Daniel Cantu v. James Moody

Case: 18-40434 Document: 00515064162 Page: 1 Date Filed: 08/05/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 18-40434 August 5, 2019

Lyle W. Cayce

Clerk

DANIEL ENRIQUE CANTÚ,

Plaintiff-Appellant,

v.

JAMES M. MOODY; ERIN S. LABUZ, also known as Erin S. Hayne; NATHAN

HUSAK; DAVID DE LOS SANTOS; RYAN PORTER; ROSA LEE GARZA;

ALFREDO BARRERA; UNITED STATES OF AMERICA; CHRISTOPHER

LEE,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge:

Daniel Enrique Cantú is a member of the Texas Mexican Mafia. He says

the U.S. Constitution and federal civil rights laws afford him money damages

against state and federal law enforcement officers for claims arising from a

drug bust. We disagree.

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I.

A.

This case arises from a transnational drug-trafficking investigation. In

2010, the federal government began investigating the Texas Mexican Mafia.

As part of its investigation, the government identified Jesus Rodriguez

Barrientes as the gang’s leader in the Rio Grande Valley. Working with state

and local law enforcement, the FBI planned a sting operation as part of

Barrientes’s regular heroin purchases from Mexican drug smugglers.

FBI agents convinced Juan Pablo Rodriguez, a member of the Texas

Mexican Mafia, to work as an informant. When Barrientes’s heroin shipment

arrived, Rodriguez would meet the drug smugglers at the border and then drive

everyone to a drop-off location. There Rodriguez would deliver the heroin to

whomever Barrientes designated as his authorized recipient.

On the morning of August 10, 2011, things went mostly according to

plan. Rodriguez, accompanied by an undercover police officer, drove to the Rio

Grande where he met the drug smugglers. Then, at 7:30 a.m., Rodriguez called

Cantú and asked him to come to an H-E-B parking lot so they could talk in

person. According to Cantú, Rodriguez did not say what he wanted to talk

about.

When Cantú arrived, he parked to the left of Rodriguez’s car and rolled

down his passenger-side window. Rodriguez then got out of his car, went to

the trunk, took out a cooler, and placed it through Cantú’s open window and

onto the passenger seat. “I need you to do me a favor,” Rodriguez allegedly

said. Cantú says he had time to ask only one question—“What are you

doing?”—before forty-five law enforcement officers descended on his vehicle.

One of the officers, FBI Agent David de los Santos, pulled Cantú from his car,

searched him, and placed him under arrest. The cooler contained nearly two

kilograms of heroin.

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Although Cantú says he remained in his car the whole time and never

touched the cooler, two federal agents swore otherwise in affidavits. FBI Agent

James Moody said Cantú exited his vehicle and personally took the cooler from

Rodriguez’s trunk. FBI Agent Erin LaBuz said Rodriguez handed the cooler to

Cantú, who personally placed it in his passenger seat.

A federal grand jury indicted Cantú, Barrientes, his wife, and two

smugglers for possession of heroin with intent to distribute and conspiracy.

Barrientes, his wife, and one of the smugglers pleaded guilty and were sent to

federal prison. Cantú elected to stand trial. On October 31, 2013, a federal

jury acquitted him. By that time, he had spent more than two years in jail.

B.

Cantú then sued a slew of defendants under Bivens, the Federal Tort

Claims Act, § 1983, § 1985, and state law. In the complaint, he alleged twenty-

one claims under the Fourth Amendment, Fifth Amendment, Fourteenth

Amendment, and various tort theories—like malicious prosecution, false

arrest, false imprisonment, assault, civil conspiracy, conversion, and

negligence. And he offered his theory of how he went from his bed to a grocery

store to a jail cell: Forty-five officers jeopardized a sophisticated, multi-year,

multi-jurisdictional sting operation aimed at a transnational gang to frame an

otherwise-innocent member of the Texas Mexican Mafia in an effort “to

improve each of their professional arrest and conviction rate records against

drug traffickers.” However far-fetched that might seem, we take Cantú’s well-

pleaded allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662, 680–81 (2009).

Cantú alleges he was never the intended recipient of the heroin. He says

Rodriguez, while driving to the H-E-B, tried and failed to get in touch with the

actual recipient. So he called Cantú instead. The gravamen of Cantú’s

complaint is that officers who were privy to Rodriguez’s audible—and Cantú’s

professed ignorance about why he was being called to the grocery store—knew

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Cantú was not the guy who was supposed to show up that morning. Yet they

permitted him to be arrested and then doubled down, fabricating facts about

Cantú’s behavior to create the impression he was the guy.

