# HAMMOND v. ACERNO

> District Court, E.D. Pennsylvania · April 23, 2025

URL: https://www.frixlaw.com/law-library/cases/10851268

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** April 23, 2025
- **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/10851268

## How later opinions describe it (automated extraction)

- explaining that the first prong of the Bivens inquiry asks “whether the request involves a claim that arises in a new context or involves a new category of defendants” (internal quotations omitted)
- noting that a court may take judicial notice of information published on a government website

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN E. HAMMOND, JR., : CIVIL ACTION
Plaintiff, :
:
v. :
:
THOMAS ACERNO, ET AL., : NO. 21-3688
Defendants. :

MEMORANDUM
KENNEY, J. April 23, 2025
On August 16, 2021, Plaintiff John E. Hammond, Jr. filed a pro se civil rights action
naming several federal, state, and local officials as defendants in their official and individual
capacities, including Homeland Security Investigations (“HSI”) agents Thomas Acerno,
Christopher Chase, and David Hepler (collectively, “Defendants”). ECF No. 2 (“Compl.”). After
screening Plaintiff’s Complaint under 28 U.S.C. § 1915A, this Court dismissed most of his claims
with prejudice, but allowed the following four Bivens claims to proceed: (1) claims alleging that
Defendants Acerno, Chase, and Hepler conducted an unauthorized no-knock entry; (2) claims
alleging excessive force against Defendants Acerno, Chase, Hepler; (3) a claim against Defendant
Acerno for allegedly making false statements in the warrant application; and (4) claims for
deliberate indifference to Hammond’s medical needs against Defendants Acerno and Chase.1 ECF
No. 6 at 14.

1 This Court also previously permitted certain of Hammond’s claims alleging that (1) “unknown
Pennsylvania Troopers[] and the unknown Towamencin police officers conducted an unauthorized
no-knock entry” and (2) “unknown Pennsylvania Troopers” exercised excessive force to proceed.
See ECF No. 6 at 14. However, to date, Plaintiff has not identified any of the unknown state or
local law enforcement officers. Because Plaintiff litigated his criminal conviction and pursued an
appeal concurrent with the instant action, he presumably should now have knowledge of the
identities of the unidentified individuals involved in the search and arrest. Accordingly, Plaintiff
Now, Defendants move for judgment on the pleadings on the basis that recent Supreme
Court and Third Circuit precedent interpreting Bivens claims precludes Plaintiff from proceeding
on his remaining claims. See ECF No. 56-1 (“Mtn.”) at 6–23. After review of the relevant
precedent, this Court agrees. Accordingly, the Court grants Defendants’ motion and enters
judgment in their favor on all claims.2

I. PROCEDURAL BACKGROUND3
Following the Court’s screening of Plaintiff’s Complaint, Plaintiff notified the Court of his
intention to proceed on the non-dismissed claims in his original complaint. ECF No. 8.
Accordingly, on May 10, 2022, Defendants Acerno, Chase, and Hepler each filed answers to the
remaining claims.
Hammond’s criminal proceedings continued parallel to the instant civil action. See ECF
No. 41. In July 2022, the Court overseeing Hammond’s criminal action accepted Hammond’s
open guilty plea to two counts of the indictment. See ECF No. 31. Hammond subsequently filed
multiple requests to withdraw his plea, each of which the criminal court denied. See United States

v. Hammond, Crim. No. 19-cr-517, ECF Nos. 165, 172, 187 (E.D. Pa.). Following these denials,

