as a matter of law.

8

C. Henry’s Bivens Claims Must Be Dismissed.

The core of the TAC is that Henry’s treatment violated

the Constitution’s guarantees. Through 42 U.S.C. § 1983,

Congress provided an action against persons who, “under color

of state law,” violate a plaintiff’s constitutional rights. West v.

Atkins, 487 U.S. 42, 48 (1988). There is no federal statutory

cause of action against persons who, acting under color of

federal law, violate a plaintiff’s constitutional rights. But in

Bivens the Supreme Court authorized such a cause of action

under the circumstances presented there. 403 U.S. at 395-97.

So the first question before us is whether the Marshals

were acting under color of state or federal law when they

apprehended Henry on a Pennsylvania warrant for violating

Pennsylvania law. Perhaps complicating the analysis, two of

them were New Jersey state law enforcement officers

deputized to serve as Marshals. 5 U.S.C. § 3374; 28 C.F.R. §

0.112(b). Persons with arguably mixed federal and state

authority act under color of federal law when they perform

their federal duties. Yassin v. Weyker, 39 F.4th 1086, 1090-91

(8th Cir. 2022) (quoting Johnson v. Phillips, 664 F.3d 232, 240

(8th Cir. 2011)), cert. denied, 143 S.Ct. 779 (2023); King v.

United States, 917 F.3d 409, 433-34 (6th Cir. 2019), rev’d on

other grounds sub. nom. Brownback v. King, 592 U.S. 209

(2021).

Henry concedes that the Marshals—including those

deputized as-such—operated under color of federal law. The

9

Government agrees, and so do we. Hence we analyze Henry’s

claims under Bivens, not § 1983. 2

The current state of Bivens jurisprudence has been

thoughtfully analyzed by other decisions in this Circuit, and we

have little to add. See, e.g., Xi v. Haugen, 68 F.4th 824, 832-

34 (3d Cir. 2023); see also Vanderklok v. United States, 868

F.3d 189, 198-200 (3d Cir. 2017). To set the table, the

Supreme Court, concerned with separation of powers, has

made clear that it is generally not the judiciary’s place to create

causes of action. Egbert v. Boule, 596 U.S. 482, 491 (2022);

Hernandez, 589 U.S. at 99-102. The rules it announced for

Bivens claims reflect this hesitation. We first ask whether a

plaintiff’s claim under Bivens presents a “new context”

compared to the three cases where that Court explicitly

authorized a Bivens remedy. Hernandez, 589 U.S. at 102

(citation omitted). When the context is distinguishable, we do

not authorize such an action if we see any “reason to pause

before applying Bivens in [the] new context[.]” Id. Thus, we

turn to that analysis.

“[O]ur understanding of a ‘new context’ is broad.” Id.

A context is new if it “is different in a meaningful way from

previous Bivens cases decided by” the Supreme Court. Ziglar

v. Abbasi, 582 U.S. 120, 139 (2017). Whether a context is new

is an “easily satisfied” test because “a modest extension [of the

Bivens action] is still an extension.” Id. at 147-49. Even

2

The TAC never mentions Bivens; rather, it repeatedly

references § 1983. But Henry’s argument before us is that she

has Bivens claims against the Marshals. The Government

addresses the merits of that argument rather than arguing the

TAC must be amended, and we will too.

10

“significant parallels to one of the [Supreme] Court’s previous

Bivens cases” may not be enough. Id. at 147.

We begin by summarizing the TAC, which identifies six

Bivens claims. The first is for abuse of process that Henry

bases on her arrest by the Marshals (claimed to be “neither

warranted nor authorized by law”), TAC ¶ 42, and their failure

to “check the fingerprints, photograph, and other personal

identifiers of the [Absconder] with those of [Henry.]” Id. at ¶

49. Second is a claim for false arrest and imprisonment, again

based on Henry’s arrest and detention in New Jersey “[d]espite

repeated protests of innocence.” Id. at ¶ 53. The third claim is

for intentional infliction of emotional distress traced to the

method of her arrest. Fourth is a failure-to-train and failure-to-

supervise claim against certain supervisory Marshals who

allegedly did not train the arresting Marshals to take

fingerprints and other identifying information from

apprehended suspects or promptly present arrestees to

magistrates. The fifth count, which complains of procedural

due process violations under the Fourteenth Amendment,

faults the Marshals for not presenting Henry to a judge before

she was taken to Pennsylvania. Sixth and finally, Henry

alleges the Marshals were involved in a conspiracy against her.

