# MCINTYRE v. UNITED STATES MARSHAL SERVICE

> District Court, D. New Jersey · March 10, 2023

URL: https://www.frixlaw.com/law-library/cases/10655184

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 10, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10655184

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10655184. Public record. Not legal advice.