MCINTYRE v. UNITED STATES MARSHAL SERVICE

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________________________________

:

BRANDON C. MCINTYRE, :

: Civil No. 18-1268 (KM) (MAH)

Plaintiff, :

:

v. : OPINION

:

UNITED STATES MARSHAL :

SERVICE, et al., :

Defendants. :

_________________________________________ :

KEVIN MCNULTY, U.S.D.J.

Brandon C. McIntyre, an inmate at FCI Fort Dix proceeding pro se, brings this action

against the U.S. Marshals Service (“USMS”) and 17 of its current and former employees1 (the

“Individual Defendants”) for constitutional violations pursuant to Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). DE 90 (second amended

complaint). McIntyre’s claims arise from the USMS’s policy of shackling criminal defendants

during pretrial proceedings that occur outside the presence of a jury; he alleges that the policy of

shackling pretrial detainees is itself unconstitutional and, further, that the Individual Defendants

excessively tightened his restraints, causing him pain and, allegedly, permanent injuries.

The defendants have moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(1) and

12(b)(6), arguing (1) the USMS is shielded by sovereign immunity; (2) the amended complaint

fails to state a claim against the Individual Defendants under Bivens and its progeny; (3) most

claims are time-barred; and (4) the Individual Defendants are entitled to qualified immunity. DE

1 These defendants are current Deputy U.S. Marshals (“DUSMs”) Maggie Barone, Dennis

Crennan, Wesley Fitzgerald, Michael Kozyra, Sean Mitchell, Bryan Pasichow, Michelle Rios, and

Da’Nay Rogers; former DUSMs Molly English, Brian Gillen, Patrick Higgins, James Lyons, Michael

Rotolo, Lissette Sanchez, and Nick Stavrou; and former Supervisory Deputy U.S. Marshals Dan Abel and

Jerry Sanseverino.

112-5.

The motion requires me to decide whether McIntyre can assert a claim under Bivens

arising from the circumstances presented here; i.e., shackling in the courtroom pursuant to a

USMS policy that authorizes such measures for courtroom security. I conclude, for the reasons

given below, that he cannot. The defendants’ motion to dismiss will be granted and the

complaint will be dismissed with prejudice.

I. BACKGROUND

A. McIntyre’s Criminal Proceedings2

Federal authorities took McIntyre into custody on September 12, 2014. See United States

v. McIntyre, No. 16-cr-13 (D.N.J.), DE 1 (criminal complaint) at 1-3, DE 6 (order of

commitment) at 1.3 He remained in custody through his trial. Id., DE 19 at 1 (order of detention

pending trial). Throughout this period, McIntyre and his counsel wrote several letters to the

Court requesting, as relevant here, that he be permitted to appear in court without restraints. See,

e.g., id., DE 21, 34, 35, 37, 48. For example, in a letter filed July 7, 2017, McIntyre requested “to

appear in court unshackled as the 9th Circuit declared it unconstitutional to shackle pre-trial

inmates.” Id., DE 48 at 9. In another letter, filed September 14, 2017, McIntyre “objected to

being handcuffed and shackled at any future court appearances.” Id., DE 55 at 1. Relying on

2 The Court may take judicial notice of McIntyre’s criminal proceedings. See S. Cross Overseas

Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999) (“To resolve a

12(b)(6) motion, a court may properly look at public records, including judicial proceedings, in addition

to the allegations in the complaint.”); O’Boyle v. Braverman, 337 F. App’x 162, 164 (3d Cir. 2009) (court

may properly look at “public records, including judicial proceedings” the authenticity of which are “not

subject to reasonable dispute”). This is particularly true here, since I presided over McIntyre’s criminal

proceedings.

3 McIntyre was eventually charged with multiple counts of production of child pornography,

interstate extortionate threats, stalking, and online enticement of a minor to engage in criminal sexual

conduct. No. 16-cr-13, DE 38 (superseding indictment) at 1-6. In February 2018, a jury found him guilty

on all counts (id., DE 117 (jury verdict)) and in July 2019, I sentenced him to 240 months in prison, and a

life term of supervised release. Id., DE 147 (minute entry), 148 (judgment).

United States v. Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017),4 he argued that “a policy of

automatically shackling defendants in court rooms” is unconstitutional. No. 16-cr-13, DE 55 at 1.

In a letter to the Court filed October 20, 2017, McIntyre’s counsel requested that McIntyre “not

be handcuffed or shackled while in your courtroom on any occasion.” Id., DE 56 at 1. Citing

Sanchez-Gomez, counsel argued that before imposing restraints, the Court must make an

individualized determination that shackling was the least restrictive means to maintain security

and order in the courtroom. No. 16-cr-13, DE 56 at 1. At a bail hearing on October 30, 2017, the

magistrate judge noted that Sanchez-Gomez was not binding, but that, “without reaching the

merits of the request, [he] would ask the marshal just for the limited purposes of today’s hearing

to uncuff Mr. McIntyre.” No. 16-cr-13, DE 64 at 3.

