Gilson v. Alvarez

1

JOSHUA GILSON, Plaintiff, v. MANUEL ALVAREZ, IV and JOSEPH A. BARRON, Defendants.

No. EP-21-CV-00110-DCG

United States District Court, W.D. Texas, El Paso Division

August 11, 2022

ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

DAVID O. GUADERRAMA, UNITED STATES DISTRICT JUDGE.

Plaintiff Joshua Gilson sued two Border Patrol Agents (Defendants Manuel Alvarez, IV and Joseph A. Barron) for allegedly violating his constitutional rights. Am. Compl., ECF No. 27. Specifically, Gilson alleges that Defendants “unlawfully detained” and “brutally and inhumanely beat[]” him. Id. at 1. Defendants move to dismiss Gilson's claims. Mot., ECF No. 30.

The Court referred Defendants' Motion to Dismiss to U.S Magistrate Judge Anne T. Berton for a report and recommendation under 28 U.S.C. § 636(b)(1)(B). ECF No 34. The Magistrate Judge duly issued a Report and Recommendation advising the Court to grant the Motion and dismiss Gilson's claims. R. & R., ECF No. 35.

Gilson objects to the Magistrate Judge's Report and Recommendation. Obj., ECF No. 36. After carefully reviewing the Report and Recommendation, the parties' filings, and applicable precedent, the Court OVERRULES Gilson's objections, ACCEPTS the Magistrate Judge's Report and Recommendation, and GRANTS Defendants' Motion to Dismiss.

I. BACKGROUND^[1]

On July 15, 2019, Gilson staged a protest at the Border Patrol Station in Clint, Texas.^[2] Am. Compl. at 2. Before arriving at the Station, Gilson posted on Facebook that “he was ‘mad as hell and was going to peacefully liberate'” the Station. Id. (cleaned up). During his protest, Gilson displayed a sign that read “Liberate the Concentration Camp . . . Prosecute the Guards . . . Nothing Else Will Do.” Id.

During Gilson's demonstration, Defendant Barron “ordered men to ‘move in' on Mr. Gilson based on the ‘blunt' object^[3] and the threats on Facebook.” Id. Various Border Patrol Agents^[4] then “approached and handcuffed” him. Id. Gilson insists that he complied with the Agents' commands without resisting. Id.

Gilson alleges that, while moving him from one location to another, Defendant Alvarez “told [Gilson] to hurry up, then pushed Mr. Gilson to the ground for failure to move faster,” causing Gilson to suffer pain. Id. at 3. Then, an unidentified assailant-whom Gilson alleges upon information and belief was either Defendant Barron or Defendant Alvarez-struck Gilson in the abdomen. Id.

Based on his actions during the protest, the United States charged Gilson with the misdemeanor offense of attempting to “willfully injure and commit depredations against property of the United States.” Crim. Compl., United States v. Gilson, No. 3:19-mj-07320 (W.D. Tex. July 17, 2019), ECF No. 1. A jury ultimately acquitted Gilson. J. of Acquittal, No. 3:19-mj-07320 (W.D. Tex. Nov. 22, 2019), ECF No. 36.

Invoking the Supreme Court's decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)-which this Court discusses in greater detail below-Gilson sued Agents Alvarez and Barron for allegedly depriving him of his constitutional rights. Am. Compl. at 3. Although the Amended Complaint contains passing references to the First Amendment, it does not specify which constitutional provisions Defendants allegedly violated. See Am. Compl. at 1-4 (alleging generically that “Mr. Gilson was deprived of his rights secured by the U.S. Constitution”) (emphasis added). The Magistrate Judge construed the Amended Complaint to raise two categories of claims:

(1) A Fourth Amendment false arrest claim against Agent Barron alone; and

(2) Fourth Amendment excessive force claims against both Agent Barron and Agent Alvarez.

R. & R. at 7. Gilson does not dispute the Magistrate Judge's characterization of his claims, so the Court likewise construes the Amended Complaint to raise Fourth Amendment claims only.^[5]See Obj. at 1-5; see also id. at 2 (acknowledging that Gilson's claims “revolve around the Fourth Amendment”).