will have thirty (30) days from the date of this Memorandum Opinion and Order to identify the
unnamed Pennsylvania Troopers and Towamencin police officers.
2 As the Defendants point out, the Court is not precluded from readdressing its § 1915A screening
holding on the Bivens claims as against the three remaining named Defendants. See Mtn. at 5–6;
c.f. Wiggins v. Universal Prot. Servs., No. CV 20-5617, 2022 WL 493410, at *5 (E.D. Pa. Feb. 17,
2022) (finding that “initial review[] and acceptance[] of a complaint during the § 1915A” screening
process does not later preclude dismissal under Federal Rules of Civil Procedure 12(b)(6)), aff’d
sub nom. Wiggins v. Universal Prot. Servs. LLC, No. 22-1491, 2022 WL 4116912 (3d Cir. Sept.
9, 2022).
3 The Court adopts its recitation of facts from its November 4, 2021 Memorandum granting in part
and dismissing in part Plaintiff’s Complaint. See ECF No. 6 at 2–5.
in January 2023, the district court sentenced Hammond to 84 months’ imprisonment and three
years of supervised release. See ECF No. 41. The appeal of his criminal conviction followed. Id.
This Court, at Defendants’ request, had stayed the civil proceedings pending the resolution
of Hammond’s criminal action. ECF No. 29. However, developments in the Third Circuit’s

Bivens case law raised questions about whether Hammond’s civil claims in the instant action could
proceed. See ECF No. 54. Subsequently, the Court granted the Defendants’ request to file a pre-
discovery motion for judgment on the pleadings, ECF No. 55, and Defendants filed the instant
motion on September 27, 2024. Mtn. at 1.
On February 3, 2025, Plaintiff voluntarily dismissed the Third Circuit appeal of his
criminal conviction. See ECF No. 61. To the Court’s knowledge, no other challenges to Plaintiff’s
conviction remain pending.
II. LEGAL STANDARD
A motion for judgment on the pleadings under Rule 12(c) is “analyzed under the same
standards that apply to a Rule 12(b)(6) motion.” Revell v. Port Auth. of N.Y., N.J., 598 F.3d 128,

134 (3d Cir. 2010) (citation omitted). Under that standard, the Court “accept[s] as true all of the
factual allegations in the complaint as well as the reasonable inferences that can be drawn from
them,” and dismisses the complaint “only if it is clear that no relief could be granted under any set
of facts that could be proved consistent with the allegations.” Haynes v. Metro. Life Ins. Co., 94
F. App’x 956, 958 (3d Cir. 2004) (internal citations omitted). On a motion for judgment on the
pleadings, “a court must consider only those documents contained in the pleadings.” Main St. Am.
Assurance Co. v. Connolly Contractors, Inc., 587 F. Supp. 3d 256, 266 (E.D. Pa. 2022) (citing
Moco Invs., Inc. v. United States, 362 F. App’x 305, 307 n.4 (3d Cir. 2010)).
III. DISCUSSION
There is no Bivens remedy available to Hammond here. Plaintiff fails to state a cognizable
Bivens claim, and the Court declines to extend Bivens under these circumstances. Accordingly,
Defendants’ Motion for Judgment on the Pleadings (ECF No. 56) is granted.4

A. Plaintiff fails to state cognizable Bivens claims.
Under 42 U.S.C. § 1983, plaintiffs may recover for violations of federal rights committed
by state actors. But as described by the Third Circuit in Fisher v. Hollingsworth, “Congress has
yet to create a similar cause of action to vindicate violations of federal rights by federal officers.”
115 F.4th 197, 203 (3d Cir. 2024) (emphasis in original). Although the Supreme Court has implied
a cause of action against federal officials in three limited circumstances—namely, (1) Bivens v.
Six Unknown Named Agents, 403 U.S. 388 (1971); (2) Davis v. Passman, 442 U.S. 228 (1979);
and (3) Carlson v. Green, 446 U.S. 14 (1980)—since these cases, the Court has not done so.
The Supreme Court recently acknowledged that “recognizing a cause of action under
Bivens is ‘a disfavored judicial activity.’” Egbert v. Boule, 596 U.S. 482, 491 (2022) (quoting

Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)). Therefore, a district court need exercise caution in