After several hearings, the district court dismissed all of Cantú’s claims

against all fifteen federal, state, and county defendants. It also granted

Cantú’s motion to voluntarily dismiss (with prejudice) his claims against the

only remaining defendant—the private company that operated the prison

where he was housed before trial. The court further denied Cantú’s request to

file a Fourth Amended Complaint. It later filed four separate dismissal orders.

Cantú appealed the orders dismissing the federal, state, and county

defendants. 1

II.

In his briefs before our Court, Cantú pursues only a subset of his claims

against only a subset of the defendants—FBI Agent James Moody, FBI Agent

Erin LaBuz, FBI Agent David de los Santos, and Texas DPS Officer Alfredo

Barrera. He has forfeited everything else. See United States v. Vazquez, 899

F.3d 363, 380 n.11 (5th Cir. 2018) (holding appellant’s “failure to clearly

1 In his notice of appeal, Cantú says “FINAL JUDGMENT has not been entered.” But

in his opening brief he argues we have jurisdiction pursuant to a final judgment. Cantú does

not explain the discrepancy, nor do the defendants. It’s possible Cantú thought the four

dismissal orders did not satisfy the separate-judgment requirement of Federal Rule of Civil

Procedure 58(a). But it doesn’t matter that each “order [was] denominat[ed] as an ‘order,’

rather than a ‘judgment.’ ” Local Union No. 1992 of Int’l Bhd. of Elec. Workers v. Okonite Co.,

358 F.3d 278, 285 (3d Cir. 2004). And in all events, parties are “free to waive” Rule 58, as

they have here. Bankers Tr. Co. v. Mallis, 435 U.S. 381, 384 (1978); see also FED. R. APP. P.

4(a)(7)(B); Orr v. Plumb, 884 F.3d 923, 931 (9th Cir. 2018). The real restriction on our

jurisdiction is § 1291, which is entirely distinct from Rule 58(a). See Firestone Tire & Rubber

Co. v. Risjord, 449 U.S. 368, 379 (1981); 11 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE

& PROCEDURE § 2785 (3d ed. 2019) (“Rule 58 states how a judgment is entered. It does not

speak to whether a judgment entered in this fashion is a ‘final judgment’ for purposes of

appeal.”). Like the parties, we have no doubt the district court’s dismissal orders constitute

its “final decision” under § 1291.

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identify [an issue] as a potential basis for relief forfeits the argument on

appeal”).

We review the dismissal of Cantú’s claims de novo. Causey v. Sewell

Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). We start with his

§ 1985 claim against the federal officers. It fails under Federal Rule of Civil

Procedure 12(b)(6). Second, we address his § 1983 claims against Barrera.

They fail under the same standard. Third, we hold the purported Bivens claim

against Moody and LaBuz is not cognizable.

A.

Cantú alleges the federal defendants—Moody, LaBuz, and de los

Santos—conspired to violate his civil rights under 42 U.S.C. § 1985(3). But he

has two problems. Under our precedent, § 1985(3) does not cover every kind of

defendant. And its plain text doesn’t cover every kind of conspiracy.

Our precedent holds § 1985(3) does not apply to federal officers. In Mack

v. Alexander, 575 F.2d 488 (5th Cir. 1978) (per curiam), we concluded § 1983

and § 1985 “provide a remedy for deprivation of rights under color of state law

and do not apply when the defendants are acting under color of federal law.”

Id. at 489; accord Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir. 1971). Other

circuits have criticized that holding for failing to grapple with Supreme Court

precedent. See, e.g., Iqbal v. Hasty, 490 F.3d 143, 176 n.13 (2d Cir. 2007), rev’d

on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Ogden v.

United States, 758 F.2d 1168, 1175 n.3 (7th Cir. 1985). And the Supreme Court

recently assumed § 1985(3) applies to federal officers. See Ziglar v. Abbasi,

137 S. Ct. 1843, 1865–69 (2017). Mack may not have aged well, but we need

not decide whether it remains binding on us.