In December 2017, McIntyre and his counsel submitted two applications seeking an order

directing the USMS to produce him without restraints for all future court appearances. Id., DE

76, 79. On January 12, 2018, I granted counsel’s motion “to the extent that hand shackles will be

removed during Court appearances.” Id., DE 85. I advised that the order was “subject to revision

in light of changed circumstances or the Marshals’ reassessment of the security situation in the

courtroom.” Id.

4 In Sanchez-Gomez, the district court had enacted a districtwide policy permitting the use of full

restraints on most in-custody defendants produced for in-court non-jury proceedings. The Ninth Circuit

held that the policy was unconstitutional, even though the plaintiffs’ criminal proceedings had ended

while the appeal was pending. 138 S. Ct. at 1536. The Supreme Court vacated and remanded, finding that

the termination of the criminal proceedings mooted the case. See id. at 1540–42.

The defendant’s letter application(s) did not bring to the Court’s attention controlling or

potentially relevant Third Circuit case law, such as Szuchon v. Lehman, 273 F.3d 299, 314 (3d Cir.

2001). If it had, I would have considered more explicitly on the record such factors as the defendant’s

pretrial detention as a danger to the community (affirmed, see DE 78 at 24 et seq.), repeated violent

threats against vulnerable young girls (including two trial witnesses), his prior conviction of stalking and

surveilling an adult woman, his impersonation of a law enforcement officer to extort his victims, and his

generally erratic statements and behavior. All bespeak a compulsive inability to control his behavior. My

ruling that defendant be shackled by the legs but not the hands would likely have been the same.

B. The Complaint

The second amended complaint (DE 90) alleges the following facts, which I accept as

true for purposes of the motion to dismiss.

The USMS has a “policy of placing all criminal defendants in full restraints without first

having a hearing to determine individual security needs of each defendant.” DE 90 at 12–13.

McIntyre appeared before the Court in the above-referenced criminal matter on numerous dates

between September 2014 and July 2019. DE 90. During his transportation to and from these

appearances and during the appearances, various Individual Defendants placed him in full,

excessively tight restraints, refused to loosen or remove the restraints, and ignored McIntyre’s

requests for medical attention.5 The excessively tight restraints resulted in McIntyre suffering

serious permanent injuries, including “scarring, bleeding, excruciating pain, circulation and

nerve damage, falling down,” and post-traumatic stress disorder. DE 90 at 14–218, 235–44.

Further, defendant Dan Abel, a Supervisory Deputy United States Marshal, knew about

the restraint policy and failed to change it “despite being notified numerous times that such

policy violates the Constitution.” DE 90 at 12–13. McIntyre wrote several letters to Abel

between September 2014 and June 2019 regarding this policy, the excessively tight restraints,

and his resulting injuries. DE 90 at 220–35. McIntyre’s mother also left multiple voicemails for

Abel. DE 90 at 223–31. Abel never responded to McIntyre or his mother. DE 90 at 224–31.

5 See DE 90 at 14–19 (9/11/2014), 20–31 (1/19/16), 31–47 (2/24/16), 47–64 (10/4/2016), 64–75

(4/12/2017), 75–85 (7/7/2017), 85–97 (10/27/2017), 97–109 (10/30/2017), 109–34 (11/13/2017), 134–40

(2/9/2018), 140–44 (2/20/2018–2/28/2018 trial dates), 144–59 (2/20/2018), 159–73, (2/21/2018), 174–77

(2/22/2018), 177–88 (2/23/2018), 188–97 (2/26/2018), 197–206 (2/27/2018), 206–11 (2/28/2018), 211–

20 (7/26/2019).

C. Procedural History

McIntyre initiated this action in January 2018 against the USMS and Abel, alleging that

the restraint policy and excessively tight shackles violated his due process and Eighth

Amendment rights. DE 1 at 9. After numerous requests for permission, extensions, a first

amended complaint, and a prior motion to dismiss (DE 25, 34, 43, 52, 64, 68, 75, 78, 84, 88), in

March 2022 McIntyre filed his second amended—and currently operative—complaint against

the USMS and Individual Defendants. DE 90. It alleges that the defendants violated his Fifth

Amendment rights by (1) adopting the restraint policy, (2) subjecting him to excessively tight

restraints during his transport to and from criminal proceedings and during court appearances, (3)

refusing to remove his restraints for court appearances, and (4) failing to obtain medical care for

injuries allegedly caused by the restraints and by otherwise failing to address his complaints. DE

