Carr v. BOP

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MICHAEL JOSEPH CARR, §

(BOP No 49542-177), §

Plaintiff, §

V. § Civil Action No. 4:23-cv-447-O

§

BOP OFFICE OF §

GENERAL COUNSEL, et al., §

§

Defendants §

OPINION and ORDER

This case was filed by Bureau of Prisons (“BOP”) inmate/Plaintiff Michael Joseph Carr

(“Carr”) asserting claims against former FMC-Fort Worth Warden F.J. Garrido, BOP Regional

Director H. Tellez, and the BOP Office of General Counsel. Am. Compl. 3, ECF No. 6. By

Opinion and Order issued on December 13, 2023, the Court dismissed Carr’s claims against the

BOP, the BOP Office of General Counsel, and claims under 42 U.S.C. § 1985(3), under

authority of 28 U.S.C. § 1915A(b)(1). ECF No. 13. The Court allowed Carr to serve his

remaining claims. Now pending is a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) by remaining defendants Garrido and Tellez. ECF No. 22. Carr has not filed a response

to the motion. After considering the relief sought by Carr, the pleading, record, briefing and

applicable law, the Court finds that the motion to dismiss must be GRANTED.

I. BACKGROUND/CLAIMS

Michael Carr is an inmate in the custody of the BOP. Am. Compl. 4, ECF No. 6. In 2015,

Carr pleaded guilty to Enticement of a Minor and was sentenced to a 210-month term of

imprisonment followed by 10 years of supervised release. See Judgment, United States v. Carr,

No. 3:15-cr-00276-B (1) (N.D. Tex., Apr. 21, 2016), ECF No. 43.

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As noted, Carr has remaining claims against F. J. Garrido—retired former Warden of

Federal Medical Center (FMC) Fort Worth—and Heriberto H. Tellez—Regional Director for the

South Central Region of the BOP—individually for allegedly violating his Fifth Amendment

right to due process. Am. Compl. 1-6, ECF No. 6. Carr particularly claims his Fifth Amendment

due process rights were violated by FMC-Fort Worth continuously losing or delaying delivery of

mail related to his requests for administrative remedies. Id. at 1-6. He alleges delays in

processing the grievances required by the administrative remedy process.1 Am. Compl.

(Exhibits) at 14, 19, 21-22, ECF No. 6. Specifically, Carr complains that mail containing

responses to various administrative complaints was not given to him until after his deadline to

appeal. Id. According to Carr, Garrido and Tellez have direct oversight over the administrative

remedy program at various levels. Id. at 4, § V. Carr alleges Defendants are responsible through

their “direct oversight over Administrative Remedies at various local, re[g]ional, and central

levels.” Id. at § V. Carr does not otherwise allege any specific action taken by either Garrido or

Tellez.

Carr seeks a permanent injunction against the defendants, enjoining them from taking

part in “any further deceptive conduct with regards to dating and delivering Rejections and

Responses to Administrative complaints.” Id. at 4 § VI. Carr does not request any other form of

relief.

II. MOTION TO DISMISS

A. Overview

3Defendants note that Carr did not properly exhaust his administrative remedies for these

complaints prior to filing suit, but they also acknowledge lack of exhaustion is an affirmative defense that

must be raised in a motion for summary judgment rather than a Rule 12(b) motion. Mot. Dismiss, 9, ECF

No. 22. Thus, lack of exhaustion is not a basis for resolution of the pending Rule 12(b)(6) motion.

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Defendants contend that Carr’s Amended Complaint fails to state a claim upon which

relief can be granted. They argue that no implied cause of action exists or should be created

under Bivens2 to remedy the types of constitutional violations asserted in Carr’s amended

complaint. Also, defendants argue that injunctive relief is unavailable to Bivens claimants.

Finally, defendants argue they are entitled to qualified immunity for their alleged actions.

B. Rule 12(b)(6) Standard

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

12(b)(6) is generally viewed with disfavor. Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247

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

them in the light most favorable to the plaintiff. Bustos v. Martini Club Inc, 599 F.3d 458, 461

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

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

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

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court cannot look beyond the face of the

pleadings in resolving a Rule 12(b)(6) motion. Doe ex rel. Magee v. Covington Cnty, Sch. Dist.,

649 F.3d 335, 341 (5th Cir. 2011) (explaining that “[w]e examine only the allegations within the

four corners of the complaint”), aff’d on rehearing en banc, 675 F.3d 849 (5th Cir. 2012). A

plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal.