Even if we were inclined to ignore Mack, Cantú’s claim would fail for an

independent reason. The relevant text of § 1985(3) criminalizes only

conspiracies that involve depriving someone of “equal protection of the laws”

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or “equal privileges and immunities under the laws.” 42 U.S.C. § 1985(3); see

Griffin v. Breckenridge, 403 U.S. 88, 102–03 (1971). This kind of conspiracy

requires some form of class-based discrimination. United Bhd. of Carpenters

& Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 834–35 (1983).

Cantú says “he belongs to a class of individuals who have felony

convictions and/or were previously incarcerated.” But the Supreme

“Court . . . has never held that nonracial animus is sufficient.” Newberry v. E.

Tex. State Univ., 161 F.3d 276, 281 n.2 (5th Cir. 1998). And we have held racial

animus is required: “[I]n this circuit . . . the only conspiracies actionable under

section 1985(3) are those motivated by racial animus.” Deubert v. Gulf Fed.

Sav. Bank, 820 F.2d 754, 757 (5th Cir. 1987); see also Bray v. Alexandria

Women’s Health Clinic, 506 U.S. 263, 269–74 (1993); Scott, 463 U.S. at 835–

38; Griffin, 403 U.S. at 104–05 (noting that § 1985(3) was passed pursuant to

the Thirteenth Amendment).

Even assuming § 1985(3) covers Cantú’s proffered class—convicted

felons—Cantú’s claims still can’t survive a Rule 12(b)(6) motion. First, Cantú

can’t cross from “the factually neutral [to] the factually suggestive” because he

doesn’t link his conspiracy allegations to his status. Bell Atl. Corp. v. Twombly,

550 U.S. 544, 557 n.5 (2007). At most, he alleges Moody and LaBuz were aware

of his prior felony conviction. But the rest of his allegations suggest officers

fabricated evidence against him to save the sting operation. He does not allege

Moody and LaBuz’s motivations were “directed specifically at [felons] as a

class” or that their actions were motivated “by reason of ” his prior conviction.

Bray, 506 U.S. at 270. Second, Cantú can’t cross from “the conclusory [to] the

factual.” Twombly, 550 U.S. at 557 n.5. His allegation that Moody and LaBuz

“[d]iscussed and willfully and knowingly agreed with other DEFENDANTS to

fabricate evidence . . . in order to have [Cantú] convicted” is conclusory. It

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amounts to “nothing more than a formulaic recitation of the elements” of his

claim. Iqbal, 556 U.S. at 681 (quotation omitted).

There’s an even easier answer for Agent de los Santos. Cantú singles

him out as the officer who removed Cantú from his vehicle, arrested and

searched him, and then drove him to the FBI building. Cantú makes no

allegation—not even a conclusory one—that de los Santos formed any kind of

agreement with Moody, LaBuz, or anyone else. He doesn’t even allege that de

los Santos was privy to Rodriguez’s last-minute change of plans to call Cantú.

By Cantú’s own account, de los Santos was simply the tip of the spear in the

final phase of the sting operation. The district court was correct to dismiss the

§ 1985(3) claims.

B.

Cantú presses several § 1983 claims against Texas DPS Officer Barrera.

First, he argues Barrera conspired to violate Cantú’s civil rights. He alleges

Barrera helped federal officers conduct the larger investigation and identified

someone other than Cantú as “the person to receive the heroin” on the morning

of the sting operation. As with his § 1985(3) claim against de los Santos,

however, Cantú nowhere alleges Barrera formed any kind of agreement with

anyone. Nor does he say Barrera learned about what transpired on the phone

call between Rodriguez and Cantú.

Next, Cantú argues Barrera maliciously prosecuted him in violation of

the Fourth Amendment and fabricated evidence against him in violation of the

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Fourth and Fourteenth Amendments. 2 Both claims against Barrera fail for

the same reason the conspiracy claim does. Cantú claims Barrera

“[m]aliciously initiated a criminal case against [him] . . . without probable

cause.” He also claims Barrera intentionally or recklessly falsified facts “in

order to fabricate evidence and/or establish probable cause.” These are all

conclusions without any factual allegations to support them. See Iqbal, 556

U.S. at 681. Cantú never says how Barrera falsified evidence or participated

in the decision to prosecute him. What’s more, his only concrete allegations

point the other way because Barrera briefed investigators on nabbing someone

else—the unknown intended recipient.

