Temkin v. Shoemaker

Southern District of Texas

ENTERED

August 14, 2025

UNITED STATES DISTRICT COURT

athan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

MCALLEN DIVISION

RUBEN TEMKIN, ET. AL., §

Plaintiffs, §

§

VS. § Civ. No. 7:24-cv-00430

§

MATTHEW SHOEMAKER, ET. AL., §

Defendants. §

REPORT & RECOMMENDATION

Pending before the Court is Defendant’s Motion to Dismiss Plaintiffs’ First Amended

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 16). Plaintiffs timely

submitted a response opposing said motion to dismiss. (Dkt. No. 19). Defendants timely filed a

Reply in Support of Defendants’ Motion to Dismiss. (Dkt. No. 20).

This matter has been referred to the undersigned for disposition under 28 U.S.C.§ 636.

After careful review of the pleadings and applicable law, the undersigned recommends

Defendants’ Motion to Dismiss (Dkt. No. 16) be GRANTED. Therefore, it is recommended that

this case should be DISMISSED with prejudice.

I. BACKGROUND

Plaintiffs, Ruben Temkin, Valley Bonded Warehouse LLC., D/B/A Rio Duty Free, Rocio

Salcido, and Adriana Quintero Saavedra initiated this suit by filing a Complaint against U.S.

Department of Homeland Security Investigations (“HSI”) Special Agent Matthew Shoemaker and

John Does (unidentified HSI Special Agents) alleging violations of Plaintiffs constitutional rights

under Bivens. (Dkt. No. 1). On February 24, 2025, Plaintiffs filed their First Amended Complaint.

(Dkt. No. 13). Plaintiffs allege they suffered constitutional harms at the hands of HSI Special

Agents through a series of searches and related events. (Dkt. No. 13). Plaintiffs allege Defendants

engaged in: (1) malicious prosecution under the Fourth Amendment, (2) racial animus in violation

of Equal Protection under the Fifth Amendment, (3) unlawful search and seizure under the Fourth

Amendment, and (4) Sixth Amendment right to counsel violations. (Dkt. No. 13 at 29-33).

Plaintiff Temkin owns and operates a bonded warehouse and various Duty-Free stores in

the Rio Grande Valley area. (Dkt. No. 13 at 1). On March 6 and June 6, 2024, Plaintiff's stores

and warehouse were searched by HSI agents and various merchandise (cigarettes) was seized

pursuant to relevant warrants. /d. at 3. Plaintiffs allege that during these searches, S/A Shoemaker

and others violated Plaintiffs’ constitutional rights by searching the premises and unlawfully

seizing items. /d. at 2-3. Plaintiffs allege that during the March 6, 2024, search of the warehouse

and two duty free stores, Defendants illegally seized and copied all computers and documents by

forcing an employee to provide the passwords to the computers. /d. at 7. Further, Defendants

detained all employees for hours and coerced them into providing statements and turning over their

phones to the agents. /d. at 12-13. At this time Plaintiff Quintero was about six months pregnant

and alleges the agent’s actions scared her. /d. at 22. During the June 6, 2024, raid, Plaintiffs allege

Defendants once more illegally seized computers, hard drives, and documents. /d. at 9. Employees

were once more held in a conference room for hours and not allowed to leave. Jd. at 16. Now,

Plaintiff Quintero was about eight months pregnant, and she alleges the raid frightened her and

caused her to have “a seizure from hyperventilating”, which eventually led to a premature birth of

her child. /d. at 22. As a result of these raids, Plaintiffs had to suspend business. /d. at 16.

Plaintiffs further allege that Defendants illegally seized cigarettes held within Plaintiff's

bonded warehouse between the two raids on April 16-18 and May 8, 2024, causing monetary loss.

Id. at 8.

Thus, Plaintiffs argue they have been subjected to malicious prosecution, false arrest, and

unlawful search and seizure in violation of the Fourth Amendment, racial and ethnic discrimination

in violation of the Fifth Amendment due to Plaintiff Temkin’s “Mexican-Jewish origin’, violation

of Plaintiff's Sixth Amendment right to counsel, and a “catch-all” claim, all being brought under

Bivens, Id. at 29-33.