4 Defendants further argue, in a status report dated March 4, 2025, that because Mr. Hammond
withdrew his appeal of his criminal conviction with the Third Circuit, his claims are barred by the
Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994). ECF No. 61. In Heck, the
Supreme Court held that “in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court's issuance of a writ of habeas
corpus.” Heck, 512 U.S. at 486. “[T]he reasoning in Heck has been applied to bar Bivens claims.”
Lora-Pena v. F.B.I., 529 F.3d 503, 505 n.2 (3d Cir. 2008) (per curiam). The Court is not aware of
any attempts outside of Hammond’s criminal appeal to challenge his conviction, and Hammond
has now voluntarily dismissed his criminal appeal. However, the Court need not reach the issue
of whether Heck applies in order to determine the instant motion and will decline to do so.
implying a cause of action under Bivens. Id. The Third Circuit recently echoed these words of
caution, admonishing that “lower courts should not extend Bivens beyond the contexts recognized
[by the Supreme Court] in Bivens, Davis, and Carlson.” Fisher, 115 F.4th at 204.
Bivens, Davis, and Carlson each expressly provide for an implied damages cause of action

against federal actors. In Bivens, “the Supreme Court implied a cause of action against federal
drug agents whose warrantless search of a home violated the Fourth Amendment.” Id. at 203. In
Davis v. Passman, the Supreme Court “created a Fifth Amendment damages action against a
Congressman who fired a staffer because she was a woman.” Id. Then, in Carlson v. Green, the
Court “implied an Eighth Amendment damages action against federal prison officials who failed
to provide medical care to an asthmatic prisoner.” Id.
In 2017, the Supreme Court “established a restrictive test” for extending Bivens under
Ziglar v. Abbasi, and in 2022, the Supreme Court further clarified that test in Egbert v. Boule. And
as the Third Circuit clarified in Fisher, under Egbert, a plaintiff may recover under a Bivens theory
only if his case “is indistinguishable from Bivens, Davis, or Carlson.” Fisher, 115 F.4th at 205

(citing Egbert, 596 U.S. at 493). Accordingly, when presented with a Bivens claim, the Court must
ask itself two questions: (1) “whether [the plaintiff’s] case differs meaningfully from Bivens,
Davis, and Carlson,” and if it does, (2) “whether any special factor indicates that the judiciary may
be less suited than Congress to weigh the costs and benefits of a damages remedy.” Id. at 206–07.
Applied here, each of Plaintiff’s claims differs meaningfully from Bivens, Davis, and
Carlson, and “special factors” weigh against permitting Hammond’s claims. Accordingly, the
Court declines to recognize a new Bivens cause of action under these circumstances.5

5 Because the Court finds that Plaintiff fails to state cognizable Bivens claims, it need not address
Defendants’ qualified immunity argument as an alternative basis for dismissal. Mtn. at 23; see
1. Each of Plaintiff’s claims differs meaningfully from Bivens, Davis,
and Carlson.
Whether a case raises a “new” Bivens context “is an ‘easily satisfied’ test because ‘a modest
extension of the Bivens action is still an extension[,]’” meaning “[e]ven ‘significant parallels to
one of the Supreme Court’s previous Bivens cases’ may not be enough.” Henry v. Essex Cnty.,
113 F.4th 355, 361 (3d Cir. 2024) (quoting Abbasi, 582 U.S. at 147–49). Indeed, “a case can differ
meaningfully from Bivens, Davis, and Carlson even when it involves the same constitutional right
as one of those cases.” Fisher, 115 F.4th at 206.
As stated above, following the Court’s Memorandum granting in part and dismissing in
part Plaintiff’s Complaint, the following four claims against Defendants remain: (1) claims

alleging that Defendants Acerno, Chase, and Hepler conducted an unauthorized no-knock entry;
(2) claims alleging excessive force against Defendants Acerno, Chase, and Hepler; (3) a claim
against Defendant Acerno for allegedly making false statements in the warrant application; and
(4) claims for deliberate indifference to Hammond’s medical needs against Defendants Acerno
and Chase. ECF No. 6 at 14. As further described below, each of Plaintiff’s claims would extend
the Bivens cause of action beyond Bivens, Davis, or Carlson, thereby presenting a “new” context.