90. McIntyre seeks $5,250,000 in damages. DE 90 at 239–40. The defendants moved to dismiss

in August 2022. DE 112.6

II. DISCUSSION

A. Claims Against USMS

As an initial matter, the defendants argue, and the Court finds, that McIntyre’s claims

against the USMS itself must be dismissed for lack of subject matter jurisdiction because the

6 McIntyre did not oppose the motion, despite being given ample opportunity to do so. In

November 2022, after he had already missed the deadline to respond, I ordered him to file his opposition,

if any, by December 8, 2022. DE 114. He did not file an opposition. Instead, by letter dated December 5,

2022, he requested another copy of the defendants’ motion papers, stating that correctional officers had

seized his copy. DE 115. I then directed the defendants to serve another copy of the motion papers on

McIntyre and directed McIntyre to file his opposition, if any, by February 10, 2023. DE 116. The

defendants provided a certificate of service indicating that in accordance with the Court’s order they

served an additional copy of motion papers on McIntyre at his address of record on January 3, 2023. The

Court observes that the address that the defendants used at FCI Ft. Dix appears to still be his current

detention facility. See https://www.bop.gov/inmateloc/ (search for 66881-050, last searched March 9,

2023). McIntyre has still not opposed the motion, and the Court thus decides it without the benefit of his

input.

USMS, as a federal agency, is entitled to sovereign immunity. “Absent a waiver, sovereign

immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510

U.S. 471, 475 (1994); see also United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is

axiomatic that the United States may not be sued without its consent and that the existence of

consent is a prerequisite for jurisdiction[.]”). “Neither the United States nor its agencies have

waived sovereign immunity for constitutional claims.” Mierzwa v. United States, 282 F. App’x

973, 976–77 (3d Cir. 2008) (citing United States v. Testan, 424 U.S. 392, 400–02 (1976)). The

USMS, as a component of a federal agency (the Department of Justice), is thus immune

from suit. See, e.g., Mierzwa, 282 F. App’x at 976 (“To the extent that the Mierzwas’ claim can

be construed as a claim under Bivens . . ., it cannot be maintained because a plaintiff may not

use Bivens to pursue constitutional claims against the United States or its agencies.”).7

Accordingly, I will dismiss McIntyre’s claims against the USMS with prejudice.

B. Claims Against Individual Defendants

McIntyre’s remaining claims against the Individual Defendants—that they violated his

Fifth Amendment rights by adopting the alleged unconstitutional restraint policy, subjecting him

to excessively tight restraints, refusing to remove his restraints for court appearances, and by

failing to obtain medical care for injuries allegedly caused by the restraints or otherwise address

7 See also, e.g., Gary v. Gardner, 445 F. App’x 466–67 (3d Cir. 2011) (“the United States

Marshals Service is entitled to sovereign immunity from suit” absent an explicit waiver of sovereign

immunity); Muhammad v. U.S. Marshals Serv., 385 F. App’x 70, 73 (3d Cir. 2010) (affirming dismissal

of “the U.S. Marshals Service’s motion to dismiss on sovereign immunity grounds, as no waiver of the

agency’s absolute immunity from suit was present”); Shannon v. U.S. Parole Comm’n, 1998 WL 557584,

at *3 (S.D.N.Y. Sept. 2, 1998) (Bivens claims may not be maintained against federal agencies).

his complaints—must arise, if at all, under Bivens and its progeny. A discussion of the current

state of the law is required to put these claims in context.8

“[I]n the 100 years leading up to Bivens, Congress did not provide a specific damages

remedy for plaintiffs whose constitutional rights were violated by agents of the Federal

Government.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). “In Bivens, the Court held that it

had authority to create a cause of action under the Fourth Amendment against federal agents who

allegedly manacled the plaintiff and threatened his family while arresting him for narcotics

violations.” Egbert v. Boule, 142 S. Ct. 1793, 1802 (2022) (quotations omitted). “Over the

following decade, the Court twice again fashioned new causes of action under the Constitution—

first, for a former congressional staffer’s Fifth Amendment sex-discrimination claim, see Davis

v. Passman, 442 U.S. 228 (1979); and second, for a federal prisoner’s inadequate-care claim

under the Eighth Amendment, see Carlson v. Green, 446 U.S. 14 (1980).” Egbert, 142 S. Ct. at

1802.

