Flower v. U.S. Department of Homeland Security

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

AARON EDWARD FLOWER,

Plaintiff,

v.

Case No. 25-CV-00458-SEH-SH

U.S. DEPARTMENT OF

HOMELAND SECURITY;

JANE DOE #1 (Blonde DHS Agent),

Defendants.

OPINION AND ORDER

Plaintiff Aaron Edward Flower, appearing pro se, has filed a civil rights

complaint [ECF No. 1] and a motion to proceed in forma pauperis [ECF No.

2]. Flower asserts jurisdiction pursuant to Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). [ECF No. 1 at 4]. As

discussed below, the Court finds Flower’s motion to proceed in forma

pauperis should be granted. As to his claims against Defendants U.S.

Department of Homeland Security and Jane Doe #1 (Blonde DHS Agent) in

her official capacity, the Court finds these claims should be dismissed

without prejudice because they are barred by sovereign immunity. For his

claims against Jane Doe #1 (Blonde DHS Agent), the Court orders Flower to

file an amended complaint to cure the deficiencies described below by

September 25, 2025. If Flower does not file an amended complaint within the

prescribed time that cures all the deficiencies discussed herein, this matter

will be dismissed and without further notice.

I. Background

Flower alleges that he was arrested on January 27, 2025 by a Tulsa Police

Department officer and detective.1 [ECF No. 1 at 5]. He claims that while he

was being booked into the David L. Moss Correctional Facility on an

embezzlement charge, the officer moved him out of the booking area and into

the front seat of an SUV parked in the facility’s “sally port.” [Id.]. “[A] young

blonde” sat in the driver’s seat and showed him her badge. [Id.]. She told him

she was “with DHS and the [illegible].” [Id.]. Flower alleges that the DHS

agent informed him that she was seizing his phone and began speaking with

him about child pornography. [Id.]. Flower claims the agent’s seizure of his

cell phone was without a warrant or probable cause. [Id. at 11]. When Flower

requested his attorney, the agent had him taken back inside. [Id. at 5]. Based

on these interactions, Flower claims the Defendants violated his Fourth,

Fifth, and Fourteenth Amendment rights and directly caused loss of his “BTC

1 Flower submits two forms at ECF No. 1 that are each captioned “Complaint.”

[ECF No. 1 at 1, 10]. Because Flower is a pro se plaintiff, the Court will construe his

pleading liberally and consider all allegations contained in both forms as Flower’s

initial complaint.

job wages.”2 [Id. at 4, 6, 11]. In his request for relief, Flower asks for

“$1,500,000 for phone account access lost wages and lost opportunity.” [Id. at

6]. He further requests the “value of [his] phone or [the phone’s] return.” [Id.

at 11].

II. Discussion

A. The Court grants Flower’s motion to proceed in forma pauperis.

Based on representations in Flower’s motion to proceed in forma pauperis

[ECF No. 2], the Court grants his request to proceed without prepayment of

the filing fee. See 28 U.S.C. § 1915(a). Flower nonetheless remains obligated

to pay the $350 filing fee in full when he is able to do so. See Brown v. Eppler,

725 F.3d 1221, 1231 (10th Cir. 2013) (noting that authorization to proceed in

forma pauperis only excuses prepayment of the filing fee).

B. Flower must amend his complaint against Jane Doe #1 (Blonde

DHS Agent) in her individual capacity to avoid dismissal of his

case.

2 Flower seemingly misconstrues the scope of the Fourteenth Amendment. “The Due

Process Clause of the Fifth Amendment applies only to action by the federal

government while the Due Process Clause of the Fourteen Amendment applies to

actions by state governments.” Koessel v. Sublette County Sherriff’s Dep’t, 717 F.3d

736, 748 n. 2 (10th Cir. 2013). Here, the Court assumes Flower is bringing claims

against a federal entity and a federal agent based on his representation that

Defendant Jane Doe #1 is a “federal agent with U.S.D.H.S.” [ECF No. 1 at 10]; thus,

Flower fails to provide any facts supporting a Fourteenth Amendment claim.

However, if Flower’s intent is to sue an agent of a state entity with the acronym

“DHS,” he should clarify that intent in an amended complaint.

Because the Court has found Flower indigent and granted his request to

proceed in forma pauperis, it must next consider whether the complaint

should be dismissed under 28 U.S.C. § 1915(e)(2)(B). When a litigant

proceeds in forma pauperis, § 1915(e)(2)(B) provides that “the court shall

dismiss the case at any time if the court determines that ... the action ... is

frivolous or malicious; … fails to state a claim on which relief may be granted;

or … seeks monetary relief against a defendant who is immune from such

relief.” In addition, because federal courts are courts of limited jurisdiction,

the Court has an independent duty to determine whether Flower has alleged

sufficient facts to establish subject-matter jurisdiction. Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 434 (2011). In determining whether

dismissal is appropriate, the Court must liberally construe Flower’s pro se

complaint and must accept as true his well-pleaded factual allegations. Kay v.