Defendants filed a motion to dismiss the complaint arguing Plaintiffs claims present new

contexts under Bivens and therefore are not permitted to proceed. (Dkt. No. 16 at 2). Further, if

any claims were allowed under Bivens, qualified immunity would shield the federal agents from

suit because Defendants did not violate any clearly established right. /d at 9. In response,

Plaintiffs argue their claims fall squarely within the Fourth Amendment gambit protected by

Bivens and does not present a new context. (Dkt. No. 19 at 4-6). Further, Plaintiffs argue the

agents are not entitled to qualified immunity. /d. at 11. Defendant filed a reply arguing Plaintiff

only addressed the unreasonable search and seizure Fourth Amendment argument and thus waived

the remaining claims. (Dkt. No. 20 at 1-2). Further, Defendant notes Plaintiff solely relies on out

of circuit case law and that the Fifth Circuit approaches differently the “new context” analysis. /d.

at 3.

II. LEGAL STANDARD

Courts should dismiss a complaint as a matter of law when the plaintiff fails “to state a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6)

motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Aschroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint fails to state a claim upon which relief

may be granted when the plaintiff fails to allege enough facts that make the claim plausible on its

face and fails to raise the right to relief beyond a speculative level. Montoya v. FedEx Ground

Packaging Sys. Inc., 614 F.3d 145, 149 (5th Cir. 2010) (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007)). The Court “accept[s] well-pleaded facts as true” and “views them in the

light most favorable to the plaintiff.” Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735

(5th Cir. 2013) (quotation and citation omitted). To suffice, the facts pled must state a facially

plausible claim for relief. Leal v. McHugh, 731 F.3d 405, 410 (Sth Cir. 2013). Plausibility “asks

for more than a sheer possibility that a defendant has acted unlawfully.” Walker, 938 F.3d at 735

(quoting Iqbal, 566 U.S. at 678). Although well-pleaded facts are accepted as true, the Court does

not need to accept as true any conclusory allegations, unwarranted factual inferences, or legal

conclusions. Whatley v. Coffin, 496 F. App’x 414, 415 (5th Cir. 2012) (citations omitted). Naked

assertions alone are not enough. Jgbal, 556 U.S. at 679.

Il. ANALYSIS

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

(1971), [the Supreme] Court recognized an implied cause of action for damages against federal

officers for certain alleged violations of the Fourth Amendment. The Court subsequently

recognized two additional contexts where implied Bivens actions were permitted[.]” Goldey v.

Fields, 606 U.S. 942 (2025). Now, Bivens claims are generally limited to three specific

circumstances: (1) a plaintiff who is “manacled” in front of his family and then strip searched in

violation of the Fourth Amendment; (2)a staff person suffering sex discrimination by a

congressman in violation of the Fifth Amendment; and (3) an asthmatic prisoner in federal custody

not receiving medical attention in violation of the Eighth Amendment. See Bivens, 402 U.S. 389-

90; Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980). Since then,

the Supreme Court has emphasized that ‘recognizing a cause of action under Bivens is ‘a

disfavored judicial activity.”” Egbert v. Boule, 596 U.S. 482, 491 (2022). Thus, courts must follow

a two-step framework to determine whether a Bivens claim may proceed. Goldey, 606 U.S. at 944.

First, the Court must ask whether the case presents “a new Bivens context” outside the three

recognized Bivens causes of actions. Ziglar v. Abbasi, 582 U.S. 120, 139 (2017). At this step,

courts must ask whether there is a meaningful difference between the current case and previous

Bivens cases. Id. at 139-40. Some factors to consider include: the rank of the officers involved,

the constitutional issue in question, the scope of the official action, the availability of judicial

guidance on the issue, the statutory or legal authority under the official action was conducted,

separation of powers concerns, and any other factors not previously considered. /d. at 139-40.

Usually, any case that does not fall within the three recognized Bivens actions presents a new

Bivens context. Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020) (‘‘[v]irtually everything else is

a ‘new context.’”).