In the decades after Carlson, which was decided in 1980, the Supreme Court has never

implied an additional cause of action under the Constitution. See Egbert, 142 S. Ct. at 1797 (the

Supreme Court has “declined 11 times to imply a similar cause of action for other alleged

constitutional violations”) (citations omitted). “Rather than dispense with Bivens,” however, the

Court gone no farther than to “emphasize that recognizing a Bivens cause of action is ‘a

disfavored judicial activity.’” Egbert, 142 S. Ct. at 1797 (quoting Ziglar, 137 S. Ct. at 1856–57);

see also Mack v. Yost, 968 F.3d 311, 317 (3d Cir. 2020). Indeed, the Court has “disfavore” such

8 I consider McIntyre’s Bivens claims under Fed. R. Civ. P. 12(b)(6); that is, I consider whether he

has stated a claim upon which relief can be granted under Bivens and its progeny. I thus assume, as noted

above, that his plausible factual allegations are true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quotation marks omitted), and give him the benefit of liberal construction and less stringent standards

because he is proceeding pro se. See Haines v. Kerner, 404 U.S. 519 (1972).

causes of action to the extent of declaring that if it “were called to decide Bivens today, [it]

would decline to discover any implied causes of action in the Constitution.” Egbert, 142 S. Ct. at

1809; see also Tate v. Harmon, 54 F.4th 839, 843–44 (4th Cir. 2022) (“[I]n the 42 years

following Carlson, . . . the Court has ‘consistently rebuffed” every request . . . to find implied

causes of action against federal officials for money damages under the Constitution. And in the

last 5 years in particular, it has handed down a trilogy of opinions not only expressing regret over

its Bivens cases but also demonstrating hostility to any expansion of them.”) (quoting Hernandez

v. Mesa, 140 S. Ct. 735, 743 (2020)).

After Ziglar and Egbert, the analysis of a proposed Bivens claim must proceed in two

steps: First, I must determine whether the claims present a new Bivens context; if they do not, the

claims may proceed, but if they do, I must then determine whether “special factors” nonetheless

“indicate that the Judiciary is at least arguably less equipped than Congress to weigh the costs

and benefits of allowing a damages action to proceed.” Egbert, 142 S. Ct. at 1803 (cleaned up).

These two steps “often resolve to a single question: whether there is any reason to think that

Congress might be better equipped to create a damages remedy.” Id. at 1803; see also id. at 1809

(“a plaintiff cannot justify a Bivens extension based on parallel circumstances with

Bivens, Passman, or Carlson unless he also satisfies the analytic framework prescribed by the

last four decades of intervening case law”) (quotations omitted).

1. New Context

As to the first step—whether the case presents a new context—if McIntyre’s case is

“different in a meaningful way from previous Bivens cases decided by [the Supreme] Court, then

the context is new.” Ziglar, 137 S. Ct. 1843, 1859; see also Mack, 968 F.3d at 319. What counts

as a “new” context is construed very broadly. That is, a case might be held to “meaningfully”

differ from claims previously recognized for any number of reasons, including

the rank of the officers involved; the constitutional right at issue; the generality or

specificity of the official action; the extent of judicial guidance as to how an

officer should respond to the problem or emergency to be confronted; the

statutory or other legal mandate under which the officer was operating; the risk of

disruptive intrusion by the Judiciary into the functioning of other branches; or the

presence of potential special factors that previous Bivens cases did not consider.

Ziglar, 137 S. Ct. at 1859–60. The Supreme Court’s “understanding of a ‘new context’ is broad,”

Hernandez, 140 S. Ct. at 743, and “[e]ven a modest extension” of Bivens “is still an extension.”

Ziglar, 137 S. Ct. at 1864.

Applying these principles here, I find that this case involves facts materially different

from those in Bivens, Davis, and Carlson; accordingly, it presents a new Bivens context. Most

fundamentally, because he was a pretrial federal detainee during the relevant time, McIntyre’s

claims against the Individual Defendants arise under the Due Process Clause of the Fifth

Amendment. See Farmer v. Lanigan, No. 12-5716, 2016 WL 4107693, at *3 (D.N.J. Aug. 1,

2016) (“an inmate awaiting sentencing must look to either the Fifth Amendment’s or the

Fourteenth Amendment’s Due Process Clause for protection”) (citing Bell v. Wolfish, 441 U.S.

520, 535 n.16 (1979)); Kost v. Kozakiewicz, 1 F.3d 176, 188 (3d Cir. 1993) (“Pretrial detainees

are not within the ambit of the Eighth Amendment but are entitled to the protections of the Due

Process clause.”). Neither Bivens itself, which arose under the Fourth Amendment, nor Carlson,

which arose under the Eight Amendmenth, recognized a cause of action for money damages

under the Fifth Amendment. Neither provides precedent for recognition of McIntyre’s Fifth

Amendment claims.