We need not decide whether Cantú can bring a separately cognizable

Fourteenth Amendment claim for fabrication of evidence against Barrera after

Manuel v. City of Joliet, 137 S. Ct. 911 (2017), and Jauch v. Choctaw County,

874 F.3d 425 (5th Cir. 2017). It’s unclear whether he appealed or forfeited that

claim. And his allegations are conclusory and hence insufficient in any event.

2 Litigants (and courts) often write and speak about § 1983 claims as if the plaintiff

asserts a common-law tort action, like malicious prosecution. This habit is not a profile in

precision. In a § 1983 case, the plaintiff must assert someone violated the Constitution or

other federal law. See 42 U.S.C. § 1983. And we have no federal general common law. Erie

R.R. v. Tompkins, 304 U.S. 64, 78 (1938). That’s why “[t]he first step in any [§ 1983] claim is

to identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S.

266, 271 (1994) (plurality opinion); see also Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir.

2003) (en banc) (holding “no such freestanding constitutional right to be free from malicious

prosecution exists”). Courts consider common law tort analogues to constitutional claims

because those analogues may furnish things like the accrual rules for the applicable

limitations period. See Manuel v. City of Joliet, 137 S. Ct. 911, 920 (2017) (“In defining the

contours and prerequisites of a § 1983 claim, including its rule of accrual, courts are to look

first to the common law of torts.”). Although Cantú brings a “fabrication of evidence” claim

and a “malicious prosecution” claim, he is really arguing Barrera violated the Fourth

Amendment in two different ways. See id. at 921–22 (recognizing the claim fell under the

Fourth Amendment regardless of whether it should be likened to malicious prosecution or

false arrest).

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C.

Cantú also brings a would-be cause of action against Moody and LaBuz

under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971). He says they violated the Fourth Amendment by

fabricating evidence against him. 3 From a pleading standpoint, Cantú’s

strongest allegations are that Moody and LaBuz lied to justify seizing him. But

Bivens does not provide a vehicle to bring that claim.

1.

As the Supreme Court recently reminded us, Bivens is the byproduct of

an “ancien regime.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017) (quotation

omitted). In 1971, the Court recognized an implied cause of action to sue

federal officers for violating an arrestee’s “rights of privacy” by “manacl[ing]

petitioner in front of his wife and children,” “threaten[ing] to arrest the entire

family,” and strip searching him. Bivens, 403 U.S. at 389–90. In the next nine

years, the Court recognized two more implied causes of action under Bivens: a

Fifth Amendment equal protection claim for employment discrimination by a

congressman, see Davis v. Passman, 442 U.S. 228 (1979), and an Eighth

Amendment claim for inadequate medical care by federal jailers, see Carlson

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

Since 1980, however, “the Court has refused” every Bivens claim

presented to it. Abbasi, 137 S. Ct. at 1857; see also ibid. (collecting cases). The

Court has emphasized that Bivens, Davis, and Carlson remain good law. See

id. at 1856–57. At the same time, “it is possible that the analysis in the Court’s

three Bivens cases might have been different if they were decided today.” Id.

3 Cantú also sued Moody and LaBuz under the Fifth-Amendment-by-way-of-Bivens.

We reject that claim for the same reason we reject his Fourteenth Amendment claim against

Barrera: It is unclear whether he appealed the Fifth Amendment claim at all; the phrase

“Fifth Amendment” appears nowhere in the argument of his opening brief. And his

allegations to support that claim are conclusory in all events.

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at 1856. And it has admonished us to exercise “caution” in the “disfavored

judicial activity” of extending Bivens to any new set of facts. Id. at 1857

(quotations omitted).

So, before allowing Cantú to sue under Bivens, we must ask two

questions. First, do Cantú’s claims fall into one of the three existing Bivens

actions? Second, if not, should we recognize a new Bivens action here? The

answer to both questions is no.

Cantú purports to address the first question. And he thinks he’s home

free because his malicious-prosecution-type-claim alleges a violation of his

Fourth Amendment right to be free from unlawful seizures—the same right

recognized in Bivens. That’s wrong. 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.” See FDIC v. Meyer, 510 U.S. 471,

484 n.9 (1994).