Second, the Court must ask whether there are any “special factors” that counsel against

recognizing a new Bivens cause of action and courts should “weigh the costs and benefits of

allowing a damages action to proceed.” Egbert, 596 U.S. at 492. “[I]n all but the most unusual

circumstances, prescribing a cause of action is a job for Congress, not the courts.” Jd. at 486.

Although the Bivens analysis proceeds through a two-step framework, “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.” Jd. at 492. Notably, the Supreme Court has consistently declined

to extend Bivens for the past 45 years. Goldey, 606 U.S. at 945.

Generally, Plaintiffs allege Defendants engaged in: (1) malicious prosecution under the

Fourth Amendment, (2) racial animus in violation of Equal Protection under the Fifth Amendment

against Plaintiff Temkin due to his “Mexican-Jewish origin”, (3) unlawful search and seizure under

the Fourth Amendment, and (4) Sixth Amendment right to counsel violations. (Dkt. No. 13 at 29-

33).

A. Fourth Amendment Malicious Prosecution Claim

Plaintiffs allege Defendants violated their “right to be free from malicious prosecution

under the Fourth Amendment” because Defendant Shoemaker acted without probable cause and

“with improper motives and purposes.” (Dkt. No. 13 at 29). Defendants argue this claim should

be dismissed because the Fifth Circuit has already ruled Bivens does not provide a vehicle for

malicious prosecution claims. (Dkt. No. 16 at 4). The Court agrees. In Cantu v. Moody, the Fifth

Circuit held that a claim of malicious prosecution presented a “new context” and various special

factors counseled against recognizing a new Bivens action. 933 F.3d 414, 423 (Sth Cir. 2019).

The same is true here. Namely, there is already “a statutory scheme for torts committed by federal

officers.” Jd. at 423 (citing 28 U.S.C. § 2680(h); Abbasi, 582 U.S. at 137). The existence of a

remedial structure “alone may limit the power of the Judiciary to infer a new Bivens cause of

action.” Abbasi, 582 U.S. at 137. This case does not present the unusual circumstances required

for the Court to step in and do Congress’ job. Egbert, 596 US. at 486.

B. Racial Animus Fifth Amendment Equal Protection Claim

Plaintiff Temkin argues Defendant Shoemaker initiated the investigation against him and

his businesses based on racial and ethnic considerations due to Temkin’s “Mexican-Jewish origin.”

(Dkt. No. 13 at 30). In support, Plaintiff points to Defendants comments during the raid such as

“Do not tell me you do not know Mexico!” /d. Defendant argues this claim should be dismissed

because it presents a new context under Bivens. (Dkt. No. 16 at 5).

Plaintiffs racial animus claim as alleged does not fall within any of the three recognized

Bivens contexts. Although this claim is brought under the Fifth Amendment, such as in Davis, the

claims are materially different. Davis focused on sex-based discrimination, while Plaintiff alleges

racial animus. See Davis, 442 U.S. at 230. Next, special factors counsel hesitation in extending

Bivens to this new context. “[T]he only relevant threshold—that a factor ‘counsels hesitation’—

is remarkably low.” Hernandez v. Meza. 885 F.3d 811, 822 (Sth Cir. 2018). In Belfrey-Farley v.

Palmer, the District Court determined special factors counseled hesitation in extending Bivens

when a plaintiff argued her home was searched due to racial animus. No. 3:19-cv-1305-S-BT,

2021 WL 2814885, at *7 (N.D. Tex. May 7, 2021), report and recommendation adopted, 2021

WL 2808826 (N.D. Tex. July 6, 2021). The court noted Congress’ failure to create a statutory

cause of action in this context was sufficient to counsel hesitation in extending Bivens because the

legislative branch “is in the best position to ‘consider and weigh the costs and benefits of allowing

a damages action to proceed’ and to determine ‘if the public interest would be served by imposing

a new substantive legal liability.” Jd (cleaned up) (citations omitted). The same is true here,

especially considering the racial animus allegation is speculative at best.