The remaining member of the trilogy, Davis v. Passman, did arise under the Fifth

Amendment. Passman, 442 U.S. at 236. However, the facts there, involving gender

discrimination,9 could hardly be more different from the circumstances here, involving

courtroom security. “A common constitutional basis,” in the sense of citing the same

amendment, “is simply not enough to link a new Bivens theory to an existing Bivens context.”

Landis v. Moyer, No. 19-470, 2022 WL 2677472, at *6 (M.D. Pa. July 11, 2022); see also

Hernandez, 140 S. Ct. at 743 (courts must “look beyond the constitutional provisions invoked”).

In short, the parties, the setting, the factual allegations, and the claims look nothing alike;

McIntyre’s case is thus meaningfully different from Passman. See Smith v. Garcia, No. 21-578,

2022 WL 17852393, at *5 (E.D.N.Y. Dec. 22, 2022) (“[a]lthough both the present case

and Bivens pertain to alleged violations of the Fourth Amendment by an officer’s use of

excessive force, the specific contexts of these two alleged constitutional violations are widely

divergent, and the . . . bar for finding a new Bivens context is low”). For these reasons, this case

is meaningfully different from Passman.

This conclusion does not break new ground, as numerous courts have concluded that

claims arising from alleged excessive force by Deputy U.S. Marshals are meaningfully different

from Bivens, Passman, and Carlson. See, e.g., Dean v. Robinson, No. 15-06239, 2023 WL

2028720, at *8 (W.D.N.Y. Feb. 16, 2023) (finding that the “context is undeniably a new one”

where pretrial detainee brought Fifth Amendment claim for deliberate indifference against two

DUSMs); Hammond v. Two Unknown Named Agents of U.S. Marshals Serv., No. 20-4298, 2023

WL 2025206, at *4 (D.S.C. Jan. 9, 2023) (finding that “[e]xcessive force claims between

9 Specifically, the plaintiff, Shirley Davis, sued her former employer, United States

Congressman Otto Passman, alleging gender discrimination because Passman had written to her

stating that although she was “able, energetic, and a very hard worker,” he was nonetheless

terminating her employment because “it was essential that the understudy to my Administrative

Assistant be a man.” 442 U.S. at 230. Davis could not sue under Title VII because Congress

had “failed to extend [the] protection” of that statute “to congressional employees such as

[Davis] who are not in the competitive service,” thus she asserted constitutional claims under the

Fifth Amendment’s Due Process Clause. Passman, 442 U.S. at 247.

[DUSMs] and pre-trial detainees” involve “facts that are materially different from those

addressed in Bivens, Davis, and Carlson”), report and recommendation adopted, 2023 WL

2025171 (D.S.C. Feb. 15, 2023); Logsdon v. U.S. Marshal Serv., No. 21-253, 2023 WL 205052,

at *3 (E.D. Okla. Jan. 13, 2023) (new context where “the officers here were employed by the

[USMS], not the Bureau of Narcotics [or its successor agency]”); Lewis v. Westfield, No. 16-

1057, 2022 WL 16924177, at *3 (E.D.N.Y. Nov. 14, 2022) (“Plaintiff’s excessive-force and

failure-to-intervene claims present a new Bivens context” where “[t]he defendants are [DUSMs],

rather than federal narcotics agents.”); Edwards v. Gizzi, No. 20-7371, 2022 WL 309393, at *7

(S.D.N.Y. Feb. 2, 2022) (claims against [DUSMs] presented new context because “the officers

involved in Bivens were federal narcotics agents” and therefore part of “an investigatory and

enforcement force,” rather than members of the USMS).

In short, while Bivens, like this case, involved allegations of wrongful handcuffing, and

Carlson, like this case, involved allegations of deliberate indifference to medical needs, and

Passman, like this case, involved the Fifth Amendment, none of these is parallel to this case.

None involved pretrial detainees, transportation and court-appearance settings, courtroom

security, allegations of similar Fifth Amendment violations, alleged wrongful conduct by USMS

employees, or USMS policy. These distinctions are more than sufficient to support a finding that

all three of these prior cases are meaningfully different from this case. See Egbert, 142 S. Ct. at

1805 (even “almost parallel circumstances . . . are not enough”); Landis, 2022 WL 2677472, at

*5 (“superficial similarities are insufficient to justify creating a Bivens remedy”) (quotations

omitted).

2. Special Factors Analysis

Having found that McIntyre’s claims present a new Bivens context, I do on to consider

whether special factors counsel hesitation in extending Bivens. See Egbert, 142 S. Ct. at 1803.