Here’s an example. 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. The Supreme Court rejected a claim

under the same clause of the same amendment nine years later. See Schweiker

v. Chilicky, 487 U.S. 412, 420 (1988) (denying a Bivens action under the Fifth

Amendment’s Due Process Clause for wrongful denial of Social Security

disability benefits). Not even the Schweiker dissenters suggested Davis settled

the question before the Court. See id. at 431–32 (Brennan, J., dissenting).

What if a plaintiff asserts a violation of the same clause of the same

amendment in the same way? That still doesn’t cut it. In Chappell v. Wallace,

462 U.S. 296 (1983), the Supreme Court rejected a Fifth Amendment Due

Process claim for unlawful termination (the claim at issue in Davis) because

the plaintiff was a military servicemember rather than a congressional

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employee. Id. at 305. The Court has done the same thing in the Eighth

Amendment cruel-and-unusual-punishment context. Compare Carlson, 446

U.S. at 17–18 (recognizing Bivens action—against federal prison officials—for

failure to provide medical treatment), with Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 74 (2001) (rejecting Bivens action—against private prison officials—

for failure to provide medical treatment). Naturally, these principles apply in

the Fourth Amendment context too. See, e.g., Alvarez v. ICE, 818 F.3d 1194,

1199, 1206 (11th Cir. 2016) (treating plaintiff ’s Bivens claim for unreasonable

seizure as a “new” one); id. at 1218 n.12 (Pryor, J., concurring in part and

dissenting in part) (same); De La Paz v. Coy, 786 F.3d 367, 375 (5th Cir. 2015)

(same); cf. Arevalo v. Woods, 811 F.2d 487, 489–90 (9th Cir. 1987) (barring

plaintiff ’s Bivens claim for unreasonable search and seizure).

The Supreme Court recently addressed this threshold question. And it

rejected just this sort of “same right” reasoning. In Abbasi, the Second Circuit

had created a two-part test to determine whether a Bivens claim was novel:

“First, it asked whether the asserted constitutional right was at issue in a

previous Bivens case. Second, it asked whether the mechanism of injury was

the same mechanism of injury in a previous Bivens case.” 137 S. Ct. at 1859

(citation omitted); see Turkmen v. Hasty, 789 F.3d 218, 235 (2d Cir. 2015)

(concluding plaintiffs’ condition-of-confinement claim “stands firmly within a

familiar Bivens context”). The Court rejected that approach, pointing to

Chappell and Malesko. “The proper test,” it said, is simply whether “the case

is different in a meaningful way from previous Bivens cases.” Abbasi, 137 S.

Ct. at 1859.

The Court then provided a non-exhaustive list of “differences that are

meaningful enough to make a given context a new one”:

A case might differ in a meaningful way because of [1] the rank of

the officers involved; [2] the constitutional right at issue; [3] the

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generality or specificity of the official action; [4] the extent of

judicial guidance as to how an officer should respond to the

problem or emergency to be confronted; [5] the statutory or other

legal mandate under which the officer was operating; [6] the risk

of disruptive intrusion by the Judiciary into the functioning of

other branches; or [7] the presence of potential special factors that

previous Bivens cases did not consider.

Id. at 1859–60. In the wake of Abbasi, our Court and at least one of our sister

circuits have rejected new Fourth Amendment claims under Bivens. See

Hernandez v. Mesa, 885 F.3d 811, 816–17 (5th Cir. 2018) (en banc); Tun-Cos v.

Perrotte, 922 F.3d 514, 517–18 (4th Cir. 2019).

2.

By any measure, Cantú’s claims are meaningfully different from the

Fourth Amendment claim at issue in Bivens. He does not allege the officers

entered his home without a warrant or violated his rights of privacy. Rather,

Cantú alleges Moody and LaBuz violated the Fourth Amendment by falsely

stating in affidavits that Cantú willingly took possession of the cooler . . . to

suggest he knowingly participated in a drug transaction . . . to induce

prosecutors to charge him . . . to cause Cantú to be seized. See Wilkie v.

Robbins, 551 U.S. 537, 552 n.6 (2007). This claim involves different conduct

by different officers from a different agency. The officers’ alleged conduct is

specific in one sense: They allegedly falsified affidavits. But it’s general in

another: Cantú claims Moody and LaBuz induced prosecutors to charge him

without any basis, which led to unjustified detention. The connection between

the officers’ conduct and the injury thus involves intellectual leaps that a

textbook forcible seizure never does. See Hartman v. Moore, 547 U.S. 250, 259–

62 (2006). “Judicial guidance” differs across the various kinds of Fourth

Amendment violations—like seizures by deadly force, searches by wiretap,

Terry stops, executions of warrants, seizures without legal process (“false

arrest”), seizures with wrongful legal process (“malicious prosecution”), etc.