Bemis, 500 F.3d 1214, 1217–18 (10th Cir. 2007).

The standard for dismissals under § 1915(e)(2)(B) for failing to state a

claim on which relief may granted is the same as those brought by motion

under Federal Rule of Civil Procedure 12(b)(6). See Kay, 500 F.3d at 1217–18.

Thus, courts “look to the specific allegations in the complaint to determine

whether they plausibly support a legal claim for relief.” Id. at 1218.

But “[t]he burden is on the plaintiff to frame a ‘complaint with enough

factual matter (taken as true) to suggest’ that he or she is entitled to relief.”

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint

must present “enough facts to state a claim to relief that is plausible on its

face.” Twombly, 550 U.S. at 570. Although the Court liberally construes a pro

se litigant’s pleadings, the Court may not serve as Plaintiff’s advocate or

supply factual allegations to support his claims. Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991).

In deciding whether to dismiss the complaint, in whole or in part, the

Court considers whether the plaintiff should be given an opportunity to

amend the complaint. See Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th

Cir. 1990). A reasonable opportunity should be given to pro se plaintiffs to

remedy defects in their pleadings. Id. And the Court should grant an

opportunity to amend unless amendment would be futile. Bradley v. Val-

Mejias, 379 F.3d 892, 901 (10th Cir. 2004).

1. The Court has subject matter jurisdiction over Flower’s claims.

The Court has subject-matter jurisdiction over Flower’s claims, under 28

U.S.C. § 1331. Nevertheless, the Court finds that Flower must amend his

complaint to avoid dismissal for failing to state a claim upon which relief may

be granted.

2. The Court will not extend Bivens to the context of Flower’s claims.

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

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

citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66

(2001). However, “[b]ecause implied causes of action are disfavored, the Court

has been reluctant to extend Bivens liability ‘to any new context or new

category of defendants.’” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (quoting

Malesko, 534 U.S. at 68). The Supreme Court has recognized only three

contexts for Bivens claims:

•Fourth Amendment violations where police enter a private citizen’s home

without a warrant or probable cause, arrest the citizen, search the home,

and “manacle[] [the citizen] in front of his wife and children and threaten[]

to arrest the entire family,” constituting unreasonable force, Bivens, 403

U.S. at 397;

•Fifth Amendment equal protection violations where a deputy

administrative assistant for a member of congress is discriminated against

by a congressman based on gender, Davis v. Passman, 442 U.S. 228

(1979); and

•Eighth Amendment violations of the Cruel and Unusual Punishment

Clause where a federal prisoner dies from incompetent and inadequate

medical care and a deliberate indifference to the prisoner’s serious medical

needs, Carlson v. Green, 446 U.S. 14 (1980).

“When asked to extend Bivens, [courts] engage in a two-step inquiry.”

Hernandez v. Mesa, 589 U.S. 93, 102 (2020). First, a court must determine if

the claim “arises in a ‘new context.’” Id. (quoting Malesko, 534 U.S. at 68). “A

claim may arise in a new [Bivens] context even if it is based on the same

constitutional provision as a claim in a case in which a damages remedy was

previously recognized.” Id. at 103. When determining whether “a case

presents a new Bivens context,” courts consider whether it

might differ in a meaningful [enough] way [to make a given

context a new one] because of 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 v. Abbasi, 582 U.S. 120, 139–40 (2017). Second, if a claim arises in a

new context, a court must consider “if there are ‘special factors counselling

hesitation in the absence of affirmative action by Congress.’” Id. at 121

(quoting Carlson, 446 U.S. at 18). With any special-factors analysis, a court

considers “who should decide whether to provide for a damages remedy,

Congress or the courts?” Id. at 135 (internal quotation marks omitted).

Recently, in Egbert v. Boule, the Supreme Court calibrated the two-step

Bivens inquiry by stating “those 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., 596 U.S. 482, 492 (2022). “And the

circumstances in which the answer to the question is ‘no’ appears to comprise

a null set.” Logsdon v. U.S. Marshal Serv., 91 F.4th 1352 (10th Cir. 2024)

(citing Egbert, 596 U.S. at 503 (Gorsuch, J., concurring)). Further, under the

Court’s precedents, “a court may not fashion a Bivens remedy if Congress

already has provided, or has authorized the Executive to provide, an

alternative remedial structure.” Egbert, 596 U.S. at 493 (internal quotation

marks and citations omitted). After Egbert, there is “no doubt that expanding

Bivens is not just a disfavored judicial activity, it is an action that is

impermissible in virtually all circumstances.” Silva v. United States, 45 F.4th

1134, 1140 (10th Cir. 2022) (internal quotation marks and citation omitted).