The only Supreme Court case authorizing a Bivens

remedy for police misconduct is Bivens itself. Ziglar, 582 U.S

at 131. 3 The complaint in Bivens alleged that the plaintiff was

3

See Davis v. Passman, 442 U.S. 228 (1979) (authorizing

Bivens claim for workplace sex discrimination by a

Congressman in violation of the Fifth Amendment); Carlson v.

Green, 446 U.S. 14 (1980) (approving Bivens suit bottomed on

11

invalidly subject to a warrantless arrest in his home. 403 U.S.

at 389. We do not read Henry’s complaint as sufficiently

alleging that state of affairs. Though Henry claims her arrest

was without a valid warrant and contrary to law, see, e.g., TAC

¶ 42, the opposite is true. 4

She appears to admit that the Absconder is, in fact,

guilty of parole violations. Henry Br. 2. That statement means

the warrant was valid: at least for purposes of this litigation,

Henry’s briefing establishes that there is more than a “fair

probability” the Absconder violated the conditions of her

parole. Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000)

(citing Sherwood v. Mulvihill, 113 F.3d 369, 401 (3d Cir.

1997)).

And Henry’s mistaken-identity arrest was similarly

constitutionally valid. “[W]hen the police have probable cause

to arrest one party, and when they reasonably mistake a second

party for the first party, then the arrest of the second party is a

valid arrest.” Hill v. California, 401 U.S. 797, 802 (1971)

(citation omitted); Rodriguez v. Farrell, 280 F.3d 1341, 1345-

46 (11th Cir. 2002). The Pennsylvania Board of Probation and

Parole provided the Marshals with Henry’s address and

photograph. Henry identifies no reason why the Marshals

should not have relied on that information. Cf. Berg v. Cnty.

of Allegheny, 219 F.3d 261, 272-73 (3d Cir. 2000)

(“Ordinarily, it is reasonable for an officer to assume that a

failure to provide prisoner medical treatment in violation of

Eighth Amendment).

4

Henry’s claim is a “legal conclusion” not entitled to deference

on Rule 12(b)(6) review. Iqbal, 556 U.S. at 678-79.

12

warrant has been issued for probable cause” absent substantial

evidence suggesting otherwise (citing Baker v. McCollan, 443

U.S. 137, 145-46 (1979)). So their arrest of Henry relying on

information attached to the warrant was a reasonable mistake,

and therefore her arrest did not violate the Fourth Amendment.

This fundamental legal distinction between the TAC

(which, read in the light most favorable to Henry, suggests that

her arrest was both supported by a valid warrant and consistent

with the Fourth Amendment) and Bivens (which dealt with a

complaint that amply alleged serious violations of that

Amendment) thus establishes a “meaningful” difference

sufficient to make Henry’s claims premised on her arrest a new

context. Ziglar, 582 U.S. at 139. Indeed, “almost parallel

circumstances” to Bivens—hardly what we have here—can

still result in a new context. Xi, 68 F.4th at 834 (quoting

Egbert, 596 U.S. at 495).

As to Henry’s other Bivens claims, they present a new

context because they “concern a different breed of law

enforcement misconduct.” Xi, 68 F.4th at 834. While Bivens

focused on the conduct of an arrest, Henry challenges the

Marshals’ post-arrest failure to examine her claims of

innocence or present her to a magistrate—a different “sort[] of

action” by the Marshals, Farah v. Weyker, 926 F.3d 492, 500

(8th Cir. 2019), that “bear[s] little resemblance” to the alleged

police misconduct in Bivens, and accordingly results in a new

context. Ziglar, 582 U.S. at 140. That same logic applies to

her failure to supervise 5 and conspiracy claims.

5

They are also in a new context because they target

supervisory officials rather than line officers. Ziglar, 582 U.S.

13

Because Henry’s Bivens claims arise in a new context,

we can allow them to go forward only if we do not doubt that

we are at least as capable as Congress of “weigh[ing] the costs

and benefits of allowing a damages action to proceed.” Ziglar,

582 U.S. at 136. “[E]ven a single ‘reason to pause’” prohibits

recognition of a Bivens action in a new context. Egbert, 596

U.S. at 492 (quoting Hernandez, 589 U.S. at 102).

A reason to pause here is the “risk” of “interfere[nce]”

with “the executive branch’s investigative . . . function[].”