See Schultea v. Wood, 47 F.3d 1427, 1431 (5th Cir. 1995) (en banc); see also Taylor v. Books A

Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (“[C]onclusory allegations or legal conclusions

2Bivens v. v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388

(1971).

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masquerading as factual conclusions will not suffice to prevent a motion to dismiss”) (citation

omitted)). Rule of Civil Procedure 8 “demands more than an unadorned, the-defendant-

unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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

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

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

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

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

the Court concluded therein that a plaintiff can survive a motion to dismiss “unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claims which would

entitle him to relief”). Then, in Ashcroft v. Iqbal, the Supreme Court clarified that review of a

12(b)(6) motion is guided by two principles: (1) a court must apply the presumption of

truthfulness only to factual matters and not to legal conclusions; and (2) only a complaint that

states a plausible claim for relief survives a motion to dismiss. “Determining whether a

complaint states a plausible claim for relief . . . [is] a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. 662, 678-

680 (2009). If the pleadings fail to meet the requirements of Iqbal and Twombly no viable claim

is stated, and the pleading is subject to dismissal.

C. Analysis – Whether Bivens Extends to Carr’s Constitutional Claim

1. Introduction

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

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

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constitutional rights,’” specifically, under the Fourth Amendment. Butts v. Martin, 877 F.3d 571,

587 (5th Cir. 2017) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). In

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

implied cause of action outside of the Fourth Amendment context: Davis v. Passman, 442 U.S.

228 (1979) (holding the “Fifth Amendment Due Process Clause gave [the petitioner] a damages

remedy for gender discrimination”) and Carlson v. Green, 446 U.S. 14 (1980) (holding that the

“Eighth Amendment Cruel and Unusual Punishments Clause gave [a prisoner’s estate] a

damages remedy for failure to provide adequate medical treatment”). See Ziglar v. Abbasi, 582

U.S. 120, 130-31 (2017). In Abbasi, the Supreme Court noted that those “three cases—Bivens,

Davis, and Carlson—represent the only instances in which the Court has approved of an implied

damages remedy under the Constitution itself.” Id. at 131. And the Court explained it had

“notabl[y] change[d] . . . [its] approach to recognizing implied causes of action . . . ma[king]

clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” Id. at 135 (citing

Iqbal, 556 U.S. at 675).

In order to determine whether a Bivens remedy is available to Carr on his constitutional

claim against Garrido and Tellez, this Court “must first assess whether [his] claim[s] present a

new Bivens context.” Butts, 877 F.3d at 587 (citing Iqbal, 556 U.S. at 675). “If so, there are two

circumstances where Bivens does not recognize an implied cause of action for constitutional

violations. First, Bivens claims are unavailable ‘if there are special factors counseling hesitation

in the absence of affirmative action by Congress.’” Butts, 877 F.3d at 587 (quoting Abbasi, 582

U.S. at 136) (internal citation omitted). “Second, Bivens remedies may be foreclosed by

congressional action where an ‘alternative, existing process for protecting the interest amounts to

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a convincing reason for the Judicial Branch to refrain from providing a new and freestanding

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

(2007)).

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

In Abassi, after discussing the only three cases where the Supreme Court had previously

approved of an implied damages remedy—Bivens, Davis, and Carlson—the Court explained

“[i]f the case is different in a meaningful way from previous Bivens cases decided by [the

Supreme] Court, then the context is new” and courts should be cautious of recognizing any

implied Bivens remedy. Abbasi, 582 U.S. at 139-40.

Carr’s claims are distinguishable from these three cases, and thus present a new Bivens

context. Indeed, Davis is the only one of the three cases identified in Abbasi that addresses the

Fifth Amendment, but Carr’s claims of denial of due process related to BOP grievance

procedures are not analogous to the employment-based equal-protection claims in Davis. See

Cantu v. Moody, 933 F.3d 414, 422 (5th Cir. 2019) (“No one thinks Davis—which permitted a

congressional employee to sue for unlawful termination in violation of the Due Process Clause—

means the entirety of the Fifth Amendment’s Due Process Clause is fair game in a Bivens

action.”). Significantly, the Supreme Court has never recognized a Bivens remedy for a Fifth

Amendment due-process violation. See Annappareddy v. Pascale, 996 F.3d 120, 134 (4th Cir.