also Jones v. Gansky, No. 23-CV-2967, 2024 WL 4466673, at *7 n.9 (E.D. Pa. Oct. 10, 2024)
(“Because the Court agrees with [defendant] that he was acting under color of federal law and that
no Bivens remedy is available, it need not address [his] alternative arguments—that [he] is...
entitled to qualified immunity for his participation in [plaintiff’s] prosecution.”); Dorsey v. Burns,
No. CV 22-431(RMB-EAP), 2024 WL 3964254, at *3 (D.N.J. Aug. 28, 2024) (finding it need not
resolve defendants’ qualified immunity argument because the court had already declined to imply
a new Bivens cause of action). For the same reason, the Court need not address Defendants’
argument that Plaintiff cannot hold Defendant Hepler liable under a theory of “supervisory
liability.” Mtn. at 23.
a. Hammond’s “knock-and-announce” claim
First, Hammond alleges that Defendant HSI agents Acerno, Chase, and Hepler violated
knock-and-announce rules in contravention of the Fourth Amendment. Compl. at 10; ECF No. 6
at 7–8. The Court finds that the circumstances here present a new Bivens context.
Facially, both Davis and Carlson are inapplicable here, as they do not concern claims under

the Fourth Amendment. On the other hand, while Bivens itself concerns a Fourth Amendment
claim, a “superficial similarit[y]” between the constitutional claims in both cases is “not enough
to support the judicial creation of a cause of action.” Egbert, 596 U.S. at 495; see also McIntyre
v. U.S. Marshals Serv., Civ. No. 18-1268, 2023 WL 2447424, at *4 (D.N.J. Mar. 10, 2023) (“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.” (internal quotations omitted)).
Bivens involved a Fourth Amendment claim against Federal Bureau of Narcotics agents,
not HSI agents acting on behalf of the U.S. Department of Homeland Security, suggesting that
Plaintiff is attempting to hold a “new category of defendant[]” liable. See Bivens, 403 U.S. at 389;
Hernandez v. Mesa, 589 U.S. 93, 102 (2020) (explaining that the first prong of the Bivens inquiry

asks “whether the request involves a claim that arises in a new context or involves a new category
of defendants” (internal quotations omitted)). At least one Circuit Court has recognized that Fourth
Amendment claims against HSI agents are distinct from the Fourth Amendment claims asserted
against Federal Bureau of Narcotics agents for Bivens purposes. See Sheikh v. U.S. Dep’t of
Homeland Sec., 106 F.4th 918, 925 (9th Cir. 2024).
The Court also recognizes that the alleged law enforcement misconduct present in this case
is distinct from that in Bivens. In Bivens, law enforcement officers executed a warrantless narcotics
search, while in this case, Plaintiff recognizes that the HSI agents were in possession of a search
warrant. Compl. at 11; Bivens, 403 U.S. at 389; see also Henry, 113 F.4th at 362 (comparing a
search pursuant to a valid warrant to the warrantless search in Bivens and finding that a new context
was present). These distinctions indicate that the instant Fourth Amendment claim is readily
distinguishable from the one in Bivens. And, because the Court sees no similarity between the
instant case and the claims set forth in Davis or Carlson, a new Bivens context presents itself here.