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This is therefore a new context, and Cantú’s claims cannot be shoehorned into

Bivens, Davis, or Carlson.

The second question is whether we should engage in the “disfavored

judicial activity” of recognizing a new Bivens action. Id. at 1857 (quotation

omitted). Again, no. There are legion “special factors” counseling that result.

One is the existence of a statutory scheme for torts committed by federal

officers. See 28 U.S.C. § 2680(h); Abbasi, 137 S. Ct. at 1858 (noting “that alone

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

Another is the length of time Congress has gone without statutorily creating a

Bivens-type remedy for this context. Because Congress has long been on notice

that the Supreme Court is disinclined to extend Bivens to new contexts, see

Abbasi, 137 S. Ct. at 1857, its “failure to provide a damages remedy” here

suggests “more than mere oversight,” id. at 1862; see also De La Paz, 786 F.3d

at 377 (noting Congress had not created a damages remedy against

immigration agents despite legislative attention to immigration matters).

A final special factor counseling hesitation is the nature of the

underlying federal law enforcement activity. While Bivens involved an

investigation into seemingly local conduct, this case involves a multi-

jurisdictional investigation into transnational organized crime committed by a

violent gang that has wreaked havoc along our border with Mexico. This case

therefore implicates the security of our international border. Cf. Abassi, 137

S. Ct. at 1861 (identifying national security as a special factor); Meshal v.

Higgenbotham, 804 F.3d 417, 430–31 (D.C. Cir. 2015) (Kavanaugh, J.,

concurring) (same). If members of the Texas Mexican Mafia want a damages

suit—including potentially burdensome discovery—regarding complicated

investigations such as this one, that request must be made to Congress not the

courts. See Abbasi, 137 S. Ct. at 1860–61 (discussing discovery and litigation

costs as a special factor).

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In the face of these considerations, “courts may not create [a cause of

action], no matter how desirable that might be as a policy matter.” Alexander

v. Sandoval, 532 U.S. 275, 286–87 (2001); see also Malesko, 534 U.S. at 75

(Scalia, J., concurring). 4

III.

Finally, Cantú appeals the denial of leave to file a fourth amended

complaint. The district court denied leave because Cantú already had

numerous opportunities to amend his complaint, and the proposed amended

complaint contained claims that Cantú’s counsel previously agreed to remove.

See Foman v. Davis, 371 U.S. 178, 182 (1962) (noting that “undue delay,” “bad

faith,” “dilatory motive,” and “repeated failure to cure deficiencies by

amendments previously allowed” are grounds for denying leave to amend a

complaint). The district court did not abuse its discretion in denying Cantú’s

motion.

AFFIRMED.

4 Our dissenting colleague takes issue with our analysis in two ways. First, Judge

Graves notes this case is factually distinguishable from Abbasi. See post, at 15–17 (Graves,

J., dissenting in part). But mere distinguishability is irrelevant; were it otherwise, federal

courts would be free to infer Bivens actions in any case not involving post-9/11 detention

policies. And we know that’s wrong. See Abbasi, 137 S. Ct. at 1857 (noting such lawmaking

is a “ ‘disfavored’ judicial activity”). Second, Judge Graves notes the FTCA might not provide

a remedy to Cantú. See post, at 17 (Graves, J., dissenting in part). Fair enough. But the

Supreme Court has said that possibility is insufficient to warrant the judicial creation of a

Bivens action—after all, it could be evidence that Congress chose not to afford a remedy. See

Abbasi, 137 S. Ct. at 1858–59, 1865.

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JAMES E. GRAVES, JR., Circuit Judge, dissenting in part:

I respectfully dissent from the majority’s opinion insofar as it concludes

there is no Bivens cause of action for fabrication of evidence.

I agree with the majority’s conclusion that Cantú’s claim of malicious

prosecution/fabrication of evidence presents a “new context” for a Bivens claim

under Supreme Court precedent. However, while the majority concludes

several special factors counsel against recognizing a new claim, I would reach

the opposite conclusion and determine no such factors dictate against

recognizing a new Bivens action here.