There is no single “exhaustive list of factors that may provide a reason not to extend Bivens”;

however, separation of powers principles are “central” to the analysis. Hernandez, 140 S. Ct. at

743. The inquiry is “whether there is any reason to think that judicial intrusion into a given field

might be harmful or inappropriate.” Egbert, 142 S. Ct. at 1798 (citation and quotation marks

omitted). If “there are sound reasons to think Congress might doubt the efficacy or necessity of a

damages remedy, the courts must refrain from creating it” and thereby usurping Congress’s role.

Id. at 1803 (cleaned up; quoting Ziglar, 137 S. Ct. at 1858). “[E]ven a single sound reason to

defer to Congress is enough to require a court to refrain from creating such a remedy.” Id. at

1803 (cleaned up).

Applying these principles, and mindful that recognizing new Bivens causes of action is

“disfavored judicial activity,” id. at 1797, I am constrained to conclude that special factors

counsel hesitation; there is at least one reason to believe that Congress is better equipped than the

courts to determine the contours of a damages remedy in this contrext. See Senatus v. Lopez, No.

20-CV-60818, 2022 WL 16964153, at *5–6 (S.D. Fla. Oct. 12, 2022) (opining that “a court will

conceivably always be able to” clear “this low hurdle” of finding “‘even one’ reason to believe

Congress would be better equipped to create a damages remedy than the judiciary”), report and

recommendation adopted, 2022 WL 16961323 (S.D. Fla. Nov. 16, 2022).

The “primary role and mission” of the USMS is to “provide for the security and to obey,

execute, and enforce all orders of” the federal judiciary, including “the United States District

Courts.” 28 U.S.C. § 566(a); see also id. (e)(1)(A) (USMS authorized to “provide for the

personal protection of Federal jurists, court officers, witnesses, and other threatened persons in

the interests of justice where criminal intimidation impedes on the functioning of the judicial

process”). Implying a damages remedy here has the potential to negatively impact the judgment

calls DUSMs must make to implement their mission to provide for the security of the federal

judiciary, other court personnel, and trial participants. Such a remedy may, for example, impair

the Marshals’ functions by causing them to second-guess the split-second decisions they must

often make.

Further, as the Supreme Court explained in Ziglar, there are other reasons to find that

implying a damages remedy presents questions better fit for Congress to address:

It is true that, if equitable remedies prove insufficient, a damages remedy might

be necessary to redress past harm and deter future violations. Yet the decision to

recognize a damages remedy requires an assessment of its impact on

governmental operations systemwide. Those matters include the burdens on

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

and consequences to the Government itself when the tort and monetary liability

mechanisms of the legal system are used to bring about the proper formulation

and implementation of public policies. These and other considerations may make

it less probable that Congress would want the Judiciary to entertain a damages

suit in a given case.

137 S. Ct. at 1858; see also Hammond, 2023 WL 2025206, at *4 (determining, in case asserting

Fifth Amendment claims against DUSMs, that “[p]otential liability for how pre-trial detainees

are handled is a matter best left to Congress.”); Robinson v. Heinze, No. 18-131, 2023 WL

1774998, at *6 (N.D. Ga. Feb. 3, 2023) (“recognizing a cause of action against U.S. Marshals

might have consequences far beyond the boundaries of this case”); Logsdon, 2023 WL 205052,

at *4 (“courts are ‘not undoubtedly better positioned than Congress to create a damages action’

for claims against a new category of defendants such as [DUSMs]”) (quoting Egbert, 142 S. Ct.

at 1803); Senatus v. Lopez, No. 20-60818, 2022 WL 16964153, at *5–6 (S.D. Fla. Oct. 12, 2022)

(while “courts and jurists have often made judgment calls about the use of force in cases brought

pursuant to 42 U.S.C. § 1983,” “[w]ithout doubt, . . . numerous other implications . . . can be

raised which could at least arguably counsel judicial restraint” in case involving excessive force

claims against DUSMs).

The availability of an alternative remedial structure may also counsel against extending

Bivens liability. “The Supreme Court in [Ziglar] intimated, and in [Egbert] confirmed, that a

court may not create a Bivens remedy ‘if Congress already has provided, or has authorized the

Executive to provide, an alternative remedial structure.’” Smith, 2022 WL 17852393, at *4

(quoting Egbert, 142 S. Ct. at 1804). “Alternative remedial structures can take many forms,

including administrative, statutory, equitable, and state law remedies.” Nyanteng v. Thompson,

No. 21-10390, 2022 WL 2763552, at *6 (D.N.J. July 15, 2022) (cleaned up; quoting Vega v.

United States, 881 F.3d 1146, 1154 (9th Cir. 2018)). An alternative remedial structure, “like any

special factor, is reason enough to limit the power of the Judiciary to infer a new Bivens cause of

action.” Egbert, 142 S. Ct. at 1804. “It does not matter if those existing remedial structures ‘do

not provide complete relief’ or are ‘not as effective as an individual damages remedy.’” Cohen v.