b. Hammond’s excessive force claim
Next, this Court construed Hammond’s “official oppression” claim to include an
“excessive force Bivens claim” against Defendants Acerno, Chase, and Hepler. ECF No. 6 at 9–
10. The Court finds that the circumstances here present a new Bivens context. The claim is facially
dissimilar to Carlson and Davis but presents a potentially analogous alleged Fourth Amendment
violation akin to Bivens. However, as with Hammond’s “knock-and-announce” claim, there are
distinctions evidencing that the “excessive force” claim presents a new Bivens context.
First, Hammond seeks to hold the HSI agents accountable, whereas Bivens involved claims
against agents from the Federal Bureau of Narcotics. See Hernandez, 589 U.S. at 102. Therefore,
Hammond seeks to hold a new category of defendants liable under Bivens.
Further, although the circumstances that Hammond alleges constitute “excessive force”

may initially seem parallel to those in Bivens, they are not “indistinguishable” from Bivens. Fisher,
115 F.4th at 205. In Bivens, federal agents entered the plaintiff’s home, arrested him without a
warrant, “manacled petitioner in front of his wife and children, and threatened to arrest the entire
family.” 403 U.S. at 389–90. Here, the allegations underlying Hammond’s “excessive force”
claim include that he was awoken by masked men with guns (whom he identifies as “PSP-SERT
and HSI-Agents”), grabbed by his neck chain, and kicked by officers acting pursuant to a warrant.
See Compl. at 10. Hammond further alleges that both he and his wife were handcuffed and
separated for the duration of the search. Id. The alleged circumstances here vary from those of
Bivens and therefore present a new Bivens context.
c. Hammond’s false statements claim
Third, Hammond claims that Defendant Acerno made false statements in the affidavit
underlying the obtained search warrant in violation of the Fourth Amendment. Compl. at 15; ECF
No. 6 at 10. The Court finds that the “false statements” claim presents a new Bivens context, as
the claim is facially dissimilar to both Carlson and Davis and distinct from the circumstances of

Bivens.
As previously stated, Plaintiff attempts to find a “new category of defendant,” i.e.,
Defendant HSI agent Acerno, liable under the Fourth Amendment for the statements made in the
search warrant application. Hernandez, 589 U.S. at 102. Further, the Fourth Amendment right
that Hammond alleges is implicated by Defendant Acerno’s conduct differs from that of Bivens.
In Bivens, officers conducted Bivens’ arrest without a warrant, whereas here, a warrant was
present. Bivens, 403 U.S. at 389. The circumstances therefore implicate two separate rights under
the Fourth Amendment. Specifically, Bivens implicated the Fourth Amendment’s protection from
“unreasonable warrantless searches and seizures;” conversely, Hammond’s allegation implicates
the Fourth Amendment’s guarantee that “no Warrants shall issue, but upon probable cause.” See

U.S. Const. amend. IV; Annappareddy v. Pascale, 996 F.3d 120, 135–36 (4th Cir. 2021)
(dismissing Fourth Amendment Bivens claim alleging that law enforcement made false statements
to procure a search warrant).
Accordingly, the Court finds that Hammond’s Fourth Amendment “false statement” claim
creates a new Bivens context.
d. Hammond’s deliberate indifference claim
Finally, Hammond alleges a deliberate indifference to medical needs claim against
Defendants Acerno and Chase. Compl. at 10–11. Historically, the Supreme Court had considered
deliberate indifference in the Bivens context in Farmer v. Brennan, 511 U.S. 825 (1994).
However, the Third Circuit in Kalu v. Spaulding made clear that “Farmer does not present an
established Bivens context.” Kalu, 113 F.4th 311, 329–30 (3d Cir. 2024). Accordingly, the Court
must consider whether Hammond’s deliberate indifference claim presents a new Bivens context.
Hammond’s deliberate indifference claim bears most similarity to Carlson,6 which