Abbasi instructs courts to focus the “special factors” inquiry “on

maintaining the separation of powers: ‘separation-of-powers principles are or

should be central to the analysis.’” Hernandez v. Mesa, 885 F.3d 811, 818 (5th

Cir. 2018) (en banc) (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857

(2017)), cert. granted, No. 17-1678, 2019 WL 2257285 (U.S. May 28, 2019).

Essentially, courts need to consider whether “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.” Abassi, 137 S. Ct. at

1858. If there are, “the courts must refrain from creating the remedy in order

to respect the role of Congress in determining the nature and extent of federal-

court jurisdiction under Article III.” Id.

Some of the factors the Supreme Court considered in Abassi which

counseled against recognizing a Bivens action were that the plaintiffs were

suing high level Executive Officials for the acts of their subordinates, the

lawsuit challenged “the formulation and implementation of a general policy,”

and the claim implicated “sensitive issues of national security.” Id. at 1860–61.

These factors meant the plaintiffs were going beyond challenging “standard

‘law enforcement operations’” and were challenging “major elements of the

Government’s whole response to the September 11 attacks.” Id. at 1861. As a

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result, the Court found it prudent to decline to create a new claim and instead

deferred to the Executive Branch’s authority in military and national security

affairs, as well as to Congress’ ability to designate a specific channel for the

courts to review such authority. Id.

No such concerns are present in this case. Here, Cantú seeks to hold

accountable two individual law enforcement officers who allegedly lied to

support a finding of probable cause and a grand jury indictment, thereby

leading to his prosecution and two years of imprisonment. This is exactly the

type of run-of-the-mill “law enforcement overreach” claim Abassi emphasized

could still be recognized under Bivens. Abassi, 137 S. Ct. at 1862. In the instant

case, there are no national security concerns, 1 no broad governmental policies

at stake, and no high-level executive officials being sued for the actions of their

subordinates. Nor is the giving of affidavits by law enforcement officials a

heavily regulated area closely overseen by Congress so as to suggest Congress

prefers courts not to interfere. See Hernandez, 885 F.3d at 820 (noting

Congressional silence may be relevant “especially where ‘Congressional

interest’ in an issue ‘has been frequent and intense’” (quoting Abassi, 137 S.Ct.

at 1862)). Lastly, the legal standards for adjudicating this type of claim are

well established and easily administrable,” meaning it is a “workable cause of

action.” Wilkie v. Robbins, 551 U.S. 537, 555 (2007); see also Lanuza v. Love,

899 F.3d 1019, 1033 (9th Cir. 2018) (discussing judicial administrability of a

Bivens claim for fabrication of evidence in an immigration context); Engel v.

1 While the majority characterizes the investigation at issue in this case as a multi-

jurisdictional investigation into transnational organized crime necessarily involving the

security of our international border, the Government has not argued that this case implicates

any national security interests. In fact, the Government’s main argument against recognizing

a Bivens action here is that Cantú could have filed suit under the Federal Tort Claims Act.

See discussion infra. Given the Government’s ability to articulate its own interests, I would

decline to create a national security concern where the Government has not alleged one.

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Buchan, 710 F.3d 698, 708 (7th Cir. 2013) (discussing judicial administrability

of a Bivens claims for Brady violations).

Moreover, while the Government argues that Cantú may have other

remedies available through the Federal Tort Claims Act (“FTCA”), the FTCA

does not provide remedies for constitutional violations. See 28 U.S.C.

§ 2679(b)(2)(A) (stating FTCA “does not extend or apply to a civil action against

an employee of the Government . . . which is brought for a violation of the

Constitution of the United States . . . .”). Nor would an injunction here remedy

the alleged constitutional violation, assuming Cantú even had standing to

pursue one. This is essentially a “damages or nothing” case, where the very

nature of Cantú’s allegations “are difficult to address except by way of damages

after the fact.” Abassi, 137 S. Ct. at 1862. While recognizing a Bivens claim

may be a “disfavored judicial remedy” these days, it is still a judicial remedy,

available in certain circumstances where special factors are not present. See

Lanuza, 899 F.3d at 1021 (recognizing the availability of new Bivens claims

even after Abassi). Such is the case here.

Having recognized a Bivens cause of action, I would then conclude that

Cantú adequately alleged such a claim. Accordingly, I dissent from the

majority’s opinion on this issue.

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