2021) (finding that the plaintiff’s “fabrication . . . of evidence claims” are “far afield from the sex

discrimination” claims in Davis) (internal quotation marks omitted). Accordingly, Carr’s

purported Bivens claims regarding the timing of receipt of grievance response mail while

incarcerated arise in new context.

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3. Special Factors Counsel Against a new Bivens remedy.

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

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

absence of “affirmative action by Congress.” Abbasi, 582 U.S. at 136. As the Supreme Court

clarified in Abbasi, this “inquiry must concentrate on whether the Judiciary is well suited, absent

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

damages action to proceed.” Id. at 136. A Bivens remedy should not be inferred if “there are

sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as

part of the system for enforcing the law and correcting a wrong.” Id. at 137. Relatedly, “if there

is an alternative remedial structure present in a certain case,” the existence of that process “alone

may limit the power of the Judiciary to infer a new Bivens cause of action.” Id.

Applying these principles, Carr cannot show that a Bivens claim should be recognized

here. Congress has crafted distinct, alternative methods to address an inmate’s complaints about

the conditions of his confinement. Specifically, Carr has available to him the administrative

remedy program. The program is provided through regulations, codified at 28 C.F.R. §§ 542.10

through 542.19, Promulgated pursuant to an explicit congressional delegation of authority, which

“allow an inmate to seek formal review of an issue relating to any aspect of his/her own

confinement.” 28 C.F.R. § 542.10(a). As one court of appeals noted, a damages remedy is not

necessary as “‘alternative remedial structures’ can take many forms, including administrative,

statutory, equitable, and state law remedies.” Vega v. United States, 881 F.3d 1146, 1154 (9th

Cir. 2018) (finding the administrative remedy program outlined by 28 C.F.R. §§ 542.10 through

542.19 to constitute an alternative remedial structure under Abassi). Indeed, Carr has taken

advantage of this process. Am. Compl. (Exhibits) 14-42, ECF No. 6.

And even if there were no alternative process available to Carr, other special factors

counsel hesitation before creating the new kind of Bivens litigation sought here. First, through

frequent and intense action in regulating federal prisons and prisoner litigation, Congress has

demonstrated an intent to limit prisoner suits and has never allowed a damages remedy, let alone

for claims like those asserted by Carr. See, e.g. Prison Litigation Reform Act (“PLRA”), 42

U.S.C. § 1997e. The Fifth Circuit has also recognized that “the length of time Congress has gone

without statutorily creating a Bivens-type remedy” in a specific context is a special factor

counseling hesitation against recognizing a new Bivens action. Cantu, 933 F.3d at 423. As the

Supreme Court has not recognized a new Bivens cause of action for more than five decades,

“Congress has long been on notice that the Supreme Court is disinclined to extend Bivens to new

contexts,” suggesting that Congress’s silence is the result of “‘more than mere oversight.’” Id. at

423-44 (quoting Abbasi, 582 U.S. at 143.) This is particularly true in the federal prison setting,

where “Congressional interest has been ‘frequent and intense.’” Abassi, 582 U.S. at 144 (citing

Schweiker v. Chilicky, 487 U.S. 412, 423 (1988)). Despite decades of repeated and extensive

congressional action in federal prison operations and litigation, Congress never enacted a statute

entitling federal prisoners to a civil damages action, and “when Congress fails to provide a

damages remedy in circumstances like these, it is much more difficult to believe that

‘congressional inaction’ was ‘inadvertent.’” Id. at 144.

Second, separation-of-powers principles counsel against judiciary interference in federal

prison operations when Congress has delegated the authority to ensure safety and order in those

prisons to the Executive (through the BOP). See 18 U.S.C. § 3621(b)(1-5) (noting BOP, in

designating place of prisoner’s confinement, may choose “any available penal . . . facility that

meets minimum standards . . . established by [BOP] . . . that [BOP] determines to be appropriate

and suitable” in light of five enumerated factors); see also 18 U.S.C. § 4001(b)(1) and (2)

(delegating “control and management” of federal prisons to Attorney General, who may classify

inmates and promulgate rules and regulations that “provide for their proper government,

discipline, treatment, care, rehabilitation, and reformation”); and 18 U.S.C. § 4042(a)(1) and (2)

(providing BOP, under direction of Attorney General, “shall…have charge of the management

and regulation of all Federal penal and correctional institutions” and directing BOP to “provide

for the protection… and discipline of all persons charged with or convicted of offenses against

the United States”). Not only has Congress delegated much of its authority over federal prisons

to the BOP, but, in some instances, it has “expressly strip[ped]… court[s] of jurisdiction to

review certain decisions made by BOP officials.” Brown v. Holder, 770 F. Supp. 2d 363, 365 (D.