United States, No. 21-10774, 2022 WL 16925984, at *7 (S.D.N.Y. Nov. 14, 2022) (quoting

Egbert, 142 S. Ct. at 1804); see also Ziglar, 137 S. Ct. at 1863 (“when alternative methods of

relief are available, a Bivens remedy usually is not”).

Here, as the defendants argue and as numerous courts have recognized, alternative

remedial schemes are available. As one court has explained,

The Director of the Marshals Service is statutorily obligated to “supervise and

direct the United States Marshals Service in the performance of its duties.” 28

U.S.C. § 561(g). And by regulation, the Director “shall” investigate “alleged

improper conduct on the part of U.S. Marshals Service personnel.” 28 C.F.R. §

0.111(n). Anyone aggrieved by a Deputy Marshal’s conduct may file a grievance

alleging improper conduct. Ibid. A complaint form for doing so is available on the

website of the Marshals Service. . . . In addition, by statute, the Attorney General

is required to ensure that “any component” of the Department that receives a

“nonfrivolous allegation of criminal wrongdoing or administrative misconduct by

an employee of the Department of Justice . . . shall report that information to the

Inspector General.” 5 U.S.C. App. 3 § 8E(d). Congress has also authorized the

Department’s Inspector General to “investigate allegations of criminal

wrongdoing or administrative misconduct by an employee of the Department of

Justice,” “refer such allegations to the Office of Professional Responsibility,” or

refer them to “the internal affairs office of the appropriate component” of the

Department, including the USMS. Id. § 8E(b)(2). The Department’s Inspector

General provides a link on its website through which any person may report

allegations of wrongdoing. See Hotline, https://oig.justice.gov/hotline (last visited

[March 7, 2023]).

Lewis, 2022 WL 16924177, at *4.10 Remedial schemes of this sort, whether or not they wholly

satisfy a particular claimant, “foreclose a Bivens action,” because, as Egbert made clear, “[s]o

long as Congress or the Executive has created a remedial process that it finds sufficient to secure

an adequate level of deterrence, the courts cannot second-guess that calibration by

superimposing a Bivens remedy.” 142 S. Ct. at 1806-07.

In addition to the above, McIntyre could have, and did, apply to the Court to allow him to

appear in court without restraints. See DE 112-4 at 69 n.1 (Order, United States v. Way, No. 17-

cr-40005 (S.D. Ill.) (citing USMS Policy Directive § 9.18: “Courtroom: All prisoners produced

10 See also Logsdon, 2023 WL 205052, at *4 (same); Robinson, 2023 WL 1774998, at *7 (“[T]he

[USMS] has oversight procedures as a measure against unconstitutional conduct. As in Egbert with the

U.S. Border Patrol, the [USMS] is statutorily obligated to investigate ‘alleged improper conduct on the

part of U.S. Marshals Service personnel.’ 28 C.F.R. § 0.111(n). Because the focus of this inquiry ‘is

whether the Government has put in place safeguards to prevent constitutional violations from recurring,’

not whether ‘a given remedy is adequate,’ the Court finds that this remedial process ‘is sufficient’ to

secure deterrence from unconstitutional behavior.”) (quoting Egbert, 142 S. Ct. at 1806–07); Goodale v.

Seguin, No. 22-00031, 2022 WL 17084400, at *5 (W.D. Tex. Nov. 17, 2022) (“Congress has sufficiently

acted in this area, creating alternative remedies to address allegations of wrongdoing by United States

Marshals, and thereby limiting the appropriateness of judicial action in finding an implied Bivens remedy

here.”); Senatus, 2022 WL 16964153, at *5 (S.D. Fla. Oct. 12, 2022) (“The Egbert Court has made clear

that Bivens does not provide Senatus with a remedy for Defendants’ alleged egregious conduct. Instead,

Congress has created a remedial structure in which the U.S. Marshals are to conduct their own

investigation into purported abuse by those acting on its behalf. Consequently, this Court cannot

extend Bivens to the instant case.”), report and recommendation adopted, 2022 WL 16961323 (S.D. Fla.

Nov. 16, 2022); Cienciva v. Brozowski, No. 20-2045, 2022 WL 2791752, at *10–11 (M.D. Pa. July 15,

2022) (“an alternative available remedy exists for Cienciva within the legal mandates of the [USMS], in

much the same way the Court concluded one existed for Boule. . . . That our own independent

consideration of the adequacy of such an investigation or process may question its deterrent effects is of

no moment; the Egbert decision admonishes us not to graft a judicial remedy onto an existing grievance

process that “independently foreclose[s]” a Bivens cause of action.”) (quoting Egbert, 142 S. Ct. at 1806).

for court, with the exception of a jury trial, are to be fully restrained unless otherwise directed by

a United States District Judge or United States Magistrate Judge.”) (emphasis added). McIntyre

obtained some relief to the extent that he was permitted to appear without handcuffs. 16-cr-13,

DE 64, 85. He could have also pursued injunctive relief to change USMS policy. Corr. Servs.