established a Bivens cause of action where “federal prison officials [] failed to provide medical
care to an asthmatic prisoner.” Fisher, 115 F.4th at 203. The Supreme Court recounted the facts
underlying the alleged Eighth Amendment violation in Carlson as follows:
[The prison officials] being fully apprised of the gross inadequacy of medical facilities and
staff at the Federal Correction Center in Terre Haute, Ind., and of the seriousness of [the
prisoner’s] chronic asthmatic condition, nonetheless kept him in that facility against the
advice of doctors, failed to give him competent medical attention for some eight hours after
he had an asthmatic attack, administered contra-indicated drugs which made his attack
more severe, attempted to use a respirator known to be inoperative which further impeded
his breathing, and delayed for too long a time his transfer to an outside hospital. The
complaint further alleges that [the prisoner’s] death resulted from these acts and omissions,
that petitioners were deliberately indifferent to [his] serious medical needs, and that their
indifference was in part attributable to racial prejudice.
446 U.S. at 16 n.1.
First, the Court need note Hammond’s allegation that he was in the process of being
searched and arrested in his own home when his health complication arose. Compl. at 10–11.
Hammond’s status as a pretrial detainee, rather than a convicted prisoner like the inmate in
Carlson, indicates that a different constitutional right is implicated than that in Carlson—the Fifth
Amendment. See, e.g., Abbasi, 582 U.S. at 148 (“The constitutional right is different here, since
Carlson was predicated on the Eighth Amendment and this claim is predicated on the Fifth.”); see
also McFadden v. Dalmasi, 837 F. App’x 135, 136–37 & n.3 (3d Cir. 2020) (quoting Hubbard v.

6 For avoidance of doubt, while Davis v. Passman involved a Fifth Amendment claim, the
circumstances alleged by Hammond vary drastically from that of Davis, which involved a sex
discrimination claim by a congressional staffer. See Davis, 442 U.S. at 230–31. Additionally, the
Fourth Amendment claim in Bivens is facially dissimilar from the instant claim.
Taylor, 399 F.3d 150, 155–56 (3d Cir. 2005)). The distinct constitutional postures give the Court
pause, indicating that a new context is present here. But see Carattini v. Behun, No. 21 CIV. 9373
(NSR), 2024 WL 3274663, at *6 (S.D.N.Y. July 2, 2024) (“Accordingly, the fact that
Plaintiff’s Bivens claim for deliberate indifference to serious medical needs is brought under the

Fifth Amendment as opposed to the Eighth Amendment claim recognized in Carlson does not
mean that the claim arises in a new context.”).
In any event, even if the same constitutional right were implicated in each case, the nature
and severity of the circumstances at issue also distinguish the instant matter from Carlson. See
Bettis v. Grijalva, No. 21-cv-07505, 2023 WL 4141869, at *6 (S.D.N.Y. June 23, 2023) (“Courts
have routinely found [that] variances in circumstances and severity render deliberate indifference
claims different from Carlson and thus arise in a ‘new context.’”) (citing cases). The agents on
the premises did not permit Hammond to take his anxiety and pain medication, causing his stress
levels to rise and resulting in him fainting. Compl. at 10–11. Hammond was thereafter transported
to and treated at a hospital, though he alleges that he does not recall being there. Id. Carlson, on

the other hand, involved the repeated denial of medical treatment for an asthmatic prisoner
ultimately resulting in the prisoner’s death. Carlson, 446 U.S. at 16 n.1. Accordingly, the instant
case is distinct from Carlson, and therefore presents a new context.
* * *
Each of Plaintiff’s remaining Bivens claims present a “new” Bivens context, fulfilling the
first prong of the Supreme Court’s Abbasi analysis.
2. Special factors counsel against fashioning a Bivens remedy.
The Court now must analyze whether any special factors are present indicating that
Congress is better suited to fashion a Bivens remedy under the circumstances. The Court concludes
that such special factors exist.
The “special factors” analysis requires that the Court consider “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.” Kalu, 113 F.4th at 326 (quoting Abbasi, 582 U.S. at
136) (internal quotations omitted). “At this stage, two factors are particularly weighty: the