Flower’s case presents a new Biven’s context because there are meaningful

differences between the facts in Bivens and the facts Flower alleges. Flower

states that the nature of his case is an “illegal phone seizure,” [ECF No. 1 at

10]; thus, the only possible comparison is to Bivens itself. The plaintiff in

Bivens claimed that he was arrested in his home without a warrant and with

excessive force. Bivens, 403 U.S. at 389. Unlike the allegations in Bivens,

Flower’s claims do not involve a warrantless arrest or the use of excessive

force. Rather, Flower alleges that a “DHS” agent informed him that she was

seizing his phone after he had been arrested on a charge of embezzlement.

[ECF No. 1 at 5]. He claims that the agent seized his phone without a

warrant or probable cause, and the “unlawful seizure directly caused loss of

[his] BTC job wages.” [Id. at 11]. However, he does not challenge the validity

of his arrest, state whether his phone was seized incident to his arrest or

explain whether it was subject to search and seizure under any warrant. Nor

does he state whether the agent searched any data on his phone. Although

Bivens involved the Fourth Amendment, this does not mean Flower’s claims

arise in the same context such that his case can move forward. Rowland v.

Matevousian, 121 F.4th 1237, 1243 (10th Cir. 2024) (citing Hernandez, 589

U.S. at 102). “[S]ignificant parallels to one of the [Supreme] Court’s previous

Bivens cases may not be enough to show that a case arises in the same

context,” and “[s]mall differences can easily satisfy the new-context inquiry.”

Id. (internal quotation marks, brackets, and citation omitted). Thus, the

allegations in Flower’s complaint are meaningfully different than the facts in

Bivens and therefore present “a new Bivens context.”

The second step of the Bivens inquiry dooms Flower’s case. The Court

must ask “whether there is any rational reason (even one) to think that

Congress is better suited to weigh the costs and benefits of allowing a

damages action to proceed.” Egbert, 596 U.S. at 496 (citation and internal

quotation marks omitted) (emphasis in original). Here, Congress is better

suited than the Court to do this in the context of Flower’s claims because

investigations by the United States Department of Homeland Security and

its agents impact national security. And the Constitution’s “separation of

legislative and judicial power” makes the Judiciary’s authority to “evaluate a

range of policy considerations … at least as broad as the range … a

legislature would consider … at best, uncertain.” Id. at 491 (internal

quotation marks and citations omitted). Courts are not well suited to “predict

the systemwide consequences of recognizing a cause of action under Bivens.”

Id. at 493 (citation and internal quotation marks omitted). “That uncertainty

alone is a special factor that forecloses relief.” Id. So, if “the only question is

whether a court is ‘better equipped’ than Congress to weigh the value of a

new cause of action, surely the right answer will always be no.” Id. at 504

(Gorsuch, J., concurring). “At bottom, creating a cause of action is a

legislative endeavor.” Id. at 491. Flower’s case is no exception, and his Bivens

claims fail on that independent basis.

3. Sovereign Immunity bars Flower’s claims against a federal agency and

an individual federal defendant in her official capacity.

Flower’s claims for damages against the United States Department of

Homeland Security should be summarily dismissed. See Federal Deposit Ins.

Corp. v. Meyer, 510 U.S. 471, 483–86 (1994) (Bivens action may not be

brought against federal agencies because such actions are barred by

sovereign immunity). Likewise, Flower’s claims for damages against the

individual federal defendant sued in her official capacity should be

summarily dismissed from the complaint.3 See Farmer v. Perrill, 275 F.3d

3 Flower’s complaint fails to indicate whether he is suing the agent in her official or

individual capacity. Because he seeks damages and not injunctive relief, it is

reasonable to assume Flower brings a claim against the federal agent only

individually. Kabutu v. Short, Nos. 21-3229, 21-3230, 2022 WL 3010620, at *4 (July

29, 2022) (“plaintiffs may sue individual-capacity defendants only for money

958, 963 (10th Cir. 2001) (“There is no such animal as a Bivens suit against a

public official tortfeasor in his or her official capacity.”). A suit against a

federal official in their official capacity is construed as an action against the

United States. Id. However, a claim for damages against the United States is

barred by sovereign immunity unless such immunity has been waived.

Atkinson v. O’Neill, 867 F.2d 589, 590 (10th Cir. 1989). Therefore, Bivens

claims may be “brought only against federal officials in their individual

capacities.” Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009).