Annappareddy v. Pascale, 996 F.3d 120, 137 (4th Cir. 2021)

(citing Ziglar, 582 U.S. at 141); Ahmed v. Weyker, 984 F.3d

564, 570-71 (8th Cir. 2020), cert. denied sub. nom Mohamud

v. Weyker, 142 S.Ct. 2833 (2022). Henry’s complaint—that

the Marshals failed to take her claims of innocence seriously—

raises a host of policy questions about the role of the Marshals

Service after they apprehend a suspect on a warrant for a crime

they did not investigate. To name but four of these questions

we see: How strong must a claim of innocence announced after

arrest be before it must be investigated by a marshal? When,

as here, marshals and state law enforcement officers both hear

protestations of innocence, which should investigate? How in-

depth of an investigation must they perform, and when?

We grant that, asking those questions in this case, a

reasonable observer could conclude the answers are not hard

to find and would impose minimal burdens on the Marshals.

Henry’s request was modest: merely that her fingerprints be

compared to the Absconder’s. But it is for Congress, not the

judiciary to “balance[] the costs and benefits” of a cause of

at 140 (identifying “the rank of the officers involved” as a

“meaningful” difference in our Bivens jurisprudence).

14

action against the Marshals bottomed on their failure to

investigate Henry’s claims of innocence. Farah, 926 F.3d at

501. The legislature must decide whether the “potential

encroachment” on the executive branch’s investigatory

function “is worth it.” Id. Accordingly, concerns for

separation of powers counsel hesitation before we endorse a

Bivens suit in a new context. Egbert, 596 U.S. at 491. So we

will not do so here.

C. Henry’s Other Claims Also Fail.

The TAC includes two claims that do not rely on Bivens.

Both fail.

Henry alleges that the Marshals are liable under 42

U.S.C. § 1985(3) 6 because they “conspired to deprive [her] of

equal protection under law.” TAC ¶ 117. To state a claim

under that statute, a plaintiff must show that “some racial, or

perhaps otherwise class-based, invidiously discriminatory

animus [lay] behind the conspirators’ action.” Bray v.

Alexandria Women’s Health Clinic, 506 U.S. 263, 268-69

(1993) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102

(1971) (alteration in original)). Henry asserts that her

treatment was a result “of her lower economic status,” and her

race, sex, and national origin (she is “a black woman from

Jamaica”). TAC ¶ 59. But we need not accept this bare

conclusion, and she offers no other allegations to support it.

Iqbal, 556 U.S. at 678-79.

6

The TAC does not specify which subsection of 42 U.S.C. §

1985 this count relies on. In her briefing, Henry identifies

subsection (3).

15

Henry also brings a cumulative claim under a provision

of the New Jersey Civil Rights Act (“NJCRA”), which she says

provides her an action against the Marshals for violations of

her constitutional rights. N.J.S.A. § 10:6-2(c). In response, the

Marshals direct us to the Westfall Act, 102 Stat. 4563-67

(1988), which made the Federal Tort Claims Act “the exclusive

remedy for most claims against [federal] Government

employees arising out of their official conduct.” Hui v.

Castaneda, 559 U.S. 799, 806 (2010); 28 U.S.C. § 2679(b)(1).

Henry offered no counterargument in her papers or at oral

argument. The Westfall Act only offers two exceptions to its

exclusivity—one for Bivens actions, and the other for actions

under federal statutes. 28 U.S.C. § 2679(b)(2); United States

v. Smith, 499 U.S. 160, 166-67 (1991). A suit under the

NJCRA fits neither. 7

*****

7

Judge Porter does not join this paragraph holding that Henry

lacks a converse-1983 cause of action under New Jersey law

because the NJCRA creates a remedy for violations of

substantive constitutional rights committed by “person[s]

acting under color of law,” and the Marshals were “acting

under color of [federal] law” in connection with Henry’s arrest.

N.J.S.A. § 10:6-2(c). Judge Porter is not confident that the

Westfall Act bars suits “brought for a violation of the

Constitution of the United States” like Henry’s. 28 U.S.C.

§ 2679(b)(2)(A). But even if Henry has a cause of action under

the NJCRA, Judge Porter would reverse because “Henry’s

mistaken-identity arrest was . . . constitutionally valid” and the

Marshals are thus entitled to qualified immunity. Part II.B,

supra.

16

We thus reverse the order of the District Court denying

the Marshals’ motion to dismiss and remand to that Court for

it to dismiss Henry’s claims against the Marshals.

17