Corp. v. Malesko, 534 U.S. 61, 74 (2001) (“[U]nlike the Bivens remedy, which we have never

considered a proper vehicle for altering an entity’s policy, injunctive relief has long been

recognized as the proper means for preventing entities from acting unconstitutionally.”). IN an

extreme case, if the violation were clear, mandamus relief might be available.

Finally, the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. (“FTCA”), which

is “the exclusive remedy for most claims against Government employees arising out of their

official conduct,” Hui v. Castaneda, 559 U. S. 799, 806 (2010), is another alternative remedial

structure that would counsel against implying a damages remedy here. See Laoye v. United

States, No. 14-5195, 2023 WL 2263670, at *8 (D.N.J. Feb. 28, 2023) (“It is also worth noting

that Plaintiff has other avenues to pursue his rights, indeed, he has filed this FTCA action against

the United States which remains pending in this Court. Thus, Plaintiff has alternative remedy

structures available and has in fact done so.”); Morales v. Cnty. of Camden, No. 21-11961, 2022

WL 671369, at *4 (D.N.J. Mar. 7, 2022) (“Plaintiff clearly could have brought her [Fourth

Amendment claims against DUSMs] under the FTCA.”); Robinson, 2023 WL 1774998, at *8

(“Whether the FTCA foreclosed Bivens claims was initially unclear. However, [after Ziglar],

more courts have found that—if nothing else—the application of the FTCA is an additional

reason against applying a Bivens claim in certain cases.”); Edwards, 2022 WL 309393, at *9

(collecting cases holding that the FTCA qualifies as an alternative remedy to Bivens).

In short, because at least one special factor, and probably more, counsel against extending

Bivens to the present context, Bivens does not provide an implied civil damages action for

McIntyre’s claims against the Individual Defendants. Accordingly, I will dismiss McIntyre’s

claims against the Individual Defendants with prejudice.

Because McIntyre’s claims are not viable under Bivens, I do not address the defendants’

alternative arguments as to qualified immunity and the statute of limitations. See Bistrian v. Levi,

912 F.3d 79, 96 n.25 (3d Cir. 2018) (“Because we conclude that [there is] not a

recognized Bivens remedy, we again need not address whether any of the defendants are entitled

to qualified immunity.”); Laoye, 2023 WL 2263670, at *8 (unnecessary to address qualified

immunity “given that Bivens is not being extended” to the claims at issue); Barry v. Zamar, No.

19-10216, 2022 WL 4774398, at *8 (D.N.J. Oct. 3, 2022) (“Because the Court has concluded

that Barry does not have a viable Bivens claim . . . , the Court need not address whether ICE

Officer Zamar is entitled to qualified immunity here.”).

I note that the result here may seem inconsistent, in that a federal pretrial detainee is

barred from assert a Bivens damages claim premised on shackling or other restraints, whereas a

similarly situated state detainee could at least in some circumstances pursue that claim under 42

U.S.C. § 1983. See, e.g., Kopec v. Tate, 361 F.3d 772 (3d Cir. 2004) (concluding that plaintiff

stated claim under § 1983 premised on excessively tight handcuffs when he alleged that he was

“groaning in excruciating pain” and had “permanent nerve damage . . . for which a hand surgeon

treated him for over one year”). But there is no legal anomaly. Such perceived inconsistencies

are inevitable because, under Ziglar and Egbert, the Bivens remedy against the federal

government is far narrower than the § 1983 remedy against the states. A federal damages remedy

for such conduct if there is to be one, must be created by Congress, not the courts.

III. CONCLUSION

For the reasons stated above, I will grant the defendants’ motion to dismiss McIntyre’s

second amended complaint and dismiss the claims against all defendants with prejudice. DE 112

(motion to dismiss); DE 90 (second amended complaint). I will not grant McIntyre leave to file a

third amended complaint because I have already granted him multiple opportunities to amend,

and the unavailability of a Bivens remedy is a legal impediment that cannot be cured by

amendment; thus, further amendment would be futile. See Grayson v. Mayview State Hosp., 293

F.3d 103, 108 (3d Cir. 2002) (leave to amend need not be granted if amendment would be futile).

An appropriate order follows.

DATED: March 9, 2023

/s/ Kevin McNulty

______________________________

KEVIN MCNULTY

United States District Judge