They “cannot be asserted directly against the United States, federal officials

in their official capacities, or federal agencies.” Id. (internal citations

omitted). Flower has not identified any waiver of sovereign immunity, and

the Court is aware of none. Therefore, his claims against the United States

Department of Homeland Security and the individual federal defendant sued

in her official capacity are barred by sovereign immunity and should be

dismissed.

4. Flower is given an opportunity to submit an amended complaint to add

factual allegations in support of his claim against Jane Doe #1 (Blonde

DHS Agent) in her individual capacity.

As pleaded, Flower’s claims fail to satisfy the plausibility standard. To

state a plausible claim under Bivens, “a plaintiff must plead that each

damages and official-capacity defendants only for injunctive relief.”). Regardless,

the Court will construe Flower’s claims against the agent in both capacities.

Government-official defendant, through the official’s own individual actions,

has violated the Constitution” or has violated the plaintiff’s rights as

protected under federal law. Iqbal, 556 U.S. at 676; Smith, 561 F.3d at 1103–

05.

Here, accepting Flower’s allegations against the individual federal

defendant as true, he alleges only that she informed him that she was seizing

his phone and that her seizure was without probable cause or a warrant.

Upon invocation of his right to counsel, Flower was escorted away from the

agent. These facts fail to describe any acts or omissions of the federal

defendant that violated Flower’s constitutional rights or any other federal

law. Thus, the complaint fails to allege any plausible Bivens claims against

the individual federal defendant.

Flower does not assert that he had a right to possess his cell phone while

he was in custody. See Osaki v. San Bernardino Cty. Sheriff Dep’t, No. 5:21-

cv-00567-FMO-SHK2023, WL 4291851, at *8 (C.D. Cal. May 26, 2023)

(“Plaintiff, an inmate housed at WVDC, has failed to plead facts suggesting

that he has the right to possess the items he alleges Defendants improperly

seized—namely, phones, tablets, and keys—while he is incarcerated.”);

Williams v. Price, No. 1:18–cv–00102–LJO–MJS (PC), 2018 WL 1184919, at

*9 (E.D. Cal. Mar. 7, 2018) (“To have a property interest, Plaintiff must

demonstrate more than an abstract need or desire for it. ... He must, instead,

have a legitimate claim of entitlement to it under state or federal law.”). And

it is consistent with the Fourth Amendment and entirely proper for “police, at

the station house, to remove and inventory property found on or in the

possession of an arrested person who is to be jailed.” Illinois v. Lafayette, 462

U.S. 640, 646–47 (1983); see also United States v. Parada, 289 F. Supp. 2d

1291, 1303 (D. Kan. Nov. 4, 2003) (“Because the cell phone was seized

incident to the arrest of the defendants, it is properly within the scope of an

inventory search. The separate question is whether it was permissible for

officers to note the numbers of incoming phone calls stored in the cell phone

memory.”).

In United States v. Bradley, a district court addressed the reasonableness

of a 12-day delay in seeking a warrant for cell phones seized incident to a

defendant’s arrest. No. 18-03073-03-CR-S-BP, 2021 WL 2912099, at *1 (W.D.

Mo. July 12, 2021). The defendant did not contest “the legality of the arrest,

the search, or the initial seizure of the phones.” Id. The phones were logged

as evidence and not returned to the defendant upon his release from custody.

Id. Twelve days later, the arresting officer applied for and obtained a warrant

to search the cell phones. Id. The validity of the warrant was not at issue;

rather, the defendant challenged the continued retention of his cell phones

following his release. Id. The court found that the defendant did not ask for

the phones to be returned, which undermined his interest in possessing them

after he was released from custody. Id. at *2–3. The court further found “the

legitimate investigative needs justified the delay between the cellphones’

(lawful) seizure and the request for a warrant.” Id. at *3.

Here, Flower has failed to provide any factual support as to whether his

phone was seized incident to his arrest, when it was actually seized and by

whom, whether a search warrant was ultimately obtained, or whether his

phone was returned to him when he was released from custody. It is also

unclear from Flower’s complaint whether the federal agent obtained

possession of his phone before or after she told him she was seizing it, or

whether his phone was placed with his other possessions upon booking and

held with his property.

III. Conclusion

The Court will provide Flower an opportunity to submit an amended

complaint.

If Flower does not file an amended complaint within the prescribed time

that cures all the deficiencies discussed above, this action will be dismissed in

its entirety without further notice.

IT IS THEREFORE ORDERED that Plaintiff’s motion for leave to proceed

in forma pauperis [ECF No. 2] is GRANTED.

IT IS FURTHER ORDERED that Plaintiffs Complaint [ECF No. 1] is

DISMISSED WITHOUT PREJUDICE, but Plaintiff granted until

September 30, 2025 to file an amended complaint.

DATED this 9th day of September, 2025.

Sara E. Hill

UNITED STATES DISTRICT JUDGE

15