C. Fourth Amendment Unlawful Search and Seizure Claims

Plaintiff argues Defendants violated the Fourth Amendment by unlawfully searching and

seizing Plaintiffs businesses, certain merchandise, and belongings. (Dkt. No. 13 at 30-32).

Although Defendants had search warrants, Plaintiff Temkin argues the warrants were based on

misinformation to the magistrate judges or contained stale information, turning Defendants actions

into a warrantless search. Jd. Defendant argues all Fourth Amendment claims should be dismissed

because they present new contexts and Bivens should not be extended. (Dkt. No. 16 at 5-7).

Plaintiffs claim present a new context under Bivens. Although Plaintiffs claim arises out

of the Fourth Amendment, “Courts do not define a Bivens cause of action at the level of ‘the Fourth

Amendment’ or even at the level of ‘the unreasonable-searches-and-seizures clause.’” Cantu, 933

F.3d at 422. Here, the conduct in question involves different agents, and different conduct than in

Bivens. In Bivens, the agents had no warrant. Here, Defendants secured a warrant for the premises,

and a neutral and detached magistrate judge determined probable cause was established. Thus,

this claim necessarily presents a new context.

Plaintiff argues Fourth and Seventh Circuit cases provide support to the argument that this

case does not present a new context and falls squarely within Bivens because the agents involved

are line level federal officers violating the Fourth Amendment. (Dkt. No. 19 at 4) (citing Snowden

v. Henning, 72 F.4th 237 (7th Cir. 2023); Hicks v. Ferreyra, 64 F 4th 156 (4th Cir. 2023)). These

cares are unpersuasive because the factual circumstances differ from the present case and because

the Fifth Circuit has made clear its “understanding of a ‘new context’ is broad.” Hernandez v.

Causey, 124 F.4th 325, 332 (Sth Cir. 2024) (citing Hernandez v. Meza, 589 U.S. 93, 102 (2020)).

Bivens actions have been narrowly defined, and outside those narrow definitions, anything else

will present a new context. /d. at 333. In Hernandez v. Causey, the Fifth Circuit found a new

context when a plaintiff was alleging Fourth Amendment violations. Jd. In doing so, the court

noted Bivens involved Federal Bureau of Narcotics agents, which fell under the Department of

Treasury, and Hernandez dealt with ICE agents, which fall under the Department of Homeland

Security; thus, presenting a “new category of defendants.” Jd The same is true here, Plaintiff

Temkin and his businesses were searched by HSI agents, a new category of defendants, which the

Fifth Circuit finds sufficient to establish a new context. Further, Bivens was searched without a

warrant, and Plaintiffs were searched pursuant to warrants. In the Fifth Circuit, these distinctions

are meaningful. As the Fifth Circuit noted,

We explained in Cantu that just as “[n]o one thinks Davis...means the entirety of

the Fifth Amendment’s Due Process Clause is fair game in a Bivens action,” even

a violation of the same clause of the same amendment does not authorize a Bivens

action if the factual circumstances are different. [Cantu, 933 F.3d at 422]. We have

held that a claim where a Department of Homeland Security Officer drew a gun

and threatened the plaintiff, Byrd v. Lamb, 990 F.3d 879, 880 (Sth Cir. 2021), and

a claim where Veterans Affairs police put the plaintiff in a chokehold, Oliva, 973

F.3d at 440, presented new contexts under Bivens. In both cases, we declined to

extend Bivens to encompass these Fourth Amendment excessive force claims.

Hernandez, 124 F.4th at 334 (emphasis added). Thus, the factual circumstances of the search of

Plaintiff's businesses differ from Bivens and present a new context.

Special factors warrant counseling hesitation in expanding Bivens. As mentioned,

expanding Bivens is a disfavored judicial activity because Congress will almost always be better

situated than the courts to legislate new causes of action. Egbert, 596 U.S. at 491. Further, the

underlying federal law enforcement activity was an investigation into international trade and

regulatory requirements focusing on trade of prohibited cigarettes. This necessarily involves

different considerations than the Bivens case did. In Egbert, the Court noted “[m]atters intimately

related to foreign policy and national security are rarely subjects for judicial intervention.” 597

U.S. at 494. Although Egbert dealt with border patrol agents following their enforcement

directive, this case similarly raises those foreign policy concerns as the HSI agents in question

were investigating international trade infractions. The Fifth Circuit has also noticed the existence

of internal grievance procedures against federal agents can show an alternative remedy exists.