II. STANDARD OF REVIEW

A. Review of a Report and Recommendation

Where, as here, a party files a timely written objection to a Magistrate Judge's report and recommendation, the District Judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The District Judge “may accept, reject, or modify” the Magistrate Judge's findings and recommendations “in whole or in part.” Id. The District Judge evaluates “any unobjected-to portions of” the Magistrate Judge's report under “a ‘clearly erroneous' and ‘contrary to law' standard of review.” E.R. v. Jasso, 573 F.Supp.3d 1117, 1129 (W.D. Tex. 2021) (quoting United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989)).

B. Federal Rule of Civil Procedure 12(b)(6)

Defendants move to dismiss Gilson's claims under Federal Rule of Civil Procedure 12(b)(6), which empowers the Court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). “To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court must accept the complaint's well-pleaded factual allegations as true and view them in the light most favorable to the plaintiff. George v. SI Grp., Inc., 36 F.4th 611, 619 (5th Cir. 2022). The Court need not, however, accept the complaint's legal conclusions as true. Iqbal, 556 U.S. at 678. Nor are conclusory factual allegations entitled to the presumption of truth. E.g., Arnold, 979 F.3d at 266.

III. ANALYSIS

A. Bivens

1. Legal Standard

As noted above, Gilson bases his claims on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Am. Compl. at 1. The petitioner in Bivens claimed that “agents of the Federal Bureau of Narcotics[,] acting under claim of federal authority, entered his apartment and arrested him for alleged narcotics violations.” 403 U.S. at 389. The agents “manacled petitioner in front of his wife and children[] and threatened to arrest his entire family. They searched the apartment from stern to stern. Thereafter, petitioner was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search.” Id. The petitioner then sued the agents for allegedly:

(1) Violating the Fourth Amendment's prohibition against unreasonable searches and seizures;

(2) Conducting the arrest and search without a warrant;

(3) Using unreasonable force when arresting the petitioner; and

(4) Arresting the petitioner without probable cause.

Id.

The Bivens Court ruled that the federal agents' alleged violation of the Fourth Amendment gave “rise to a cause of action for damages consequent upon [the agents'] unconstitutional conduct.” Id. “Although ‘the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages,' the Court ‘held that it could authorize a remedy under general principles of federal jurisdiction.'” Egbert v. Boule, 142 S.Ct. 1793, 1802 (2022) (internal citations omitted).

In the intervening decades, however, the Supreme Court has stressed repeatedly that “recognizing a cause of action under Bivens” for other alleged constitutional violations “is ‘a disfavored judicial activity.'” Id. at 1803 (quoting Ziglar v. Abbasi, 137 S.Ct. 1843, 1856-57 (2017)). Since deciding Bivens, the Supreme Court has recognized similar causes of action for only two other constitutional violations:

(1) Sex discrimination under the Fifth Amendment, see Davis v. Passman, 442 U.S. 228 (1979); and

(2) Inadequate care of a federal prisoner under the Eighth Amendment, see Carlson v. Green, 446 U.S. 14 (1980).

Id. at 1802. By contrast, the Supreme Court has “declined . . . to imply a similar cause of action for other alleged constitutional violations” on no fewer than a dozen occasions over the past four decades. Id. at 1799; see also Cantu v. Moody, 933 F.3d 414, 421 (5th Cir. 2019) (“Since 1980, . . . ‘the Court has refused' every Bivens claim presented to it.”) (quoting Abbasi, 137 S.Ct. at 1857).

a. New Bivens Context

Courts apply a two-step framework when evaluating whether to recognize a Bivens remedy for an alleged constitutional violation. Egbert, 142 S.Ct. at 1803. First, the court determines “whether the case presents ‘a new Bivens context'”-that is, whether the case is “‘meaningful[ly]' different from the three cases in which the [Supreme] Court has implied a damages action.” Id. (quoting Abbasi, 137 S.Ct. at 1859-60). Courts consider the following factors when assessing whether a lawsuit “differ[s] in a meaningful way” from the few cases in which the Court has recognized a Bivens remedy:

(1) The rank of the officers involved;

(2) The constitutional right at issue;

(3) The 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; and

(7) The presence of potential special factors that previous Bivens cases did not consider.^[6]

Abbasi, 137 S.Ct. at 1860. The Supreme Court has stressed, however, that these factors are not exhaustive. Id. at 1859.

Applying this test, the Fifth Circuit has opined that “Bivens claims generally are limited to the circumstances of the Supreme Court's trilogy of cases in this area:”

(1) “[M]anacling the plaintiff in front of his

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