# Carr v. BOP

> District Court, N.D. Texas · June 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10672151

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** June 17, 2024
- **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/10672151

## How later opinions describe it (automated extraction)

- 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”
- holding the “Fifth Amendment Due Process Clause gave [the petitioner] a damages remedy for gender discrimination”

## Opinion text

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.
1
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.
2
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).
3
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
4
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

5
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.
6
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

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10672151. Public record. Not legal advice.