existence of an alternative remedial structure and separation-of-powers principles.” Id. (internal
quotations omitted). However, “[a]ny special factor—even one—suffices to foreclose a new
Bivens cause of action.” Fisher, 115 F.4th at 207. Put differently, the presence of a “single reason
to pause” bars the Court from recognizing a Bivens remedy. Id.
Hammond’s claims are foreclosed by the presence of special factors indicating that
Congress is best equipped to fashion a damages remedy for his claims.
First, the Supreme Court in Egbert made clear that “uncertainty alone” regarding the
potential “consequences of recognizing a cause of action under Bivens” is a special factor in and
of itself. 596 U.S. at 493. As discussed above, the circumstances here undoubtedly present a new
Bivens context. Accordingly, because at least one special factor is present, the Court declines to

fashion a Bivens remedy.
For avoidance of doubt, an alternative remedial structure also exists to resolve Plaintiff’s
claims (at least partially),7 presenting an additional special factor. Defendants point to 8 C.F.R.
§§ 287.10(a)–(b), which require that DHS investigate “alleged violations of the standards for
enforcement activities” by U.S. Immigration and Customs Enforcement (“ICE”) officers and
accept complaints from “any persons wishing to lodge a complaint.” 8 C.F.R. §§ 287.10(a)–(b);

7 “[T]he government’s procedures need not be as effective as an individual damages remedy to
foreclose Bivens relief.” Barry v. Anderson, No. 22-3098, 2023 WL 8449246, at *4 (3d Cir. Dec.
6, 2023) (citing Egbert, 596 U.S. at 497–98).
see also Barry, 2023 WL 8449246, at *4 (recognizing 8 C.F.R. § 287.10 as an alternative remedial
scheme when Bivens claim was brought against ICE officer) (citing Egbert, 596 U.S. at 497).
Because they are employed by a subsidiary of ICE, HSI agents are subject to investigations under
this regulation.8

Additionally, separation of powers concerns are present. First, fashioning a Bivens remedy
here could “interfere with cooperation among federal, local, and state law enforcement agencies
to combat” firearm offenses. Cf. Jones, 2024 WL 4466673, at *10. In addition, as a general
matter, “[t]he Constitution entrusts Congress, not the courts, with the power to create new federal
causes of action and remedies.” Dongarra v. Smith, 27 F.4th 174, 180 (3d Cir. 2022).
Because special factors abound that give the Court reason to pause, it will decline to fashion
a Bivens remedy for each remaining claim against Defendants Chase, Acerno, and Hepler. As a
result, these claims are dismissed.
B. Dismissal With Prejudice
Defendants argue in their motion that Hammond’s Bivens claims should be dismissed with

prejudice. See Mtn. at 25. The Court agrees and will dismiss Hammond’s claims against
Defendants with prejudice, finding their deficiencies incurable. See, e.g., Gedeon v. Att’y Gen.,
No. 2:22-CV-03595-JMG, 2025 WL 823952, at *4 (E.D. Pa. Mar. 14, 2025) (dismissing Plaintiff’s
claims with prejudice for failure to state “cognizable claims under Bivens”).

8 The Court takes judicial notice of the fact that HSI falls under ICE’s purview. See “Who We
Are,” U.S. Immigration and Customs Enforcement (last accessed Apr. 23, 2025),
https://www.ice.gov/about-ice/hsi; Vanderklok v. United States, 868 F.3d 189, 205 n.16 (3d Cir.
2017) (noting that a court may take judicial notice of information published on a government
website).
IV. CONCLUSION
For the foregoing reasons, Hammond’s claims for damages under Bivens are dismissed
with prejudice because special factors advise against the implication of a Bivens remedy for all
four remaining claims against Defendants. Hammond will not be permitted to amend his

complaint as to Defendants Chase, Acerno, and Hepler because the deficiencies in his claims
cannot be cured. Hammond will have thirty (30) days from the date of this Memorandum and
Order to identify the unknown Pennsylvania Troopers and Towamencin police officers. An
appropriate order follows.
BY THE COURT:

/s/ Chad F. Kenney

CHAD F. KENNEY, JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10851268. Public record. Not legal advice.