D.C. 2011) (citing 18 U.S.C. § 3625). Separation-of-powers principles inherent in Congress’

delegation of running federal prisons to the Attorney General and BOP causes the Court to

hesitate before establishing a new Bivens damages remedy.

Finally, practical considerations—such as the harmful effects on the discharge of prison

officials’ day-to-day duties and systemwide costs on the government—weigh against courts

attempting to create a workable cause of action. “When determining whether traditional

equitable powers suffice to give necessary constitutional protection—or whether, in addition, a

damages remedy is necessary—there are a number of economic and governmental concerns to

consider.” Abbasi, 582 U.S. at 133-34. The sheer volume of the sorts of complaints that could be

brought in this kind of lawsuit create an unusual “burden and demand” that “might well prevent”

prison officials who fear suit “from devoting the time and effort required for the proper discharge

of their duties.” Abbasi, 582 U.S. at 141.

In sum, for Carr’s claims, a “general Bivens cure would be worse than the disease.”

Wilkie v. Robins, 551 U.S. 537, 561 (2007). “Recognizing any new Bivens action ‘entail[s]

substantial social costs, including the risk that fear of personal monetary liability and harassing

litigation will unduly inhibit officials in the discharge of their duties.’” Egbert v. Boule, 596 U.S.

482, 142 S. Ct.1793, 1807 (2022) (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)).

As a result, the Supreme Court has determined that “[w]hen asked to imply a Bivens action, our

watchword is caution.” Id. at 1803 (cleaned up). Here, Carr’s claims represent a new context, and

special factors counsel against expanding Bivens to include them. As a result, his Bivens claims

against defendants must be dismissed.

D. Analysis-Carr Fails to state a claim under Bivens for injunctive relief.

Injunctive relief is not available in a Bivens lawsuit against a defendant sued in their

individual capacity. See Rivers v. Carvajal, No. 2:20-CV-1364, 2022 WL 3082556 (W.D. La.

Jun. 28, 2022) (citing Solida v. McKelvey, 820 F.3d 1090, 1094 (9th Cir. 2016) (“By definition

Bivens suits are individual capacity suits and thus cannot enjoin official government action.”);

see also Higazy v. Templeton, 505 F.3d 161, 169 (2nd Cir. 2007) (“The only remedy available in

a Bivens action is an award for monetary damages from defendants in their individual

capacities”) (citation omitted). As explained in Bivens itself, “the only possible remedy . . . is

damages or nothing”:

[S]ome form of damages is the only possible remedy for someone in Bivens’

alleged position. It will be a rare case indeed in which an individual in Bivens’

position will be able to obviate the harm by securing injunctive relief from any

court. However desirable a direct remedy against the Government might be as a

substitute for individual official liability, the sovereign still remains immune to

suit.... For people in Bivens’ shoes, it is damages or nothing.

Bivens, 403 U.S. at 409-10 (Harlan, concurring) (emphasis added). As such, Carr’s request for

injunctive relief is improperly brought against the defendants in their individual capacities, and

such claims must be dismissed.

E. Alternative Analysis-Defendants Entitled to Qualified Immunity

Alternatively, defendants Garrido and Tellez are entitled to qualified immunity from all

of Carr’s claims against them for the reasons set forth in the Defendants’ motion to dismiss at

section HI (B) at pages 18 through 23. As explained there in detail, Carr cannot show that

Garrido or Tellez violated a statutory or constitutional rights that was clearly established. As

such, Defendants Garrido and Tellez are alternatively entitled to qualified immunity from all

claims against them.

IV. CONCLUSION AND ORDER

It is therefore ORDERED that Defendant’s motion to dismiss under Federal Rule

of Civil Procedure 12(b)(1) (ECF No. 22) is GRANTED, such that all plaintiff Michael

Joseph Carr’s remaining claims are DISMISSED with prejudice.

SO ORDERED on this 17th day of June, 2024.

tA Lo

LAY LMtey —

UNITED STATES DISTRICT JUDGE

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