Hernandez, 124 F.4th at 334. The Department of Homeland Security is required to investigate

violations of the standards of enforcement activity, and Plaintiff can pursue this course to redress

his grievances. Jd. “So long as Congress or the Executive has created a remedial process that it

finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that

calibration by superimposing a Bivens remedy.” Egbert, 596 U.S. at 498. Thus, special factors

exist that cause the Court to hesitate in expanding Bivens.

D. Sixth Amendment Right to Counsel Claim

Plaintiff alleges that the “seizure of the computers and hard disks on June 6, 2024,

constituted a violation of Plaintiffs’ Sixth Amendment right to counsel” because said seizure gave

Defendants “access to all communications between Plaintiffs and their various counsel.” (Dkt.

No. 13 at 33). Defendant argues this claim presents a new context under Bivens and notes neither

the Supreme Court nor the Fifth Circuit have recognized a Sixth Amendment right to counsel under

Bivens. (Dkt. No. 16 at 8). Plaintiff does not respond in defense of this claim. See (Dkt. No. 19).

Defendant is correct. See Joyner y. Del Rio Border Control Station, No. DR-22-CV-0013-AM,

2023 WL 6393891, at *6 (W.D. Tex. Oct. 2, 2023).

This claim presents a new context under Bivens, since a different constitutional right is

involved, it does not fall within any of the three existing Bivens contexts. Further special factors

warrant not expanding Bivens in this case: there is an alternative remedial structure for Sixth

Amendment violations. The Sixth Amendment right to counsel is guaranteed in the criminal

context only, and when such violations occur, the criminal judicial process is meant to address said

issues. Joyner, 2023 WL 6393891 at *6. It is also evident this would not be a proper Sixth

Amendment challenge anyway as there are no facts that plausibly allege a denial of counsel.

Plaintiff may be alleging a violation of attorney-client privilege, but not a denial of access to

counsel. Under such circumstances, engaging in the disfavored judicial activity of finding implied

causes of action through Bivens is not warranted and would be unnecessary.

E. Qualified Immunity

Because none of Plaintiffs claims are cognizable under Bivens, there is no need to engage

in the qualified immunity analysis or the waiver issue raised by Defendants. See (Dkt. Nos. 16,

20). See Byrd v. Lamb, 990 F.3d 879, 882 (Sth Cir. 2021) (holding that since Bivens claim was

10

not extended there was no need to review issue of qualified immunity).

IV. CONCLUSION

Recommended Disposition

After careful review of the record and relevant law, the undersigned concludes that

Plaintiffs’ claims are not cognizable under Bivens. Therefore, the undersigned recommends that

Defendants’ Motion to Dismiss (Dkt. No. 16) be GRANTED. It is further recommended that this

matter be DISMISSED with prejudice, and said case be CLOSED.

Notice to the Parties

The Clerk shall send copies of this Report and Recommendation to Petitioner, who has

fourteen (14) days after receipt thereof to file written objections pursuant to 28 U.S.C.

§ 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure. Failure to file written

objections to the proposed findings and recommendations contained in this report within 14 days

after service shall bar an aggrieved party from de novo review by the District Court of the proposed

findings and recommendations and from appellate review of factual findings or legal conclusions

accepted or adopted by the District Court, except on grounds of plain error. See Douglas v. United

Serv. Auto Ass'n, 79 F.3d 1415, 1428-29 (Sth Cir. 1996) (en banc), superseded by statute on other

grounds, 28 U.S.C. § 636(b)(1).

The Clerk shall provide copies of this order to counsel for each party.

DONE at McAllen, Texas, on 14th day of August 202 —

_-

; Juan F. Alanis

United States Magistrate Judge

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